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This case raises important issues about the meaning and application in practice of section 115(7) of the Police Act 1997 as to the information that is to be provided by the chief officer of a police force to the Secretary of State for inclusion in an enhanced criminal record certificate (ECRC). The section in which this subsection appears provides for enhanced criminal record checks to be carried out in various specified circumstances, such as where people are applying to work with children or vulnerable adults, for various gaming and lotteries licences, for registration for child minding and day care or to act as foster parents or carers. The check is enhanced in the sense that it will involve a check with local police records as well as the centralised computer records held by the Criminal Records Bureau. As well as information about minor convictions and cautions, it will reveal allegations held on local police records about the applicants criminal or other behaviour which have not been tested at trial or led to a conviction. If the information satisfies the tests that section 115(7) lays down, it must be given to the Secretary of State and the Secretary of State for his part must include it in the ECRC. The question is whether, as it has been interpreted, section 115(7) of the 1997 Act is compatible with the applicants right to respect for his or her private life under article 8 of the European Convention on Human Rights. The leading authority on the meaning and effect of the subsection is R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1068; [2005] 1 WLR 65. Lord Woolf CJ said in para 36 that, having regard to the language of section 115(7), the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such disclosure. In para 37 he added these words: This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need. In para 41 he said that, as long as the chief constable was entitled to form the opinion that the information might be relevant, it was difficult to see that there could be any reason why the information that might be relevant ought not to be included in the certificate. The problem with this approach, it is said, is that it involves a disproportionate interference with the article 8 right, bearing in mind the damaging effects to the applicant that the disclosure of such information might give rise to. It goes further than is reasonably necessary for the legitimate object of protecting children and vulnerable adults, and it fails to strike a reasonable balance between the interests of the applicant and the wider social interests that the system was designed to serve. The appellant seeks the quashing of the respondents decision to disclose information about her on her ECRC, and a declaration that section 115(7) is incompatible with article 8. Alternatively she submits that section 115(7) should be read down so as to avoid the incompatibility. The legislation Part V of the Police Act 1997 introduced a legislative framework for the disclosure of criminal records to meet a growing need for the release of such information for employment and other purposes. Previously the arrangements were governed by a series of Home Office Circulars on the Disclosure of Criminal Records. It was designed to implement proposals contained in the White Paper On the Record: The Governments Proposals for Access to Criminal Records for Employment and Related Purposes in England and Wales (1996) (Cm 3308) following an earlier Home Office Consultation Paper Disclosure of Criminal Records for Employment Vetting Purposes (1993) (Cm 2319). Among these proposals was one for enhanced criminal record checks, the details of which were set out in Part VI of the White Paper. It was already the practice, in certain particularly sensitive areas of work or licensing where vetting took place, for additional information to be provided from local police records. In the light of responses to the consultation paper it was proposed that information from local police records would be available for prospective employees, trainees and volunteers having regular, unsupervised, contact with children and young people under 18, and those applying for gaming, betting and lottery licences. It was noted in para 29 that the local records held by most police forces contain a range of information about individuals, including convictions and cautions for minor offences as well as information going beyond the formal particulars of convictions but which might nonetheless be of legitimate interest to those considering employing individuals for particularly sensitive posts. Para 30 of the White Paper was in these terms: After very careful consideration the Government has concluded that it is right for such information to continue to be disclosed where there are particularly strong grounds for it, such as to combat the risk of paedophile infiltration of child care organisations. It accepts that stricter guidelines on what may be disclosed would provide reassurance to those subject to checking in this way and that they should normally be able to see any information of this kind which may be made available on them. Part V of the 1997 Act provided for the issue of three types of certificates. Section 112 dealt with the issue of a criminal conviction certificate. This is a certificate which gives prescribed details of every conviction of the applicant which is recorded on central records, or states that there is no such conviction. Section 113 dealt with the issue of a criminal record certificate. This is a certificate which gives the prescribed details of every conviction within the meaning of the Rehabilitation of Offenders Act 1974 and a caution, or states that there is no such matter. A certificate of this kind may only be issued where the application is countersigned by a registered person and is accompanied by a statement by that person that the information is required for a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 has been excluded by an order of the Secretary of State. Section 115 dealt with the issue of an enhanced criminal record certificate. Sections 113 and 115 were repealed with effect from 6 April 2006 and replaced by sections 113A and 113B, inserted in the 1997 Act by section 163(2) of the Serious Organised Crime and Police Act 2005. This case concerns an ECRC that was issued under section 115 before it was repealed. To avoid confusion I shall concentrate on the wording of that section. Section 115, as amended by the Criminal Justice Act 2003 and so far as material for present purposes, provided: (1) The Secretary of State shall issue an enhanced criminal record certificate to any individual who (a) makes an application under this section in the prescribed manner and form countersigned by a registered person (2) An application under this section must be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked (a) in the course of considering the applicants suitability for a position (whether paid or unpaid) within subsection (3) or (4), or (b) for a purpose relating to any of the matters listed in subsection (5) (3) A position is within this subsection if it involves regularly caring for, training, supervising or being in sole charge of persons aged under 18. (4) A position is within this subsection if (a) it is of a kind specified in regulations made by the Secretary of State, and (b) it involves regularly caring for, training, supervising or being in sole charge of persons aged 18 or over. In subsection (5) a list was given of applications for various gaming and lotteries licences, for registration for child minding or providing day care and the placing of children with foster parents. This list has been extended by subsequent amendments to include, among others, applications for registration as a social worker or a social service worker and registration as a teacher under section 3 of the Teaching and Higher Education Act 1998. Section 115(10) provided that the expressions central records, exempted question and relevant matter had the same meaning as in section 113, subsection (5) of which was in these terms: Sections 115(6) and 115(7) provided as follows: In this section central records means such records of convictions and cautions held for the use of police forces generally as may be prescribed; exempted question means a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) has been excluded by an order of the Secretary of State under section 4(4); relevant matter means (i) the the meaning of a conviction within Rehabilitation of Offenders Act 1974, including a spent conviction, and a caution. (ii) (6) An enhanced criminal record certificate is a certificate which gives (a) (i) the prescribed details of every relevant matter relating to the applicant which is recorded in central records, and (ii) any information provided in accordance with subsection (7), or states that there is no such matter or information. (b) (7) Before issuing an enhanced criminal record certificate the Secretary of State shall request the chief officer of every relevant police force to provide any information which, in the chief officers opinion (a) might be relevant for the purpose described in the statement under subsection (2), and (b) ought to be included in the certificate. These provisions have been re enacted in virtually the same terms by sections 113B(3) and 113B(4) which were inserted into the 1997 Act by section 163(2) of the Serious Organised Crime and Police Act 2005. Section 124 provides that it is an offence for information provided for criminal record checks and enhanced criminal record checks to be disclosed by members and staff of registered bodies and by members and staff of unregistered bodies and individuals and their employees who receive the information following an application which those bodies or individuals have countersigned, unless the disclosure is made in the course of their duties for the purposes authorised by that section. The facts The appellant L is the mother of X who was born on 21 April 1989. He has a much older sister. The family has come to the attention of both the police and social services. Due to concerns about X the local authority arranged a child protection conference which took place on 29 January 2002. At that time X was living with his father and not with the appellant. At that conference a number of concerns were expressed about Xs behaviour. The social worker reported concerns that X might be exposed to drugs and that the appellant was not prepared to work with social services. She said that the general view of all the professionals was that X was at risk within his family because the appellant had very little control of his behaviour and knowledge of his whereabouts for the large part of the day. The conference also received detailed reports from his school of his poor attendance and his poor behaviour at school. It was told that he was currently excluded from school for having assaulted his learning support teacher. The police child protection officer said that there had been a lot of police involvement with X due to his offending and because he had been reported missing on numerous occasions by the appellant. The police felt that many of the issues stemmed from Xs older sister Y who was involved in drugs and prostitution, as X was a frequent visitor to Ys home. As for the appellants contribution to the discussion, the minutes recorded that she refused to accept that Xs behaviour was a concern and targeted the social worker as the cause of all her problems. The decision of the conference was that Xs name should be placed on the child protection register, under the category of neglect. The conference made fourteen recommendations for further action by the authorities, most of which were not implemented. A review conference took place on 26 April 2002, and on 22 November 2002 there was a second review conference. Further recommendations were made, again mostly not implemented, and it was confirmed that X should remain on the child protection register. It was noted at the conference on 22 November 2002 that X was assaulted by his father on 25 September 2002 and that he had returned to live with the appellant. On 27 September 2002 he was arrested for a robbery that was carried out on 12 September 2002. He was charged with this offence on 2 October 2002, and on 31 March 2003 he was convicted and sentenced to three years detention in a young offender institution. In June 2003 his name was removed from the child protection register as he was in detention. He was released on 28 February 2004. From February to December 2004 the appellant was employed by an employment agency, Client Services Education, which provides staff to schools. Between March and July 2004 she worked as a midday assistant at a secondary school. Her job involved supervising children in the lunchtime break both in the canteen and in the playground. She was required to ensure that the children did not go outside the school gates, hurt themselves and get into fights. She shared these responsibilities with four other assistants. At the start of her employment the agency applied for an ECRC in accordance with section 115 of the 1997 Act. The application was countersigned by Isabelle Logerot of the Registered Body Education (Waltham Forest Ltd), which was the registered person for the purposes of that section. The position that the appellant had applied for was described in the application as a casual midday assistant. The police were not given any other details about the work that this post would involve. The appellant signed the application to indicate her consent. Having done so, she returned it to the agency so that they could apply for the police check. On 16 December 2004 the ECRC was issued in response to the police check. It recorded that the appellant had no criminal convictions and that no information on her was recorded either on the list held under section 142 of the Education Act 2002 or on the Protection of Children Act 1999 list. But in the box entitled Other relevant information disclosed at the Chief Police Officers discretion the Secretary of State disclosed the following information as having been supplied by the Metropolitan Police Service: [L], born [date], came to police notice in January 2002 when her son, aged 13, was put on the child protection register under the category of neglect. It was alleged that the applicant had failed to exercise the required degree of care and supervision in that her son was constantly engaged in activities including shoplifting, failing to attend school, going missing from home, assaulting a teacher at school and was excluded from school. Additionally, it was alleged that during this period the applicant had refused to co operate with the social services. Her son was removed from the child protection register in June 2003 after he had been found guilty of robbery and receiving a custodial sentence. Shortly afterwards the appellant was informed by the agency that her services were no longer required. The appellant then sought judicial review of the Commissioners decision to disclose the information contained in the ECRC. Her application was dismissed by Munby J on 19 March 2006: [2006] EWHC 482. The Court of Appeal granted leave to appeal on 14 July 2006, and on 21 August 2006 the Secretary of State made an application to intervene which was granted on 18 September 2006. On 1 March 2007 the Court of Appeal (Longmore, Smith and Moore Bick LJJ) dismissed the appeal: [2008] 1 WLR 681. On 5 March 2008 the appellants solicitors wrote to the Commissioner to enquire whether he would consider removing the records which were the subject of the appeal from the information held by the Criminal Records Bureau. The Commissioner replied on 13 March 2008 in these terms: We have only one record of an application from your client and that was in 2004. The disclosure that was made then will be made in the future if she applies for a job that requires a CRB enhanced criminal record certificate. The disclosure could only change if new information concerning your client came to light. We cannot accede to your request to remove the information we hold in our records. I accept that the nature of the disclosure effectively cuts your client off from working with children and vulnerable adults, but this does not necessarily affect her employment prospects. The vast majority of jobs available do not require enhanced disclosure. The issue As the appellants exchange of correspondence with the Commissioner shows, the current approach to the disclosure follows the guidance that was given in R (X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65. It gives priority to the interests of children and vulnerable adults. The appellants complaint is that it gives insufficient weight to the interests of the applicant, for whom disclosure will not infrequently lead to loss of employment and to long term inability to work in any form of employment involving care for or contact with children or vulnerable adults. The reality will often be, as Baroness Hale of Richmond said in R (Wright) and others v Secretary of State for Health [2009] UKHL 3; [2009] 2 WLR 267, para 22, that the particular job will be lost to the applicant for good and that she will be most unlikely to be able to obtain any other job of that kind. The way the system is operated ensures that the same information will always be disclosed whenever she applies for one. This has all the hallmarks of a rather rigid, mechanistic system, that pays too little attention to the effects of disclosure on the applicant. In R (Wright) and others v Secretary of State for Health the statutory provisions that were under scrutiny related to a list, known as the POVA list, which the Secretary of State was required to keep of persons who were considered unsuitable to work with vulnerable adults under section 81 of the Care Standards Act 2000. If a care workers case was referred to the Secretary of State together with information from which it appeared that it might be appropriate for her to be included on that list, the Secretary of State was required by section 82(4)(b) of the Act to include her name on the list provisionally pending the determination of the reference. The effect of listing was to prevent any new employer from employing the listed person in a care position or to deprive her of such a position if she already had one. By reason of section 92 of the Act the worker was also listed provisionally on the list, known as the POCA list, of persons considered to be unsuitable to work with children. No provision was made for the worker to be accorded a hearing before she was provisionally listed, and once the worker was provisionally listed it could take months before a decision whether or not to confirm that person on the list was made. The result was that the care worker might suffer irreversible damage to her right to work in her chosen profession, as a result of allegations which might turn out to be unfounded or at the very least blown out of all proportion. The House held that the denial of an opportunity to make representations before her name was included in the list was incompatible with the care workers rights under article 6(1). It also held that the low threshold for provisional listing was a disproportionate interference with her article 8 rights. Baroness Hale explained the basis for this finding in para 36: There will be some people for whom the impact upon personal relationships is so great as to constitute an interference with the right to respect for private life and others for whom it may not. The scope of the ban is very wide, bearing in mind that the worker is placed on both the POVA and POCA lists. The ban is also likely to have an effect in practice going beyond its effect in law. Even though the lists are not made public, the fact is likely to get about and the stigma will be considerable. The scheme must therefore be devised in such a way as to prevent possible breaches of the article 8 rights. A declaration was made that section 82(4)(b) was incompatible with the appellants rights under article 6 and article 8 of the Convention. The appellant does not suggest that her rights under article 6(1) are in issue in this case. The scheme that section 115 of the 1997 Act provides for is not directly comparable with that under the 2000 Act. Unlike the scheme for provisional listing under the 2000 Act, the provision of information in an ECRC does not automatically lead to the loss or denial of employment. The issue as to its effect is left to the judgment of the employer. The statute does not prevent the applicant from making representations at any stage to the police or to a prospective employer. Section 117 provides that an applicant who believes that the information contained in a certificate is inaccurate may make an application in writing to the Secretary of State for a new certificate. Nevertheless she submits that, for the same reasons that provisional listing under the scheme established under the Care Standards Act 2000 was capable of causing a breach of article 8 rights, so too is disclosure of information about an applicant on an ECRC. As Mr Cragg put it, the state has a duty to provide a scheme which complies with article 8(2). Section 115 was enacted for a legitimate purpose. But he submitted that, as currently interpreted, it is not a measure which can be regarded as proportionate. The threshold for disclosure is too low, the description of the information that can be disclosed is too broad and there are insufficient protections in the scheme. Article 8(1) Article 8(1) provides that everyone has the right to respect for his private life, his home and his correspondence. The right that the appellant invokes in this case is her right to respect for her private life. Ms Barton for the Commissioner submitted that the appellants rights under article 8 were not engaged at all by the scheme that section 115 sets out. This was because much of the information that was included in an ECRC was quite properly in the public domain anyway, and because it was the appellant herself who had applied for the certificate. Mr Eadie QC for the Secretary of State adopted a more nuanced approach to these issues. He said that the answer to the question whether there was an interference with the applicants article 8 rights had to take account of the fact that the system was not dealing wholly with the private sphere and of the nature and type of the information that was made available. He did not suggest that the applicants consent on its own provided an answer to it. But account had to be taken of the fact that the regime left it to the police to judge what was relevant, that the final decision on relevance was left to the employer, that the system was less draconian than that which was under consideration in R (Wright) and others v Secretary of State for Health and that there were strict controls on what could be done with the information in the hands of the employer as further disclosure was prohibited. The word engaged, which Ms Barton used when she said that article 8 was not engaged in this case at all, requires to be examined with some care. It does not form part of the vocabulary of the European Court and, as Laws LJ said in Sheffield City Council v Smart [2002] EWCA Civ 04, [2002] HLR 639, para 22, its use is liable to be misleading and unhelpful. In Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983, para 47 I said that I would not for my part regard its use as objectionable, so long as there was no doubt what it means in this context. I drew attention to the words of Sir Gerald Fitzmaurice in his dissenting opinion in Marckx v Belgium (1979) 2 EHRR 330, in which he said that the question was whether the provision was applicable a concept which is juridically distinct from that of whether the provision has been breached. In other words, the question is whether the issue that has been raised is within the scope of the article. If it is not within its scope, the question of a possible breach of it does not arise at all. If it is, the question whether there is an interference with it which requires to be justified under article 8(2) is a separate question. The question whether something falls within the ambit of any of the rights or freedoms set forth in the Convention for the purpose of the prohibition of discrimination in article 14 reflects this approach. The issue as to what does and does not lie within the scope of the article 8 right to respect for private life has been examined in some detail in R (Wright) v Secretary of State for Health, paras 30 32 and in In re British Broadcasting Corporation [2009] UKHL 34, [2009] 3 WLR 142, paras 18 20. In the context of this case it is sufficient to note that it has been recognised that respect for private life comprises, to a certain degree, the right to establish and develop relationships with other human beings: X v Iceland (1976) 5 DR 86; Niemietz v Germany (1992) 16 EHRR 97, para 29. Excluding 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: see Turek v Slovakia (2006) 44 EHRR 861, para 109. As Baroness Hale said in R (Wright) v Secretary of State for Health, 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. There is another aspect of the right to respect for private life that needs to be brought into account, as it is directly relevant to the effect on a persons private life of the release of information about him that is stored in public records. In R v Chief Constable of the North Wales Police, Ex p AB [1999] QB 396 Lord Bingham of Cornhill CJ said in the Divisional Court that he was prepared to accept (without deciding) that disclosure of personal information that the applicants wished to keep to themselves could in principle amount to an interference with the right protected by article 8: [1999] QB 396, 414. At p 416 Buxton J put the point more strongly when he said: I do however consider that a wish that certain facts in ones past, however notorious at the time, should remain in that past is an aspect of the subjects private life sufficient at least to raise questions under article 8 of the Convention. Buxton Js observations were endorsed by Lord Woolf MR, delivering the judgment of the Court of Appeal: [1999] QB 396, 429. The Convention was not, of course, then part of domestic law and Buxton Js observations in Ex p AB were not supported by reference to any decisions in Strasbourg. But subsequent decisions by the European Court do, I think, provide support for them. In Rotaru v Romania, (2000) 8 BHRC 449 Application no 28341/95, 4 May 2000, the applicant who was a lawyer by profession complained of a violation of his right to respect for his private life on account of the use against him by the Romanian Intelligence Service of a file which contained information about his conviction for insulting behaviour because, when he was a student, he had written two letters of protest against the abolition of freedom of expression when the communist regime was established in 1946. In para 43 the court, referring to its judgment in Leander v Sweden (1987) 9 EHRR 433, para 48, said that the storing of information relating to an individuals private life in a secret register and the release of such information come within the scope of article 8(1): Moreover, public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. This is all the truer where such information concerns a persons distant past. In Segerstedt Wiberg and others v Sweden, Application no 62332/00, 6 June 2006, para 72 and Cemalettin Canli v Turkey, Application no 22427/04, 18 November 2008, para 33, referring to its previous decision in Rotaru, the court again said that public information can fall within the scope of private life when it is systematically collected and stored in files held by the authorities. 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. It may include allegations of criminal behaviour for which there was insufficient evidence to prosecute, as in R v Local Authority and Police Authority in the Midlands, Ex p LM [2000] 1 FLR 612 where the allegations of child sexual abuse were unsubstantiated. It may even disclose something that could not be described as criminal behaviour at all. The information that was disclosed on the appellants ECRC was of that kind. The ECRC disclosed that the appellants son X was put on the child protection register and that he was removed from it after he had been found guilty of robbery and received a custodial sentence. His conviction could be seen as public information because his trial was held in public. But the fact that the appellant was the mother of the person who had been convicted and sentenced to detention was private information. So too was information about the proceedings in which it was alleged that she failed to exercise the required degree of care and supervision of her son and that she had refused to co operate with the social services. They were recorded in the minutes of the child protection conference on 29 January 2002. But the conference did not take place in public, nor were the minutes open to public scrutiny. These were aspects of her private life which had to be respected when the decision was taken as to whether or not details which had been stored in the police files should be released For these reasons I would reject Ms Bartons submission that article 8(1) is not engaged in this case. It seems to me that the decisions which the chief officer of police is required to take by section 115(7) of the 1997 Act are likely to fall within the scope of article 8(1) in every case, as the information which he is considering has been stored in files held by the police. It follows that its disclosure is likely to affect the private life of the applicant in virtually every case. The question in these cases will be whether the interference with her private life can be justified. How the system works in practice The evidence that was before the judge included statements by Detective Chief Inspector Stuart Gibson and by Chief Superintendent Graham Morris. The notes on the relevant case management system (known as CEC) attached to DCI Gibsons statement show that information that the police held in the appellants case was passed to him by a team leader at the end of September 2004 so that he could make a recommendation as to whether any of its contents should be included in the ECRC. He had available to him notes of guidance as to the approach which he was expected to follow. Among other things such as the quality and age of the information, he was expected to have regard to human rights issues. For this purpose he had available to him the guidance that was given in a document headed MP9 Human Rights Guidelines. MP9 sets out the steps that the police officer is expected to take to establish whether or not he believes that the impact of disclosure on the applicants private life outweighs the potential impact on the vulnerable group if the information was not disclosed. Those steps are the subject of a risk/human rights rating table, in which four human rights categories are compared with three risk categories. The human rights categories are graded according to the extent to which disclosure would cause disruption to the private life of the applicant or a third party: none, little, moderate or severe. The risk categories are graded according to the degree of risk that failure to disclose would cause to the vulnerable group: severe, moderate or little. The first task is to determine the human rights category of the statement that is being considered for disclosure. The second is to determine its risk category. The third and crucial stage is to check the content of the cell on the table which forms the intersection of the risk and human rights categories. These cells contain either a tick, which indicates that in such a case the information will always be disclosed, or the words carefully consider which indicate that careful consideration is needed to ensure that the rationale for disclosure makes it very clear why the human rights infringement outweighs the risk posed to the vulnerable group. A striking feature of the rating table is that a tick appears in every cell where it is said that a failure to disclose would cause a severe risk to the vulnerable intersects with a human rights category, however severe the disruption that disclosure in that category would cause to the private life of anyone. Where the risk that a failure to disclose would cause is moderate, careful consideration is only required if the disruption to the private life of anyone would be one grade higher: severe. It is only where the risk that a failure to disclose would cause little quantifiable risk to the vulnerable group that careful consideration is required if the corresponding human rights category of little disruption to private life applies. In all other cases the corresponding human rights category is trumped by an equivalent risk category. On 30 November 2004 DCI Gibson wrote a minute to Det.Supt. Morris (as he then was) on the CEC notes informing him that, having considered what he described as a mountain of information a large part of which was rumour, conjecture and uncorroborated allegations, the only part of it that he considered it safe to disclose was that surrounding the appellants son being the subject of inclusion on the child protection register under the category of neglect. He said that he considered this to be highly relevant as the appellant had consistently displayed a lack of ability to adequately care for and supervise her own child and the registered body should be made aware of her history when considering her employment application. On 2 December 2004 Det.Supt. Morris entered a minute on the CEC agreeing with DCI Gibson. It included the following determination of the human rights issue: The HRA requires a balance to be struck between the right to private life and protecting the vulnerable from moral harm, mental or physical abuse. While individuals should not be at the risk of being for ever hounded, if a person chooses to seek this kind of employment then they put themselves forward into public life and by that choice accept that information may be released. The impact of disclosure may result in his not being employed. While it would not be in societys interest to exclude an applicant from employment, social outlets, etc as this may be a moderating factor on behaviour, the welfare of the vulnerable in respect of whom the risk may exist is of paramount importance, as is their rights that legislation seeks to protect. The decision is one for police and there is no presumption against disclosure, the position is more in favour of disclosure unless there is a good reason for not doing so. (X v WM) It is plain, both from the terms of Det.Supt. Morriss minute and the way the rating table is set out, that the treatment of the human rights issue by the police has been closely modelled on what Lord Woolf CJ said in R (X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65. This impression is reinforced by the approach to this issue of the Home Office circular 5/2005 Criminal Records Bureau: Local Checks by Police Forces. In para 6 it states that a decision on whether information should be disclosed will turn to a large extent on considerations of relevancy, although other facts need to be weighed too, in particular whether the nature of the information and its degree of relevance to the case in hand are such that its disclosure would be reasonable and proportionate, having regard to the applicants right to respect for his or her private life. Para 55 states, under the heading Case Law, that forces and their solicitors will be aware of the Court of Appeals judgment in that case. So it is now necessary to look more closely at that case, and to consider whether the Court of Appeal struck the balance in the right place as proportionality requires if section 115(7) is to be applied compatibly with article 8. R (X) v Chief Constable of the West Midlands Police This was a case where a man who applied for a job as a social worker had no previous convictions. He had been charged with indecent exposure, but the proceedings were discontinued when the alleged victim failed to identify him. The social work agency which was dealing with his job application applied for an ECRC. The Chief Constable, as he was required to do, issued an ECRC to the agency relating to the applicant. It contained details of the allegations of indecent exposure under the heading of other relevant information. When the Chief Constables decision to disclose this information came before him for judicial review, Wall J held that the duty to act fairly required the Chief Constable to permit the claimant to make representations as to what was proposed to be disclosed and that, on the facts, there had not been a pressing need for disclosure: [2004] EWHC 61 (Admin), [2004] 1 WLR 1518. Wall J referred in paras 71 to 80 of his judgment to what was said R v Chief Constable of the North Wales Police, Ex p AB [1999] QB 396 by Lord Bingham of Cornhill CJ in the Divisional Court where at p 410 he stressed the importance of considering each case carefully on its own facts and by Lord Woolf MR in the Court of Appeal where at p 428 he too said that each case must be judged on its own facts. He referred also to Dyson Js judgment in R v Local Authority and Police Authority in the Midlands, Ex p LM [2000] 1 FLR 612 in which the approach that was to be taken to section 115(7) of the 1997 Act was directly in issue, where he said at p 622: In my view, the guiding principles for the exercise of the power to disclose in the present case are those enunciated in R v Chief Constable of the North Wales Police, Ex p AB. Each of the respondent authorities had to consider the case on its own facts. A blanket approach was impermissible. Having regard to the sensitivity of the issues raised by the allegations of sexual impropriety made against LM, disclosure should only be made if there is a pressing need. Disclosure should be the exception, and not the rule. In para 84 Wall J said that, while section 115(7) defined the parameters of the Chief Constables discretion, it did not exclude the operation of the common law principles as to its exercise. In para 85 he said that, as all parties in those proceedings accepted, the discretion must also be exercised in compliance with article 8(2) of the Convention and that it seemed to him to be only a very short step to an acceptance that the common law principles set out in Ex p AB as accepted by Dyson J in Ex p LM also applied. In para 89 he said: The disclosure of information which (as here) has not been the subject of judicial adjudication, which is highly contentious and which, if disclosed is likely to render the claimant permanently unemployable in his chosen profession plainly requires what the European court described as a pressing need to made disclosure appropriate. In para 90, however, he accepted that the need to protect children and vulnerable adults from abuse by those employed to care for them is a pressing social need and in para 91, having noted that it was at least highly arguable that the effect of section 115(7) was to displace the common law presumption against disclosure, he said that he proposed to approach the question on the basis that there was no presumption against disclosure and that the circumstances identified in section 115(7) did identify a pressing need: As will become apparent, however, this does not mean that disclosure of additional, non conviction information under section 115 is automatic, or that it is not surrounded by the stringent conditions of natural justice and procedural fairness. He held that there had been no proper assessment of the effect on the claimant of disclosure being given, and that the information ought not to have been disclosed. Wall Js decision was reversed in the Court of Appeal: [2005] 1 WLR 65. In para 36 Lord Woolf CJ said that the position was more in favour of disclosure than Wall J had indicated: Having regard to the language of section 115, the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure. In para 37, as I noted in para 2 above, he then added these words: This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need. In my judgment it imposes too heavy an obligation on the Chief Constable to require him to give an opportunity for a person to make representations prior to the Chief Constable performing his statutory duty of disclosure. In para 41 he considered the effect of article 8(2), on the assumption that article 8 had a role to play in the decision of the Chief Constable: on that assumption, how can the Chief Constables decision to disclose be challenged under article 8. As already indicated, the Chief Constable starts off with the advantage that his statutory role is not in conflict with article 8, because the statute meets the requirements of article 8(2). It follows also, that as long as the Chief Constable was entitled to form the opinion that the information disclosed might be relevant, then absent any untoward circumstance which is not present here, it is difficult to see that there can be any reason why the information that might be relevant, ought not to be included in the certificate. I accept that it is possible that there could be cases where the information should not be included in the certificate because it is disproportionate to do so; the information might be as to some trifling matter; it may be that the evidence made it so unlikely that the information was correct, that it again would be disproportionate to disclose it. These were not, in my judgment, the situations on the facts before the Chief Constable. It is plain that the effect of this approach is to encourage disclosure of any information that might be relevant, and to give priority to the social need that favours disclosure over respect for the private life of the applicant and of any third party who may be affected by the disclosure. It was also a significant departure from the way the White Paper envisaged the scheme would be operated: see para 5, above. Discussion Section 115(7) requires the Chief Constable to form an opinion as to whether any information (a) might be relevant for the purpose described in the statement under subsection (2), and (b) ought to be included in the certificate. The question whether the information is relevant will depend on the facts of the case. As Richards LJ said in R (Pinnington) v Chief Constable of Thames Valley Police [2008] EWHC 1870 (Admin), para 47, by the terms of the statute it is for the chief constable or his delegate to form an opinion on that issue. In forming his opinion on relevance, the officer must ask himself whether the information might be true, and if it might be true he must consider the degree of connection between the information and the purpose described. It has not been suggested that DCI Gibson and Det.Supt. Morris, who undertook their task with commendable care, were not entitled to conclude that the information that was disclosed on the appellants ECRC might be relevant for the purpose disclosed in the statement that the employment agency provided under section 115(2). The question whether the information might be relevant is not, however, the end of the matter. An opinion must also be formed as to whether it ought to be included in the certificate. It is here, as the guidance that is available to the police correctly recognises, that attention must be given to the impact that disclosure may have on the private lives of the applicant and of any third party who is referred to in the information. For the reasons I have already given (see paras 22 29), I consider that the decisions which the chief officer of police is required to take by section 115(7) of the 1997 Act will fall within the scope of article 8(1) in every case. So in every case he must consider whether there is likely to be an interference with the applicants private life, and if so whether that interference can be justified. This raises the question whether in R (X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65, paras 36 and 37 and especially in para 41, Lord Woolf CJ struck the balance in the right place. Before he addressed himself to this issue, however, Lord Woolf noted in para 20 of the judgment that it had not been suggested in that case that the legislation itself contravenes article 8: No doubt this is because disclosure of the information contained in the certificate would be in accordance with the law and necessary in a democratic society, in the interests of public safety and for the prevention of crime and for the protection of the rights and freedoms of others. This country must, through its legislature, be entitled to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so, without those in their care coming to harm if they are under the age of 18 or vulnerable adults. I would respectfully endorse those remarks. Here too it was not suggested by Mr Cragg that the legislation itself contravened article 8, so long as it was interpreted and applied in a way that was proportionate. So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicants right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place. As the many additions that have been made to the list of matters in section 115(5) show, the use that is being made of the requirement to obtain an ECRC has increased substantially since the scheme was first devised. The number of disclosures of information by means of ECRCs has exceeded 200,000 for each of the last two years (215,640 for 2007/2008; 274,877 for 2008/2009). Not far short of ten per cent of these disclosures have had section 115(7) information on them (17,560 for 2007/2008; 21,045 for 2008/2009). Increasing use of this procedure, and the effects of the release of sensitive information of this kind on the applicants opportunities for employment or engaging in unpaid work in the community and their ability to establish and develop relations with others, is a cause of very real public concern as the written intervention submitted by Liberty indicates. As Liberty also point out, it is no answer to these concerns that the ECRC is issued on the application of the persons concerned. It is true that they can choose not to apply for a position of the kind that requires such a certificate. But they have, in reality no free choice in the matter if an employer in their chosen profession insists, as he is entitled to, on an ECRC. The answer to the question whether there is any relevant information is likely to determine the outcome of their job application. If relevant information is disclosed they may as a result be cut off from work for which they have considerable training and experience. In some cases they could be excluded permanently from the only work which is likely to be available to them. They consent to the application, but only on the basis that their right to private life is respected. In my opinion the effect of the approach that was taken to this issue in R (X) v Chief Constable of the West Midlands Police has been to tilt the balance against the applicant too far. It has encouraged the idea that priority must be given to the social need to protect the vulnerable as against the right to respect for private life of the applicant. This is clearly shown by the way the rating table in MP9 is constructed and by Det.Supt. Morriss minute of 2 December 2004. The words ought to be included in section 115(7)(b) require to be given much greater attention. They must be read and given effect in a way that is compatible with the applicants Convention right and that of any third party who may be affected by the disclosure: Human Rights Act 1998 Act, section 3(1). But in my opinion there is no need for those words to be read down or for words to be added in that are not there. All that is needed is to give those words their full weight, so that proper consideration is given to the applicants right to respect for her private life. The correct approach, as in other cases where competing Convention rights are in issue, is that neither consideration has precedence over the other: Campbell v MGN Ltd [2004 ] UKHL 22, [2004] 2 AC 457, para 12, per Lord Nicholls of Birkenhead. The rating table in MP9 should be restructured so that the precedence that is given to the risk that failure to disclose would cause to the vulnerable group is removed. It should indicate that careful consideration is required in all cases where the disruption to the private life of anyone is judged to be as great, or more so, as the risk of non disclosure to the vulnerable group. The advice that, where careful consideration is required, the rationale for disclosure should make it very clear why the human rights infringement outweighs the risk posed to the vulnerable group also needs to be reworded. It should no longer be assumed that the presumption is for disclosure unless there is a good reason for not doing so. In cases of doubt, especially where it is unclear whether the position for which the applicant is applying really does require the disclosure of sensitive information, where there is room for doubt as to whether an allegation of a sensitive kind could be substantiated or where the information may indicate a state of affairs that is out of date or no longer true, chief constables should offer the applicant an opportunity of making representations before the information is released. In R (X) v Chief Constable of the West Midlands Police Lord Woolf CJ rejected Wall Js suggestion that this should be done on the ground that this would impose too heavy an obligation on the Chief Constable [2005] 1 WLR 65, para 37. Here too I think, with respect, that he got the balance wrong. But it will not be necessary for this procedure to be undertaken in every case. It should only be resorted to where there is room for doubt as to whether there should be disclosure of information that is considered to be relevant. The risks in such cases of causing disproportionate harm to the applicant outweigh the inconvenience to the chief constable. Conclusion In my opinion it is possible for section 115(7) to be read and given effect in the way that I have indicated so that decisions are taken which are compatible with the applicants article 8 right. It must follow that it would not be appropriate for a declaration to be made under section 4 of the Human Rights Act 1998 that the subsection is incompatible. I would also decline the appellants request that the decision that was made in her case should be quashed. There is no doubt that the information that was disclosed about her was relevant for the purpose for which the ECRC was being required. As for the question whether it ought to have been disclosed, insufficient weight was given to the appellants right to respect for her private life. But there is no doubt that the facts that were narrated were true. It was also information that bore directly on the question whether she was a person who could safely be entrusted with the job of supervising children in a school canteen or in the playground. It was for the employer to decide what to make of this information, but it is not at all surprising that the decision was that her employment should be terminated. The consequences that disclosure will have for her private life are regrettable. But I can see no escape from the conclusion that the risk to the children must, in her case, be held to outweigh the prejudicial effects that disclosure will give rise to. I would dismiss the appeal. LORD SAVILLE reasons that he gives I would dismiss this appeal. I have had the advantage of reading in draft the judgment of Lord Hope. For the LORD SCOTT The appellant, L, is a lady who wanted to obtain employment in a school as a casual midday assistant. The duties associated with this position involved supervising the schoolchildren during the lunchtime break both in the school canteen and in the school playground. The appellant hoped to obtain this employment via an agency, Client Services Education (CSE), whose business was to provide staff to schools. For the purposes of furthering the prospects of her success in obtaining the desired employment she made an application for an enhanced criminal record certificate pursuant to section 115 of the Police Act 1997 (as amended). My noble and learned friend, Lord Hope, whose opinion on this appeal I have had the advantage of reading in draft, has explained in para 1 and paras 4 to 11 of his opinion the background to and the purpose of section 115 and has set out the terms of the section. I gratefully adopt what he has said and it suffices for present purposes for me to say that whereas a criminal record certificate gives details of any recorded convictions of the individual to whom the certificate relates, an enhanced criminal record certificate (an ECRC) gives, in addition, any information which in the opinion of the chief officer of the relevant police force might be relevant for the purpose described in the application for the certificate and ought to be included in the certificate (see section 115(7)). The chief officer is not expected to embark upon an investigatory inquiry regarding the individual in question but simply to consult the records maintained by the police. It is clear that additional information disclosed under subsection (7) in an ECRC may be information that does not involve any criminal behaviour on the part of the individual in question. It may, for example, as in the present case, relate to the relationship of the individual with some other person who does have a criminal record. In the previous paragraph I said that the appellant had made an application for an ECRC. In para 7 of the Statement of Facts and Issues, prepared for the purposes of this appeal and signed by the respective counsel for the appellant and the respondent, the Secretary of State, it is stated that the application was made by CSE. Lord Hope, in para 14 of his opinion, has repeated that it was CSE that applied for the ECRC. However, subsections (1) and (2) of section 115 seem to me to make it clear that an application for an ECRC must be made by the individual in question. Subsection (1) says that The Secretary of State shall issue an enhanced criminal record certificate to any individual who (a) makes an application under this section in the prescribed form countersigned by a registered person The registered person in the present case was CSE. Subsection (2) says that the application must be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked (a) in the course of considering the applicants suitability for a position (whether paid or unpaid) within subsections (3) or (4) (emphasis added) Subsection (3) refers to a position which involves regularly supervising or being in sole charge of persons under 18. Subsection (3) clearly covers the position for which the appellant was hoping to be employed and it is she who must have been the applicant whose suitability was under consideration. The statutory obligation imposed on the Secretary of State by subsection (1) is an obligation to issue the ECRC to the individual who makes the application. Subsection (8) imposes a statutory obligation on the Secretary of State to send a copy of the ECRC to the registered person, CSE in the present case. I think, therefore, that it must be wrong to say that the application for the ECRC had been made by CSE. It must have been made by the appellant. It may be that not very much turns on this point for, as Lord Hope has pointed out, also in para 14, The appellant signed the application to indicate her consent. The ECRC issued in response to the application recorded that the appellant had no criminal convictions but under the heading other relevant information disclosed at the chief police officers discretion the Secretary of State included the details regarding the appellants 13 year old son that are recited by Lord Hope in para 15 of his opinion. It is plain that it was the chief police officers opinion that these details were relevant to the employment of the appellant as a casual midday assistant at a school and that they ought to be included in the certificate. The appellant has challenged the chief police officers decision to include the details in question in the certificate. The decision, it is submitted, violates her rights under article 8 of the European Convention on Human Rights. Article 8 entitles everyone to the right to respect for his or her private life. The ECRC, issued in response to the appellants application, undoubtedly contained details about her private life but these were details that, in my opinion, had a clear relevance to the suitability of the appellant to be employed in a capacity that involved the supervision of schoolchildren, whether in the school canteen or in the school playground. The only remaining question, in my opinion, is whether the decision of the chief police officer that the details ought to be included in the certificate is vulnerable to an article 8 attack. It would be easy to understand a complaint by the appellant of an article 8 breach of her right to respect for her private life if details with no arguable relevance to the employment position in question had been gratuitously included in the ECRC. But that is not the case here. Nor is it suggested that the compilation and retention by the police of the details in question constituted a breach of her article 8 rights. If the compilation and retention by the police of the details was unexceptionable and if it cannot be suggested that the details were irrelevant to the suitability of the appellant for the employment position for which she had applied, I find it difficult to see on what basis her attack on the inclusion of the details in the certificate could succeed. She does not say that they are untrue nor that they are irrelevant. She simply says, as I understand it, that the decision to include them in the certificate showed a lack of the respect for her private life to which she is entitled under article 8. It is at this point, as it seems to me, that it becomes necessary to remember that it was she who applied for the certificate. I do not doubt that the need for the certificate would have been impressed on her by CSE and that she would have realised that unless she agreed to make the application her chances of obtaining the employment position she desired would be reduced. She may or may not have had in mind the full implications of subsection (7) of section 115 and it would probably not have occurred to her that the history of her delinquent 13 year old son and her failure to have controlled his delinquency would be known to the police and might be considered relevant information. But it cannot, in my opinion, possibly be said that the police response showed a lack of respect for her private life. It was she who, in making the application for an ECRC, invited the exercise by the chief police officer of the statutory duty imposed by section 115(7). In para 43 of his opinion Lord Hope has commented that those in respect of whom an ECRC are sought consent to the application but only on the basis that their right to private life is respected. This proposition seems to me, with the greatest respect, to be an impossible one. The any information to which subsection (7) refers is almost bound to be information about private life. An application for subsection (7) information cannot be on the basis that no private information on the police files about the individual in question will be included in the certificate. If an application were ever made on that express basis it would rightly be rejected by the Secretary of State. If the private information is relevant and the decision that it ought to be included in the ECRC is a reasonable one, having regard to the reason why the certificate is being sought, there is, in my opinion, no objection to its inclusion that the applicant for the certificate can make. A decision reasonably reached that relevant information should be included in an ECRC cannot, in my opinion, be attacked by the applicant for the ECRC on the ground that the decision showed an article 8 lack of respect for his or her private life. It follows from what I have said that I would, for my part, endorse the approach taken by Lord Woolf CJ in R (X) v Chief Constable of the West Midlands Police [2005] 1WLR 65, referred to by Lord Hope in paragraphs 41 and 44 of his opinion. I agree that the approach accords priority to the social need to protect the vulnerable as against any article 8 rights the applicant for a section 115(7) ECRC may otherwise be entitled to. The applicant, by making the application, authorises the issue of the certificate in accordance with the criteria prescribed by paragraphs (a) and (b) of the subsection. If the decision of the chief police officer to include in the certificate the additional information is a decision which cannot be challenged as being unreasonable, having regard to the purpose described in the application (see section 115(7)), an article 8 challenge to the decision is not, in my opinion, open to the applicant. I would, therefore, dismiss this appeal. LORD BROWN I have had the advantage of reading in draft the opinions of Lord Hope and Lord Neuberger. I agree with both of them and there is really very little that it might be helpful to add. Instinctively though one rails against a nanny state, there are occasions when nannying is justified and section 115 (7) of the Police Act 1997 seems to me just such a case. As already comprehensively explained by my Lords, it provides a mechanism whereby those considering the employment of someone applying to work with children may be the better informed as to that persons suitability for the post more particularly as to whether there is anything known to the police about the person such as should give the prospective employer, at the very least, pause for thought. That said, there can be no doubting the impact an enhanced criminal record certificate (ECRC) containing any adverse information is likely to have on the persons prospects of obtaining the desired employment and it therefore seems to me imperative in every case to ensure that the public interest in safeguarding children really does justify the relevant disclosure. In short, I wholeheartedly concur with my Lords in concluding that the balance struck by the Court of Appeal in R (X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65 needs to be re struck less unfavourably to the prospective employee. This is to be achieved in the first place by the chief officer of police giving no less weight to the section 115(7) (b) requirement that in his opinion the information ought to be included in the certificate than to the section 115(7)(a) requirement that he thinks it might be relevant (rather than presuming that any potentially relevant information should ordinarily be disclosed); and secondly by requiring the chief officer in any borderline case, before issuing the certificate, to give the prospective employee an opportunity to state why the information which the officer proposes disclosing ought not in fact to be disclosed. Lord Scott takes issue with Lord Hopes statement at para 43 of his opinion that applicants for ECRCs consent to the disclosure of relevant information about them but only on the basis that their right to private life is respected. Assuming, as I do, that all that Lord Hope means by this is that applicants are consenting to the disclosure of relevant information to the extent that this is proportionate to the damage this will cause to their interests in privacy but no more, it seems to me plainly right. As Lord Neuberger puts it at para 73 of his opinion, were it otherwise, legislation could all too easily be devised so as to circumvent Convention rights. The above criticisms of the existing approach to disclosure under section 115(7) notwithstanding, in common with all of my Lords I regard the position in the present case to be clear. The Commissioners decision to make the disputed disclosure here cannot in my opinion be criticised. The appeal must accordingly be dismissed. LORD NEUBERGER Lord Hope has clearly set out the legislative provisions and history, the factual and procedural background and the appellants contentions in paragraphs 4 to 21 of his judgment, and I gratefully adopt what he there says. The appellants contentions raise two principal issues. The first is whether the appellants complaint about the operation of section 115 of the Police Act 1997, as summarised by Lord Hope in paragraph 21, is one which properly falls within the reach of article 8 of the Convention, i.e. whether article 8 is engaged. The second issue, which only arises if the Article is engaged, is whether the operation of the section in a case such as the present infringes article 8. There is also a separate contention that the decision in this particular case should be quashed. As to the first issue, I am firmly of the view that article 8 is engaged in this case. An enhanced criminal record certificate (an ECRC) which contains particulars of any convictions (potentially including spent convictions) or cautions (under section 115(6)(a)(i) and 113(5) of the 1997 Act), or any other information which might be relevant and which ought to be included in the certificate (under section 115(6)(a)(ii) and 115(7) of the 1997 Act), will often have a highly significant effect on the applicant. In the light of the wide ambit of section 115 (extending as it does to social workers and teachers, as well as to those regularly caring for, training, supervising or being in sole charge of children), an adverse ECRC (i.e. an ECRC within section 115(6)(a), rather than section 115(6)(b)) will often effectively shut off forever all employment opportunities for the applicant in a large number of different fields, for the reasons given, in relation to other legislation, by Baroness Hale of Richmond in R (Wright) and others v Secretary of State for Health [2009] UKHL 3, [2009] 2 WLR 267, para 22. An ECRC must be sought for each job application, but, once an adverse ECRC has been issued in relation to one application, it is, in the absence of special factors, likely to be issued in the same terms in relation to all future applications for posts falling within the ambit of section 115. Even where the ECRC records a conviction (or caution) for a relatively minor, or questionably relevant, offence, a prospective employer may well feel it safer, particularly in the present culture, which, at least in its historical context, can be said to be unusually risk averse and judgmental, to reject the applicant. The same point applies to an ECRC which only contained material falling within section 115(6)(a)(ii) and (7), even where the chief officers opinion that the material should be included, while rational, was not one which many chief officers would have shared. (Having said that, there will no doubt be cases where the employer will conclude that the information in the adverse ECRC is irrelevant or has been satisfactorily explained or disposed of by the applicant, but such cases would, I suspect, be comparatively rare.) The view that this feature of the 1997 Act means that Article 8 is engaged derives support from Sidabras v Lithuania (2004) 42 EHRR 104, para 48. An applicants exclusion from a large sector of the job market (especially, it seems to me, a socially important and vocationally driven sector) will frequently have a significant effect on her private life, in terms of career satisfaction, development of personal relationships and ability to earn a living. No reason has been advanced for thinking that this does not apply to the appellant in the present case, and accordingly, unless there is any other reason for holding otherwise, it appears to me that article 8 is engaged here. Quite apart from this reason, while it may be said to be a little artificial to treat it as a separate reason, I consider that article 8 will, at least frequently, be engaged by an adverse ECRC, because it will involve the release of information about the applicant, which is stored on public records. Even where the information released in the ECRC is already in the public domain (as will be the case with almost all convictions), it seems to me that re publication of the information can often engage article 8: see, in the domestic context, R v Chief Constable of the North Wales Police ex p AB [1999] QB 396, 416 and 429 (per Buxton J in the Divisional Court and Lord Woolf MR in the Court of Appeal, respectively), and, in Strasbourg, Segerstedt Wiberg v Sweden Application No 62332/00, 6 June 2006, para 72, and Cemalettin Canli v Turkey, Application No 22427/04, 18 November 2008, para 33. Where the information, or a substantial part of the information, released in the ECRC is not in the public domain, as will very often be the position in relation to information falling within section 115(6)(a)(ii) and (7), the case for Article 8 engagement, as I see it, is self evidently even stronger see Leander v Sweden (1987) 9 EHRR 433, para 48, and Rotaru v Romania, Application no 28341/95, 8 BHRC 449 4 May 2000, para 43. In the present case, as Lord Hope has explained in para 28, the information contained in the ECRC pursuant to section 115(6)(a)(ii) and (7), in so far as it related to the appellant (as opposed to her son), was not publicly available and was not even based on events which had taken place in public. Accordingly, for this reason as well, it appears to me that, subject to any other argument raised to the contrary, article 8 is engaged in this case. Counsel for the Commissioner of Police argued that, despite this reasoning, article 8 was not engaged, because, under section 115(1)(a), an ECRC is issued only on the application of the applicant. The argument amounts to this, that a person cannot complain that disclosure of information about her infringes her article 8 rights where she has consented to the disclosure, and a fortiori where she has applied for the disclosure, as happened in this case, pursuant to section 115(1). I have no hesitation in rejecting this argument. Where the legislature imposes on a commonplace action or relationship, such as a job application or selection process, a statutory fetter, whose terms would normally engage a persons Convention right, it cannot avoid the engagement of the right by including in the fetters procedural provisions a term that the person must agree to those terms. Apart from this proposition being right in principle, it seems to me that, if it were otherwise, there would be an easy procedural device which the legislature could invoke in many cases to by pass Convention rights. I turn, then, to the second issue, namely, given that applicants article 8 rights are engaged in this case, do the provisions of section 115(6)(a)(ii) and (7) infringe those rights? This question raises a problem which the courts have not infrequently had to face since the Human Rights Act 1998 came into force. In order to protect the members of a particular group of people, Parliament has enacted legislation, the effect of which is to encroach on the Convention rights of members of another group. When, as in this case, a member of the latter group, who is adversely affected by the legislation, complains that her Convention rights have been infringed, the task of the court is to decide whether the legislation concerned has struck an appropriate balance between the interests of the two groups. When deciding whether the balance is appropriate, it is for the court to form its own judgment, but, in doing so, it should accord proper deference to the fact that the legislation represents the view of by the democratically elected legislature as to where the balance should be struck. In addition, the court is, of course, bound to try, if possible, to construe the legislation in such a way as to achieve compatibility with the Convention: a declaration of incompatibility is very much of a last resort. Part V of the 1997 Act has the unexceptionable aim of protecting vulnerable people (for present purposes children, but also, in certain circumstances, vulnerable adults), from being harmed by those working with them. It does so by requiring relevant information available to the police, about an applicant for a post involving responsibility for such vulnerable people, to be vouchsafed in an ECRC to the prospective employer. It is then for that employer to decide whether the information is relevant, and, if so, whether it justifies refusing to employ the applicant. As already mentioned, however, it seems to me realistic to assume that, in the majority of cases, it is likely that an adverse ECRC, i.e. 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. Further, the vouchsafing of the information in an adverse ECRC will of itself normally (and where, as here, it is pursuant to section 115(6)(a)(ii), almost inevitably) impact on the applicants private life. Given that, in relation to children related posts, the section is limited to those seeking employment involving regular. responsibility for young people, I am prepared to proceed on the basis that there is nothing objectionable in the requirement that an ECRC must contain the information referred to in section 115(6)(a)(i), as expanded by the definition of relevant matter in section 113(5), even though it may on occasions be rather harsh on the applicant concerned. As Lord Woolf MR said in R(X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65, para 20, Parliament must be entitled to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so . Whether as a result of a conviction or a caution (which involves the person concerned having admitted committing the offence in question), there can be little doubt that the information in question will be accurate, and will have been sufficiently grave as to amount to a crime. However, section 115(6)(a)(ii), as expanded by section 115(7)(a), requires the inclusion of a different category of material, which raises very different considerations. First, it may frequently extend to allegations of matters which are disputed by the applicant, or even to mere suspicions or hints of matters which are disputed by the applicant. Secondly, the threshold for inclusion in the ECRC is subjective and very low: information must be included in an ECRC if, in the opinion of the chief officer, it might be relevant. So, information would often properly fall within section 115(7)(a) if it was not in fact relevant, or was only very peripherally relevant, to the applicants suitability for the post in question. It could be information which would unfairly blacken her name, unjustly prejudice her prospects of obtaining the post or any other post for which an ECRC was required (e.g. a spent conviction for dishonesty), or simply embarrass her. In my view, if section 115(7)(a) was the sole criterion for the inclusion of information under section 115(6)(a)(ii), it would be impossible to justify. Although its general purpose, namely protection of vulnerable people from potential harm from those with posts involving responsibility for them, is unexceptionable, there would simply be insufficient, indeed effectively no real, countervailing protection for the article 8 rights of applicants for such posts. Although not on all fours with the facts in R (Wright) and others v Secretary of State for Health [2009] 2 WLR 267, I consider that the thrust of the reasoning in that case supports such a conclusion. There would be too many cases where the inclusion in an ECRC of material falling within section 115(7)(a) would represent an unwarranted invasion of an applicants article 8 rights for the statutory provisions to survive an incompatibility assault. However, the test for inclusion of material under section 115(6)(a)(ii) is not limited to paragraph (a) of section 115(7). Information cannot be included in an ECRC under section 115(6(a)(ii) unless it also satisfies paragraph (b). Section 115(7) sets out two requirements which are separate in principle, although they may well frequently involve overlapping factors in practice. The way section 115(7) is worded makes it quite clear that information can only be included in an ECRC under section 115(6)(a)(ii) if the chief officer considers both that (a) it might be relevant for the purposes of section 115(2), and that (b) it ought to be included in the certificate. Both requirements must be satisfied, and therefore both requirements must be separately considered by the chief officer. While paragraph (a) of section 115(7) sets a low hurdle for the inclusion of material under section 115(6)(a)(ii), indeed a hurdle which, if it were the sole hurdle, would be too low to satisfy the article 8 rights of applicants, paragraph (b) provides for the requisite balancing exercise that justifies the conclusion that there is no article 8 infringement. In other words, the legislation, through the medium of section 115(7)(b), rightly acknowledges that the relevant public authority, namely the chief officer, must balance the need to protect those vulnerable people whom an ECRC is designed to assist with the article 8 rights of those in respect of whom an ECRC is issued. Having decided that information might be relevant under section 115(7)(a), the chief officer then has to decide under section 115(7)(b) whether it ought to be included, and, in making that decision, there will often be a number of different, sometimes competing, factors to weigh up. Examples of factors which could often be relevant are the gravity of the material involved, the reliability of the information on which it is based, whether the applicant has had a chance to rebut the information, the relevance of the material to the particular job application, the period that has elapsed since the relevant events occurred, and the impact on the applicant of including the material in the ECRC, both in terms of her prospects of obtaining the post in question and more generally. In many cases, other factors may also come into play, and in other cases, it may be unnecessary or inappropriate to consider one or more of the factors I have mentioned. Thus, the material may be so obviously reliable, relevant and grave as to be disclosable however detrimental the consequential effect on the applicant. In a nutshell, as Lord Hope has said, the issue is essentially one of proportionality. In some, indeed possibly many, cases where the chief officer is minded to include material in an ECRC on the basis that he inclines to the view that it satisfies section 115(7)(b), he would, in my view, be obliged to contact the applicant to seek her views, and take what she says into account, before reaching a final conclusion. Otherwise, in such cases, the applicants article 8 rights will not have been properly protected. Again, it is impossible to be prescriptive as to when that would be required. However, I would have thought that, where the chief officer is not satisfied that the applicant has had a fair opportunity to answer any allegation involved in the material concerned, where he is doubtful as to its potential relevance to the post for which the applicant has applied, or where the information is historical or vague, it would often, indeed perhaps normally, be wrong to include it in an ECRC without first giving the applicant an opportunity to say why it should not be included. This conclusion is at odds with what was said by Lord Woolf MR in R(X) v Chief Constable of West Midlands Police [2005] 1 WLR 65, para 41. He said that absent any untoward circumstance ., it is difficult to see that there can be any reason why the information that might be relevant ought not to be included in the certificate (although it is only fair to add that he did, correctly, refer to the issue as being one of proportionality). In my view, that approach is wrong, even if one ignores the fact that article 8 is engaged. Section 115(7) contains two tests which have to be satisfied, and there is no reason to think that the second test was intended to be of only marginal relevance and rare application. On the contrary: given the low threshold of the first test and the importance of an ECRC to an applicant, one would expect the second test to be important, and this point receives some support from the para 30 of the White Paper which preceded the 1997 Act (see para 5 of Lord Hopes judgment). The point is heavily reinforced, of course, once the impact of article 8 is taken into account. In R (X) v Chief Constable of West Midlands Police [2005] 1 WLR 65, para 67, Lord Woolf MR, disagreeing with the view to the contrary of Wall J at first instance ([2002] EWHC 61 (Admin), [2004] 1 WLR 1518), said that it would be inappropriate to interpret section 115(7)(b) as imposing a duty on a chief officer to contact applicants where he was proposing to include material under section 115(6)(a)(ii) in an ECRC. Lord Woolf thought that this would involve imposing too heavy a burden on chief officers. I disagree. While far from suggesting that the duty would arise in every case, it seems to me that the imposition of such a duty is a necessary ingredient of the process if it is to be fair and proportionate. The widespread concern about the compulsory registration rules for all those having regular contact with children, as proposed by the Government in September 2009, demonstrates that there is a real risk that, unless child protection procedures are proportionate and contain adequate safeguards, they will not merely fall foul of the Convention, but they will redound to the disadvantage of the very group they are designed to shield, and will undermine public confidence in the laudable exercise of protecting the vulnerable. The procedures currently adopted by chief officers have been described by Lord Hope in paras 30 to 34, and they are plainly, and sensibly, based on the observations of Lord Woolf MR in R (X) v Chief Constable of West Midlands Police [2005] 1 WLR 65. It is apparent that, as one would hope, chief officers and their staff take their responsibilities under Part V of the 1997 Act very seriously. However, it is also clear that the current procedures will need to be adapted to accord considerably greater weight to section 115(7)(b) and considerably greater recognition to the article 8 rights of applicants. For these reasons, which are little more than an echo of those more fully expressed by Lord Hope, with whose judgment I agree, I conclude that sections 115(6)(a)(ii) and 115(7) of the 1997 Act can and should be given an effect which is compatible with the article 8 rights of those who make applications under section 115(1). I also consider that, for the reasons given by Lord Hope in para 48, the decision in this particular case cannot be faulted. Accordingly, I too would dismiss this appeal.	The appellant obtained a job as a playground assistant. In connection with her employment, the police were required to provide her with an enhanced criminal records certificate (ECRC). They disclosed to the school that she had been accused of neglecting her child and non cooperation with social services, and her employment was terminated. She claimed that the police disclosure violated her right to respect for her private life under the Human Rights Act (the HRA). The Supreme Court holds that, when determining whether to disclose non criminal related information retained in police records in connection with an application to work with vulnerable persons, the police must give due weight to the applicants right to respect for her private life. However, the facts narrated were true, the allegation was directly relevant to her employment and the school was entitled to be apprised of the information. Therefore, while the consequences for the appellants private life are regrettable, disclosure could not in this case be said to be disproportionate to the public interest in protecting vulnerable people [para [48], [49], [58] and [86]]. The appeal must be dismissed. Article 8 was applicable, as: (i) the dismissal affected Ls ability to interact with others and damaged her reputation [para [24]]; (ii) public information can implicate Article 8 when it is collected/stored by the public authorities [para [26]]; and (iii) the relevant information related to private proceedings [para [28]]. All ECRC disclosure decisions are likely to engage Article 8, as: (i) the information has been collected/stored in police records; and (ii) disclosure of relevant information is likely to diminish the subjects employment prospects. The proportionality of the proposed disclosure must be considered in each case [paras [29], [41] and [70]. The police must apply a two stage analysis, so as to consider whether: (i) the information is reliable and relevant; and (ii) in light of the public interest and the likely impact on the applicant, it is proportionate to provide the information [paras [40] and [79]]. Those who apply for positions that require an ECRC cannot be regarded as consenting to their privacy rights being violated. Consent is predicated on the basis that the right to respect for private life will be respected [para [43]]. Otherwise, legislation could easily circumvent HRA rights by effectively curtailing access to benefits unless people consent to invasions of their rights [para [73]]. The polices historic approach towards balancing the public interest in protecting vulnerable persons and respecting Article 8 rights was flawed, as they applied a general presumption that in cases of conflict the public interest should generally prevail [para [44]]. Article 8 requires that neither consideration be afforded precedence over the other each interest should be given careful consideration in assessing the proportionality of the proposed disclosure [paras [45], [63] and [85]]. Factors to be considered in assessing proportionality include: (i) the gravity of the relevant information; (ii) its reliability; (iii) its relevance; (iv) the existence of an opportunity to make representations; (v) the period that has elapsed since the relevant events; and (vi) the adverse effect of the disclosure [para [81]]. If disclosure may be: (i) irrelevant; (ii) unreliable; or (iii) out of date, the applicant should be given the opportunity to make representations prior to the decision to disclose [paras [46], [63] and [82]]. Lord Scott agreed in the result but differed in reasoning, stating that: (i) a presumption prioritising the public interest did not breach Article 8; and (ii) the consent of the applicant negated any claimed violation [paras [58] and [59]. Judgments
This case is all about the meaning of the word regularly when describing the attendance of a child at school. Under section 444(1) of the Education Act 1996, if a child of compulsory school age fails to attend regularly at the school where he is a registered pupil, his parent is guilty of an offence. There are at least three possible meanings of regularly in that provision: (a) evenly spaced, as in he attends Church regularly every Sunday; (b) sufficiently often, as in he attends Church regularly, almost every week; or (c) in accordance with the rules, as in he attends Church when he is required to do so. When does a pupil fail to attend school regularly? Is it sufficient if she turns up regularly every Wednesday, or if she attends over 90% of the days when she is required to do so, or does she have to attend on every day when she is required to do so, unless she has permission to be absent or some other recognised excuse? This case The respondent is the father of a child whom I shall call Mary, who is now aged nearly eight and three quarters, but was aged nearly seven at the relevant time. Her parents are separated and she lives roughly half the time with each of them. She is a registered pupil at a primary school on the Isle of Wight. On 30 January 2015, her father sent her head teacher a form entitled Request to remove a child from education during term time, with a covering letter seeking permission to take Mary out of school for a holiday from 12 to 21 April 2015. On 9 February, the head teacher replied refusing the request and warning that a fixed penalty notice would be issued if Mary was taken on holiday. Coincidentally, Marys mother had taken her on a holiday which had not been authorised by the school for the week beginning the 9 February (five days, amounting to ten attendances). Neither, as it happens, had she sought the fathers permission to take the holiday (although we do not know whether she was required by law to do so). Marys mother was issued with a penalty notice by the school which she had paid. Despite the head teachers refusal of permission, Marys father took her out of school from 13 to 21 April (for seven school days, amounting to 14 attendances). On 29 April, the head teacher sent a Fixed Penalty Notice Referral Form to the Councils Education Welfare Officer (EWO). The reason given for believing that a penalty notice was appropriate was unauthorised family holiday during term time. The EWO checked that the Councils Code of Conduct had been complied with and authorised the issue of the notice, which was done on 14 May. This required the father to pay 60 by 4 June 2015. He did not do so. Accordingly, that day he was sent a further invoice requiring him to pay 120 by 10 June 2015. He did not do so. On 1 July, he was sent a letter before action, advising him that the EWO was preparing to prosecute him. He responded by email and telephone call to explain the reason for the absence. The EWO replied that the penalty notice had been correctly issued and the matter would now proceed to prosecution. Proceedings were duly brought in the Isle of Wight Magistrates Court, alleging that Mary had failed to attend school regularly between 13 and 21 April and that as her parent he was guilty of an offence under section 444(1) of the Education Act 1996. He pleaded not guilty. The trial took place on 12 October 2015. At the close of the prosecutions case, the magistrates ruled that there was no case to answer. As they explained, the question we have to ask ourselves is whether [M] was a regular attender. Before the holiday with Dad, her attendance was 95%. Afterwards it was 90.3%. The document supplied on refusal of leave stated that satisfactory attendance is 90 95%. The Council appealed by way of case stated. In their case stated, the Magistrates certified the following question for consideration by the High Court: Did we err in law in taking into account attendance outside of the offence dates (13th April to 21st April 2015) as particularised in the summons when determining the percentage attendance of the child? On 13 May 2016, a Divisional Court of the Queens Bench Division answered that question in the negative: the magistrates had not erred in taking into account the childs attendance outside the absent dates in determining the percentage attendance of the child. On 30 June 2016, the Divisional Court certified a slightly different point of law of general public importance, pursuant to section 1 of the Administration of Justice Act 1960: Whether, on an information alleging a failure by a parent over a specified period to secure that his child attends school regularly contrary to section 444(1) of the 1996 Act, the childs attendance outside the specified period is relevant to the question whether the offence has been committed. Thus the magistrates had assumed that they were required to determine the percentage attendance of the child. The question certified by the Divisional Court makes no such assumption. The essential question for this court is the meaning of fails to attend regularly in section 444(1) of the Education Act 1996. The law from 1870 to 1944 We have been given an account of the history of the law leading up to section 444(1) of the 1996 Act which is interesting as well as instructive. During the early 19th century, the Church of England, the Methodist Church and other Churches set up many elementary schools, but attendance was not compulsory and the state had no obligation to provide universal elementary education. The Elementary Education Act 1870 (Vict 33 & 34, c 75) by section 5 required there to be provided in every school district sufficient amount of accommodation in public elementary schools for all the children resident in the district for whose elementary education efficient and suitable provision is not otherwise made. However, the 1870 Act did not insist that attendance be made compulsory everywhere. This was politically controversial. There was concern about the practicality of compelling the attendance of children whose parents moved frequently in search of work and even more concern about the justice of depriving parents of the earnings of their children while imposing the costs of school attendance upon them. Instead, therefore, section 74 of the 1870 Act empowered each school board, with the approval of the Secretary of State, to make bye laws (1) requiring parents of children of specified ages (between five and 12 inclusive) to cause them to attend school, unless there was some reasonable excuse, (2) fixing the times when children were required to attend school, with two exceptions, one of which was for any day exclusively set apart for religious observance by the religious body to which his parent belongs, and (4) imposing penalties for breach. There was a list of reasonable excuses (held to be non exclusive in London County Council v Maher [1929] 2 KB 97): (1) that the child is under efficient instruction in some other manner; (2) that the child has been prevented from attending school by sickness or any unavoidable cause; and (3) that there was no public elementary school within what was thought to be a reasonable walking distance of the childs home, with a maximum of three miles. Only a minority of school boards made such bye laws. However, the climate of opinion soon changed. The Elementary Education Act 1876 (39 & 40 Vict, c 79) prohibited the employment of children under ten, and of children between ten and 13 who had not attained an appropriate standard of education (section 5), and for the first time imposed upon parents a duty to cause their children to receive efficient elementary instruction in reading, writing and arithmetic (section 4). If a parent habitually and without reasonable excuse neglected to do this, the local authority was under a duty to apply to court for an order requiring the childs attendance at a specified school. Thus such a parent might not only be prosecuted for a breach of the bye laws but also have the education of his child taken out of his hands. This was followed up by section 2 of the Elementary Education Act 1880 (43 & 44 Vict, 23), which required all school boards to introduce bye laws to compel attendance, although they could still set the times at which attendance was required. We have been shown a sample of these local byelaws. They made it a criminal offence for a parent to fail to cause his child of school age to attend school, unless there was a reasonable excuse. Many fixed the time when attendance was required at the whole time for which the school selected shall be open for the instruction of children of a similar age. Some fixed the number of days for which older children were required to attend, varying with the seasons, presumably in order to allow them to take time off for seasonal agricultural work. The school leaving age was raised to 14 by the Education Act 1918 (8 & 9 Geo 5, c 39). The Education Act 1921 consolidated the earlier legislation, with its three basic features: the parental duty to cause their children to be efficiently educated in reading, writing and arithmetic; the duty of the local education authority (as school boards had become) to apply for a school attendance order where a parent habitually and without reasonable excuse neglected to do this; and the duty to make bye laws requiring the parents to cause their children to attend school at the times required by the bye laws unless there was a reasonable excuse. The 1921 Act was passed in the knowledge of the case law under the earlier legislation. In Ex p the School Board of London, In re Murphy (1877) LR 2 QBD 397, at 400, Cockburn CJ had said that an occasional omission might suffice to constitute the offence under the bye laws, contrasting it with the graver sanction of a school attendance order which might result from an habitual failure. In other cases, convictions on informations alleging a single days absence had been upheld, the argument being about whether there was a reasonable excuse: examples are Hares v Curtin [1913] 2 KB 328; and Bunt v Kent [1914] 1 KB 207. And in Marshall v Graham [1907] 2 KB 112, parents were prosecuted for failing to send their children to school on Ascension Day; the argument was about whether Ascension Day was a day exclusively set aside for religious observance by the Church of England. No one suggested that the offence could not be committed by a single days absence if the childs attendance were otherwise satisfactory. The principle that the parent had to cause the child to attend school at all times when required to do so by the bye laws was affirmed in Osborne v Martin (1927) 91 JP 197, where the Divisional Court held that a parent who withdrew his child from school every week for piano lessons should have been convicted. Lord Hewart CJ observed, at p 197: It was never intended that a child attending the school might be withdrawn for this or that hour to attend a lesson thought by the parent to be more useful or possibly in the long run more remunerative. The time table and discipline of a school could be reduced to chaos if that were permissible. Salter J pointed out, at p 198, that parents were not obliged to take advantage of the free education provided by the state, but if they did, they had to take it as a whole. The law since 1944 The modern law of school attendance dates back to the Education Act 1944, generally known as Rab Butlers Act. This was the Act which provided, not only for compulsory elementary, or primary, education, but also for compulsory secondary education of a sort thought suitable for the particular child. The general shape of the school attendance regime remained the same, but there were some changes. First, the parents duty was no longer limited to causing the child be efficiently educated in the three rs. Instead, the duty was to cause him to receive efficient full time education suitable to his age, ability and aptitude, either by regular attendance at school or otherwise (section 36). Second, if a parent failed to satisfy the local education authority of this, the authority could issue a school attendance order requiring him to register the child at a particular school; failure to comply was an offence (section 37). Third, the duty of LEAs to make byelaws was replaced by a statutory offence: if a child of compulsory school age who is a registered pupil at a school fails to attend regularly thereat, the parent was guilty of an offence (section 39(1)). The child was not to be deemed to have failed to attend regularly: if he was absent with leave, or when prevented by sickness or any unavoidable cause, or on any day exclusively set aside for religious observance, or if the school was not within walking distance and no suitable transport arrangements had been made (section 39(2)). These were all derived from the earlier legislation. Thus the concept of reasonable excuse was replaced by a closed list of circumstances in which absence was permitted: see Spiers v Warrington Corpn [1954] 1 QB 61, holding that Parliament had decided to depart from London County Council v Maher, above. Unavoidable cause had to be something affecting the child rather than the parents: see Jenkins v Howells [1949] 2 KB 218. But the circumstances now included absence with leave. And the requirement that parents cause their children to attend school was replaced by an offence committed if the child failed to attend school regularly. These provisions were replaced by provisions in materially identical terms in the Education Act 1993. These were then consolidated in the Education Act 1996. Section 7 reproduces the parents duty in section 36 of the 1944 Act, with the addition that the education has also to be suitable to any special educational needs he may have. Sections 437 to 443 deal with school attendance orders, which may be made where a parent, having been notified, fails to satisfy the local authority that the child is receiving suitable education and the authority are of the opinion that it is expedient that the child attend school (section 437(3)). The school attendance requirement is now contained in section 444, which (as amended) now provides: (1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence. (1A) If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails to cause him to do so, he is guilty of an offence. (1B) It is a defence for a person charged with an offence under subsection (1A) to prove that he had a reasonable justification for his failure to cause the child to attend regularly at the school. (2) Subsections (2A) to (6) below apply in proceedings for an offence under this section in respect of a child who is not a boarder at the school at which he is a registered pupil. (2A) The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school at any time if the parent proves that at that time the child was prevented from attending by reason of sickness or any unavoidable cause. (3) The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school (a) with leave, or [repealed] (b) (c) on any day exclusively set apart for religious observance by the religious body to which his parent belongs. [Subsections (3A) to (5) deal with the circumstances in which a child is not to be taken to have failed to attend regularly because of a failure to make the required travel arrangements for him.] (6) If it is proved that the child has no fixed abode subsections (3B), (3D) and (4) shall not apply, but it is a defence for the parent to prove (a) that he is engaged in a trade or business of such a nature as to require him to travel from place to place, (b) that the child has attended at a school as a registered pupil as regularly as the nature of that trade or business permits, and (c) if the child has attained the age of six, that he has made at least 200 attendances during the period of 12 months ending with the date on which the proceedings were instituted. (7) In proceedings for an offence under this section in respect of a child who is a boarder at the school at which he is a registered pupil, the child shall be taken to have failed to attend regularly at the school if he is absent from it without leave during any part of the school term unless the parent proves that at that time the child was prevented from being present by reason of sickness or any unavoidable cause. (7A) Where (a) a child of compulsory school age has been excluded for a fixed period on disciplinary grounds from a school in England which is a maintained school, (i) (ii) a pupil referral unit, (iii) an Academy school, (iiia) an alternative provision Academy, (iv) a city technology college, or (v) arts, a city college for the technology of the (b) he remains for the time being a registered pupil at the school, the appropriate authority make arrangements for (c) the provision of full time education for him at the school during the period of exclusion, and (d) notice in writing of the arrangements has been given to the childs parent, the exclusion does not affect the application of subsections (1) to (7) to the childs attendance at the school on any day to which the arrangements relate. (7B) In subsection (7A)(c) the appropriate authority means in relation to a maintained school, the governing (a) body of the school, in relation to a pupil referral unit, the local (b) authority, and (c) (7A)(a)(iii) to (v), the proprietor of the school. in relation to any school mentioned in subsection (8) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale. (8A) A person guilty of an offence under subsection (1A) is liable on summary conviction to a fine not exceeding level 4 on the standard (a) scale, or (b) months, or both. to imprisonment for a term not exceeding three (8B) If, on the trial of an offence under subsection (1A), the court finds the defendant not guilty of that offence but is satisfied that he is guilty of an offence under subsection (1), the court may find him guilty of that offence. In this section leave, in relation to a school, means (9) leave granted by any person authorised to do so by the governing body or proprietor of the school. It will be seen that this now distinguishes between the less serious offence in section 444(1), where the local authority do not have to prove that the parent was at fault, and the more serious (but still summary) offence in section 444(1A), where the parent knows that his child is failing to attend regularly and has no reasonable justification for his own failure to cause the child to do so. It will also be seen that, as before, the circumstances in which a childs absence is not to be treated as a failure to attend regularly are limited to sickness or other unavoidable cause, where the burden lies on the parent (section 444(2A); when he has leave or the day is set aside for religious observance; and when there is a failure to make appropriate travel arrangements. Unavoidable cause has been strictly construed: it did not cover the decision of a 15 year old child to leave home to live with her boyfriend (in Bath and North East Somerset District Council v Warman [1999] ELR 81) or where a 15 year old girl did not go to school because she was bullied there and her mother kept her away (in R (R) v Leeds Magistrates Court [2005] ELR 589). The penalty notice regime, as an alternative to immediate prosecution, is contained in sections 444A and 444B, introduced by section 23 of the Anti social Behaviour Act 2003. The details need not concern us, but the broad shape is that an authorised officer may issue such a notice where he has reason to believe that a person has committed an offence under section 444. The notice offers that person the opportunity of escaping liability to conviction for the offence by paying the prescribed penalty. If he does so within the prescribed time he cannot be prosecuted for the offence. The current penalty prescribed by the Education (Penalty Notices) (England) Regulations 2007 (SI 2007/1867) (as amended by SI 2012/1046 and SI 2013/757) is 60 if paid within 21 days or 120 if paid within seven days after that. If the person does not pay, he can of course be prosecuted for the original offence, as happened here. The Regulations also require each local authority to publish a Code of Conduct for issuing penalty notices, after consultation with governing bodies, head teachers and the police. Guidance from the Secretary of State states that this should set out the criteria that will be used to trigger the use of a penalty notice. Among the examples given where this might be done was one off instances of irregular attendance, such as holidays taken during term time without the schools permission. Regulation 7(1A) of the Education (Pupil Registration) (England) Regulations (SI 2006/1751) (as amended by SI 2013/756) provides that leave of absence for any purpose may only be given where there are exceptional circumstances. The Isle of Wights Code of Conduct stated, among other things, that It is for Headteachers to determine whether or not such a request is exceptional; and to state the number of days granted. Each request can only be judged on a case by case basis but it is usual that Headteachers will be sparing in their use of this discretion. Only if they feel obliged to categorise as unauthorised any holiday absence should a warning letter be issued and the penalty notice procedure invoked. Regularly There is no doubt that, before the 1944 Act, a parent was liable to conviction if his child failed to attend for a single day or half day when required to do so. Most of the case law, both before and after that Act, was concerned with the scope of the statutory exceptions or excuses. But the introduction, in 1944, of the phrase fails to attend regularly raised the possibility that this was no longer the law. The question arose, but was not fully explored, in London Borough of Bromley v C [2006] EWHC 1110 (Admin), [2006] ELR 358. A mother was prosecuted for failing to secure the regular attendance of her three daughters at their school between specified dates. The magistrates appear not to have decided exactly how many attendances, out of the possible 114 (that is, 57 days) between those dates, had been missed. They found that there were good and cogent reasons for some of the absences; the Divisional Court generously regarded this as the magistrates way of saying that there had been an unavoidable cause for each of them. That left the 18 attendances or nine days during which each girl had been absent from school on holidays for which the school had not given leave. The magistrates found that the mother ought to have exercised more care regarding absences for holidays during school term but the absences were, in our view, justified. Overall, they found that the mother had not failed to secure regular attendance. On the local authoritys appeal by way of case stated, one of the questions asked was does the taking of an unauthorised holiday of itself amount to failing to secure regular school attendance?. In an extempore judgment, Sullivan LJ held that this was the wrong question: The real question is whether any reasonable bench of magistrates could have concluded that there was regular attendance by these three children if 18 out of a possible 114 attendances had been missed because of two unauthorised holidays. There could be no suggestion that the holidays were with leave or that they fell within the description of an unavoidable cause (para 15) He went on to say this: I would readily accept the submission that it does not automatically follow that there will not have been regular attendance merely because there has been an unauthorised holiday. The question will be very much one of fact and degree in each case, but in the present case the holidays amounted to some 16% of possible attendances. (para 19) The magistrates had to have regard to all the circumstances, including the extent to which the children had attended school. Against the background of their attending for 40 days (out of a possible 57), their absence for nine days on unauthorised holidays could lead to only one conclusion. There had not been regular attendance. He repeated that the question was one of fact and degree for the magistrates but there was only one answer on these facts (para 21). Auld LJ agreed that on the facts found, the magistrates did exceed the generous ambit of judgment available to them in determining whether there was regular school attendance (para 28). No authorities were cited to the court in the Bromley case and it would appear that no argument was addressed to the court on the meaning of regularly. It seems to have been assumed that regularly meant sufficiently frequently. Some support from that view might have been gleaned from the case of Crump v Gilmore (1969) 68 LGR 56, where the magistrates had acquitted the parents because they had not known that their daughter was bunking off secondary school and took immediate steps to ensure her 100% attendance when they did know. The Divisional Court sent the case back with a direction to convict, because this is an absolute offence. But in the course of doing so, Lord Parker of Waddington CJ said, at p 59: The real and only question here is whether the 12 occasions out of a possible 114 when this little [sic] girl was not attending school and had no reasonable excuse for not attending, amount to a failure to attend regularly. But he went on to hold that they did and that the magistrates must have been of the same opinion. The assumption may have been that regularly meant sufficiently frequently but the matter was not addressed. Bromley was cited to the Divisional Court in this case. In another extempore judgment, the Court adopted the same approach, which it considered correct. The question of regular attendance was one of fact and degree and the magistrates were entitled to take the attendance record over the whole school year into account. The local authority could not pre empt that enquiry by limiting the period charged to the period of absence on holiday. Taken to its logical conclusion, this would mean that the offence could be committed by a single days absence (para 16). The question whether attendance had been regular could not be ascertained solely by reference to the period of absence. It was necessary to have regard to the period of absence in the wider context of attendance (para 20). Hence the answer to the question posed was yes. The assumption that regularly means sufficiently frequently seems also to have been made in this case, because counsel for the father argued that, without a definition, regular was far too vague to be the basis of a criminal offence (see para 21); but the Divisional Court found it unnecessary to reach a view. The answer to that problem could, of course, have been that regularly does not mean what everyone seems to have assumed that it means. I turn, therefore, to the three possible meanings of regularly mentioned in para 1 above and ask which was the meaning intended by Parliament when enacting section 444(1). (a) At regular intervals We speak of a person going regularly to church or to Sunday school when he goes every Sunday or almost every Sunday. But this cannot have been the intended meaning in the case of school attendance. It would enable attendance every Monday to count as regular even though attendance every day of the week is required. It would enable a childs attendance to be regular even if he was regularly late, yet in Hinchley v Rankin [1961] 1 WLR 421, the Divisional Court held that a father had been rightly convicted when his son had been recorded as absent because he had not been at school when the register was closed, for it must be regular attendance for the period prescribed by the person upon whom the duty to provide the education is laid (at p 425). (b) Sufficiently frequently This might well be the meaning assumed by many people at first reading, as it was by the Divisional Court in Bromley and in this case. This is what we mean when we talk about a person being a regular at the pub or a regular at church services. But there are many reasons to think that this was not what Parliament intended, either in 1944 or in 1996. First, attendance at the pub or at church is not compulsory. There are no rules about when a customer should attend the pub. Such rules as there are about church attendance are not rules of law. School attendance is compulsory and there are rules about when it is required. Second, the purpose of the Education Act 1944 was to increase the scope and character of compulsory state education. Parents were required to cause their children to receive efficient full time education suitable to their age, ability and aptitude, no longer just efficient education in the three rs. The compulsory school age was to be raised and a wider range of educational opportunities provided free of charge. It is implausible to suggest that Parliament intended to relax the previous obligations placed on parents to secure their childrens attendance to take advantage of those opportunities. Third, other features of the 1944 Act indicated an intention to tighten rather than to relax the parental liability. The open ended defence of reasonable excuse was replaced in such a way as to make it clear that only the statutory excuses were acceptable. Allowing parents the flexibility inherent in this interpretation would mean that their excuses did not even have to be reasonable. Taking a child to football or failing to get up in time to get the child to school would do, provided that it did not happen too often. Fourth, section 444(3), in providing that a child is not to be taken to have failed to attend regularly by reason of his absence on any day exclusively set apart for religious observance suggests that otherwise his absence on a single day would be a failure to attend regularly. Fifth, in section 444(6), dealing with children of no fixed abode, the parent has a defence if he can show that he has an itinerant trade or business, that his child had attended as regularly as the nature of that trade or business permits, and in any event for the minimum number of attendances prescribed during the previous school year. Regularly in this provision does not suggest a matter of fact and degree; rather that the child has attended as often as he can. The provision also illustrates that when Parliament wishes to indicate what, in its view, is sufficiently frequent, it can and does do so. Sixth, by section 444(7) of the 1996 Act, a boarder is taken to have failed to attend regularly at the school if he is absent from it without leave during any part of the school term, unless the parent proves that he was prevented by sickness or any unavoidable cause. If 100% attendance is expected of boarders, why should it not also be expected of day pupils? Both the school and the parents are in loco parentis. Seventh, although subsequent amendments should not be used to assist in interpreting what was already there, it is not without interest that section 444(7A), dealing with excluded children for whom alternative provision has been made, proceeds on the basis that absences are to be counted by the day. Eighth, and above all, this interpretation is far too uncertain to found a criminal offence. Over what period is the sufficiency of attendance to be judged? How much is sufficient? Does one take into account how good or bad the reasons for any previous absences were? If attendance over the whole school year, or over the period before the information is laid, is taken into account, how can the parent know whether taking the child out of school on any particular day will be an offence? How is a parent like Mrs C, contemplating taking her children on holiday, to know whether the local authority and the magistrates will consider that it was (a) acceptable because there were no other absences, (b) acceptable because the other absences were for good cause, or (c) unacceptable because of the length of the holiday, or (d) unacceptable because, given the number of days the child had already missed for good reasons, he should not have been taken on holiday too? (No doubt other permutations are available.) The point is that, on this interpretation, the parent will not know on any given day whether taking his child out of school is a criminal offence. Ninth, and this is the reason why the local authority have appealed and the Secretary of State has intervened in support, there are very good policy reasons why this interpretation simply will not do. It is not just that there is a clear statistical link between school attendance and educational achievement. It is more the disruptive effect of unauthorised absences. These disrupt the education of the individual child. Work missed has to be made up, requiring extra work by the teacher who has already covered and marked this subject matter with the other pupils. Having to make up for one pupils absence may also disrupt the work of other pupils. Group learning will be diminished by the absence of individual members of the group. Most of all, if one pupil can be taken out whenever it suits the parent, then so can others. Different pupils may be taken out at different times, thus increasing the disruptive effect exponentially. Finally, given the strictness of the previous law, Parliament is unlikely to have found it acceptable that parents could take their children out of school in blatant disregard of the school rules, either without having asked for permission at all or, having asked for it, been refused. This is not an approach to rule keeping which any educational system can be expected to find acceptable. It is a slap in the face to those obedient parents who do keep the rules, whatever the cost or inconvenience to themselves. In accordance with the rules All the reasons why sufficiently frequently cannot be right also point towards this being the correct interpretation. The Divisional Court was clearly worried about the consequence that a single missed attendance without leave or unavoidable cause could lead to criminal liability. However, there are several answers to this concern. First, there are many examples where a very minor or trivial breach of the law can lead to criminal liability. It is an offence to steal a milk bottle, to drive at 31 miles per hour where the limit is 30, or to fail to declare imported goods which are just over the permitted limit. The answer in such cases is a sensible prosecution policy. In some cases, of which this is one, this can involve the use of fixed penalty notices, which recognise that a person should not have behaved in this way but spare him a criminal conviction. If such cases are prosecuted, the court can deal with them by an absolute or conditional discharge if appropriate. Second, this had not been thought an objection under the pre 1944 law. It was recognised that this sometimes produced harsh results, but the aim was to bring home to parents how important it was that they ensured that their children went to school. The offence in section 444(1) is an offence of strict liability, whereas the offence in section 444(1A) is not. Third, while the general rule is that statutes imposing criminal liability should be construed strictly, so as not to impose it in cases of doubt, it is an even more important rule that statutes imposing criminal liability should do so in a way which enables everyone to know where they stand, to know what is and is not an offence. The alternative interpretations discussed above do not do this, whereas this interpretation does. This interpretation is also consistent with the provision in section 444(3)(a) and (9) that a child is not to be taken to have failed to attend regularly if he is absent with the leave of a person authorised by the governing body or proprietor of the school to give it. Unlike sickness or unavoidable cause, leave is not a defence. It is part of the definition of the offence. Your child is required to attend in accordance with the normal rules laid down by the school authorities for attendance but the school can make an exception in your case. As noted above, it is also consistent with section 444(3)(b). There is another pointer in the link between the parents obligation in section 7, to cause the child to receive full time education, and the offence committed under section 444(1), if the child fails to attend school regularly. Full time indicates for the whole of the time when education is being offered to children like the child in question. Conclusion I conclude, therefore, that in section 444(1) of the Education Act 1996, regularly means in accordance with the rules prescribed by the school. I would therefore make a declaration to that effect. To the extent that earlier cases, in particular Crump v Gilmore and London Borough of Bromley v C, adopted a different interpretation, they should not be followed. The question remains what should be done with this case. The father asks us to content ourselves with making such a declaration and the local authority take a neutral position. They and the Secretary of State are interested in the point of principle and not in the outcome of this particular prosecution. Nevertheless, the father did have a case to answer. On the agreed facts, the penalty notice was properly issued and, having failed to pay it, he should have been convicted of the offence with which he was charged unless he can establish one of the statutory exceptions. The case will be returned to the magistrates with a direction to proceed as if his submission of no case to answer had been rejected. I am particularly mindful of the fact that the mother did exactly the same thing, was issued with a penalty notice and paid it. She might well feel a sense of injustice if, it now having been held that the penalty notice to the father was properly issued, the case did not proceed.	Section 444(1) of the Education Act 1996 provides that if a child of compulsory school age fails to attend regularly at the school where he is a registered pupil, his parent is guilty of an offence. The issue in this appeal is the meaning of regularly. Regularly has at least three possible meanings in this provision: it could mean (a) evenly spaced; (b) sufficiently often; or (c) in accordance with the rules. Mr Platt sought permission from his daughters head teacher to remove her from school during term time for a holiday. The head teacher refused the request but Mr Platt took his daughter on holiday as planned, causing her to miss seven school days in April 2015. Mr Platt was issued with a penalty notice on her return. He did not pay the fixed penalty and was prosecuted in the Isle of Wight Magistrates Court. The magistrates ruled that Mr Platt had no case to answer. They held that his daughter had attended school regularly because, even after the holiday, she had attended 90.3% of the time up to that point in the academic year. The Council appealed on the issue of whether the magistrates had been entitled to take into account attendance at school outside the period of the absence. The Divisional Court held that the magistrates had not erred in doing so, but certified a point of law of general public importance on the meaning of the words fails to attend regularly in section 444(1). The Supreme Court unanimously allows the Councils appeal, declaring that the word regularly means in accordance with the rules prescribed by the school. Lady Hale, with whom the other Justices agree, gives the only judgment. The history of the law preceding section 444(1) of the Education Act 1996 shows that before 1944 it was well established that the offence of failing to cause a child to attend school without a reasonable excuse could be committed by a single days absence [8 14]. The Education Act 1944 replaced the concept of reasonable excuse with a closed list of circumstances in which absence was permitted, and provided that the offence would be committed if the child failed to attend school regularly. This provision was reproduced in the Education Act 1993 and is now found in s 444(1) of the 1996 Act [15 19]. The penalty notice regime is an alternative to immediate prosecution and offers a parent the opportunity of escaping liability to conviction by paying the penalty [21]. The question for the Supreme Court is which meaning of the word regularly was intended by Parliament when enacting s 444(1). It plainly is not at regular intervals as this would mean attendance at school once a week is regular even though attendance every day is required by the rules. Sufficiently frequently was the meaning assumed in some earlier cases, and in the lower courts in this case, but there are many reasons to think that this was not what Parliament intended in 1944 or in 1996: School attendance is compulsory and there are rules about when it is required [32]. The purpose of the 1944 act was to increase the scope and character of compulsory state education and it is implausible to suggest that it was intended to relax the previous obligation on parents to secure their childrens attendance [33]. The defences were tightened in 1944 and the flexibility inherent in a reasonable excuse was removed [34]. The exception for absence on a single day for religious observance in s 444(3) would not be needed unless it would otherwise amount to a failure to attend regularly [35]. Provisions for parents with an itinerant trade or business did not suggest that regularly was a matter of fact and degree [36]. A boarder fails to attend regularly under s 444(7) if he is absent without leave during any part of the school term, and there is no reason why 100% attendance should be required of boarders but not of day pupils [37]. This interpretation is far too uncertain to found a criminal offence. A parent would not know on any given day whether removing the child from school is a criminal offence [39]. There are sound policy reasons for rejecting this interpretation because of the disruptive impact of the absence for the education of the individual child and of the other pupils [40]. It permits an approach to rule keeping which no educational system can be expected to find acceptable [41]. These reasons also point towards the correct interpretation of regularly being in accordance with the rules. A sensible prosecution policy will allow minor or trivial breaches to be dealt with appropriately [43]. This was not thought to be a problem under the pre 1944 law [44]. The rule that statutes imposing criminal liability must enable everyone to know what is and is not an offence is important [45]. This interpretation is consistent with the provisions excepting from the scope of the offence a child absent with the leave of the school [46], and with the obligation on parents to cause their child to receive full time education under section 7 of the 1996 act [47]. Accordingly, the penalty notice was properly issued to Mr Platt and, having not paid the penalty fine, he should have been convicted of the offence unless he can establish one of the statutory exceptions. The case is therefore returned to the magistrates with a direction to proceed as if his submission of no case to answer had been rejected [49].
When a local planning authority against the advice of its own professional advisers grants permission for a controversial development, what legal duty, if any, does it have to state the reasons for its decision, and in how much detail? Is such a duty to be found in statutory sources, European or domestic, or in the common law? And what are the legal consequences of a breach of the duty? Those issues are presented by this appeal in a particularly striking form. The context is a proposal for major development to the west of Dover, on two sites referred to as Western Heights and Farthingloe. The latter is within the Kent Downs Area of Outstanding Natural Beauty. Western Heights is a prominent hilltop overlooking Dover, dominated by a series of fortifications dating from the Napoleonic wars, including the so called Drop Redoubt. The site is a scheduled monument. Farthingloe is in a long valley between the A20 and the B2001 to the west of Western Heights, and comprises 155 hectares of agricultural and scrubland. The application The application for planning permission was submitted by the second appellant (CGI) to the local planning authority, the Dover District Council (the Council), on 13 May 2012. The principal elements were: 521 residential units and a 90 apartment retirement village at Farthingloe; 31 residential units and a hotel and conference centre at Western Heights; and conversion of the Drop Redoubt into a visitor centre and museum. A payment of 5m for the improvements to heritage assets, to be funded from the profits of the residential development, was to be secured by a planning agreement. The development was categorised as EIA development for the purpose of the relevant regulations (Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011/1824) regulation 2(1)), and was accordingly accompanied by an environmental statement. The proposal attracted strong support and strong opposition. Some saw it as offering a much needed boost to the local economy. Thus, for example, the South East Local Enterprise Partnership commented: The proposals represent a major opportunity for both Dover and the wider tourism and visitor economy of East Kent at a time of major challenges facing the local economy. In the absence of likely public sector funding to act as a catalyst for change it is essential that the private sector is encouraged to move forward with confidence and business can aid recovery. Approval of the application would be timely in demonstrating that Dover is open for business and investment. Refusal would send out all the wrong messages to investors. Others (including the present respondents, CPRE Kent) saw it as a serious and unjustified breach of national policy. Thus the AONB Executive said: The Farthingloe valley in the Kent Downs Area of Outstanding Natural Beauty is an enormous asset to Dover. This dry chalk valley provides a memorable approach to the town, with glimpses of Dover castle, as well as a green setting for both the town and the Western Heights available for all to enjoy. The proposed development of over 500 houses in a particularly prominent area of the valley would irreparably damage this nationally protected landscape. It would cause significant harm to the special character and the natural beauty of the AONB. No meaningful mitigation would be possible. The scheme is wholly contrary to national and local policy and is a major challenge to the Governments purposes for AONB designation. We have found no other housing development nationally on a similar scale which has been approved in an AONB The planning officers report These views along with many others on both sides were faithfully summarised in the officers report to the Planning Committee, circulated on 7 June 2013. The report, under the name of the Head of Regeneration and Development, is a remarkable document. It runs to some 135 pages with appendices. It contains a comprehensive exposition of the various elements of the proposed development, the responses to consultation public and private, and the applicable national and local policies, followed by a detailed appraisal of the relevant issues, and concluding with a recommendation for the grant of permission but in amended form. The principal change recommended by the officers was the exclusion from the development at Farthingloe of a safeguarded area of some 2ha in the south west (in the more prominent sector known as FL B), where officers consider the landscape harm most acute; and the consequent reduction of the number of houses at Farthingloe from 521 to 365. The Councils economic advisers, Smiths Gore, had advised that the reduction would not jeopardise the viability of the scheme or the intended financial contributions (officers report paras 2.216, 2.443, 2.445). One aspect of Smiths Gores advice was to suggest a reduction in the Code for Sustainable Homes (CSH) rating from Code 4 to Code 3, which would not only deliver a viable development but would also achieve a more marketable and higher quality housing scheme this being important to help diversify and improve the Dover housing offer (paras 2.217, 2.443). Among other recommended conditions, it was proposed that the provision of the hotel should be secured by requiring it to be commenced before one of the development phases (para 2.131(iii)). In a section of the report headed NPPF (para 116) review, reference was made to that paragraph of the National Planning Policy Framework (NPPF), which indicates that major development in an AONB should be permitted only in exceptional circumstances and where a public interest can be demonstrated. The officers regarded the level of harm to the AONB as significant, particularly to the south west of sector FL B where built development on the elevated and exposed terrain would seriously compromise the landscape character. They concluded: 2.447 Nevertheless it is your officers opinion that offsetting the landscape harm by the modifications outlined in this report would shift the planning balance in favour of the economic and other national benefits of the application. The local economic issues and specific circumstances of this case are considered to provide a finely balanced exceptional justification for this major AONB development, the benefits of which would be in the public interest. Essential to this conclusion would be seeking all the recommended conditions (changes) and ensuring (by condition / section 106 agreement) the deliverability of all the relevant application benefits. The rationale for the application is as a composite package, and any permission should therefore be framed to ensure the emergence of the proposals in a structured and comprehensive fashion. It was noted that the applicant had not yet been given an opportunity to comment on these proposed changes. If they were supported in principle by the Committee, it was suggested that they might delegate to officers to discuss with the applicant any minor variation of the proposed residential quantum, and the precise boundaries of the safeguarded area, although it was not envisaged that this should lead to any notable change in the recommended approach (para 2.448). On balance their conclusion in this case was that the application would, as a single comprehensive scheme, support rather than work against the overall objectives of sustainable development as defined by the NPPF (para 2.454). In a section headed Conclusion it was stated: the officer position is that the conditions / changes as set out in this report (informed by independent legal and financial viability advice) are well founded and that all are necessary to deliver the right composite package, including the economic benefits, so that an on balance recommendation of approval can reasonably be made. (para 2.457) The report ended with a recommendation for the grant of conditional planning permission (part outline, part full) for the various elements of the proposal, but with a limit of 365 residential units at Farthingloe, and subject to the completion of a planning agreement (under section 106 of the Town and Country Planning Act 1990) to secure the proposed benefits including the hotel and conference centre. The report was shown to the applicants. Their consultants, BNP Paribas, wrote on 11 September, expressing fundamental disagreement with Smiths Gores appraisal of viability. They commented on the proposed reduction to 365 houses: We have re run our appraisals to test the impact of the removal of 156 units, as suggested by Smiths Gore. The result is to turn a positive land value of 5.85m to a negative land value of 3.03m. On the basis of this result, the scheme would not secure funding and could not proceed. For the avoidance of doubt, we do not agree with the planning officers assessment that the benefits provided by the Application scheme could also be provided by the sensitivity analysis mooted by Smiths Gore. Indeed, our view is that such a scheme would not be capable of providing the benefits offered and could not proceed as it would be incapable of providing a competitive return to the landowner and developers, as required by the National Planning Policy Framework. They also disagreed with the suggestion that the proposed changes would make the scheme more marketable. Although the letter was not seen by the members of the committee (other than the chairman), its effect and Smiths Gores response were summarised at the meeting (see below). The Committee meeting The application was considered by the Planning Committee on 13 June 2013. The very full minutes record that the meeting started at 6.00 pm and ended at 9.38 pm, with a short break at 9.00 pm following the main vote for the officers to make amendments to their recommendation. (Also on the agenda was one other minor planning application which was dealt with first.) On the Farthingloe application there were contributions by four members of the public (two for and two against). There was a detailed presentation by the officers of the proposals and the issues, during which reference was made to the issue of viability and the BNP Paribas letter, the effect of which was summarised. The minute continued: The Principal Planner advised the Committee that, having considered the further views of BNP Paribas, Smiths Gore stood by their analysis that a lower density scheme would be viable and would deliver the same monetary benefits as currently on offer. Officers therefore recommended that a lower density scheme should be approved as it was viable, not excessive for the site and would be compliant with the Core Strategy. After the officers presentation, five members were recorded as speaking in favour of the proposal, and one against. Another expressed concern about the security of the proposed payment of 5m. The views of three named supporters were expressed collectively; they saw it as a rare opportunity for regeneration and investment, and a courageous step necessary to give Dovers young people a future; of the proposed amendments they said: , it was felt that the application should not be restricted in the way proposed in the recommendation as this could jeopardise the viability of the scheme, deter other developers and be less effective in delivering the economic benefits. The Committee had to assess whether the advantages outweighed the harm that would be caused to the AONB. When seen from the ground and with effective screening, it was believed that this could be minimised. In these exceptional circumstances it was considered that the advantages did outweigh the harmful impact on the AONB. At the end of the discussion a motion was proposed that the officers recommendation be approved but subject to amendment of the number of houses from 365 to 521 as proposed in the application. The motion was carried (the voting is not recorded). The meeting was adjourned for 25 minutes to enable the officers to re word their recommendation with consequential amendments. A vote was then taken on the amended recommendation, which was approved. On 11 July 2013, in response to requests by (among others) CPRE Kent, the Secretary of State declined to call in the application for his own determination. The section 106 agreement and the grant of permission On 18 December 2014 the application returned to the planning committee with an updated officers report. The introduction to the report made clear that its purpose was, not to revisit the decision to grant permission in the previous year, but to update the committee on the section 106 agreement, and to provide an assessment of planning considerations which have emerged since the resolution to grant planning permission (para 3). The report on the section 106 agreement confirmed that, contrary to the officers recommendation in June 2013, there was no obligation linking the provision of the hotel to the phasing of the residential development: The section 106 is drafted in accordance with the Committee resolution which places no obligation on the applicant to provide the hotel at any point in time and there is no obligation to provide the hotel at any stage during the build out of other development proposed in the application. Rather, the objective of the section 106 is to provide the opportunity for a quality hotel to come forward. (para 35) Although Mr Cameron drew our attention to some aspects of this report, it does not seem to have been relied on in the courts below. Mitting J (para 6) merely noted that the revisions were not material to the issues which arose in the case. The December meeting was not mentioned by the Court of Appeal. I can find nothing in the report or minutes to suggest an intention to revisit the substance of the decision of principle made in June 2013, nor which throws further light on the reasons for that decision. The committee resolved to grant permission subject to the completion of the section 106 agreement. The agreement was executed on 1 April 2015, and planning permission was granted on the same day. The notification of grant is a substantial document, running to more than 50 pages, including a long list of approved documents supporting the application, and detailing 183 conditions. It concludes with a note (for the avoidance of doubt) that the Environmental Statement accompanying the application has been taken into account. But it contains no reference to any obligation to give reasons under the EIA regulations (see below), nor any formal statement of the reasons for the grant. The proceedings The present proceedings for judicial review, on a number of grounds including lack of reasons, were heard by Mitting J at a rolled up hearing in December 2015, and were dismissed by him on 16 December: [2015] EWHC 3808 (Admin). Permission to appeal was granted solely on the issue of reasons. On 16 September 2016 the Court of Appeal (Laws and Simon LJJ) allowed the appeal and quashed the permission: [2016] EWCA Civ 936. Laws LJ noted the controversy at the Bar as to the standard of reasons required (para 18). He pointed to three particular factors as calling for clear reasons in this case: the pressing nature of the AONB policy as expressed in the NPPF para 115 6 (the highest status of protection); the departure from the officers recommendation; and the specific duty imposed by the EIA regulations (paras 21 23). Although he noted the relative thinness of the material available to the committee on the viability issue, he relied principally on the failure of the committee to assess and explain the degree of harm to the AONB, having regard to the strictness of the policy and the strong view of harm taken by the officers (paras 29 30). The only reference to this issue in the minutes spoke of the need to assess whether the advantages outweighed the harm to the AONB, wrongly implying that it was simply a question of striking a balance. Further the reference to minimising the harm by effective screening took no account of the officers view that the change of levels to the east would mean that over time, screening would be largely ineffective. In granting permission to appeal (on 2 March 2017), this court indicated that it would wish to consider generally the sources, nature and extent of a local planning authoritys duty to give reasons for the grant of planning permission. Duties to give reasons statutory sources The Town and Country Planning Act 1990 itself says nothing about the giving of reasons for planning decisions. The 1990 Act requires the decision (inter alia) to be made having regard to the development plan and other material considerations (section 70(2)). The Planning and Compulsory Purchase Act 2004 is more specific in requiring the decision to be made in accordance with the development plan unless material considerations indicate otherwise (section 38(6); see Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] 1 WLR 1865, para 7). But it does not in terms require the decision maker to spell out the material circumstances which justify such a departure. The non statutory National Planning Policy Framework (NPPF) (itself treated as a material consideration for these purposes: ibid paras 10 21) provides comprehensive guidance to local planning authorities on the handling of individual planning applications. Paragraph 14 with footnote 9 notes, as an exception to the general presumption in favour of permission, specific policies by which development is restricted; including those relating to protected sites under the Birds and Habitats Directives, Green Belts, Areas of Outstanding Natural Beauty, and National Parks. In practice such policy designations are likely to be reflected also in the statutory development plan, so that section 38(6) will come into play. The statutory rules relating to the giving of reasons are all to be found in subordinate legislation. It is hard to detect a coherent approach in their development. The main categories are: Secretary of State decisions (including those delegated to inspectors) i) a) b) following an inquiry or hearing; on written representations. ii) Decisions by local planning authorities a) Refusing planning permission or imposing conditions; b) Granting permission; c) Officer decisions under delegated powers. iii) Decisions (at any level) on applications for EIA development. Secretary of State and inspector decisions Local objectors have no right to call for a public inquiry into a planning appeal. Section 79(2) provides that before determining an appeal the Secretary of State shall if either the appellant or the local planning authority so wish give them an opportunity of appearing before a person appointed by the Secretary of State. If an inquiry is held the right of other parties to appear is determined by the inquiries procedure rules (see, in respect of Secretary of State decisions, the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (SI 2000/1624) rule 11). Following an inquiry, the Secretary of State must notify his decision on an application or an appeal and his reasons for it in writing to all persons entitled to appear at the inquiry who did appear, . and any other person who, having appeared at the inquiry, has asked to be notified of the decision (ibid rule 18(1)). Equivalent duties are applied under the separate rules dealing with decisions by inspectors and decisions following hearings. Bridge said of the duty imposed by statute on the Secretary of State: In Save Britains Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153, Lord That they should be required to state their reasons is a salutary safeguard to enable interested parties to know that the decision has been taken on relevant and rational grounds and that any applicable statutory criteria have been observed. It is the analogue in administrative law of the common laws requirement that justice should not only be done, but also be seen to be done. (p 170) There is no corresponding statutory rule applying to decisions following a written representations appeal. However, it is the practice for a fully reasoned decision to be given. It has been accepted (on behalf of the Secretary of State, and by the Administrative Court) that there is an enforceable duty, said to arise either from the principles of procedural fairness or from the legitimate expectation generated by the Secretary of States long established practice (Martin v Secretary of State for Communities and Local Government [2015] EWHC 3435 (Admin) para 51 per Lindblom LJ). Local authority decisions Refusals and conditions It has long been the case that local planning authorities must give reasons for refusing permission or imposing conditions. Historically this appears to have been the corollary of the fact that in those cases there is a statutory right of appeal against the refusal or the conditions. The current order (Town and Country Planning (Development Management Procedure) (England) Order 2015 (SI 2015/595) article 35(1)) provides that the authority in their decision notice must state clearly and precisely their full reasons. Grant of permission Until 2003 there was no statutory duty on local planning authorities to give reasons for the grant of permission as such. There was then a change of thinking, as Sullivan J explained (R (Wall) v Brighton and Hove City Council [2004] EWHC 2582 (Admin), para 52): Over the years the public was first enabled and then encouraged to participate in the decision making process. The fact that, having participated, the public was not entitled to be told what the local planning authoritys reasons were, if planning permission was granted, was increasingly perceived as a justifiable source of grievance, which undermined confidence in the planning system Accordingly, between 2003 and 2013, local planning authorities were required to include in the notice of the decision a summary of their reasons for the grant of permission and a summary of the policies and proposals in the development plan which are relevant to the decision (see Town and Country Planning (General Development Procedure) (England) (Amendment) Order 2003 (SI 2003/2047) article 5; Town and Country Planning (Development Management Procedure) (England) Order 2010 (SI 2010/2184) article 31). This duty was repealed as from 25 June 2013 (Town and Country Planning (Development Management Procedure) (England) (Amendment) Order 2013 (SI 2013/1238) article 7). The Explanatory Memorandum (paras 7.17 20) indicated that this was a response to suggestions that the duty had become burdensome and unnecessary, and having regard to the fact that officer reports typically provide far more detail on the logic and reasoning behind a particular decision than a decision notice, so that the requirement to provide a summary adds little to the transparency or the quality of the decision taking process; and also having regard to the greater level of transparency in the decision taking process, resulting from increased ease of access to information, both on line and through the Freedom of Information Act 2000. Officer decisions Since 2014 there has been a duty on a local authority officer making any decision involving the grant [of] a permission or licence to produce a written record of the decision along with the reasons for the decision, and details of alternative options, if any, considered and rejected (Openness of Local Government Bodies Regulations 2014 (SI 2014/2095) regulation 7(2) (3)). This covers, although it is not limited to, the grant of planning permission. EIA development Special duties arise where an application (as in this case) involves EIA development, at whatever level the decision is taken. EIA development is defined as development listed in Schedule 1 or 2 to the Regulations, in the latter case if the development is likely to have significant effects on the environment by virtue of factors such as its nature, size or location. Decision makers must not grant planning permission unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so (EIA regulations regulation 3(4)). Environmental information is defined as: the environmental statement, including any further information and any other information, any representations made by anybody required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development. (regulation 2(1)) Where an EIA application is determined by a local planning authority, the authority must inform the public of the decision and make available for public inspection a statement, containing the content of the decision and any conditions attached (i) to it; the main reasons and considerations on which the (ii) decision is based including, if relevant, information about the participation of the public; (iii) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development; and information regarding the right to challenge the validity (iv) of the decision and the procedures for doing so. (regulation 24(1)(c)) This regulation is derived from article 9 of the EU Directive on environmental assessment (2011/92/EU) (the EA Directive), which expresses the duty in similar terms. Also relevant by way of background is the Aarhus Convention (Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters) to which this country is a party. The preamble to the Convention recognises the right of all people to live in a healthy environment and their duty both individually and in association with others to protect it for the benefit of present and future generations; and the consequent need for effective public participation, access to information, transparency in decision making and access to justice in environmental matters. Article 6, which is mentioned in the preamble to the EA Directive, is headed Public Participation in Decisions on Specific Activities. In addition to certain listed activities and others which may have a significant effect on the environment, it extends to any activities where public participation is provided for under national procedures for environmental impact assessment (article 6(1), annex I para 20). Article 6.9 provides: Each Party shall ensure that, when the decision has been taken by the public authority, the public is promptly informed of the decision in accordance with the appropriate procedures. Each Party shall make accessible to the public the text of the decision along with the reasons and considerations on which the decision is based. Standard of reasons A broad summary of the relevant authorities governing reasons challenges was given by Lord Brown in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953, para 36: The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision. In the course of his review of the authorities he had referred with approval to the felicitous observation of Sir Thomas Bingham MR in Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P & CR 263, 271 272, identifying the central issue in the case as: whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down to earth reading of his decision letter without excessive legalism or exegetical sophistication. There has been some debate about whether Lord Browns words are applicable to a decision by a local planning authority, rather than the Secretary of State or an inspector. It is true that the case concerned a statutory challenge to the decision of the Secretary of State on a planning appeal. However, the authorities reviewed by Lord Brown were not confined to such cases. They included, for example, the decision of the House of Lords upholding the short reasons given by Westminster City Council explaining the office policies in its development plan (Westminster City Council v Great Portland Estates plc [1985] AC 661, 671 673). Lord Scarman adopted the guidance of earlier cases at first instance, not limited to planning cases (eg In re Poyser and Mills Arbitration [1964] 2 QB 467, 478), that the reasons must be proper, adequate and intelligible and can be briefly stated (p 673E G). Similarly local planning authorities are able to give relatively short reasons for refusals of planning permission without any suggestion that they are inadequate. In the context of the EIA regulations, Mr Reed QC (for CGI) relied on the fact that under Regulation 24(1)(c)(ii) the duty is limited to the main reasons. He drew an analogy with the former duty of local planning authorities to provide summary reasons for the grant of permission, which was treated as imposing a less onerous standard than that considered in Porter. Thus in R (Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286, Sullivan LJ said summary reasons in that context could not be equated with reasons in a Secretary of States decision letter: a decision letter is intended to be a stand alone document which contains a full explanation of the Secretary of States reasons for allowing or dismissing an appeal. By their very nature a local planning authoritys summary reasons for granting planning permission do not present a full account of the local planning authoritys decision making process. (para 14) Mr Reed sought to apply this thinking to the duty to give the main reasons under the EIA regulations. He referred to R (Cherkley Campaign Ltd) v Mole Valley District Council [2014] EWCA Civ 567, para 70, where counsel was recorded as conceding (apparently without demur from the court) that the duty under the EIA was no higher than the duty to give summary reasons under domestic planning legislation. I am unable to accept the analogy. I do not read the reference in the EIA regulations to the main reasons as materially limiting the ordinary duty in such cases. It is no different in substance from Lord Browns reference in Porter to the need to refer only to the main issues in the dispute. To my mind the guidance in Porter is equally relevant in the EIA context. Lang J in R (Hawksworth Securities plc v Peterborough City Council [2016] EWHC 1870 (Admin) made a more general point about what she saw as the difference between a planning inspector conducting an adversarial procedure, akin to court or tribunal proceedings, contrasted with a local planning authority as an administrative body, determining an individual application: Its reasons ought to state why planning permission was granted, usually by reference to the relevant planning policies. But it is not conducting a formal adjudication in a dispute between the applicant for planning permission and objectors, and so it is not required to give reasons for rejecting the representations made by those who object to the grant of planning permission. (para 87) I am not persuaded that the difference between the two processes bears such significance. In both the decision maker may have to take into account and deal fairly with a wide range of differing views and interests, and reach a reasoned conclusion on them. Where there is a legal requirement to give reasons, what is needed is an adequate explanation of the ultimate decision. The content of that duty should not in principle turn on differences in the procedures by which it is arrived at. Local planning authorities are under an unqualified statutory duty to give reasons for refusing permission. There is no reason in principle why the duty to give reasons for grant of permission should become any more onerous. There is of course the important difference that, as Sullivan J pointed out in Siraj, the decision letter of the Secretary of State or a planning inspector is designed as a stand alone document setting out all the relevant background material and policies, before reaching a reasoned conclusion. In the case of a decision of the local planning authority that function will normally be performed by the planning officers report. If their recommendation is accepted by the members, no further reasons may be needed. Even if it is not accepted, it may normally be enough for the committees statement of reasons to be limited to the points of difference. However the essence of the duty remains the same, as does the issue for the court: that is, in the words of Sir Thomas Bingham MR, whether the information so provided by the authority leaves room for genuine doubt as to what (it) has decided and why. Legal remedies In the case of a decision by the Secretary of State or a planning inspector, the 1990 Act provides for a statutory challenge under section 288, on the grounds that the decision was not within the powers of the Act, or that a relevant requirement (which includes a requirement under the inquiries procedure rules to give notice of the decision and the reasons for it) had not been complied with. In the latter case the court must be satisfied also that the interests of the applicant have been substantially prejudiced by the failure (section 288(5)(b)). I note that in the Save case, Lord Bridge identified a single question: There are in truth not two separate questions: (1) were the reasons adequate? (2) if not, were the interests of the applicant substantially prejudiced thereby? The single indivisible question, in my opinion, which the court must ask itself whenever a planning decision is challenged on the ground of a failure to give reasons is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given. (p 167D E) I am not convinced with respect that it is helpful so to conflate the two parts of the statutory formula. Until one has decided on the nature of the breach of the statutory requirements, it is difficult to determine the nature and extent of any prejudice. However, that passage needs to be read in the context of what follows (p 168), which makes clear that Lord Bridges principal concern was to emphasise, contrary to the apparent implication of the judgment of Woolf LJ in the Court of Appeal, that the burden lay on the applicant to establish both parts of the statutory test. In Save itself, the decision of the House ultimately turned on the adequacy of the reasons for departing from the policy, rather than lack of prejudice. Lord Bridge accepted that an opponent of development, whether the local planning authority or some unofficial body like Save, may be substantially prejudiced by a decision to grant permission in which the planning considerations on which the decision is based, particularly if they relate to planning policy, are not explained sufficiently clearly to indicate what, if any, impact they may have in relation to the decision of future applications. (p 167H) The same point is picked up in Lord Browns summary. Lord Bridge did not, as I understand him, dissent from the view of the Court of Appeal that, had Save been able to establish a material defect of reasoning, the appropriate remedy was to quash the permission. Mr Cameron QC (for the Council) argued that a different approach should apply to a breach of the EIA duty taken on its own. Relying on the decision of the Court of Appeal in R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920, he argued that in that context a mere declaration of the breach was sufficient. Indeed before Mitting J (para 22) this point was conceded by Mr Westaway for CPRE Kent. Although the point was raised in argument in the Court of Appeal, Laws LJ apparently found it unnecessary to address the issue, perhaps because he saw the EIA duty, not as a free standing duty, but as no more than one of the factors relevant to the obligation to give reasons in this case. In Richardson, notwithstanding a clear failure to provide a statement of reasons as required by regulation 21 of the EIA regulations then in force (Town and Country Planning (Environmental Impact Assessment) (England & Wales) Regulations 1999), the Court of Appeal held that the appropriate remedy was, not to quash the decision itself, but to make a mandatory order for the required statement to be provided. In the leading judgment, Simon Brown LJ (para 33) adopted the reasoning of Richards J (at first instance), who had said: 49. the first and most important point in the present case is that regulation 21(1) looks to the position after the grant of planning permission. It is concerned with making information available to the public as to what has been decided and why it has been decided, rather than laying down requirements for the decision making process itself. It implements the obligation in article 9(1) of the directive to make information available to the public when a decision to grant development consent has been taken (emphasis added). That is to be contrasted with article 2(1) of the Directive, which lays down requirements as to what must be done before the grant of planning permission (which may be granted only after a prior assessment of significant environmental effects). 50. The fact that the requirement focuses on the availability of information for public inspection after the decision has been made, rather than on the decision making process, leads me to the view that a breach of regulation 21(1) ought not to lead necessarily to the quashing of the decision itself. A breach should be capable in principle of being remedied, and the legislative purpose achieved, by a mandatory order requiring the authority to make available a statement at the place, and containing the information, specified in the regulation. With respect to the judges concerned, I would decline to follow that reasoning. I find the distinction drawn between notification of the decision, and of the reasons on which it is based, artificial and unconvincing. In the regulations (as in the Aarhus Convention, which is now expressly referred to in the Directive) the provision of reasons is an intrinsic part of the procedure, essential to ensure effective public participation. I would not necessarily disagree with the courts disposal of the appeal in Richardson. Although the committee had not given its own reasons, it had granted permission in accordance with the recommendation in the officers report, and could be taken to have adopted its reasoning. Simon Brown LJ (para 35) referred with approval to the comment of Sullivan J (R v Mendip District Council, Ex p Fabre (2000) 80 P & CR 500, 511) that in such a case the reasonable inference is that the members did so for the reasons advanced by the officer, unless of course there is some indication to the contrary. It is perhaps also relevant that the court was faced with a somewhat extreme submission (based on observations of Lord Hoffmann in Berkeley v Secretary of State for the Environment [2001] 2 AC 603, 616 617), that in respect of a breach of an EU directive the court had no choice in the matter; it was simply not permitted to regard a breach of the implementing regulations as curable other than by the outright quashing of the development permission granted. (para 38) Not surprisingly the court found that an unattractive proposition. However, it is now clear, following recent judgments of this court, that even in respect of a breach of an EU directive the powers of the court are not so restricted: the court retains a discretion to refuse relief if the applicant has been able in practice to enjoy the rights conferred by European legislation, and there has been no substantial prejudice (per Lord Carnwath, (R (Champion) v North Norfolk District Council & Anor [2015] UKSC 52; [2015] 1 WLR 3710, para 54, following Walton v Scottish Ministers [2012] UKSC 44; [2013] PTSR 51, paras 139, 155). In Champion itself it was held that this test was met: given that the environmental issues were of no particular complexity or novelty; there was only one issue of substance on which each of the statutory agencies had satisfied itself of the effectiveness of the proposed measures; the public had been fully involved; and Mr Champion himself having been given the opportunity to raise any specific points of concern but having been unable to do so (para 60). Duty to give reasons Common law Given the existence of a specific duty under the EIA regulations, and the views I have expressed on its effect, it is strictly unnecessary in the present appeal to decide what common law duty there may be on a local planning authority to give reasons for grant of a planning permission. However, since it has been a matter of some controversy in planning circles, and since we have heard full argument, it is right that we should consider it. Public authorities are under no general common law duty to give reasons for their decisions; but it is well established that fairness may in some circumstances require it, even in a statutory context in which no express duty is imposed (see R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531; R v Higher Education Funding Council, Ex p Institute of Dental Surgery [1994] 1 WLR 242, 263A D; De Smiths Judicial Review 7th ed, para 7 099). Doody concerned the power of the Home Secretary (under the Criminal Justice Act 1967 section 61(1)), in relation to a prisoner under a mandatory life sentence for murder, to fix the minimum period before consideration by the Parole Board for licence, taking account of the penal element as recommended by the trial judge. It was held that such a decision was subject to judicial review, and that the prisoner was entitled to be informed of the judges recommendation and of the reasons for the Home Secretarys decision: To mount an effective attack on the decision, given no more material than the facts of the offence and the length of the penal element, the prisoner has virtually no means of ascertaining whether this is an instance where the decision making process has gone astray. I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice I regard it as necessary for this purpose that the reasoning of the Home Secretary should be disclosed. If there is any difference between the penal element recommended by the judges and actually imposed by the Home Secretary, this reasoning is bound to include, either explicitly or implicitly, a reason why the Home Secretary has taken a different view (p 565G H per Lord Mustill) It is to be noted that a principal justification for imposing the duty was seen as the need to reveal any such error as would entitle the court to intervene, and so make effective the right to challenge the decision by judicial review. Similarly, in the planning context, the Court of Appeal has held that a local planning authority generally is under no common law duty to give reasons for the grant of planning permission (R v Aylesbury Vale District Council, Ex p Chaplin (1998) 76 P & CR 207, 211 212 per Pill LJ). Although this general principle was reaffirmed recently in Oakley v South Cambridgeshire District Council [2017] 2 P & CR 4, the court held that a duty did arise in the particular circumstances of that case: where the development would have a significant and lasting impact on the local community, and involved a substantial departure from Green Belt and development plan policies, and where the committee had disagreed with its officers recommendations. Of the last point, Elias LJ (giving the leading judgment, with which Patten LJ agreed) said: The significance of that fact is not simply that it will often leave the reasoning obscure. In addition, the fact that the committee is disagreeing with a careful and clear recommendation from a highly experienced officer on a matter of such potential significance to very many people suggests that some explanation is required the dictates of good administration and the need for transparency are particularly strong here, and they reinforce the justification for imposing the common law duty. (para 61) His conclusion was reinforced by reference to the United Kingdoms obligations under the Aarhus Convention (para 62; see to similar effect my own comments on the relevance of the Convention, in Walton v Scottish Ministers [2012] UKSC 44; [2013] PTSR 51, para 100). Sales LJ agreed with the result, but expressed concern that the imposition of such duties might deter otherwise public spirited volunteers from council duties, and might also introduce an unwelcome element of delay into the planning system (para 76). Mr Cameron QC (for the Council) submitted that this decision should be treated with care, against the background of the governments decision in 2013 to abrogate the statutory duty to give reasons for grant of permission, planning law being a creature of statute (see Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] 1 WLR 1865, para 20). The factors identified by Elias LJ could arise in many cases, and lead to the common law duty becoming a general rule. He asked us to prefer the view of Lang J (R (Hawksworth Securities plc) v Peterborough City Council [2016] EWHC 1870 (Admin), para 81) that a common law duty to give reasons would arise only exceptionally and that generally, the requirements of fairness will be met by public access to the material available to the decision maker. The present case, he submitted, was not exceptional in that sense, either in principle or on its own facts. In my view Oakley was rightly decided, and consistent with the general law as established by the House of Lords in Doody. Although planning law is a creature of statute, the proper interpretation of the statute is underpinned by general principles, properly referred to as derived from the common law. Doody itself involved such an application of the common law principle of fairness in a statutory context, in which the giving of reasons was seen as essential to allow effective supervision by the courts. Fairness provided the link between the common law duty to give reasons for an administrative decision, and the right of the individual affected to bring proceedings to challenge the legality of that decision. Doody concerned fairness as between the state and an individual citizen. The same principle is relevant also to planning decisions, the legality of which may be of legitimate interest to a much wider range of parties, private and public (see Walton v Scottish Ministers [2012] UKSC 44; [2013] PTSR 51, paras 152 153 per Lord Hope). Here a further common law principle is in play. Lord Bridge saw the statutory duty to give reasons as the analogue of the common law principle that justice should not only be done, but also be seen to be done (see para 25 above). That principle of open justice or transparency extends as much to statutory inquiries and procedures as it does to the courts (see Kennedy v The Charity Commission [2014] UKSC 20; [2015] AC 455, para 47 per Lord Mance, para 127 per Lord Toulson). As applied to the environment it also underpins the Aarhus Convention, and the relevant parts of the EA Directive. In this respect the common law, and European law and practice, march together (compare Kennedy para 46 per Lord Mance). In the application of the principle to planning decisions, I see no reason to distinguish between a Ministerial inquiry, and the less formal, but equally public, decision making process of a local planning authority such as in this case. The existence of a common law duty to disclose the reasons for a decision, supplementing the statutory rules, is not inconsistent with the abrogation in 2013 of the specific duty imposed by the former rules to give reasons for the grant of permission. As the explanatory memorandum made clear, that was not intended to detract from the general principle of transparency (which was affirmed), but was a practical acknowledgement of the different ways in which that objective could normally be attained without adding unnecessarily to the administrative burden. In circumstances where the objective is not achieved by other means, there should be no objection to the common law filling the gap. Thus in Oakley the Court of Appeal were entitled in my view to hold that, in the special circumstances of that case, openness and fairness to objectors required the members reasons to be stated. Such circumstances were found in the widespread public controversy surrounding the proposal, and the departure from development plan and Green Belt policies; combined with the members disagreement with the officers recommendation, which made it impossible to infer the reasons from their report or other material available to the public. The same combination is found in the present case, and, in my view, would if necessary have justified the imposition of a common law duty to provide reasons for the decision. This endorsement of the Court of Appeals approach may be open to the criticism that it leaves some uncertainty about what particular factors are sufficient to trigger the common law duty, and indeed as to the justification for limiting the duty at all (see the perceptive analysis by Dr Joanna Bell: Kent and Oakley: A Re examination of the Common Law Duty to Give Reasons for Grants of Planning Permission and Beyond (2017) 22 Judicial Review 105 113). The answer to the latter must lie in the relationship of the common law and the statutory framework. The court should respect the exercise of Ministerial discretion, in designating certain categories of decision for a formal statement of reasons. But it may also take account of the fact that the present system of rules has developed piecemeal and without any apparent pretence of overall coherence. It is appropriate for the common law to fill the gaps, but to limit that intervention to circumstances where the legal policy reasons are particularly strong. As to the charge of uncertainty, it would be wrong to be over prescriptive, in a judgment on a single case and a single set of policies. However it should not be difficult for councils and their officers to identify cases which call for a formulated statement of reasons, beyond the statutory requirements. Typically they will be cases where, as in Oakley and the present case, permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance (such as the specific policies identified in the NPPF para 22 above). Such decisions call for public explanation, not just because of their immediate impact; but also because, as Lord Bridge pointed out (para 45 above), they are likely to have lasting relevance for the application of policy in future cases. Finally, with regard to Sales LJs concerns about the burden on members, it is important to recognise that the debate is not about the necessity for a planning authority to make its decision on rational grounds, but about when it is required to disclose the reasons for those decisions, going beyond the documentation that already exists as part of the decision making process. Members are of course entitled to depart from their officers recommendation for good reasons, but their reasons for doing so need to be capable of articulation, and open to public scrutiny. There is nothing novel or unduly burdensome about this. The Lawyers in Local Government Model Council Planning Code and Protocol (2013 update) gives the following useful advice, under the heading Decision making: Do make sure that if you are proposing, seconding or supporting a decision contrary to officer recommendations or the development plan that you clearly identify and understand the planning reasons leading to this conclusion / decision. These reasons must be given prior to the vote and be recorded. Be aware that you may have to justify the resulting decision by giving evidence in the event of any challenge. (their emphasis) The decision in this case The members of the Dover planning committee on 13 June 2013 had an unenviable task. The meeting started at six in the evening, probably for most of them at the end of a hard working day. They were faced with probably the most significant planning application for their area for many years. It was no doubt seen as the culmination of an extended process of formal and informal consultation, triggered by the submission of the application over a year before, and they may have felt under some pressure to reach a conclusion. The officers report, admirable though it was, had arrived on their desks only a few days before the meeting. Not only was it long and detailed in itself, but it introduced into the debate a new element of potentially critical significance (the proposed reduction in the number of houses), on which there was a sharp difference of view between the expert advisers. The Model Council Planning Code and Protocol, already referred to (para 60 above) contains under the same heading the following advice: Do come to your decision only after due consideration of all of the information reasonably required upon which to base a decision. If you feel there is insufficient time to digest new information or that there is simply insufficient information before you, request that further information. If necessary, defer or refuse. This passage not only offers sound practical advice. It also reflects the important legal principle that a decision maker must not only ask himself the right question, but take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B). That obligation, which applies to a planning committee as much as to the Secretary of State, includes the need to allow the time reasonably necessary, not only to obtain the relevant information, but also to understand and take it properly into account. Even if there was pressure for a decision on the principle of the development, it seems unfortunate that the members did not apparently consider deferring detailed discussion of the officers proposed modifications, including the contentious issue of viability. It is difficult to see how the members could have expected to reach a properly considered decision on the material then before them. With hindsight at least, given that the application did not come back to the committee for more than a year, nothing would have been lost. The issue of timing is not directly relevant to the reasons challenge before us, but it is an important part of the background. It is not in dispute that the Council was in breach of a specific requirement under the EIA regulations to make available a statement of the main reasons and considerations on which the decision was based. The only issue is the nature of the remedy. Mr Cameron submits that a declaration is sufficient and that the reasons can be supplied retrospectively. In so far as this submission is specific to the EIA duty, following the decision of the Court of Appeal in Richardson, I cannot accept it for the reasons already given. The report of Oakley does not indicate what order resulted in that case. In the present case, however, I am satisfied that that is not an appropriate or sufficient remedy. Indeed it is notable that in the three years since the permission was issued, no attempt has been made to formulate the reasons so as to make good the admitted breach. This perhaps underlines the difficulty of reconstructing the operative reasons of the committee on the basis simply of what is in the minutes. Mr Cameron relies on the views attributed to the three members who were recorded as supporting the proposal. That was against the background that the officers had recommended approval for a departure from the AONB policies, for reasons they had explained, and which the committee can be taken to have accepted. The only substantial difference was as to whether a reduced dwelling limit should be imposed. That was seen by the committee as turning on whether the risk to the viability of the scheme outweighed the harm to the AONB. That issue, he submits, was fully debated and the majoritys conclusion and reasoning were clearly reflected in the minutes. The restrictions proposed by the officers were not accepted because (in the words there recorded) this could jeopardise the viability of the scheme, deter other developments and be less effective in delivering the economic benefits. This submission rests on the uncertain assumption that the views of the three members quoted were shared by the majority. The required statement under the regulations is of the reasoning of the committee as a whole. Even making that assumption, there are serious gaps. There is no indication of how or why the members felt able, without further investigation, to reject the view of their own advisers that the viability of the scheme need not be threatened, and indeed could be enhanced. It was not enough to rely on the possibility of the scheme being jeopardised, simply on the say so of the applicants advisers without any reference to the expert view to the contrary. Another important issue was the officers insistence on the need for implementation as a single comprehensive scheme to secure the economic benefits, including in particular the hotel and conference centre, and for conditions or planning obligations to achieve that. Given that the members apparently shared their officers view of the importance of those benefits, their omission of any legal mechanism to secure it needed explanation. Furthermore, as Laws LJ pointed out, the economic argument was only one side of the picture. The other was the members view of the harm to the AONB. Assuming that they accepted their officers view as to the seriousness of the potential damage to the AONB, it became critical to understand the basis of their belief that it could be minimised by effective screening. This was of particular significance in the context of the EIA regulations which require the statement to include a description of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development. If the committee had reason to think that landscaping measures could reduce or offset the harm, they needed to be described. At the very least there needed to be an explanation of how the members reconciled this assertion with the view of their officers that landscaping would be largely ineffective. This point was left without any explanation. These points were not merely incidental, but were fundamental to the officers support for the amended scheme. The committees failure to address such points raises a substantial doubt (in Lord Browns words) as to whether they had properly understood the key issues or reached a rational conclusion on them on relevant grounds. This is a case where the defect in reasons goes to the heart of the justification for the permission, and undermines its validity. The only appropriate remedy is to quash the permission. Conclusion For the reasons indicated above, I would dismiss the appeal and affirm the order of the Court of Appeal.	On 13 May 2012 China Gateway International Limited (CGI) submitted an application for planning permission to the local planning authority, Dover District Council (DDC). It sought permission for a large residential development within an area of outstanding natural beauty (AONB). The proposal was controversial. A planning officers report was circulated to the Planning Committee on 7 June 2013. It recommended the grant of permission with amendments to CGIs proposal, including a reduction in the number of planned houses at one site from 521 to 365. They also recommended ensuring, through an agreement with CGI (the Section 106 Agreement), various economic benefits including a planned hotel and conference centre. The planning officers report had regarded the level of harm to the AONB as significant but concluded that the suggested amendments created a finely balanced public interest. The Planning Committee met on 13 June 2013. Three members of the Committee expressly stated that harm to the AONB could be minimised by effective screening. The planning officers report had nonetheless expected that screening would be largely ineffective. After discussion, the Committee carried a motion approving the planning officers recommendation, but without the proposed reduction in the number of houses. On 18 December 2013 the application for planning permission returned to the Planning Committee with an updated planning officers report. The updated report confirmed that, contrary to the officers earlier recommendation, the Section 106 Agreement did not require CGI to provide the hotel but instead served to create an opportunity for a hotel. The Section 106 Agreement was executed on 1 April 2015. Planning permission was granted on the same day. Campaign to Protect Rural England Kent (CPRE Kent) sought a judicial review of that decision. Although it was unsuccessful at first instance, the Court of Appeal allowed the subsequent appeal and quashed the decision to grant permission. In this appeal to the Supreme Court it was not in dispute that the DDC was in breach of a specific requirement under the Town and County Planning (Environmental Impact Assessment) Regulations 2011 (the EIA Regulations) to provide a statement of the main reasons and considerations on which the decision was based. The issue is whether the Court of Appeal was right to quash the decision on that basis. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the judgment, with which Lady Hale, Lord Wilson, Lady Black and Lord Lloyd Jones agree. The Court reviewed various statutory rules relating to the provision of reasons for planning decisions, observing that these rules are to be found in subordinate legislation and that it is hard to detect a coherent approach to their development. The three main categories of planning decision are: (i) decisions of Secretaries of State and inspectors, (ii) decisions by local planning authorities in connection with planning permission, and (iii) decisions, at any level, on applications for EIA development [21 23]. Special duties arise under the EIA Regulations where an application (as in this case) involves a development which is likely to have significant effects on the environment by virtue of factors such as its nature, size or location (an EIA development). Regulation 3(4) provides that decision makers shall not grant planning permission, where the application involves an EIA development, without first taking the environmental information into consideration, and that they must state in their decision that they have done so. Article 6.9 of the Aarhus Convention (Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters), to which the United Kingdom is a party, also requires each party to make accessible to the public the text of certain decisions involving an EIA, along with reasons and the considerations on which it is based [31 34]. Where there is a legal requirement to give reasons, what is needed is an adequate explanation of the ultimate decision. The content of that duty should not in principle turn on differences in the procedures by which the decision is arrived at. The essence of the duty, and the central issue, is whether the information so provided by the authority leaves room for genuine doubt as to what it has decided and why [35 42]. The Court rejects DDCs argument that a breach of the EIA duty alone should be remedied by a mere declaration of the breach. DDC relied on R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920 in which the Court of Appeal remedied a failure to provide a statement of reasons without quashing the decision, by ordering only that the statement be provided. However, in that case it was possible to take the planning committee as adopting the reasoning in the officers report which had recommended granting permission [46 49]. In view of the specific duty to give reasons under the EIA regulations, it is unnecessary to address the common law position. However, the particular circumstances of this case would, if necessary, have justified the imposition of a common law duty to provide reasons for the grant of permission. Planning law is a creature of statute, but the proper interpretation of the statute is underpinned by general common law principles, including fairness and transparency. It is appropriate for the common law to fill the gaps in the present system of rules, but its intervention should be limited to circumstances where legal policy reasons for it are strong [50 60]. The meeting on 13 June 2013 occurred only days after receipt of the planning officers detailed report, which proposed new and controversial amendments. A decision maker must not only ask himself the right question, but must take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly. Even if there was pressure to reach a decision in this case, it seems unfortunate that the committee members did not apparently consider deferring detailed discussion of the proposed amendments [62 63]. A mere declaration of the breach of the EIA duty is not an appropriate or sufficient remedy. In the three years since the permission was issued, no attempt has been made to formulate the reasons so as to make good the admitted breach, perhaps underlining the difficulty of reconstructing the reasons of the committee on the basis of its minutes alone. The recorded views of those members who supported the proposal do not indicate whether those views were shared by the majority, nor why the members felt able to reject the view of their own advisers without further investigation. Their omission of any legal mechanism to secure the proposed economic benefits, in particular the hotel and conference centre, required explanation. Furthermore, it was critical to understand the basis of the members belief that the harm to the AONB could be minimised, which conflicted with the planning officers view that screening would be largely ineffective. The quashing order of the Court of Appeal is consequently affirmed and the appeal is dismissed [61 69].
Extended determinate sentences were imposed on Frank Stott in May 2013, pursuant to section 226A of the Criminal Justice Act 2003 (the 2003 Act) for sexual offences. This appeal concerns the provisions of section 246A of the 2003 Act which deal with early release from prison of those serving extended determinate sentences. The effect of the provisions is that Mr Stott will not be eligible to apply for release until he has served two thirds of his custodial term, in contrast to other categories of prisoner who can apply for release at an earlier point in their custodial term. He contends that the provisions of section 246A are discriminatory and in violation of article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR or the Convention) taken together with article 5 of the Convention. The facts The appellant was convicted at trial of 20 offences, including multiple offences of raping an eight year old child. Prior to the trial, he had pleaded guilty to other counts relating to indecent photography of a child. On 23 May 2013, he was sentenced to an extended determinate sentence (EDS) in respect of ten counts of rape. An EDS comprises two elements, namely an appropriate custodial term, and a further period for which the offender is to be subject to a licence (the extension period), see section 226A(5) at para 85 below. Mr Stotts appropriate custodial term has been fixed at 21 years, with an extension period of four years. He was also sentenced to various determinate sentences of imprisonment to be served concurrently. He was refused permission to appeal against his sentence, see R v Stott [2016] EWCA Crim 172. A prisoner serving an EDS can be released before the end of his term of imprisonment. It will be necessary to look further at the statutory provisions governing release later but, in broad outline, section 246A of the 2003 Act requires, in most cases, that the EDS prisoner be released on licence as soon as he has served the requisite custodial period and the Parole Board has directed his release. The requisite custodial period is two thirds of the appropriate custodial term specified by the sentencing court, so Mr Stott would have to serve 14 years before becoming eligible for parole. Other categories of prisoner are, in contrast, eligible for parole at the half way point in their sentences. If these rules had applied to Mr Stott, he would have been eligible for parole once he had served ten and a half years. He complained that there was no justification for this difference in treatment in relation to eligibility for parole, and that it was unlawful discrimination within article 14. He brought judicial review proceedings. In February 2017, a Divisional Court of the Queens Bench Division dismissed his claim [2017] EWHC 214 (Admin). However, it granted a certificate pursuant to section 12 of the Administration of Justice Act 1969 to permit Mr Stott to appeal directly to the Supreme Court, should permission to appeal be granted by the Supreme Court, which in due course it was. Article 5 and article 14 of the ECHR As the focus in this case is upon articles 5 and 14 of the ECHR, it will be convenient to set them out immediately. Article 5 of the ECHR secures the right to liberty and security of person. So far as is material to the present case, it 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: the lawful detention of a person after conviction (a) by a competent court; 4. 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. Article 14 prohibits discrimination, providing: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. The approach to an article 14 claim In order to establish that different treatment amounts to a violation of article 14, it is necessary to establish four elements. First, the circumstances must fall within the ambit of a Convention right. Secondly, the difference in treatment must have been on the ground of one of the characteristics listed in article 14 or other status. Thirdly, the claimant and the person who has been treated differently must be in analogous situations. Fourthly, objective justification for the different treatment will be lacking. It is not always easy to keep the third and the fourth elements entirely separate, and it is not uncommon to see judgments concentrate upon the question of justification, rather than upon whether the people in question are in analogous situations. Lord Nicholls of Birkenhead captured the point at para 3 of R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173. He observed that once the first two elements are satisfied: the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the courts scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact. The issues In this case, it is accepted that the right to apply for early release, upon which Mr Stott relies, falls within the ambit of article 5. The debate is about the application of article 14. Two issues have been identified. The first issue (Issue 1 or the status issue) is whether the different treatment of Mr Stott is on a ground within the meaning of other status in article 14. The second issue (Issue 2) requires determination only if Issue 1 is answered in the affirmative. It has two parts: (a) Are EDS prisoners in an analogous situation to either indeterminate sentence prisoners or other determinate sentence prisoners, these being the two categories of prisoner with which Mr Stott seeks to compare his own position? If so, is there an objective justification for the difference in treatment (b) between the categories of prisoner? Mr Stott argues that his differential treatment was on the ground of other status, that he was in an analogous situation to other prisoners who were treated differently, and that there was no objective justification for the different treatment. The Secretary of State argues that Mr Stott fails on the status issue, so Issue 2 does not arise. However, if that is wrong, the Secretary of State argues that Mr Stotts sentence is not analogous to the other sentences under consideration, and that there is in any event an objective justification for treating the different categories of prisoner differently. The central importance of R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484 (R (Clift)) and Clift v United Kingdom (Application No 7205/07) At the heart of the appeal are the decisions of the House of Lords and of the European Court of Human Rights (ECtHR) concerning Mr Clift, a prisoner who was serving a sentence of 18 years imprisonment for very serious crimes, including attempted murder, and complained that the early release provisions in respect of his sentence gave rise to a violation of article 14. In 2006, in R (Clift), the House of Lords held that Mr Clifts classification, as a long term prisoner serving a determinate sentence of 15 years or more, did not amount to an other status, and accordingly there was no infringement of article 14. In 2010, in Clift v United Kingdom (Application No 7205/07), the ECtHR took the contrary view, holding that Mr Clift did come within article 14 and that there was no objective justification for the different release provisions applied to prisoners in his category. The decision of the House of Lords in R (Clift) dictated the Divisional Courts decision in the present case. The Divisional Court only rejected Mr Stotts argument that his differential treatment was on the ground of other status, because it was constrained to do so by R (Clift). Had it not been so bound, it would have found that other status was established, and would then have gone on to find section 246A of the 2003 Act incompatible with article 14. It now falls to this court to determine whether the decision of the House of Lords in R (Clift) should continue to be followed, in the light of the subsequent ECtHR decision in Clift v United Kingdom, and of the article 14 jurisprudence as a whole. Issue 1: the status issue Before turning to look at R (Clift) and Clift v United Kingdom in some detail, the decision of the ECtHR in Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711 (Kjeldsen) needs to be introduced, because one paragraph from the courts judgment features regularly in decisions of the ECtHR, and the domestic courts, when the question of status in article 14 is being considered. Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711 Kjeldsen concerned sex education in Danish schools. The applicants were parents who objected to sex education being compulsory in state primary schools and complained that, whereas parents could have their children exempted from religious instruction classes, they could not do so in relation to sex education classes. They claimed, unsuccessfully, that this was discriminatory treatment contrary to article 14 taken with article 2 of First Protocol (right to education). The passage about status to which courts return repeatedly is at para 56: The court first points out that article 14 prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic (status) by which persons or groups of persons are distinguishable from each other. Regina (Clift) v Secretary of State for the Home Department (above) As I have said, Mr Clift was a prisoner serving a sentence of 18 years imprisonment. Some way into his period of imprisonment, the Parole Board recommended his release on parole. Had Mr Clift been serving a term of less than 15 years, or life imprisonment, the Secretary of State would have had a statutory obligation to comply with the recommendation of the Parole Board. However, by virtue of various statutory provisions and the Parole Board (Transfer of Functions) Order 1998 (SI 1998/3218), the final decision in relation to prisoners serving determinate terms of 15 years or more lay with the Secretary of State, who rejected the recommendation. Mr Clift contended that the early release provisions discriminated against him in breach of his rights under articles 5 and 14 of the ECHR by denying him the right, that other long term prisoners enjoyed, to be released if the Parole Board recommended it. Mr Clift was able to establish that his rights in relation to early release were within the ambit of article 5. Although there is no issue about article 5 in the present case, a brief resum of how the House of Lords approached it will set the article 14 issues in a proper context. As Lord Bingham of Cornhill said at para 17, the ECHR does not require member states to establish a scheme for early release, and prisoners may, consistently with the Convention, be required to serve the entirety of the sentence passed, if that is what the domestic law provides. However, where the domestic law in fact provides for a right to seek early release, that right is within the ambit of article 5. In relation to long term prisoners serving determinate terms, the law of England and Wales did confer a right to seek early release, setting a time at which a prisoner must be released as of right, and an earlier time at which he might be released if it was judged safe to do so. Accordingly, as Lord Bingham said at para 18, differential treatment, in relation to early release, of one prisoner as compared with another, otherwise than on the merits of their respective cases, gave rise to a potential complaint under article 14. However, the discrimination which article 14 prohibits is discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Not falling within any of the named grounds, Mr Clift could only bring himself within the protection of article 14 if his differential treatment could be said to be on the ground of other status. He argued that this requirement was satisfied on the basis that his treatment was on the ground that he was a prisoner sentenced to a determinate term of 15 years or more. Lord Bingham (with whom there was general agreement, although some other members of the House added reasons of their own) rejected this argument, but he did so not without hesitation, and influenced by the fact that the Strasbourg jurisprudence had not endorsed a status of this kind as falling within article 14. Lord Hope of Craighead too, having put the arguments for and against Mr Clift being able to lay claim to status, was mindful of the need for a measure of self restraint, so as not to outstrip Strasbourg. What each would have said, had they known what the ECtHR was going to decide in Clift v United Kingdom in 2010, is unknown, although one cannot avoid the sense that the outcome might well have been different. However, in order to give proper consideration to what, if any, continuing influence R (Clift) should have, it is necessary to isolate the strands of reasoning which went to make up the conclusion of the House: i) There was agreement that the words or other status in article 14 (in French toute autre situation) are far from precise, but that they are not intended to cover differential treatment on any ground whatever, because in that case, the list of grounds which precede them would be otiose (paras 27, 43, and 56). ii) Reliance was placed on the passage quoted above from para 56 of Kjeldsen, and the search was for something in the nature of a personal characteristic by which persons or groups of persons are distinguishable from each other (paras 27, 28, 42, and 56 for example). iii) It was accepted that, as the specific grounds of discrimination listed in article 14 show, protection is extended not only to characteristics over which a person has no control, such as race or birth, but also to acquired characteristics, such as religion or political opinion (paras 28 and 45). iv) Lord Bingham and Lord Hope both advanced the proposition that, to qualify, the personal characteristic in question must exist independently of the treatment of which complaint is made. Lord Bingham said, at para 28, that he did not think that a personal characteristic can be defined by the differential treatment of which a person complains, without giving any explanation, or authority, for this view. He did not appear to consider that Mr Clift would fall foul of this, as he was not complaining of the sentence passed on him, but of being denied a definitive Parole Board recommendation. Lord Hope agreed, at para 47, that [i]t must be accepted, as Lord Bingham points out, that a personal characteristic cannot be defined by the differential treatment of which a person complains. Although he similarly did not spell out the foundation for his view, it may lie in his observation, at para 45, that each of the specific grounds shared a feature in common, namely that they exist independently of the treatment of which complaint is made and [i]n that sense, they are personal to the complainant. The remainder of para 47 is not entirely easy to understand, but might indicate that Lord Hope shared Lord Binghams opinion that this was not an area of difficulty for Mr Clift. It reads: It is plain too that the category of long term prisoner into which Mr Clifts case falls would not have been recognised as a separate category had it not been for the Order which treats prisoners in his group differently from others in the enjoyment of their fundamental right to liberty. But he had already been sentenced, and he had already acquired the status which that sentence gave him before the Order was made that denied prisoners in his group the right to release on the recommendation of the Parole Board. The question which his case raises is whether the distinguishing feature or characteristic which enables persons or a group of persons to be singled out for separate treatment must have been identified as a personal characteristic before it is used for this purpose by the discriminator. v) There was an examination of the ambit of article 14 as demonstrated by decisions of the ECtHR and the domestic courts in various factual contexts. Baroness Hale included a particularly detailed list of authorities at para 58, which led her to make the observation that in the vast majority of Strasbourg cases where violations of article 14 have been found, the real basis for the distinction was clearly one of the proscribed grounds or something very close. Examples were given of cases in which the grounds for the discrimination were not within article 14 (see, for example, paras 27, 45, 59 61), including prisoners who were treated differently because of the legislatures view of the gravity of their offences (Gerger v Turkey 8 July 1999, para 69, and see also Budak v Turkey (Application No 57345/00) (unreported)). And there was discussion of R (S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196 where the House of Lords held that article 14 did not cover differential treatment on the basis that a person had previously been investigated by the police and provided fingerprints; the possession of fingerprints and DNA samples by the police in that situation was simply a matter of historical fact, not attributable to the personal characteristics of those who had provided them. Having referred earlier to the rather qualified terms in which Lord Bingham and Lord Hope expressed their conclusions, I should set out rather more fully what they actually said. Baroness Hale also dealt with the topic, but Lord Carswell and Lord Brown of Eaton under Heywood simply agreed with Lord Bingham on the issue without adding anything. Lord Binghams conclusions are to be found in para 28: 28. Is his classification as a prisoner serving a determinate sentence of 15 years or more (but less than life) a personal characteristic? I find it difficult to apply so elusive a test. But I would incline to regard a life sentence as an acquired personal characteristic and a lifer as having an other status, and it is hard to see why the classification of Mr Clift, based on the length of his sentence and not the nature of his offences, should be differently regarded. I think, however, that a domestic court should hesitate to apply the Convention in a manner not, as I understand, explicitly or impliedly authorised by the Strasbourg jurisprudence, and I would accordingly, not without hesitation, resolve this question in favour of the Secretary of State and against Mr Clift. As for Lord Hope, he also acknowledged the case for the length of Mr Clifts sentence conferring a status on him which can be regarded as a personal characteristic. From para 46 onwards, he can be seen considering the arguments, beginning thus: 46. It could be said in Mr Clifts case that the length of his sentence did confer a status on him which can be regarded as a personal characteristic. This is because prisoners are divided by the domestic system into broadly defined categories, or groups of people, according to the nature or the length of their sentences. These categories affect the way they are then dealt with throughout the period of their sentences. As a result they are regarded as having acquired a distinctive status which attaches itself to them personally for the purposes of the regime in which they are required to serve their sentences. This is most obviously so in the case of prisoners serving life sentences and where distinctions are drawn between short term and long term prisoners serving determinate sentences. It is less obviously so in the case of long term prisoners serving determinate sentences of different lengths. He thought that, given that the function of article 14 was to secure Convention rights and freedoms without discrimination on grounds which, having regard to the underlying values of the Convention, must be regarded as unacceptable, a generous meaning should be given to or other status (para 48). In his view, the protection of article 14 ought not to be denied just because the distinguishing feature which enabled the discriminator to treat persons or groups of persons differently in the enjoyment of their Convention rights had not previously been recognised, by which he seems, I think, to have meant previously recognised by the ECtHR. But, ultimately, two factors seem to have influenced his rejection of Mr Clifts case. The first was that he accepted that it was possible to regard what he has done, rather than who or what he is, as the true reason for the difference of treatment. The second was caution about outstripping Convention jurisprudence. So, he said, I am persuaded, with some reluctance, that it is not open to us to resolve the [other status point] in Mr Clifts favour (para 49). Baroness Hale did not express hesitation or reluctance in concluding that the difference of treatment between Mr Clift and people sentenced to shorter determinate sentences or to life sentences was a difference in treatment based on the seriousness of the offences concerned, and therefore outside article 14. As she put it, [t]he real reason for the distinction is not a personal characteristic of the offender but what the offender has done (para 62). Clift v United Kingdom (above) It is necessary to look in similar detail at the ECtHRs reasons for concluding that the differential treatment of Mr Clift was on the ground of other status for the purposes of article 14. The court began its assessment, at para 55, by observing that article 14 does not prohibit all differences in treatment, but only those differences based on an identifiable, objective or personal characteristic, or status, by which persons or groups of persons are distinguishable from one another, citing para 56 of Kjeldsen, Busk Madsen and Pedersen (above), Berezovskiy v Ukraine (dec) (Application No 70908/01), 15 June 2004, and paras 61 and 70 of Carson v United Kingdom (2010) 51 EHRR 13. But, equally, it confirmed (para 55) that the list of specific grounds in article 14 is illustrative and not exhaustive, and recalled (para 56) that the words other status (and a fortiori the French toute autre situation) have generally been given a wide meaning. Noting the Governments argument that other status should be more narrowly construed, ejusdem generis with the specific examples in article 14, it demonstrated (paras 56 to 59) that not all the listed grounds could be said to be personal in the sense of being innate characteristics or inherently linked to the identity or personality of the individual. It commented on the inclusion of property as one of the grounds, and observed that it was a ground which had been construed broadly by the court as demonstrated by James v United Kingdom (1986) 8 EHRR 123 (difference in treatment between different categories of property owners) and Chassagnou v France (1999) 29 EHRR 615, paras 90 and 95, (distinction between large and small landowners). It went on, at para 58, to give a list of other cases in which a violation of article 14 had been found because of different treatment based on characteristics which were not personal in the sense of being innate or inherent, namely: Engel v The Netherlands (1976) 1 EHRR 647 (distinction based on military rank), Pine Valley Developments Ltd v Ireland (1991) 14 EHRR 319 (distinction between those who held outline planning permission and benefited from new legislation and those who held outline planning permission but did not), Larkos v Cyprus (1999) 30 EHRR 597, para 21 (distinction between tenants of the State and tenants of private landlords), Shelley v United Kingdom (2008) 46 EHRR SE16 (being a convicted prisoner could be an other status), Sidabras and Dziautas v Lithuania (2004) 42 EHRR 104 (implicitly accepted that status as a former KGB officer fell within article 14), and Paulk v Slovakia (2006) 46 EHRR 10 (a father whose paternity had been established by judicial determination had a status which could be compared to putative fathers and mothers in situations where paternity was legally presumed but not judicially determined). Accordingly, the court concluded (para 59), even if the Governments ejusdem generis argument was correct (upon which no pronouncement was made either way), it would not necessarily preclude Mr Clifts claim. The argument that the treatment of which the applicant complains must exist independently of the other status upon which it is based was advanced, but the court rejected it, citing Paulk (2008) 46 EHRR 10 as undermining it. It said: 60. Further, the court is not persuaded that the Governments argument that the treatment of which the applicant complains must exist independently of the other status upon which it is based finds any clear support in its case law. In Paulk, cited above, there was no suggestion that the distinction relied upon had any relevance outside the applicants complaint but this did not prevent the court from finding a violation of article 14. The question whether there is a difference of treatment based on a personal or identifiable characteristic in any given case is a matter to be assessed taking into consideration all of the circumstances of the case and bearing in mind that the aim of the Convention is to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Artico v Italy, 13 May 1980, para 33, Series A no 37; and Cudak v Lithuania [GC], no 15869/02, para 36, 23 March 2010). It should be recalled in this regards that the general purpose of article 14 is to ensure that where a state provides for rights falling within the ambit of the Convention which go beyond the minimum guarantees set out therein, those supplementary rights are applied fairly and consistently to all those within its jurisdiction unless a difference of treatment is objectively justified. The court was not impressed, either, with the Governments argument that, as in Gerger (above), the distinction was between different types of offence, according to the legislatures view of their gravity, observing that the cases in which the approach in Gerger had been followed all concerned special court procedures or provisions on early release for those accused or convicted of terrorism offences in Turkey. It continued (para 61): Thus while Gerger made it clear that there may be circumstances in which it is not appropriate to categorise an impugned difference of treatment as one made between groups of people, any exception to the protection offered by article 14 of the Convention should be narrowly construed. In the present case the applicant does not allege a difference of treatment based on the gravity of the offence he committed, but one based on his position as a prisoner serving a determinate sentence of more than 15 years. While sentence length bears some relationship to the perceived gravity of the offence, a number of other factors may also be relevant, including the sentencing judges assessment of the risk posed by the applicant to the public. At para 62, the court said: The court has frequently emphasised the fundamental importance of the guarantees contained in article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities (see, for example, akc v Turkey [GC], no 23657/94, para 104, ECHR 1999 IV). Where an early release scheme applies differently to prisoners depending on the length of their sentences, there is a risk that, unless the difference in treatment is objectively justified, it will run counter to the very purpose of article 5, namely to protect the individual from arbitrary detention. Accordingly, there is a need for careful scrutiny of differences of treatment in this field. It concluded that in the light of all the considerations it had set out, Mr Clift did enjoy other status for the purposes of article 14. At paras 66 and 67, the court addressed the issue of whether Mr Clift was in an analogous position to the other prisoners with whom he compared himself, observing that what is required is that the applicant should demonstrate that, having regard to the particular nature of the complaint, his situation was analogous, or relevantly similar; it need not be identical. Mr Clift was in an analogous position to long term prisoners serving less than 15 years and life prisoners, as the methods of assessing the risk posed by a prisoner eligible for early release, and the means of addressing any risk identified, were in principle the same for all categories of prisoner. The court went on to find that the differential treatment of prisoners in Mr Clifts position lacked objective justification. The Government had argued that it was justified on the basis of the risk posed by the category of prisoners in question, and by the need to maintain public confidence in the justice system. As to the first basis, the court accepted in principle that more stringent early release provisions could be justified on the basis that a group of prisoners posed a higher risk, but there had not been shown to be higher risk here. As to the second basis, it had not been demonstrated that requiring the approval of the Secretary of State would address concerns about risk on release, given that the assessment of the risk posed by an individual prisoner was a task without political content and one to which the Secretary of State could bring no superior expertise. There is much in the ECtHRs decision which is in harmony with the approach taken by the House of Lords in R (Clift). But it can be seen that there are respects in which the ECtHR either went further than the House of Lords or differed from its approach. It differed in that it was not persuaded that there was any support for the argument that the treatment of which the applicant complains must exist independently of the other status; on the contrary, the matter had to be assessed taking into consideration all of the circumstances of the case and bearing in mind that the aim of the Convention was to guarantee rights which are practical and effective. It also differed from the House of Lords in rejecting the idea that Mr Clifts complaint was about a difference in treatment based on the gravity of his offence, observing that a number of factors may be relevant to sentence length, as well as the perceived gravity of the offence. It also emphasised the particular context for the decision in Gerger and other cases in which the Gerger approach had been taken. And it stressed that any exception to the protection offered by article 14 should be narrowly construed, and that there needed to be careful scrutiny of differences of treatment where an early release scheme applied differently to prisoners depending on the length of their sentence, given that there was a risk that unless the difference was objectively justified it would run counter to the very purpose of article 5. It possibly went further than the House of Lords in relation to the nature of the characteristics which would be recognised, in that it observed that not all the grounds could be said to be inherently linked to the identity or personality of the individual, highlighting the inclusion of property as a specified ground, and giving examples of characteristics which had sufficed, but were not innate or inherent. ECtHR decisions other than Clift v United Kingdom There have been many decisions of the ECtHR in relation to article 14 and it is unnecessary to refer to more than a few of them. The way in which that court is presently approaching the question of other status can be seen from three recent decisions, one in 2016 and two in 2017. They demonstrate, I think, that the approach has been relatively consistent over the years, and that there has been little change to the approach exhibited in Clift v United Kingdom. The 2016 decision is Biao v Denmark (2016) 64 EHRR 1 (Biao). This concerned the Danish provisions for family reunion which treated Danish born nationals differently from those who acquired Danish nationality later in life, a majority of whom were of foreign ethnic origin. This was said to amount to a violation of article 14 read with article 8. Citing earlier decisions of its own, including Kjeldsen, Carson v United Kingdom 51 EHRR 13, and Clift v United Kingdom, the court said: 89. The court has established in its case law that only differences in treatment based on an identifiable characteristic, or status, are capable of amounting to discrimination within the meaning of article 14. Moreover, in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Article 14 lists specific grounds which constitute status including, inter alia, race, national or social origin and birth. However, the list is illustrative and not exhaustive, as is shown by the words any ground such as and the inclusion in the list of the phrase any other status. The words other status have generally been given a wide meaning and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent. The first of the 2017 decisions is Khamtokhu and Aksenchik v Russia (Applications Nos 60367/08 and 961/11) (Khamtokhu), which concerned applicants who were sentenced to life imprisonment. They complained of discriminatory treatment, in violation of article 14 taken in conjunction with article 5, because they were treated less favourably than other categories of convicted offenders (women, juveniles, and men over 65) who were exempt from life imprisonment. The court said: 61. Article 14 does not prohibit all differences in treatment, but only those differences based on an identifiable, objective or personal characteristic, or status, by which individuals or groups are distinguishable from one another. It lists specific grounds which constitute status including, inter alia, sex, race and property. However, the list set out in article 14 is illustrative and not exhaustive, as is shown by the words any ground such as (in French notamment) and the inclusion in the list of the phrase any other status (in French toute autre situation). The words other status have generally been given a wide meaning, and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Clift, cited above, paras 56 58; Carson v United Kingdom [GC], no 42184/05, paras 61 and 70, ECHR 2010; and Kjeldsen, Busk Madsen and Pedersen v Denmark, 7 December 1976, para 56, Series A no 23). There was no need, in Khamtokhu to labour over the question of status, as sex is explicitly mentioned in article 14 as a prohibited ground of discrimination, and the court had accepted in an earlier case that age was a concept also covered by the provision. Article 14, taken with article 5, was accordingly applicable. The applicants were in an analogous situation to other offenders convicted of the same or comparable offences, but their complaint failed because the governments sentencing provisions had a legitimate aim and were proportionate. The second 2017 case is Minter v United Kingdom (2017) 65 EHRR SE6 (Minter). Mr Minter was sentenced to an extended sentence for sexual offences. This meant that he was subject to an extended licence period, and thus to a requirement to notify the police of various personal details indefinitely. Mr Minter complained that the application of the indefinite notification period was in breach of article 8 of the ECHR, either read alone or in conjunction with article 14. Although the notification requirement was an interference with his article 8 rights, it was not disproportionate, and the article 8 claim was manifestly ill founded. However, Mr Minter argued that, by virtue of a change in the law, if he had been sentenced later, he would not have received an extended sentence and would not therefore have been subject to the indefinite notification period at all. That, he submitted, amounted to an unjustified difference in treatment based on other status, and to a violation of article 14 taken with article 8. The court rejected the article 14 complaint as manifestly ill founded too. On the facts, it considered Mr Minters assertion that no indefinite notification requirement would have been imposed if he had been sentenced later to be entirely speculative. But even had there not been that obstacle, his claim would have failed. The court began its assessment of the issue in this way: 66. In order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see Khamtokhu and Aksenchik v Russia (60367/08 and 961/11) 24 January 2017 at para 64). As established in the courts case law, only differences in treatment based on an identifiable characteristic, or status, are capable of amounting to discrimination within the meaning of article 14 (see Khamtokhu and Aksenchik (60367/08 and 961/11) 24 January 2017 at para 61). Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, 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 (Khamtokhu and Aksenchik (60367/08 and 961/11) 24 January 2017 at para 64). The court was not persuaded by the applicants reliance on the Clift v United Kingdom decision. In a passage which exhibits, to my mind, the tendency (also seen elsewhere in the Strasbourg jurisprudence on article 14) for consideration of the issue of whether a difference in treatment is on the ground of other status to convert, almost seamlessly, into consideration of whether the applicant is in an analogous situation and/or whether the difference is justified, it distinguished the situation in Clift v United Kingdom: 68. Furthermore, the court does not consider that Clift (7205/07) 13 July 2010 supports the applicants claim. It is true that in Clift the court accepted that the different treatment of different categories of prisoners depending on the sentences imposed was based on other status within the meaning of article 14 of the Convention. However, in the present case the different treatment complained of did not concern the length of the applicants sentence but rather the different sentencing regime applied to him as a consequence of a new legislation. As such, his article 14 complaint is indistinguishable from that which was declared inadmissible as manifestly ill founded in Massey. Although Massey (14399/02) 8 April 2003 pre dated Clift (7205/07) 13 July 2010, in Zammit and Attard Cassar (1046/12) 30 July 2015, a case which post dated Clift by some four and a half years, that no discrimination was disclosed by the selection of a particular date for the commencement of a new legislative regime. the court reaffirmed Although the approach taken in the three cases can properly be described as consistent, in my view, it is interesting to note that Biao and Minter refer to identifiable characteristic, or status, whereas Khamtokhu is slightly more expansive, speaking of identifiable, objective or personal characteristic, or status, by which individuals or groups are distinguishable from one another. Biao and Khamtokhu both stress that the list in article 14 is illustrative and not exhaustive, and that the words other status have generally been given a wide meaning and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent. The domestic case law on article 14 and status Article 14 has regularly been the subject of consideration in the Supreme Court and, before that, in the House of Lords. The House of Lords decisions pre date the ECtHRs decision in Clift v United Kingdom, of course, but are important in understanding how the approach to article 14 has evolved. After a review of them, I summarise, at para 56 below, the position that the domestic case law seems to have reached on other status by the time of the ECtHRs Clift decision. R (S) v Chief Constable of the South Yorkshire Police (2004, above) was the case concerning fingerprints and DNA samples. Lord Steyn, with whom I do not think there was significant disagreement on this point, worked on the basis that the proscribed grounds in article 14 were not unlimited and was guided by Kjeldsen. Perhaps foreshadowing the ejusdem generis argument advanced in Clift, in summarising his conclusion that the requisite status had not been established, he observed (para 51) that the difference in treatment is not analogous to any of the expressly proscribed grounds. R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29; [2005] 1 WLR 1681 concerned widowers who claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR. The decision is of interest for Lord Hoffmanns treatment of the question of whether article 14 was infringed. He considered whether being a person who has started legal proceedings qualified as a status, and was not persuaded that it did. In explaining why, at para 65, he appeared to adopt and develop Lord Steyns analogous approach which he described as being that article 14 required discrimination to be by reference to some status analogous with those expressly mentioned, such as sex, race or colour. R (Carson) v Secretary of State for Work and Pensions (above), is an often cited House of Lords decision. Each of the two claimants complained of a violation of their rights under article 14, read with article 1 of the First Protocol to the ECHR. One claimant complained of discrimination on the basis of country of residence, and the other on the basis of age. The first was entitled to a retirement pension, but, because she was resident in South Africa, was precluded from receiving the normal annual cost of living increase. The second received state benefits at a lower rate because she was under 25. Their claims failed because the differential treatment of them was rationally justified. However, they did manage to establish that they came within the scope of other status in article 14. In the case of the claimant who was resident in South Africa, this is of note because she succeeded in establishing that this was a personal characteristic, notwithstanding that it was in principle a matter of choice and was not immutable. This result was reached through the application of what Lord Walker of Gestingthorpe described as the Kjeldsen test of looking for a personal characteristic (para 54). In AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434, Baroness Hale described Carson as unusual, commenting (para 26) that: In general, the list concentrates on personal characteristics which the complainant did not choose and either cannot or should not be expected to change. The Carson case is therefore unusual, because it concerned discrimination on the ground of habitual residence, which is a matter of personal choice and can be changed. But the ECtHR subsequently confirmed, in Carson v the United Kingdom (2008) 48 EHRR 41, that ordinary residence should be seen as an aspect of personal status. R (RJM) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2009] AC 311 might also be considered to take a more expansive view of status. It merits rather more detailed review because there was considerable discussion of the subject. The claimants disability premium in his income support, which he received by reason of his incapacity for work through mental health problems, was stopped because he had become homeless. He claimed that the premium was a possession within article 1 of the First Protocol to the ECHR and that he had been discriminated against contrary to article 14. One of the questions for determination was whether homelessness fell within other status for the purposes of article 14. There was an argument as to whether it was necessary to show that it was a personal characteristic at all, and, if so, whether it was properly so described. It was held that it was indeed a personal characteristic and within the article, even if adopted by choice, although the claim failed because the regulation in question was justified. Lord Neuberger of Abbotsbury discussed whether other status must necessarily be based upon a personal characteristic. He said (para 36) that there was no doubt that the House of Lords had consistently proceeded upon the assumption that that was required, basing that approach primarily on the Kjeldsen case. There was also, in his view, a strong case for saying that as a matter of language, article 14 (or at least the English version of it) appears to envisage precisely this, given the specific grounds on which unjustifiable discrimination is prohibited (para 37). No case to which the court had been taken supported an argument to the contrary. However, before ultimately adopting that approach himself, Lord Neuberger did acknowledge that there may be a case for another interpretation, saying: 39. None the less, it is fair to refer to the fact that the French version of article 14 (which has equal status with the English version see article 59) ends with the words ou toute autre situation, which may suggest a rather wider scope than or other status. Further, while the ECtHR judgments relied on by RJM do not establish that no consideration need be given in an article 14 case to the issue of whether the discrimination is by reference to a status which can be characterised as a personal characteristic, some of those judgments could be read as suggesting a rather less structured approach than that which has been adopted by this House. In particular, in an allegation of article 14 infringement, the ECtHR may not always consider whether the alleged discrimination is on the ground of other status as an entirely free standing question: it sometimes appears to approach the overall allegation of infringement on a more holistic or broad brush basis: see, for instance, the reasoning in Kjeldsen 1 EHRR 711, para 56, and Kafkaris 12 February 2008, paras 163 165, as well as Stubbings v United Kingdom (1996) 23 EHRR 213, paras 70 73. In deciding that homelessness could fairly be described as a personal characteristic, Lord Neuberger proceeded upon the basis that a generous meaning should be given to or other status, as would be expected in enforcing anti discrimination legislation in a democratic state (para 42), and that other status should not be too closely limited by the grounds which are specifically prohibited by the article (para 43). He said (para 45) that while reformulations are dangerous, he considered that the concept of personal characteristics generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him, and that, on that approach, homelessness was an other status. He considered (para 46) that this characterisation also fitted with Lord Binghams view in Clift that the personal characteristic could not be defined by the differential treatment of which the person complains. He considered (para 47) that the fact that homelessness was a voluntary choice (if it was) was not of much, if any, significance in determining whether it was a status for article 14; some of the specified grounds in the article were matters of choice too. Nor was it telling that homelessness was not a legal status. Lord Walkers observations about personal characteristics are also instructive: 5. The other point on which I would comment is the expression personal characteristics used by the European Court of Human Rights in Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, and repeated in some later cases. Personal characteristics is not a precise expression and to my mind a binary approach to its meaning is unhelpful. Personal characteristics are more like a series of concentric circles. The most personal characteristics are those which are innate, largely immutable, and closely connected with an individuals personality: gender, sexual orientation, pigmentation of skin, hair and eyes, congenital disabilities. Nationality, language, religion and politics may be almost innate (depending on a persons family circumstances at birth) or may be acquired (though some religions do not countenance either apostates or converts); but all are regarded as important to the development of an individuals personality (they reflect, it might be said, important values protected by articles 8, 9 and 10 of the Convention). Other acquired characteristics are further out in the concentric circles; they are more concerned with what people do, or with what happens to them, than with who they are; but they may still come within article 14 (Lord Neuberger instances military status, residence or domicile, and past employment in the KGB). Like him, I would include homelessness as falling within that range, whether or not it is regarded as a matter of choice (it is often the culmination of a series of misfortunes that overwhelm an individual so that he or she can no longer cope). The more peripheral or debateable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify. There is an illuminating discussion of (contrasting Strasbourg jurisprudence with the American approach to the Fourteenth Amendment) in the speech of Baroness Hale of Richmond in AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434, paras 20 35. these points It looks from this passage as if Lord Walker was perhaps slightly more ready than Lord Neuberger to accept that what someone was doing, or what was being done to him, could be a personal characteristic, although observing that the more peripheral or debateable the characteristic, the easier it would be to justify differential treatment. Reviewing these decisions, together with R (Clift), I think it can be said (although acknowledging the danger of over simplification) that prior to the decision in Clift v United Kingdom in 2010, the House of Lords had adopted the following position on other status. The possible grounds for discrimination under article 14 were not i) unlimited but a generous meaning ought to be given to other status; ii) The Kjeldsen test of looking for a personal characteristic by which persons or groups of persons were distinguishable from each other was to be applied; iii) Personal characteristics need not be innate, and the fact that a characteristic was a matter of personal choice did not rule it out as a possible other status; iv) There was support for the view that the personal characteristic could not be defined by the differential treatment of which the person complained; v) There was a hint of a requirement that to qualify the characteristic needed to be analogous to those listed in article 14, but it was not consistent (see, for example, Lord Neubergers comment at para 43 of R (RJM)) and it was not really borne out by the substance of the decisions; vi) There was some support for the idea that if the real reason for differential treatment was what someone had done, rather than who or what he was, that would not be a personal characteristic, but it was not universal; vii) The more personal the characteristic in question, the more closely connected with the individuals personality, the more difficult it would be to justify discrimination, with justification becoming increasingly less difficult as the characteristic became more peripheral. Following the decision of the ECtHR in Clift v United Kingdom, there has been further consideration, in the Supreme Court, of the issue of status in article 14. The issue of how R (Clift) should be viewed in the light of the ECtHRs different view has not been directly confronted, although the court made some comment on the ECtHR decision in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66; [2015] AC 1344. Apart from that case, of the cases singled out for mention below, it could be said that Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; [2015] 1 WLR 3250 is the one which deals most fully with the question of status. In R (Kaiyam) v Secretary of State for Justice, the issue was what duty the Secretary of State had to provide prisoners serving indeterminate sentences with opportunities for rehabilitation in order to facilitate their release. As part of his claim, one of the appellants, Mr Haney, invoked article 14, claiming that he had been discriminated against by the prison authorities in that they prioritised the movement to open prisons of prisoners whose tariff periods had already expired, whereas his had not. The Supreme Court had to decide whether it should recognise the difference between those whose tariff periods had and had not expired as a difference of status for the purposes of article 14. At para 52, Lord Mance and Lord Hughes, with whom there was unanimous agreement, noted the decision of the House of Lords in R (Clift), and the different view taken by the ECtHR in that case. They observed: 53. In the light of the European courts decision, we see some force in the submission that the difference between pre and post tariff prisoners should now be taken to represent a relevant difference in status. But they did not need to determine the question of Mr Haneys status finally because the difference in treatment was clearly justified. Para 52 suggests that they might have felt a degree of caution about Clift v United Kingdom (see para 26 above for the passage from para 60 of Clift v United Kingdom to which reference is made): 52. The question of law is whether the Supreme Court should recognise the difference between those whose tariff periods had and had not expired as a difference of status for the purposes of article 14 of the Convention. The House in R (Clift) v Secretary of State of the Home Department [2007] 1 AC 484 was, in the absence of clear Strasbourg authority, not prepared to accept the difference between prisoners serving determinate sentences over 15 years and life prisoners or prisoners serving determinate sentences of less than 15 years as a difference in status. The European court in Clift v United Kingdom (Application No 7205/07) given 13 July 2010 took a different view, and expressed itself at one point (at the end of para 60) in terms which might, literally read, eliminate any consideration of status. Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; [2015] 1 WLR 3250 concerned a child with disabilities whose parents received disability living allowance until he had been an in patient in a National Health Service hospital for more than 84 days. He appealed against the suspension of the benefit on the ground that it was in breach of his right not to be discriminated against under article 14 read with article 1 of the First Protocol to the ECHR. One of the arguments in the Supreme Court was as to whether, if there was discrimination in the treatment of him, it was on the ground of other status. It was held that this ground was applicable either by virtue of his status as a severely disabled child in need of lengthy in patient hospital treatment (para 23), or by virtue of his status as a child hospitalised free of charge in a NHS hospital for a period longer than 84 days (para 60). At para 21, Lord Wilson said that the prohibited grounds in article 14 extend well beyond innate characteristics, as demonstrated by R (RJM) v Secretary of State for Work and Pensions [2009] AC 311. Looking at the approach of the ECtHR in Clift, Lord Wilson considered it clear that, if the alleged discrimination falls within the scope of a Convention right, the Court of Human Rights is reluctant to conclude that nevertheless the applicant has no relevant status (para 22). In R (Tigere) v Secretary of State for Business, Innovation and Skills (Just for Kids Law intervening) [2015] 1 WLR 3820, immigration status was recognised as an other status within article 14, (consistently with the decision of the ECtHR in Bah v United Kingdom (2011) 54 EHRR 773), but as the point was conceded, there was no discussion about it in the judgments. R v Docherty (Shaun) [2016] UKSC 62; [2017] 1 WLR 181 concerned a prisoner who was sentenced on 20 December 2012 to imprisonment for public protection for offences to which he had pleaded guilty in November 2012. Imprisonment for public protection had been abolished prior to him being sentenced, but not for those convicted before 3 December 2012. Amongst other things, he claimed that the differentiation between him and a person convicted of an identical offence on 4 December 2012 was unlawful under article 14. At para 63, Lord Hughes dealt with the question of status and, as will be seen, returned to the idea that it will not be possible to bring oneself within article 14 unless the proposed status exists independently of the treatment about which complaint is made: The appellant submits that this discriminates objectionably against him on grounds of other status, namely either (i) his status as a convicted person prior to 3 December or (ii) his status as a prisoner who is subject to an indeterminate sentence. Assuming for the sake of argument that status as a prisoner subject to a particular regime can in some circumstances amount to sufficient status to bring article 14 into question (Clift v United Kingdom (Application No 7205/07) The Times, 21 July 2005), it cannot do so if the suggested status is defined entirely by the alleged discrimination; that was not the case in Clift. For that reason, the second suggested status cannot suffice. As to the first, even if it be assumed in the appellants favour that the mere date of conviction can amount to a sufficient status, which is doubtful, the differential in treatment is clearly justified. All changes in sentencing law have to start somewhere. It will inevitably be possible in every case of such a change to find a difference in treatment as between a defendant sentenced on the day before the change is effective and a defendant sentenced on the day after it. The difference of treatment is inherent in the change in the law. If it were to be objectionable discrimination, it would be impossible to change the law. There are any number of points which may be taken as triggering the change of regime. The point of conviction is clearly one, and the point of sentence is another. Neither is, by itself, irrational or unjustified. Returning to the list of propositions derived from the House of Lords decisions which is to be found at para 56 above, it seems to me that the subsequent authorities in the Supreme Court could be said to have continued to proceed upon the basis of propositions (i) to (iii), which have also continued to be reflected in the jurisprudence of the ECtHR. Proposition (iv) lives on, in R v Docherty, but perhaps needs to be considered further, in the light of its rejection in Clift v United Kingdom (see further, below). The analogous point, which features at proposition (v), is reminiscent of the ejiusdem generis argument advanced in Clift v United Kingdom, but not addressed head on by the ECtHR. That courts answer to the argument was, it will be recalled, to give quite wide ranging examples of situations in which a violation of article 14 had been found. With the continued expansion of the range of cases in which other status has been found, in domestic and Strasbourg decisions, the search for analogy with the grounds expressly set out in article 14 might be thought to be becoming both more difficult and less profitable. However, that should not, of course, undermine the assistance that can be gained from reference to the listed grounds, taken with examples of other status derived from the case law. It may not be helpful to pursue proposition (vi) abstract; whether it assists will depend upon the facts of a particular case. Proposition (vii) comes into play when considering whether differential treatment is justified, rather than in considering the other status question, and need not be further considered at this stage. Submissions in relation to status Mr Southey QC and Mr Bunting for the appellant submit that the decision of the House of Lords in Clift can no longer be considered a reliable guide to the meaning of other status in article 14. The words should be given a generous meaning, they submit. They invite attention to the range of situations which have been held, either by the ECtHR or by the domestic courts, to be within the category. Legally acquired statuses have been accepted as sufficient, as demonstrated, for example, by Larkos v Cyprus and Pine Valley Developments Ltd v Ireland, Bah v United Kingdom (all above) and Krajisnik v United Kingdom (2012) 56 EHRR SE7 (status as a prisoner convicted by the International Criminal Tribunal for former Yugoslavia). They also invite attention to the fact that homelessness has been held to be covered, even if it is a matter of choice, (R (RJM) v Secretary of State for Work and Pensions above), and to the status recognised in Mathieson v Secretary of State Work & Pensions (above). And, of course, they rely on the ECtHRs decision in Clift itself. It is submitted that there has been nothing in the decisions of the Supreme Court post dating the ECtHRs decision in Clift (particularly R (Kaiyam) v Secretary of State for Justice, R v Docherty, and Mathieson) which has undermined the authority of that judgment, and the approach which is there set out should be followed. Thus, life sentences, extended sentences and determinate sentences can all be considered to give rise to other status. For the Secretary of State, Sir James Eadie QC, Ms Davidson and Mr Pobjoy recognise that the court is bound to take into account the ECtHRs decision in Clift and to consider whether to depart from the House of Lords decision in that case. However, this should not, in their submission, lead to the conclusion that Mr Stott can lay claim to other status. They invite the court to consider the scope of Clift against the background of the other cases in which the other status category has been considered by the ECtHR, the House of Lords and the Supreme Court. Whilst this collection of authority establishes that a generous meaning should be given to the words, it also establishes that other status is not a catch all category, see most recently para 61 of Khamtokhu. The central question, so the Secretary of State submits, is whether the basis or reason for the differential treatment is a personal characteristic by which persons or groups of persons are distinguishable from each other. In the Secretary of States submission, article 14 protects personal characteristics which are analogous to those expressly mentioned in the article, see para 65 of R (Hooper) v Secretary of State for Work and Pensions and para 51 of R (S) v Chief Constable of the South Yorkshire Police. And, it is said, although the concept of a personal characteristic is not a precise one, and is not limited to something innate or inherent, it will typically be more concerned with who a person is, than with what he or she does, see paras 5 and 45 of RJM. Furthermore, the personal characteristic must be independent of the treatment about which complaint is made (para 28 and 45 of Clift in the House of Lords, and para 63 of R v Docherty). It is further submitted, on behalf of the Secretary of State, that Clift is distinguishable from the present case. The classification of Mr Clift was based upon the length of his sentence, not the nature or gravity of his offence. That set his case apart from cases such as Gerger v Turkey and Budak v Turkey. Mr Stotts case is different, it is said, because he is not relying on the length of his sentence but on the fact that he is subject to a particular sentencing regime in light of the gravity of his crime and the risk he poses to the community. It is said that the importance of this distinction was affirmed in Minter. Furthermore, unlike with Mr Clift, the treatment of which Mr Stott complains does not exist independently of the characteristic on which he bases his complaint of discrimination, because the release conditions about which he complains flow from his status as a prisoner serving an extended determinate sentence. Mr Clift had already been sentenced, and had thus already acquired his status, before the order was made which led to the different treatment of his group for the purposes of release. Furthermore, the Secretary of State submits that there is no authority for the proposition that any form of sentencing regime constitutes an other status for the purposes of article 14 and says that the implication of such a finding would be that every convicted prisoner would automatically fall within the scope of article 14, and authority establishes that that is not the case. Conclusions in relation to status The different view taken by the ECtHR in Clift v United Kingdom has to be taken into account when considering whether R (Clift) should continue to influence the approach to article 14 status in cases such as the present. For my part, I would now depart from the determination, in R (Clift), that different treatment on the basis that a prisoner was serving imprisonment of 15 years or more could not be said to be on the ground of other status. I am influenced by the ECtHRs reasoned decision to the contrary, notwithstanding that it was not a decision of the Grand Chamber, but of a section of the court. I am also influenced by the hesitation apparent in the speeches of the House of Lords in R (Clift), which disclose the constraint that was felt in the absence of any recognition by the ECtHR of a status such as that for which Mr Clift contended. Although one can only speculate as to how the decision would have gone if the ECtHR had already led the way, it is clear that the House could see the force of arguments advanced in Mr Clifts favour. If R (Clift) is left to one side, at least as to its result, that does not mean that the question of how to approach other status is free of domestic authority. In considering the decisions of the House of Lords which pre date Clift v United Kingdom, it is necessary to keep in mind the ways in which the ECtHR ultimately differed from the House, which I have attempted to set out, commencing at para 33 above. The Supreme Court authorities can be taken to have been decided with Clift v United Kingdom in mind. Perhaps the clearest difference between R (Clift) and Clift v United Kingdom was in relation to whether the treatment of which the applicant complains must exist independently of the other status. Counsel for the Secretary of State continue to rely upon this as part of their argument, and they are correct to point out that it features as part of Lord Hughes analysis in R v Docherty. The first difficulty about the independent existence condition is the uncompromising rejection of it by the ECtHR, which went on to say that, on the contrary, the matter had to be assessed taking into consideration all the circumstances of the case and bearing in mind that the aim of the Convention was to guarantee practical and effective rights. It cited Paulk in support of its stance. The applicant in Paulk was a man who, in 1970, was found by a court to be the father of a girl, paternity then being disproved by a DNA test in 2004. He wanted the finding of paternity overturned, but, unlike fathers whose paternity had been established otherwise than through a court, and mothers, he had no means to achieve this under domestic law. He complained of various breaches of the ECHR, including that he had been discriminated against in the enjoyment of his article 8 and article 6 rights. There was found to be a violation of article 14 taken with article 8. It seems there was no dispute as to the applicability of article 14 (para 51), the dispute having centred on whether the various categories of people were in analogous situations, and whether the difference was justified. Nonetheless, in light of the specific endorsement, in Clift v United Kingdom, of Paulk on the question of status, it is clear that the ECtHR saw the case as an example of a characteristic which did not exist independently of the treatment complained of and yet approved of its categorisation as an other status. The second difficulty with the independent existence condition is that it made its appearance in R (Clift) unsupported by much, if anything, by way of explanation or supportive authority. Lord Hope might have been building upon his observation, at para 45, that the specific grounds all existed independently of the treatment of which complaint was made. However, whilst some of the grounds named in article 14 clearly will always exist independently of the complaint, I am not at all sure that the same can be said of all of them. Property might be a ground which would not always exist independently, and I think there are probably other examples. The third difficulty is that the independent existence condition is not at all easy to grasp. Mr Clift satisfied it, because he relied upon being a prisoner serving a determinate term of 15 years or more, and his complaint was about the fact that, by virtue of a subsequent Order, he required the Secretary of States approval for his release, rather than automatically being released if the Parole Board recommended it. The homeless person in RJM, who complained about losing his benefits, also satisfied it. However, it was not satisfied, according to Docherty, where the prisoner was relying upon being a prisoner subject to an indeterminate sentence, and complained that he had been discriminated against by virtue of the fact that he could not have been given that sentence had he been convicted after 3 December 2012. Even with these practical examples, it is a challenge to make general sense of the concept, and things do not improve when one takes into account the width of the approach taken in Strasbourg to the ambit of article 14. In all these circumstances, I would be cautious about spending too much time on an analysis of whether the proposed status has an independent existence, as opposed to considering the situation as a whole, as encouraged by the ECtHR in Clift v United Kingdom. In any event, it can properly be said that the status upon which Mr Stott relies exists independently of his complaint, which is about the provisions concerning his early release. By way of example, his extended determinate term of imprisonment does not only dictate the point at which he is eligible for release on parole; it dictates the period he will spend in prison if parole is not granted, and it brings with it also a licence extension. A second respect in which the ECtHR differed from the House of Lords was as to whether Mr Clifts complaint was based upon the gravity of his offence; it said not. The Secretary of State argues that Mr Stotts case is not the same as Mr Clifts, as Mr Stotts complaint is not based on length of sentence, as in Mr Clifts case, but on his particular sentencing regime, which is dictated by the seriousness of what he did and the risk he poses. I am not persuaded by the Secretary of States attempt to liken the case to Gerger and Budak, rather than Clift v United Kingdom, and to exclude the extended determinate term prisoner on the basis that the differential treatment in his case is because of what he has done and the risk he poses. The ECtHR dealt with the Gerger cases in para 61 of Clift v United Kingdom, and explained them as all being concerned with special provisions for those accused or convicted of terrorism offences. They also stressed that any exception to the protection offered by article 14 should be narrowly construed. True it is that an extended determinate sentence will only be imposed where there is a particular combination of gravity of offence and risk, but within the category of those serving extended determinate sentences, there will be various types of offence of varying seriousness. Putting it another way, what Mr Stott did has led to him receiving an extended determinate sentence, but, once imposed, that extended determinate sentence exists independently of what he did. If a life sentence is capable of constituting an acquired personal status, as Lord Bingham was understandably disposed to think it was (para 28 of R (Clift)), and a determinate term of 15 years is also (Clift v United Kingdom), it is difficult to see why an extended determinate sentence should be viewed differently. I do not think that reliance on Minter assists the Secretary of State in relation to this issue. The complaint in Minter related to a new legislative regime being introduced, which did not benefit the applicant. The selection of a particular date for the commencement of a new legislative regime did not give rise to discrimination when those who were covered by it were treated differently from those who were subject to the old regime. Given the conflating of the various issues of status, analogous situation and justification, in the passage in Minter to which reference is made, it is difficult to be sure whether, in fact, the ECtHR was rejecting the other status argument or not, but in any event, the present case does not involve the commencement of a new sentencing regime. So, whilst the attributes of the sentencing regime to which Mr Stott is subject will be of central relevance to Issue 2 in due course, for the purposes of determining status, in my view the distinction that the Secretary of State seeks to make between Mr Clift as a prisoner serving 15 years or more and Mr Stott as a prisoner serving an extended determinate term is not a real one. It follows that the decision of the ECtHR in Clift v United Kingdom is potentially influential in evaluating the present case. As to the argument that the characteristic needs to be analogous to those listed in article 14, this is difficult to pursue too far in the light of the ECtHRs acceptance that a prison sentence of a particular length can be within the article. I have no difficulty in accepting that when considering an as yet unconsidered characteristic, a court will have in mind the nature of the grounds it was thought right to list specifically, but the case law that the court cited in Clift v United Kingdom demonstrates that a strict ejusdem generis interpretation would be unduly restrictive. Bearing in mind that, although not open ended, the grounds within article 14 are to be given a generous meaning, bearing in mind the warning of the ECtHR that there is a need for careful scrutiny of differential early release schemes, lest they run counter to the very purpose of article 5, and considering all of the case law, I would conclude that the difference in the treatment of extended determinate sentence prisoners in relation to early release is a difference within the scope of article 14, being on the ground of other status. Issue 2: Analogous situation and justification In order to address the issues concerning the third and fourth elements of the article 14 claim (see para 8 above), it is necessary to understand the sentencing regime to which Mr Stott is subject, and also the other sentences with which he invites comparison. Some of the fine detail of the sentencing regimes is irrelevant for present purposes and has been omitted. Unless otherwise specified, in what follows, references to statute are to the 2003 Act. The sentencing framework: general Section 142(1) sets out the purposes of sentencing adult offenders, applicable fairly generally except in relation to life sentences. It provides that a sentencing court must have regard to: (a) (b) deterrence), (c) (d) (e) affected by their offences. the reform and rehabilitation of offenders, the protection of the public, and the making of reparation by offenders to persons the punishment of offenders, the reduction of crime (including its reduction by The sentencing framework: EDS The EDS was introduced by the Legal Aid Sentencing and Punishment of Offenders Act 2012, as one of the sentences for dangerous offenders replacing the sentence of Imprisonment for Public Protection, and is to be found in section 226A, which was added to the 2003 Act. Section 226A provides (in the version relevant to this case): 226A Extended sentence for certain violent or sexual offences: persons 18 or over (1) This section applies where (a) a person aged 18 or over is convicted of a specified offence (whether the offence was committed before or after this section comes into force), (b) the court considers 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, the court is not required by section 224A or (c) 225(2) to impose a sentence of imprisonment for life, and (d) condition A or B is met. (2) Condition A is that, at the time the offence was committed, the offender had been convicted of an offence listed in Schedule 15B. (3) Condition B is that, if the court were to impose an extended sentence of imprisonment, the term that it would specify as the appropriate custodial term would be at least four years. (4) The court may impose an extended sentence of imprisonment on the offender. (5) An extended sentence of imprisonment is a sentence of imprisonment the term of which is equal to the aggregate of the appropriate custodial term, and a further period (the extension period) for (a) (b) which the offender is to be subject to a licence. (6) The appropriate custodial term is the term of imprisonment that would (apart from this section) be imposed in compliance with section 153(2). (7) The extension period must be a period of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by the offender of further specified offences, subject to subsections (8) and (9). (8) The extension period must not exceed five years in the case of a specified violent eight years in the case of a specified sexual (a) offence, and (b) offence. (9) The term of an extended sentence of imprisonment imposed under this section in respect of an offence must not exceed the term that, at the time the offence was committed, was the maximum term permitted for the offence. (10) In subsections (1)(a) and (8), references to a specified offence, a specified violent offence and a specified sexual offence include an offence that (a) was abolished before 4 April 2005, and (b) would have constituted such an offence if committed on the day on which the offender was convicted of the offence. (11) Where the offence mentioned in subsection (1)(a) was committed before 4 April 2005 subsection (1)(c) has effect as if the words by (a) section 224A or 225(2) were omitted, and (b) compliance with section 153(2) were omitted. (12) [offenders aged at least 18 but under 21]. subsection (6) has effect as if the words in From this, it can be seen that an EDS can only be imposed if the four pre conditions set out in section 226A(1) are satisfied. The offender must be 18 or over and must have been convicted of a specified offence (section 226A(1)(a)); a specified offence is defined by section 224 as a specified violent offence (specified in Part 1 of Schedule 15 to the Act) or a specified sexual offence (specified in Part 2 of that Schedule). Secondly, the court must consider 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 (section 226(1)(b)). Thirdly, a life sentence must not be required by section 224A or section 225(2) (section 226A(1)(c)). Fourthly, either Condition A, or Condition B, must be met (section 226A(1)(d)). Condition A (section 226A(2)) is that at the time the index offence was committed, the person had been convicted of an offence specified in Schedule 15B (offences generally of a violent and sexual nature). Condition B (section 226A(3)) relates to the term that the court would specify as the appropriate custodial term if it did impose an extended sentence. By virtue of section 226A(6), the appropriate custodial term is the term of imprisonment that would, apart from section 226A, be imposed in compliance with section 153(2). Section 153(2) governs custodial sentences where there is discretion as to the length of sentence, setting out that, as a general rule, the sentence must be for the shortest term commensurate with the seriousness of the offence or combination of offences. Condition B will only apply if the appropriate custodial term that the court would impose would be at least four years. The nature of an extended sentence appears from section 226A(5). It is a sentence of imprisonment with a term equal to the aggregate of the appropriate custodial term and a further period, called the extension period, during which the offender is on licence. Subject to maximum periods set out in section 226A(8), the length of the extension period has to be fixed according to what the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the offender committing further specified offences. However, by section 226A(9), the term of the extended sentence (appropriate custodial term and extension period) must not exceed the maximum term for the offence (section 226A(9)). Release on licence of a prisoner serving an EDS is governed by section 246A. In most cases, the section requires that the Secretary of State refer the case to the Parole Board as soon as the prisoner has served the requisite custodial period, which is two thirds of the appropriate custodial term. The Parole Board can only direct the release of the prisoner if it is satisfied that it is no longer necessary for the protection of the public that he should be confined. If the Parole Board does not direct the release of the prisoner, he must be released on licence at the expiry of the appropriate custodial term. The sentencing framework: standard determinate sentences A standard determinate custodial sentence will be for the shortest term commensurate with the seriousness of the offence or combination of offences (section 153(2)). There is no extension period as there is with an EDS. The majority of standard determinate sentence prisoners are entitled to be released on licence automatically, once they have served the requisite custodial period, which is one half of their sentence (section 244). Home Detention Curfew (sections 246 and 250(5)) is available as a means of releasing a prisoner before the half way point in his sentence, on a licence coupled with a curfew condition. Whether this route is taken depends upon the Secretary of States discretion, which can be exercised at any time during the 135 days ending with the day on which the prisoner will have served the requisite custodial period. Amongst the prisoners not eligible are EDS prisoners and those serving a sentence imposed under section 236A, as to which see below. Foreign national prisoners can also be removed from custody early for the purposes of deportation (section 260). Sentencing framework: special custodial sentences for certain offenders of particular concern Section 236A (as inserted by Schedule 1 to the Criminal Justice and Courts Act 2015) provides for special custodial sentences to be passed in relation to certain offenders of particular concern (an SOPC sentence). The conditions for the imposition of such a sentence are that the offender was over 18 when the offence was committed, that he has been convicted of an offence listed in Schedule 18A to the 2003 Act (as also so inserted), and that the court does not impose a life sentence or EDS. Schedule 18A lists offences under the headings Terrorism offences, and Sexual offences (rape of a child under 13, and assault of a child under 13 by penetration). An SOPC sentence has two elements: the appropriate custodial term (the term that, in the opinion of the court, ensures that the sentence is appropriate, see section 236A(3)) and a further period of one year for which the offender is subject to a licence. The aggregate of these two elements must not exceed the term that, at the time the offence was committed, was the maximum term permitted for the offence. It is worth noting that the appropriate custodial term for the SOPC provisions differs from the appropriate custodial term for the EDS provisions. The focus is on the overall sentence, the aggregate of the two elements, which has to be commensurate with the seriousness of the offence. In contrast, an EDS comprises a custodial term commensurate with the offence plus a specified licence period, and can truly be described as an extended term. Release arrangements for an SOPC prisoner are to be found in section 244A (as also so inserted). The Secretary of State must refer his case to the Parole Board as soon as he has served one half of the appropriate custodial term, and must release him on licence if the Board directs, which it can only do if satisfied that it is not necessary for the protection of the public for the prisoner to be confined. If the Board does not direct release, the prisoner will have to serve the appropriate custodial term before he is released on licence. Sentencing framework: indeterminate sentences A life sentence must be imposed for murder (Murder (Abolition of the Death Penalty) Act 1965); this is referred to as a mandatory life sentence. There are also three other situations in which a life sentence (referred to as a discretionary life sentence) may be imposed, namely (a) life sentences for serious offences (section 225) (b) life sentences for second listed offences (section 224A) and (c) life sentences where the offence carries life as a maximum penalty. It is well understood that, generally, life sentences are sentences of last resort, see for example R v Burinskas (Attorney Generals Reference (No 27 of 2013)) (Practice Note) [2014] EWCA Crim 334; [2014] 1 WLR 4209, para 18. A life sentence must be imposed under section 225, on an offender over 18, if certain conditions are satisfied: i) The offender has been convicted of a serious offence committed after 3 December 2012; a serious offence is defined in section 224 as an offence specified in Schedule 15 to the 2003 Act (certain violent and sexual offences) which is punishable with life imprisonment. ii) 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 the offender of further specified offences. iii) 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 life sentence; section 143 deals with factors to be considered in gauging seriousness, including the offenders culpability and the harm, or potential harm, caused by the offence. In Burinskas, the Court of Appeal explained how the judge should approach the sentencing of offenders who may be considered dangerous, where a sentence under section 225 or one of the allied provisions of the 2003 Act might be required. In relation to section 225, it spelled out (para 22) that consideration of iii) above requires consideration of the seriousness of the offence itself on its own or taken with other offences associated with it, the offenders previous convictions, the level of danger he poses to the public and whether there is a reliable estimate of the length of time that he will remain a danger, and the available alternative sentences. Life sentences for second listed offences are dealt with in section 224A. The (cumulative) criteria for imposing a life sentence under that section are: i) The offender is over 18 and has been convicted of an offence, committed after 3 December 2012, which is listed in Part 1 of Schedule 15B to the 2003 Act; Part 1 includes certain offences of serious violence and of terrorism, certain offences relating to weapons, and certain serious sexual offences. ii) Apart from the section, the court would impose a sentence of imprisonment of ten years or more, disregarding any extension period under section 226A. iii) The previous offence condition is met, that is, at the time the offence was committed, the offender had already been convicted of an offence listed in Schedule 15B and been sentenced to a relevant life sentence or a relevant sentence of imprisonment (the sentences which are relevant being, in essence, sentences of significant length). If the criteria are met, the court is obliged to pass a life sentence unless it is of the opinion that there are particular circumstances, which relate to the offence, to the previous offence, or to the offender, and which would make it unjust to do so in all the circumstances. It is to be noted that, as the Court of Appeal observed at para 8 of Burinskas, there is no requirement under section 224A for the offender to have been found to be dangerous within the meaning of the 2003 Act, although it is likely that in most cases he will be. A life sentence may also be imposed where the offence has a maximum penalty of life imprisonment. Two criteria for the imposition of such a life sentence were identified in Attorney Generals Reference (No 32 of 1996) [1997] 1 Cr App R(S) 261, 264, namely that the offender has been convicted of a very serious offence, and there are good grounds for believing that he may remain a serious danger to the public for a period which cannot be reliably estimated at the date of the sentence. In the case of a mandatory life sentence, unless the seriousness of the offence or offences leads the court to disapply the early release provisions, section 269 requires the judge to determine the minimum custodial term that the offender must serve before he is eligible to apply for release. In setting the minimum custodial term, the court must take account of the seriousness of the offence, and of the effect of the provisions for credit for periods of remand in custody, or on certain types of bail, which would have applied if it had sentenced him to a term of imprisonment. In assessing the seriousness of the offence, regard is to be had to the principles set out in Schedule 21 of the 2003 Act, which set statutory starting points for offences of murder and specify a range of aggravating and mitigating features, and also to any guidelines which are not incompatible with Schedule 21. In the case of discretionary life sentences, section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 (as inserted by section 60 of the Criminal Justice and Court Services Act 2000 and amended by the 2003 Act) requires the court to address the question of early release. There is again provision for the court to disapply the early release provisions in light of the seriousness of the offence or offences. Otherwise, the court is required to specify the part of the sentence which has to be served before the early release provisions apply. The part of the sentence specified shall be such as the court considers appropriate taking into account the seriousness of the offence or offences, provisions for crediting certain periods on remand, and (section 82A(3)(c)) the early release provisions as compared with section 244(1) of the Criminal Justice Act 2003. The Court of Appeal explained, in Burinskas, how section 82A works: 33. The effect of section 82A is to require the sentencing judge to identify the sentence that would have been appropriate had a life sentence not been justified and to reduce that notional sentence to take account of the fact that had a determinate sentence been passed the offender would have been entitled to early release. Normally, section 82A(3)(c) will result in the specified part of the sentence being equivalent to one half of the determinate sentence that would have been imposed had a life sentence not been justified. This is not, however, an invariable rule. As the Court of Appeal said in R v Szczerba [2002] 2 Cr App R(S) 86, whether the specified part is half or two thirds of the notional determinate term, or somewhere between the two, is essentially a matter for the sentencing judges discretion. It gave examples, at para 33, of the sort of exceptional circumstances in which more than half may be appropriate. Section 28 of the Crime (Sentences) Act 1997 governs the release of life prisoners where the court has made a determination of the minimum term that is to be served, whether under section 82A or section 269 of the 2003 Act. Once he has served the minimum term, the prisoner may require the Secretary of State to refer his case to the Parole Board, and the Parole Board directs release if satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The sentencing framework: recall of prisoners There are detailed provisions, commencing at section 244 of the 2003 Act, governing the release of prisoners on licence and the revocation of such a licence. For present purposes, it is sufficient to record the following: i) A determinate sentence prisoner who has been released early on licence (see para 90 above) will be liable, until the end of the determinate sentence, to be recalled to prison to serve the remainder of the sentence. Some prisoners (those the Secretary of State is satisfied will not present a risk of serious harm to members of the public if released) will be eligible for automatic release again within a short, stipulated period, and the Secretary of State has a discretion to release them sooner than that or the Parole Board can so direct. ii) An EDS prisoner who is recalled during the period of his licence, and other recalled determinate sentence prisoners who are not suitable for automatic release, may be released again by the Secretary of State, if the Secretary of State is satisfied that it is not necessary for the protection of the public that the prisoner should remain in prison. If the prisoner makes representations within 28 days of recall, or if not released by the Secretary of State within that period, he must be referred to the Parole Board which can direct immediate release. iii) Where a life sentence prisoner is released, it will be on a licence which, by virtue of section 31 of the Crime (Sentences) Act 1997, will remain in force until his death. He can be recalled to prison by the Secretary of State, whereupon his case will be referred to the Parole Board, which can direct his release. Otherwise, he continues to be detained pursuant to his sentence. Sentencing: the relevance of the early release provisions When determining the custodial sentence in a particular case, the judge is not to take account of the early release provisions, see for example para 44 of R v Round [2009] EWCA Crim 2667; [2010] 2 Cr App R(S) 45. However, the early release provisions are taken into account, in sentencing, in fulfilling the requirement of section 82A(3) of the Powers of Criminal Courts (Sentencing) Act 2000, above, when fixing the minimum term to be served. The Divisional Courts reasoning The focus in the Divisional Court was particularly on the comparison between the EDS being served by Mr Stott, and a life sentence, but the court was conscious that there could also, legitimately, be a comparison between the EDS and other forms of determinate sentence (para 6). It contrasted the early release provisions applicable to an EDS, requiring the prisoner to serve two thirds of the custodial term before becoming eligible for release, with the provisions for SOPC sentences (eligibility after half of the custodial term), and for life sentences excepting mandatory life sentences for murder (eligibility once the minimum term has been served which, save in exceptional circumstances, will be equivalent to half way through the notional determinate sentence). This led to the conclusion (para 30) that, putting mandatory life sentences to one side, save exceptionally, in every other case save for those sentenced to EDS, the custodial term to be served is one half of the nominate determinate term. Thus, the EDS prisoner is treated differently in relation to release on licence as compared with almost all other prisoners serving a custodial sentence (para 34). The Divisional Court was, of course, constrained by R (Clift) to find against Mr Stott on the issue of status, although Sir Brian Leveson, President of the Queens Bench Division made clear his view that it was high time that that decision be revisited. We do, however, have the benefit of the Divisional Courts views as to whether Mr Stott was in an analogous position to other relevant prisoners and whether there was justification for the different treatment of EDS prisoners. The Secretary of State argued in the Divisional Court, as in this court, that an EDS prisoner cannot properly be compared to a life prisoner, because each sentencing regime has different features (para 43). This argument did not find favour with the Divisional Court, which considered the two prisoners to be in analogous situations. It considered it essential to have regard to the principle of sentencing practice that both an EDS and a life sentence involve a period identified for punishment and deterrence and, potentially, further detention (albeit, in the case of an EDS, for a finite time) based on risk to the public (para 44). It continued: Both must accept the period for punishment and then address the issue of risk; what is at issue is the question of eligibility for consideration for release not merely the mechanism whereby issues of release are decided. In the light of this, at para 45, attention was invited to the following comparison between a determinate sentence and an EDS: Take the case of a crime which, applying the relevant guideline, justifies a sentence of 12 years imprisonment. For an offender in respect of whom there is no concern that he is a risk to the public, that will be the determinate term: as the law stands, he will serve six years and then be entitled to be released on licence (from which he can be recalled to prison for breach up to the end of the 12 year term). For another offender, deserving the same sentence but who, perhaps by reason of his mental condition, constitutes a risk to the public, the court might take the view that he requires an extended period on licence. If he was sentenced to an EDS with a custodial term of 12 years (ie the same as the first offender, their crimes being of equal gravity) with a two year extension (for the purposes of extending supervision over him), he would only be eligible for consideration of parole after eight years. The gravity of their crimes is identical and their positions (in so far as punishment and deterrence is concerned) seem, to me at least, to be analogous. The court reinforced this view by reference to an offender given an SOPC, who may have committed precisely the same offences as those committed by an offender sentenced to an EDS, and yet be eligible for release after one half of the determinate term. As for justification (paras 47 to 50), the government had explained that it wished to introduce a tougher determinate sentence, designed to enhance public protection and to maintain public confidence in the sentencing framework, and relied upon the fact that an offender eligible for an EDS had committed a serious offence and had been found to be dangerous. The court was not persuaded that this explanation for the difference in treatment of prisoners addressed what was, in the courts view, the crucial issue of the distinction between the punitive element of any sentence and that part of the sentence designed to cater for risk. The fact that the offender had committed a serious offence did not, in the courts view, provide any rational basis for altering the extent of the punitive element of a sentence, which was, in its view, the result of deferring eligibility for release in the case of an EDS prisoner; other prisoners would also have committed very serious offences, but be eligible at an earlier stage. As for dangerousness, that did not justify the different release provisions because that is to confuse punishment and deterrence with risk. This point is explained at para 49 as follows: Dangerousness under Part 12 of the 2003 Act [the sentencing provisions] is assessed by reference to future risk, and it is only at the point of potential release that the risk will be assessed (based, of course, on the history of the offender, progress in custody and resettlement plans). If relevant risk to the public remains, the offender will remain in prison. If not, it will be appropriate to release him. There is no rational justification for setting a later and arbitrary point for parole eligibility (at which risk is to be assessed) for EDS prisoners, as opposed to life sentence prisoners, or prisoners serving a sentence pursuant to section 244A of the 2003 Act. The requirement that some prisoners apply for parole, whereas others are automatically released at a certain point in their sentence, was justified as it was for the purpose of protecting the public from risk but, in the courts view, the difference in the term to be served for punishment and deterrence is not. Had it not been for the status issue, the court would accordingly have found the provisions incompatible with article 14. The appellants submissions in relation to Issue 2 The argument advanced on behalf of Mr Stott is a simple one, namely: although they are in an analogous situation, different classes of prisoner are treated differently with regard to eligibility for release, and there is no valid justification for this. If he had been given a determinate sentence, Mr Stott would have been entitled to release at the half way point in his sentence, that is after ten and a half years, and, had he been given a life sentence, he would probably also have been eligible for release after ten and a half years. So, Mr Southey suggests, in relation to eligibility for release, Mr Stott would have been in a better position had he been given a life sentence, even though life sentences are reserved for the most serious cases, for offenders who are the highest risk or have the most serious criminal records. Mr Southey invites us, in considering whether the prisoners under consideration are in analogous positions, to put weight upon the decision in Clift v United Kingdom. He also invites us to recognise that people can be in an analogous position even if their situation is not identical, and to concentrate on the similarities between EDS prisoners and other prisoners. In terms of similarities, he emphasises that both EDS prisoners and indeterminate sentence prisoners depend, for their early release, on risk assessment by the Parole Board. Like the Divisional Court, he relies upon what he says is the sentencing principle that the period preceding eligibility for parole is the punitive and deterrent element of a sentence passed, whereas any further time spent in custody is seen as pertaining to the risk to the public posed by the offender (see, for example, R (Foley) v Parole Board for England and Wales [2012] EWHC 2184 (Admin)). In his submission, this is the same for each group of prisoners, and the Secretary of States argument is wrong because it ignores that sentencing principle. Furthermore, he points out that determinate sentence prisoners, EDS prisoners, and those serving an indeterminate sentence all share the same interest, namely in being released from custody. On justification, Mr Southey reminds us that it is the differential treatment that must be justified, not the EDS itself, and in his submission, it has not been. Considerations of relative risk cannot provide the required justification, he says. It can be assumed that the highest risk offenders, and the offenders who have committed the most serious offences, are serving a life sentence, and lower risk prisoners should not be treated less favourably in relation to early release. Risk is addressed through the Parole Board process, an EDS prisoner only being released if the Parole Board is satisfied that continued detention is not necessary for the protection of the public. There is no basis, submits Mr Southey, for concluding that the risk that an EDS prisoner poses at the half way point in his sentence will necessarily be such as to require continued detention, and denying him the opportunity even to apply for release until two thirds of the way through his sentence, when the prisoner serving an indeterminate term can apply at half time. The effect of this is to impose a greater penalty without reason. Further, he says that there is no basis to distinguish between the EDS prisoner and the regular determinate sentence prisoner as both are equally culpable, and the punitive component of their sentence should be the same; differential risk is addressed by the involvement of the Parole Board in the case of the EDS prisoner. The Secretary of States submissions in relation to Issue 2 The Secretary of States case is that an EDS is not analogous either to other types of determinate sentence or to indeterminate sentences. It is submitted that it is in a class by itself, designed to address a particular combination of offending and risk. Although accepting that a life sentence can be viewed as comprising a period of detention justified by punishment and deterrent followed by detention justified solely by public protection, Sir James Eadie does not accept that a similar analysis applies to a determinate sentence. His submission is that the whole of a determinate sentence (and the whole of the custodial term of an EDS) is imposed for the purpose of punishment and deterrence. Further, Sir James submits that there is, in any event, no absolute rule that a prisoner is eligible for release at the half way point of his sentence. Some prisoners have a right to release on licence at the half way stage, but in some cases, the prisoner is entitled to apply for release sooner, and in some cases release requires the Parole Boards direction. In the case of life sentences, a prisoner may not always be eligible to apply to the Parole Board at what would be the half way point in a determinate sentence, because the minimum term of a life sentence can be fixed at more than half of the notional determinate sentence (see Szczerba above). Accordingly, in the Secretary of States submission, each type of sentence has release arrangements which have been tailored to meet the requirements of that particular sentence, justified by reference to the particular characteristics of the offenders on whom the sentence is imposed. The particular arrangements for EDS prisoners flow from the characteristics of that group of prisoners, in contrast to those serving ordinary determinate terms or indeterminate sentences. The Secretary of State draws a distinction between the present case and Clift v United Kingdom and Foley. Those cases were about relevantly similar release processes being applied differently, he says, whereas the complaint here is, in contrast, about the operation of different types of sentence, and whether the factors which justify the imposition of a particular sentence also justify the particular release arrangements that form part of the administration of the sentence. More assistance can be obtained from R (Bristow) v Secretary of State [2013] EWHC 3094 (Admin) (later affirmed in the Court of Appeal [2015] EWCA Civ 1170) and R (Massey) v Secretary of State for Justice [2013] EWHC 1950 (Admin). Sir James emphasises the wide margin of appreciation afforded to states with respect to prisoner and penal policy, although acknowledging that this court will exercise close scrutiny in relation to measures that result in detention. Here, the policy choices made by Parliament, with respect to the release arrangements for an EDS prisoner, are well within its discretion when striking a balance between the interests of public protection and the interests of the individual prisoner. Unlike in Clift v United Kingdom, the differences in treatment are all justified by the risk that EDS prisoners pose in comparison to other prisoners, and the early release provisions achieve the legitimate aim of protecting the public. Discussion I need to start with a consideration of the fundamental difference between the parties in relation to whether a determinate sentence can be said to comprise two separate components, a period for punishment and deterrence, and a further period based on the risk posed by the offender to the public, particularly as this featured significantly in the decision of the Divisional Court. The Secretary of State accepts that it has long been established that life sentences incorporate two such periods, but does not accept that that is so with regard to determinate sentences, relying on a number of decisions of the domestic courts and the ECtHR, which it is said call the two component analysis into question. It will be seen that the observations to which our attention has been invited have tended to be made in the context of determining an issue as to whether article 5(4) of the ECHR requires a review, during the course of a particular sentence, of the lawfulness of detention. In my view, the Secretary of State is correct to differentiate between determinate and indeterminate sentences in this connection. The ECtHR does make a distinction, treating the post tariff phase of an indeterminate sentences as directed at managing risk, whereas the whole of a determinate sentence is viewed as punishment. In R (Black) v Secretary of State for Justice [2009] 1 AC 949, Lord Brown (in the majority) remarked on the distinction, commenting (para 67) that, throughout its case law, the Strasbourg court has consistently appeared to treat determinate sentences quite differently, time and again contrasting them with the indeterminate cases, with article 5(4) being engaged in the determination of the length of post tariff detention in life sentence cases, but not in decisions regarding early or conditional release from a determinate term of imprisonment (para 83). So, in Mansell v United Kingdom (Application No 32072/96, 2 July 1997), Ganusauskas v Lithuania (Application No 47922/99, 7 September 1999), and Brown v United Kingdom (Application No 968/04, 26 October 2004), the ECtHR held article 5 challenges to determinate sentences to be manifestly ill founded, the sentences being justified throughout the prison term as punishment for the offence. A brief look at Mansell will illustrate the approach in the Strasbourg cases. The applicant had been sentenced to a longer custodial sentence than would have been commensurate with the seriousness of the offence, because the court considered it necessary to protect the public from serious harm (section 2 of the Criminal Justice Act 1991). He argued that his sentence consisted of a punitive part and a preventive part, and that he should have been entitled to a proper review of the lawfulness of his continued detention, with an oral hearing, as soon as he had served the period that he would have served under the normal punitive sentence. The ECtHR observed that, in contrast to indeterminate sentences, there was no question of the sentence being imposed because of factors that were susceptible to change with the passage of time, such as dangerousness or mental instability. The whole of the fixed term was a sentence which was imposed as punishment for the offences committed. The necessary judicial control was therefore incorporated in the original conviction and sentence. In R (Whiston) v Secretary of State for Justice [2015] AC 176, which concerned a determinate sentence prisoner released on Home Detention Curfew, then recalled to prison, Lord Neuberger, with whom three of the court of five agreed, also reviewed the Strasbourg case law. His observation at para 25, made in connection with Ganusauskas and Brown, might perhaps lend a modicum of further support to the Secretary of States argument against the two component analysis. He said 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. (Emphasis added) It appears from para 53 that Lady Hale, who wished to sound a note of caution about some of the reasoning by which Lord Neuberger had reached his conclusion in the appeal, might not have been entirely in agreement with what he said on this particular point, but she did comment upon the fact that the sentencing judge imposes the sentence which is thought to be correct, without regard to the right to early release, and followed that with the observation that the whole of the sentence is intended as punishment. Brown v Parole Board for Scotland [2017] UKSC 69; [2018] AC 1 might also be taken as providing some support for the Secretary of States position on punishment/risk, particularly what is said at para 60, which I set out below. The case was concerned with an extended sentence imposed under section 210A of the Criminal Procedure (Scotland) Act 1995 (as inserted by section 86 of the (inserted by Crime and Disorder Act 1998)), but there are similarities between such a sentence and an EDS. The sentence comprised a custodial term of seven years followed by an extension period of three years on licence. The prisoner was released on licence after serving two thirds of the custodial term, but then recalled. He complained of a breach of article 5, on the basis that he had not been provided with appropriate rehabilitation courses, during the period of his recall, to enable him to achieve his release, by demonstrating to the Parole Board that he no longer posed a risk to the public. Although the court took the opportunity to modify the article 5 jurisprudence by departing from R (Kaiyam) v Secretary of State for Justice (above), his action failed because he had, in fact, been provided with a range of appropriate rehabilitative measures. Lord Reed gave a judgment with which the remaining members of the court were all in agreement, and, although the issue for the court was different, some passages have some relevance to the present case. At para 49, Lord Reed noted that, in fixing the custodial term of the extended sentence, as in fixing an ordinary sentence of imprisonment, the court will take account of all matters relevant to sentencing and have regard to all the accepted objectives of a custodial sentence, including punishment, deterrence, public protection and rehabilitation. The same can be said of the present case, as these objectives form part of the sentencing process in England and Wales as well, featuring in section 142(1) of the 2003 Act as purposes of sentencing (above). Section 142(1) is in very general terms, applying to any court dealing with an offender in respect of his offences, making no difference between periods of the sentence which will be spent in custody and periods which the offender can expect to spend on licence. No doubt this is unsurprising, given that the sentencing judge is not to have regard to the early release provisions when fixing the appropriate sentence. At para 50, Lord Reed made an observation about release on licence, which must also be relevant to release on licence in England and Wales, and does perhaps underline that a licence may not only be there to protect the public, although plainly that can be significant part of its purpose and, of course, the extension period in an EDS is indeed expressly for that purpose (section 226A(7) of the 2003 Act). He said: Release on licence is intended to ensure that the process of transition from custody to freedom is supervised, so as to maximise the chances of the ex prisoners successful reintegration into the community and minimise the chances of his relapse into criminal activity. It is of note that Lord Reed drew a clear distinction between the custodial term of the extended sentence, including any period spent on licence during it, and the extension period. In the following passage from para 60, he proceeded upon the basis that the custodial term addressed the punitive aspect of the sentence, in contrast to the extension, which was for the protection of the public: 60. the purpose of detention during the extension period is materially different from that of a determinate sentence. In terms of section 210A(2)(b) of the 1995 Act, the extension period is of such length as the court considers necessary for the purpose mentioned in subsection (1)(b), namely protecting the public from serious harm from the offender. The punitive aspect of the sentence has already been dealt with by the custodial term, which is the term of imprisonment which the court would have passed on the offender otherwise than by virtue of this section: section 210A(2)(a). Where a prisoner serving an extended sentence is detained during the extension period, other than by virtue of an order made under section 16 or another sentence, his continued detention is therefore justified solely by the need to protect the public from serious harm. The Secretary of State relies also upon a body of case law concerning article 7 of the ECHR (no heavier penalty to be imposed than the one that was applicable at the time the criminal offence was committed). It is pointed out that post sentence changes to early release provisions are not treated as altering the penalty for the offence, see for example R v Docherty (above) at para 65, and the cases there cited. It is argued that this is not consistent with Mr Stotts case. If the punitive element of a determinate sentence ends upon early release, or eligibility to apply for release, then a change in the release provisions would potentially impermissibly increase the penalty imposed for the offence. Having reviewed the authorities, it seems to me fairly clear that the Strasbourg jurisprudence is against the two component analysis, so far as determinate sentences are concerned. Viewing the whole term as punitive would would also be consistent with the generally applicable purposes of sentencing set out in section 142(1) of the 2003 Act, and with the embargo on the sentencing judge having regard to the early release provisions when deciding what period of imprisonment to impose, save in particular defined circumstances. If the two component analysis is inappropriate, there must be force in the Secretary of States submission that, when looking to compare that part of an EDS which is imposed for punishment and deterrence, with the equivalent part of another sentence, it requires a comparison between the appropriate custodial term of the EDS and: in the case of a standard determinate sentence and an SOPC, the whole i) term of imprisonment; ii) in the case of an indeterminate sentence, the minimum term. Having said that, I can entirely accept that, as a matter of practice, the domestic criminal courts do see determinative sentences as having distinct punitive and risk based elements, see the Divisional Court in the present case for example. And, even if the Secretary of State is correct that a sentence should not actually be analysed in this way, it remains the stark fact that some prisoners have to serve a greater proportion of their overall sentence before becoming eligible for release on licence than others. The category in relation to which this is perhaps most challenging to explain, is where release requires the Parole Board to be satisfied on the question of risk. Some prisoners, notably for present purposes, the EDS prisoner, have to serve a greater proportion of their sentence than others, before they can try to persuade the Parole Board on that issue. Whatever the correct answer to the two component debate, this differential wait for the chance to approach the Parole Board demands attention. Accordingly, there might not be much value in pursuing the two component debate further. It is important to put the differential wait argument into proper context however. Whilst the assertion that the requirement for an EDS prisoner to serve two thirds of his sentence before becoming eligible for parole is out of step with comparable prisoners has an initial attraction, it is less compelling if the rest of the prisoners are not, in fact, in step with each other. The argument proceeds on the basis that other prisoners are eligible for release/parole at the half way point in their sentence, but on closer examination, it can be seen that this is by no means universal. Standard determinate sentence prisoners are entitled to (automatic) release at the half way point. Most life sentence prisoners (excepting those where a whole life term has been imposed) are eligible to apply for release once they have served their minimum term, and in most cases this minimum term will be the equivalent to half of the notional determinate term, but that is not universal even for discretionary life sentences (see Szczerba above), and in the case of mandatory life sentences, the period is not fixed by reference to a notional determinate term. Accordingly there are other prisoners who serve longer than half of their sentences before they have a chance of release on licence. Conversely, there are some prisoners who serve less than half. Home Detention Curfew can enable determinate sentence prisoners to achieve their release before the half way point, and an SOPC prisoner is eligible to apply for release from the half way point of his appropriate custodial term, and not the half way point in his overall sentence (which will be the aggregate of the custodial term plus the licence tacked on to it). I turn then, rather more directly, to the twin questions of whether an EDS prisoner is in an analogous position to other prisoners serving either determinate or indeterminate sentences (Issue 2A), and whether the differences in treatment that there undoubtedly are between EDS prisoners and other prisoners are justified (Issue 2B). As is apparent from the authorities concerning article 14, it is not at all easy to separate these two questions into watertight compartments, but I will at least begin with Issue 2A. In determining whether groups are in a relevantly analogous situation for article 14, regard has to be had to the particular nature of the complaint that is being made, see for example para 66 of Clift v United Kingdom. Mr Stott relies upon Clift v United Kingdom, on the basis that it involved a similar complaint to his own. However, the Secretary of State submits that it does not assist here, because it concerned a complaint about similar release provisions being operated differently whereas Mr Stotts complaint is about the operation of different types of sentence. Clift v United Kingdom can properly be described, I think, as concerning a complaint about similar release provisions being operated differently. The prisoners under consideration there, all required a recommendation from the Parole Board before they could achieve early release. But for those, like Mr Clift, who were serving determinate terms of 15 years or more, the final decision on early release lay with the Secretary of State, whereas for the other prisoners the Parole Boards recommendation was enough. The ECtHR considered the prisoners to be relevantly similar. The key was that, in each case, it was all about determining whether the prisoner posed too much of a risk to be released. So, at para 67, the court observed that a refusal of early release was not intended to constitute further punishment but to reflect the assessment of those qualified to conduct it that the prisoner in question poses an unacceptable risk upon release. As the methods of assessing risk and the means of addressing any risk identified are in principle the same for all categories of prisoners, it considered that there was no distinction to be drawn between the prisoners, who were in analogous positions. I do not see the present case as entirely on all fours with Clift v United Kingdom. R (Foley) v Parole Board for England and Wales (above), upon which Mr Southey also relies, is possibly a step closer to the present case than Clift, because it concerned the substance of the release arrangements, rather than simply the mechanism of release ie who made the final decision. The claimant had been given a determinate sentence of 18 years. She was eligible for release at the half way point in the sentence if the Parole Board recommended it, and for automatic release at the two thirds point. The test that the Parole Board had to apply in her case was more onerous than the test that would have been applicable had she been given a life sentence. She therefore argued that there was a violation of article 14. Her claim failed because R (Clift) meant that she could not establish that the different treatment was on the ground of other status, but the court went on to set out what it would have decided had there not been that obstacle. Although acknowledging that there were differences between the sentences, Treacy J (with whom Thomas LJ agreed, adding a few words) accepted, at para 71, that the situation of the claimant was analogous to an indeterminate sentence prisoner, saying: Whilst it is obvious that an offender serving a determinate sentence has the benefit of having a finite limit on the reach of the law in relation to that sentence, I do not think that constitutes a material difference. Both types of sentence now in reality are divided into a punitive element which may be followed by a period of risk based detention. So, in my view, the identified differences between a determinate and an indeterminate sentence do not prevent their treatment as analogous. The courts conclusion was that there was no objective justification for the difference. Treacy J considered the reasoning in Clift v United Kingdom pertinent, because it was also about the imposition of different early release requirements. Release during Ms Foleys sentence and during an indeterminate sentence both involved a risk assessment exercise, and consideration of risk by the same body, but significantly different tests were applied. Treacy Js analysis proceeded upon the basis that the punitive element of a determinate sentence lasted up to the half way point, leading him to conclude that there was no good reason why those who ex hypothesi are to be regarded as less dangerous because they have received a determinate rather than an indeterminate sentence, should be subject to greater punishment [or] why both types of offender should not become eligible for release subject to questions of risk at the same point in their sentence (see paras 69 and 76). The Secretary of State would distinguish Foley because of the significant part played in the courts approach by the two component (punitive/risk) analysis. Sir James invites us to set more store by R (Massey) v Secretary of State for Justice [2013] EWHC 1950 (Admin) because, although Massey involved an IPP prisoner seeking to compare himself with the later EDS regime, the complaint in both that case and this one was in essence that prisoners with different characteristics, serving different sentences, have different release provisions. The situation was not found to be analogous in Massey, and the following reasoning found at para 25 of the judgment of Moses LJ is equally applicable here, it is submitted: however he cloaks his application, the real complaint he advances is a challenge to his original sentence. The reality of his argument is that he was sentenced under a different regime. It is not coherent then to allege discrimination when compared to other offenders sentenced under a different regime. They are not in an analogous situation precisely because they were sentenced under a different regime Like the reasoning of the Divisional Court in the present case, the view of the Divisional Court in Foley cannot be dismissed lightly, given the enormous experience that the judges involved in those two decisions have in criminal work, but, for the reasons I gave earlier, I would question the two component analysis upon which the courts proceeded. Massey should also be treated with a little caution, given that it concerned a complaint derived from a change in the sentencing legislation, and differential treatment caused purely by the commencement of a new legislative regime does not constitute discrimination, see, for example, Minter v United Kingdom (above). At the least, however, Massey serves as an introduction to my consideration of whether Mr Stotts complaint is also, in fact, about the sentencing regime to which he has been consigned rather than, discretely, about the early release provisions that are part of it. It seems to me important to recognise the complexity and detail of the provisions governing the various sentences that can be imposed. It was, in part, for that reason that I set these out as fully as I did earlier. From that review of the statutory provisions concerning EDS, standard determinate sentences, SOPC, and indeterminate sentences, it can be seen that, far from there being a basic sentencing regime, with discrete variations for particular sentences, each sentence has its own detailed set of rules, dictating when it can be imposed and how it operates in practice, the early release provisions being part and parcel of the rules. Some sentences can only be imposed if there is a significant risk of the offender causing serious harm to members of the public by committing further offences, for example. Some sentences can only be imposed where the offender has already committed offences of a particular type. For some, there is automatic early release on licence, but, for others, release on licence is dependent on the Parole Board. Those serving indeterminate terms remain on licence (and liable to be recalled to prison) for the rest of their lives, whereas other offenders will be on licence for a finite period only. All of this fine detail tends to support the Secretary of States argument that each sentence is tailored to a particular category of offender, addressing a particular combination of offending and risk. Subject of course to sentencing guidance, the judge selects the sentence which matches the attributes of the case before him, and fixes the term of any period of imprisonment, extended licence etc. I can therefore see the force in the argument that the release provisions about which Mr Stott complains should not be looked at on their own, but as a feature of the regime under which he has been sentenced, the same regime that is sufficiently distinct to justify taking the view that his complaint is on the ground of other status. There might be said, therefore, to be a building case for holding that he is not in an analogous situation to others sentenced under different regimes. Weight is added to this when some of the detail of the EDS regime is compared specifically with other sentences. Of the determinate sentences, only an EDS requires a finding of significant risk to members of the public of serious harm. The Secretary of State points out that, in contrast to EDS prisoners, not all discretionary life sentence prisoners have been found to be dangerous, such a finding not being required for the imposition of life sentences under section 224A. That submission, whilst literally correct, is significantly weakened when one considers the nature of the listed offences which are a pre requisite to the imposition of such a life sentence. As we have seen, Mr Southeys submission that life sentences are reserved for offenders who are the highest risk or have the most serious criminal records, for the most serious cases, reflects the view that Treacy J took of relative dangerousness in Foley. There are important differences between an EDS and a discretionary life sentence, however. There are respects in which a discretionary life sentence must undoubtedly be viewed as having more serious consequences for the offender, notwithstanding that he may have an earlier opportunity to approach the Parole Board. An EDS involves imprisonment for a specified period which will necessarily come to an end, whether or not the prisoners release is directed by the Parole Board, but a prisoner serving a discretionary life sentence may remain in detention for the rest of his life. If he is released, he remains on licence (and liable to recall) for life, whereas the EDS prisoner is on licence for a finite period only. Recognising that there are valid arguments both ways in relation to Issue 2A, it seems appropriate to act on the wise suggestion of Lord Nicholls, in R (Carson) v Secretary of State for Work and Pensions (above), that sometimes, lacking an obvious answer to the question whether the claimant is in an analogous situation, it may be best to turn to a consideration of whether the differential treatment has a legitimate aim, and whether the method chosen to achieve the aim is appropriate and not disproportionate in its adverse impact (Issue 2B), although I will in fact return to Issue 2A again thereafter. Behind the detailed argument focusing on the particular features of particular sentences, both sides have a simple argument to advance in relation to justification. Mr Southey proceeds upon the basis that life sentences are given to the prisoners who are the highest risk or have committed the most serious offences. Those serving a determinate sentence, including an EDS, are therefore lower risk/less serious offenders, and there cannot be any justification for treating them less favourably in relation to early release than life prisoners. Relative risk cannot justify this, he says, because neither category of prisoner will be released before the Parole Board directs it, having considered the question of risk, and both categories will be on licence upon early release. Although Mr Southey also complains that there is no basis for distinguishing between those serving an EDS and those serving a determinate term, I find the comparison less persuasive than is the comparison with indeterminate sentence prisoners, given the conditions for the imposition of an EDS, which differentiate EDS prisoners from standard determinate term prisoners. The comparison may have had more force, had the two component punitive/risk analysis been unassailable. In that event, it could have been questioned how it was justified to require the EDS prisoner to serve a longer punishment period (as opposed to a longer period of detention dependent upon risk) than a standard determinate term prisoner. However, I have explained my reservations about the two component analysis earlier. The Secretary of States fundamental answer is that there are different categories of sentence, tailored to the particular characteristics of the offenders, and striking a balance between the interests of public protection and the interests of the individual prisoner. All EDS prisoners are dangerous, and the legitimate aim is to protect the public by ensuring that they serve a greater proportion of their custodial term than other categories of prisoner, which may include prisoners who are not dangerous. This is comprehensible when the position of an EDS prisoner is compared with a standard determinate term prisoner, in relation to whom there is no equivalent requirement to find specifically that there is a significant risk of serious harm to the public through further specified offences. It works less easily in relation to indeterminate sentences. True it is that there is not a universal requirement for a finding of dangerousness, before the imposition of an indeterminate sentence, but, as I implied earlier, it is not a great leap from the conditions that have to be satisfied before the sentence can be passed to the conclusion that by far the majority of indeterminate sentence prisoners will pose a risk to the public. Nevertheless, it is correctly pointed out on behalf of the Secretary of State that, in contrast to the release provisions in relation to an EDS, the release provisions in relation to indeterminate sentences must cater for prisoners who are not dangerous, and might be suitable for release sooner. Moreover, Sir James invites us to consider each sentence as a whole, when considering justification, because it is artificial to compare release provisions only. Of crucial importance is the fact that the indeterminate sentence prisoner may never be released at all, whereas the EDS prisoner will be released at the end of his custodial term, even if he fails to satisfy the Parole Board on the question of risk, and also the difference in the duration of the licence in each case. It may be apparent, by now, that I find the arguments in relation to Issue 2 finely balanced. Concentrating upon justification, for the present, it is necessary to decide whether the different treatment of EDS prisoners has a legitimate aim, and whether the method selected for achieving the aim is appropriate, and not disproportionate in its adverse impact. I do not have much difficulty in accepting that, in general terms, the aim of the EDS provisions is legitimate. Ms Foulds, an official from the Ministry of Justice who describes herself as the policy lead on adult custodial sentencing policy, says in her witness statement of September 2016 that the government introduced a tougher, extended determinate sentence as a measure designed to enhance public protection and maintain public confidence in the sentencing framework. The ECtHR in Clift v United Kingdom was not impressed with the public confidence argument, but accepted (para 74) that more stringent early release provisions may be justified where it can be demonstrated that those to whom they apply pose a higher risk to the public upon release. Given that it cannot be passed unless a risk condition is satisfied, an EDS is clearly aimed at offenders of this sort. The questions that are more difficult are whether the longer wait before the prisoner is eligible to apply to the Parole Board is an appropriate means of achieving this aim and whether it is disproportionate in its impact. The starting point for a determination of these questions is that the ECtHR would allow a Contracting State a margin of appreciation in assessing whether, and to what extent, differences in otherwise similar situations justify different treatment, and would allow a wide margin when it comes to questions of prisoner and penal policy, although closely scrutinising the situation where the complaint is in the ambit of article 5. This court must equally respect the policy choices of parliament in relation to sentencing. In the end, the answer depends significantly, I think, upon whether one concentrates entirely upon the early release provisions in the EDS and other sentences, or looks up from the detail to consider the various sentencing regimes as complete regimes. Ultimately, I am persuaded that the proper way to look at the issue is by considering each sentence as a whole, as the Secretary of State invites us to do. The sentencing judge imposes the sentence that complies with the statutory conditions prescribed by parliament, and the sentencing guidelines, and, within that framework, best meets the characteristics of the offence and the offender. The early release provisions have to be seen as part of the chosen sentencing regime, and the question of whether there is an objective justification for the differential treatment of prisoners in relation to earlier release, considered in that wider context. For reasons that I have set out above, there is a readier comparison between the EDS and an indeterminate sentence, than between a simple determinate term and an EDS. But the EDS and the indeterminate sentence are by no means a complete match, leaving aside the difference in parole eligibility. Counter balancing the indeterminate prisoners earlier eligibility for parole is the lack of any guaranteed end to his incarceration, and the life licence to which he is subjected. This fundamentally undermines the argument that the difference in treatment between the two prisoners in relation to early release is disproportionate, or putting it more plainly, unfair. I would accept that, on the contrary, bearing in mind the EDS sentencing package as a whole, the early release provisions are justified as a proportionate means of achieving the governments legitimate aim. Thus, although I would accept that Mr Stott has been treated differently on the grounds of other status within article 14, there being an objective justification for the difference in treatment of EDS prisoners, his claim must fail. It is not in fact necessary in those circumstances to give a definitive answer as to whether EDS prisoners can be said to be in an analogous situation to other prisoners. However, there is a significant overlap between the considerations that are relevant to Issue 2A and to Issue 2B, and having looked at those matters again in the context of Issue 2B, and considered the complete picture, with the benefit also of what Lord Hodge has to say on the subject in his judgment, I have come to the view that EDS prisoners cannot be said to be in an analogous situation to other prisoners. Most influential in this conclusion is that, as I see it, rather than focusing entirely upon the early release provisions, the various sentencing regimes have to be viewed as whole entities, each with its own particular, different, mix of ingredients, designed for a particular set of circumstances. For these reasons, which are, of course, different from those of the Divisional Court, I would dismiss the appeal. LORD CARNWATH: I agree that the appeal should be dismissed. I gratefully adopt Lady Blacks exposition of the legal and factual background. Status The first question under article 14 of the Convention is whether the alleged difference of treatment is attributable to a relevant status. As to that, the Divisional Court was bound by House of Lords authority to hold that it is not: R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484; [2006] UKHL 54. As Lady Black explains, that issue now falls to be reconsidered by this court, in the light of the contradictory decision of the Fourth Section of the ECtHR in Clift v United Kingdom (Application No 7205/07), 13 July 2010. Sir James Eadie QC for the Secretary of State argues that the decision in Clift does not justify departing from the principles governing the definition of status in this context, as established by a long line of Strasbourg case law, starting with the often cited decision in Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, para 56, stating that: Article 14 prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic (status) by which persons or groups of persons are distinguishable from each other. He relies also on Lord Neubergers pithy summary of the effect of subsequent case law in R (RJM) v Secretary of State for Work and Pensions [2009] AC 311 para 45: I consider that the concept of personal characteristic (not surprisingly, like the concept of status) generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him. Such a characterisation approach appears not only consistent with the natural meaning of the expression, but also with the approach of the ECtHR and of this House to this issue. (Emphasis added) Lord Neuberger cited Gerger v Turkey (Application No 24919/94) (unreported) 8 July 1999, in which the ECtHR had held that article 14 had no application to a law under which people committing terrorist offences were treated less favourably than other prisoners with regard to automatic parole. Sir James Eadie also points to the potentially far reaching effects of the widening of the scope of status in other areas of the law, for example immigration: cf R (HC) v Secretary of State for Work and Pensions (AIRE Centre intervening) [2017] 3 WLR 1486, para 31, where this court held that differences in immigration status did not give rise to issues under article 14. In respectful disagreement with the other members of the court, I consider that these submissions are broadly correct. To explain why, and at the risk of some repetition, it is necessary to look again at the treatment of this issue in Clift both here and in Strasbourg. Clift in the House of Lords and Strasbourg The background I start by considering the background to the decisions in Clift including the facts and the applicable legislation. The latter is set out most fully in the judgment of the ECtHR (paras 23ff). Mr Clift had been sentenced in 1994 to 18 years imprisonment for serious crimes including attempted murder, which carried a maximum sentence of life imprisonment. In March 2002 the Parole Board recommended his release on parole taking account of reduced risk and the scope for addressing it by other means. Under the legislation then in force, for prisoners serving determinate sentences of more than 15 years, release in line with a Parole Board recommendation remained in the discretion of the Secretary of State; for prisoners serving shorter sentences (and for prisoners serving indeterminate sentences) release was mandatory. In October 2002 the Secretary of State rejected the recommendation of the Parole Board in Mr Clifts case on the grounds that his release would present an unacceptable risk to the public. The distinction between automatic and discretionary release, depending on whether the sentence was more or less than 15 years, arose not directly from the primary legislation itself, but from a statutory order made under it by the Secretary of State. Section 35 of the Criminal Justice Act 1991 provided a discretionary power to release long term prisoners before the two thirds point of their sentence, if recommended by the Parole Board. Section 50 gave power to reduce the effective period of detention by converting the discretionary power under section 35 into a duty in relation to specified classes of prisoners. The Secretary of State exercised that power by the Parole Board (Transfer of Functions) Order 1998 (SI 1998/3218), which applied to prisoners serving a sentence of imprisonment for a term of less than 15 years. For those serving sentences of 15 years or more, the order left in place the discretion to order early release between the service of half and two thirds of the sentence. In the House of Lords Lord Bingham (para 33) described the discretion so given to the Secretary for State as an indefensible anomaly. That was because, following the decision of the ECtHR in Stafford v United Kingdom (2002) 35 EHRR 1121, it had become clear that assessment of the risk presented by any individual prisoner was a task with no political content and one to which the Secretary of State could not (and did not claim to) bring any superior expertise. A defence of justification would not therefore have been sustainable. (That view was in due course adopted in terms by the ECtHR: para 77). However, justification would only become relevant under article 14, if his treatment amounted to discrimination on the grounds of other status. I turn to the consideration of that issue, first in the House of Lords and then in the ECtHR. Status The House of Lords Lord Bingham (with whom all his colleagues agreed) started from the premise that the word status in this context could be equated with personal characteristic (following Kjeldsen above). He did not think that a personal characteristic could be defined by the differential treatment of which a person complains. However, Mr Clift was not complaining of the sentence passed upon him, but of being denied a definitive Parole Board recommendation. Having described the personal characteristic criterion as elusive, he continued: But I would incline to regard a life sentence as an acquired personal characteristic and a lifer as having an other status, and it is hard to see why the classification of Mr Clift, based on the length of his sentence and not the nature of his offences, should be differently regarded. However, while clearly sympathetic to the claim, he was unwilling to uphold it in the absence of support, explicit or implicit, from the Strasbourg jurisprudence (para 28). Lord Hope spoke to similar effect, agreeing that a personal characteristic cannot be defined by the differential treatment of which a person complains: It is plain too that the category of long term prisoner into which Mr Clifts case falls would not have been recognised as a separate category had it not been for the Order which treats prisoners in his group differently from others in the enjoyment of their fundamental right to liberty. But he had already been sentenced, and he had already acquired the status which that sentence gave him before the Order was made that denied prisoners in his group the right to release on the recommendation of the Parole Board. The question which his case raises is whether the distinguishing feature or characteristic which enables persons or a group of persons to be singled out for separate treatment must have been identified as a personal characteristic before it is used for this purpose by the discriminator. (para 47) Like Lord Bingham he was sympathetic to the claim, but unwilling to uphold it, the issue not yet having been addressed by the Strasbourg jurisprudence. He noted also Lady Hales observation that it was possible to regard what he has done, rather than who or what he is, as the true reason for the difference of treatment in Mr Clifts case (paras 48 49). Lady Hale expressed agreement with Lord Binghams reasons, but (as I read her judgment) with a rather different emphasis. In the course of a detailed review of the Strasbourg authorities on the grounds of discrimination covered by article 14, she referred (para 60) to the example pertinent to this case of differences in the treatment of different criminal offences, exemplified by Gerger v Turkey (above): the court deduced from the fact that people convicted of terrorist offences would be treated less favourably with regard to automatic parole that the distinction is made not between different groups of people, but between different types of offence, according to the legislatures view of their gravity: para 69. Similarly, in Budak v Turkey (Application No 57345/00) (unreported), 7 September 2004, the court had repeated the personal characteristic test from Kjeldsen, and had held that a distinction in procedure and sentences for offences tried before the state security court from those tried before other courts was made, again, not between different groups of people but between different types of offence. In conclusion on this aspect, having noted the Secretary of States acceptance that a different parole regime for foreigners liable to deportation, as compared to those with the right to remain here, fell within the proscribed grounds, she said: But a difference in treatment based on the seriousness of the offence would fall outside those grounds. The real reason for the distinction is not a personal characteristic of the offender but what the offender has done. The result is that the difference of treatment between Mr Clift and people sentenced either to shorter determinate sentences or to life imprisonment is not covered by article 14 at all (paras 62 63). She acknowledged that the law might look odd, but it was not for the court to declare legislation which Parliament has passed incompatible with the Convention rights unless the Convention and its case law require us so to do (para 63). Status the ECtHR The Fourth Section conducted a detailed review of the previous ECtHR authorities on the meaning of other status (in French toute autre situation). Its conclusions are set out in paras 55 63 of the decision. It accepted that many of the cases related to personal characteristics, in the sense that they are innate characteristics or inherently linked to the identity or the personality of the individual. However, there were others where that approach could not be applied. It gave (para 58) six examples which I list below with the courts comments: i) Engel v The Netherlands (No 1) (1976) 1 EHRR 647: the court held that a distinction based on military rank could run counter to article 14, the complaint in that case concerning a difference in treatment as regards provisional arrest between officers on the one hand and non commissioned officers and ordinary servicemen on the other. ii) Pine Valley Developments Ltd v Ireland (1991) 14 EHRR 319: the court found a violation where there was a difference in treatment between the applicants and other holders of planning permissions in the same category as theirs. Although the court did not specifically address the question of the relevant status in that case, it would appear that the distinction of which the applicants complained was between holders of outline planning permission who benefited from new legislation and holders of outline planning permission who did not (in that case, by virtue of the fact that the applicants planning complaint had already been determined by the court and that the outline planning permission had been found to be invalid see para 26 of the judgment). iii) Larkos v Cyprus (1999) 30 EHRR 597: the court found a violation of article 14 as a result of a distinction between tenants of the state on the one hand and tenants of private landlords on the other, the parties did not dispute that article 14 applied and the court saw no reason to hold otherwise. iv) Shelley v United Kingdom (2008) 46 EHRR SE16: the court considered that being a convicted prisoner could fall within the notion of other status in article 14. Sidabras and Dziautas v Lithuania (Application Nos 55480/00 and v) 59330/00), ECHR (2004) 42 EHRR 104 VIII: the court did not specifically address the question of other status but in finding a violation of article 14 and article 8 implicitly accepted that status as a former KGB officer fell within article 14. vi) Paulk v Slovakia (2006) 46 EHRR 10: the court accepted that the applicant, a father whose paternity had been established by judicial determination, had a resulting status which could be compared to putative fathers and mothers in situations where paternity was legally presumed but not judicially determined. The court went on (paras 60 61) to address two particular points made by the House of Lords, and adopted in the UK Governments argument: first, that the treatment of which the applicant complains must exist independently of the other status upon which it is based; and, secondly, reliance on Gerger to support the argument that no separate status arises where the distinction is made, not between different groups of people, but between different types of offence, according to the legislatures view of their gravity. For the former argument the court found no clear support in its case law. It said: In Paulk, cited above, there was no suggestion that the distinction relied upon had any relevance outside the applicants complaint but this did not prevent the court from finding a violation of article 14. The question whether there is a difference of treatment based on a personal or identifiable characteristic in any given case is a matter to be assessed taking into consideration all of the circumstances of the case and bearing in mind that the aim of the Convention is to guarantee not rights that are theoretical or illusory but rights that are practical and effective. It should be recalled in this regards that the general purpose of article 14 is to ensure that where a state provides for rights falling within the ambit of the Convention which go beyond the minimum guarantees set out therein, those supplementary rights are applied fairly and consistently to all those within its jurisdiction unless a difference of treatment is objectively justified. (para 60) Of the argument based on Gerger it said: The court observes that the approach adopted in Gerger has been followed in a number of cases, but all concerned special court procedures or provisions on early release for those accused or convicted of terrorism offences in Turkey. Thus while Gerger made it clear that there may be circumstances in which it is not appropriate to categorise an impugned difference of treatment as one made between groups of people, any exception to the protection offered by article 14 of the Convention should be narrowly construed. In the present case the applicant does not allege a difference of treatment based on the gravity of the offence he committed, but one based on his position as a prisoner serving a determinate sentence of more than 15 years. While sentence length bears some relationship to the perceived gravity of the offence, a number of other factors may also be relevant, including the sentencing judges assessment of the risk posed by the applicant to the public. (para 61) Discussion With respect to the Fourth Section, I do not find its reasoning in Clift convincing. It is difficult to extract any principle from the disparate list of cases in its para 58. They have very little in common, other than the fact that in none of them, it seems, was the issue of status a matter for detailed consideration because it was not contested. Equally unconvincing is the reliance on Paulk to counter the view that the treatment complained of must be distinct from the status. That proposition is no more than the ordinary reading of the words of article 14 itself. Paulk was an unusual case on very special facts. The claim succeeded under article 8 in any event, and no issue was taken about status in the consideration of article 14. I note that both Lady Hale and Lord Mance share my doubts as to the weight placed on this decision by the court in Clift. Finally the Fourth Sections discussion of Gerger is hard to follow. It is accepted that there may be cases where it is not appropriate to treat an impugned difference as one made between groups of people. But there is no indication as to why Gerger itself fell into that category of cases, or by reference to what criterion. Further, while it is of course true that sentence length may reflect factors other than the perceived gravity, it is not clear why such factors (which are likely to be special to the circumstances of the particular offender and his case) strengthen the reasons for treating the difference as one between groups. It is true that in Clift in the House of Lords, Lord Bingham was willing in principle to regard the imposition of a particular form of sentence as conferring an acquired status for these purposes. However, as is apparent from a comparison with Lady Hales speech, his approach does not appear to take full account of decisions like Gerger. That in turn formed the basis of the more limited approach subsequently taken by the House in R (RJM). Lord Neuberger (para 46), while noting that Lord Bingham would have been inclined to regard a life sentence as an acquired personal characteristic and a lifer as having an other status, observed that this was in the absence of decisions such as Gerger . I am conscious that in Mathieson v Secretary of State for Work and Pensions [2015] 1 WLR 3250 the authority of the approach of the Fourth Section in Clift v United Kingdom was accepted without question by this court. However, the factual context was very different. The key to the decision can be found in the rhetorical question posed by Lord Wilson at the conclusion of his discussion of status: Disability is a prohibited ground: Burnip v Birmingham City Council [2013] PTSR 117. Why should discrimination (if such it be) between disabled persons with different needs engage article 14 any less than discrimination between a disabled person and an able bodied person? . (para 23) I am grateful for Lady Blacks comprehensive review of the authorities on this issue. It shows that the courts both here and in Strasbourg have been struggling with difficulty over a long period to find a rational criterion for defining and limiting the scope of status in article 14. It is true, as she says (para 44), that in more recent cases the Strasbourg court has moved beyond simple reference to a personal characteristic, to more expansive phrases such as identifiable, objective or personal characteristic. However, the decision in Minter v United Kingdom (2017) 65 EHRR SE6, noted by her at paras 41 43, suggests a tendency to restrict the scope of the decision in Clift itself, at least in the context of different sentencing regimes. I note Lady Hales suggestion that sentencing criteria concentrate upon the dangerousness of the offender, itself a personal characteristic. That may be so, but I find it hard to accept that dangerousness, whether a personal characteristic or not, is a status deserving of special protection under article 14. In conclusion on this issue, short of confirmation by the Grand Chamber, I would not for myself regard the decision of the Fourth Section in Clift (or the other more recent decisions reviewed by Lady Black) as requiring us to depart from the more restrictive approach to the concept of status reflected in the actual decision of the House in Clift, and confirmed in R (RJM). I would need considerable persuasion that the authors of the Convention intended mere conviction of a criminal offence, or subjection to a particular custodial regime, to entitle the recipient to specially protected status under human rights law. More generally, it is important that article 14 is kept within its proper role within the Convention, and outside the core protected areas is not allowed to develop into a means of bypassing the carefully defined limits applicable to the individual rights. Analogy and justification I can deal with these issues shortly, because I agree with the reasons given by Lady Black and Lord Hodge for dismissing the appeal. In particular I agree that the EDS regime must be looked at as a whole and cannot be treated as analogous to regimes which have different purposes and different characteristics. It is wrong to isolate the particular feature of the provisions for release on parole, and to compare it with other release provisions without regard to their context. In this respect the case is clearly distinguishable from Clift where there was a direct analogy between the sentence as applied respectively to those serving more and less than 15 years. As Lord Hope pointed out, the difference was not part of the original sentence as prescribed by Parliament, but was imposed subsequently by Ministerial order. I am also fortified in this conclusion by the consideration that, even if Mr Stotts sentencing regime gives him a relevant status for the purposes of article 14, it is on the outer edge of the concentric circles described by Lord Walker in the passage cited by Lady Black (para 54). Consistency in sentencing policy is an important objective, but it does not impinge on the core values which article 14 is designed to protect. Short of irrationality or (in Strasbourg terms) manifest unreasonableness, the courts should not allow themselves to be drawn into detailed consideration of the lines drawn by the legislature between the treatment of different categories of offender. LORD HODGE: I am very grateful to Lady Black for setting out the facts, the legal background and the legal issues so comprehensively and clearly. I can therefore state my views briefly. I agree with her that the appeal should be dismissed. But I would dismiss the appeal on the basis that the extended determinate sentence (EDS), which has been imposed on Mr Stott, is not sufficiently analogous to the sentences, which he puts forward as comparators, to bring him within article 14 of the European Convention on Human Rights (the ECHR) and require the Government to justify his treatment. If, contrary to my view, it is necessary to proceed to consider justification, I would hold that the difference in treatment of a prisoner detained under an EDS is justified principally because of the differing natures of the regimes for imprisonment. It is not disputed that Mr Stotts complaint is within the ambit of article 5 of the ECHR so that article 14 can be invoked if there has been unjustified discrimination in relation to a rule adopted by the United Kingdom concerning the early release of convicted prisoners. The questions on the applicability of article 14 relate to (i) status, (ii) analogy, and (iii) justification. Status I agree with Lady Black that Mr Stott as a prisoner sentenced to an EDS has the required status to invoke article 14 of the ECHR. That article speaks of the ECHR rights being secured without discrimination on any ground such as and then lists specific grounds, including or other status. As Lady Black has shown in paras 13 35 of her judgment, there has been a difference of view between the House of Lords and the European Court of Human Rights (ECtHR) as to the meaning of the phrase other status in article 14, which was manifested in the speeches in the House of Lords in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484 (Clift (HL)) and in the judgment of the 4th Section of the ECtHR in Clift v United Kingdom (Application No 7205/07, 13 July 2010) (Clift (ECtHR)). Questions are likely to arise as to the boundaries of any other status absent further guidance by the Grand Chamber of the ECtHR and I would not seek to make any general statement as to those boundaries. But I am satisfied that Mr Stott has the requisite status for the following four reasons. First, the opening words of the relevant phrase, on any ground such as, are clearly indicative of a broad approach to status. Secondly, there is ample authority in the ECtHR, the House of Lords and the Supreme Court to support the view that the words any other status should not be interpreted narrowly. Thus, in Clift (HL) para 48, Lord Hope of Craighead stated that a generous meaning should be given to the words or other status while recognising that the proscribed grounds are not unlimited. Similarly, in R (RJM) v Secretary of State for Work and Pensions [2009] AC 311 (RJM), Lord Neuberger of Abbotsbury at para 42 spoke of a liberal approach to the grounds on which discrimination was prohibited. In Clift (ECtHR), paras 55 and 56, the ECtHR spoke of the listed examples of status as being illustrative and not exhaustive and suggested that a wide meaning be given to the words other status. In Biao v Denmark (2016) 64 EHRR 1, the ECtHR again spoke of giving those words a wide meaning and in Khamtokhu and Aksenchik v Russia (Application Nos 60367/08 and 961/11) the Grand Chamber repeated that view at para 61. It appears, as Lord Neuberger stated in RJM (para 39) that the ECtHR interprets article 14 on a holistic or broad brush basis. Thirdly, the Supreme Court in Mathieson v Secretary of State for Health [2015] UKSC 47; [2015] 1 WLR 3250, para 22, has accepted the judgment in Clift (ECtHR). While, like Lord Carnwath, I would welcome further guidance from the Grand Chamber, I am persuaded that the weight of authority currently supports the view that Mr Stott has the required status under article 14 because he has been sentenced to a particular sentence of imprisonment, namely an EDS. Analogy Where I find myself in respectful disagreement with the experienced judges of the Divisional Court is that I am persuaded by Sir James Eadie QC that it is wrong to focus solely on the arrangements for early release and to disregard the existence of distinctive and separate sentencing regimes. Lady Black has helpfully set out the different types of sentence which a judge in England and Wales can impose in paras 84 105 of her judgment. I agree with her analysis in paras 123 134 of her judgment that a determinate sentence cannot be divided into a part relating to punishment and deterrence on the one hand and the avoidance of risk on the other. The idea that the punitive and deterrent part of a determinate sentence ends at the point of entitlement to, or at least eligibility for consideration for, early release is central to Mr Southeys case and the reasoning of the Divisional Court. In my view that idea is not correct. Section 142(1) of the 2003 Act sets out five purposes of sentencing. They are (i) the punishment of offenders, (ii) the reduction of crime (including its reduction by deterrence), (iii) the reform and rehabilitation of offenders, (iv) the protection of the public, and (v) the making of reparation by offenders to persons affected by their offences. Purpose (v) is not relevant to a sentence of imprisonment but purposes (i) to (iv) inclusive may co exist throughout the term of a determinate prison sentence: R (Whiston) v Secretary of State for Justice [2015] AC 176, para 25, per Lord Neuberger. In fixing the appropriate sentence of imprisonment of a convicted person, the judge does not take account of the statutory provisions for early release. In R v Round [2010] 2 Crim App R(S) 45, para 44, Hughes LJ described this requirement to disregard early release in fixing a sentence of imprisonment was a matter of principle of some importance. The Court of Appeal in R v Burinskas (Attorney Generals Reference (No 27 of 2013)) (Practice Note) [2014] 1 WLR 4209, paras 38 39 endorsed his statement. This disregard is unsurprising as the purposes of the early release regimes include matters such as economy and the relief of over crowding in prisons, as well as the public interest in re integrating a prisoner into society with the benefit of supervision. As a result, each of the four purposes of imprisonment in section 142(1) of the 2003 Act may be relevant justifications of the prisoners continued detention throughout the custodial sentence which the judge has imposed. It follows that a determinate sentence of imprisonment is not to be divided by reference to its relevant early release provisions into a period for punishment, deterrence and rehabilitation on the one hand and a period when the only purpose is the protection of the public. There is no punitive part and preventive part in a determinate sentence of imprisonment. As Lady Black has shown (paras 124 125 of her judgment), judgments of the ECtHR, which address the requirement allowing the detained person access to judicial determination of the lawfulness of his detention in article 5(4) of the ECHR, have repeatedly recognised this characteristic of the determinate sentence. I therefore find myself in respectful disagreement with the Divisional Court in R (Foley) v Parole Board for England and Wales [2012] EWHC 2184 (Admin) in so far as it reasoned (para 68 69) that the reality was that the punitive element of a determinate sentence ended at the half way point. The reality is that that element continues and would justify the detention of a prisoner if he were recalled to prison after early release. Mr Southey in his submission on behalf of Mr Stott asserts: [t]he point at which prisoners become eligible for release is the point which represents the expiry of the punitive and deterrent element of their sentences. For determinate sentence prisoners, the half way point represents the punitive element. (appellants case para 4.5.2). The Divisional Court appears to have accepted this submission in paras 44 45 and 48 of its judgment. I respectfully disagree in relation to determinate sentences for the reasons set out in the preceding two paragraphs. Similarly, in relation to SOPC sentences, which Lady Black discusses at paras 93 95 of her judgment, punishment and deterrence remain relevant grounds of detention throughout the appropriate custodial term. An EDS, which is a form of determinate sentence, similarly does not have two component parts in its custodial term. An EDS is very similar to the extended sentence in Scots law which this court discussed in Brown v Parole Board for Scotland [2017] UKSC 69; [2018] AC 1. In Lord Reeds judgment, with which the other Justices agreed, punishment and deterrence were relevant purposes throughout the custodial term (paras 49 and 60). The provisions for early release and the period on licence (if any) before the expiry of the custodial term serve the purpose of assisting a prisoner to resume his life in the community with the assistance of supervision (para 50). The early release provisions when applied to a determinate sentence in English law or to an EDS serve a similar purpose. The period on licence after the expiry of the custodial term of an extended sentence, on the other hand, is to protect the public from serious harm (paras 53 and 60). It is only in the sentencing framework relating to indeterminate sentences, which Lady Black discusses in paras 96 to 105 of her judgment, that the sentencing judge in fixing the minimum term is required to take account of the early release provisions and to split the sentence into a part which is for punishment and deterrence and another part in which retention in custody is justified only if the prisoner remains a risk to the public. Such considerations are also not relevant to mandatory life sentences. In relation to the date of early release there is also a less consistent picture than the appellant suggests. Lady Black has discussed this in paras 136 and 145 of her judgment. As she states, there are prisoners serving discretionary life sentences who are not eligible to apply for release because their minimum term imposed under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act) exceeds one half of the notional determinate term (R v Szczerba [2002] 2 Cr App R(S) 86). Further, the minimum term for prisoners on mandatory life sentences is not fixed by reference to early release provisions applicable to a notional determinate term (section 269 of and Schedule 21 to the 2003 Act). On the other hand, SOPC prisoners under section 236A of the 2003 Act are eligible to apply for release once they have served one half of the appropriate custodial term, which is less than their overall sentence, and the overall sentence is the sentence that is commensurate with the seriousness of the offence (section 236A(3)). Other prisoners on determinate sentences can achieve release before they have served one half of their sentence at the discretion of the Secretary of State by being placed on a curfew at a specified location (sections 246 and 250(5)). When assessing whether Mr Stott is in an analogous situation to other prisoners it is important to have regard to the reality that in England and Wales there are separate sentencing regimes which have different characteristics. It is appropriate to take a holistic approach to each sentencing regime in deciding whether or not one regime is analogous to another. Not all prisoners serving a discretionary life sentence will be more dangerous than a prisoner serving an EDS. There are prisoners who are serving a life sentence under section 224A of the 2003 Act, which does not require a finding that the offender was dangerous, although it is likely that in most cases he will be: Burinskas at para 8. A prisoner serving an EDS is not eligible for release at the direction of the Parole Board at one half of his custodial term while a prisoner serving a discretionary life sentence is generally so eligible when the court exercises its discretion under section 82A of the 2000 Act. But that is far from the whole picture. As the Court of Appeal recognised in Burinskas (para 36), a life prisoner might have to wait for many years after his minimum term has expired before the Parole Board consider it safe to release him. By contrast, a prisoner serving an EDS is entitled to be released at the end of the custodial period without any further assessment of risk (section 246A(7)). Similarly, a person who has been given a life sentence remains on licence and subject to recall to prison for the rest of his life. By contrast, the licence provisions imposed on a person serving an EDS end on the expiry of the specified extension period (section 226A(5) and (8)). Sir James Eadie also drew support for his submission that different sentencing regimes were not analogous from two judgments of the Divisional Court and one of the ECtHR. In R (Massey) v Secretary of State for Justice [2013] EWHC 1950 (Admin) a prisoner serving a sentence of imprisonment for public protection (an IPP) complained that he had been discriminated against compared with a prisoner who was sentenced to an EDS after the new sentences introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 because he was subject to an indeterminate period of imprisonment while the EDS prisoner was not. Moses LJ rejected this claim, stating (at para 25) that the claimant and the EDS prisoner were not in an analogous situation precisely because they were sentenced under a different regime. In R (Bristow) v Secretary of State for Justice [2013] EWHC 3094 (Admin) the Divisional Court held that a claimant was not in an analogous situation to prisoners under a previous legislative regime and (para 16) that prisoners who were subject to discretionary release were not in an analogous situation to prisoners under an automatic release scheme. In Minter v United Kingdom (2017) 65 EHRR SE 6 in which an applicant complained of being subjected to an indefinite notification requirement, the ECtHR held that there was no discrimination as the applicant had been subjected to a different sentencing regime which was the consequence of new legislation (para 68). There is some force in Mr Southeys response that the cases were concerned with changes in sentencing policy which were effected by legislation. This weakens their utility to Sir James Eadie to some extent. But the cases, and R (Massey) in particular, provide some support for his submission that one should have regard to the characteristics of each regime as a whole and not just to its provisions for early release when judging whether a claimant is in an analogous situation to someone sentenced under a different regime. In summary, I am not persuaded that a prisoner serving an EDS is in an analogous situation to prisoners under different regimes of imprisonment in relation to his eligibility for early release. This is, first, because there is no split between the punitive/deterrent part and the risk related part of a custodial term in a determinate sentence (including an EDS) at the point at which a prisoner becomes eligible for early release. This contrasts with the position of prisoners serving discretionary life sentences. The supposed existence of this split played a fundamental part in Mr Southeys argument and appears to have influenced the judgment of the Divisional Court, giving rise to a focus only on whether a prisoner remained dangerous after a spell in prison. It is, secondly, because there is no principle that a prisoner is entitled to be released or is eligible at the discretion of the Parole Board to be released once he has served one half of his custodial term. The position is, as I have stated, more complex. Thirdly, it is because a prisoner sentenced to an EDS is sentenced under a statutory regime which, when viewed in the round, has materially different characteristics from other determinate sentences and from life sentences, both discretionary and mandatory. In my view, the obvious and relevant differences between the sentencing regimes are sufficient to prevent prisoners serving sentences under these different sentencing regimes from being in an analogous situation. Justification Having reached this conclusion on issue 2A, it is not strictly necessary to consider the issue of justification. But as the ECtHR frequently wraps the issues of analogous situation and justification together, it is appropriate that I state my view briefly. The Secretary of State has explained, through the witness statement of Ms Alison Foulds, that Parliament introduced the EDS as a part of a suite of new sentencing regimes to replace the previous sentence of the IPP, which was an indeterminate sentence for dangerous offenders and which had been shown to have unsatisfactory characteristics. Ms Foulds explained that offenders eligible for an EDS have committed serious offences, which merit a custodial sentence of at least four years, and been found to be dangerous and would in the past have been eligible for an IPP but not necessarily a life sentence. She stated: In replacing the indeterminate IPP sentence, the Government committed to introducing a tougher, extended determinate sentence requiring the offender to serve at least two thirds of the custodial term rather than one half. This was a measure designed to enhance public protection and maintain public confidence in the sentencing framework. When the court considers the justification of different treatment under article 14 of the ECHR it gives a wide margin of appreciation to the democratic legislature in its determination of criminal sentencing policy but exercises close scrutiny where the allegation is that detention is arbitrary or unlawful: Clift (ECtHR) para 73. As I have stated, the early release provisions relating to a sentence do not determine what is the appropriate part of a sentence for the punitive and deterrent purposes set out in section 142. They are the result of other considerations such as economy and the prevention of overcrowding in prisons (see para 188 above). In repealing the provisions which established the IPP and in creating a particular regime for the imprisonment of persons convicted of serious offences and who are also dangerous Parliament is entitled to have regard both to public protection and to the maintenance of public confidence in criminal sentencing. The preservation of public confidence is a legitimate aim, at least in the context in which the custodial term which is appropriate for the offence has not expired: Clift (ECtHR) para 74. The three considerations, which have persuaded me that an EDS prisoner is not in an analogous situation (para 195 above), are relevant to the question of the appropriate means of achieving those aims and need not be repeated. In my view one must look at the early release provisions in the context of the individual sentencing regimes which may have positive and negative features as far as the prisoner is concerned. The EDS prisoner, convicted of a serious offence and who is dangerous at the time of sentencing, has a longer wait before he is eligible for consideration for parole than many other offenders who are subject to different regimes of imprisonment, but he also has the benefit of a defined custodial term and a defined period during which he is subject to licence thereafter, in contrast to prisoners who have received life sentences. Those are the components of the particular sentencing regime which cannot be described as arbitrary. Sir James Eadie in his submissions has not provided any separate justification for the requirement of an EDS that the prisoner serve two thirds of his sentence before he is eligible to be considered for parole rather than some other proportion, beyond saying that the offender has committed a serious offence and is dangerous at the time of sentencing. But, in my view, he does not require to do so because the EDS is a separate sentencing regime which is neither arbitrary nor unlawful. I therefore conclude in relation to issue 2B that the difference in treatment of EDS prisoners resulting from the potentially more onerous early release provisions of section 246A is justified. Accordingly, there has been no breach of article 14 taken with article 5 of the ECHR. In so concluding, I do not overlook the observation of Lord Brown of Eaton under Heywood in Clift (HL) at para 66: where the penal system includes a parole scheme, liberty is dependent no less upon the non discriminatory operation of that than on a fair sentencing process in the first place. The interest of a prisoner in obtaining early release should not be underestimated. In this case, however, access to the parole scheme depends on the terms of the particular sentencing regime and differential access to that scheme as between discrete sentencing regimes is not per se discriminatory. I am also aware that there is a real potential for a sense of unfairness about differential eligibility for early release where two people are jointly convicted of the same offence and one receives a determinate sentence while the other, because he is dangerous, receives an EDS. The grievance this would generate was a matter of concern to the judges of the Divisional Court who referred to it in paras 45 and 50 of their judgment. That is clearly not the situation in Mr Stotts case. It will not be the situation in many cases and it is not a sufficient basis for calling into question the justification for the early release provisions of the EDS generally. Article 14 of the ECHR does not in my view provide an answer to this problem; not every anomaly in sentencing is a breach of ECHR rights. I am left wondering whether in future the common law might be developed by creating an exception to the principle in R v Round where it was necessary to achieve comparative justice in such a case of joint offenders. But as parties have not had any opportunity to discuss this matter, I will say no more about it. Conclusion I would dismiss the appeal. LADY HALE: I am most grateful to Lady Black for having discussed the authorities in such depth. It has enabled me to stand back and look at the basics. The claim is that the early release provisions relating to prisoners serving an extended determinate sentence (EDS) unjustifiably discriminate against such prisoners in the enjoyment of their right to liberty, contrary to article 14 of the European Convention on Human Rights read with article 5. The basic fact about any sentence of imprisonment is that it takes away the prisoners liberty: that is the right protected by article 5. The first thing that the prisoner (and indeed anyone else) wants to know is how long for? So let us take three prisoners who have committed the same, very serious, offence: one receives an ordinary determinate sentence of, say, 21 years; another qualifies for an EDS and receives an EDS of, say 21 years, with an extended licence period of four years on top of that; and another qualifies for and receives a discretionary life sentence, with a minimum custodial period of ten and a half years. The first prisoner will automatically be released on licence after ten and a half years; the second prisoner will only be considered for release on licence after 14 years; the third prisoner will be considered for release on licence after ten and half years. Is this most basic disparity in the treatment of these three prisoners compatible with the convention rights of the less favourably treated one? The English version of article 14 reads: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. The equally authentic French text reads: La jouissance des droits et liberts reconnus dans la prsente Convention doit tre assure, sans distinction aucune, fonde notamment sur le sexe, la race, la couleur, la langue, la religion, les opinions politiques ou toutes autres opinions, lorigine nationale ou sociale, lappartenance une minorit nationale, la fortune, la naissance ou toute autre situation. Thus, for the English without discrimination, the French reads sans distinction aucune, but the European Court of Human Rights has said that outlawing any distinction could lead to absurd results, and the French text should be read in the light of the more restrictive text of the English version (Belgian Linguistic case (No 2) (1968) 1 EHRR 252, para 10). On the other hand, for other status, the French reads toute autre situation, which has led the court to take an expansive view of what counts as an other status (see Carson v United Kingdom (2010) 51 EHRR 13, para 70). In article 14 cases it is customary in this country to ask four questions: (1) does the treatment complained of fall within the ambit of one of the Convention rights; (2) is that treatment on the ground of some status; (3) is the situation of the claimant analogous to that of some other person who has been treated differently; and (4) is the difference justified, in the sense that it is a proportionate means of achieving a legitimate aim? Question (1) stems from the subsidiary nature of article 14. Unlike article 1 of the 12th Protocol to the Convention (to which the United Kingdom is not a party), it does not prohibit discrimination in the enjoyment of any right set forth by law but only in the enjoyment of the Convention rights. But of course there does not have to be a breach of one of those rights otherwise the article would add nothing. The rights have to be enjoyed equally. So the facts have to fall within the ambit of one of the rights or relate to one of the ways in which one of the rights is secured within the member state. In this case it is common ground that a sentence of imprisonment falls within the ambit of article 5, which regulates the circumstances in which a person may be deprived of his liberty. Equally it is common ground that there is no breach of article 5, because article 5(1)(a) permits the lawful detention of a person after conviction by a competent court. Question (2) directs attention to the ground on which one person has been treated differently from another in the enjoyment of a Convention right. It is clearly intended to add something to the requirement of discrimination or a difference in treatment: otherwise article 14 would simple have said that the enjoyment of the Convention rights shall be secured without (unjustified) discrimination (between persons in an analogous situation). Status has usually been said to refer to a personal characteristic of the person concerned (beginning with Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, but see also, for example, Maktouf and Damjanovic v Bosnia and Herzegovina (2013) 58 EHRR 11, para 83, and Magee v United Kingdom (2000) 31 EHRR 35, para 50, where differences in treatment between different courts or different parts of the United Kingdom were held not to be contrary to article 14 as they were not based upon personal characteristics). But it is not limited to innate qualities such as sex, race, colour, birth status or sexual orientation. It includes acquired qualities such as religion, political opinion, marital or nonmarital status, or habitual residence. But in Clift v United Kingdom (Application No 7205/07, judgment of 13 July 2010, inexplicably only reported in The Times, 21 July 2010), the court pointed out that not all the listed qualities are a personal characteristic, giving property as an example. Not only that, the court has not given an ejusdem generis interpretation to other status and has adopted a very broad approach: applying article 14, for example, to different categories of property owners (James v United Kingdom (1986) 8 EHRR 123, para 74), large and small landowners (Chassagnou v France (1999) 29 EHRR 615, para 95), and non commissioned officers and ordinary soldiers (Engle v The Netherlands (No 1) (1969) 1 EHRR 647). In Clift v United Kingdom, the court also declared itself not persuaded that the Governments argument that the treatment of which the applicant complains must exist independently of the other status upon which it is based finds any clear support in its case law (para 60). Paulk v Slovakia (2006) 46 EHRR 10 was cited as an illustration: a man who had been adjudged father of a child in legal proceedings complained that there was no way of correcting the record when DNA tests proved that he was not the father, whereas fathers whose paternity had been established on other grounds, and mothers, did have such a possibility (Paulk, para 48). With respect, this is not a good illustration, for two reasons. First, the applicability of article 14 was not disputed and so there is no discussion of other status in the judgment. Second, and more important, while it may well be the case that there was no other difference in treatment between the applicant and the others with whom he compared himself, his status, as a man who had been adjudged father in legal proceedings, was obviously different from the status of those fathers who had not, and even more different from the status of mothers. In other words, his status was not defined by the difference in treatment complained of. That, it seems to me is the true principle: the status must not be defined solely by the difference in treatment complained of, for otherwise the words on any ground such as would add nothing to the article. There is a useful analogy here with the United Nations Convention relating to the Status of Refugees (1951) (Cmd 9171): to be recognised as a refugee, a person has to have a well founded fear of persecution on one of the Convention grounds race, religion, nationality, membership of a particular social group or political opinion. In Fornah v Secretary of State for the Home Department [2006] UKHL 46; [2007] 1 AC 412, the House of Lords affirmed the principle (also endorsed by the UN High Commissioner for Refugees) that a particular social group must exist independently of the persecution to which the group is subject: by this was meant that the group was not defined solely by the persecution it feared. That said, I have no difficulty in accepting that The question whether there is a difference of treatment based on a personal or identifiable characteristic in any given case is a matter to be assessed taking into consideration all of the circumstances of the case and bearing in mind that the aim of the Convention is to guarantee not rights that are theoretical or illusory but rights that are practical and effective (Clift v United Kingdom, para 60). Prisoners subject to an EDS can be identified as a distinct group, just as prisoners subject to an ordinary determinate sentence and prisoners subject to a life sentence, can be identified as a distinct group. They are defined by much more than the particular early release regime to which they are subjected. Indeed, the argument that this particular type of sentence is a distinct package, so persuasively put forward on behalf of the Secretary of State as a justification for the difference, confirms that fact. This is much clearer than the difference in Clift, which was simply between different lengths of determinate sentence. If further support for that conclusion were required, it could lie in the different criteria for the imposition of each type of sentence, which concentrate upon the dangerousness of the offender, itself a personal characteristic. Questions (3) and (4) are logically distinct but are often discussed together in the cases. As Lord Nicholls put it in R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 17; [2006] 1 AC 173, para 3: the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the courts scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact. There is no such obvious, relevant difference here. The three groups in question are all prisoners serving sentences of imprisonment. From their point of view, the most important question in their lives is when will I get out? Allied to that may be two subsidiary questions, who will decide when I get out will it be automatic or will I have to go before the Parole Board? and if I am let out, what will be the consequences of that? Each group of prisoners under discussion here is subject to a different package of answers to those questions. But we must beware of treating the package which means that each of these groups has a different status as meaning that their situations are not analogous for the purpose of needing a justification for the difference in their treatment. To take an obvious example, women have a different status from men for the purpose of article 14. But the obvious physical differences between men and women do not mean that their situations are not relevantly similar, for the purpose, for example, of their right to liberty or to respect for their family lives. We have to look to the essence of the right in question to ask whether men and women prisoners are in a relevantly similar situation. The essence of the right in question here is liberty. It would obviously be discriminatory to make one sex serve longer sentences for the same crime simply because of their gender (as opposed to other factors which might justify a difference in treatment). The real question in this case has always been whether the difference in treatment can be justified as a proportionate means of achieving a legitimate aim. The background is important here. The EDS was introduced in its current form when the indefinite sentence for public protection (IPP) was abolished. It was considered necessary to replace IPP with a sentence, reserved for those who posed a particular risk to the public, which was demonstrably tougher than an ordinary determinate sentence. As Alison Foulds, policy lead on adult custodial sentencing policy in the Ministry of Justice, explained in her witness statement: This was a measure designed to enhance public protection and maintain public confidence in the sentencing framework. Offenders eligible for an EDS have committed serious offences and been found to be dangerous, and would previously have been eligible for an indefinite sentence, an IPP, but not necessarily a life sentence. The longer period to be served in prison under the EDS is justified on these grounds, and distinguishes the sentence from a standard determinate sentence, and a special determinate sentence for offenders of particular concern, which provide for automatic release at the half way point, or discretionary release from the half way point, as appropriate. Protecting the public is undoubtedly a legitimate aim. Furthermore, the criteria for imposing an EDS include 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 226A(1)(b)). The public will be better protected if he is required to serve more of his sentence in prison and can only be released during the rest of his custodial term if the Parole Board determines that this will be safe. The criterion for imposing the sentence would therefore appear to justify the difference in treatment between an EDS prisoner and a prisoner serving a standard determinate term, even though their actual offences may be commensurate. The same could be said of offenders serving a special custodial sentence for certain offenders of particular concern (Criminal Justice Act 2003, section 236A). Here the criterion is not the dangerousness of the particular offender, but the dangerousness of the offence which he has committed: if he is convicted of an offence listed in Schedule 18A, and the court does not impose a life sentence or an EDS, the court must impose a special sentence which consists of the appropriate custodial term plus an extra year for which he is subject to a licence (section 236A(1), (2)). These prisoners may be let out at half time, but only if the Parole Board decides that this will be safe. These prisoners have not been held to be dangerous in themselves in the same way that prisoners sentenced to an EDS have been held to be dangerous. Nevertheless, this comparison is getting closer to the bone, given the intrinsically dangerous nature of the offences listed in Schedule 18A (most of which have a terrorist connection). The comparison with a discretionary life sentence is more difficult to understand. It is well established that, in the absence of exceptional circumstances, the specified period which the prisoner must serve before he can be considered for release on licence should be fixed at half of the notional determinate sentence which he would have received for the offence had he not been subject to a life sentence because of his dangerousness: see R v Szczerba [2002] 2 Cr App R(S) 86. Given that a discretionary life sentence prisoner is even more dangerous than an EDS prisoner, how can it be justified that the former can be considered for release on licence after serving half of what would have been an appropriate determinate sentence, whereas the latter must wait until he has served two thirds of the appropriate determinate sentence? The publics need for protection is likely to be greater in the case of the lifer than in the case of the EDS prisoner. But in any event, neither can be released on licence until the Parole Board has determined that it will be safe to do so. The public is equally well protected in each case. It is, of course, the case that there are ways in which the EDS prisoner is better off than the lifer. He must be released on licence at the end of his appropriate custodial term, even if the Parole Board has not determined that this would be safe, whereas the lifer must only be released if this is adjudged safe. Once released on licence, he can only be returned to prison during the period of his extended sentence, whereas the lifer will remain on licence, and thus subject to return to prison, for the whole of his natural life. This is the essence of the package element which was pressed on us as a justification for the difference in their early release regimes. The package should not be salami sliced into its component parts for the purpose of deciding whether each difference in treatment can be justified. In the end, however, it is easy to see how the additional disadvantages (from the prisoners point of view) of a discretionary life sentence are justified by the considerations which led the court to impose the sentence in the first place. It is hard to see how, alone of all four types of prisoner considered here, it is thought necessary to insist that an EDS prisoner stays in prison for more than half the custodial term appropriate to the seriousness of his offending. One would have thought that, if anything, a discretionary life prisoner would be even less likely to be fit for release at the half way point. But the speed of rehabilitation is notoriously difficult to predict at the outset. That is why the decision is left to the Parole Board when the time comes to consider release. And the protection which the Parole Board offers to the public is the reason why it is not necessary, for that purpose, to insist that EDS prisoners spend a larger proportion of the appropriate term in prison. That conclusion is to my mind strengthened by the fact that, had he not been bound by the decision of the House of Lords in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, it would also have been the conclusion of Sir Brian Leveson, President of the Queens Bench Division, who has unrivalled experience in penal matters and would have recognised a justification if there was one. I would therefore allow this appeal and make a declaration of incompatibility. It would then be for Parliament to decide how, if at all, that incompatibility is to be rectified. LORD MANCE: Introduction I have had the advantage of reading in draft the judgments prepared by Lady Black and Lord Carnwath. They reach different conclusions on the issue whether a prisoner on whom an extended determinate sentence (EDS) has been passed under section 226A of the Criminal Justice Act 2003 (the 2003 Act) acquires a status on which he may rely for the purposes of a complaint about alleged discrimination under article 14 of the European Convention on Human Rights (ECHR). An EDS consists of the appropriate custodial terms, specified in Mr Stotts case as 21 years, and a further extension period, specified in his case as four years, during which he was to be subject to a licence. The discrimination alleged is that, under section 246A of the 2003 Act, as introduced by section 125 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 and amended by section 4 of the Criminal Justice and Courts Act 2015, a prisoner subject to an EDS of ten years or more must serve a requisite custodial term of normally two thirds of his specified appropriate custodial term, before being eligible for consideration by the Parole Board for release on licence. Serving an EDS of less than ten years, imposed prior to 13 April 2015, and not in respect of an offence listed in Parts 1 to 3 of Schedule 15B to the Criminal Justice Act 2003, are automatically released once they have served two thirds of the requisite custodial period (section 246A(2) of the 2003 Act). Under his EDS, Mr Stott would thus have to serve 14 years, before being eligible for referral to the Parole Board for consideration. The comparisons which Mr Stott seeks to draw are with prisoners sentenced to both determinate and indeterminate sentences. The former (determinate sentence prisoners) are, as Lady Black explains (para 90), entitled to be released on licence automatically, once they have served a requisite custodial sentence, which is in their case one half of their sentence. It is worth noting, in parenthesis, that under the rgime of extended sentences which was introduced by section 227 of the 2003 Act, was in force until 3 December 2003 and was the precursor of the rgime presently in issue, a prisoner was also entitled to automatic release on licence once he had served half of the requisite custodial sentence. Further, under the special custodial sentence regime introduced by Schedule 1 to the Criminal Justice and Courts Act 2015 as amended by section 236A of the 2003 Act, whereby a court could impose the appropriate custodial sentence plus a further period on licence of one year, a prisoner was entitled to have his suitability for release on licence considered by the Parole Board after serving half such sentence. The special custodial regime was available for inter alia an offender who had raped a child under 13, which it happens was also offending for which Mr Stott was sentenced. In respect of prisoners serving indeterminate sentences, the judge will determine a minimum custodial sentence which the offender must serve before being eligible to apply for early release, although the court may disapply this provision if the seriousness of the offending justifies this course. In the case of a mandatory life sentence, the minimum custodial sentence must take account of various factors, none expressly linked with any notional determinate term. In the case of a discretionary life sentence, the court must, under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, identify what sentence would have been appropriate had a determinate sentence been imposed and take account of the fact that the offender would then have been entitled to early release: see Lady Black, para 103. In practice, this normally leads to a tariff period of half the notional determinate period although, in exceptional circumstances requiring the giving of proper reasons, the sentencing judge may as a matter of discretion fix the tariff at half or two thirds or somewhere in between: R v Szczerba [2002] 2 Cr App R(S) 86; R v Jarvis [2006] EWCA Crim 1985; R v Rossi [2015] 1 Cr App R(S) 15. Status The first question in these circumstances is whether Mr Stott can claim to have an other status for the purposes of invoking article 14 of the ECHR. I agree with Lady Black that he can. I accept that the requirement of an other status cannot simply be ignored, or subsumed in the question whether any discrimination is unjustified. This is for at least three reasons. First, the language of article 14 states that there must be discrimination on a ground such as those specified, the last being other status. There would be no point in this language, if the only question was whether there was discrimination. Secondly, the ECtHR has expressly accepted as much in Clift v United Kingdom (Application No 7205/07), paras 55 to 56, while at the same time stating, at para 61, that any exception to the protection offered by article 14 . should be narrowly construed. While it may be odd to speak of a criterion for the application of article 14 as an exception, the general idea is clear enough: (a) the concept of status should be construed broadly, but (b) not every difference in treatment is on the ground of status. Thus, a difference in treatment regarding automatic parole between terrorism related and other offences was held not to be on the ground of status in Gerger v Turkey (Application No 24919/94). It was a difference based on the differing gravity of the offence, rather than on any status. For the same reason, a mere difference in the sentence imposed cannot of itself amount to a difference in status. This also explains the difference in treatment by Lord Hughes of the two arguments raised in favour of the existence of a status in R v Docherty (Shaun) [2016] UKSC 62; [2017] 1 WLR 181, para 63. As to the second argument, the mere imposition of an indeterminate sentence under the appropriate sentencing regime could not give the offender a different status. As to the first, however, Lord Hughes left open the possibility that the offender had a different status because he had been convicted prior to 3 December 2012, when the appropriate sentencing regime provided for an indeterminate sentence, rather than after 3 December 2012, when indeterminate sentences for public protection were abolished. He held instead that any discrimination on the ground of status was justified. That a mere difference in treatment does not by itself constitute a difference in status is a proposition which is difficult to fault in the light of Gerger and what I have already said. But problems have arisen from attempts to extend the application of such a proposition to cases beyond its scope. This is, I think, the root of the third difficulty expressed by Lady Black in the first sentence of para 74 of her judgment. There is no reason why a person may not be identified as having a particular status when the or an aim is to discriminate against him in some respect on the ground of that status. Thus, in Clift the categorisation of Mr Clift as a prisoner serving a sentence of more than 15 years imprisonment (a bright line distinction clearly associated in the legislatures mind with a significantly higher level of risk) was with a view to the discriminatory treatment about which Mr Clift complained, since it meant that he would receive less favourable treatment (a) as regards early release, than life prisoners presenting on their face an even greater risk, and also (b) as regards prisoners serving sentences of less than 15 years, since his release would be subject to approval by the Secretary of State who could contribute nothing relevant to any evaluation of continuing risk. It is to my mind unsurprising that such categorisation was in these circumstances regarded as giving Mr Clift a relevant status. It was common ground in Clift that being a prisoner was a status, and it was a short step from that in the circumstances to accepting that being a particular type of prisoner, namely one serving a determinate sentence of 15 years of more and viewed accordingly as presenting a particular risk (which was however addressed in a discriminatory fashion), could also be identified as a status. Similarly, it is difficult to see any real problem about attributing a relevant status to the complainant in Paulk v Slovakia (2006) 46 EHRR 10. He had the status of a father whose paternity had been established by judicial determination, in contrast with the different status of a parent whose paternity was legally presumed without judicial determination. The discrimination between these two statuses was that in the latter case paternity could subsequently be disproved by a DNA test, whereas in the former case no such procedure existed under domestic law. The ECtHR in para 60 of its judgment in Clift rejected the Governments argument that the treatment of which the applicant complains must exist independently of the other status upon which it is based. It reasoned that in Paulk there was no suggestion that the distinction relied upon had any relevance outside the applicants complaint. One might question if that could really have been so: it seems, self evidently, one thing to have to prove paternity in court and thereafter, whenever the need arose, to have to identify a valid and enforceable court decision establishing paternity, and another matter to be able simply to rely on a factual presumption. Leaving that thought on one side, however, Clift suggests that a difference in the basis of established paternity represented a sufficient difference in status, even though the only continuing effect of the distinction consisted in the discriminatory possibility in the one case and impossibility in the other of subsequent disproof of paternity by a DNA test. The same point can be tested by supposing a person who was discriminated against on the ground of some previously held, but now abandoned, religious belief or political or other opinion. That would surely be discrimination on an illegitimate ground within the language of article 14. It is likewise notable that article 14 expressly identifies national or social origin and birth as a prohibited ground of discrimination. Thirdly, article 14 addresses discrimination, whether deliberate or unconscious, having a systematic nature in the sense that it occurs on the ground of a characteristic or characteristics in some sense attributed to the victim, whether innately or as a matter of choice or against their will: see the discussion in Clift at paras 56 to 59; and see also Lady Blacks judgment at para 56(i) to (iii) and 63. Article 14 is not targeted at achieving complete equality of treatment. A firm which haphazardly treated different customers with different standards of attention because its different employees were not consistently trained to perform to the same standards could not be said to be discriminating on the ground of any status possessed by any of its customers. A person who refused to serve a customer within ordinary hours (or to stay open late out of hours, when normally he would have been prepared to do so) because he had a headache could not be said to be discriminating on the ground of any status possessed by the or any customer. There would be no question of him having to justify his conduct by reference to the severity of his headache. In the present case, I conclude without hesitation that Mr Stott possesses a relevant status, independent of the difference in treatment about which he is complaining. He is subject to an EDS, which is a sentence distinct from and has characteristics differing from those of any ordinary determinate or indeterminate sentence. The difference of treatment about which he complains consists in one consequence of his being given an EDS, namely that he was and is subject to a different regime as regards eligibility for consideration for parole. Mr Southey QC representing Mr Stott felt, rightly, obliged to concede that the claim must fail before the Administrative Court on the issue of status, because of the decision of the House of Lords in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54; [2007] 1 AC 484. It follows from what I have already said that, in my opinion, the Supreme Court should now depart from that decision, and follow the clear guidance given by the ECtHR in Clift v United Kingdom. I should add that, in reaching this conclusion, I have benefitted substantially from Lady Blacks comprehensive analysis of the authorities on status. Save to the limited extent that appears from what I have said above, I have no comment on and see no reason to disagree with that analysis. Analogous position and justification The decisive questions are therefore whether an offender like Mr Stott serving an EDS is in an analogous position to an offender serving a determinate or indeterminate sentence, and, if so, whether the difference in treatment of an EDS offender as regards parole is objectively justified. In this connection, I have come ultimately to a different conclusion to Lady Black and Lord Carnwath. First, the ECtHR in Clift had no difficulty in treating prisoners serving more and less than 15 years imprisonment and life prisoners as all being in an analogous position, insofar as the assessment of the risk posed by a prisoner eligible for early release is concerned: para 67. On this basis, the question is whether the differences in their treatment as regards release on licence are justified. Like Lady Black, I do not consider that this question is avoided by the argument, advanced by the Secretary of State, that the whole of all such sentences should be seen as imposed as punishment for the offences committed, rather than as having two components, a punitive part followed by a preventive part. However such sentences may in other contexts be analysed, it remains the case that the differences between them regarding early release have significant advantages or disadvantages for the relevant prisoners, which once identified call for examination and justification. Second, as regards justification, the ECtHR accepted in Clift that more stringent early release provisions could be justified where a particular group of prisoners could be demonstrated to pose a higher risk to the public upon release: para 74. On that basis, it accepted in principle that the application of more stringent early release provisions might have to be dependent on a bright line cut off point and considered that such a bright line distinction will not of itself fall foul of the Convention; accordingly, the fact that different early release provisions applied to those serving determinate sentences of 15 years or more, compared to those serving less than 15 years, did not of itself suggest unlawful discrimination: para 76. The reason the ECtHR regarded the difference in Clift between treatment of, on the one hand, prisoners serving more than 15 years imprisonment and, on the other hand, prisoners serving less than 15 years imprisonment or serving indeterminate sentences as unjustifiable was the requirement for the Secretary of State to consent to implementation of any Parole Board recommendation for release in the case of the former: paras 77 to 78. The ECtHR said in this connection that: The differential treatment of prisoners serving 15 years or more, whose release continued to be dependent on the decision of the Secretary of State, had become an indefensible anomaly, as the assessment of the risk presented by any individual prisoner, in the application of publicly promulgated criteria, was a task which was at the relevant time recognised to have no political content and one to which the Secretary of State could not, and did not claim to, bring any superior expertise The ECtHR also held the difference in treatment in Clift between prisoners serving in excess of 15 years imprisonment and life prisoners to be unjustified for a further reason. Life prisoners apparently presented a greater risk than a prisoner on whom a determinate sentence had been passed. Yet there was in their case no requirement that the Secretary of State consent to their release. Once release was recommended by the Parole Board, it was the Secretary of States duty to direct their release on licence. By the same token, in the present case, a more stringent release regime for prisoners sentenced to an EDS could be regarded as justified, when compared with that applicable to prisoners sentenced to an ordinary determinate sentence. Any ordinary determinate sentence and the appropriate custodial term to be served under an EDS fall to be determined on the principle set out in section 153(2) of the Criminal Justice Act 2003, that they: must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it. One pre condition to the imposition of an EDS is, however, that the court considers 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: section 226A(1)(b) of the 2003 Act. Another (at the relevant time) was that the court was not required by section 224A or 225(2) to impose a sentence of imprisonment for life: section 226A(1)(c). Applying similar reasoning to that of the ECtHR in Clift, Parliament could be taken to have considered that this risk was in the case of an EDS prisoner sufficiently significant (a) to require release on licence during the currency of the appropriate custodial term to depend on a Parole Board recommendation, (b) to require two thirds of such term to have run, before the Parole Board considered whether to make such a recommendation and (c) to require an extended period on licence after expiry of the appropriate custodial term. In contrast, release on licence is, in the case of an ordinary determinate prisoner, automatic once he has served the requisite custodial period consisting of half their nominal sentence: section 244. The Administrative Court in Sir Brian Leveson, President of the Queens Bench Divisions full and helpful judgment, was not persuaded that there was any justification for a distinction which necessarily assumes that EDS prisoners remain as a class a significant risk until the two thirds point, depriving them of even the chance of demonstrating their safety for release on licence until that point, whereas all ordinary determinate prisoners are assumed to be safe for automatic release at the half way stage. I see the force of the Administrative Courts view, but in the light of the ECtHRs approach in Clift and my conclusions regarding the comparison with indeterminate prisoners in the ensuing paragraphs, I do not base my judgment on it. It is, on any view, even more difficult to understand the logic of an apparently more stringent regime for EDS prisoners, when compared with discretionary life prisoners, in circumstances where the offending was, by definition, not of such a seriousness as to attract a life sentence. The tariff period for a discretionary life prisoner is, barring exceptional circumstances, set at half the notional determinate period. Once that tariff period has expired, the life prisoner has a right to require the Secretary of State to refer his case to the Parole Board, and to be released on licence if the Parole Board is satisfied that such release is, in short, safe: Crime (Sentences) Act 1997, section 28(5). A prisoner serving an EDS, therefore, is likely to be in a significantly worse position, as regards consideration by the Parole Board and release on licence, than a discretionary life prisoner, although the latter is likely to have committed a more serious, or no less serious, offence. It is true that in other respects a life prisoner is treated more severely: if the Parole Board is not satisfied as to the safety of his release, he may remain in prison indefinitely and, if he is released, he remains on licence and may be recalled throughout his life. But this is inherent in the nature of a discretionary life sentence, and, if anything, suggests that one would expect a more, rather than less, severe regime of review for release on licence to apply to life prisoners. It is also the case that some life prisoners may be less dangerous and safer at an earlier stage for release than some prisoners serving an EDS. But that is not the general position. None of these factors explains why life prisoners are in the great generality of cases likely to be eligible for consideration of their safety for release on licence by the Parole Board at a considerably earlier point than prisoners serving an EDS can hope for. Eligibility for consideration for release is merely the gateway to consideration by the Parole Board of safety for release on licence. It does not prejudge that question. No real explanation or justification has been given for a difference in treatment, which has important practical consequences for the prisoners affected and must seem a palpable anomaly. The position regarding mandatory life prisoners is less easy to compare with that of prisoners serving an EDS. As Lady Black explains in para 102, the sentencing judge determines, in the light of the seriousness of the offence and other circumstances, a minimum custodial period after the expiry of which the prisoner has a right to require the Secretary of State to refer him to the Parole Board and a right to be released on licence if the Parole Board so recommends. But there appears to be no general or normal rule as to the length of this period, as there is in the case of discretionary life sentences: see R v Szczerba, cited above. In the event, I conclude that prisoners serving an EDS are in a significantly worse position as regards eligibility for consideration by the Parole Board and release on licence, when compared with discretionary life prisoners, that no convincing explanation or justification for this difference has been shown and that section 246A(8)(a) of the Criminal Justice Act 2003 is for this reason incompatible with article 14 read with article 5 of the ECHR, in so far as it requires two thirds of the relevant custodial period to have expired before any such eligibility arises. Since preparing this judgment on the issues of analogous situation and justification, I have also had the advantage of reading what Lady Hale says in her paras 213 to 222, with which I find myself in agreement on these issues. It follows that, in my opinion, the appeal succeeds, and Mr Stott is entitled to succeed to a corresponding declaration of incompatibility.	An extended determinate sentence (EDS) is one of the available sentences for an offender who is considered dangerous. It comprises two elements: an appropriate custodial term and the extension period for which an offender is subject to a licence. Under section 246A of the Criminal Justice Act 2003, an offender serving an EDS becomes eligible for parole after two thirds of the appropriate custodial term. By contrast, other categories of prisoners serving determinate sentences become eligible after half of their sentence. Prisoners serving certain types of indeterminate sentences (i.e. discretionary life sentences) will become eligible for parole after their specified minimum term, which is ordinarily fixed at half the determinate sentence they would have received had they not been subject to a life sentence. On 23 May 2013, the appellant was sentenced to an EDS in respect of ten counts of rape. The appropriate custodial term was fixed at 21 years, with an extension period of four years. The appellant, Mr Stott, sought judicial review of his sentence. He claimed there was no justification for the difference in treatment in relation to eligibility for parole. He claimed that this was unlawful discrimination within Article 14 of the European Convention on Human Rights (ECHR), combined with Article 5 (the right to liberty). Article 14 prohibits discrimination on any ground such as sex, race or other status. The High Court dismissed his claim, but granted a certificate permitting Mr Stott to appeal directly to the Supreme Court. It was agreed that the right to apply for early release falls within the ambit of Article 5. As to whether Article 14 applies, there are two issues. The first is whether the different treatment of Mr Stott is on a ground within the meaning of other status. The second has two parts: (a) whether EDS prisoners are in an analogous situation to either indeterminate sentence prisoners or other determinate sentence prisoners; and, if so, (b) whether there is an objective justification for the difference in treatment between the categories of prisoners. A majority of the Supreme Court dismisses the appeal, holding that the EDS scheme does not breach Article 14 with Article 5. Lady Black gives the leading judgment, with which Lord Carnwath and Lord Hodge agree, save on issues specified in their separate judgments. Lady Hale and Lord Mance both give dissenting judgments. Issue 1 the status issue The Court holds by a majority (Lady Black, Lord Hodge, Lady Hale and Lord Mance) that Mr Stott had the requisite status for Article 14 [81, 184, 212, 236]. In light of the European Court of Human Rights (ECtHR) decision in Clift v United Kingdom (Application No 7205/07), the Court should depart from the decision in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484. In that case the House of Lords had held that different treatment of a prisoner serving a sentence of 15 years or more could not be said to be on the ground of other status [70]. For the purposes of determining status, there is no real distinction between Mr Clift as a prisoner serving 15 years or more and Mr Stott as a prisoner serving an EDS [79]. Considering all the relevant case law and bearing in mind that grounds within Article 14 are to be given a generous meaning, the difference in treatment of EDS prisoners in relation to early release is a difference within the scope of Article 14, on the ground of other status [81, 185, 237]. Lord Carnwath concludes that difference of treatment of EDS prisoners is not attributable to some status for the purposes of Article 14. He would dismiss the appeal on that basis [179]. Issue 2 (a) analogous situation The Court holds by a majority (Lady Black, Lord Carnwath, Lord Hodge) that EDS prisoners are not in an analogous situation to other prisoners. The various sentencing regimes must be regarded as whole entities, each designed for particular circumstances and characteristics. The differences between the sentencing regimes are such that prisoners serving sentences under different regimes are not in analogous situations [155, 180, 195]. Lady Hale and Lord Mance (dissenting) hold that EDS prisoners are in an analogous situation to other prisoners serving determinate sentences and prisoners serving discretionary life sentences [214, 239]. Lady Hale says that for all three categories of prisoner, the most important question from their point of view is when will I get out? The essence of the right in question is liberty and for that purpose their situations are relevantly similar [214]. Issue 2 (b) objective justification The Court holds by a majority (Lady Black, Lord Carnwath, Lord Hodge) that, if EDS prisoners were in an analogous situation, the difference of treatment would be objectively justified [155, 180, 201]. The aim of the EDS provisions, which includes public protection, is legitimate [152]. As to whether the EDS scheme is a proportionate means of achieving that aim, the Court must consider each sentence as a whole. Within the framework of statutory provisions and sentencing guidelines, the sentencing judge imposes the sentence that best meets the characteristics of the offence and the offender. The early release provisions are part of the chosen sentencing regime and objective justification should be considered in that wider context [154]. The EDS is better compared to an indeterminate sentence, rather than to other types of determinate sentence. Counter balancing the indeterminate prisoners earlier eligibility for parole is the lack of any guaranteed end to his incarceration, and the life licence to which he is subjected. This undermines the argument that the difference in treatment in relation to early release is disproportionate or unfair [155]. The EDS is a separate sentencing regime that is neither arbitrary nor unlawful [200]. Lady Hale and Lord Mance (dissenting) hold that that there is no justification for insisting that an EDS prisoner stay in prison for two thirds of the custodial term appropriate to the seriousness of his offending, while a discretionary life sentence prisoner, who is likely to be even more dangerous than an EDS prisoner, would be considered for release after half of what would have been an appropriate determinate sentence [218 220, 246, 248].
The respondent (VWFS) is a member of the Volkswagen Group, and is used (through its retail sector) to provide hire purchase (HP) finance for the sale of vehicles manufactured by the group. When a customer of a VW dealership wishes to purchase a vehicle using finance from VWFS, the vehicle is acquired by VWFS as part of the finance arrangements from the dealer and then supplied by it to the customer on deferred payment terms under an HP contract. The vehicles are sold on to the customer at the same price as they are purchased from the dealer. This appeal is concerned with the treatment of general business overheads, not directly attributable to particular supplies. The legal and factual background is set out in detail in the judgment of Patten LJ and need not be repeated. As he explained the issue arises in the context of a so called partial exemption special method (PESM) agreed with HMRC for the valuation of the proportion of residual input tax attributable to HP transactions. The issue is whether any of the residual input tax paid by VWFS in respect of such general overheads (so far as apportioned to the retail sector) is deductible against the output tax paid on the taxable supply of vehicles to customers. HMRCs primary contention is that the overheads are all attributable to the exempt supplies of finance and the input tax is therefore irrecoverable. VWFS contends that the residual input tax should be split in proportion to the ratio of taxable transactions to the whole, which has the effect of splitting the residual input tax 50/50 for HP transactions. That issue was decided in favour of VWFS by the First tier Tribunal (FTT), and by the Court of Appeal, although the Upper Tribunal had supported HMRCs approach. That remains the main issue in the appeal, but is one on which the court has decided that a reference to the CJEU is necessary to reach a conclusion. The present judgment is concerned with a secondary issue. Mr Thomas argues that HMRC had a fall back position on the amount of the apportionment, which the FTT had failed to consider. As Patten LJ explained: The First tier Tribunal proceeded on the basis that the only dispute about methodology was whether any part of the residual input tax was attributable to and could be set off against the taxable supplies of vehicles made in the retail sector of VWFSs business. But HMRC contend that they did challenge the apportionment formula contained in the proposed PESM on wider grounds and that a lower figure than 50% should be attributed to the taxable supplies of vehicles as part of the hire purchase contracts in terms of the use made of the allocated inputs. (para 13) Patten LJ expressed some surprise (which I share) that, in an appeal where both sides were represented by experienced counsel, such an issue had not been capable of resolution by agreement between them, or by reference to their written submissions or notes of the hearing. However, the court had been asked to resolve the issue on the available material. That included: i) HMRCs skeleton argument before the tribunal which had described the issue as being whether VWFS method produces a fair and reasonable attribution of residual input tax in the retail sector, but without putting forward a positive alternative to HMRCs preferred methodology, or suggesting a different apportionment. ii) HMRC had relied upon two witness statements made by Mr Jonathan Cannon, the second of which commented on the differences between the two approaches. He observed that VWFSs approach was realistic, perhaps more so than the HMRCs approach, but was open to two particular concerns, which he identified. Again he did not put forward an alternative apportionment. iii) made by Mr Thomas: Judge Berners notes of the hearing recorded the following submission [The] value of the car does not bear on the use of overheads. What [VWFS] says is [that] if [that is done] it would be 80%, but 50% is fair. But why? The appellant does not say. 50% is an arbitrary selection of a figure. No analysis has been put forward. [This] comes from the weighting exercise. HP contracts [are] treated as two transactions. [It is] wholly unexplained as [to] why it is fair to treat HP [transactions] 1:1. Why not another fraction? The Upper Tribunal (para 103) saw this extract as supporting Mr Thomass submission that he had asked the FTT to consider in the alternative whether a lesser figure than 50% should have been attributed to the taxable supplies. Patten LJ thought otherwise: But my own reading of the judges notes on these issues is that Mr Thomas was challenging the basis of the 50% attribution as arbitrary in the context, as Ms Shaw has submitted, of an argument that any attribution was impermissible. HMRC did not rely upon some alternative methodology which attributed to the use of the residual inputs by the taxable supply of vehicles a figure somewhere between 1% and 50%. I do not see how this court is in the position to gainsay Judge Berners understanding of the parties position on the appeals which the FTT heard and none of the materials we have been asked to look at demonstrate that the FTT misunderstood HMRCs case. (para 71) In this court Mr Thomas submits that the Court of Appeal failed to take account of the nature of the appeal to the tribunal, which allows the FTT to consider both issues of principle and the amount of the assessment. He relies on words of mine in Pegasus Birds Ltd v Revenue and Customs and Excise Comrs [2004] EWCA Civ 1015; [2004] STC 1509: The Tribunal should remember that its primary task is to find the correct amount of tax, so far as possible on the material properly available to it, the burden resting on the taxpayer. In all but very exceptional cases, that should be the focus of the hearing (para 38(i)) He relies also on Banbury Visionplus Ltd v Her Majestys Revenue and Customs [2006] EWHC 1024; [2006] STC 1568 para 48, where in a similar context to the present Etherton J held that there was nothing to exclude the jurisdiction of the tribunal to decide whether a particular method would achieve the statutory objective. Miss Shaw submits that those cases do not detract from the general principle that proceedings before the tribunal are not inquisitorial in nature; it is no part of the tribunals role to undertake a roving review of the dispute of its own motion. She relies on comments of Forbes J as to the adversarial nature of proceedings before the former VAT Tribunal (Tynewydd Labour Working Mens Club and Institute Ltd v Customs and Excise Comrs [1979] STC 570, 580). In my view, this issue does not require examination of general questions about the tribunals role. One of the strengths of the new tribunal system is the flexibility of its procedures, which need to be and can be adapted to a wide range of types of case and of litigant. In some areas, particularly those involving litigants in person, a more inquisitorial role may be appropriate. However, when the tribunal as here is dealing with substantial litigants, represented by experienced counsel, it is entitled to assume that the parties will have identified with some care what they regard as relevant issues for decision. My comments in Pegasus Birds should not be taken as indicating anything different. They were not of general application, but intended (as the following words made clear) to discourage undue attention to the Commissioners original exercise of best judgment, as opposed to the correctness of the result. Like Patten LJ, I would attach particular importance to the tribunals understanding of the issue before it. This is apparent from the tribunals own introduction to the detailed discussion. Having described the main issue, the tribunal continued: That is the full extent of the dispute. Other aspects of what amounts to a fair and reasonable attribution, such as ease of audit and operation, are not at issue. Nor, although the Tribunal itself asked for clarification, is the 50/50 weighting that VWFS proposes as between the taxable supplies of the vehicle and the exempt supplies of finance under the HP agreements. The evidence of Mr Cannan for HMRC shows that the weighting is accepted as realistic; indeed he concedes that it may be more realistic than that adopted by HMRCs method. The dispute is not on the weighting, but on whether any part of the residual input tax should be attributed at all to the taxable supply of the vehicle. (para 41, emphasis added) I agree with Patten LJ that we have no material which could justify going behind that clear statement of the position as the tribunal understood it, having itself apparently sought clarification. Mr Thomas says that he has no recollection of such a request. However, if there was any doubt about that, the time to have dealt with it was when the decision was received. If the tribunal was thought to have misunderstood HMRCs position, and failed to deal with a significant issue, the matter could have been raised with them and sorted out then and there, at a time when it was fresh in the minds of all involved. As it is the tribunals understanding seems to me entirely consistent with the lack of any specific reference to this issue in their written submissions or the evidence of their witness. I agree with Patten LJ that the passing reference in the note of cross examination adds nothing. For these reasons, in agreement with the Court of Appeal, I would dismiss this ground of appeal.	The respondent is a member of the Volkswagen (VW) Group and is used (through its retail sector) to provide hire purchase (HP) finance for the sale of vehicles manufactured by the group. When a customer of a VW dealership wishes to purchase a vehicle using finance from the respondent, the vehicle is acquired by the respondent and supplied to the customer on deferred payment terms under an HP contract. In the course of its business the respondent incurs input tax as part of its expenditure. Where that expenditure is directly attributable to taxable supplies the input tax is deductible; where the supply is exempt the input tax is irrecoverable. This appeal concerns the treatment of general business overheads, not directly attributable to particular supplies: specifically, whether any of the residual input tax paid by the respondent in respect of general business overheads is deductible against the output tax paid on the taxable supply of vehicles to customers. In December 2007 the appellant agreed to a new, updated version of a partial exemption special method (PESM) with the respondent for determining the allowable proportion of residual input tax. It did not, however, agree to the respondents proposed methodology for retail (under which HP falls). The appellants approach is that overheads are all attributable to the exempt supplies of finance and the input tax is therefore irrecoverable. The respondent, meanwhile, argues that the residual input tax should be in proportion to the ratio of taxable transactions to the whole, which has the effect of splitting the residual input tax 50/50 for HP transactions. That issue was decided in favour of the respondent by the First Tier Tribunal (FTT) and Court of Appeal, while the Upper Tribunal (UT) had supported the approach of the appellant. A secondary issue between the parties is the appellants argument that it had a fall back position on the amount of the apportionment that the FTT had failed to consider. The UT considered an extract from the hearing notes of Judge Berner in the FTT as supporting the appellants claim that it had asked the FTT to consider in the alternative whether a lesser figure than 50% should have been attributed to the taxable supplies. The Court of Appeal, however, disagreed, holding that the appellant did not attempt to rely on an alternative methodology before the FTT. On the main issue in the appeal the Supreme Court makes a reference to the Court of Justice of the European Union (CJEU). On the second issue, the Court unanimously dismisses the ground of appeal. Lord Carnwath gives the judgment, with which the other Justices agree. On the primary issue in the appeal, the Court decides that a reference to the CJEU is necessary to reach a conclusion [3]. Its questions to the CJEU include: where general overhead costs attributed to hire purchase transactions (which consist of exempt supplies of finance and taxable supplies of cars), have been incorporated only into the price of the taxable persons exempt supplies of finance, does the taxable person have a right to deduct any of the input tax on those costs? Further, can it be legitimate in principle to ignore the value of the taxable supplies of cars (or their value) for the purposes of arriving at a special method under Article 173(2)(c) of Council Directive 2006/112/EC? Determination of the secondary issue does not require examination of general questions about the tribunals role. One of the strengths of the tribunal system is the flexibility of its procedures, which need to be adapted to a wide range of types of case and litigant. There may be some circumstances where a more inquisitorial approach is appropriate, but where the tribunal is dealing with substantial litigants represented by experienced counsel, it is entitled to assume that the parties will have identified what they regard as relevant issues for decision [7]. Particular importance is attached to the tribunals understanding of the issue before it, as apparent from the tribunals own introduction to the detailed discussion at paragraph 41 [8]. The Court has no material to go behind the clear statement of the position as the tribunal understood it, having itself apparently sought clarification. If the tribunal was thought to have misunderstood the appellants position and failed to deal with a significant issue, the matter could have been raised with them and sorted out at that point [9]. As the tribunals understanding is consistent with the lack of any specific reference to this issue in the appellants written submissions or in the evidence of its witness, this ground of appeal is dismissed.
This appeal raises three questions. The first is whether a court, when entertaining a claim for possession by a private sector owner against a residential occupier, should be required to consider the proportionality of evicting the occupier, in the light of section 6 of the Human Rights Act 1998 and article 8 of the European Convention on Human Rights (the Convention). The second question is whether, if the answer to the first question is yes, the relevant legislation, in particular section 21(4) of the Housing Act 1988, can be read so as to comply with that conclusion. The third question is whether, if the answer to the first and second questions is yes, the trial judge would have been entitled to dismiss the claim for possession in this case, as he said he would have done. The factual and procedural background The substantive facts The appellant, Fiona McDonald, is aged 45 and, sadly, she has had psychiatric and behavioural problems since she was five. Dr Peter Sargent, an experienced psychiatrist, explained in his expert evidence that she had an emotionally unstable personality disorder and at times when her mental state has deteriorated she has presented with frank psychotic symptoms. She has been unable to hold down any employment, and has not worked since 1999; since that time she lost two public sector tenancies owing to her behaviour. In those circumstances, her parents, who are technically the respondents to this appeal, decided to buy a property for her to occupy. Accordingly, in May 2005, they purchased 25 Broadway Close, Witney (the property) with the assistance of a loan from Capital Home Loans Ltd (CHL), which was secured by way of a registered legal charge over the property. From about June 2005, the respondents granted the appellant a series of assured shorthold tenancies (ASTs) of the property, on the basis that the rent would be covered by housing benefit. The last of those ASTs was granted in July 2008 for a term of one year from 15 July 2008. The appellant continues to live in the property. The financial arrangements between the respondents and CHL were that the respondents were to pay interest on the loan by way of monthly instalments, and that the loan was to be repayable in full after eight years ie on 12 May 2013. Initially, the respondents paid the interest instalments as they fell due. However, owing to financial difficulties which they unfortunately encountered in their business, they failed to meet all the interest as it fell due. Accordingly, in August 2008, CHL appointed Andrew Hughes and Julian Smith (the Receivers) to act as receivers of the property under section 109 of the Law of Property Act 1925. Having been appointed under that provision, the Receivers, although appointed by the chargee, CHL, were entitled to take steps in relation to the property on behalf of, and in the name of, the chargors, the respondents. As the rent was being regularly paid, and the arrears of interest were not substantial, the Receivers took no immediate steps to end the AST or to sell the property. However, not least because the arrears persisted, albeit not on a very large scale, the Receivers served a notice, in the name of the respondents, on the appellant on 13 January 2012, indicating that they would be seeking possession of the property. The notice was served under section 21 of the Housing Act 1988 (the 1988 Act) and it expired on 14 March 2012. The procedural history On the expiry of that notice, the Receivers then issued the instant proceedings, again in the names of the respondents, for possession of the property in the Oxford County Court. In the light of the appellants mental health, her brother, Duncan McDonald, was appointed her litigation friend. The proceedings came on for trial before His Honour Judge Corrie, who heard them on 4 December 2012 and 7 March 2013. The evidence of Dr Sargent included the following passages, which were quoted by the judge in his judgment: [Homelessness], I am sure, would have a major detrimental effect on [the appellants] mental health and she would decompensate entirely, very probably requiring admission to hospital. I think that if she was evicted from the current accommodation she would have real difficulty in finding alternative rented accommodation that would accept her on benefits and in view of her mental health history including at times aggression towards others. I think that there is a significant possibility that she would become homeless as a consequence. Even if alternative accommodation is found for her, I think that the stress and upheaval of trying to find and move into alternative accommodation would also very likely have a significantly detrimental effect on her mental health with the possibility of harm to herself or suicide, or the possibility of violence towards others which she has exhibited on a number of occasions when she has previously de compensated under stress. Judge Corrie gave judgment on 22 April 2013. In his judgment, he considered a number of issues which are no longer live between the parties, including whether the respondents had misled CHL (they had not), and whether the Receivers had had authority to serve the notice and bring the proceedings (they had). Accordingly, the judge concluded that, subject to the appellants reliance on article 8, the court had no alternative to make an order for possession. He then turned to consider the appellants article 8 case, and held that it was not open to her to require the court to consider the proportionality of making an order for possession against a residential occupier, given that the person seeking possession was not a public authority. He went on to hold that, if he was wrong on that issue, and he had been entitled to consider the proportionality of making an order for possession, he would have dismissed the action, because, on balance, he would have taken the view that those circumstances were sufficiently exceptional to justify dismissing the claim for possession on the basis that it was disproportionate. The appellant appealed to the Court of Appeal, who dismissed the appeal [2014] EWCA Civ 1049; [2015] Ch 357. The main judgment was given by Arden LJ, Tomlinson LJ gave a brief concurring judgment, and Ryder LJ gave a concurring judgment agreeing with them both. The Court of Appeal agreed with the judge that article 8 could not be invoked by a residential occupier in possession proceedings brought by a private sector landowner, as a ground for opposing the making of, or the terms of, the order for possession. However, they considered that, if article 8 could have been invoked in this case, the judge would have been wrong to dismiss the claim as he had indicated that he would have done. The appellant now appeals to this court. Before turning to the three issues identified in para 1 above, it is appropriate to explain the relevant provisions of the 1988 Act, and, albeit in very summary terms, the history of the policy of successive Governments towards renting in the private sector. Private sector residential tenants and the relevant statutory provisions Government policy since 1977 In the late 1970s, residential tenants in England and Wales had two forms of protection, which applied even if their tenancies had contractually expired, namely (i) protection from summary eviction and (ii) security of tenure. The first, which applied to all residential tenants and most licensees, was under the Protection from Eviction Act 1977, which, among other things, precluded their eviction other than through court proceedings. That statute remains in force, and, although it has been amended from time to time (sometimes for the purpose of strengthening or extending), its original provisions remain substantially in place. There were also statutory provisions governing the amount of time which a court could allow an occupier before an order for possession took effect and could be executed. Security of tenure, which only applied to tenants with private sector landlords, was accorded by the Rent Act 1977, whose provisions extended to most but not all such tenancies. In very summary terms, that Act (i) precluded a court making an order for possession against most such tenants unless one or more of a number of specified grounds could be established, (ii) permitted family members to succeed on the death of the tenant in some circumstances, and (iii) limited the level of rent which a landlord could recover from the tenant, often to a rate considerably below the market level. Under Chapter II of Part I of the Housing Act 1980, later replaced by Part IV of the Housing Act 1985, residential public sector tenants were for the first time given a substantially similar degree of security of tenure. In 1987, the Conservative government published a White Paper, Housing: The Government's Proposals (Cm 214, 1987). One of its principal aims was to reverse the decline of rented housing and to improve its quality para 1.1. An important part of its thesis was that the protection afforded to tenants by the Rent Act 1977 and similar predecessor legislation, not least because of the security of tenure thereby afforded to tenants, had greatly reduced both the supply and the quality of housing in the private rented sector, which was to the disadvantage of residential tenants as a group paras 1.8 and 3.1. The 1987 White Paper therefore made proposals which were intended according to para 1.15 to ensure that the letting of private property will again become an economic proposition. The White Paper therefore proposed two new types of tenancy, namely (i) an assured tenancy, which would be at a freely negotiated rent, but with the tenant having security of tenure (albeit somewhat more attenuated than under the Rent Act 1977), and (ii) an AST, under which the tenant would have very limited security of tenure, and either party could have an appropriate rent determined (which would be substantially less restricted than the rent fixed under the Rent Act 1977) para 3.11. The Bill which became the 1988 Act was introduced to give effect to these proposals (as well as giving effect to other proposals). As originally enacted, the 1988 Act defined an AST as being a fixed term tenancy for at least six months, which could not be determined earlier by the landlord, and in respect of which the tenant had been given a notice in a prescribed form before the tenancy was granted. The 1988 Act set out a number of grounds upon which a landlord could seek possession against a tenant under a shorthold tenancy (including an AST); it also contained provision for the landlord to serve a notice seeking possession at any time after the contractual term of an AST had expired, and then provided that the court should grant possession. (Housing Associations which had previously been treated as public sector landlords were brought into the ambit of the 1988 Act by section 140(2) and Schedule 18). In 1995, the Conservative government published another White Paper, Our Future Homes: Opportunity, Choice and Responsibility (Cm 2901, 1995). This White Paper noted the increase in the number of private sector tenancies in the residential sector between 1988 and 1994, and ascribed it largely to the 1988 Act, which had made renting out property a much more attractive alternative for owners p 21. It also emphasised the need to reduce unnecessary regulation and control p 24. The 1995 White Paper led to provisions in the Housing Act 1996 (the 1996 Act), whose effect was that (subject to exceptions) all assured tenancies granted after March 1997 would be ASTs; the 1996 Act also abolished the requirements for a six month minimum term and for the service of a prescribed notice (although it gave some protection under section 21(5) and it also required certain information to be given to tenants). At the same time, an accelerated procedure was introduced whereby landlords could obtain possession against tenants under ASTs which had been the subject of notice of determination (see CPR 55.11 to 55.19 and CPR PD55A). Around the same time, the so called buy to let sector began in earnest, and it subsequently has undergone an expansion, reflecting the structural and demographic trends towards a larger [private rental sector] according to a Treasury consultation paper, Financial Policy Committee powers of direction in the buy to let market, published in December 2015. Following the general election in 1997, the Labour Government stated that it did not intend to reverse the reforms affected by the 1988 and 1996 Acts, but rather to build on them by promoting choice in both the public and private sectors, to quote from para 2.68 of a Law Commission Consultation Paper No 162 Renting Homes 1: Status and Security (2002), citing a paper published by the Department for Transport, Local Government and the Regions, Quality and Choice: A Decent Home for All, The Way Forward for Housing (December 2000). That policy was continued by the Coalition government in 2010 and there is no reason to think that the Conservative government, elected in 2015, has different ideas. Accordingly, since 1996, although the 1988 Act has been amended from time to time, its basic provisions have remained unaffected and continue to apply in England. (The Welsh Assembly has enacted a scheme based upon the Law Commissions recommendations on Renting Homes: The Final Report (2006, Law Com No 297) which preserves essentially the same distinction between private and public sector tenancies.) Successive reports emanating from government departments have claimed that the decrease in statutory protection effected by the 1988 and 1996 Acts has been at least one of the factors which has served to reinvigorate the private residential rented sector in England and Wales over the past 25 years see eg the annual English Housing Surveys issued by the Department for Communities and Local Government. The Housing Act 1988 in its current form Chapters I and II of Part I of the 1988 Act are concerned with assured tenancies generally and ASTs respectively. Section 1 provides that a tenancy under which a dwelling house is let as a separate dwelling to an individual or individuals, who occupy it as her or their only or principal home is an assured tenancy, subject to certain specified exceptions (including cases where a local authority is the landlord). None of those exceptions apply here. Section 19A (as inserted by section 96(1) of the 1996 Act) provides that, subject to certain irrelevant exceptions, an assured tenancy entered into after March 1997 shall be an AST. Section 5 of the 1988 Act (as amended by section 299 of, and paragraph 6 of Schedule 11 to, the Housing and Regeneration Act 2008) is in these terms, so far as relevant: (1) An assured tenancy cannot be brought to an end by the landlord except by (a) obtaining an order of the court for possession of the (i) dwelling house under section 7 or 21, the execution of the order, and (ii) and, accordingly, the service by the landlord of a notice to quit is of no effect in relation to a periodic assured tenancy. (1A) Where an order of the court for possession of the dwelling house is obtained, the tenancy ends when the order is executed. (2) comes to an end otherwise than by virtue of If an assured tenancy which is a fixed term tenancy an order of the court [of] the kind mentioned in (a) subsection(1)(a) , or (b) tenant, a surrender or other action on the part of the then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling house let under that tenancy and his right to possession shall depend upon a periodic tenancy arising by virtue of this section. Section 7(1) of the 1988 Act provides that [t]he court shall not make an order for possession of a dwelling house let on an assured tenancy except on one or more of the grounds set out in Schedule 2. Section 7(3) (as amended by paragraph 18 of Schedule 11 to the Anti social Behaviour, Crime and Policing Act 2014) requires the court to make an order for possession if any of those grounds is made out, subject, inter alia, to any available defence based on the tenants Convention rights, within the meaning of the Human Rights Act 1998. Section 7(6) provides that a landlord can only rely on section 7 if the AST has expired or could be brought to an end on the ground on which possession is sought. A common ground relied on under section 7 is arrears of rent, which represent a mandatory ground for possession if the rent is more than a specified period, between eight weeks and three months (depending on how frequently it is to be paid), in arrear see ground 8 of Schedule 2. Section 19A provides that (subject to certain exceptions which are irrelevant for present purposes) an assured tenancy entered into after March 1997 is an AST. Section 20A (as inserted by section 97 of the 1996 Act) requires a landlord under such a tenancy to provide the tenant with certain information in writing, failing which the landlord is liable to be convicted. Section 21(1) of the 1988 Act (as amended by section 193 of, and paragraph 103 of Schedule 11 to, the Local Government and Housing Act 1989 and section 98(2) of the 1996 Act) states at the time of the service of notice and the hearing in the County Court in this case: [O]n or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling house if it is satisfied (a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not); and (b) the landlord has given to the tenant not less than two months notice in writing stating that he requires possession of the dwelling house. (Various other restrictions on a courts power to order possession in relation to an AST have been added by the Housing Act 2004, the Deregulation Act 2015 and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations (SI 2015/1646) but nothing hangs on them for period proposed.) Section 21(4) (as amended by section 98(3) of the 1996 Act) is at the centre of this case. It states that: Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied (a) that the landlord has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling house is required by virtue of this section; and that the date specified in the notice under (b) paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above. Accordingly, a landlord under an AST can obtain an order for possession from a court against the tenant either (i) under section 21, after giving two months notice once the AST has come to an end, or (ii) under section 7, where the AST is a periodic tenancy or has come to an end or could be brought to an end, and one of the specified grounds is made out by the landlord. In practice, the majority of possession proceedings issued against tenants who have been granted ASTs are brought under section 21 rather than section 7. Chapter IV of the 1988 Act reinforces the protection to residential tenants afforded by the Protection from Eviction Act 1977. In particular, it imposes a fairly steep measure of damages on a landlord who unlawfully evicts a residential occupier, and extends the ambit of the offence of harassment. It is also relevant to refer to section 89(1) of the Housing Act 1980 which applies to possession orders against tenants under ASTs. That section provides that, subject to certain exceptions (which do not include orders for possession in respect of an AST): Where a court makes an order for the possession of any land , the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than 14 days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order. The issues In summary terms, the appellants argument is that, when considering whether to make an order for possession against her, and if so on what terms, the judge should have taken into account the proportionality of making any such order, bearing in mind in particular article 8 and the interference which would be occasioned by the making of the order to her enjoyment of her home, and that, had he done so, he would have been entitled to refuse to make an order for possession and to dismiss the claim. The effect of this argument would be that, despite the apparently mandatory requirements of section 21(4) of the 1988 Act (set out in para 25 above), the judge could have refused to make an order for possession in favour of the respondents, or, despite the apparently mandatory terms of section 89(1) of the 1980 Act (set out in para 28 above), he could have suspended or delayed the operation of the order for possession for a substantial, or even an indeterminate, period. This argument gives rise to the three issues set out at para 1 above. We shall take them in turn. The first issue: can the appellant rely on proportionality? Introductory Article 8 of the Convention provides as follows: 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 wellbeing 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. Section 6(1) of the Human Rights Act 1998 provides that [i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right, which, of course, includes an article 8 right. Section 6(1) is subject to subsection (2), which provides that subsection (1) does not apply if the authority is required so to act as a result of primary legislation or provisions made thereunder which cannot be construed in any other way. Where the party seeking possession of residential property is a local authority, or other public authority within the meaning of section 6 of the Human Rights Act 1998, it is now well established that it is, in principle, open to the occupier to raise the question whether it is proportionate to make an order for possession against her, and if it is, to invite the court to take that into account when deciding what order to make. That is the effect of the decisions of this court in Manchester City Council v Pinnock [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] 2 AC 186. Pinnock represented the resolution of a protracted inter judicial dialogue between the House of Lords and the Strasbourg court, discussed in paras 25 50. The view originally taken by the House of Lords was that, although a claim for possession of residential property by a local authority engaged the article 8 right of the residential occupier, the proportionality of making an order for possession was already taken into account by Parliament through the legislation which limited the landlords right to obtain possession. However, the Strasbourg court took the view that the existence of the legislation did not prevent an occupier in such a case from raising her article 8 rights when possession of her home was being sought. In Pinnock, para 49, this court concluded that, in the light of the Strasbourg courts clear and constant jurisprudence, if our law is to be compatible with article 8, where a court is asked to make an order for possession of a persons home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact. However, the Supreme Court also made it clear in paras 51 and 54 that it would only be in very highly exceptional cases that it will be appropriate for the court to consider a proportionality argument and that where the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. In Pinnock, it was made clear that the Supreme Courts conclusion, that proportionality should, if raised, be addressed (albeit that in the great majority of cases it could and should be summarily rejected) in every possession action against a residential occupier, only applied in cases where the person seeking possession was a local authority or other public authority. That was because section 6(1) of the 1998 Act only applied to a public authority, which is unsurprising, given that the Convention is intended to protect individual rights against infringement by the state or its emanations. Thus, in Pinnock, para 50, the Supreme Court made it clear that nothing said in the judgment in that case was intended to bear on cases where the person seeking the order for possession is a private landowner, and added that it was preferable for this court to express no view on the issue until it arises and has to be determined. The present appeal raises that issue, and it therefore now falls to be determined. A private sector landlord, such as the respondents, who are individuals, or CHL, which is a limited company trading for profit, is not a public authority. However, the appellant argues that, because a court is specifically included within the expression public authority by section 6(3)(a) of the 1998 Act, no judge can make an order for possession of a persons home without first considering whether it would be proportionate to do so, and, if so, what terms it would be proportionate to include in the order. Again, it can be said with some force that this is not, at least on the face of it, a particularly surprising proposition, as a domestic court would be regarded by the Strasbourg court as part of the state, and therefore obliged to respect individual rights enshrined in the Convention. Accordingly, runs the appellants argument, in terms of article 8 proportionality, the position of a private sector residential tenant facing eviction is quite similar to that of a public sector residential tenant, as determined in Pinnock and Powell. Having said that, it is, I think, accepted by the appellant that the position of a private sector tenant is rather weaker in that a private sector landlord can claim that any delay in giving him possession of the property to which he is entitled would be an interference with his rights under article 1 of the First Protocol to the Convention (A1P1), which 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. Accordingly, as Ms Bretherton QC accepts on behalf of the appellant, unlike in the case of a public sector landlord, a judge invited to make an order for possession against a residential occupier by a private sector landlord would, if the appellants argument is correct, have to balance the landlords A1P1 rights against the occupiers article 8 rights. Either party would have a potential claim against the United Kingdom in Strasbourg if the balance were struck in the wrong place. Preliminary view In the absence of any clear and authoritative guidance from the Strasbourg court to the contrary, we would take the view that, although it may well be that article 8 is engaged when a judge makes an order for possession of a tenants home at the suit of a private sector landlord, it is not open to the tenant to contend that article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants. In effect the provisions of the Protection from Eviction Act 1977, section 89 of the Housing Act 1980 and Chapters I and IV of the 1988 Act, as amended from time to time, reflect the states assessment of where to strike the balance between the article 8 rights of residential tenants and the A1P1 rights of private sector landlords when their tenancy contract has ended. (It is true that the balance was initially struck in statutes enacted before the 1998 Act came into force in 2000. However, the effect of those statutes has not only been considered and approved in government reports since 2000, as mentioned in para 19 above, but they have been effectively confirmed on a number of occasions by Parliament, when approving amendments to those statutes since 2000). To hold otherwise would involve the Convention effectively being directly enforceable as between private citizens so as to alter their contractual rights and obligations, whereas the purpose of the Convention is, as we have mentioned, to protect citizens from having their rights infringed by the state. To hold otherwise would also mean that the Convention could be invoked to interfere with the A1P1 rights of the landlord, and in a way which was unpredictable. Indeed, if article 8 permitted the court to postpone the execution of an order for possession for a significant period, it could well result in financial loss without compensation for instance if the landlord wished, or even needed, to sell the property with vacant possession (which notoriously commands a higher price than if the property is occupied). The contrary view would also mean that article 8 could only be invoked in cases where a private sector landowner, or other private sector entity entitled to possession in domestic law, was either required by law, or voluntarily chose, to enforce its rights through the court, as opposed to taking the law into its own hands eg by changing the locks when the residential occupier was absent. There are a number of types of residential occupiers who are not protected by the Protection from Eviction Act 1977, and who can therefore be physically (albeit peaceably) evicted, such as trespassers, bare licensees, sharers with the landlord and some temporary occupiers, as well, it appears, as mortgagors see Ropaigealach v Barclays Bank plc [2000] 1 QB 263. The risk of otherwise facing an article 8 defence seems a somewhat perverse incentive for a private sector landowner to take the unattractive course of locking out the occupier rather than the more civilised course of seeking possession through the courts. More broadly, it would be unsatisfactory if a domestic legislature could not impose a general set of rules protecting residential tenants in the private sector without thereby forcing the state to accept a super added requirement of addressing the issue of proportionality in each case where possession is sought. In the field of proprietary rights between parties neither of whom is a public authority, the state should be allowed to lay down rules which are of general application, with a view to ensuring consistency of application and certainty of outcome. Those are two essential ingredients of the rule of law, and accepting the appellants argument in this case would involve diluting those rules in relation to possession actions in the private rented sector. It is, of course, true that a court, which is a public authority for the purposes of the 1998 Act (and is regarded as part of the state by the Strasbourg court), actually makes the order for possession which deprives the tenant of his home and indeed puts an end to the AST. However, as Lord Millett explained in Harrow London Borough Council v Qazi [2004] 1 AC 983, paras 108 109, the court is merely the forum for the determination of the civil right in dispute between the parties and once it concludes that the landlord is entitled to an order for possession, there is nothing further to investigate. This conclusion does not mean that a tenant could not contend that the provisions of the 1988 Act did not, for some reason, properly protect the article 8 rights of assured shorthold tenants: that would involve arguing that the legislature had not carried out its obligations under the Convention. However, quite rightly, no such argument was advanced on behalf of the appellant in this case. As the summary in paras 11 19 above shows, the Governments approach to the private rented sector in England has been designed to confer a measure of protection on residential occupiers, without conferring so much protection as to deter private individuals and companies from making residential properties available for letting. The extent of the protection afforded to tenants under ASTs is significant, if limited, and it enables both landlords and tenants to know exactly where they stand. While there will of course occasionally be hard cases, it does not seem to us that they justify the conclusion that in every case where a private sector landlord seeks possession, a residential tenant should be entitled to require the court to consider the proportionality of the order for possession which she has agreed should be made, subject to what the legislature considers appropriate. Of course, there are many cases where the court can be required to balance conflicting Convention rights of two parties, eg where a person is seeking to rely on her article 8 rights to restrain a newspaper from publishing an article which breaches her privacy, and where the newspaper relies on article 10. But such disputes arise not from contractual arrangements made between two private parties, but from tortious or quasi tortious relationships, where the legislature has expressly, impliedly or through inaction, left it to the courts to carry out the balancing exercise. It is in sharp contrast to the present type of case where the parties are in a contractual relationship in respect of which the legislature has prescribed how their respective Convention rights are to be respected. Given that that is our view as a matter of principle, it is necessary to consider the jurisprudence of the Strasbourg court to see whether it points to a different conclusion. The Strasbourg jurisprudence There are two admissibility decisions of the European Commission on Human Rights which are inconsistent with the appellants case, and are understandably relied on by Mr Jourdan QC for the respondents. They are Di Palma v United Kingdom (1986) 10 EHRR 149 and Wood v United Kingdom (1997) 24 EHRR CD 69. Di Palma was a case where a private sector landlord forfeited a long and valuable residential lease for non payment of a relatively small amount of service charge, and the court refused the tenant relief from forfeiture owing to her refusal to apply within the statutorily prescribed time. The Commission rejected the tenants application, which was based on articles 6, 8, 13 and 14 and on A1P1, as manifestly ill founded, as the Governments Convention responsibilities were not engaged by an exclusively private law relationship between the parties (p 154). The Commission also said that the fact that a domestic court made the orders granting forfeiture and refusing relief made no difference, as the court merely provided a forum for the determination of the civil right in dispute between the parties (p 155). In Wood, the same reasoning led to the conclusion that a mortgagor had no article 8 complaint if a private sector mortgagee sought and obtained possession of her home in circumstances in which she had failed to pay instalments due under the mortgage, which gave the mortgagee the right to seek possession as a matter of domestic law. If these decisions represent the view in Strasbourg, they would be fatal to the appellants case. However, Ms Bretherton QC contends that the Strasbourg jurisprudence has developed in a very different direction over the past 15 years. So far as possession actions brought by public sector landlords are concerned, this is undoubtedly correct, as the decisions discussed in Pinnock, paras 31 43, demonstrate. However, as we have explained, and as Ms Bretherton fairly accepts, there is a fundamental difference between public sector landlords (who owe their residential tenants an article 8 duty) and private sector landlords (such as those in the two admissibility decisions described in para 48 above, who do not). Accordingly, we do not consider that the decisions concerning cases where a public sector landlord seeks possession are of much relevance. Of those decisions discussed in Pinnock, it appears to us therefore that Connors v United Kingdom (2004) 40 EHRR 9, Blei v Croatia (2006) 43 EHRR 48, McCann v United Kingdom (2008) 47 EHRR 40, osi v Croatia (2011) 52 EHRR 39, Pauli v Croatia (Application No 3572/06) (unreported) 22 October 2009 and Kay v United Kingdom [2011] HLR 13 take matters little further for present purposes, as the party seeking possession was a public institution. The same applies to the decisions in Orli v Croatia [2011] HLR 44 and in Buckland v United Kingdom (2013) 56 EHRR 16 (where the local authority owned the site see para 60). The furthest any observations in those eight decisions can be said to go for present purposes is to support the notion that, whenever an order for possession is made by a court, article 8 is engaged. However, observations which appear to have that effect when read on their own in the context of claims by public authorities, cannot be confidently translated to cases involving private sector landlords seeking to enforce a contractual right to possession subject to legislative constraints. And, even if they can be so read, they beg the question whether a domestic court can be required to take into account the proportionality of making the order for possession required by the contractual terms as softened by domestic legislation. Zehentner v Austria (2009) 52 EHRR 22 is at first sight of some assistance to the appellant, because the Strasbourg court held that article 8 rights could be invoked where the court had ordered a sale of the applicants home to reimburse her creditors. However, quite apart from the fact that Austria does not seem to have challenged the contention that article 8 was engaged, the case was not concerned with the enforcement of a landlords right to possession, but with statutorily created powers of a court to enforce debts owed to creditors by ordering the sale of the debtors assets, including her home. The basis of the courts finding of incompatibility was that the decision of the domestic court refusing the applicant any opportunity to pay off what was owing to her creditors had been disproportionate, principally in the light of the absence of any procedural safeguards and the applicants mental incapacity, which meant that the debts were unenforceable see paras 61 65. The furthest this decision goes in assisting the appellant is to support the notion that article 8 is engaged whenever a court determines a tenancy of residential property and makes an order for possession. However, once again, the decision does not support the notion that article 8 can be invoked by a residential occupier to curb her private sector landlords reliance on its contractual right to possession, where the statutory regime according her a degree of protection is not said to infringe the Convention. Zrili v Croatia (Application No 46726/11) (unreported) 3 October 2013 is unhelpful for the same sort of reasons. It involved the partition and sale of a residential property. Croatia does not seem to have challenged the contention that article 8 could be invoked by the applicant, once she established that the property concerned was her home (see paras 42 and 59). Quite apart from this, the case involved the domestic court exercising its own powers of partition and sale, rather than enforcing the contractual rights of the parties subject to specific legislative protective provisions, and it was a case where both parties had article 8 rights. Thus, in para 65, the Strasbourg court described the domestic courts function as being to seek a partition model which would be feasible and appropriate in the circumstances of the case. In any event, the application was rejected on the merits. In two other cases involving Croatia, article 8 was successfully invoked by a residential tenant against whom a private sector landlord had obtained an order for possession. In Breec v Croatia [2014] HLR 3, the land owner was a private company, but it had been a state owned company when the tenancy was granted a factor which the court plainly thought relevant (see para 48). In any event, Croatia did not rely on the subsequent privatisation to justify an argument that article 8 could not be invoked (see para 33). It therefore seems to us that the judgment in that case can take matters no further on this appeal. The same points can be made about the subsequent decision in Lemo v Croatia (Application No 3925/10, etc) (unreported) 10 July 2014 (see paras 28 and 43). For completeness, it is right to mention Belchikova v Russia (Application No 2408/06) (unreported) 25 March 2010, which also involved a private land owner seeking possession (having inherited the property concerned after the former owners death), but the decision is of no assistance as there appears to have been no challenge to the contention that article 8 could be invoked, it appears that the domestic law may well have involved a balancing exercise, and in any event the application was held to be manifestly ill founded on the facts. It is worth noting concurring opinions in two of the Strasbourg court decisions mentioned above, which are very much in line with Lord Milletts observation in Qazi, cited in para 44 above. In Buckland, para OI 1, Judge De Gaetano said that while it is perfectly reasonable to require that an eviction notice issued by the Government or by a local authority should be capable of being challenged on the grounds of proportionality, when the landlord is a private individual the tenants right should in principle be limited to challenging whether the occupation has in fact come to an end according to law. He added that [i]n this latter case the proportionality of the eviction in light of the relevant principles under article 8 should not come into the equation. In Breec, at pp 37 38, Judge Dedov, having pointed out that the applicant did not challenge the privatisation of the properties, observed that, if the domestic court could hold that it was disproportionate to grant the land owner possession when domestic law entitled him to it, it would represent an interference with the private owners claims, and that it would have amounted to interference with the owners rights and such interference would be arbitrary from the very outset, since the private owner cannot be responsible for the states social obligations. Another decision which deserves mention is Mustafa and Tarzibachi v Sweden (2008) 52 EHRR 24, where the Strasbourg court considered a claim by applicants who had been evicted by a court order at the suit of their landlords, who had determined their tenancy for installing a satellite dish in breach of covenant. The Strasbourg court held that this infringed the applicants article 10 rights, but did not go on to consider their claim in so far as it was based on article 8 (see para 54). It is fair to say that the domestic courts involvement was enough to render the application based on articles 8 and 10 admissible (see paras 33 34). However, as we have already said, that does no more than establish that article 8 is engaged in a case where a private sector claimant seeks possession of a defendants home pursuant to the terms of the contract between them. Beyond that, it does not seem to us that Mustafa is of any assistance. Contrary to the submission on behalf of the appellant, we do not consider that this decision involved holding that article 10 could be invoked to vary the contractual rights as agreed between two private persons, in a case such as the present, where there is no suggestion that the legislature has failed to protect the relevant Convention rights. The effect of the decision in Mustafa, as we see it, was that the Swedish Government had failed to enact legislation to satisfy article 10, so far as individuals rights to receive information by satellite were concerned, and that in those circumstances, unless the court had power to give effect to such rights despite the terms of the relevant contract, the applicants article 10 rights would be infringed (see again para 34). Indeed, it is worth noting that the Strasbourg court in Mustafa considered that para 59 of its earlier judgment in Pla v Andorra (2006) 42 EHRR 25 was in point (see footnote 8). In that paragraph the Strasbourg court said that it could not remain passive where a national courts interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by article 14 and more broadly with the principles underlying the Convention. That is a long way from what this case is about. Conclusion on the first issue In these circumstances, while we accept that the Strasbourg court jurisprudence relied on by the appellant does provide some support for the notion that article 8 was engaged when Judge Corrie was asked to make an order for possession against her, there is no support for the proposition that the judge could be required to consider the proportionality of the order which he would have made under the provisions of the 1980 and 1988 Acts. Accordingly, for the reasons set out in paras 40 46 above, we would dismiss this appeal on the first issue. This renders it unnecessary to address the second and third issues. However, both issues are of potential importance. The second issue is relevant to many cases when the court is faced with a choice between making an order under section 3 or under section 4 of the 1998 Act. The third issue is of importance in terms of giving guidance to judges faced with an article 8 proportionality argument by a residential occupier in the context of a possession claim by a public sector land owner. Accordingly, we will go on to consider those two issues. The second issue: could section 3 have applied? Section 3(1) of the 1998 Act provides that 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. The appellant argues that, if this court could read down section 143D(2) of the 1996 Act (as inserted by paragraph 1 of Schedule 1 to the Anti social Behaviour Act 2003) in Pinnock and section 127(2) of the same Act in Powell, then there is no reason not to do the same for section 21(4) of the 1988 Act. Their wording is in similarly mandatory terms. Section 21(4) (para 25 above) states that the court shall make an order for possession of a dwelling house let on an assured shorthold tenancy which is a periodic tenancy if satisfied, in effect, that the landlord has served the correct two months notice. Section 143D(2) of the 1996 Act, which relates to demoted tenancies, states that The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed. Section 127(2) of the 1996 Act, which relates to introductory tenancies, states that The court shall make [an order for possession] unless the provisions of section 128 apply. If those two mandatory provisions can be read down so as to allow for the court to assess the proportionality of making the order, why can section 21(4) not be read in the same way? What is the difference between the notice requirements in section 21(4) and the requirements in sections 143E and 143F or section 128 respectively? This is an attractive argument, so much so that the second interveners, the Residential Landlords Association, are persuaded that section 21(4) could be read in this way (although they argue that it should not). Indeed, we were ourselves initially attracted by it. There are, however, powerful arguments to the contrary. Both demoted and introductory tenancies can only be granted by a public authority landlord. There are three inter linked reasons why decisions made by public authorities under the 1996 Act are different from decisions made by private landlords. First, public authorities are obliged to use their powers lawfully in accordance with the general principles of public law; it is open to a tenant to defend possession proceedings on the ground that the authority has acted unlawfully: see Wandsworth London Borough Council v Winder [1985] AC 461. As Lord Scott of Foscote pointed out in Doherty v Birmingham City Council [2009] 1 AC 367, at para 69, this concept of lawfulness has no application to a private landlord, who is entitled to recover possession of his property in accordance with the law for whatever reason he likes. He is not subject to the constraints of Wednesbury reasonableness: see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223. Second, section 143E of the 1996 Act (as inserted by paragraph 1 of Schedule 1 to the 2003 Act) requires the landlord seeking to bring a demoted tenancy to an end to serve a notice giving reasons for doing so and informing the tenant of his right to seek a review of the decision under section 143F (as inserted by paragraph 1 of Schedule 1 to the 2003 Act). Similarly, section 128 of the 1996 Act requires the landlord seeking to bring an introductory tenancy to an end to serve a notice giving reasons and informing the tenant of his right to seek a review. In short, both are reasons based processes. There is nothing equivalent in section 21(4) of the 1988 Act, which is purely mechanical the right form of notice must be given at the right time to expire at the right time. Third, of course, by section 6(1) of the 1998 Act, it is unlawful for a public authority landlord to act incompatibly with the Convention rights. By section 7(1)(b) 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 rely on the Convention right concerned in any legal proceedings. None of this applies to a private landlord, who is not obliged to act compatibly with the Convention rights. It was for this combination of reasons that this court, in both Pinnock and Powell, held that it was possible to read the relevant provisions of the 1996 Act in such a way as to include the article 8 requirement of proportionality in the courts assessment of the lawfulness of the public authoritys actions in seeking possession. It is true, as the third interveners, Shelter, point out, that there are constraints on a private landlords freedom of action, other than those laid down in section 21(4) itself (an example is the Equality Act 2010, which prohibits unlawful discrimination in bringing possession proceedings). But all of these are laid down by statute or statutory instrument. And none of them imports the public sector obligations, in particular the duty to act compatibly with the Convention rights, set out above. There is therefore not the same flexibility inherent in the language of section 21(4) of the 1988 Act as there is in the language of sections 143D and 127(2) of the 1996 Act such as to enable the court to read into it a requirement that the court consider the proportionality of making an order for possession. More importantly, however, there are substantive limits to what the courts can achieve under section 3(1) of the 1998 Act. It is possible to do a great deal with words. In the leading case of Ghaidan v Godin Mendoza [2004] UKHL 30; [2004] 2 AC 557, it was possible to read as husband and wife to include two people of the same sex. The courts had already learned what could be achieved by interpretation in order to make statutory provisions conform to a higher law, under the European Communities Act 1972 and in construing the legislation of certain Caribbean islands compatibly with the fundamental rights protected by their Constitutions. As Lord Rodger of Earlsferry put it in Ghaidan at para 119, Such cases are instructive in suggesting that, where the court finds it possible to read a provision in a way which is compatible with Convention rights, such a reading may involve a considerable departure from the actual words. But there is a difference between interpretation, which is a matter for the courts and others who have to read and give effect to legislation, and amendment, which is a matter for Parliament. While the boundary may not always be easy to discern, the difference was neatly encapsulated by Lord Rodger in Ghaidan at para 121: If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute. Notably, Lord Rodger was looking at the legislation itself when seeking to draw the line, rather than its broader policy. In the case before us, the scheme of the legislation is to draw a careful distinction between those cases in which good grounds must be shown for obtaining possession and those cases, such as this, where no ground need be shown. The essential principles disclosed by its provisions are that private landlords letting property under an AST should have a high degree of certainty that, if they follow the correct procedures and comply with their own obligations, they will be able to regain possession of the property. Reading in an obligation to assess the proportionality of doing so in the light of the personal circumstances of the individual tenant would not go with the grain of the legislation but positively contradict it. All this can be concluded without considering the broader policy of the 1988 Act, which (as we have explained at paras 12 to 19 above) was to stimulate the re growth of the private rented sector and in doing so to increase the supply of homes available to rent. For all those reasons, we conclude that it would not be possible to read section 21(4) in the way contended for by the appellant. Had we been persuaded that it was incompatible with the Convention rights, the only remedy would have been a declaration of incompatibility under section 4. As was said (in a different context) in Powell, at para 64, this is an area where the choice of if, and how, to remedy any incompatibility should be left to Parliament. The third issue: would the judge have been entitled to dismiss the claim? Even supposing that a proportionality assessment were required, at least where the occupier has crossed the high threshold of showing an arguable case, and section 21(4) could be read so as to accommodate it, what should the consequences be? The judge in this case held, that had proportionality arisen, he would on balance have taken the view that the appellants personal circumstances were sufficiently exceptional to justify dismissing the claim for possession on the basis that it was disproportionate. In reaching that obiter conclusion, he did not consider whether there were other solutions to the problems than dismissing the claim. In those rare cases where the court is required to assess the proportionality of making a possession order, the court has at least four possible options. One is to make a possession order, and if it does so, its powers to suspend or postpone the effect of the order are severely limited by section 89(1) of the Housing Act 1980 (set out at para 28 above). In Powell, at para 62, this court held that the language of section 89(1) was so strong that any reading down to enable the court to postpone the execution of a possession order for a longer period than the statutory maximum would go well beyond what section 3(1) of the 1998 Act permits. As Lord Phillips pointed out in Powell at para 103, the effect of section 89(1) is to increase the options available to the court. It may (a) make an immediate order for possession; (b) make an order for possession on a date within 14 days; (c) in cases of exceptional hardship make an order for possession on a date within six weeks; or (d) decline to make an order for possession at all. The cases in which it would be justifiable to refuse, as opposed to postpone, a possession order must be very few and far between, even when taken as a proportion of those rare cases where proportionality can be successfully invoked. They could only be cases in which the landlords interest in regaining possession was heavily outweighed by the gravity of the interference in the occupiers right to respect for her home. The evidence filed on behalf of Shelter indicates that Pinnock defences hardly if ever succeed against public authority landlords save in combination with some other public law factor (although they may well provide a helpful bargaining counter in particularly deserving cases). Were a proportionality defence to be available in section 21 claims, it is not easy to imagine circumstances in which the occupiers article 8 rights would be so strong as to preclude the making, as opposed to the short postponement, of a possession order. In this case, the judge referred to the fact that the arrears of interest on the mortgage were insubstantial and the rent was always up to date. That is, however, only part of the story. The loan which enabled the appellants parents to buy this house was for a period of only eight years, expiring on 12 May 2013, three weeks after the judge gave his judgment. The lenders were entitled to their money back then. The amount due (apart from legal costs) was nearly 164,000. The best chance of recovering all that was due to them was to sell the property with vacant possession. It may be, as the appellant argues, that they could recoup everything by selling the property with the appellant as sitting tenant. This does, however, seem unlikely, as her parents would have been advised to do this if they could have done. It was also in their interests to achieve the best price possible on the property, in the hope of realising some equity (which might have helped their daughter find another home). In any event, it would be for the appellant to show that a possession order would be disproportionate, and that to refuse a possession order would not prevent the lenders from recovering the sums to which they were entitled. It is difficult to see how the appellants circumstances, most unfortunate though they undoubtedly are, could justify postponing indefinitely the lenders right to be repaid. In the circumstances, therefore, and on the evidence available to the judge, it seems likely that the most the appellant could hope for on a proportionality assessment would be an order for possession in six weeks time. Conclusion For these reasons, we would dismiss this appeal.	The appellant, Fiona McDonald, is aged 45 and suffers from a personality disorder. In May 2005 her parents purchased 25 Broadway Close, Witney (the property), as a home for her, with the assistance of a loan from Capital Home Loans Ltd (CHL), which was secured by way of a registered legal charge over the property. From about June 2005, the respondents granted the appellant a series of assured shorthold tenancies (ASTs) of the property, the last of which was granted in July 2008 for a term of one year. The appellant continues to live in the property. Owing to financial difficulties with their business, the respondents failed to meet payments on the loan as they fell due. CHL accordingly appointed Andrew Hughes and Julian Smith (the Receivers) to act as receivers of the property. The rent due was regularly paid, but the arrears persisted. The Receivers subsequently served a notice, in the name of the appellants parents, on the appellant on 13 January 2012, indicating that they would be seeking possession of the property and, on the expiry of that notice, they issued proceedings in the name of the parents for possession of the property in the Oxford County Court. His Honour Judge Corrie heard the proceedings on 4 December 2012 and 7 March 2013. He gave judgment on 22 April 2013 and held that the court was not required to consider the proportionality of making an order for possession against a residential occupier where the person seeking possession was not a public authority, and as section 21(4) of the Housing Act 1988 (the 1988 Act) required him to make an order for possession against a person holding under an AST who had been served with an appropriate order, he had to make such an order. The judge added that, had he been entitled to consider proportionality, he would, on balance, have concluded that the claim for possession was disproportionate and dismissed the action. The Court of Appeal dismissed the appellants appeal. The appellant now appeals to the Supreme Court. The Supreme Court unanimously dismisses Fiona McDonalds appeal. Lord Neuberger and Lady Hale give the only judgment, with which the other Justices agree. This appeal raises three questions [1]: (i) whether a court, when entertaining a claim for possession by a private sector owner against a residential occupier, should, in light of section 6 of the Human Rights Act 1998 (the HRA) and article 8 of the European Convention on Human Rights (the ECHR) be required to consider the proportionality of evicting the occupier; (ii) whether, if the answer to question (i) is yes, the relevant legislation, in particular section 21(4) of the 1988 Act, can be read so as to comply with that conclusion; (iii) whether, if the answer to questions (i) and (ii) is yes, the trial judge would have been entitled to dismiss the claim for possession in this case, as he said he would have done. The appellants argument is that the judge should have taken into account the proportionality of making an order for possession for article 8 purposes and, on that basis, could have refused to make an order for possession despite the apparently mandatory terms of section 21(4) of the 1988 Act and section 89(1) of the Housing Action 1980 (the 1980 Act), which limits the period for which a court can postpone an order for possession taking effect [29 30]. It is well established that it is open to the occupier to raise the question of the proportionality of making an order for possession where the party seeking possession is a public authority within the meaning of section 6 of the HRA [34]. In deciding this issue in the case of Manchester City Council v Pinnock [2011] 2 AC 186, the Supreme Court made it clear that nothing in its judgment was intended to bear on cases where the person seeking possession was a private landowner [37]. The appellant contends that the same reasoning applies to a private sector landlord because the court which would grant the order for possession is a public authority for the purposes of the HRA [38 39]. The courts preliminary view is that it is not open to the tenant to contend that article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where there are legislative provisions through which the democratically elected legislature has balanced the competing interests of private sector landlords and residential tenants [40]. Were it otherwise, the ECHR could be said to be directly enforceable as between private citizens so as to alter their contractual rights and obligations [41]. As to the Strasbourg authorities, the admissibility decisions of Di Palma v United Kingdom (1988) 10 EHRR CD 149 and Wood v United Kingdom are inconsistent with the appellants case [48]. While subsequent authorities provide some support for the notion that article 8 is engaged on the making of the order for possession against a residential occupier such as the appellant, there is no support for the proposition that the judge could be required to consider the proportionality of the order which he would have made under legislation such as the 1980 and 1989 Acts [49 59]. The appeal is accordingly dismissed on the first issue [59 60]. As to the second issue, it would not be possible to read section 21(4) of the 1988 Act in the way contended for by the appellant [61 70]. Had the court been persuaded that the appellant was right on the first issue, a declaration of incompatibility under section 4 of the HRA would have been the only remedy [70]. As to the third issue, the judge did not consider whether, if he had found that the claim for possession were disproportionate, there might have been other solutions to the problem than dismissing the claim [71]. In those rare cases where a court is required to assess the proportionality of making a possession order, its powers to suspend or postpone the effect of that order are severely limited by section 89(1) of the 1980 Act [72]. The cases in which it would be justifiable to refuse, as opposed to postpone, a possession order must be very few and far between and could only be cases in which the landlords interest in regaining possession was heavily outweighed by the gravity of the interference in the occupiers right to respect for her home [73]. On the facts of this case, it seems likely that the most the appellant could hope for on a proportionality assessment would be an order for possession in six weeks time, the maximum permitted by section 89(1) of the 1980 Act [75].
In August 2007, the vessel B Atlantic, owned by the appellant, was used by unknown third parties in an unsuccessful attempt to export drugs from Venezuela. After her consequent detention by the Venezuelan authorities and the expiry of a period of more than six months, the owners treated the vessel as a constructive total loss. The issue is whether the vessel sustained a loss by an insured peril, entitling the owners to recover the vessels insured value from the respondents, her war risks insurers. The war risks insurance policy was for a year commencing 1 July 2007. According to section A, it afforded hull and machinery cover including strikes, riots and civil commotions, malicious damage and vandalism, piracy and/or sabotage and/or terrorism and/or malicious mischief and/or malicious damage, including confiscation and expropriation. The cover afforded was on the terms of the Institute War and Strikes Clauses Hulls Time (1/10/83). These provide as follows: 1. PERILS Subject always to the exclusions hereinafter referred to, this insurance covers loss of or damage to the vessel caused by 1.1 war civil war revolution rebellion insurrection, or civil strife arising therefrom, or any hostile act by or against a belligerent power 1.2 capture seizure arrest restraint or detainment, and the consequences thereof or any attempt thereat 1.3 derelict mines torpedoes bombs or other derelict weapons of war 1.4 strikers, locked out workmen, or persons taking part in labour disturbances, riots or civil commotions 1.5 any terrorist or any person acting maliciously or from a political motive 1.6 confiscation or expropriation. INCORPORATION 2. The Institute Time Clauses Hulls 1/10/83 (including 4/4ths Collision Clause) except Clauses 1.2, 2, 3, 4, 6,12, 21.1.8, 22, 23, 24, 25 and 26 are deemed to be incorporated in this insurance in so far as they do not conflict with the provisions of these clauses. DETAINMENT In the event that the Vessel shall have been the subject of capture seizure arrest restraint detainment confiscation or expropriation, and the Assured shall thereby have lost the free use and disposal of the Vessel for a continuous period of 12 months then for the purpose of ascertaining whether the Vessel is a constructive total loss the Assured shall be deemed to have been deprived of the possession of the Vessel without any likelihood of recovery. EXCLUSIONS This insurance excludes loss damage liability or expense arising from 4.1 4.1.2 the outbreak of war (whether there be a declaration of war or not) between any of the following countries: United Kingdom, United States of America, France, the Union of Soviet Socialist Republics, the Peoples Republic of China 4.1.3 requisition or pre emption 4.1.4 capture seizure arrest restraint detainment confiscation or expropriation by or under the order of the government or any public or local authority of the country in which the Vessel is owned or registered 4.1.5 arrest restraint detainment confiscation or expropriation under quarantine regulations or by reason of infringement of any customs or trading regulations 4.1.6 the operation of ordinary judicial process, failure to provide security or to pay any fine or penalty or any financial cause 4.1.7 piracy (but this exclusion shall not affect cover under Clause 1.4), 4.2 loss damage liability or expense covered by the Institute Time Clauses Hulls 1/10/83 (including 4/4ths Collision Clause) or which would be recoverable thereunder but for Clause 12 thereof The period of 12 months in clause 3 was by agreement reduced to six months. 3. The appeal turns on the inter relationship of the perils identified in clauses 1.2, 1.5 and 1.6 with clause 3 and with the exclusions identified in clause 4.1.5. This was considered in the courts below in two stages. First, four preliminary issues were identified, three of which were determined by Hamblen J by a judgment given on 23 March 2012: [2012] EWHC 802 (Comm). There was then a trial before Flaux J of all other issues of fact and law extending over some 14 days in October 2014, leading to a judgment dated 8 December 2014: [2014] EWHC 4133 (Comm); [2015] All ER (Comm) 439. An appeal against aspects of Hamblen Js and Flaux Js judgments was heard on 14 15 June 2016 and determined on 1 August 2016 by the Court of Appeal (Laws LJ, Clarke LJ and Sir Timothy Lloyd): [2016] EWCA Civ 808; [2017] 1 WLR 1303. 4. Hamblen J determined that, in order to rely on clause 4.1.5, insurers did not need to show privity or complicity on the part of (a) the insured or (b) any servant or agent of the insured. There has been no challenge to these conclusions. He also answered in the negative a third issue whether the exclusion in clause 4.1.5 is only capable of applying to exclude claims for loss or damage to a vessel which would otherwise fall within insuring clause 1.2 or 1.6, and not the other perils insured against under clause 1 and/or Section A of the Conditions. On that basis, Flaux J determined that owners were entitled to recover from insurers. The cause of the vessels loss was the malicious act of unknown third parties in attaching the drugs to the hull, and the exclusion of detainment, etc by reason of infringement of any customs regulations in clause 4.1.5 was to be read as subject to an implied limitation where the only reason for such infringement was such an act. The Court of Appeal reached the opposite conclusion, holding that no basis existed for any such implied limitation, and that the vessels loss could both be attributed to a malicious third party act within clause 1.5 and be excluded as arising from detainment by reason of infringement of any customs regulations within clause 4.1.5. The Court of Appeal also dismissed owners cross appeal (in support of which owners had offered no submissions) against Hamblen Js determination of the third issue before him. Before the Supreme Court, owners have preserved their case that Hamblen J was wrong on this point as an alternative to their primary case that, assuming he was right, clause 4.1.5 still does not cover the present circumstances. As is evident from this summary, it has been common ground since at least the hearing before Flaux J that the attempted use by unknown third parties of the vessel for the purpose of smuggling involved the unknown third parties acting maliciously within the meaning of clause 1.5. Only on that basis can owners claim under clause 1.5 and argue that clause 4.1.5 is inapt to cut back the cover against malicious acts which clause 1.5 affords. However, during the course of the hearing before it, the Supreme Court concluded that it was necessary to re examine the resulting common ground, to avoid the risks attaching to any exercise of deriving conclusions from what might prove a false premise. The parties were therefore invited to make and after the hearing made further written submissions on the effect of clause 1.5. The owners continued to resist the proposed expansion of the issues on this appeal, but in my view it involves no real prejudice on a point which is one of pure construction and law. Events in detail The vessel had in early August 2007 loaded a cargo of coal in Lake Maracaibo, Venezuela for discharge in Italy. During an underwater inspection on 12 August 2007, divers discovered a loose underwater grille, in the space behind which were a grappling hook, a saw, a rope and other tools. The Master was told to have the grille rewelded because of the risk of drug smuggling, but declined as the vessel was due to sail that night. In fact, there had been a miscalculation of the vessels draft, which, when appreciated, enabled her to load a further 800 metric tons. Her sailing was thus delayed to 13 August 2007, enabling a second underwater inspection to take place, during which the divers now discovered three bags of cocaine weighing 132 kg strapped to the vessels hull, ten metres below the waterline and some 50 metres from the grille. Unknown third parties were responsible presumably associated with a drug cartel intent on smuggling drugs out of South America into Europe. It is not suggested in these proceedings that either the owners or their crew were in any way implicated (although, as will appear, a different conclusion was reached in Venezuela with regard to the master and second officer). The concealment of the drugs constituted an offence under article 31 of the Venezuelan Anti Drug Law 2005, which provides: Whoever illicitly traffics, distributes, conceals, transports by any means, stores, carries out brokering activities with the substances or their raw materials for the production of narcotic drugs and psychotropic substances, will be punished with a prison sentence of between eight and ten years. In case of an offence under article 31, article 63 authorised seizure of any ship involved as a precautionary measure until confiscation in a definitive judgment, with a proviso that the owner is exonerated from that measure when circumstances demonstrate its lack of intention. Article 66 further provides: The property ships and other items employed to commit the investigated offence, as well as property about which there is a reasonable suspicion that it originates from the offences envisaged in this Law or related offences will be in all cases seized as a preventive measure and, when there is a final and definitive judgment, an order will be given to confiscate and the property will be awarded to the decentralised agency in the The vessel was detained and the crew were arrested. On 25 September 2007 the master and second officer were charged with complicity in drug smuggling, and on 31 October 2007 they were sent for trial and the judge, Judge Villalobos, ordered the continued detention of the vessel under articles 63 and 66 of the Anti Drug Law. In August 2010, following a jury trial, both officers were convicted. They were sentenced to nine years imprisonment and the vessel was ordered to be confiscated. It is accepted that the arrest and detention of the officers and the detention and confiscation of the vessel were all lawful under Venezuelan law. Meanwhile, the owners had on 18 June 2008 served a notice of abandonment. Insurers accept that, if the peril which materialised fell within the scope of the insurance cover, this notice of abandonment was effective to constitute the vessel a constructive total loss under clause 3 of the Institute War Risks and Strikes Clauses. Analysis The premise of the case as advanced until now has been that unknown third parties acted maliciously within the meaning of clause 1.5, shifting the focus to the question whether in the circumstances the exclusion in clause 4.1.5 applies. If clause 1.5 does not apply, then owners would have to fall back on the perils of detainment, etc in clause 1.2, to which, in linguistic terms, clause 4.1.5 directly responds. If the peril relied on had been detainment, it would be difficult, indeed one might have thought impossible, to argue that the present was not a case of detainment by reason of infringement of any customs regulations within clause 4.1.5. An attempt to mount such an argument failed unequivocally in the Court of Appeal in a smuggling case with some similarities to the present: Sunport Shipping Ltd v Tryg Baltica International (UK) Ltd (The Kleovoulos of Rhodes) [2003] 1 Lloyds Law Rep 138. A large quantity of cocaine was there discovered by divers behind a grille in a sea chest at the vessels discharge port, Aliveri having been placed there by unknown third persons at the load port in Colombia, South America. The crew were ultimately acquitted of any involvement, but the vessels detainment lasted so long that she could be and was declared a constructive total loss under clause 3. Owners evidently did not think to advance a case based on clause 1.5, so the dispute turned solely on whether clause 4.1.5 applied. The Court of Appeal held that the phrase infringement of any customs regulations extended naturally to smuggling, citing in this respect Panamanian Oriental Steamship Corpn v Wright (The Anita) [1971] 1 WLR 882. Owners argued nevertheless that the detainment of the vessel as part of the proceedings against the crew and her subsequent constructive total loss was not by reason of the infringement of customs regulations by unknown persons in Colombia. The Court of Appeal held that the infringement was not simply the historical causa sine qua non of the detention but remained the proximate or operative cause of the detention for the whole relevant period (para 66). Owners claim therefore failed. It is to my mind inconceivable that the result could have been any different had the drugs been discovered and the vessel detained at the load port before setting out on her voyage. The present owners case thus turns on the fact that the Institute War and Strikes Clauses identify as perils insured, not merely detainment etc under clause 1.2, but also loss or damage to the vessel caused by any person acting maliciously under clause 1.5. Once relied on, the specific cover against malicious acts should not, owners submit, be undermined or cut back by an exception of detainment by reason of infringement of customs regulations which owners submit is most obviously addressing other situations or which, on owners alternative case, is not even addressing clause 1.5 at all. It is in the light of these submissions that the Supreme Court concluded that, despite the common ground between the parties, the necessary starting point is to examine the scope of the concept of any person acting maliciously in clause 1.5. This is a phrase which must be seen in context, appearing as it does in the middle of perils insured involving loss of or damage to the Vessel caused by [1.5] any terrorist or any person acting maliciously or from a political motive. Its companions in that context are terrorists and persons acting from a political motive, causing loss or damage to the vessel. What the drafters appear to have had in mind are persons whose actions are aimed at causing loss of or damage to the vessel, or, it may well be, other property or persons as a by product of which the vessel is lost or damaged. Applying a similar rationale to the central phrase any person acting maliciously, it can be said that the present circumstances involve no such aim. Foreseeable though the risk may be that drugs being smuggled may be detected, their detection and any consequent loss or damage to the vessel were the exact opposite of the unknown smugglers aim or, presumably, expectation. The Institute War and Strikes Clauses must also be read in the context of established authority, particularly at the time when they were drafted and, on 1 October 1983, issued. Here, the position is also instructive. The Clauses were part of a determined attempt by the London market to update its marine forms. This included the replacement of the old Lloyds SG policy which, however quaintly attractive to those initiated in the mystique, had with justification been criticised as to its form and content for some 200 years: see eg Brough v Whitmore (1791) 4 Term Rep 206, 210, per Buller J; Rickards v Forestal Land, Timber and Railways Co Ltd [1941] 1 KB 225, 246 247, per MacKinnon LJ; Panamanian Oriental Steamship Corpn v Wright (The Anita) [1970] 2 Lloyds Rep 365, 372, per Mocatta J; and Shell International Petroleum Co Ltd v Gibbs (The Salem) [1982] QB 946, 990D F, per Kerr LJ and 998F 999B, per May LJ. It also included the replacement of the Institute War and Strike Clauses Hulls Time (1/10/59) which had been used to insure, inter alia, risks excluded under the Lloyds SG form by the FC&S warranty (warranted free of capture, seizure, arrest, restraint or detainment, and the consequences thereof or of any attempt thereat), as well as the replacement of the Institute Strikes, Riots and Civil Commotions Clauses used to cover cargo. The attempt came to fruition with the issue of a series of freshly drafted Clauses on 1 October 1983, some 18 months after Kerr LJs and May LJs words in The Salem. While the clauses were freshly drafted, they did not abandon, but sought to bring fresh order and clarity to, many of the time honoured concepts used in the market. In the present context, prior authority on the concept of persons acting maliciously is therefore potentially relevant. By clause 1 of the Institute Strikes Riots and Civil Commotions Clauses (issued for use with cargo insurance), cover was granted in respect of loss or damage to the property hereby insured caused by (a) strikers, locked out workmen, or persons taking part in labour disturbances, riots or civil commotions; (b) persons acting maliciously. The scope of the cover provided by clause 1(b) in respect of persons acting maliciously had been recently considered in two important cases: Nishina Trading Co Ltd v Chiyoda Fire and Marine Insurance Co Ltd (The Mandarin Star) [1968] 1 WLR 1325 (Donaldson J); [1969] 2 QB 449 and The Salem in early 1982. Neither case would have escaped the knowledge of marine insurance practitioners and lawyers or of the specialist drafters of the revised Clauses and particularly not the sensational case of The Salem. In The Mandarin Star the vessels owners had, following a dispute about unpaid charter hire, directed the master to sail from off Kobe, the discharge port, to Hong Kong, where, in collusion with the charterers, they purported to mortgage the cargo. The insured cargo interests recovered the cargo, but (in a friendly test case) claimed under the insurance the expenses of doing so and of returning the cargo to Kobe. They alleged that there had been a taking at sea or theft under the SG form or loss caused by persons acting maliciously within the Institute Strikes, Riots and Civil Commotions Clauses. Their claim succeeded in the Court of Appeal on the basis that there had been a taking at sea, when the vessel sailed from off Kobe. (This conclusion was regarded as erroneous in The Salem by Lord Denning at pp 987E 988C and Kerr LJ at pp 989 993E, on the basis that a change in the character of the shipowners possession vis vis cargo interests without any dispossession from outside, was outside the policy cover.) The claim failed by a majority on theft, on the basis that the vessels owners may have thought that they had a lien justifying their conduct. It failed on malicious act both at first instance and in the Court of Appeal. Donaldson J said, at p 55, that: in the context in which the cover is afforded an element of spite towards someone, although not necessarily the cargo owners, is an essential element. Lord Denning MR said (p 462H) that: maliciously here means spite, or ill will, or the like. There is none such here. Edmund Davies LJ agreed at p 463D with Lord Denning on this point even though in his view the taking also amounted to theft. Phillmore LJ also agreed that the claim for malicious act failed, saying, less compellingly in my view, that (p 467G H): it seems to me that that claim ignores the terms of the policy, which under the Institute Strikes, Riots and Civil Commotions clauses is obviously intended to deal with damage effected in the course of some civil disturbance which has nothing whatever to do with the facts of this case. The Salem involved the audacious making away with a whole cargo of crude oil, in order to supply South Africa in breach of international sanctions. The conspirators purchased and manned a tanker, The Salem. They chartered her to an innocent charterer, Pontoil SA, for a voyage to Europe carrying a cargo of oil which Pontoil acquired from Kuwait Oil Co in Mina al Ahmadi and agreed to resell to Shell, whose interest was insured with the defendant and other insurers for some USD56m. Instead of performing the chartered voyage, the conspirators procured the tanker to enter Durban, where most of its cargo (some 180,000 mt) was discharged and delivered to the South African Strategic Fuel Fund Association in return for payment to the conspirators of a price of over USD32m. They then took the vessel to sea again with a residue of the cargo (some 15,000 mt), and had her scuttled to conceal what had happened. Shell as insured cargo owners claimed for barratry or taking at sea under the SG policy form and/or for persons acting maliciously under the Institute Strikes, Risks and Civil Commotions Clauses. In the event, it was held that there was no barratry, because the conspirators who owned the vessel were privy to its crews acts; there was no taking at sea in respect of the bulk of the cargo, because its effective taking was not at sea, but was in Durban (per Kerr LJ at pp 993F 996B, 997H 998D and May LJ at pp 1000H 1002A) or at the load port, Mina al Ahmadi (per Lord Denning MR at pp 986G 987D). Shells claim for the residue of the cargo succeeded as a loss by perils of the sea, under the language of a special clause introduced (following the House of Lords decision in F Samuel & Co Ltd v Dumas [1924] AC 431) to allow an innocent assured to recover for loss otherwise attributable to the wrongful act or misconduct of the shipowners or their servants. Shells claim for persons acting maliciously failed before Mustill J on the ground that, giving these words the meaning attributed to them in The Mandarin Star: they are plainly not appropriate to the present loss. The conspirators were not inspired by personal malice against Pontoil; they simply wished to steal the cargo, the identity of the owner being immaterial. The same is the case as regards the destruction of the cargo remaining on board when the vessel sank. Perhaps there may, consistently with the decision in The Mandarin Star, be a right to recover where the insured property is damaged by an act of wanton violence, the malice being directed, so to speak, at the goods rather than their owner. But it is unnecessary to decide this here, for the cargo was not lost because the conspirators desired to harm either the goods or their owner. The loss was simply a by product of an operation carried out for the purposes of gain. On the reasoning of the Court of Appeal this is not within the scope of the peril. (pp 965 966) In the Court of Appeal, Lord Denning referred to Mustill Js ruling on this point, and recorded that it was accepted by Shell. In June 1982, some four months after the Court of Appeals judgment in The Salem, Mr Hallgarten QC representing owners in Athens Maritime Enterprises Corpn v Hellenic Mutual War Risks Association (Bermuda) Ltd [1983] 1 QB 647 recited the effect of the statements in The Mandarin Star and The Salem on the meaning of any person acting maliciously. The context was cover in respect of persons acting maliciously afforded by the Association under old form rules covering war risks, which included cover in the same terms as those quoted from clause 1 of the Institute Strikes Riots and Civil Commotions Clauses in para 16 above. Mr Hallgarten did not suggest that the judge (Staughton J) could do anything but apply the statements in the two cases cited, but said merely that the position was reserved in case the matter goes further. Counsels precautionary reservation in this case cannot to any significant extent weaken the force of the two recent authorities of The Mandarin Star and The Salem as aids to understanding the meaning of clause 1.5. In my view, therefore, the concept of any person acting maliciously in clause 1.5 would have been understood in 1983 and should now be understood as relating to situations where a person acts in a way which involves an element of spite or ill will or the like in relation to the property insured or at least to other property or perhaps even a person, and consequential loss of, or damage to, the insured vessel or cargo. It is not designed to cater for situations where the state of mind of spite, ill will or the like is absent. In the present case, foreseeable though the vessels seizure and loss were if the smuggling attempt was discovered, the would be smugglers cannot have had any such state of mind. They were, on the contrary, intent on avoiding detection. If the commission of a wrongful act, coupled with the foreseeability of loss or damage affecting the insured property were sufficient, irrespective of motive or aim, then the claims for malicious acts should have succeeded in both The Mandarin Star and The Salem. (That said, I confess to some hesitation about the narrowness of Mustill Js decision in The Salem, excluding from the concept both theft of the majority of the cargo and deliberate destruction of the rest, on the ground that these were simply by products of a larger operation carried out for gain. I do not however suggest that, even if others were to share this hesitation, a different interpretation should, after so long a period, necessarily follow if a similar issue were now relitigated.) The contrary common ground in this case until the Supreme Court was based on two later judgments of Colman J. The first was in Strive Shipping Corpn v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Grecia Express) [2002] EWHC 203 (Comm); [2002] 2 Lloyds Rep 88, 96 and the second in North Star Shipping Ltd v Sphere Drake Insurance plc (The North Star) [2005] EWHC 665 (Comm); [2005] 2 Lloyds Rep 76 at para 83, where he reiterated what he had said in the former case. In The Grecia Express, it is important to note the submission which was being made by insurers to and was rejected by Colman J. The submission was that maliciousness required the owners to show that the sinking was directed at them, rather than, for example, the result of random vandalism: see pp 95 96. After considering The Mandarin Star and The Salem, Colman J said (p 96) that: Since the factual basis upon which the Court of Appeal reached its conclusion in both cases was such that the persons acting maliciously cover was inapplicable whether it had either of the meanings considered by Mr Justice Mustill in Shell Petroleum the point is at large in this Court. On the face of this passage, therefore, Colman J saw himself as operating within the parameters set by the previous two authorities. Colman Js ensuing discussion has nonetheless been seen by some as supporting a broader interpretation of the concept of persons acting maliciously. He said: Accordingly, when considering the meaning of persons acting maliciously it is necessary to ask whether it is necessary to adopt a meaning which is so limited that it will cover loss or damage caused for the purpose of injuring the particular insured but will not cover random vandalism. That the word maliciously is quite capable of covering wanton damage is clear from its use and the meaning accorded to it under the Malicious Damage Act 1861. Section 58 provides that where malice is an ingredient of an offence under that Act it is immaterial whether the offence was committed from malice conceived against the owner of the property in respect of which it shall be committed or otherwise. That opens up the meaning to cover any conduct whereby the property in question is intentionally caused to be lost or damaged or is lost or damaged in circumstances amounting to recklessness on the part of the same person. In my judgment, there is no reason why the meaning of person acting maliciously should be more narrowly confined than the meaning which would be given to the word maliciously under the Malicious Damage Act 1861. Provided that the evidence establishes that the vessel was lost or damaged due to the conduct of someone who was intending to cause it to be lost or damaged or was reckless as to whether such loss or damage would be caused, that is enough to engage the liability of war risks underwriters. The words therefore cover casual or random vandalism and do not require proof that the person concerned had the purpose of injuring the assured or even knew the identity of the assured. In this passage, I do not consider that Colman J was intending to do more than decide the narrow issue before him, which was, as indicated, whether spite, ill will or the like required conduct targeted specifically at the insured property or its owner, rather than casual or random vandalism. He had started by indicating that he was addressing the distinction between the possible meanings identified by Mustill J in The Salem. His references to recklessness must be read in the context of the issue before him, whether the cover extended to casual or random vandalism. He was focusing on conduct in relation to the vessel or other property in circumstances where the perpetrator was either aiming at the occurrence of loss or damage to the vessel or engaging in random vandalism. That, as I have already pointed out, is not the present case. Finally, both cases before Colman J concerned loss or damage which was due either to a deliberate attempt to write the ship off or to vandalism. So the question of a criminal act with a quite different intention but which might, however foreseeably, lead to seizure and detention of the vessel by public authorities did not actually arise or require to be addressed. In support of an interpretation of any person acting maliciously broad enough to embrace any wrongful act, however motivated, committed in circumstances where the actor could be said to foresee the possibility of loss or damage to property, owners rely not only on their interpretation of Colman Js judgments, but also on discussion in authority of the concept of malice in a tortious context. They point in this connection to the authority of Pesquerias y Secaderos de Bacalao de Espana SA v Beer (1946) 79 Lloyds Rep 417. In that case, at pp 431 432, Atkinson J cited Allen v Flood [1898] AC 1 to assist in the construction of the then Riots and Civil Commotions Clauses. These clauses covered loss or damage by persons taking part in riots and civil commotions or from any other malicious act whatsoever by any persons, but excluded war risks and all other risks ordinarily covered under the vessels marine policy. Atkinson J held on the facts that the vessels insured had been taken away by rioters, rather than combatants in the Spanish Civil War, and that this also amounted to a loss by a malicious act. In his judgment, Atkinson J cited passages from the speeches of Visc Halsbury LC and Lord Herschell in Allen v Flood. In Allen v Flood, Mr Flood had in the course of his duties as a trade union official told the employers of some ironworkers that the ironworkers would go on strike, unless the employers ceased employing some woodworkers, who the ironworkers believed had worked on iron for another firm. The employers discharged the woodworkers (without breach of contract). Two of the woodworkers sued Mr Flood for loss of their employment, arguing that mere malice, in the sense of doing that which was calculated in the ordinary course to damage, and which did damage, without just cause or excuse, sufficed to ground tortious liability. The majority of the House rejected this sense in this context, affirming that, although in a colloquial sense malice means simply ill will, in its legal sense it means a wrongful act done intentionally without just cause or excuse (per Lord Herschell at p 124). However, so wide a definition would appear to have been unnecessary for the actual decision in Pesquerias y Secaderos. The rioters who there made off with and caused the loss or damage of the vessels plainly intended to deprive the owners of the vessels in question. Their conduct would appear to have satisfied the tests indicated in The Mandarin Star and The Salem. But whether it would have or not, those tests constitute a sounder basis for a proper understanding of the intention of the drafters of the 1983 Institute Clauses than Atkinson Js shortly reasoned importation from an entirely different area of the law of the definition used in Allen v Flood. A similar observation applies to the meaning of malice in the criminal law context of the Malicious Damage Act 1861, to which Colman J referred. Apart from the fact that very few sections of the Malicious Damage Act remain on the statute book after the Criminal Damage Act 1971, there seems a negligible chance that either of the Acts was in the minds of the drafters of the Institute Clauses in 1983. However, Colman J was right to regard both the insurance and the criminal law concepts of a person acting maliciously as covering casual or random vandalism; and they each involve significant, if not necessarily identical, subjective mental elements. Some authors have suggested that the use of a criminal law test would offer practical benefits of simplicity and avoid the need to consider the state of mind of the actor: see Professor Bennett on The Law of Marine Insurance, 2nd ed (2006), para 14.24 and Michael D Millers work on Marine Insurance War Risks, 3rd ed (2005), pp 201 205, where reference is also made to the Offences against the Person Act 1861. But a long stream of authority under the 1861 statutes act established that the criminal law concept of malice involved a very significant mental element: see R v G [2003] UKHL 50; [2004] 1 AC 1034. However, this old criminal law definition (for which, see R v Cunningham [1957] 2 QB 396, quoted by Lord Bingham in R v G, para 11), was developed in a context and for a purpose very different from those applying to the Institute War and Strikes Clauses. For these reasons, neither Allen v Flood nor authority under Victorian criminal law statutes of 1861 appears to me a very helpful guide to the meaning of any person acting maliciously in clause 1.5 of the Institute Clauses. The more helpful approach is therefore to read the phrase in those Clauses in its immediate context and in the light of the recent marine insurance authorities to which I have referred which must have been in the drafters mind. What the context and authorities indicate is that an element of spite, ill will or the like is required. But I would not limit the concept to conduct directed towards the insured interest. An act directed with the relevant mental element towards causing the loss of or damage or injury to other property or towards a person could lead to consequential loss of or damage to an insured interest within clause 1.5, whether the actor was a terrorist, a person acting maliciously or a person acting from a political motive. On the basis of the above, what matters is that this is not a case where the attempted smuggling can be regarded as having been aimed at the detention or constructive total loss of or any loss or damage to the vessel or any property or person. Under Venezuelan law, the smuggling was no doubt itself a wrongful act done intentionally without just cause or excuse. But the smugglers were not intending that any act of theirs should cause the vessels detention or cause it any loss or damage at all. In my opinion, they were not acting maliciously within the meaning of clause 1.5. The conclusion is that clause 1.5 is not apt to cover the present circumstances, and that the premise on which this appeal reaches the Supreme Court is incorrect. That is sufficient to dismiss this appeal. The position if the premise adopted below were correct I have rejected the premise which was common ground between the parties. I will nevertheless address the position had it been accepted. For this purpose, the assumption is therefore that (contrary to my view) the attempted smugglers could and should be regarded as having caused the loss of the vessel acting maliciously. Two questions then arise. The question which is logically first arises from owners fall back challenge to Hamblen Js decision on the third issue before him. Can clause 4.1.5 be read as having any application at all to clause 1.5? The second question, if Hamblen Js affirmative answer to this first question was correct, is whether clause 4.1.5 applies in the particular circumstances, bearing in mind the apparent coincidence in this case of the malicious act insured under clause 1.5 and the infringement of customs regulations excluded under clause 4.1.5. As to the first question, the force of owners case is that clause 4.1.5 uses terminology which echoes relentlessly the terminology of clauses 1.2 and 1.6, and in no way that of clause 1.5. On the other hand, it would be surprising if, by putting a claim on the basis of a malicious act under clause 1.5, an insured could improve the position which would apply if it had invoked clause 1.2 or 1.6. Further, and even more significantly, owners themselves must, by relying on clause 3 to establish a constructive total loss, be accepting and asserting that the vessel has been the subject of seizure, arrest, restraint or detainment, and has been lost thereby, which is exactly the subject matter of the exclusion introduced by clause 4.1.5 (loss arising from arrest restraint detainment ). In these circumstances, owners were correct to regard their fall back case with a distinct lack of enthusiasm. The second question therefore arises whether clause 4.1.5 applies in the circumstances of this case, bearing in mind the apparent coincidence of the malicious act insured under clause 1.5 and the infringement of customs regulations excluded under clause 4.1.5. Flaux J saw this coincidence as necessitating an implied limitation to the effect that clause 4.1.5 would not apply where the only reason why there has been an infringement of the customs regulations by the vessel is because of the malicious acts of third parties (para 258). The problem about this is that no apparent basis exists for any such implied limitation. None of the criteria for implication of an implied term is satisfied. It is entirely understandable that clause 4.1.5 should cut back or define the limits of cover otherwise available under clause 1. That is its clear role in relation to clause 1.2 or 1.6 if relied on. (It is also an element of the role of, for example, clause 4.1.2 in relation to the cover otherwise provided by clause 1.1.) It makes sense that clause 4.1.5 should have a similar effect in relation to clause 1.5, if clause 1.5 is engaged at all. Flaux J thought the contrary. He referred to a concession made by insurers that clause 4.1.5 would not apply in the event of a put up job. That was a reference to a situation hypothesised by Lord Denning MR in The Anita [1971] 1 WLR 882. The Anita was decided under the Institute War and Strikes Clauses Hull Time (1/10/59), which, as noted in para 15 above, insured inter alia the risks excluded from the SG form by the FC&S warranty. Such insurance was subject in clause 4 to a precursor of the present clause 4.1.5. Clause 4 read: This insurance excludes (1) loss, damage or expense arising from requisition or pre emption (a) arrest, restraint or detainment under quarantine (b) regulations or by reason of infringement of any customs regulations; The Anita was a case of crew smuggling. The vessel was confiscated by order of a special court set up by decree in Vietnam. Mocatta J held that what occurred was not ordinary judicial process, but involved a seizure or restraint of princes within the FC&S clause. He went on to hold that insurers had also failed to discharge an onus on them to show that the confiscation arose by reason of infringement of customs regulations, rather than by a decision of the special court which was not only given outside its jurisdiction, but may well have been given with the knowledge of that fact and upon the orders of the executive (p 365). The Court of Appeal held that Mocatta J was wrong to place the onus on insurers to disprove political interference. As Lord Denning MR put it (p 888H): Suffice it for them to prove the breach of regulations and that the confiscation was the result of it. That they proved. Fenton Atkinson LJ said that he could for the purposes of this case . see no distinction between smuggling and infringement of customs regulations (p 889C) and that insurers showed a blatant case of smuggling, or, perhaps more correctly, a strong prima facie case of an infringement of customs regulations followed by a proper hearing by a lawfully constituted tribunal to whom this court should be slow indeed to attribute bad faith (p 889D E). The special court did not appear on the evidence to have acted outside its jurisdiction. There had been no plea that it had acted under executive orders and the evidence did not show this either. The discussion in The Anita indicates that there may be situations in which a loss is not attributable to infringement of customs regulations, but to the improper exercise of judicial or political power. Lord Dennings reference to a put up job postulated another situation in which there would be no loss by infringement of customs regulations, as follows (p 888A): Of course, if there were no goods smuggled and the seizure was a put up job, it would be quite different. However, that seems obvious. There would be no infringement of customs regulations at all. There would also be no goods smuggled, even if one assumes in this example that the authorities went to the length of planting drugs on board, or attaching them to the hull. Flaux J postulated two further scenarios which he suggested would fall outside clause 4.1.5: (a) a malicious third party plants drugs in order to blackmail the owners and when they refuse to pay informs the authorities about the drugs leading to the vessels seizure; and (b) the same scenario without the blackmail attempt, but with the malicious third party simply planting the drugs and informing the authorities in order to get the vessel detained. I note that both scenarios fall within the narrow concept of malicious act indicated in The Mandarin Star and The Salem. Even if the concept of malicious has a wider scope, capable of embracing the different scenario presented by the present appeal, these two scenarios are on this basis distinguishable. The centrality of the intentional motivation to the causation of a loss may well be capable as a matter of causation of taking the loss outside the scope of the exception in clause 4.1.5. That does not mean that any other malicious acts, such as that involved in this appeal, involve loss falling outside the scope of clause 4.1.5, as a matter of either construction or causation. Flaux J also found support for a confined interpretation of clause 4.1.5 in dicta of Toulson J approved by Potter LJ in Handelsbanken ASA v Dandridge (The Aliza Glacial) [2002] EWCA Civ 577; [2002] 2 Lloyds Rep 421, para 52, treating a vessels loss, following owners refusal to meet an outrageous ransom demand by a terrorist organisation, as outside the scope of a loss by any financial cause in clause 4.1.7: see also Melinda Holdings SA v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Silva) [2011] EWHC 181 (Comm); [2011] 2 Lloyds Rep 141, para 46(ii), per Burton J. I see little difficulty about this. Clause 4.1.7 is obviously aimed at ordinary financial vicissitudes, of one sort or another, not at the outrageous sequela of terrorist activity. The cause of the vessels loss would still be the terrorist activity. But that throws no light on the scope or application of clause 4.1.5 in the present case. Neither as a matter of construction nor as a matter of causation is there in my view any basis for treating clause 4.1.5 as inapplicable to the present loss. Mr Alistair Schaff QC for owners submitted that the malicious act, rather than the infringement of the customs regulations, fell to be regarded as the proximate, effective or real cause of the insured loss. This submission faces a number of problems. The first is that the malicious act is the infringement of the customs regulations. There is (as Fenton Atkinson LJ thought in the parallel circumstances of The Anita) no distinction between them. The role of clause 4.1.5 is, as I have said, to cut back on cover in respect of loss caused by perils otherwise insured under clauses 1.2 and 1.6. If clause 1.5 applies in the present circumstances, the role of clause 4.1.5 with regard to that clause appears on its face to be the same. Secondly, even if some meaningful distinction existed between the malicious act and the infringement of customs regulations, it does not follow that this gives rise to a binary choice between two competing proximate, real or effective causes of the insured loss. What is required is an exercise of construction of the particular wording, giving effect at each stage to the natural meaning of the words in their context. This is also how the House of Lords saw a somewhat similar issue in the famous case of John Cory & Sons v Burr (1883) 8 App Cas 393. The question there was whether a loss fell to be attributed (solely) to the insured peril of barratry or fell within the warranted FC&S exception. This was treated as a question as construction: see eg at pp 396 397 per the Earl of Selborne LC, pp 402 403 per Lord Blackburn, p 403 per Lord Bramwell and pp 405 and 406 per Lord Fitzgerald. As a matter of construction, the analysis of the present Clauses falls into three stages. The first stage, if clause 1.5 is capable of applying at all, is that there was a loss caused by a person acting maliciously. Assuming that there was, the second stage is that the means by which loss arose was the vessels consequent detainment and the fact that this lasted for a continuous period of six months. Only on this basis were the owners able to treat the vessel as a constructive total loss under clause 3. The third stage involves the question whether such detainment was by reason of any infringement of customs regulations within clause 4.1.5. At each stage, different factors are introduced, and are capable of shifting the focus of attention. In Royal Greek Government v Minister of Transport (The Ann Stathatos) (1949) 83 Lloyds Rep 228, 237 (as I noted in ENE Kos 1 Ltd v Petroleo Brasileiro SA (No 2) (The Kos) [2012] 2 AC 164, para 43) Devlin J pointed out that the existence of an exceptions clause is itself likely to affect what falls to be regarded as dominant, proximate or relevant; and that this is because the whole of what one might call the area naturally appurtenant to the excepted event must be granted to it. In the present case, it makes it possible that a loss may both be caused by a person acting maliciously within clause 1.5 and at the same time arise from detainment by reason of infringement of customs regulations within clause 4.1.5. The scheme of the Clauses directs attention first to whether there was prima facie a loss by a specified peril and then to whether the same loss arises from an excepted peril. The transition from the question whether there was a loss caused by a malicious act to the question whether the loss arose from detainment by reason of infringement of customs regulations is furthermore inevitable, since owners have to rely on clause 3 to establish any case of constructive total loss at all. Thirdly, while the general aim in insurance law is to identify a single real, effective or proximate cause of any loss, the correct analysis is in some cases that there are two concurrent causes. This is particularly so where an exceptions clause takes certain perils out of the prima facie cover: ENE Kos, at paras 41 43 and International Energy Group Ltd v Zurich Insurance plc [2016] AC 509, para 73. The possibility of such an analysis is in the present case evident when detainment is, in terms, a peril insured against by clause 1.2, and, in order to claim at all, owners have to invoke a detainment under clause 3. It is only by refraining from relying on the most obviously applicable peril covered, that owners are able to seek to suggest any way at all round the otherwise obviously applicable exception in clause 4.1.5. Putting the matter the other way round, if the attempted smuggling constituted a malicious act within clause 1.5 at all, this was at best only one element in the causative events leading to the loss, which is relevant under the wording of this policy; detection, detainment and its continuation for a period of at least six continuous months were equally essential contributing causes of any loss. Owners submit that the detainment and its continuation can be regarded, and dismissed causatively, as no more than incidents of or sequela to the original malicious act. This is unreal in practical terms. They were by no means bound to occur. The unknown smugglers must have acted on the basis that there was a considerable prospect of their activity going undetected and being successful. Owners submission on this point is also inconsistent with authority. A very similar argument was run in Cory v Burr, where the master of a vessel took on board at Gibraltar eight tons of tobacco, for delivery to a smaller vessel for the purpose of being smuggled into Spain. Spanish revenue officers seized the vessel, and took it into Cadiz with a view to its confiscation, which was only avoided by heavy expense. It was argued that the masters barratrous smuggling was the cause of the vessels loss, rather than the capture or seizure or its consequences from which the vessel was warranted free by the FC&S clause. The argument was shortly dismissed. The Earl of Selborne viewed such a construction of the policy and the warranty taken together as leading to consequences altogether destructive of the whole operation of the warranty (p 397). Lord Blackburn said that it was true that the insurance had not been warranted free from barratry, but went on (pp 400 401): the barratry would itself occasion no loss at all to the parties insured. If it had not been that the Spanish revenue officers, doing their duty (they were quite right in that respect), had come and seized the ship, the barratry of the captain, in coasting along there, hovering as we should call it along the coast, in order that the small smuggling vessel might come and take the tobacco, would have done the assured no harm at all. The underwriters do undertake to indemnify against barratry; they do undertake to indemnify against any loss which is directly sustained in consequence of the barratry; and in this case, as I said before, I think the seizure was as direct a consequence of the barratry as could well be. But still, it was the seizure which brought the loss into existence it was a case of seizure. Then why should it not be protected by this warranty? Lord Bramwell noted the argument that the loss was not from the seizure but in truth from the barratry, and the ingeniously made suggestion that the seizure was an intermediate step, and responded: But it was the ultimate and final step which occasioned the loss (p 403). Finally, Lord Fitzgerald, after observing that barratry may be either harmless or effect but a small loss (p 406) put the question: By what was the loss occasioned? I apprehend that there can be but one answer to this question, namely, that the loss arose from the seizure. There was no loss occasioned by the act of barratry. The barratry created a liability to forfeiture or confiscation, but might in itself be quite harmless; but the seizure, which was the effective act towards confiscation, and the direct and immediate cause of the loss, was not because the act of the master was an act of barratry but that it was a violation of the revenue laws of Spain. Cory v Burr therefore makes clear that there is no question of dismissing a vessels capture and detainment in such circumstances as a mere incident of, or sequela to, an underlying cause such as barratry in that case, or a malicious act in the present. Similarly, in The Salem, the majority concluded that the relevant taking of the bulk of the cargo occurred on its discharge in Durban, rejecting submissions that it occurred when the vessel deviated from her voyage to put into Durban, or when she sailed from Mina al Ahmadi with the intention of discharging the cargo in Durban however much these events signalled the forthcoming appropriation. There are of course cases where one peril will dominate and exclude from relevance a later development which taken by itself might otherwise be seen as engaging an exception. The two scenarios hypothesised in para 37 above can be seen as examples. The case of In re Etherington and the Lancashire and Yorkshire Accident Co [1909] 1 KB 591 may be regarded as another. The insured there suffered a riding accident, inflicting a shock to his system and involving him in a severe wetting which he had to endure on his way home. He caught pneumonia within just over a day, from which he died. The policy contained an exception of disease or other intervening cause, but it also covered death occurring within three months of an accident, suggesting that the natural sequela to an accident were intended to be covered. The policy exception was in the circumstances read contra proferentem so as to be confined to situations where some new intervening disease was the cause of death, rather than a case like the actual one, where pneumonia afflicted the insured within a little over a day. The Court of Appeal understandably regarded the case as difficult and it was probably near the borderline. The courts readiness to apply the maxim contra proferentem in the way it did is also readily understandable in a personal injuries context, far removed from the present, which lies in an area well covered by authority. Fourthly, there are, in Cory v Burr, differences evident in the approaches of Lord Blackburn on the one hand and Lords Bramwell and Fitzgerald on the other. Lord Blackburn, whose speech has proved to have the greatest resonance in subsequent authority, saw the case as one where it made sense to speak of concurrent causes. Lord Bramwell and Lord Fitzgerald approached it as one where it was possible to identify a single real or effective cause of the loss. For my part, I prefer Lord Blackburns approach in the present case, where the perils insured include both detainment and malicious acts and the policy wording introduces different stages in an enquiry, at each of which different considerations may apply. Subsequent authority confirms Lord Blackburns conclusion that, where an insured loss arises from the combination of two causes, one insured, the other excluded, the exclusion prevents recovery: see eg P Samuel & Co Ltd v Dumas [1924] AC 431, 467, per Lord Sumner; Wayne Tank & Pump Co Ltd v Employers Liability Assurance Corpn Ltd [1974] QB 57, per Lord Denning MR at p 67B F, per Cairns LJ at p 69B D and per Roskill LJ at pp 74E to 75D. Here, the two potential causes were the malicious act and the seizure and detainment. The malicious act would not have caused the loss, without the seizure and detainment. It was the combination of the two that was fatal. The seizure and detainment arose from the excluded peril of infringement of customs regulations, and the owners claim fails. In Global Process Systems Inc v Syarikat Takaful Malaysia Bhd (The Cendor MOPU) [2011] UKSC 5; [2011] 1 Lloyds Rep 560, para 88, I expressed a reservation in the very different context of the inter relationship in the light of the Marine Insurance Act 1906 and of existing authority between hull cover against perils of the seas and inherent vice. That reservation does not on any view have traction in relation to the present careful exclusion of the peril of loss arising from detainment by reason of infringement of customs regulations from cover under the Institute War and Strikes Clauses Hulls Time. Fifthly, echoing the Earl of Selbornes words in Cory v Burr, owners construction would be at least significantly destructive of the purpose of clause 4.1.5. Clause 4.1.5 is unnecessary to cater for cases of smuggling by owners themselves. Cases of crew barratry are, at least generally, excluded by the conjunction of clause 4.2 of the Institute War and Strikes Clauses Hulls Time with clause 6.2.5 of the Institute Time Clauses Hulls, which covers barratry: see per Colman J in The Grecia Express at p 97 and in The North Star, para 82. It is true that clause 6.2.5 is subject to a proviso, which Colman J did not mention provided that such loss or damage has not resulted from want of due diligence by the Assured, Owners or Managers. But it seems improbable that the Institute War and Strikes Clauses Hulls Time were intended to pick up a narrow band of barratrous conduct, to which owners were not privy, but against which they had failed to exercise due diligence to guard. It may of course be suggested that clause 4.1.5 was inserted simply in order to make the position express in relation to smuggling to which either the owners or the crew were privy. But there is no indication that it is limited to them, and there has, rightly in my view, been no appeal against Hamblen Js decision that it is not. There is nothing to suggest that insurers were willing to accept the risks of smuggling by third parties. A considerable risk of detainment and constructive total loss exists, whoever is responsible for the smuggling. Indeed, it will commonly be very difficult for customs authorities, insurers or anyone to know whether or not crew members were implicated. Owners point to various situations in which clause 4.1.5 could still bite, even if it does not apply to third party smuggling: the innocent importation or exportation of prohibited goods, or breaches of customs regulations not involving smuggling. No doubt such cases exist, but there is nothing to confine clause 4.1.5 to them, or to make it likely that anyone contemplated so narrow a confine to its operation. Owners also point to scenarios which would not be caught by clause 4.1.5, including the scenario, on which the drafters of the clause may perhaps be forgiven for not focusing, of purely domestic smuggling within a particular country. These too provide no reason for not giving clause 4.1.5 its ordinary meaning, in the relatively commonplace situations which its drafters were clearly addressing. Owners also submit that it would be surprising if barratrous smuggling (without any want of due diligence on owners part) was covered by clause 6.2.5 of the Institute Time Clauses Hulls (see para 49 above), whereas third party smuggling were not covered by the Institute War and Strikes Clauses Hulls Time. They point out, correctly, that the two sets of Clauses would, at least generally, be expected to mesh together to achieve a coherent picture. The inter relationship of the two sets of Clauses in this area is however specifically addressed by a clause in the Institute Time Clauses Hulls. This reads: 23. WAR EXCLUSION In no case shall this insurance cover loss damage liability or expense caused by 23.1 war civil war revolution rebellion insurrection, or civil strife arising therefrom, or any hostile act by or against a belligerent power 23.2 capture seizure arrest restraint or detainment (barratry and piracy excepted), and the consequences thereof or any attempt thereat 23.3 derelict mines torpedoes bombs or other derelict weapons of war. Assuming, without having to decide, that the effect of clause 23.2 is that detainment following a barratrous smuggling attempt is covered by the Institute Time Clauses Hulls, it is clear that any other detainment is left to be addressed by other arrangement, most obviously by the Institute War and Strikes Clauses Hulls Time. The specific reference in clause 23 to capture seizure arrest restraint or detainment and the consequences thereof or any attempt thereat takes one straight to clause 1.2 of those Clauses, where loss by detainment is expressly covered. But the cover is subject to the exclusion in clause 4.1.5 in respect of loss by detainment by reason of infringement of customs Regulations. The natural inference from the interrelationship of the two sets of Clauses is not that third party smuggling was left by the Institute Time Clauses Hulls to be covered by the Institute War and Strikes Clauses Hulls Time. Rather it is that detainment by third party smuggling was not contemplated as covered by the latter Clauses at all. Instead, assuming detainment by barratrous smuggling to be covered by the combination of clauses 6.2.5 and 23.2 in the Institute Time Clauses Hulls, detainment by third party smuggling was understood to be excluded by both sets of Clauses. Whether that is commercially satisfactory or whether cover is available on the market for owners to fill any gap in respect of third party smuggling which may be perceived as a result is not a matter which we have the material to judge or upon which we can speculate. Conclusion i) First, (contrary to the common ground between the parties in the courts below) the vessels loss was not caused by any person acting maliciously within the meaning of clause 1.5 of the Institute Clauses. It was caused simply by detainment, which entitled the owners to invoke clauses 1.2 as well as clause 3, but which, since the detainment itself arose by reason of infringement of customs regulations, also brought the exception in clause 4.1.5 into operation. ii) Second, if it had been possible to view the loss as caused by a person acting maliciously within clause 1.5, it would still have been excluded by clause 4.1.5 as arising, at least concurrently, from detainment by reason of infringement of customs regulations. I arrive therefore at the same result as the Court of Appeal, though by different reasoning. The appeal should be dismissed. For these reasons, I would conclude:	In August 2007 B Atlantic (the Vessel), owned by the Appellant, was used by unknown third parties in an unsuccessful attempt to export cocaine from Venezuela by strapping a parcel of drugs to the vessel underwater. The Vessel was detained by Venezuelan authorities. After a period of more than six months, the Appellant treated the Vessel as a constructive total loss. The issue raised by the present case is whether the owners are entitled to recover the Vessels insured value from the Respondents, the Vessels war risk insurers. This turns on the terms of the insurance policy. The cover afforded was on the terms of the Institute War Strikes Clauses Hulls Time (the Institute Clauses). The key provisions were: Clause 1: PERILS Subject always to the exclusions hereinafter referred to, this insurance covers loss of or damage to the Vessel caused by 1.2 capture seizure arrest restraint or detainment, and consequences thereof or any attempt thereat 1.5 any terrorist or any person acting maliciously or from a political motive 1.6 confiscation or expropriation. Clause 3: DETAINMENT In the event the Vessel shall have been the subject of capture seizure arrest detainment confiscation or expropriation, and the Assured shall thereby have lost the free use and disposal of the Vessel for a continuous period of [6] months then for the purpose of ascertaining whether the Vessel is a constructive total loss the Assured shall be deemed to have been deprived of the possession of the Vessel without any likelihood of recovery. Clause 4.1.5: EXCLUSIONS This insurance excludesarrest restraint detainment confiscation or expropriationby reason of infringement of any customs or trading regulations On a trial of preliminary issues Hamblen J held that Clause 4.1.5 was not confined to Clause 1.2 and 1.6, but left open whether it applied to Clause 1.5. At trial, Flaux J held that the owners were entitled to recover, because Clause 4.1.5 did not apply to an infringement of customs regulations occurring due to malicious acts of third parties falling within Clause 1.5, such as the attempted smugglers act in attaching the drugs to the hull. The Court of Appeal disagreed, holding that the Appellants claim was excluded under Clause 4.1.5 even if it fell within Clause 1.5. The owners appealed on the basis of common ground that the attempted smugglers were acting maliciously within the meaning of Clause 1.5. During the course of the hearing the Supreme Court considered that it was necessary to re examine that common ground. The parties made further written submissions on this point [6]. The Supreme Court unanimously upholds the Court of Appeals decision and dismisses the appeal. First, the Vessels loss was not caused by any person acting maliciously within the meaning of Clause 1.5 of the Institute Clauses. Second, even assuming that there was loss caused by a person acting maliciously, it was still excluded by Clause 4.1.5. Lord Mance writes the judgment. Acting Maliciously The attempted smugglers were not acting maliciously within Clause 1.5 [30]. An element of spite, ill will or the like is required, although this is not limited to conduct directed towards the insured interest. An act directed with the relevant mental element towards causing the loss of or damage or injury to other property or towards a person could lead to consequential loss of or damage to an insured interest within Clause 1.5 [28]. The attempted smuggling cannot here be regarded as aimed at the detention of or any loss or damage to the Vessel or any property or person [29]. Clause 1.5 must be read in its immediate context and in the light of the recent marine insurance authorities which would have been in the minds of the drafters of the Institute Clauses [28]. With regard to context, what the drafters appear to have had in mind are persons whose actions are aimed at causing loss of or damage to the vessel or other property or persons as a by product of which the vessel is lost or damaged. Detection of the smuggled drugs and any consequent loss or damage to the Vessel were the exact opposite of the unknown smugglers aim [14]. The Institute Clauses were issued on 1 October 1983 [15]. They were drafted to bring fresh order and clarity to many of the concepts used in the market. Prior authority on the concept of persons acting maliciously is therefore relevant [16]. The Mandarin Star [1968] 2 Lloyds Law Rep 47 and The Salem [1982] 1 QB 946 establish that for a person to be acting maliciously an element of spite or ill will towards someone is required. The (earlier) Institute Clauses were held to be obviously intended to deal with damage effected in the course of some civil disturbance [17]. Whether the malice had to be directed to the cargo owner as opposed to the goods themselves was left unclear [17 and 20]. Authorities dealing with malice in a tortious context and Victorian criminal law statutes from 1861 do not provide helpful guidance to the meaning of any person acting maliciously in Clause 1.5 [25 28]. The Operation of Clause 4.1.5 Even if the attempted smugglers had been acting maliciously within Clause 1.5, the Appellants claim was still excluded under Clause 4.1.5 as arising, at least concurrently, from detainment by reason of infringement of customs regulations [55]. First, Clause 4.1.5 is applicable to circumstances falling within Clause 1.5. It would be surprising if an insured could improve its position by invoking one particular sub clause of Clause 1, such as Clause 1.5, as opposed to Clauses 1.2 or 1.6. Further, the owners are relying on Clause 3 to establish constructive total loss which is exactly the subject matter of Clause 4.1.5 [32]. Second, neither as a matter of causation nor as a matter of construction, is it possible to treat Clause 4.1.5 as inapplicable by drawing some distinction between the malicious act and the infringement of customs regulations as the proximate, real or effective cause of the loss [39]. The two are here effectively the same. Even if some meaningful distinction could be drawn between them, it does not follow that there is a binary choice between two competing proximate, real or effective causes of the insured loss. What is required is a construction of the particular wording, giving effect at each stage to the natural meaning of the words in their context [40]. The general aim in insurance law is to identify a single real, effective or proximate cause of any loss, but in some cases there may be two concurrent causes of loss, particularly where an exception takes certain perils out of the prima facie cover [43]. Where an insured loss arises from the combination of two causes, one insured, the other excluded, the exclusion prevents recovery [49]. Here two potential causes can be identified viz the malicious act and the subsequent seizure and detainment. It was the combination of the two that was fatal. As the seizure and detainment arose from the excluded peril of infringement of customs regulations, the Appellants claim fails [49].
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.	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].
The present appeals involve claims by prisoners sentenced to indeterminate prison sentences (life or IPP) that they were not sufficiently progressed during their sentences towards release on or after the expiry of their tariff periods. The principal issue is what the Supreme Court should now hold the law of the United Kingdom to be, taking account of the judgment of the European Court of Human Rights (ECtHR) in James, Lee and Wells v United Kingdom (2012) 56 EHRR 399 (James v UK) disagreeing with the decision of the House of Lords in R (James, Lee and Wells) v Secretary of State for Justice [2009] UKHL 22; [2010] 1 AC 553 (R (James)). The House of Lords in R (James) held that no breach of article 5(1) of the European Convention on Human Rights (ECHR) was involved in a failure properly to progress prisoners towards post tariff release. The ECtHR in James v UK took a different view. Correctly, the courts below, from which the present appeals lie, held themselves bound by the House of Lords reasoning and decision. The Supreme Court must now consider whether and how far to modify its jurisprudence. Indeterminate prison sentences in English law: summary Since the abolition of capital punishment in 1965, the most severe form of sentence imposed under English law has been a sentence of life imprisonment. A life sentence does not mean imprisonment for the rest of the defendants natural life; it means a sentence composed of two parts. The first part is a minimum term, fixed by the court according to the gravity of the offence and the circumstances of the offender. The second is an indefinite term beyond that minimum, in which period the prisoner may be released, not unconditionally but on licence, if he is judged no longer to present an unacceptable risk to the public. In modern times the decision on release is committed to the Parole Board, an independent body correctly treated as a court by the ECtHR. Release on licence is required by statute when the Parole Board has directed it, but it may so direct only when satisfied that it is no longer necessary for the protection of the public that the prisoner be confined: sections 28(5) and (6) of the Crime (Sentences) Act 1997. Such a life sentence may be passed in defined circumstances only: (a) (b) It is required by law for those convicted of murder (a mandatory life sentence). It is available as a discretionary penalty (a discretionary life sentence) for a restricted group of offenders convicted of a few of the most serious offences known to the law, for which the maximum sentence available is life imprisonment, where the gravity of the offence warrants a very long sentence and where the risk of grave future harm to the public from the offender cannot reliably be estimated at the time of sentencing (R v Hodgson (1967) 52 Cr App R 113 and R v Chapman [2000] 1 Cr App R 77). (c) Unless its imposition would in the circumstances be unjust it is required in the case of those convicted for a second time of a defined group of very serious violent or sexual offences, where both offences called for determinate terms of ten years or more, or their equivalent: see section 122 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). (d) Between 1997 and April 2005 it was required, unless in the circumstances its imposition would be unjust because the offender did not pose a risk to the public of serious harm, in the case of a few offenders convicted for the second time of a restricted group of the most serious violent or sexual offences: section 109 Powers of Criminal Courts (Sentencing) Act 2000, repealed by section 303 of and Schedule 37 to the Criminal Justice Act 2003. This form of life sentence was generally known as an automatic life sentence. 4. In addition to these forms of life sentence, the Criminal Justice Act 2003 created from April 2005, until it was abolished by LASPO, the different form of indeterminate sentence called Imprisonment for Public Protection (IPP). As is well known, IPP was available (and for the first three years was in some circumstances mandatory) for a much wider class of offences than was a life sentence. It was, however, structured in a similar manner to a life sentence, formed of a minimum term fixed by the court in accordance with the gravity of the offence and the circumstances of the offender, to be followed by an indefinite period with release on licence only when the prisoner was judged by the Parole Board no longer to present an unacceptable risk to the public of serious harm. The terms of section 28(5) and (6) of the Crime (Sentences) Act 1997, governing release, apply to IPP prisoners as they do to life sentence prisoners. 5. As is also well known, and chronicled in both R (James) and to a lesser extent in James v UK, the advent of IPP in April 2005 put the prison administration in England and Wales under an entirely new strain. Previously there had been fairly steady numbers of prisoners serving indeterminate periods, namely those serving one or other of the forms of life sentence set out at (a), (b) and (d) above. IPP prisoners were also indeterminate prisoners but their numbers greatly increased the total, which by 2008 was effectively doubled. The present claimants 6. The four appellants were convicted of various offences and were sentenced as follows: (a) Mr Haney was on 13th November 2003 ordered to serve an automatic life sentence, with a minimum specified term expiring on 13th November 2012, the sentence being passed for robbery committed with others while armed with sawn off shot guns. (b) Mr Robinson was on 2nd October 2006 sentenced to IPP for sexual offences, with a seven year minimum term (to which time on remand counted as usual) expiring on 10th December 2012. (c) Mr Massey was on 15th May 2008 sentenced to IPP for sexual offences, with a minimum term of two years six months (again allowing for time on remand) expiring on 11th September 2010. (d) Mr Kaiyam was on 20th July 2006 sentenced to IPP with a minimum term of two years and 257 days, expiring on 3rd April 2009. Mr Haneys life sentence was passed under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. The sentences on Mr Robinson, Mr Massey and Mr Kaiyam were passed under section 225 of the Criminal Justice Act 2003. 7. All these sentences were, when passed, outside the scope of the provisions of section 142(1) of the Criminal Justice Act 2003 requiring a sentencing court to have regard to reform and rehabilitation as an express purpose of sentencing. As from 14th July 2008, section 142 was amended to require regard to be had to reform and rehabilitation as an express purpose of any life or IPP sentence passed under section 225. In R (James) the House on 6 May 2009 held that, prior to this amendment, the only purposes of section 225 were commensurate punishment and public protection. It accepted however that the premise of section 225 and the context in which it was enacted were that prisoners would be given a fair chance of rehabilitating themselves; and, consistently with this, the Ministry of Justices National Offender Management Service instruction issued in July 2010 indicated (para 4.1.1) that ISP [indeterminate sentence prisoner] sentence plans will aim to identify the risks the prisoner must reduce and offer the effective and timely delivery of properly identified interventions, having regard to available resources, so that Parole Board reviews can be meaningful; the release of ISPs is facilitated where it is safe to do so; [and] any period of continued detention beyond tariff is necessary because the risk of harm remains too high for release to be appropriate. The instruction also recognised (para 4.8.1) that In most mandatory lifer cases, a phased release from closed to open prison is necessary in order to test their readiness for release into the community on life licence. In James v UK the ECtHR took a different view from the House of the purposes of IPP sentences in the context of the ECHR. It regarded a real opportunity for rehabilitation [as] a necessary element of any part of the detention which is to be justified solely by reference to public protection and on this basis held that one of the purposes of IPP sentences was the rehabilitation of those so sentenced (para 209). 8. Each of the appellants now complains that his progress towards post tariff release was hampered by failures relating to his rehabilitation for which the respondent Secretary of State was responsible. In summary: (a) Mr Haney complains under article 5 that he was only transferred to open prison conditions on or around 16th July 2012, too close to the expiry date of his minimum term to allow release immediately upon such expiry. The Secretary of State conceded that a systemic failure (to provide adequately for the increase in numbers of prisoners serving indeterminate terms) had led to excessive delay in transferring him to open conditions, and Lang J proceeded on that basis. But both she and the Court of Appeal dismissed his claim under article 5 in the light of the Houses decision in R (James). (b) Mr Haney also complains under article 14 that he was discriminated against by a decision of the prison authorities, taken in October 2011 in the light of the shortage of available places in open prisons, to prioritise the movement to open conditions of those whose tariff period had already expired. Lang J and the Court of Appeal dismissed this complaint, as they were bound to, in the light of the Houses decision in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484, notwithstanding the later judgment of the ECtHR in Clift v United Kingdom (Application No 7205/07) (13 July 2010), disagreeing with this decision of the House. (c) Messrs Robinson and Massey complain that they were unable to commence an extended sexual offenders treatment programme (ESOTP) until, in the case of Robinson, 1st July 2013, over five years after the course was first recommended for him and over nine months after his tariff period expired, and, in the case of Massey, until May 2013, nearly three years after it was first recommended and over three years since his tariff period expired. The Divisional Court (Richards LJ and Irwin J) on 4th December 2013 found that the number of IPP prisoners at the relevant times greatly exceeded the number of ESOTP places on courses, and held itself satisfied that there is a continuing failure on the part of the Secretary of State to make reasonable provision of systems and resources, specifically the reasonable provision of ESOTP courses, for the purpose of allowing IPP prisoners a reasonable opportunity to demonstrate to the Parole Board, by the time of the expiry of their tariff periods or reasonably soon thereafter, that they are safe to be released. (para 62) Having dismissed the claims in the light of R (James) but stating also that it did not consider that they would have succeeded under the principles indicated in James v UK the Divisional Court certified the cases as suitable for leapfrog appeal to this Court. (d) Mr Kaiyams complaint under article 5 is not based on any allegation of systematic failure by the Secretary of State. It is a complaint about various decisions and delays which he says affected him individually and meant that he was not offered or put on various courses during the period 2010 to 2013, after his tariff period expired. Supperstone J and the Court of Appeal dismissed his claim in the light of R (James). Analysis of the duty of the Secretary of State 9. Article 5 of the ECHR reads: the lawful detention of a person after conviction by a 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: (a) competent court; (b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. Everyone arrested or detained in accordance with the provisions of para 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. Release may be conditioned by guarantees to appear for trial. 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. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. 10. The cases of R (James) and James v UK concerned mandatory IPP sentences with tariffs of respectively two years, 12 months and nine months, at the expiry of which the three applicants still remained in their local prisons without access to recommended rehabilitative courses. Messrs James, Wells and Lee were only transferred to first stage lifer prisons five months, 21 months and 25 months after their respective tariffs expired. The Divisional Court and Court of Appeal in R (James) held the Secretary of State to have been in systemic breach of his public law duty, and granted a declaration to that effect. In the House of Lords there was no appeal against that declaration, but explicit reference was made to its correctness (see per Lord Hope, para 3). However the House of Lords dismissed the claims for breach of articles 5(1) and (4). It held that continued detention remained lawful until the Parole Board was satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined, as provided by section 28(6)(b) of the Crime (Sentences) Act 1997 and in accordance with the principles since considered by this Court in R (Sturnham) v Parole Board (No 2) [2013] UKSC 47, [2013] 2 AC 254. 11. The only possible exception that the House contemplated was for the (hypothetical) case of detention continuing for a very lengthy period in circumstances where the system of review had completely broken down or ceased to be effective: per Lord Hope at para 15 and Lord Brown at para 51. This exception reflected case law of the ECtHR (to which we will return in greater detail) to the effect that 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." On that basis, the ECtHR in Weeks went on in relation to a discretionary life sentence imposed for the purpose of public protection (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'." In relation to article 5(4), the House in R (James) held that article 5(4) required a system providing for assessment at reasonable intervals which meets the requirements of procedural fairness: per Lord Hope at para 21. As such a system existed on the facts, it held that there was no breach of article 5(4). 12. The ECtHR took a different view from the House of Lords on article 5(1). It concluded that 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) of the Convention. (para 221) It regarded the complaints under article 5(4) regarding the failure to provide relevant courses as raising no separate issue (para 226). The ECtHR later commented that it had found the applicants post tariff detention to have been arbitrary and therefore in breach of article 5(1) during the periods in which they were not progressed in their sentences and has no access to relevant courses to help them address the risk they posed to the public. (para 231) and that It cannot be assumed that, if the violations had not occurred, the applicants would not have been deprived of their liberty. It also logically follows that once the applicants were transferred to first stage prisons and had timeous access to relevant courses, their detention once again became lawful. (para 244) 13. The ECtHR was not concerned with life sentence prisoners in James v UK, but it is clear from cases decided under article 5(4) that it would adopt similar reasoning. As Lord Reed explained in R (Faulkner) v Secretary of State for Justice, R (Sturnham) v The Parole Board (No 1) [2013] UKSC 23 [2013] 2 AC 254, paras 9 10, the ECtHR held in Thynne, Wilson and Gunnell v The United Kingdom (1990) 13 EHRR 666 that, since the need for public protection was likely to change over time, discretionary life prisoners whose tariff periods had expired were entitled to invoke article 5(4): 9. 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. 10. 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 Noorkoiv's 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. 14. James v UK has subsequently been applied by the 4th section of the ECtHR in Dillon v UK (Application No 32621/11; 4 Nov 2104) and Thomas v UK (Application No 55863/11; 4 Nov 2014), summarily rejecting the Governments submission that it had been wrongly decided. However in both cases the claims of the applicants failed on the merits. 15. The ECtHRs reasoning in James v UK opens the possibility, discussed in In re Corey [2013] UKSC 76, [2014] AC 516, that it was contemplating that detention could, at least post tariff, fluctuate between the lawful and unlawful, depending upon whether a prisoner serving a sentence of IPP was being offered appropriate opportunity to progress in his or her sentence. Not surprisingly, counsel for the appellants on the present appeal were as keen to disclaim such an analysis as counsel for the Secretary of State. But common ground between counsel in a particular case cannot avoid the need to address an important point of law, which may arise in other cases in which counsel may take different attitudes. In In re Corey, para 62, Lord Mance pointed out that the ECtHR did not directly address the apparent logical consequences of its analysis of article 5(1), when this was questioned by the British Government. Instead, it contented itself with saying simply (para 217) that: 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. However, this does not appear to be the case here. 16. It may not have been the case with Messrs James, Wells and Lee that their release was sought or ordered before their risk was reduced to a safe level. But the Supreme Court was informed that various life or IPP prisoners are now relying upon James v UK to challenge in the Administrative Court the legitimacy of their continued detention, before the Parole Board has expressed itself satisfied as to their safety for release. In these circumstances, Mr James Eadie QC for the Secretary of State invites the Supreme Court to rule on the legal position under United Kingdom law, and submits that, whatever the position in Strasbourg, we should declare life and IPP prisoners continuing detention to be lawful, unless and until the Parole Board determines such detention to be unnecessary subject only to the remote possibility, identified by the House in R (James) that a complete breakdown of the parole system might destroy the causal link between the original sentence of life or IPP and the continuing detention. We should in short adhere in this respect to the Houses previous reasoning and decision in R (James). 17. The logical starting point of this submission consists in sections 2, 3 and 6 of the Human Rights Act 1998. These sections read: judgment, decision, declaration or advisory opinion of 2. A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any (a) the European Court of Human Rights, . 3(1) 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. 6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. 18. The Convention Rights are those set out in Schedule 1 to the Act. It follows from the wording of the Act that domestic courts in interpreting and applying such rights are not bound by the jurisprudence of the ECtHR, but are bound to take it into account. Usually, domestic and Strasbourg jurisprudence march hand in hand, as contemplated by the mirror principle no more, but certainly no less (as put by Lord Bingham in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20 or no less, but certainly no more (as put by Lord Brown in Al Skeini v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153, para 106). But increasingly it has been realised that situations are not always so simple. The domestic court may have to decide for itself what the Convention rights mean, in a context which the ECtHR has not yet addressed: see eg Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72. More radically, the domestic court may conclude that such Strasbourg authority as exists cannot be supported, and may decline to follow it in the hope that it may be reconsidered: R v Horncastle [2009] UKSC 14, [2010] 2 AC 373. 19. The position was summarised by Lord Neuberger in Manchester City Corporation v Pinnock [2010] UKSC 45, [2011] 2 AC 104, as follows: 48. 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 eg R v Horncastle[2010] 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 HRA 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. 20. More recently in R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2014] AC 271, para 27, Lord Mance said: 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 [2010] 2 AC 373, 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. 21. The degree of constraint imposed or freedom allowed by the phrase must take into account is context specific, and it would be unwise to treat Lord Neubergers reference to decisions whose reasoning does not appear to overlook or misunderstand some argument or point of principle or Lord Mances reference to some egregious oversight or misunderstanding as more than attempts at general guidelines, or to attach too much weight to his choice of the word egregious, compared with Lord Neubergers omission of such a qualification. 22. The starting point, when considering Mr James Eadie QCs submission, must be the language of article 5. Article 5 lists the cases in which a person may, in accordance with a procedure which must be prescribed by law, be deprived of his or her liberty. The first (article 5(1)(a)) is lawful detention after conviction by a competent court. Article 5(4) entitles anyone detained purportedly pursuant to this or any other of the listed grounds 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. 23. On the face of it, the express wording of article 5(1) and of the last ten words of article 5(4) contemplate that any detention not authorised by article 5(1) should lead to release. On the reasoning of the ECtHR in James v UK, failure after the tariff period properly to progress a life or IPP prisoner towards release makes detention during the period of such failure arbitrary and therefore unlawful. If that reasoning be adopted, then such detention is in breach of the express language of article 5(1)(a), and the prisoner should (in the eyes of the ECtHR) be entitled to an immediate order for speedy release under article 5(4). Under United Kingdom domestic law, release would however be impossible, since primary legislation requires such a prisoner to remain in detention unless and until the Parole Board is satisfied that this is no longer necessary for the protection of the public and section 6(2)(a) of the Human Rights Act 1998 would apply. But, even so, it would then be open to the prisoner under section 4 of the Act to seek a declaration of incompatibility if domestic courts were to interpret the Convention rights scheduled to the Act in the same way as the ECtHR interprets the ECHR at the international level. Considerable importance may therefore attach to the question whether the reasoning of the ECtHR in James v UK is followed and adopted domestically. 24. The reasoning in James v UK has, as its premise, that whether detention is lawful is not conclusively decided by the fact that there has been a valid conviction by the domestic court. In its previous case law the Court had made clear that, although the primary requirement of article 5(1)(a) is that the detention should have a legal basis in domestic law, the article also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the articles of the Convention: Stafford v United Kingdom (2002) 35 EHRR 1121, para 63; Amuur v France (1996) 22 EHRR 533, para 50; Saadi v United Kingdom (2008) 47 EHRR 427, para 67; Kafkaris v Cyprus (2008) 49 EHRR 877, para 117; M v Germany (2009) 51 EHRR 976, para 90; see also Radu v Germany (Application No 20084/07), para 112. In this as in other contexts, the ECHR has not infrequently resorted to a concept of arbitrariness to explain what it means by unlawfulness. The natural meaning of this English word connotes some quite fundamental shortcoming. But it is also clear that, when used at the international level, its sense can depend on the context. Thus, in Saadi v United Kingdom (2008) 47 EHRR 427, the Grand Chamber identified a distinction between arbitrariness in the context of article 5(1)(a) and in the context of other sub paragraphs of article 5(1). It said: 25. 69. One general principle established in the case law is that detention will be arbitrary where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities (see, for example, Bozano v France, 18 December 1986, Series A no 111, and onka v Belgium, Application No 51564/99, ECHR 2002 I). The condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub paragraph of article 5(1) (see Winterwerp, cited above, 39; Bouamar v Belgium, 29 February 1988, 50, Series A no 129; and OHara v The United Kingdom, Application No 37555/97, 34, ECHR 2001 X).There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (see Bouamar, 50, cited above; Aerts v Belgium, 30 July 1998, 46, Reports 1998 V; and Enhorn v Sweden, Application No 56529/00, 42, ECHR 2005 I). 70. The notion of arbitrariness in the contexts of sub paras (b), (d) and (e) also includes an assessment whether detention was necessary to achieve the stated aim. The detention of an individual is such a serious measure that it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained (see Witold Litwa, cited above, 78; Hilda Hafsteinsdttir v Iceland, Application No 40905/98, 51, 8 June 2004; and Enhorn, cited above, 44). The principle of proportionality further dictates that where detention is to secure the fulfilment of an obligation provided by law, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty (see Vasileva v Denmark, Application No 52792/99, 37, 25 September 2003). The duration of the detention is a relevant factor in striking such a balance (ibid, and see also McVeigh and Others v The United Kingdom, Applications Nos 8022/77, 8025/77, 8027/77, Commissions report of 18 March 1981, Decisions and Reports 25, p 15 at pp 37 38 and 42). 71. The court applies a different approach towards the principle that there should be no arbitrariness in cases of detention under article 5(1)(a), where, in the absence of bad faith or one of the other grounds set out in para 69 above, as long as the detention follows and has a sufficient causal connection with a lawful conviction, the decision to impose a sentence of detention and the length of that sentence are matters for the national authorities rather than for the Court under article 5(1) (see T v The United Kingdom [GC], Application No 24724/94, 103, 16 December 1999, and also Stafford v The United Kingdom [GC], Application No 46295/99, 64, ECHR 2002 IV). 26. According to Saadi, the arbitrariness which might at an international level affect lawfulness under article 5(1) is relatively confined. The main examples which the European Court gave of situations in which detention might, although lawful under domestic law, be unlawful under the Convention, were: (a) Detention following upon the unlawful kidnapping or luring within the domestic jurisdiction of a person wanted for trial can render a persons detention following his or her subsequent conviction unlawful: see the citation of Bozano v France (1986) 9 EHRR 297 and onka v Belgium (2002) 34 EHRR 1298 in footnote 50 to para 69 of the Courts judgment in Saadi. Under English common law a similar result would follow: such conduct would call for a stay of the criminal proceedings and the release of the defendant on the grounds of abuse of process: R v Horseferry Road Magistrates Court, Ex p Bennett [1994] 1 AC 42. (b) The deprivation of liberty must genuinely be for one of the purposes permitted by article 5(1) and must, in the case of a sentence, retain a sufficient causal connection with the original conviction: see eg van Droogenbroeck v Belgium (1982) 4 EHRR 443, paras 35 and 40 (referring to detention 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), Weeks v The United Kingdom (1987) 10 EHRR 293, Kafkaris, para 118 and the Houses reasoning in R (James), paras 15 and 49. 27. However, other authority indicates a tendency on the part of at least some sections of the court to expand the concept of unlawfulness under article 5(1). Thus, in M v Germany, para 90, the fifth section said on 17 December 2009 in a context where article 5(1)(a) was in issue that: Quality of the law in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Amuur v France, 25 June 29. 1996, 50, Reports 1996 III; Nasrulloyev v Russia, Application No 656/06, 71, 11 October 2007; and Mooren v Germany [GC], Application No 11364/03, 76, 9 July 2009). The standard of lawfulness set by the Convention thus requires that all law be sufficiently precise to allow the person if need be, with appropriate advice to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Steel and Others v The United Kingdom, 23 September 1998, 54, Reports 1998 VII, and Baranowski v Poland, Application No 28358/95, 52, ECHR 2000 III). 28. In contrast, the First Section in Zagidulina v Russia (Application No 11737/06) (02 May 2013) appears to have deliberately limited itself to article 5(1)(e), when it stated (para 51) that: the notion of lawfulness in the context of article 5(1)(e) of the Convention might have a broader meaning than in national legislation. Lawfulness of detention necessarily presumes a fair and proper procedure, including the requirement that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary (see Winterwerp, cited above, 45, Johnson v The United Kingdom, 24 October 1997, 60, Reports of Judgments and Decisions 1997 VII, and more recently Venios v Greece, Application No 33055/08, 48, 5 July 2011 with further references). Even in the context of article 5(1)(e), the dictum seems to have been unnecessary for the decision, since it is clear from para 61 of the First Sections judgment that the claimants detention on the ground that she was of unsound mind, when she had neither been present in person nor represented at the hearing ordering such detention, was not in accordance with a procedure prescribed by law within the express language of article 5(1), even if attention was confined to domestic law. The extent to which the concept of lawfulness may require a domestic law authorising detention to meet some higher international standard of procedural fairness did not require attention at all. In neither situation covered by points (a) and (b) mentioned in paragraph 26 above does there appear domestically to be any difficulty about accepting that the prisoner should not have been detained and should be, or have been, released. That is subject to the important proviso that the possibility of a break in the chain of causation envisaged by point (b) is understood as we consider that it must and should be in domestic law in the remote and restricted sense indicated by the House in R (James). A requirement that any law authorising detention should be sufficiently accessible, precise and foreseeable (see para 27 above) would probably also be capable of being accommodated within domestic law, again provided that it was understood as directed to situations where the relevant law was palpably defective. As to the reasoning in Zagidulina v Russia (para 28 above), the requirement that any deprivation of liberty be in accordance with a procedure prescribed by law is general to all the heads covered by article 5(1). It is directed primarily to domestic law, but, if one assumes that it may also connote satisfaction of a certain standard of procedural fairness set at the international level, the implications of this have not been worked out in any case law, and it does not follow that any shortfall in procedural fairness must lead to immediate release. 30. The present appeal does not in any event concern procedural fairness. It concerns alleged failures in the provision of appropriate opportunities to prisoners to progress towards release from sentences about the imposition of which, as such, no complaint is or can be made. In this context, there is a real difficulty about accepting a proposition that the Convention rights require a life or IPP prisoners release, before the Parole Board is satisfied that his detention is no longer required for the protection of the public. Not only would this in the United Kingdom context mean that primary legislation section 28(6)(b) of the Crime (Sentences) Act 1997 (para 10 above) was in conflict with the Convention rights. It would also involve the release of someone whose safety for release had not been established; and, as soon as he could be offered appropriate facilities to make progress towards eventual release, it would involve re detaining him always assuming that he either surrendered voluntarily or could be found and rearrested. In In re Corey, paras 63 69 Lord Mance questioned whether the ECtHR could have meant this. He identified certain features of its reasoning which suggest that it did not. We will treat them as repeated here, without setting them out. However, if the ECtHR did not mean this, that seems to undermine the central part of its reasoning that detention becomes arbitrary and unlawful under article 5(1) after the expiry of the tariff period, if the prisoner is not given the facilities to enable him to progress towards release. Detention which is unlawful under the express wording of article 5(1) is, as we have said, detention from which a person is under article 5 entitled on the face of it to be released. 31. 32. The central part of the Courts reasoning in James v UK under article 5(1) finds little if any support in the previous Strasbourg authority. The need for a coherent framework for progression towards release of persons subject 33. to a measure of preventive detention is mentioned in M v Germany, at para 129, but in a quite different part of the judgment from that dealing with the lawfulness of detention namely in the context of considering whether the extension of such a measure from ten years to an unlimited period after six years in preventive detention constituted the introduction of a retrospective penalty. In Grosskopf v Germany (2010) 53 EHRR 280, paras 50 52 the Court again expressed concern about the apparent absence of any special measures, instruments or institutions to address the danger presented by persons subject to preventive detention and to limit the duration of their detention, but did so purely in the context of considering whether a sufficient causal connection existed between the applicants original conviction and his continuing preventive detention. If anything, the courts reference to its concern, coupled with its decision to uphold the continuing detention as not unreasonable in terms of the objectives of the preventive detention order, suggest that the court did not see the absence of any special measures as capable of affecting the lawfulness of the detention, so long as the causal connection based on danger to the public existed. In James v UK the Fourth Section of the ECtHR did however unequivocally identify the absence of measures to assist progression through the prison system as arbitrariness making the detention unlawful. It treated the situation as falling within the language of article 5(1)(a), despite the continuing existence of sufficient causal link between sentence and detention (see para 198). On this basis, it had also to identify the period of detention which was unlawful. It did so by referring, in its holding, to the detention following the expiry of their tariff periods and until steps were taken to progress them through the prison system. That exposes a problem. Particularly where a tariff is of a relatively long period, a prisoners progression towards release through courses and experience in open conditions should, where and to the extent feasible, be facilitated not merely after but also in advance of the tariff period, so as to keep open the possibility of release on or shortly after its expiry. That is indeed Mr Haneys complaint in the present case. Yet, on the ECtHRs approach, treating the present issue as falling within the text of article 5(1)(a), no complaint can apparently arise until the expiry of the tariff period, and any complaint can then only arise if the failure to provide courses, etc continues after the expiry of the tariff period. 34. The second, much more substantial problem about the Fourth Sections approach is that logically it would, if followed in the United Kingdom, mean, as we have stated, that any prisoner not being progressed through the system should be released, and that the Crime (Sentences) Act 1997 section 28(6)(b) should be declared incompatible with the Convention rights insofar as it precludes this. As noted in para 15 above, the ECtHR in para 217 of its judgment avoided, rather than addressed, this difficulty. Mr Southey QC for the appellants suggested, ingeniously, that the difficulty could not arise, because, as soon as a prisoner gets to court and establishes that he is not being duly progressed towards release, the courts order would redress the situation. This does not however follow. Many of the failings revealed by the cases which have come before the courts to date are simply incapable of being redressed at the drop of a hat or wig. Systems failed, due to lack of resources and facilities, and it takes time to mend such failures, whatever order a court might make. Moreover, in a case where the failure was repaired, as it might be by the time a court came to consider the case, by the provision of adequate opportunity to the prisoner, then the court would be left, on this view of the ECtHR decision, with detention which had been unlawful for a time but was no longer. 35. For the reasons which we have given, we do not think that it is possible to follow the reasoning of the Fourth Section of the ECtHR in James v UK. It appears to us to be based on an over expanded and inappropriate reading of the word unlawful in article 5(1)(a), which would not give rise to a sensible scheme. That does not however mean that we would revert to the Houses decision in R (James). The Fourth Section has underlined the link which should be recognised between preventive detention and rehabilitation, and has also concluded that there should be an individual remedy in damages under the ECHR for failure to provide prisoners serving indeterminate sentences with proper means of progression towards release. The Houses refusal of a Convention remedy in R (James) was based on a contrary conclusion that the aim of a life or IPP sentence does not include rehabilitation, at least for the purposes of the ECHR, as well as upon the Houses view that the continuing causal link between sentence and detention prevented any breach of article 5. 36. We consider that the Supreme Court should now accept the Fourth Sections conclusion, that the purpose of the sentence includes rehabilitation, in relation to prisoners subject to life and IPP sentences in respect of whom shorter tariff periods have been set. We also consider that the Supreme Court can and should accept as implicit in the scheme of article 5 that the state is under a duty to provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public. But we do not consider that this duty can be found in the express language of article 5(1). Treating it as an aspect of the duty to avoid arbitrariness under article 5(1)(a) has unacceptable and implausible consequences which we have already identified. The Grand Chamber decision in Saadi also remains important authority that arbitrariness has a confined meaning, when used as a test of lawfulness in the context of article 5(1)(a). 37. Article 5(4) would be a more satisfactory home for any duty of the nature identified in the previous paragraph, if its language covered it (which it does not). Article 5(4) gives rise to an ancillary duty on the state, breach of which does not directly impact on the lawfulness of detention. The duty is to make available access to judicial review by a court or here the Parole Board, which will consider whether the information put before it justifies continued detention or release. Speedy access to the Parole Board like reasonable access to proper courses and facilities represents an important aspect of a prisoners progression towards release. But the language of article 5(4) is in terms confined to access to judicial review by the Parole Board on the basis of the information available from time to time. It does not cover the prior stage of provision of courses and facilities in prison, which gives rise to the information necessary on any Parole Board review. 38. The duty to facilitate the progress of such prisoners towards release by appropriate courses and facilities cannot therefore be brought, in our opinion, within the express language of either article 5(1)(a) or article 5(4). But it is on any view closely analogous, at an earlier stage, to the duty involved under article 5(4), and it is far more satisfactory to treat it as an analogous duty arising by implication at an earlier stage than that covered by article 5(4), rather than to treat article 5(1)(a) as incorporating it. We consider that a duty to facilitate release can and should therefore be implied as an ancillary duty a duty not affecting the lawfulness of the detention, but sounding in damages if breached. Such a duty can readily be implied as part of the overall scheme of article 5, read as a whole, as suggested in In re Corey. 39. The appropriate remedy for breach of such duty is, for the reasons explained, not release of the prisoner, for his detention remains the direct causal consequence of his indefinite sentence until his risk is judged by the independent Parole Board to be such as to permit his release on licence. The appropriate remedy is an award of damages for legitimate frustration and anxiety, where such can properly be inferred to have been occasioned. Except in the rarest cases it will not be possible to say what might have been the outcome of an opportunity by way of a prison programme which was not provided or was provided late. It will thus not, except in the rarest cases, be possible to establish any prolongation of detention. Such a breach is likely to attract relief similar to that recognised as appropriate under article 5(4) in frustration/anxiety cases where a Parole Board hearing has been wrongly delayed: we refer to the very full analysis of Strasbourg awards in R (Faulkner) v Secretary of State for Justice, R (Sturnham) v The Parole Board (No 1) [2013] UKSC 23, [2013] 2 AC 254, and we note that in some of them the award needed to reflect not only delay but also procedural unfairness. It may be legitimate to infer rather greater frustration in at least some cases when the point of impending decision, which may be for release, has been arrived at, than at the more speculative earlier stage of delay in the provision of prison treatment. The round figure levels of damages awarded by the ECtHR in James v UK, para 244, do not appear to us to offer appropriate general guidance for future cases under the ancillary duty now recognised. The general approach set out by Lord Reed at points 10 15 in para 13 of R (Faulkner) and R (Sturnham) and the detailed examination of authority later in his judgment should however provide valuable guidance as to the appropriate approach to damages in respect of any such breach of the ancillary duty. 40. This approach will be more satisfactory in result than that which would, apparently, follow from the ECtHRs analysis in James v UK. There would be no risk of detention fluctuating between the legitimate and illegitimate, no requirement to release before the Parole Board is satisfied that this would be safe, and no risk therefore to public safety. But, equally, the prisoner will be able (a) to complain and to seek mandatory orders if and when any breach of such duty occurs and (b) to claim damages in respect of any period of extended detention or other loss which he or she can establish (and this could often prove a very difficult task, bearing in mind the speculative nature of the exercise) to have flowed from the failure properly to progress him or her towards rehabilitation. These rights would exist and damages would be recoverable in respect of any period of extended detention which could be shown to have resulted after the expiry of the tariff period whether the failure occurred before or after the expiry of the tariff period. The prisoners rights would not therefore depend upon showing an overlap between a period during which such a failure occurred and a period of increased detention post tariff, as the ECtHRs approach in James v UK appears to require. The content of the duty 41. On that basis the question arises in what precise terms and in particular at what precise level the duty should be put. As a matter of domestic public law, complaint may be made in respect of any systemic failure, any failure to make reasonable provision for an individual prisoner so egregious as to satisfy the Wednesbury standard of unreasonableness or any failure to apply established policy. The question is whether liability for breach of article 5 is similarly limited. In our opinion, it is not. The express rights conferred by article 5 are individual rights. The ancillary right which we identify as existing under article 5 is also a right in favour of each individual prisoner and its satisfaction or otherwise depends upon the particular circumstances of the individual case. Although the ECtHR was concerned in James v UK with circumstances in which there had been systemic failures in the United Kingdom, the ECtHRs decision was based on a careful individual analysis of each applicants prison history: see eg paras 218 222. 42. The ECtHR does not however insist at the international level on standards of perfection that would be unrealistic, bearing in mind the numbers of prisoners involved and the limits on courses, facilities and resources in the prison system. Nor should domestic courts do so. In Hall v The United Kingdom (Application No 24712/12) (12 November 2013), the ECtHR was concerned with a complaint by an IPP prisoner sentenced on 13 June 2006 with (after appeal) a 30 month tariff expiring on 13 December 2008. Although the ECtHR said that it appears that there may have been some delay from around March 2008 [when the Extended Sex Offenders Treatment Programme ESOTP was identified as a course he should take] until early 2010 [when he completed that programme], it passed over this delay with the comment that it seems that the applicant was able to access the Cognitive Skills Booster programme in the meantime (para 33). It appears that this Booster programme was in fact undertaken in or around 2008, that he was on 23 February 2009 transferred to HMP Usk in order to complete the ESOTP and that he in fact completed the ESOTP in early 2010: paras 10 13. The ECtHR was therefore prepared to look at the matter overall, and to accept that no system is likely to be able to avoid some periods of waiting and delay, especially for a highly intensive course such as the ESOTP. Similarly, a delay from 1 March 2012 when transfer to open conditions was recommended by the Parole Board (or from 20 March 2012 when the Secretary of State accepted the recommendation, saying that such a transfer was envisaged in about three months) until July 2012, when transfer actually occurred was not regarded as unreasonable. Black v The United Kingdom (Application No 23543/11; 1 July 2014) was another admissibility decision where the court had regard to the period of detention as a whole. 43. We turn to the individual cases, considered in the light of the ancillary obligation under article 5 which we have identified. Whether there has been a breach of the duty is a highly fact sensitive question in each case. Haney article 5 44. In November 2003 Haney was 43 years old. He had previous convictions for robbery, firearms, dishonesty and violence. On 13 November 2003 he was sentenced for a very serious armed bank robbery, carried out by himself and two other masked men armed with sawn off shotguns. He had untruthfully denied he was guilty. At the time he committed this robbery, Haney was on parole from an earlier sentence, also for robbery, having not long been released. In other words, he appears to have been a professional criminal, committing offences for high stakes which carried a grave risk to the public of death or serious injury. 45. He was sentenced to an automatic life sentence, then required (unless such would be unjust) by section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 for a few criminals convicted for a second time of a small number of specified grave offences. The minimum term attached to that sentence was nine years. At that stage, sentencing practice was to set the minimum term associated with a life sentence at between half and two thirds of what the punitive determinate term would have been if a life sentence had not been passed. Generally the proportion adopted was one half. This was to reflect the then prevailing arrangements for early release of long term determinate prisoners, which could be allowed at half of their term and became mandatory at two thirds. Thus, the nine year minimum term represented a determinate term of something like 18 years, which would indeed have been the kind of term to be expected for a recidivist of Haneys history committing a further armed robbery on parole and receiving no credit for admitting what he had done. The nine year minimum term (or tariff) expired on 13 November 2012. In prison, Haneys progress was a great deal better than might have been expected. After some years in HMP Frankland prison he was moved to HMP Blundeston, which has a therapeutic community designed to facilitate rehabilitation. Well before then he had admitted his most recent offence. After about a year there, the reports on him were favourable. He was judged to be confronting his criminal lifestyle. There had been some adjudications for misbehaviour but the last was two to three years previously in July 2008 for possession of drugs, and since then he had achieved enhanced status as a prisoner. A sentence plan formulated in March 2010 foresaw the prospect of onward transfer to an open prison, as an essential stage in assessing whether the risk which Haney presented could be managed, first there and, if successfully there, then afterwards on licence in the community. Critically, a year later, in June 2011, the Secretary of State wrote formally to him approving a transfer to an open prison for this purpose, and indeed without the need for a Parole Board assessment upon that issue. Haney was accepted in principle by a suitable open prison (HMP Kirklevington Grange) in the summer of 2011. 46. 47. The proposed transfer did not, however, then happen. His transfer eventually occurred about a year later on or about 16 July 2012, and thus not long before his tariff was due to expire in November of that year. This was not Haneys fault. The reason lay in the intervening logjam to which the introduction of IPP sentences in April 2005 had led, and which is so clearly chronicled in the judgments of the House of Lords in R (James). Although Haney is not an IPP prisoner, and his sentence pre dated the introduction of the IPP system, he was a life prisoner competing with other life prisoners and, importantly, also with IPP prisoners for resources in the prison service which were, temporarily at least, greatly under supplied. In response to the excess of demand over supply, the prison service had to introduce a new practice in October 2011, under which priority was given, amongst indefinite prisoners of one kind or another, to those whose tariffs had expired, and then to those who were nearest to tariff expiry. A separate common law challenge to the reasonableness and lawfulness of that expedient rightly failed before Lang J in the Administrative Court, for it was a perfectly sensible and lawful response to the unanticipated backlog. The common law claims which then failed are not before this court. A further challenge is, however, mounted to the October 2011 policy in this court, invoking article 14 ECHR (discrimination) but as explained below this must also fail. 48. However, the failure of the challenges to the October 2011 remedial policy adopted by the ministry leaves untouched the question whether there was a failure to meet the requirements set out in James v UK, and thus a breach of the ancillary obligation contained in article 5. This ancillary obligation clearly exists throughout the prisoners detention, and is separate from any obligation to release, whether under domestic law or the Convention. It is geared towards the prisoner having a reasonable opportunity to establish that he is safe to release at or within a reasonable time after the expiry of the tariff period. A failure before tariff expiry may thus constitute a breach if it remains uncorrected so that he is deprived of such reasonable opportunity, which he ought to have had. Such a breach may sound in modest damages if the impact on the prisoner warrants it. It cannot of itself give rise to a duty to release, for whilst the prisoner remains unsafe to the public, there is ample justification under article 5(1)(a) for his continued detention. The question is accordingly this: was Haney afforded a reasonable opportunity to reform himself and (crucially in his case) to demonstrate that he no longer presented an unacceptable risk to the public? 49. The answer to this question is, in Haneys case, given by the letter to him from the Secretary of State of June 2011. By this letter the Secretary of State identified what a reasonable opportunity was for Haney to demonstrate that he was no longer a danger that is to say a transfer to open conditions and adjudged that he should have that opportunity there and then. Unlike the cases of other appellants, there was no other opportunity which could be afforded to him to demonstrate this. That he did not have this reasonable opportunity was the result of the systemic failures identified in R (James) and in James v UK. It is clear that but for those failures, Haney would have been transferred to open conditions in or about late Summer 2011. What he would have made of that opportunity cannot be known, nor can it be known when or whether the Parole Board would have adjudged him safe for release on licence which would endure for the rest of his life. But that he was deprived of the reasonable opportunity which the Secretary of State himself said that he 50. should have is clear. Worrying as his criminal history is, career criminals may change course, and the middle years are ones sometimes characterised by such change. There could have been no reasonable claim to actual release on licence before tariff expiry, even if such is technically possible. But depending on his response, there might have been some prospect of release on licence sometime after tariff expiry in November 2102. It follows that in Haneys case there was a breach of the ancillary obligation in article 5. The delay in transfer was of about a year. He would have known that he could not realistically expect release at least until after his tariff expired, and it would not follow that any postponement of release would follow or, if it did, be of the same period as the delay. But the delay in transfer until just before the expiry of the tariff period is sufficient, applying the principles explained in R (Faulkner and Sturnham) (No 2) set out in para 39 above, to justify the inference of legitimate frustration. An appropriate award is 500. Haney discrimination 51. We turn to Mr Haneys alternative case that he was discriminated against, by the decision taken by the prison authorities in October 2011 to resolve the crisis arising from the shortage of course and facilities to progress prisoners towards release by prioritising the movement to open prisons of those whose tariff periods had already expired. Mr Haneys had not. It is not clear what practical impact this issue could have, particularly in the light of the ancillary duty to afford prisoners a reasonable opportunity to rehabilitate themselves and to demonstrate that they no longer present an unacceptable danger to the public, which we have now recognised. To the extent that there was a continuing systemic failure, which affected Mr Haney because it meant that he could not be transferred to open conditions at a time pre tariff when this should, but for such failure, have occurred, the ancillary duty should afford him a remedy, independently of any case based on discrimination. 52. For completeness, however, we consider his case on discrimination. The question of law is whether the Supreme Court should recognise the difference between those whose tariff periods had and had not expired as a difference of status for the purposes of article 14 of the ECHR. The House in R (Clift) v Secretary of State of the Home Department [2006] UKHL 54, [2007] 1 AC 484 was, in the absence of clear Strasbourg authority, not prepared to accept the difference between prisoners serving determinate sentences over 15 years and life prisoners or prisoners serving determinate sentences of less than 15 years as a difference in status. The ECtHR in Clift v The United Kingdom (Application No 7205/07) took a different view, and expressed itself at one 53. point (at the end of para 60) in terms which might, literally read, eliminate any consideration of status. In the light of the ECtHRs decision, we see some force in the submission that the difference between pre and post tariff prisoners should now be taken to represent a relevant difference in status. But we need not determine that finally. That is because the difference in treatment appears to us to have been clearly justified on the basis of the evidence put before and findings made by the judge. Her findings were in the context of a complaint at common law that the difference in treatment was irrational and unfair, but they appear to us relevant and decisive in the present context also: 69. The defendant's [the Secretary of States] response was that he considered the various options for clearing the backlog and made a rational decision to prioritise the post tariff prisoners, because they were eligible for release and continued detention could only be justified if they represented a risk to the public. It was not feasible to transfer all the ISPs at one go, because of the need to ensure that sufficient resources were in place to manage and support ISPs at open prisons. The defendant denied that he was applying an inflexible policy; there was provision for exceptional cases. The defendant also denied that he was operating an unpublished policy which conflicted with published policy. The published policy related to categorisation and allocation, whereas these were merely arrangements for clearing the backlog of transfers. Rationality, fairness and taking into account relevant considerations 70. In my judgment, the defendant's evidence was cogent and convincing. Mr Mercer said in his first witness statement: Prioritisation criteria 2. A system of prioritisation was required to address the backlog, because it would not be possible or safe, to transfer all the ISPs awaiting transfer at the same time. Whilst NOMS aims to transfer prisoners who are identified as being part of the backlog into open conditions as soon as possible, it is extremely important, given the numbers involved, together with the complexity of individual cases and the risks and needs which offenders concerned present, that transfers are managed with care. Thus it is necessary to consider both the needs of the prisoners and the pace at which transfers are operationally manageable for individual establishments. For these reasons, the process of identifying and allocating suitable establishments and effecting transfers is being phased, with prisoners' cases being dealt with by PMS in tranches, initially of 50 at a time, since increased to 100, and potentially increasing still further. 3. For purposes of clearing the backlog, prisoners whose tariff has expired were considered to be a higher priority than pre tariff prisoners because they have served the punitive part of their sentence and progression through their sentences is now entirely focused on reducing their risk to the point where the Parole Board determines that they may be safety released. The decision was taken to prioritise post tariff prisoners over pre tariff prisoners because the earliest pre tariff prisoners can be released is at tariff expiry. The view was taken that the further away from tariff expiry a prisoners is, the less likely it is that they would be prejudiced by a non immediate transfer to open conditions after the Secretary of State's approval. 4. When considering how to prioritise pre tariff prisoners, considerations included: i. the need to ensure fair treatment between prisoners, including that prisoners who were often difficult to place (such as sex offenders) were not disadvantaged compared to those with less complex needs; ii. to take account of the length of time for which prisoners had waited for transfer; iii. to take account of the amount of time remaining prior to tariff expiry; iv. to provide a transparent system so that prisoners could be given reasonable estimate as to when they were likely to move; vs to set up a system that was straightforward and would avoid complex and resource intensive administration; and vi. to permit exceptional circumstances to be considered on request in individual cases. 5. Among pre tariff prisoners, it was decided, after considering various alternative means of prioritisation, that the fairest solution was to prioritise prisoners in orders of proximity to tariff expiry. This solution also had the benefit of being transparent, straightforward and practical. There were a number of prisoners approaching tariff expiry and we considered these prisoners to be of the highest priority and wanted to ensure that the criteria did not allow them to be leapfrogged by other prisoners. Prisoners who had a year or two to go until their tariff expiry would have plenty of time to utilise open conditions to demonstrate to the Parole Board a reduction in risk even if there was a delay in transferring them. Consideration was given to other way of prioritising pre tariff prisoners, such as proximity to next parole review; individual circumstances; length of tariff; and date of Secretary of State approval; but these options would disadvantage many prisoners who were approaching their tariff expiry date, leading to anomalous and unfair treatment: i. Proximity to parole review date: Once a pre tariff prisoner is approved for open conditions by the Secretary of State their parole review will take place on tariff expiry. Therefore there is not much difference between prioritisation using next parole review or tariff expiry date. However, parole reviews can be subject to delay for a number of reasons including late submission of reports; awaiting completion of offending behaviour work; or availability of panel members or witnesses. Parole reviews may also be deferred whereas tariff expiry dates remain the same. In cases where there is a delay or a deferral, prisoners placement on the list would have to be revised to take account of the new timetable. As parole review dates vary from one prisoner to the next in this manner, a waiting list organised by reference to this would be extremely fluid and the result of this would be that prisoner's positions on the waiting list would be subject to continual change. Re consideration and prioritisation of each case would have to be repeated on an unacceptably frequent basis as ISPs were added to, or removed from the list, or otherwise reprioritised following deferral or delay. It would, therefore, be impossible to give a meaningful estimate of the likely period a prisoner would have to wait for transfer. We therefore believe that this solution would be unfair, as well as lacking in transparency and being difficult to manage. ii. Length of tariff was considered to be irrelevant to the prioritisation process as it has no bearing on the Secretary of State's approval for a transfer to open conditions, which is based on risk pertaining at the time rather than either of these factors. The Secretary of State's decision to allow an ISP to transfer to open conditions is the earliest point at which this progressive move can take place. iii. Considering each case individually on its merits: Consideration was also given to prioritising each prisoner's position on a case by case basis rather than using specific criteria. It was decided that this would have been extremely time consuming and resource intensive, as well as making it hard to ensure fairness. It would have involved very difficult judgments about the relative merits of each case against all other case. In addition, fresh judgments would have been required about each case in the backlog every time a new case came through where a prisoner had been approved for transfer to open prison by the Secretary of State. Having said that, notwithstanding the prioritisation criterion outlined above, exceptional circumstances are considered upon request, and are reviewed on an individual basis. iv. Date of Secretary of State approval: Prioritising pre tariff prisoners in this way would mean that prisoners who were approaching tariff expiry could be leapfrogged by other prisoners who were not approaching tariff expiry but who had been approved by the Secretary of State for transfer earlier. This was considered to be unfair to those prisoners approaching tariff expiry who could potentially be released on tariff. ISPs who had been approved for their transfers earlier but whose tariff expiry date was further away had not yet reached the point where they could be considered for release and would not be disadvantaged by waiting longer for a move. Therefore, although NOMS accepts that the criterion of proximity to tariff expiry is not sensitive to some individual factors it was considered to be the fairest, most transparent and most practical means of establishing an order in which to transfer pre tariff ISPs to open conditions. Implementation of the October 2011 policy . 9. We reviewed the approach we were planning to take with pre tariff prisoners early in 2012 in light of progress made with transferring post tariff prisoners and began the process of referring pre tariff prisoners to PMS for transfer on 3 July. Prioritisation of pre tariff prisoners is determined by proximity to tariff expiry date; the closer to tariff expiry a prisoners is the higher will be the priority to transfer them. We have increased the amount of referrals made to PMS each month and will continue to monitor progress. 10. At the beginning of the new process, there were around 300 post tariff ISPs located in closed conditions awaiting transfer to open. At the beginning of December 2011 this figure had risen to 405 however as at 30 June this figure had fallen to 243. The current list of post tariff prisoners contains those who have been approved by the Secretary of State for a move to open conditions from late May 2012 onwards. The average waiting time for post tariff prisoners was, prior to the implementation of the central process in October 2011, around eight to nine months; this has been reduced to around three to four months now. The original backlog of post tariff prisoners has been virtually cleared and the majority have either now transferred to open conditions or are unable to transfer due to medical reasons, imminent parole hearings, courses or re categorisation to category C. The Secretary of State has approved 927 ISPs (both pre and post tariff) for open conditions between the months of October 2011 and June 2012. The number of ISPs being released continues to rise with 173 releases in the first quarter of 2012. This is in comparison with 543 releases during the whole of 2011, 258 in 2010 and 195 in 2009. 11. Turning to the rate at which ISPs are transferred under this exercise, at present the policy remains to refer a minimum of one tranche per month to PMS for action. The estimate of the rate at which the backlog will be reduced was based on the assumption that PMS would be able to organise a transfer for all prisoners in the tranche within a month of submission. We have been monitoring progress carefully and have reviewed this arrangement on a regular basis; if more that 50 prisoners could be safely transferred per month then more would be referred. That has now been reviewed and, beginning in March 2012, we increased the number of referrals to PMS each month to 100 prisoners; in May 2012, over 200 prisoners were transferred. As at 20 June, 914 post tariff prisoners had transferred under the central process. We will continue to monitor progress carefully and review this arrangement on a regular basis; if more than 100 prisoners can be safely transferred per month, as was the case in May 2012, then more be referred. 71. Mr Read added, at paras 28 and 29 of his statement: 28. In respect of individual prisoners, it is important to progress at the right pace. This means ensuring that any ISP sent to open conditions can be managed safely and given appropriate support to help make the progression from restrictive, closed conditions to relaxed, open conditions, often after a long time in custody. In respect of the overall prison population, our primary responsibility is to protect the public. Any measures which resulted in large waves of ISPs being moved into open conditions in an unmanaged way could result in an increase in prisoners absconding and seriously undermine what we are looking to achieve. In addition, NOMS must be mindful of the needs of determinate sentence prisoners, some of whom benefit from a period in an open prison before release, even though their release is not contingent on the direction of the Parole Board. 29. I believe that NOMS made a good response to the problems associated with the lack of movement for ISPs into the open estate. We have taken back central control of the management for ISPs so that they are moved in a transparent and fair way; we have increased the rate of transfers to from approximately 50 per month approximately 150 per month over the past 5 months and will continue at this rate for the immediate future; and we are increasing capacity significantly to allow more opportunity for ISPs to move. 3. It became clear to us in early 2012 that the initial rate of transfer was not having the desired effect as the rate of movement was not keeping pace with the number of new ISPs being approved for Category D conditions. From February 2012, PMS therefore increased the transfer rate to a target of 100 per month and this was maintained or surpassed through to the end of April 2012. With a view to clearing the backlog as rapidly as could safely be achieved, PMS decided to establish whether there was a tipping point beyond which open establishments found it difficult to manage. We moved a total of 211 prisoners during the course of May 2012. When we did so, however, we began to receive telephone calls from a number of open establishments raising concerns about the 72. Mr Hay, Head of PMS, said in his second witness statement, at paras 3 and 4: increased number of ISPs that they were being required to receive. In particular, concern was raised at the increase in initial Offender Management (OM) work on reception into open prisoners and whether these prisons were able to provide reassurance that all relevant OM work was being undertaken. 4. As a result, we decided to reduce the rate of moves to a target of 150 per month from June onwards. This decision was reached on the basis of the anecdotal evidence available to PMS which indicated that this was the maximum rate at which establishments could safely manage prisoners without putting the public at risk. This rate was maintained through November with the effect that the backlog was cleared by the end of August 2012. 73. I am satisfied, on this evidence, that the Defendant carefully considered all available options, took into account all relevant considerations, and reached a rational conclusion. I consider it is important to bear in mind that this was a temporary arrangement, which lasted for only about 10 months. From the end of August 2012, when the backlog was cleared, the transfers of post tariff and pre tariff prisoners were being processed at the same rate. The strategy achieved the desired result within a reasonable timescale. Prioritisation of post tariff prisoners was rational and fair because they were already eligible for release, and administrative delay might result in a prisoner being detained when he should be free, in breach of both article 5 and arguably his article 8 rights (considered in more detail below). As Buxton LJ said in Noorkoiv, at para 25, the post tariff prisoners were at least presumptively detained unlawfully and the legality of their detention was subject to article 5(4) ECHR. In my view, there was a pressing need for the Defendant to address their position. The way in which the Defendant prioritised pre tariff prisoners, according to their tariff expiry date, was also rational and fair, bearing in mind the significance of the tariff expiry for prisoners. 74. The only other alternative immediately available, namely, ceasing the transfer of determinate prisoners and thus increasing the number of ISPs transferred, would have resulted in unacceptable pressures on the management of the prisoners in open prisons, as described in the evidence. 75. It may well have been desirable for the Defendant to have changed the policy in relation to ROTL at an earlier date, so as to make ISPs eligible for ROTL from closed conditions, but I cannot find any basis upon which to hold that he acted unlawfully in not doing so sooner. The Defendant's decision, and the timescale within which the change of policy was implemented, was a lawful exercise of his discretion. 54. In the light of this evidence and the judges findings, we do not consider that the Secretary of States policy can realistically be regarded as anything other than a proportionate and realistic reaction to the crisis with which the prison system was faced. We would reject Mr Haneys complaint under article 14 accordingly. Kaiyam 55. Kaiyam (formerly Fish) was born in February 1981. By 2006 (aged 25) he had accumulated convictions for a variety of offences, including robbery (four different offences) possession of firearms and several cases of assault. He had been sent to prison and released on licence, but had broken the terms of his licence and so had been recalled. He was a regular abuser of a variety of drugs and of alcohol and an habitual dealer in cannabis. On 20 July 2006 he was sentenced for two groups of offences. First, he hi jacked a valuable car, intending to sell it to finance his drug use. The car was being driven by a young woman alone, whom he ejected, apparently bruising her in the process. He drove dangerously when chased by the police, and repeated this the following day in a different car when en route to try to sell the stolen vehicle. Secondly, and when on bail for these offences, he arranged to supply drugs to others, but was spotted by the police in a car; further dangerous driving followed until he crashed the car; a gun and ammunition were found in it, which it seems had been brought to the meeting by his intended purchasers. 56. For these offences a combination of determinate and IPP sentences were passed, but the lead sentence was IPP for the robbery, with a minimum term of three years. Allowing for time spent on remand, this period expired on either 3 or 5 April 2009. 57. 58. Initially Kaiyam was classified as a category B prisoner in the four level system employed throughout the prison service. In June 2008 (just on two years after sentence) he was reduced in category to C. However, his behaviour in prison was very poor. He was disciplined on no less than 23 occasions for offences which included disobedience, assault, drugs and the possession of mobile telephone parts. The latter is particularly serious in prison, since it not only has security implications but involves the possession of a very important item of prison currency and power. In January 2009, as a result of his misbehaviour, Kaiyam was reverted to the higher security category B. Later, also as a result of his misbehaviour, and following an assessment at HMP Dovegate (which has extensive rehabilitation experience) as being involved in the drug subculture, he was transferred to a high security prison at HMP Long Lartin in January 2010. In the meantime, efforts had been made to provide him with appropriate rehabilitative courses. There were regular sentencing planning meetings at which there was discussion as to how best to progress him. He completed a six week Enhanced Thinking Skills (ETS) course in July 2008. He also completed a drug awareness course in July 2008 and a victim awareness course in October 2008. He was assessed as having made some progress on the ETS course, but there was doubt about his ability to carry the lessons into practice, and about his honesty, self control in prison and drug use. Once he was placed at HMP Long Lartin, he was at a prison where the priority is security and rehabilitative courses are comparatively few. He nevertheless had the benefit of continuing one to one anger management consultations with his Offender Manager, which lasted for more than two years from July 2009 to October 2011, until they came to an end when the officer concerned moved on. Although there were few courses available at HMP Long Lartin, there were regular sentencing planning meetings in May 2010, June 2011, August 2012 and October 2012. His behaviour underwent a significant improvement. The most suitable course for him was considered to be a Prison Addressing Substance Abuse (PASRO) course, with further anger management work. HMP Long Lartin does not offer either kind of course. Efforts were made to find a prison which did have such courses and which could accept him, but without success. At one stage, a transfer was planned and would have taken place but for the fact that he was accused of a further disciplinary offence in May 2011, which as a matter of general practice normally means that the prisoner must remain where he is until the accusation is resolved. In the end, this particular allegation (of assault on an officer) was not proceeded with, but only because the officer who made it fell ill and could not continue. In October 2012 a new managing officer suggested a different course, known as the Self Change Programme (SCP) in addition to PASRO, and by December 2012 the former was begun, being available in HMP Long Lartin. In the meantime, his tariff had expired in April 2009. As at the time of the hearing before this court, he had been transferred to HMP Lindholme, categorised as C, and was undertaking a course which had replaced PASRO, namely the Building Skills for Recovery Programme (BSR). 59. Kaiyam disclaimed any complaint of the systemic failure, such as had been evident in the James cases. There was no question of his being left in limbo without sentencing planning and without any attempt to provide an opportunity to rehabilitate himself. Nor was there any question of his being left for an unconscionable time in a local prison without access to any courses. The logjam which the introduction of IPP sentencing had occasioned after April 2005 was not suggested to have had any impact on him. On the contrary there were courses provided and completed, regular planning meetings throughout and efforts made to find appropriate rehabilitative work for him, and, latterly, to transfer him to that end. The complaint made on his behalf was of delays in applying acceptable systems to him. The principal complaint was that it took the prison authorities too long to think of the SCP course. That course or its predecessor (Cognitive Self Change Programme or CSCP) had been available in HMP Long Lartin throughout his time there. It was further said that time was wasted considering a CALM course when he had been assessed early on as unsuitable for it since, although he had been prone to lose self control in prison, his offences were not characterised by such loss. Similarly it was said that there had been mistakes made in considering him for an intensive drug course (FOCUS) when he was unsuitable for it, rather than for the differently emphasised PASRO targeted on those who misused drugs in prison. Lastly it was said that there was delay and muddle in the efforts which were undoubtedly made to find a prison to which he could be transferred away from HMP Long Lartin. Time spent considering a transfer to HMP Garth was particularly criticised because HMP Garth did not offer SCP. 60. The careful witness statement of Mr Dennehy, the prison service manager who reviewed the history after the issue of proceedings, accepted that there had been regrettable delays at some points in it. It is no doubt the case that the prison system could have achieved what would have been, for Kaiyam, a more extensive provision of courses, for example if the possibility of an SCP course had been identified sooner than it was. However, to say that more extensive coursework could have been made available to him is a very long way from saying that he has not been provided with a reasonable opportunity to rehabilitate himself and to demonstrate that he no longer presented an unacceptable risk of serious harm to the public, and thus that there has occurred a breach of the implied ancillary obligation in article 5. Article 5 does not create an obligation to maximise the coursework or other provision made to the prisoner, nor does it entitle the court to substitute, with hindsight, its own view of the quality of the management of a single prisoner and to characterise as arbitrary detention (in the particular sense of James v UK) any case which it concludes might have been better managed. It requires that an opportunity must be afforded to the prisoner which is reasonable in all the circumstances, taking into account, among all those circumstances, his history and prognosis, the risks he presents, the competing needs of other prisoners, the resources available and the use which has been made of such rehabilitative opportunity as there has been. It is plain that Kaiyam was not denied a fair or reasonable opportunity to rehabilitate himself or to demonstrate that his risk is acceptable. In the three years of his minimum term he was provided with courses in enhanced thinking, drug awareness and victim awareness. Sadly, his response was poor, there was doubt about his honesty, and his behaviour in prison attracted the many disciplinary adjudications mentioned above, all of which demonstrated that the risk he presented was far from removed. The transfer to HMP Long Lartin somewhat reduced the availability of rehabilitative courses, but there will inevitably be differences between prisons which can give emphasis to rehabilitation and those where the priority is security. It was his own misbehaviour which led to his transfer there, over a year after the expiry of his minimum term. The consequence was that PASRO, which was the course judged, plainly bona fide, as that most suitable for him, was not available. Even without PASRO, there was sustained one to one anger management work for over a year after transfer to HMP Long Lartin. Even if, with the benefit of hindsight, consideration of CALM and FOCUS courses involved some misjudgement, it was perfectly understandable. He very plainly had anger problems, whether or not his index offences were the result of loss of temper, and he very plainly had a drug use and drug supply background. The advice to take an SCP course was plainly a sensible expedient, given that transfer to a place where the first choice PASRO was available had proved unavailable despite considerable efforts. Once it was identified, SCP was begun within about two months. The attempts to find a transfer were clearly persisted in; they were complicated by Kaiyams wish to be in a prison near to his family, by the pending adjudication in May 2011 and by a parole window in Spring Summer 2012, quite apart from the competing needs of other prisoners in a large prison population. His case does not begin to approach the kind of failure of provision considered and chronicled in R (James). He was afforded reasonable opportunity to rehabilitate himself and to demonstrate that he was no longer a risk to the public, but did not do either. There was no breach in his case of the ancillary obligation under article 5. Massey 61. Geoffrey Massey is now 55 (born October 1959). He has been convicted from time to time of offences which include robbery with a knife, burglary and benefit fraud. For the first of these offences he was sent to prison at the age of 20 for three years. He appears to have worked from time to time, chiefly as a driver, and latterly as a train guard. He was married for approximately twenty years from the early 1980s until separation in 2001. He has been a heavy abuser of drink for many years and was assessed by a psychiatrist at the time of his most recent sentence as meeting the criteria for alcohol dependence. 62. He also had, before the present convictions, two previous sex related offences. In 1986 he was convicted of indecent assault of an 18 year old male passenger in his taxi. The allegation was that he had lured the young man to a secluded spot by telling him that his girlfriend had been injured, and that he there locked him in the car and masturbated him against his will, afterwards obtaining a signed promise to tell no one. Massey denies that these were the facts. In 2005 he was convicted of using threatening/harassing words. 63. He was then convicted in May 2008 of a total of five sexual assaults on four unrelated young men, committed over an extended period, the first in 1992 and the last in 2005. The first victim was a 12 year old boy who had run away from home. The second offence, in about 1998 2000, involved promising to find a job for a learning disabled 17 year old and engineering an opportunity to persuade him that a test involving masturbation was required. The third and fourth counts involved an attempt to masturbate a work experience boy of 15 when Massey was a train guard. The last offence consisted of an assault over clothing against a 22 year old whom Massey had previously pestered with some hundreds of text messages. All the victims were either young or vulnerable. In each case he manipulated them to create an opportunity to molest them. All were significantly affected by what Massey did. He pleaded guilty to three counts and was convicted of the other two, which he continues to deny. The sentence passed was imprisonment for public protection with a minimum term of two and a half years. Allowing for time on remand to count in the usual way, that minimum term expired in September 2010. 64. Massey gave a detailed self history at the time of his conviction. His account of his own sexuality appears to be confusing. He attributes his offences to alleged multiple homosexual abuse from the age of seven onwards, involving, he has asserted, a family friend, a schoolteacher and later, when he was an adult, two unconnected clergymen. Since the details given have not always been consistent, there may be some room for doubt about what occurred. His own account of his offending against the young men has involved, more than once, the perhaps surprising suggestion that he committed the offences because he wanted to see what his own abusers had got out of the experience. 65. Massey was placed on the Enhanced Thinking Skills (ETS) programme which he completed in April 2009. He then completed the Core Sexual Offender Treatment Programme (CSOTP) in November of the same year. In addition, he has completed an alcohol awareness course, a cognitive skills booster course and a proof reading course with a view to post release employment. He is a well behaved prisoner, and has taken on leadership roles as Activities Co ordinator, organising games and events, and as editor of the Prison Magazine. In July 2010 a long and thoughtful Structured Assessment of Risk and Need (SARN) report was prepared upon him by a forensic psychologist. It recorded some progress in recognising his pattern of sexual thoughts and fantasies and towards a degree of victim empathy. On the other hand, concern was noted that he asserted that he now had no sexual thoughts about teenage males, which was unlikely since sexual interests are hard to change. There had been an apparently dramatic shift in his attitude towards his offending in a very short time as a consequence of the CSOTP, whereas the view was taken that three decades of behaviour and interests were unlikely to be reversed by a single programme. The SARN report recommended assessment to see whether the ESOTP would be suitable, as well as suggesting the likely desirability of a following Better Lives Booster (BLB) programme and a PCL R assessment for psychopathy to inform responsivity. In due course the Offender Manager concurred and offered tight suggested licence terms for release when it occurred. 66. Shortly after the SARN, the National Offender Management Service wrote formally to Massey in October 2010, accepting its recommendations. Whilst cautioning him that the Secretary of State could not guarantee to place him on the specific courses recommended, given the limits on resources, the letter formally set the time for his Parole Board review at 24 months, and set out a timetable on which this was based, namely two months for the PCL R assessment, 10 months to complete ESOTP including assessment and waiting list, six months for the BLB, again including assessment and waiting list, and six months afterwards for post programme testing and the completion of reports. That would have meant a Parole Board hearing in or about June 2012, already nearly two years beyond the expiry of his short minimum term or tariff. 67. Assessment for ESOTP followed in April 2011, and it was at this stage that he completed the Cognitive Skills Booster (CSB) programme. In the meantime the Parole Board had recorded in March 2012 that the ESOTP could only be completed in closed conditions. There was, however, no place on the ESOTP for him until May 2013. It is apparent that the wait for ESOTP was attributable to excess of demand over supply and to the need to make difficult choices about who to prioritise. It was not until September 2013 that he completed the ESOTP and subsequently was afforded further behavioural work known as the Wheel of Life. 68. Has Massey been denied a reasonable opportunity to reform himself and to demonstrate by or within a reasonable time after tariff expiry that he is no longer a danger? It is apparent that the less than two and a half years of his tariff (somewhat shortened, properly, by time spent on remand awaiting trial and sentence) was as well furnished with offender behaviour work as one could reasonably expect. He first completed the ETS course, which is a frequent if not conventional first step, and he was placed on the CSOTP within his comparatively short tariff period. He completed the CSOTP in November 2009, and since it is a six month course it would appear that he must have been placed on it almost immediately after completing the ETS in April of that year. The SARN report which first mooted the ESOTP was in July 2010, so that there could never have been any prospect of his being both assessed for, and completing, the ESOTP by the time of his tariff expiry in September 2010. The chronology illustrates the fact that if standard, intensive, course work such as the CSOTP does not succeed and if lack of risk is not demonstrated at the end of it, it will be inevitable that a prisoner with this kind of tariff period will pass the end of the tariff without being able to be offered every course which the system has. 69. However, it is important to note that, no doubt mindful of the comparative brevity of his tariff, the Secretary of State by the formal letter of October 2010 effectively defined what was regarded as a reasonable opportunity for Massey to build on the partial progress which he had made and to demonstrate (if he could) that he was safe to release, namely over a two year period. Neither this timetable nor anything approximating to it was honoured. Instead, it was not until after that period had come and gone that he was able to begin the ESOTP, and the letter shows that even if this produced a successful outcome, a further year or thereabouts was contemplated. We conclude that in Masseys case there was a failure to provide him with the opportunity to try to demonstrate that he was safe for release which the Secretary of State regarded as reasonable. The assessment for ESOTP was in Spring 2011. If there had been a plentiful supply of places he might have been on it by about Autumn of that year, but no real complaint could have been made merely because this kind of course was not immediately available; if it had been provided in or about Spring 2012, there would we conclude have been no breach. There is thus an unacceptable delay of about a year, and all post tariff. The inference of legitimate frustration is justified and that period calls for an award of damages. Given that it was post tariff we assess it at 600. Robinson 70. There is a difference of opinion between members of the court as to the appropriate disposition of Robinsons appeal. But before explaining the difference in separate judgments, we can set out the facts about which there is no dispute. 71. Andrew Robinson is now 53 (born November 1961). The papers before this court do not include his formal record of convictions, but their gist is reasonably clear. In the background are convictions between 1977 (aged 15 16) and 1981 (aged 19 20) which consist of four offences of arson (two pairs), seven offences of theft and two of criminal damage. Thereafter and from at least his mid twenties, he has been a repetitive sex offender. He says that he has never had a cohabiting relationship with an adult woman. In about 1988 (aged 26 27) he was convicted of unlawful sexual intercourse with a girl of 15 (C). He asserted that he was protecting her from her father whom he said was violent. The sentence was a conditional discharge. The sexual relationship seems to have continued afterwards for a few years during which time he lived with C, now just past 16. 72. 73. When this relationship was ended by the girl, Robinson befriended a mother who was a passenger on a bus he drove, and who had a teenage daughter (K). In due course he committed sexual offences against K when she was 14. Subsequently he befriended a second mother, who was alcoholic, and who had a daughter (L). At around this time he began a sexual relationship with a young woman of 19 who had learning difficulties, and she gave birth to his daughter. Social services became concerned about the relationship and intervened on the young womans behalf. Robinson then abused L, aged 14; subsequently he has said that he did this as an act of revenge against the social workers. In 1998 he was prosecuted for the offences against both K and L and sentenced to 15 months imprisonment. 74. On his release he obtained a job driving schoolchildren to an afterschool club, dishonestly concealing his conviction in order to do so. He indecently assaulted a 12 year old girl whom he met in this way. He was sentenced to six months imprisonment, and it would appear that subsequently a Sexual Offences Prevention Order (SOPO) was made in an effort to restrict his contact with teenage girls. In breach of this Order, he befriended two further vulnerable families. The first consisted of a single mother with three young children. He took on 75. decorating at their house, arranging to be there when the children came home from school. In due course he was found to have made a video recording of one of the little girls in her night clothes. The second family consisted of an alcoholic single father with learning difficulties and his young daughter (N). Robinson was repeatedly warned by the Police to keep away but did not do so. He groomed the family, giving the father money for drink. He committed a series of offences of digital and attempted penile penetration of this girl when she was 13; they were committed in her home while her father slept downstairs. He was found to be in possession of a CS gas canister and of a DVD of teenage girls engaged in ballet and yoga. He was convicted also of breach of the SOPO. On this last occasion he was sentenced, on 2 October 2006, to imprisonment for public protection, with a minimum term of seven years. Allowing for time on remand to count in the usual way, that minimum term (tariff) expired in December 2012. 76. Robinson has never admitted that he committed the offences for which he was last sentenced, which are much the most serious of which he has been convicted. He asserts that he was set up by the police and that N was bullied into giving false evidence against him. Denial of offending is an obvious impediment to therapeutic treatment but need not be a bar to it. Robinson was provided with treatment on the basis of the earlier, albeit less serious, offences, which he admitted. In the first year of his sentence he completed the cognitive behaviour programme ETS, which is designed to confront offenders with what leads to their criminal behaviour and to help them address it. In 2008 he completed the Core Sexual Offenders Treatment Programme (CSOTP). This is a sustained course consisting of some 90 sessions at the rate of three or four per week over a period of six to eight months. Targeted specifically at sexual offending, it is designed to challenge thinking patterns which lead to sex offending and to the offenders justification for it, to help prisoners to see things from the perspective of the victim, and to devise strategies to avoid being in positions of temptation in future. In July 2008 a long psychologists report (Structured Assessement of Risk and Need or SARN) recorded the position after this work had been done. The author was able to identify some encouraging signs. Robinson had begun to see the possible relevance of his own childhood abuse when in care as a teenager, although he described it as affectionate. He was able to suggest not offering to drive teenagers as a way of avoiding temptation. He said that he was now aware of the harm his conduct had caused and that he now realised that he was not in a relationship with his victim, since they were too young. He appeared to have made some progress in self esteem and in recognising his strong desire for intimacy. His behaviour in prison was generally good. On the other hand, there was considerable cause for concern. Although at the conclusion of the CSOTP, his scores on assessment of child abuse supportive 77. beliefs had been adjudged to be below the threshold for treatment, the psychologist found that he continued to harbour such beliefs; for example he believed that whereas rape was a sexual offence, other offences contain more affection and care. He was deeply suspicious of those trying to help him; he reported them as twisting what he said and he said that he would be very wary of any further such course. He remained very angry about the social workers who had dealt with his daughter and offered such resentment as a justification for some of his offences. While he said that the cause of his offending was inability to relate to adults, his history demonstrated that he was adept at gaining the confidence of the parents whose children he abused. Manipulative behaviour and his sense of grievance were reported to have impeded his progress. He continued to deny the more serious offences, and for that matter all or some of the arson offences. The wing staff reported a tendency to manipulative behaviour, surreptitiously encouraging others to complain. The various risk measurement tests applied to him all concluded that the risk to the public remained high. 78. This report concluded with the recommendation that there should be a full psychopathy assessment (PCL R) and that, so long as that did not provide contra indications, he was suitable for the extended sexual offences treatment programme (ESOTP). This latter course is designed for only nine prisoners at a time. It lasts for about six months and involves 74 sessions plus some individual work, at roughly three per week. Each such course needs a staff of four, one supervisor who must be a chartered psychologist, plus three facilitators (officers, group workers or forensic psychologists in training and preferably a mixture of disciplines). Each such team can deliver only one such course per year, no doubt because of the members other commitments. The ESOTP can be provided at only a limited number of prisons specialising in sexual offenders; the judgment of the Divisional Court records at para 7 that over the relevant period it was available at some ten such prisons. 79. The recommendation for consideration of an ESOTP was consistent with published Prison Service indicia of the courses which are likely to be suitable for different prisoners. The prison service runs a variety of programmes for sexual offenders. They include, as well as the CSOTP, a Rolling Sexual Offenders Treatment Programme (for those presenting mild risk), Becoming New Me, Better Lives Booster, Healthy Sexual Functioning (now replaced by the Healthy Sex Programme), Adapted Better Lives Booster (for those with intellectual difficulties), and the ESOTP. Reference to the ESOTP may be justified, inter alia, by an assessment of high or very high risk and, more particularly, by severe grievance thinking, severe sexual entitlement thinking and severe lack of intimacy. Robinson fitted those criteria, although less obviously others, and, since the risk remained after completion of the CSOTP, ESOTP was a justified suggestion. There was and is a substantial waiting list for the ESOTP, as also for other programmes. Apart from life or IPP prisoners, there are numbers of determinate sentence sexual offenders, who are likewise recommended for this programme in the hope that they will not present an unacceptable risk to the public when their release is mandatory, under the Criminal Justice Act 2003, at the half way stage in their sentences. The ESOTP in particular is clearly very resource intensive. 80. Robinson was moved to HMP Whatton, which specialises in sexual offenders, in February 2010. The PCL R psychopathy test, involving nine hours of interviews, was conducted in February/March 2011. Although he was showing limited signs of accepting that the children were victims, the assessment of him was not encouraging. He was found to see himself as a victim, the manipulative behaviour was noted, and he was recorded as asserting that he had not harmed the children but was only seeking a relationship with them. Nevertheless, the foregoing apart, he did not display psychopathic traits; he was comparatively controlled and his offences were planned rather than impulsive. There was no psychopathy based obstacle to participation in the ESOTP. A final assessment of suitability for the ESOTP followed in April 2012, undertaken by the Deputy Treatment Manager for the programme. She pointed out that the ESOTP would not address his sexual interest in teenage girls, but could and would target his feelings of inadequacy, his lack of adult relationships and his marked distrust of others. She observed that he might yet need also a Healthy Sexual Functioning course, which does directly address unsuitable sexual interests. In the end, an ESOTP became available for him only in July 2013, when he was specially transferred to HMP Risley which could provide it earlier than HMP Whatton. By this time, his minimum term of seven years had recently expired in December 2012. 81. The evidence from HMP Whatton, the specialist prison for sexual offenders, makes it clear that the delay was caused by excess of demand over supply. The prison authorities were operating on a budget set by the Ministry in a time of general national financial stringency, although course provision targeted at sexual offending cost just under 1m per year at that prison alone. They were obliged to prioritise amongst those who had been assessed as suitable for the ESOTP. As between them, priority was given to those who were determinate sentence prisoners within six months of release and to those longest past the end of their minimum terms. 82. The Divisional Court examined the national evidence relating to the availability of the ESOTP. It concluded that there was overall under provision of this course and accordingly a breach of the Secretary of States public law duty. There was no appeal against that finding, which must be accepted. It is not, however, to be taken as meaning that the Secretary of State is under an obligation to provide an ESOTP to every prisoner for whom it may be suggested, and the court said no such thing. Nor does it mean that the court took the view that, assuming that James v UK fell to be applied rather than R (James), there had been the kind of breach of article 5 which the Strasbourg court identified; on the contrary, the Divisional Court specifically adverted to the opportunities which Robinson had had to demonstrate his safety and rejected the assertion of breach of article 5. 83. Accepting that there was a national shortfall in the provision of ESOTP courses, the question under article 5 remains: did the Secretary of State afford Robinson a reasonable opportunity to reform himself and to demonstrate to the Parole Board, by the time of tariff expiry or within a reasonable time thereafter, that he no longer presented an unacceptable risk to the public? On the answer to this question, different members of the court take different views, which are therefore set out in separate judgments. Outcome 84. In the result, the appeals of Haney and Massey should be allowed, and there should be awards of 500 for Haney and of 600 for Massey, reflecting in each case the inference of justifiable frustration and anxiety. The appeals of Kaiyam and, and in the light of the opinion of the majority set out in their separate judgment, of Robinson must be dismissed. The findings in the two cases of Haney and Massey of breach of the duty ancillary to article 5 are a further regrettable consequence of the manner in which the seriously flawed system of Imprisonment for Public Protection came to be introduced without sufficient funding to cope with it. It was a system subsequently reformed and it has since been altogether removed from the sentencing regime provided by statute for courts charged with the trial of criminal cases. LORD HUGHES: (with whom Lord Neuberger, Lord Toulson and Lord Hodge agree) 85. This separate judgment addresses the appropriate disposition of appeal by Robinson, the one matter left outstanding by the main judgment delivered by Lord Mance and Lord Hughes. The facts have been set out in paras 70 83 of the main judgment. The critical question identified in para 83 is whether the Secretary of State afforded Robinson a reasonable opportunity to reform himself and to demonstrate to the Parole Board, by the time of tariff expiry or within a reasonable time thereafter, that he no longer presented an unacceptable risk to the public. This critical question must not be transmuted into the different question, namely did the Secretary of State make reasonable provision for a particular course which might have been relevant to Robinson? Once the right question is identified, the answer given by the Divisional Court is plainly correct. It should in passing be made clear that the Divisional Court was not basing its conclusion upon doubts about what was meant in James v UK by characterising the detention as arbitrary. On the contrary, it was assuming for the sake of addressing the question that in the particular sense there used the detention would be arbitrary if a breach of the duty there identified was established, and it was contrasting the kind of wholesale failing found in James with the kind of delays identified in the cases before it. 86. The breach of the ancillary obligation under article 5, which the Strasbourg court identified in James v UK involved a wholesale failure to address rehabilitation. It was of a quite different order from the complaint made by Robinson. Whereas the prisoners James, Lee and Wells in James v UK were left for a long time to languish in local prisons with no sentence planning and no rehabilitative work at all, no little effort was made with Robinson, who was provided with successive courses and had ample opportunity to change himself and to demonstrate that he was no longer a predatory sexual offender. The ETS and CSOTP courses with which he was provided supplied ample reasonable opportunity to do so. The latter in particular lasted six months or more and involved three or four sessions per week. Unfortunately, what was demonstrated was that Robinson remained a serious risk, since the initial scores for child abuse supportive beliefs proved false positives, and he remained manipulative, mistrustful and denying his principal offences, seeing himself as the real victim It was contended on behalf of Robinson that the Parole Board had recommended an ESOTP in March 2010 and again in December 2012. As a matter of accuracy, on neither occasion did it do so, although on both occasions it recorded the extant proposal for such a course which had been made within the Prison Service. The Parole Board decision of March 2010 was that Robinson was not suitable for transfer to an open prison. It included the following: 87. There are a number of risk assessments in the dossier. OGRS 3 assesses the risk of reconviction as 14% at 12 months and 25% at 24 months. OASys assesses the risk of general and violent offending as low with a very high risk of harm to children in the community. RM2000 assesses Mr Robinson as posing a very high risk of sexual reconviction and the SARN concluded that he has a high level of dynamic risk as a result of having strongly characteristic risk factors in the sexual interests, offence supportive attitudes and relationship domains. Specific risk factors include having offence related sexual interests, child abuse supportive beliefs, suspicious, angry and vengeful attitudes and not having an intimate relationship. Mr Robinson's dossier states that he is a standard prisoner on the IEP, although for much of his sentence he has been enhanced. He has completed ETS and the core SOTP, although the latter was on the basis of admissions to previous convictions. Mr Robinson maintains his innocence of the index offences, stating that he was set up by the Police. The post programme report from the SOTP indicates that some progress was made but the report writer notes that Mr Robinson could be manipulative in a group, still held child abuse supportive beliefs and that his suspicious thinking (against staff) had impacted upon his development. It was recommended that Mr Robinson complete the ESOTP in order to address his interest in pubescent girls and that a full psychopathy assessment be completed. The panel noted that whilst he is willing to do further offending behaviour work, denial of the index offences may make it difficult to transfer Mr Robinson to an appropriate establishment to undertake ESOTP and that as a result completion of this sentence plan target remains extant. 88. The Boards written reasons were duly sent to Robinson by the Secretary of State who added that the next reference to the Board would be shortly before tariff expiry, to allow for completion of the ESOTP if assessed as suitable and a full psychopathy assessment [and] to further assess your outstanding risk factors. That was by no means to make completion of the ESOTP a condition of future consideration of release, still less to lay down a timetable for it, as was done in the case of Massey. If a case were to arise in which the Parole Board made it, in effect, a condition of consideration for release that a particular piece of behavioural work be undertaken, that would no doubt be relevant to the question of whether the prisoner was thereafter afforded a reasonable opportunity to rehabilitate himself and to demonstrate absence of risk. Even then, such a Parole Board decision would not mean that the prisoner had not had reasonable opportunity before then, nor would it necessarily justify prioritising that prisoner over others for scarce resource intensive courses. However, this was not in any event Robinsons case. 90. There is a great danger, in considering Robinsons case, of classifying the ESOTP as the acid test by which alone he could demonstrate his safety for release. Even if it were, it would not mean that he had not had reasonable opportunity to demonstrate this already. But it was not. The fact that the psychological recommendation that Robinson should take part in this programme did not have spoken conditions attached to it, does not mean that it was the only way in which he could demonstrate his safety. It was in fact neither a necessary nor a sufficient means of doing so. It was not sufficient since it is not designed to address the offenders sexual interest in pre pubescent girls; even if made available, it would have been only part of the possible programmes which Robinson might have needed in the absence of his accepting that his behaviour, which he continued to characterise as innocent victimhood, was in fact a considerable danger to children, and in the absence of his recognition that it needed to alter. It was not necessary, because by this time he had had ample confrontation with his failings, and if he had recognised them and shown real willingness to change, for example in the course of the nine hours of interviews for the PCL R assessment, then there may well have been no occasion for six months of ESOTP work. 91. The concomitant danger lies in treating Robinsons case as if the ancillary duty under article 5 involves a positive duty on the prison service in England and Wales to furnish an ESOTP course. That is not the law, and there is nothing in James v UK which entitles any court to go so far. Indeed, if it were, it would presumably follow that any other European country which imposes any form of indefinite sentence would be under a similar duty to provide either it or its equivalent. The responsibility for deciding what form of rehabilitative assistance is to be afforded to the prisoner must rest with the individual State, providing that the minimum standard is met of a reasonable opportunity to him to demonstrate his safety. The availability of limited resources, particularly at a time of the kind of national financial stringency which characterised the years of delay in Robinsons case (2008 2013) is an unavoidable factor. The Core Sex Offenders Treatment Programme (CSOTP) administered in the prisons of England and Wales is of considerable intensity and makes extensive psychological demands on those offenders who take part in it. It is very likely that if it stood by itself it would meet the duty contemplated by James v UK and even more likely that it would do so if coupled, as it is, with the EST, BLB, HSP and other programmes, which are available. There is no legal obligation to provide an ESOTP course in the first place. It is simply one possible way of tackling recalcitrant attitudes in some prisoners and a welcome arrow in the quiver for the case of those who prove very difficult to change. To hold that a delay (including an unacceptable delay) in providing it constitutes a breach of article 5, via the ancillary duty recognised, would be likely to have the perverse effect of discouraging the prison service from providing it at all, and/or of discouraging recommendations for courses unless and until they are known to be shortly available, and/or of discouraging the prison service from devising and suggesting new forms of programme, especially if they are extremely expensive, as clearly the ESOTP is. All these effects would be an impediment to individualised prisoner assessment and management, and to eventual rehabilitation of those for whom it is possible. 92. Coursework is important and may succeed, but it holds no guarantees. In order for Robinsons article 5 ancillary duty claim to succeed, that duty would have to go beyond the duty to afford an indeterminate prisoner a reasonable opportunity to reform himself and to demonstrate, by or within a reasonable time after tariff expiry, that he is no longer a danger. It would have to be a duty to provide, or at least to take reasonable steps to provide, within such time frame, any specific coursework for which the prisoner has been judged eligible. That is not the content of the duty. 93. This conclusion is illuminated by the decision of the ECtHR in Hall v UK (Application No 24712/12, referred to at para 42 above). Like Robinson, Hall had completed the ETS and then the CSOTP courses but remained a risk and was recommended for further work in the form of the ESOTP. Halls recommendation was in March 2008, and he experienced the same unavailability as did Robinson, at much the same time and doubtless for the same reasons. The delay in finding a place on the ESOTP in Halls case was certainly not as long as it was in the case of Robinson, but the delay has to be put in the context of his tariff, which at 30 months, was less than a third as long as Robinsons. Halls was a plainer case, as the threshold decision of inadmissibility by the Strasbourg court demonstrates. He had undertaken some other courses, which Robinson had not, such as victim awareness and alcohol awareness and when, after the ESOTP, concerns remained, he had been provided with the Better Lives Booster. But the essential point is that the court was satisfied that he had (beyond argument) been provided with a reasonable opportunity to rehabilitate himself by courses throughout his detention, and this despite the delay in finding space on the ESOTP for some eighteen months after it was recommended, which had had the result that he was not able to complete it until he had served more than a year beyond his tariff of 30 months, that is to say getting on for half as long again (see para 33). Lord Mance 94. I have the misfortune to differ from Lord Hughes and the majority on the disposition of Robinsons appeal. The basic facts are set out in paras 71 83 of the joint judgment written with Lord Hughes. The test is whether Robinson was supplied with a reasonable opportunity to demonstrate that he was no longer a risk. It was of the nature of his offending that he received a sentence involving a relatively long tariff period which expired on 10 December 2012. It was of the nature of his character and propensities that, despite some encouraging signs, he remained in identified respects a high risk after completing the CSOTP in 2008. The psychologists report dated 9 July 2008 made a recommendation in the body of her report, that a full psychopathy assessment [PCL R] is competed prior to Mr Robinson undertaking any further treatment (para 4.6), but ended the report with unqualified recommendations and a conclusion dealing exclusively with the ESOTP as follows: 95. 7. Recommendations for continued risk management My recommendations are as follows: To successfully complete the Extended SOTP in order to address outstanding treatment needs in offence supportive attitudes and suspicious thinking and provide further opportunities to develop his intimacy skills. Upon completion of this, to re assess the extent of Mr Robinsons suspicious thinking and the appropriateness of further treatment for his sexual interest in pubescent girls. Conclusion: I recommend that Mr Robinson is moved to an establishment where he can access the Extended SOTP and continue working on his risk factors for future sexual offending. The psychologists combined recommendations that Robinson undertake a PCL R followed by an ESOTP were both therefore unconditional. 96. The Administrative Court further found (para 6) that The ESOTP became a formal sentence objective by at least February 2009. The psychologists recommendation was referred to without demur in the Parole Boards reports dated 31 March 2010 and 8 November 2012, the latter confirming expressly that it is acknowledged that all parties accept ESOTP to be necessary. 97. The Administrative Court further noted that ESOTP courses are courses which many sex offenders serving an IPP need to complete before they can have any realistic prospect of demonstrating to the Parole Board that they are safe for release. (para 59) This is borne out by the Ministry of Justices publication Suitability for Accredited Interventions (June 2010), which tabulates such a course as a requirement for all high or very high risk offenders, as well as for one category of medium risk offender with three or four domains of strong treatment need (p 42). It adds (p 43): Some offenders, particularly high risk offenders, are likely to attend more than one SOTP so that their combination of dynamic risk factors can be fully addressed. (Eg a high risk offender with both offence supportive attitudes and grievance thinking would likely need to attend both Core and Extended SOTPs). 99. 98. The Administrative Court had no hesitation about finding the Secretary of State in breach of the public law duty accepted in R (James). As Lord Hope there said, it was and is implicit in the legislative scheme for IPPs that the Secretary of State would make provision which allowed IPP prisoners a reasonable opportunity to demonstrate to the Parole Board that they should be released, and that, on the facts of those cases, he failed deplorably in that public law duty in that he failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention: [2010] 1 AC 553, para 3. In summary, a legislative scheme like that for IPPs must allow a reasonable opportunity to demonstrate safety, and must be accompanied by reasonable systems and resources to enable offenders to change and develop so as to be able to demonstrate that they are now safe and to achieve release by the tariff expiry date or reasonably soon thereafter. I stress the word reasonable, since it is clear that a realistic and flexible approach should be taken regarding prison resources and the specialist, time intensive and costly nature of some courses provided in prison: see also paras 100 101 below. But, as an element of this duty, there should in my opinion be a reasonable degree of access for IPP prisoners to the ESOTPs which many prisoners will need before they can hope to show that they are now safe. That is the consequence of the scheme itself, under which it was otherwise inevitable (and entirely predictable) that prisoners would (as has happened) languish in gaol long after the tariff periods set by reference to the seriousness of their actual offending. It is a consequence of the rehabilitative purpose which must in this context be accepted as having always attached in the light of the provisions of the ECHR to an IPP sentence: see paras 205 209 of the European Court of Human Rights judgment in James v UK, as well as paras 7 and 36 above. 100. The European Court of Human Rights further observed in James v UK, para 194 that: for reasons linked to the efficient management of public funds, a certain friction between available and required treatment and facilities is inevitable and must be regarded as acceptable and a reasonable balance must be struck between the competing interests involved. But it added that in striking this balance, particular weight should be given to the applicants right to liberty, bearing in mind that a significant delay in access to treatment is likely to result in a prolongation of the detention and noted that in Brand v The Netherlands (Application No 49902/99) (11 May 2004) the court had held (para 66) that even a delay of six months in the admission of the applicant to a custodial clinic could not be regarded as acceptable in the absence of evidence of an exceptional and unforeseen situation on the part of the authorities. 101. In the present case, the Administrative Court also noted that the public law duty was only to make reasonable provision of services and resources for the relevant purpose and was not an absolute one (para 55). It went on: 59. It is clear from the factual circumstances of the claimants' own cases, and from the general evidence we have summarised concerning systems and resources, that a serious problem still exists in relation to the provision of ESOTP courses which many sex offenders serving an IPP need to complete before they can have any realistic prospect of demonstrating to the Parole Board that they are safe for release. The delays experienced by these two claimants are troubling in themselves. Despite pressure over a lengthy period, neither claimant managed to get admitted to an ESOTP course until after the expiry of his tariff period (in Mr Massey's case, almost three years after its expiry); and since, after completion of the course, each of them has to wait for a substantial further period until their next Parole Board review, their first reasonable opportunity to demonstrate to the Parole Board that they are safe to be released will come long after the expiry of their tariffs. 60. It is clear that the claimants' experience is far from exceptional. The evidence summarised at paras 34ff. above shows that the number of IPP prisoners with a requirement for an ESOTP greatly exceeds the number of placements available on ESOTP courses and that many such prisoners are failing to get onto courses until after the expiry of their tariff periods. In some cases the delay can no doubt be explained by reasons specific to the individual prisoner, but the under provision of courses appears to us to be the primary reason for delay and to be accurately described as a systemic problem. Nor is there any immediate prospect of improvement. On the contrary, we have noted at para 45 above that at HMP Whatton demand for places on ESOTP courses is set to rise as the provision of places has fallen. 61. We understand the tight financial situation across the entire prison estate and the difficulty of allocating limited resources between a range of competing demands. But the duty is to make reasonable provision, and that duty plainly requires sufficient resources to be made available for its fulfilment. 62. In conclusion, we are satisfied that there is a continuing failure on the part of the Secretary of State to make reasonable provision of systems and resources, specifically the reasonable provision of ESOTP courses, for the purpose of allowing IPP prisoners a reasonable opportunity to demonstrate to the Parole Board, by the time of the expiry of their tariff periods or reasonably soon thereafter, that they are safe to be released. In this respect the Secretary of State is in continuing breach of the R (James) public law duty. 102. When it came to considering whether there had been a breach of article 5, the Administrative Court was in an odd position. The European Court of Human Rights had in James v UK disagreed with the reasoning and conclusions of the House of Lords in R (James), but the Administrative Court remained bound by R (James) and, moreover, the European Courts own reasoning, based on arbitrariness and consequent unlawfulness, presented obvious problems, which have been addressed in the main judgment written by Lord Hughes and myself. 103. In these circumstances, the Administrative Court reasoned as follows: 78. We have held in relation to issue (1) that the Secretary of State is in continuing breach of the R (James) public law duty. That breach, however, is less serious than the deplorable default that was of such concern to the House of Lords in R (James). Yet even the factual circumstances under consideration in R (James) were regarded by the House of Lords as falling far short of a situation rendering continued detention arbitrary and unlawful under article 5(1). Thus, applying the approach laid down by the House of Lords, it is clear that the circumstances of the present case come nowhere near to rendering the claimants' continued detention arbitrary for the purposes of article 5(1). 79. Although the ECtHR in R (James) (Strasbourg) differed from the House of Lords in finding arbitrariness on the facts of that case, the default in the present case is again less serious. The ECtHR laid stress on the complete failure to progress the applicants through the prison system with a view to providing them with access to appropriate rehabilitative courses. In the case of each of the present claimants, by contrast, a great deal was done to progress them through the system and to provide them with access to appropriate rehabilitative courses. The one real failure was in providing them with timely access to the ESOTP. Whilst that was an important failure, given the practical importance of the ESOTP for their ability to satisfy the Parole Board of their safety for release, it was in our judgment insufficient to render their detention arbitrary even on the approach that the ECtHR took in applying the concept of arbitrariness in R (James) (Strasbourg). 104. The first paragraph, loyally applying R (James), cannot stand in the light of our judgment on the present appeal. The second paragraph appears, clearly and not surprisingly, to have been influenced by the oddity in the present context of reasoning based on arbitrary detention, which, again in the light of our judgment on this appeal, is no longer an issue. 105. In reality, a conclusion that there was no breach of the ancillary duty which we have identified in our judgment on this appeal, cannot stand with a finding clearly correct on the facts of this case that the Secretary of State was in breach of the public law duty to make reasonable provision of systems and resources for the purpose of allowing not merely Massey, but also Robinson a reasonable opportunity to demonstrate to the Parole Board, by the time of the expiry of his tariff period on 10 December 2012 or reasonably soon thereafter that he was safe to be released: see para 62 of the Administrative Courts judgment, quoted above. 106. The majority disagree with this conclusion, and in para 91 (above) advance the following propositions: (a) There is no legal obligation to provide an ESOTP course in the first place; (c) (b) if [there] were, it would presumably follow that any other European country which imposes any form of indefinite sentence would be under a similar duty to provide either it or its equivalent; to hold that a delay in providing it constitutes a breach of article 5, via the ancillary duty recognised, would be likely to have the perverse effect of discouraging the prison service from providing it at all, and/or of discouraging recommendations for courses and/or of discouraging the prison service from devising and suggesting new forms of programme, especially if they are extremely expensive. 107. As to these propositions: (a) No one suggests that there is an absolute obligation to provide an ESOTP course. But it may be identified as appropriate in a particular case by psychiatric or other professionals and then be required in conjunction with a system of indefinite detention which would otherwise mean that a particular prisoner would remain in gaol long past the expiry of his or her tariff date, without hope of release, perhaps for ever. I do not see how a contrary proposition is reconcilable with the ECtHRs approach in James v UK and much other Strasbourg authority, including Hall v UK. Quite apart from this, since the prison service in fact operates a system which provides and holds out the prospect of undertaking ESOTP courses as part of a process of promoting progress towards release, it seems to me incumbent on the state to resource and operate it efficiently, in a way which enables all prisoners who prison service professionals conclude should have such a course to have a fair opportunity of undertaking one within a reasonable time frame. (b) This proposition assumes information about other European countries, which we do not have. It is commonly believed that British sentencing is comparatively more rigorous that that in most other European countries, though that must for present purposes also be regarded as an anecdotal statement. For all that we know, indefinite detention may be a rarity the English experience certainly suggests that other European countries might have been wise to avoid it. Those like Germany (and I believe Austria and Switzerland) which do have a form of indefinite detention (Sicherungsverwahrung) which has at least in its original form, also occupied the time of the ECtHR may well have equivalent courses to ESOTP. We cannot assume the contrary. (c) This is another proposition which I regard as speculative. I question how many of the psychiatrists and other professionals and staff who work in our prison service think in this way. If they do, there may well also be incentives in the form of prisoners ability to complain to the ECtHR if they are detained indefinitely without access to courses which would very likely be required if they are to progress through the system towards release. 108. Turning to the facts of this particular case, as the Administrative Court noted in para 31, and adverted to again in para 59, also quoted above, the successful completion of an ESOTP programme would not itself lead to release. Before any question of release, there would need to be further work, which the Secretary of State in a programme set in April 2012 put as lasting a further 16 months. 109. In the upshot, Robinson only commenced an ESOTP in July 2013, some eight months after expiry of his tariff, the ESOTP would last for some six months, and then he would have to do further work lasting around 16 months. His release was not going to occur for around two and a half years after the expiry of his seven year tariff period. In my opinion, that involved a breach of the ancillary duty. It was far in excess of any delay arising from the inevitable and acceptable friction between available and required treatment which the European Court of Human Rights acknowledged would also exist in James v UK, para 194. This is clear both from the Administrative Courts conclusions on breach of the public law duty in this case and from the European Court of Human Rights reference to Brand v The Netherlands in James v UK, para 194. 110. Each case must turn on its own facts, and the case of Hall v UK, cited by Lord Hughes, involved shorter delays with regard to the provision of an ESOTP, a delay of at most about 18 months from March 2008 when an ESOTP was identified as appropriate to some time, probably, in autumn 2009 when the six to eight month course must have been commenced (judgment, paras 8 and 13). The applicants detention had been coupled over the course of the time spent in detention with regular access to a wide range of courses designed to assist him in addressing his offending behaviour and demonstrating a reduction of his risk to the satisfaction of the Parole Board (Hall v UK, para 33) and it had also been complicated by a continuing series of minor offences committed in prison (Hall v UK, paras 7, 18 and 19). 111. In my opinion, therefore, Robinson is entitled to succeed in his complaint about delays in the Secretary of States performance of the ancillary duty which we have recognised and so to recover a modest award of damages, of at least the same amount as, and probably higher than, Haney has received, to compensate for the inevitable frustration and anxiety which he thereby suffered. 89. The strongest part of Robinsons claim under article 5 is no doubt the passage of time after the psychologists report of July 2008 before the ESOTP was begun in July 2013. But given that his tariff was not due to expire until December 2012, there could have been very little complaint before at least the Secretary of State recognised the course as an objective in August 2010, and perhaps not until well after that. Moreover in the meantime, in March 2011, still well before the expiry of his tariff, there had been the further detailed PCL R sessions. These were of course principally assessment rather than therapy, but they provided ample opportunity over nine hours to demonstrate that there had been a change, or at least encouraging understanding of the true nature of what he had done. Sadly, what those sessions revealed was that he still saw himself as the victim, denied his principal offences, believed that he had not harmed any of the children and remained manipulative. There could be no clearer demonstration of the risk he continued to present. There has certainly been considerably greater delay in putting him onto the even more intensive ESOTP than one would choose to see in an ideal prison management system, but that is not the same as saying that he has not had a fair opportunity to reform himself or to demonstrate that he is no longer a danger. Despite the delay he was able to begin the ESOTP quite shortly after the expiry of his tariff.	The appellants received indeterminate prison sentences comprising (a) a fixed tariff period; and (b) an indeterminate post tariff period. Post tariff detention was to continue until the appellants satisfied the Parole Board that that they were no longer a danger to the public. The appellants, relying upon the decision of the European Court of Human Rights (ECtHR) in James v United Kingdom (2012) 56 EHRR 399, claimed that their post tariff detention was unlawful because the Secretary of State had failed to provide them with a reasonable opportunity to progress their rehabilitation and release [1]. In James v United Kingdom, the ECtHR found that a failure properly to progress prisoners towards post tariff release breached their article 5(1) rights to liberty under the European Convention on Human Rights and made their continued detention unlawful [1]. The appellants claimed that the Secretary of State had failed to provide them with a reasonable opportunity to progress their rehabilitation and release: (1) Haney, relying on articles 5 and 14, claimed that he had been transferred to open prison conditions too close to the expiry of his tariff period to enable his immediate release. (2) Kaiyam, Massey and Robinson, relying on article 5, claimed that they had not been able to commence particular rehabilitative treatment programmes within a reasonable time of their tariff period expiring. The Supreme Court (a) unanimously allows Haney and Masseys article 5 appeal, awarding Haney damages of 500 and awarding Massey damages of 600; (b) unanimously dismisses Haneys article 14 appeal and Kaiyams article 5 appeal; and (c) dismisses the article 5 appeal in the case of Robinson by a majority of 4 1 (Lord Mance dissenting). Lord Mance and Lord Hughes give the unanimous judgment in the appeals of Haney, Kaiyam and Massey. Lord Hughes (with whom Lord Neuberger, Lord Toulson and Lord Hodge agree) gives a separate lead judgment in the Robinson appeal. Lord Mance delivers a dissenting judgment. Haney, Kaiyam and Massey Lord Mance and Lord Hughes hold that: (1) The Supreme Court is not bound to follow the decision of the ECtHR in James v United Kingdom. The ECtHRs reasoning that a failure properly to progress prisoners towards post tariff release amounted to a breach of their article 5(1) right to liberty would not be followed. The express wording of article 5(1) or 5(4) did not create any relevant duty to provide prisoners with a reasonable opportunity to progress their rehabilitation and release [18 23], [30 37]. (2) However, the overall scheme of article 5 did impose an implied ancillary duty on the Secretary of State to facilitate prisoners rehabilitation and release. Breach of that duty would not affect the lawfulness of the detention, but would entitle prisoners to damages [38 39]. (3) In respect of the appellants in the present case: (a) Haneys delay in being transferred to open prison conditions had deprived him, contrary to article 5, of a reasonable opportunity to demonstrate that he was no longer a danger to the public, an opportunity which the Secretary of State himself had said that he should have [49 50]. However, there had been no breach of article 14 in discriminating between pre and post tariff prisoners [53 54]. (b) Kaiyams delay in being able to commence various rehabilitative treatment programmes did not breach his article 5 rights. He had been provided with a reasonable opportunity to demonstrate that he was no longer a risk to the public through courses on enhanced thinking, drug awareness and victim awareness but his responses to those programmes had been poor [59 61]. (c) Masseys delay in being able to commence an extended sexual offenders treatment programme until nearly three years after the expiry of his tariff period (and after the Secretary of State had provided for a timetable which was not fulfilled) had deprived him of the reasonable opportunity to demonstrate that he was no longer a danger, in breach of article 5 [68 69]. Robinson Lord Hughes holds that Robinsons delay in being able to commence an extended sexual offenders treatment programme until nearly nine months after the expiry of his tariff period did not breach his article 5 rights. The question was not whether the appellant had been deprived of access to a particular course, but whether he had been given a reasonable opportunity to demonstrate that he was no longer a danger to the public [85], [89 92]. Lord Mance (dissenting) considers that article 5 required that Robinson be given a reasonable degree of access to the extended sexual offenders treatment programme, which he had not been given in the circumstances of the present case [99], [109 111].
Determining what is the effective date of the termination of a persons employment has fundamental implications for any claim for unfair dismissal. This case illustrates the substantial penalty that will be paid by an employee who fails to recognise its significance, for the effective date of the termination of employment is the effective date on which time begins to run on the short period within which an employee must launch his or her claim for unfair dismissal. The facts On 19 October 2006 the respondent, Lauren Barratt, was suspended from her employment with the appellant, a small charitable organisation. It was alleged that she had behaved inappropriately at a private party. A disciplinary hearing was held on 28 November 2006. At the end of the hearing Ms Barratt was told that she could expect to receive a letter on Thursday, 30 November. This would inform her of the outcome of the hearing. Ms Barratt knew that she was at risk of dismissal. It was an important time for her, therefore. As is so often the case in human affairs, however, this episode coincided with another significant event in her life. She has a sister who had given birth to a baby a week earlier. This was a happy circumstance for she had lost an earlier baby. Naturally, Ms Barratt wanted to see her sister and the baby and to give what help she could so, at 8 am on 30 November, she left her home to travel to London. Later on the same day a recorded delivery letter arrived for her. It was signed for by the son of Ms Barratts boyfriend. She had not left instructions for it to be opened or read and so it was left, unopened and unread, awaiting her return. Ms Barratt did not return home until late on Sunday evening, 3 December. She did not open the envelope containing the letter that evening. Indeed, it was not until the following morning that she asked her boyfriend and his son whether any post had arrived. The son remembered that he had signed for a recorded delivery item. He found it among his school homework and handed it to Ms Barratt who, on reading the letter, discovered that she had been summarily dismissed for gross misconduct. An internal appeal against the dismissal existed and, unsurprisingly, Ms Barratt availed of it. She was unsuccessful in her appeal. It was dismissed on 19 December 2006. Thus it was that on 2 March 2007 a claim for unfair dismissal and sex discrimination was presented on her behalf to an Employment Tribunal. Depending on the view that one takes of the date on which Ms Barratts employment was brought to an effective end, her complaint was lodged either just within or just outside the period of three months from that date. This is of pivotal importance to the question of whether she is able to maintain her claim to have been unfairly dismissed. The relevant statutory provisions The effective date of the termination of employment is a term of art that has been used in successive enactments to signify the date on which an employee is to be taken as having been dismissed. The fixing of the date of termination is important for a number of purposes. These include, but are by no means confined to, the marking of the start of the period within which proceedings for unfair dismissal may be taken. In the present case the relevant definition of the term, effective date of termination, is contained in section 97 (1) of the Employment Rights Act 1996. This definition largely mirrors the meaning given to the same term by section 55 (4) of the Employment Protection (Consolidation) Act 1978, by paragraph 5 (5) of the First Schedule to the Trade Union and Labour Relations Act 1974 and by section 23 (5) of the Industrial Relations Act 1971. So far as is relevant, section 97 (1) of the 1996 Act provides: (1) in this Part the effective date of termination (a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires, (b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect Ms Barratt had been dismissed without notice and her case was therefore governed by sub paragraph (b) of the subsection. The simple but crucial question therefore is, when did the termination of her employment take effect? Was it when her employer decided to terminate the employment? Alternatively, was it when the letter was sent or on the day that it was delivered? Was it when Ms Barratt read the letter or should the termination be regarded as having taken effect when she had a reasonable opportunity of learning of the contents of the letter? If so, when did that reasonable opportunity arise? When, by whatever means, the effective date of the termination of employment is established, section 111 of the 1996 Act comes into play. Subsection (2) of this section is the relevant provision. It is in these terms: (2) an [employment tribunal] shall not consider a complaint [of unfair dismissal] unless it is presented to the tribunal (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. The dispensing provision contained in section 111 (2) (b) is not available to Ms Barratt. Current jurisprudence suggests that that provision is to be narrowly construed and sparingly invoked. One need not embark on an examination of that issue, however, for, whatever the possible scope of the sub paragraph, Ms Barratt could not have demonstrated that it was not reasonably practicable for her to present a claim within the three month period. Establishing the effective date of the termination of employment is also important in relation to the availability of interim relief in unfair dismissal claims. This subject is dealt with in section 128 of the 1996 Act, as amended by section 1 of the Employment Rights (Dispute Resolution) Act 1998. The relevant provisions of the section are these: (1) An employee who presents a complaint to an employment tribunal (a) that he has been unfairly dismissed by his employer, may apply to the tribunal for interim relief. (2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date). If the effective date of termination is taken to mean the date on which an employer decides to summarily dismiss an employee or the date on which a letter is dispatched to inform the employee of that decision, it can be seen that the period provided for in this subsection might either expire completely before the employee would become aware of the need to have recourse to it or be unrealistically shortened. For reasons which I shall develop, this consideration militates strongly against the interpretation of section 97 (1)(b) for which the appellants contend. The history of the proceedings Having received the complaint, the employers (who are the appellant in the present appeal) argued during a pre hearing review that both claims were out of time. The Employment Judge, Mr J C Hoult, held that both claims were in time. He also held, however, that if he had been of the view that the unfair dismissal claim had not been made in time, he would not have found in Ms Barratts favour on the issue of reasonable practicability. In respect of the sex discrimination claim he held that, if it had not been made in time, he would have exercised his discretion in her favour under the provisions of the Sex Discrimination Act 1975 (which, in section 76(5) allows a court or tribunal to consider a complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so). Before the Employment Judge the case for the employers appears to have been put solely on the basis that Ms Barratt had had a reasonable opportunity to discover the contents of the letter and that, on that account, the effective date of the termination of her employment was more than three months before the presentation of her claim. Mr Hoult rejected this argument in the following passages of his judgment: The Claimant clearly had the opportunity to make enquiries about any letter having been received and, had she have discovered that one had [been], she could have learnt the contents. Had she have made an enquiry by the telephone this would not have given her a reasonable opportunity to read it but of course she could have discovered the contents. I did not accept that the Claimant had gone away deliberately to avoid reading the letter. I was satisfied that given the circumstances of her sister that the reason for the visit to London was genuine it was to help her sister with housekeeping and looking after her child. It was clear that she left for London without knowing the decision. In my view the Claimant did not have a reasonable opportunity of reading the letter of dismissal until 4 December 2006. Whilst she may have been able to ask someone to read the letter over to her she did not and this did not seem to be an unreasonable position to adopt given the reason for her absence from the home. The employers appeal against the decision of the Employment Judge was confined to the single issue of whether he had been right to find that the unfair dismissal claim had been brought in time. No challenge was made to his finding in relation to the sex discrimination claim nor to his indication that he would not have found in Ms Barratts favour on the matter of the extension of time for the bringing of the unfair dismissal claim, if that had been in issue before him. The case for the employers before the EAT was more broadly based than it had been before the Employment Judge. It was argued that whether a contract of employment remained in force should not depend on an examination of what a claimant did or on an investigation of what he or she had the opportunity to do. A contract could be terminated by one party without the other party actually being aware of the termination. It was so terminated when the communication could be expected in the normal course of things to have come to the other party's attention. The same approach should be followed in determining the effective date of termination under section 97 of the 1996 Act. This argument was rejected by the EAT in a judgment delivered by Bean J. Mr Greatorex (who by then was appearing for the employers) had relied on a decision of the Court of Appeal in The Brimnes [1975] QB 929, [1974] 3 WLR 613, [1974] 3 All ER 88. In that case the owners of a ship sent a telex to the charterers at 5.45 pm on 2 April 1970 purporting to withdraw the vessel on the ground of late payment of the hire charge. The charterers normal business hours ended at 6.00 pm. The telex was not seen until the morning of 3 April, although it had arrived in the charterers' office at 5.45 pm on 2 April. Brandon J found that the notice must be regarded as having been received by the charterers before 6.00 pm on 2 April. The Court of Appeal upheld that decision, Megaw LJ stating what Bean J took to be the correct principle of law in the following passage at pages 966 967: if a notice arrives at the address of the person to be notified, at such a time and by such a means of communication that it would in the normal course of business come to the attention of that person on its arrival, that person cannot rely on some failure of himself or his servants to act in a normal businesslike manner in respect of taking cognisance of the communication so as to postpone the effective time of the notice until some later time when it in fact came to his attention. Bean J rejected the purported analogy with The Brimnes decision, saying in para 17 of his judgment: It is one thing to say that the owners or charterers of a ship, or similar large commercial concerns, must be taken to receive and read documents sent to them during normal business hours. It is quite another thing to say that the same principle of constructive knowledge should apply to individuals to whom a letter is sent at their home address. What of the person who lives alone and goes on holiday? What of the commercial traveller? What of the student who lives at university during term time and at the family home in the holidays? What of the individual fortunate enough to have a second home to which he or she goes at weekends? There is no principle equivalent to that enunciated in The Brimnes that an individual is expected to be at home to receive and open the post when it arrives or in the evening when he or she gets home, or that some arrangement must be made for someone else to open what may well be confidential correspondence in the recipient's absence. The argument before the Court of Appeal followed the course that it took before the EAT. It was submitted that the Employment Tribunal ought to have concluded that Ms Barratt had a reasonable opportunity of reading the dismissal letter before 3 December 2006. Mr Greatorex argued that the Tribunal had erred in law in looking at the reasonableness of Ms Barratt's conduct rather than whether she had a reasonable opportunity to know of her dismissal before 3 December 2006. What the Court of Appeal rightly called the more substantial and radical ground was contained in counsels second argument. It was to the effect that earlier decisions of the EAT (such as Brown v Southall & Knight [1980] IRLR 130 EAT and McMaster v Manchester Airport plc [1998] IRLR 112 EAT), which suggested that the effective date of termination was when the employee had actually read the letter and knew of the decision or, at any rate, had a reasonable opportunity of reading it, had been wrongly decided and should be overruled. By a majority, the Court of Appeal, [2009] IRLR 933, (Mummery LJ and Sir Paul Kennedy, Lloyd LJ dissenting) dismissed the appeal. As to the first argument, it was unanimously held that the Tribunal had not erred in law. Mummery LJ stated that it was open to the Employment Tribunal to conclude on the evidence that the claimant had not gone away deliberately to avoid reading the letter, that she had left for London without knowing the decision and that she did not have a reasonable opportunity of reading the letter of dismissal until 4 December. Lloyd LJ agreed with the appellants argument that, in principle, an opportunity to read the letter could include an opportunity to have it read over to the addressee on the telephone, or to have its contents communicated in some other way but he did not agree that the tribunal's judgment on this issue involved an error of law. On the second argument, the majority of the Court of Appeal accepted that Gisda's contractual analysis was a possible starting point in the approach to the proper interpretation of section 97(1). The contractual analysis proffered by the appellant had been that since the effective termination of an employment contract may predate the employee's actual knowledge of the summary dismissal, and since there was no principle of contract law that required an employer to communicate the termination of the contract to the employee for the termination to take effect, it was wrong to fix the date of summary dismissal as the date of the employee's actual knowledge of the dismissal or the date on which he or she had a reasonable opportunity to learn of the dismissal. The majority dismissed this argument for a number of reasons outlined by Mummery LJ in paras 34 38 of his judgment. Those reasons may be broadly summarised as follows: (i) The expression effective date of termination is not a term of contract law but a statutory construct specifically defined for the purposes of a legislative scheme of employment rights based on a personal contract. (ii) The critical act triggering the time limit is that of the employer. When and how the summary dismissal is notified is outside the employee's control. If the employer chooses to communicate the summary dismissal by post rather than in a face to face interview, it is reasonable that he should accept that until the employee either knows of the dismissal or has a reasonable opportunity to learn of it, it will not be effective. (iii) The employment protection legislation is designed to achieve fairness in the dismissal process. An employee cannot reasonably be expected to take action until informed of the dismissal on which action is to be taken. The legislation gives the employee three months, not three months less a day or two, in which to make a complaint. (iv) The rule that the effective date of termination was when the employee actually knew of the decision or had a reasonable opportunity of discovering it had been established and followed for nearly 30 years without challenge. While it was not binding on the Court of Appeal, considerations of certainty in practice and consistency in approach dictated that it should not be lightly cast aside. (v) Finally the rule had been in existence for a considerable period without legislative amendment, even though there have been Parliamentary opportunities to eliminate legal error, manifest injustice or practical inconvenience from the operation of employment protection laws. Lloyd LJ considered that, since at first sight employment was a matter of contract, the termination date was to be determined according to the general law of contract as it applies to employment contracts. In principle, therefore, the quest to discover the date on which the termination of the employment contract took effect should begin with the general law of contracts of employment. This was the first opportunity for the Court of Appeal to pronounce on the subject and Lloyd LJ considered that the court should not be deterred from striking out on a different course simply because the opportunity to do so had not arisen since 1980. He expressed his conclusions on the appeal in the following passage from para 77: the correct view of the law is that an employment contract is brought to an end by a dismissal letter sent by or on behalf of the employer to the employee at his or her address, and delivered to that address, and that it comes to an end on the date of such delivery, regardless of whether or not the employee was there at that time or later on that day, or did not see the letter, for whatever reason, until a later date The appeal In a submission of conspicuous ability, Mr Greatorex renewed the arguments that he had presented so forcefully to the Court of Appeal. He asserted that it was fundamentally wrong to link the termination of the contract to knowledge (or the reasonable opportunity to obtain it) on the part of the employee that employment had been brought to an end. Even if this was a correct approach, however, reasonable opportunity should be given a much narrower interpretation than that which it had been traditionally afforded. Section 97 (1) was, in its essence, a jurisdictional provision. As a matter of principle the question of jurisdiction should not be determined by examining the reasonableness of the behaviour of the person who sought to establish it. If the concept of reasonable opportunity had any part to play in determining the effective date of termination, it should be objectively assessed. The examination should focus on whether there was in fact an opportunity to learn of the dismissal, not whether, in failing to avail of the opportunity, the employee could be considered to have acted reasonably. On the more substantial issue Mr Greatorex contended that, by reason of her misconduct, Ms Barratt had repudiated the contract of employment and that this repudiation had been accepted by the employer. He acknowledged that, conventionally, acceptance of repudiation normally takes the form of communication of the decision to accept or an unequivocal overt act which is inconsistent with the subsistence of the contract State Trading Corporation of India Ltd v M. Golodetz Ltd [1989] 2 Lloyds Rep 277 at 286. Where, as in this case, there was no unequivocal overt act, the question of what is required by way of communication predominates. Relying again on The Brimnes, Mr Greatorex argued that, where an employer had done all that could reasonably be required of him to communicate his decision to accept the employees repudiation of the contract of employment, the termination has occurred. In advancing this argument, counsel accepted that the contractual analysis route to the application of section 97 had not been followed by the EAT in Brown v Southall & Knight [1980] ICR 617 and McMaster v Manchester Airport plc. But, he submitted, these decisions represented an unacceptable deviation from the normal application of contractual principles in the field of employment law. They also provided a different and unfairly onerous rule for termination by employers from that of termination by employees. Mr Greatorex pointed out that other decisions in employment law cases could be seen to cleave to common law contractual principles. London Transport Executive v Clarke [1981] ICR 355, [1981] IRLR 166 and Kirklees Metropolitan Council v Radecki [2009] ICR 1244, for instance, were examples of the courts recognising that actions by employers can constitute an unequivocal overt act which is inconsistent with the subsistence of the contract of employment. These actions were sufficient to bring those contracts to an end. It was submitted that there was no justification for abandoning common law contractual principles where communication of the acceptance of the repudiatory breach was the issue rather than an unequivocal overt action which terminated the contract. On the question of bringing a contract of employment to an end by communication, Mr Greatorex referred to two cases where, he suggested, ordinary contractual principles were applied. In Potter v RJ Temple plc (in liquidation) [2003] All ER (D) 327 (Dec) the employee sent a letter of resignation by facsimile transmission to his employer. The EAT held that the effective date of termination was when the fax was received, regardless of when it had been read or acted upon. And in George v Luton Borough Council (EAT/0311/03) [2003] All ER (D) 04 (Dec) the EAT held that the effective date of termination of the contract was when the employees posted letter of resignation was date stamped as having been received. Whether it had been read was neither here nor there. Finally, Mr Greatorex argued that the adoption of contractual principles would lead to greater certainty in the application of section 97. It would obviate the need for protracted hearings inquiring into the reasonableness of the opportunity to learn of the contents of a letter of summary dismissal and it would restore the necessary balance between the duties cast on employers and employees in relation to communications about the termination of employment. The respondent was not represented on the appeal to this court and we are therefore particularly grateful to Mr Greatorex for his comprehensive and scrupulously fair examination of the arguments that lie on both sides of the debate on how section 97 should be interpreted. The narrow issue In examining the question whether Ms Barratt had the opportunity to learn of the contents of the letter, should the focus be on the reasonableness of her behaviour in failing to avail of the chance to discover what it contained, or should it be on the existence of the opportunity to do so? The Employment Judge, the EAT and all the members of the Court of Appeal were unanimous in the view that to include consideration of the behaviour of the respondent in an assessment of whether she had a reasonable opportunity to find out what the letter contained was not an error of law. We agree. The circumstances of the present case exemplify the need to be mindful of the human dimension in considering what is or is not reasonable to expect of someone facing the prospect of dismissal from employment. To concentrate exclusively on what is practically feasible may compromise the concept of what can realistically be expected. The prospect of summary dismissal for gross misconduct (which Ms Barratt apparently entertained) is a fairly unenviable one. That she should wish to read the letter in which that prospect materialised is not in the least surprising. If it contained details of the findings made against her, it is entirely to be expected that, at least in the first instance, she would wish to absorb these alone. She is not to be condemned, therefore, for failing to give instructions that the letter should be opened and read to her during the weekend that she spent with her sister. Of course, the fact that it would have been possible for her to have found out over the weekend what the letter contained is not to be left out of account in deciding when she had a reasonable opportunity to discover its contents but the fact that she chose to wait until she could read the letter herself should not be regarded as irrelevant to the reasonableness of the opportunity to be informed of her summary dismissal. In common with all the judges who have pronounced on this issue hitherto, we consider that taking into account the actions and omissions of the respondent in relation to finding out what the letter contained was not erroneous in law. The examination of the reasons for not having learned of the contents of the letter should not be a protracted affair. It is to be expected that in the vast majority of cases, the reasons for not having done so can be shortly stated and equally shortly evaluated. The substantial issue The genesis of the reasonable opportunity to discover test is to be found in the decision of the EAT in Brown v Southall & Knight. In that case it was held that where dismissal is communicated to an employee in a letter, the contract of employment does not terminate until the employee has actually read the letter or has had a reasonable opportunity of reading it. It was not enough to establish that the employer had decided to dismiss a person or had posted a letter saying so. If, however, the employee deliberately did not open the letter or if he went away to avoid reading it, he might well be debarred from saying that notice of his dismissal had not been given to him. This decision has not been challenged (at least so far as reported cases are concerned) since it was promulgated. It was followed in McMaster v Manchester Airport plc. In that case Mr McMaster was summarily dismissed while he was on sickness leave. A letter informing him of this arrived at his home on 9 November 1995. He did not see the letter that day, however, because he was on a day trip to France. He returned home the following day when he read the letter. His unfair dismissal complaint was received by the industrial tribunal on 9 February 1996. Accordingly, if the effective date of termination of his employment was 9 November when the letter arrived at his home, his complaint was presented one day out of time. If, on the other hand, his employment did not effectively terminate until the following day when he read the letter, his complaint was in time. The EAT held that the effective date of termination of a contract of employment could not be earlier than the date on which an employee received knowledge that he was being dismissed. The doctrine of constructive or presumed knowledge had no place in questions as to whether a dismissal had been communicated, save only in the evidential sense that an industrial tribunal would be likely to assume that letters usually arrive in the normal course of post and that people are to be taken, normally, as opening their letters promptly after they have arrived. Underlying both decisions (although not expressly articulated in either) is the notion that it would be unfair for time to begin to run against an employee in relation to his or her unfair dismissal complaint until the employee knows or, at least, has a reasonable chance to find out that he or she has been dismissed. This is as it should be. Dismissal from employment is a major event in anyones life. Decisions that may have a profound effect on ones future require to be made. It is entirely reasonable that the time (already short) within which one should have the chance to make those decisions should not be further abbreviated by complications surrounding the receipt of the information that one has in fact been dismissed. These considerations provide the essential rationale for not following the conventional contract law route in the approach to an interpretation of section 97. As Mummery LJ said, it is a statutory construct. It is designed to hold the balance between employer and employee but it does not require nor should it that both sides be placed on an equal footing. Employees as a class are in a more vulnerable position than employers. Protection of employees rights has been the theme of legislation in this field for many years. The need for the protection and safeguarding of employees rights provides the overarching backdrop to the proper construction of section 97. An essential part of the protection of employees is the requirement that they be informed of any possible breach of their rights. For that reason we emphatically agree with the EATs view in McMaster that the doctrine of constructive knowledge has no place in the debate as to whether a dismissal has been communicated. For the short time of three months to begin to run against an employee, he or she must be informed of the event that triggers the start of that period, namely, their dismissal or, at least, he or she must have the chance to find out that that short period has begun. Again, this case exemplifies the need for this. During the three months after Ms Barratts dismissal, she pursued an internal appeal; she learned that she was unsuccessful in that appeal; she sought advice in relation to the lodging of a complaint of unfair dismissal; and she presumably required some time to absorb and act upon that advice. Viewed in the abstract, three months might appear to be a substantial period. In reality, however, when momentous decisions have to be taken, it is not an unduly generous time. We do not consider, therefore, that what has been described as the general law of contract should provide a preliminary guide to the proper interpretation of section 97 of the 1996 Act, much less that it should be determinative of that issue. With the proposition that one should be aware of what conventional contractual principles would dictate we have no quarrel but we tend to doubt that the contractual analysis should be regarded as a starting point in the debate, certainly if by that it is meant that this analysis should hold sway unless displaced by other factors. Section 97 should be interpreted in its setting. It is part of a charter protecting employees rights. An interpretation that promotes those rights, as opposed to one which is consonant with traditional contract law principles, is to be preferred. For these reasons we reject the thesis that cases such as London Transport Executive v Clarke, Kirklees Metropolitan Council v Radecki, Potter v RJ Temple plc and George v Luton Borough Council represent a general acceptance that statutory rights given to employees should be interpreted in a way that is compatible with common law contractual principles, if indeed they are as they have been represented to be. (On this latter point, we have not received contrary argument on the common law position and we wish to make clear that this judgment should not be taken as an endorsement of the appellants argument as to the effect of those principles). Of course, where the protection of employees statutory rights exactly coincides with common law principles, the latter may well provide an insight into how the former may be interpreted and applied but that is a far cry from saying that principles of contract law should dictate the scope of employees statutory rights. These cases do no more, in our opinion, than recognise that where common law principles precisely reflect the statutorily protected rights of employees they may be prayed in aid to reinforce the protection of those rights. The need to segregate intellectually common law principles relating to contract law, even in the field of employment, from statutorily conferred rights is fundamental. The common law recognised certain employment rights, but the right at common law not to be wrongfully dismissed is significantly narrower than the statutory protection against unfair dismissal. The deliberate expansion by Parliament of the protection of employment rights for employees considered to be vulnerable and the significance of the creation of a separate system of rights was recognised by the House of Lords in Johnson v Unisys Ltd [2001] UKHL 13, [2003] 1 AC 518. In that case the employee had succeeded in an unfair dismissal claim but, because of the statutory cap on compensation, sought to bring a claim at common law for breach of an implied term of trust and confidence during the dismissal process. The House of Lords refused to permit the supplanting of the legislative scheme by entertaining a second claim at common law. The leading judgment of Lord Hoffmann recognised the deliberate move by Parliament away from the ordinary law of contract as governing employer/employee contractual relations. At para 35 of his opinion Lord Hoffmann said: At common law the contract of employment was regarded by the courts as a contract like any other. The parties were free to negotiate whatever terms they liked and no terms would be implied unless they satisfied the strict test of necessity applied to a commercial contract. Freedom of contract meant that the stronger party, usually the employer, was free to impose his terms upon the weaker. But over the last 30 years or so, the nature of the contract of employment has been transformed. It has been recognised that a person's employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self esteem. The law has changed to recognise this social reality. Most of the changes have been made by Parliament. The Employment Rights Act 1996 consolidates numerous statutes which have conferred rights upon employees In an earlier case, essentially the same message was delivered. In Redbridge London Borough Council v Fishman [1978] ICR 569, EAT, at 574 Phillips J described the difference between the contractual cause of action of wrongful dismissal and the statutory regime of unfair dismissal thus: The jurisdiction based on paragraph 6 (8) of Schedule 1 to the Trade Union and Labour Relations Act 1974 has not got much to do with contractual rights and duties. Many dismissals are unfair although the employer is contractually entitled to dismiss the employee. Contrariwise, some dismissals are not unfair although the employer was not contractually entitled to dismiss the employee. Although the contractual rights and duties are not irrelevant to the question posed by paragraph 6(8), they are not of the first importance. The essential underpinning of the appellants case, that conventional principles of contract law should come into play in the interpretation of section 97, must therefore be rejected. The construction and application of that provision must be guided principally by the underlying purpose of the statute viz the protection of the employees rights. Viewed through that particular prism, it is not difficult to conclude that the well established rule that an employee is entitled either to be informed or at least to have the reasonable chance of finding out that he has been dismissed before time begins to run against him is firmly anchored to the overall objective of the legislation. The fact that this rule has survived, indeed has been tacitly approved by, successive enactments merely reinforces the conclusion that it is consonant with the purpose of the various provisions relating to time limits. As Mummery LJ so pithily and appositely put it, the legislation is designed to allow an employee three months not three months less a day or two to make a complaint of unfair dismissal. When one considers that the decision to lodge such a complaint is one not to be taken lightly, it is entirely to be expected that the period should run from the time that the need to make such a decision is known to the employee. There is no reason to suppose that the rule in its present form will provoke uncertainty as to its application nor is there evidence that this has been the position hitherto. The inquiry as to whether an employee read a letter of dismissal within the three months prior to making the complaint or as to the reasons for failing to do so should in most cases be capable of being contained within a short compass. It should not, as a matter of generality, occupy a significantly greater time than that required to investigate the time of posting a letter and when it was delivered. In any event, certainty, although desirable, is by no means the only factor to be considered in determining the proper interpretation to be given to section 97. What will most strongly influence that decision is the question of which construction most conduces to the fulfilment of the legislative purpose. And, of course, an employer who wishes to be certain that his employee is aware of the dismissal can resort to the prosaic expedient of informing the employee in a face to face interview that he or she has been dismissed. On that issue, it appears to us that the matter is put beyond plausible debate when one considers the effect that the appellants suggested interpretation of section 97 would have on the availability of the relief provided for in section 128 of the 1996 Act. An application for interim relief may well prove in certain cases to be an immensely important facility. In the case of a whistleblower, for instance, the opportunity to forestall a recriminatory dismissal or one designed to frustrate the intentions of the conscientious employee may be of vital consequence. But this right would be severely attenuated, and in many cases wholly eliminated, if the appellants interpretation of section 97 is accepted. Sensibly recognising the significance of this point, Mr Greatorex sought to minimise its importance by pointing out that applications for interim relief are made in a very small percentage of cases. But, as we have indicated, the true importance of this remedy lies not in the number of cases in which it might be invoked but in the nature of the few cases where it may be crucial. No dispensing provision is available to extend the period within which an application for interim relief might be made. It is therefore, in our view, inconceivable that Parliament would have intended that section 97 should be interpreted to mean that seven days only would be available for the making of such an application, regardless of whether the applicant was aware of the dismissal within that period. Yet that is the inevitable consequence of interpreting section 97 in the manner that the appellants suggest. Of all the reasons that this interpretation cannot be right, this is perhaps the most strikingly obvious. Conclusion The appeal must be dismissed.	This appeal concerns the question of what is the effective date of termination of a persons employment. The determination of this date is important for a number of purposes. These include the marking of the start of the three month period within which proceedings for unfair dismissal may be taken. In the present case the relevant definition of the term is contained in section 97(1) of the Employment Rights Act 1996, which provides that, in relation to an employee whose contract of employment is terminated without notice, the effective date of termination means the date on which the termination takes effect. The Respondent, Lauren Barratt, was suspended from her employment with the Appellant, a small charitable organisation, because of alleged inappropriate behaviour at a private party. A disciplinary hearing was held on 28 November 2006 which the Respondent attended. At the end of the hearing she was told that she could expect to receive a letter on Thursday, 30 November informing her of the outcome. The Respondent left her home at 8 am on 30 November, however, before any letter arrived. She went to London to see and help her sister, who had given birth a week earlier. She did not return until late on Sunday evening, 3 December. A recorded delivery letter had arrived for the Respondent on 30 November, informing her that she had been summarily dismissed for gross misconduct. She did not read this letter until the morning of Monday, 4 December. The Respondent filed a claim for unfair dismissal and sex discrimination at the Employment Tribunal on 2 March 2007. Depending on the view that one takes of the date on which the Respondents employment was brought to an effective end, her claim was lodged either just within or just outside the period of three months from that date. If outside the period, the Respondent would be unable to maintain her claim to have been unfairly dismissed. The Employment Tribunal held that the unfair dismissal claim was in time. The decision was upheld on appeal by the Employment Appeal Tribunal and also, on a further appeal, by the Court of Appeal. Gisda Cyf appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. It holds that: (1) the effective date of termination of employment is when the employee is informed of the dismissal or when the employee has had a reasonable opportunity of discovering that she has been dismissed; (2) it is correct to include consideration of the behaviour of the employee in an assessment of whether the employee has had a reasonable opportunity to find out about the dismissal. The judgment of the Court is delivered by Lord Kerr. The broader issue in the case was whether the effective date of termination of employment is: (1) when an employee is informed of her dismissal or at any rate when she has had a reasonable opportunity of finding out; or (2) some other time, for example when a letter of dismissal is posted. In deciding that it was the former, the Court looked to the purpose of the 1996 Act. Although conventional principles of contract law may point towards the second of the two options, the appellants argument that conventional principles of contract law should determine the interpretation of section 97 must be rejected. The effective date of termination as defined in section 97 is a statutory construct which is to be interpreted in its statutory context. The interpretation must be guided principally by the underlying purpose of the statute [para 35; 41]. Section 97 is intended to hold the balance between employer and employee but it does not require that both sides be placed on an equal footing. The section is part of a charter protecting employees rights which recognises that employees as a class are in a more vulnerable position than employers. An interpretation that promotes those rights, as opposed to one which is consonant with traditional contract law principles, is to be preferred. An essential part of employees rights is the requirement that employees be informed of any possible breaches of their rights [para 35 37]. In particular, the legislation is designed to allow an employee three months not three months less a day or two to make a complaint of unfair dismissal [para 42]. Indeed, it would not be reasonable for time to begin to run against an employee in relation to his unfair dismissal complaint until the employee knows or, at least, has a reasonable chance to find out that he has been dismissed. It is entirely proper that the time (already short) within which one has the chance to decide whether to bring a claim should not be further abbreviated by complications surrounding the circumstances that someone receives information that she has in fact been dismissed [para 34]. The Court felt that the matter was put beyond doubt by consideration of the interim relief provision in section 128 of the 1996 Act. An application to the Employment Tribunal for interim relief by an employee who complains that he has been unfairly dismissed must be made within seven days following the effective date of termination of employment. If the effective date is taken to mean the date of the employers decision to dismiss or the date of his letter, the seven day period might completely expire before the employee becomes aware of the need to have recourse to it. Parliament could not have intended this [para 44 45]. The narrower issue in the case was whether it was correct to include consideration of the behaviour of an employee in an assessment of whether she has had a reasonable opportunity to find out about her dismissal. The Court, in holding that it was correct to include such consideration, reasoned that there is a need to be mindful of the human dimension in considering what is reasonable to expect of someone facing the prospect of dismissal from employment. To concentrate exclusively on what is practically feasible may compromise what can realistically be expected [para 30].
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.	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 husband and wife (as it will be convenient to describe them notwithstanding the grant of a divorce) entered into a consent order dated 28 July 2010, by which they compromised their claims against each other for financial orders on the basis of a clean break between them. The wife wished to continue to live with the two children of the family, namely a girl then aged ten and a boy then aged eight, in the matrimonial home, which was held in the joint names of herself and the husband subject to a substantial interest only mortgage. Part of the order provided, by way of property adjustment, that the husband should transfer to the wife his legal and beneficial interest in the home subject to the mortgage. In return the husband was to be released from his covenants under the mortgage. His release from them was provided in undertakings given to the court by the wife which were recited as a prelude to the order. Thus she undertook at para 4.3 of the recitals to discharge all instalments payable under the mortgage; in any event to indemnify the husband against any liability under it; and to use her best endeavours to obtain the mortgagees agreement to release him from his covenants under it. Then, crucially, she undertook at para 4.4 of the recitals that, if the husband had not been released from his mortgage covenants by 30 September 2012, she would secure his release by placing the home on the market for sale and proceeding to sell it. The several other provisions of the order, including for the division between the husband and wife of responsibility for specified debts, are for present purposes irrelevant. On 18 November 2011 the wife issued an application which she described as being to vary her undertaking at para 4.4. In her statement in support of it she explained that she had not been able to secure the husbands release from his mortgage covenants and would not be able to do so by 30 September 2012. She said that, when she had given the undertaking at para 4.4, she had expected to be able to secure his release either by the provision instead by her brother or sister of guarantees to the mortgagee for the performance of her obligations under it or by her obtaining employment by reference to which she could persuade the mortgagee to accept her as the sole mortgagor; but that in the event neither the brother nor the sister had proved able to provide the guarantees and she had been unable to obtain employment. She explained that the two children were in fine schools in the vicinity of the home and that it would be gravely damaging to their interests for them to have to move home while still at school. In such circumstances she sought a variation of the undertaking at para 4.4. so as to postpone her obligation to secure the husbands release from his covenants under the mortgage by sale of the home from 30 September 2012 until (as she soon made clear) 15 August 2019, being the date of their sons 18th birthday. In 2012 the husband countered by contending, through counsel, that the court had no jurisdiction to hear the wifes application. He requested the court so to rule in the determination of a preliminary issue. In retrospect it is unfortunate that the court acceded to his request. As of now, in 2017, the merits or demerits of the wifes application have never been ventilated. On any view, albeit subject to the extent of prejudice suffered by the husband as a result of remaining a co mortgagor of the home, the wifes application for postponement of the sale for seven years was highly ambitious even if there was jurisdiction to hear it. But, unsatisfactory though it is, she has secured postponement for five of those years solely as a result of the continuing litigation in respect of the preliminary issue. So she is now able to present her request for postponement as being only for the two final years, being (so she says) more important than ever in the interests both of the parties daughter who is about to embark on the second and final year of her A level course and of their son who is about to embark on the first of them. On 15 January 2014 District Judge Chesterfield, sitting in the Watford County Court, concluded that the court had no jurisdiction to hear the wifes application and so ordered that it be dismissed. On 12 May 2014 HHJ Waller CBE upheld the district judges conclusion and dismissed the wifes appeal against his order. On 31 July 2015 the Court of Appeal (Gross and Kitchin LJJ, and McCombe LJ who gave the main judgment): [2015] EWCA Civ 833; [2016] 2 FLR 467 held that there was jurisdiction to hear the wifes application but that it was only a formal jurisdiction which existed only technically; that scope for its exercise was extremely limited indeed; and that, in the light of what the court had been told, there was no basis for its exercise upon the wifes application. Against the Court of Appeals dismissal of her second appeal the wife brings a third appeal to this court. All three lower courts adopted without demur the wifes description of her application as being to vary her undertaking. But her description betrays a conceptual confusion which it is as well to dispel as this early stage. An undertaking is a solemn promise which a litigant volunteers to the court. A court has no power to impose any variation of the terms of a voluntary promise. A litigant who wishes to cease to be bound by her (or his) undertaking should apply for release from it (or discharge of it); and often she will accompany her application for release with an offer of a further undertaking in different terms. The court may decide to accept the further undertaking and, in the light of it, to grant the application for release. Equally the court may indicate that it will grant the application for release only on condition that she is willing to give a further undertaking or one in terms different from those of a further undertaking currently on offer. In either event the courts power is only to grant or refuse the application for release; and, although exercise of its power may result in something which looks like a variation of an undertaking, it is the product of a different process of reasoning. In Cutler v Wandsworth Stadium Ltd [1945] 1 All ER 103 Morton LJ said at 105D E: the court does not vary an undertaking given by a litigant. If the litigant has given an undertaking and desires to be released from that undertaking, the application should be an application for release Litigants are not ordered to give these undertakings; they choose to give them, and an application to have an undertaking already given varied is wholly wrong in form. In my opinion these proceedings have been bedevilled by a failure to distinguish between the existence of the courts jurisdiction to release the wife from her undertaking (conditionally, on any view, upon her offering a further one in different terms) and the exercise of its jurisdiction. The preliminary issue has related only to its existence with the result that factors relevant to its exercise have not been the subject of investigation or argument. Nevertheless, influenced by a decision of the Court of Appeal in Omielan v Omielan [1996] 2 FLR 306 which will receive my careful consideration in paras 21 to 27 below, the lower courts have in my view looked over their shoulders at the ostensibly ambitious nature of the wifes application (being one of the factors relevant to exercise of the jurisdiction); and they have deployed it as a basis for denying the existence of the jurisdiction or, in the Court of Appeal, as a basis for concluding that the jurisdiction was no more than formal and technical (which, irrespective of what in this context those adjectives precisely mean, seems tantamount to a conclusion that, for practical purposes, the jurisdiction does not exist). In Russell v Russell [1956] P 283 the husband appealed against a judges refusal to release him from an undertaking that, unless he was out of work, he would not apply for a downwards variation of an order for maintenance in favour of the wife. Jenkins LJ said at 294: any undertaking given to the court is capable of being discharged by the court whenever it appears to the court that circumstances have arisen which make that course a proper one in the interests of justice. He repeated at 297 that it was always competent for the court to release a person from an undertaking as an exercise of its discretion in the interests of justice. In the light of what follows, however, it is worthwhile to note that, in proposing that the appeal be dismissed, Jenkins LJ there proceeded to explain that the husband had wholly failed to show any such change in circumstances as would warrant release. In Kensington Housing Trust v Oliver (1997) 30 HLR 608 the Court of Appeal stressed the universality of the jurisdiction to grant release from an undertaking. A tenant had caused flooding of flats underneath her flat. As a result the landlord had obtained an order for possession of it but it had undertaken to the court to offer the tenant specified alternative accommodation at basement or ground floor level before seeking to enforce the order. When, following further flooding in breach of a reciprocal undertaking which the tenant had given to the court, the landlord applied for release from its undertaking, a recorder held that the court lacked jurisdiction to grant release from it. The Court of Appeal held, however, that the recorder did have jurisdiction to grant release and that the court should itself exercise it. Both Butler Sloss LJ at 612 and Judge LJ at 616 quoted the statement of principle by Jenkins LJ in the Russell case, set out above. Butler Sloss LJ held at 612 that the principle applied to all civil litigation and at 613 that the fact that the undertaking was recorded as a prelude to a consent order was irrelevant. Judge LJ held at 617 that the principle was not confined to matrimonial proceedings. Thorpe LJ held at 614 that it applied in the fields both of family law and of civil law. Other than in the decisions of the Court of Appeal in Omielan, which pre dated the Kensington Housing Trust case, and in the present case, the universality of the jurisdiction to grant release from an undertaking has, it seems, never been doubted. But, outside the realm of undertakings given in proceedings for financial orders, there has been debate about the criteria by which the jurisdiction should be exercised. For, in the Kensington Housing Trust case, the Court of Appeal, applying the reference by Jenkins LJ in the Russell case to the interests of justice, appeared to hold that the sole criterion was whether it would be just to grant release. Giving the leading judgment, with which both Thorpe and Judge LJJ agreed, Butler Sloss LJ said at 613: I am in no doubt, therefore, that an undertaking wherever recorded which is accepted by the court can be discharged by the court at any stage if it is just to do so. In Mid Suffolk District Council v Clarke [2006] EWCA Civ 71, [2007] 1 WLR 980, the Court of Appeal considered whether it was correct to say that the jurisdiction fell to be exercised solely by reference to what was just. The council had taken proceedings against a farmer whose production of swill, for feeding to pigs, was emitting a smell which local residents found scarcely tolerable. Rather than suffer the making of an injunction against him, the farmer had undertaken not to cause a public nuisance at his premises. The duration of the undertaking was not limited in time. Thereafter the council took committal proceedings in which the farmer admitted that he had broken the undertaking by the continued emission of smells. The judge duly fined him but then decided to release him from part of his undertaking by limiting its further duration to two years. The Court of Appeal allowed the councils appeal. Lloyd LJ noted at para 20 that, as both parties had accepted, the court had jurisdiction to grant release from an undertaking, in whole or in part, and that the jurisdiction was discretionary. Both he and Buxton LJ then addressed the criteria by which the jurisdiction should be exercised. Having considered the remarks of Butler Sloss LJ in the Kensington Housing Trust case, both Lloyd LJ at para 17 and Buxton LJ at paras 55 and 56 held that it was no doubt necessary for a grant of release to be just but that it had also to be predicated on a significant change of circumstances, which in the present case did not exist. It is, I suppose, inconsistent with the admitted existence of a discretionary jurisdiction to say that it can never be exercised unless a particular fact, such as a significant change of circumstances, is established. If a discretionary jurisdiction is shackled in that way, the result is, instead, that the jurisdiction does not even exist unless the fact is established. For all practical purposes, however, the Court of Appeal in the Mid Suffolk case gave valuable guidance. I summarise it as being that, unless there has been a significant change of circumstances since the undertaking was given, grounds for release from it seem hard to conceive. By reference only to the reasoning in the cases of Russell, Kensington Housing Trust and Mid Suffolk, one would confidently conclude that there was a full jurisdiction to hear the wifes application for release, albeit that its exercise in her favour would be likely to attract lively debate. There is, however, a completely different line of reasoning. In my view it neatly leads to the same conclusion although, for reasons which I will explain, it led the courts below to the opposite conclusion. It relates to sections 24A and 31 of the Matrimonial Causes Act 1973 (the Act). Section 24A provides: (1) Where the court makes a property adjustment order, then, on making that order , the court may make a further order for the sale of such property as may be specified in the order, being property in which either or both of the parties to the marriage has or have a beneficial interest (4) Where an order is made under subsection (1) above, the court may direct that the order shall not take effect until the occurrence of an event specified by the court Section 31 provides: (1) Where the court has made an order to which this section applies, then, subject to the provisions of this section , the court shall have power to vary the order (2) This section applies to the following orders under this Part of this Act, that is to say any order made under section 24A (1) above for (f) the sale of property; . In exercising the powers conferred by this section the (7) court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of 18, and the circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates, It is worthy of note that, in my view correctly, Parliament did not in subsection (7) or elsewhere make a change of circumstances a condition for exercise of the jurisdiction to vary. Nevertheless, unless there has been a significant change of circumstances since the order was made, grounds for variation of it under section 31 seem hard to conceive. Both the district judge and the circuit judge held that the wifes undertaking in para 4.4 of the recital could instead have been framed as an order for the sale of the home pursuant to subsection (1) of section 24A of the Act, albeit subject to a direction pursuant to subsection (4) that it should not take effect unless by 30 September 2012 the wife had failed to secure the husbands release from his covenants under the mortgage. In the Court of Appeal neither party argued that the two judges had fallen into error in that respect. Nevertheless the court held that the undertaking could not have been framed as an order under section 24A. In paras 29 and 34 of his judgment McCombe LJ based his reasoning in this respect on the admitted fact that the wifes undertakings in para 4.3 of the recital, namely to discharge the mortgage instalments etc, could not have been framed as orders. He held that, since para 4.4 was linked to para 4.3, it followed that the undertaking in para 4.4 was likewise not susceptible of being framed as an order. Kitchin LJ agreed with the judgment of McCombe LJ, as did Gross LJ although he expressed doubts on this point. It is important to note, however, that at para 41 McCombe LJ observed that, even if he had held that the undertaking in para 4.4 could have been framed as an order for sale, he would still have concluded that in the circumstances the jurisdiction to release the wife from it was no more than formal and technical. Counsel for the husband realistically accepts that he cannot defend that part of the Court of Appeals reasoning in which it held that the undertaking in para 4.4 could not have been framed as an order for sale. With respect, the fact that the undertakings in para 4.3 could not have been framed as orders in no way precluded the making of a conditional order for sale in the terms set out above. In circumstances in which an undertaking could have been framed as an order, it would be illogical for answers to questions about the existence and exercise of the jurisdiction to grant release from it to be different from answers to questions about the existence and exercise of the jurisdiction to vary any such order. In L v L [2006] EWHC 996 (Fam), [2008] 1 FLR 26, the husband had accepted an obligation to make periodical payments to the wife but the obligation had been expressed as an undertaking on his part rather than as an order by consent for periodical payments pursuant to section 23(1)(a) of the Act. Such an order would have been variable under section 31(2)(b) of the Act. The husband subsequently sought to be released from his undertaking on the basis that, in return, the court would make an order for periodical payments against him in favour of the wife on different terms. But he cast his application for release as an application for variation under section 31(2)(b). Munby J declined to strike his application out. He held at para 113 that his entitlement to apply for variation is not in any way affected either by the fact that the order was a consent order or by the fact that the relevant provisions are contained in undertakings rather than in the curial part of the order. In the present case, therefore, the equivalence of the wifes undertaking at para 4.4 with an order for sale under section 24A of the Act, variable under section 31(2)(f) of it, seems clearly to confirm the existence of the courts jurisdiction to hear her application for release from it. But this conclusion the husband disputes. He does so by reference to the decision of the Court of Appeal in the Omielan case cited at para 6 above. In the Omielan case the husband and wife entered into a consent order which related in particular to their home, vested in their joint names, in which the wife wished to continue to reside with the children of the family. Part of the order was a property adjustment order: it was, specifically, a variation of settlement order under which the proportions of the beneficial ownership of the home were recast so as to become 25% for the wife and 75% for the children. But there was also an order for sale of the home under section 24A of the Act. It provided that the home be sold but only on the occurrence of any one of four trigger events, including the event that the wife had cohabited with another man for at least six months. Shortly after the order was made the husband and wife executed a deed of trust under which they declared themselves to be trustees of the home on the above terms. Subsequently, on discovering that the wife had cohabited with another man for at least six months, the husband applied for an order that the sale of the home should take place at once; and the wife countered with an application under section 31(1) and (2)(f) of the Act for the order for sale of the home to be varied so as to postpone it until the youngest child, then aged nine, attained the age of 18. In the Omielan case the Court of Appeal was clearly correct to allow the husbands appeal against a judges refusal to dismiss the wifes application for variation. There were patently no grounds for exercising the jurisdiction to vary the order for sale. In a judgment with which Butler Sloss and Peter Gibson LJJ agreed, Thorpe LJ pointed out at 313 that the vested beneficial interest of the children in reversion had, once the wife had cohabited for six months, become an interest in possession; and that she was seeking to put it back into reversion. But, coupled with that feature, there was (so I would add) the absence of any evidence of a relevant change of circumstances since the order was made: for the fresh circumstance of the wifes cohabitation was a specified ground for triggering the sale and could hardly be deployed as a ground for further postponing it. The trouble is, however, that, instead of allowing the husbands appeal in terms of a refusal to exercise the jurisdiction to vary the order for sale, the Court of Appeal in the Omielan case preferred to hold that the jurisdiction to vary it did not exist. In this regard Thorpe LJ referred at 310A to 311G to the following three authorities as most in point. (i) The first was Dinch v Dinch [1987] 1 WLR 252, in which the House of Lords made no reference to section 24A of the Act. (ii) The second was Thompson v Thompson [1986] Fam 38, in which an order had been made in 1981 for the home not to be sold until the youngest child had attained the age of 17 or further order. The Court of Appeal inevitably allowed the appeal of the wife, who was living in the home with the children, against a judges determination that he had no jurisdiction to entertain her subsequent application for an order for its sale prior to that childs 17th birthday; and the court remitted her application for the jurisdiction to be exercised. The court held at 53 that, even though the property adjustment order had been made before section 24A came into force, it provided the vehicle by which the wife could apply for the further order which the property adjustment order had envisaged. (iii) The third was Taylor v Taylor [1987] 1 FLR 142, in which an order had been made for the wife to have exclusive occupation of the home and on its sale to receive 40% of the net proceeds. A recorder had acceded to a subsequent application by the husband under section 24A for the immediate sale of the home. The Court of Appeal upheld the wifes appeal against the order for sale. But it expressly rejected her contention that the recorder had had no jurisdiction to make an order under section 24A. She alleged that it constituted an impermissible variation of such part of the property adjustment order as had conferred on her a right to occupy the home. But the court held that the effect of any order under section 24A on the property adjustment order was relevant to the discretionary exercise of the jurisdiction, which the recorder had not properly conducted, rather than to the existence of the jurisdiction conferred by the section when literally construed: see the judgments of Sir John Arnold P at 144F and 146D F and of Ralph Gibson LJ at 147B D. In the Omielan case Thorpe LJ proceeded to articulate a statement of principle which in my view is hard to square with the decisions in the Thompson case and, in particular, in the Taylor case. For there is an obvious correlation between the jurisdiction to vary an order for sale and the jurisdiction to make such an order in the first place; and his narrow view of the former was predicated on his narrow view of the latter. He said at 312H: Section 24A is a purely procedural section inserted into the statute to clarify or expand the courts power of implementation and enforcement. Any power to vary [an order made under] such a procedural enactment must be construed to be equally limited to matters of enforcement, implementation and procedure. In other words section 31(2)(f) gives the court jurisdiction to revisit the territory of the ancillary order under section 24A but not the territory of the primary order under section 24 which it supports. Prior to stating the above Thorpe LJ had stressed the fact that, for strong reasons of public policy, orders for property adjustment and (subject to para 26 below) for payment of a lump sum are not variable under section 31 of the Act. He was understandably concerned that the variation of an order for sale might, by the back door, amount to a variation of the property adjustment order which it had accompanied. It was, however, bold for the Court of Appeal to hold that, when Parliament had provided an ostensibly unrestricted jurisdiction to vary an order for sale, the jurisdiction was nevertheless restricted; and equally bold for it to hold that the jurisdiction was restricted by reference to territories, namely that it was restricted to the territory of the order for sale as opposed to the territory of the property adjustment order. It is worthwhile to note that an order for payment of a lump sum is occasionally variable even if, as is likely, the variation will directly prejudice the interests of the payee. Thus section 31(2)(d) of the Act expressly empowers the court to vary an order for payment of a lump sum by instalments. In the words of Bodey J (with whom Schiemann and Sedley LJJ agreed) in Westbury v Sampson [2001] EWCA Civ 407, [2002] 1 FLR 166, at para 18, the subsection not only empowers the court to re timetable / adjust the amounts of individual instalments, but also to vary, suspend or discharge the principal sum itself, provided always that this latter power is used particularly sparingly, given the importance of finality in matters of capital provision. Indeed, although there is no jurisdiction under section 31 to vary an order for a single payment of a lump sum, there is even an inherent jurisdiction in the court to direct a modest extension of the time for its payment provided in the order: Masefield v Alexander (Lump Sum: Extension of Time) [1995] 1 FLR 100. With respect to the Court of Appeal in the Omielan case, I cannot subscribe to its determination of that appeal by reference to the non existence of the jurisdiction to vary the order for sale rather than to a refusal to exercise it. Where Parliament has conferred jurisdiction on a court, I see no scope for a court to say that part of it does not exist. Nor in my view can the existence of jurisdiction sensibly be left to a demarcation of territories. I find the concept of different territories hard to apply to the terms of a financial order, which are usually interlinked and which, in the case of an order for sale under section 24A of the Act, can be made only as an accompaniment to an order for property adjustment or lump sum payment. I wonder whether underneath the concept of different territories lies no more than a rough and ready distinction between an apparently minor variation and an apparently major one. At all events the demarcation of territories within the order is no proper criterion for identifying the existence of a jurisdiction. Understandably the lower courts felt the need to identify the territory of the wifes application for release; and each concluded that it fell within the territory of the order for transfer to her of the equity in the home. There is no need to seek to determine whether their conclusion was correct in this regard. I would suggest, however, that perhaps it merited greater consideration than they saw fit to give to it. For insight into the territory of the wifes application might have been gained by seeking to identify the effect on the husband of the proposed postponement of the sale of the home. Since any resulting prejudice to the husband is on any view likely to be a highly relevant circumstance in the future disposal of the wifes application, it may be helpful to make three points in this regard. The first is obvious: the situation in the present case is unlike the more usual situation in which the respondent to the application for postponement of the sale (or a third party, or third parties as in the Omielan case) has any interest in its proceeds. So the inquiry into prejudice to the husband requires focus elsewhere, in particular into such prejudice as might flow from his remaining liable under his mortgage covenants. Perhaps the most obvious prejudice of that sort would be a call to pay under the mortgage. But, although not noticed in any of the judgments below, the second point is that, with the assistance at times of income support, the wife has discharged all the mortgage instalments in accordance with her undertaking, with the result that the husband has not been, and appears unlikely to be, called upon to make any payment under the mortgage notwithstanding his continued liability under it. That leaves third what may or may not prove to be substantial resulting prejudice in the form of a reduced capacity to obtain another mortgage loan for deployment in the purchase of a home for himself. In 2012 he disclosed mortgage promises from the Halifax of an advance of 180,000 in the event that he was released from his existing mortgage covenants and of only 117,000 in the event that he was not released from them. It follows that no inquiry has yet been conducted into what, even if those figures are reliable, he might have achieved with the larger advance but could not achieve with the smaller one. Nor has an inquiry yet been conducted into the likelihood that, if released from his covenants, he would have purchased, or would now purchase, a home of his own in the light of his previous cohabitation for about two years with a partner in her own home and of his present cohabitation with a second partner in rented accommodation. I propose that this court should allow the wifes appeal; should hold that jurisdiction exists to hear her application; and should remit to HHJ Waller, in the light of his past experience as the Senior District Judge of the Principal Registry, Family Division, the difficult and urgent inquiry into whether the jurisdiction should be exercised. In the light of the equivalence of the wifes undertaking with an order for sale, his inquiry will be conducted in accordance with section 31(7) of the Act, set out in para 15 above. He will give first consideration to the welfare while minors of the two children; but it is a consideration which may be outweighed by other factors. He will have regard to all relevant circumstances including in particular, so I suggest, whether the wife can establish a significant change of circumstances since her undertaking was given and whether, and if so to what extent, the husband has suffered, and is likely to continue to suffer, prejudice by remaining liable under his mortgage covenants. The husband, so this court was told, recently made an open offer to the wife that he would accede to the further postponement of the sale of the home until their sons 18th birthday on condition that she undertook to pay him 30% of the net proceeds of the sale. The wife has rejected it. It is not for this court to judge whether it would be appropriate to attach a condition of that character to the release of the wife from her undertaking. It seems that the parties cannot even agree upon the value of the home and thus upon the figure which 30% of the net proceeds would represent. If, however, the court finds that the husband has suffered prejudice as a result of the delay in selling the home, and/or would be likely to suffer prejudice as a result of any further delay, it is possible that it might favour compensating him by asking the wife to make provision for him out of the ultimate net proceeds as a condition of release. Since drafting the above, I have had the benefit of reading in draft the judgment of Lord Hughes. My respectful comments on it are as follows: a) I acknowledge the difficulty in some cases of exercising the power under section 31 of the Act to vary an order for sale under section 24A in the light of the absence of any power under it to vary an order either for property adjustment under section 24 of it or (subject to para 26 above) for payment of a lump sum under section 23(1)(c) of it. b) The variation of an order for sale, which is no more than an order for the conversion of one form of property into another, can never directly affect the allocation of property between the husband and wife in an order for property adjustment or lump sum. c) But it may have an indirect effect on the allocation, in particular in a case (unlike the present) in which a postponement of the date of sale would postpone a partys receipt into his possession of the capital allocated to him. Another example (also unlike the present) would be an order that the sale should proceed at a specified price. d) In determining whether, and if so how, to exercise its jurisdiction to vary an order for sale, a court should place in the balance any indirect effect of the suggested variation on the order for property adjustment or lump sum; and the effect might in some cases precipitate the dismissal of the application. But in my view there is no way in which this proposition can properly be expanded. e) In particular I, for my part, cannot subscribe to the acid test articulated by Lord Hughes in para 54, namely whether the application is in substance to vary or alter the final [capital] order or is to support it by working out how it should be carried into effect. This test is a reiteration in different words of the test of territories suggested, albeit as a demarcation of the jurisdiction itself, in the Omielan case. f) If, when applying the acid test, the court concludes that the application is in substance to vary the final capital order, it must, so it is said, be dismissed without wider inquiry. But this would run counter to Parliaments instruction in section 31(7) to have regard to all the circumstances. These include the welfare of the two children in the present case, to whom therefore Lord Hughes makes no reference even though their welfare is supposed to be the courts first consideration. g) Furthermore the acid test would in my view be difficult to apply in practice and would generate collateral dispute. Take this very application. Lord Hughes has no doubt that is in substance an application by the wife to vary the final capital order. But, in circumstances in which the husband stands to receive nothing upon the sale, I myself do not so regard it. h) The wifes application was indeed at first to postpone the sale by seven years. But five of those years have been spent in addressing the husbands denial of any jurisdiction to entertain it; and, were this court to determine that there is no need to remit it for hearing because it is now bound to fail, it should confront the reality that the application is now for a postponement of two years. i) An informal indication of the likely outcome of the applications for financial orders, given by the district judge prior to hearing evidence, should not carry weight sufficient to figure in this courts analysis. j) The court proceedings to date have never progressed to the point at which the wife has been able to present her case. We cannot assess the strength of it. k) It seems odd that this court should pre empt the conventional inquiry so as to leave the wife obliged to effect the immediate sale of the home in circumstances in which the husband has himself conceded its further postponement, albeit subject to a condition which it may or may not prove to be appropriate to put to her as the price of release. LORD HUGHES: (dissenting) I respectfully agree with Lord Wilsons insightful analysis of the difference between the existence of jurisdiction (power) in the (i) the nature of undertakings and the machinery by which the obligation which arises under them can be altered, namely by discharge either with or without requiring as a condition for such discharge the giving of a substitute undertaking in different terms; and (ii) court and the principles on which, if it exists, it ought to be exercised. I also agree that the present order, whilst framed by way of undertakings, could equally have been structured as an order for sale under section 24A, subject to one or more conditions pursuant to section 24A(4) and/or consequential or supplementary provisions under subsection (2). Exactly the same effect could have been achieved by such route(s). It follows that the remaining question in this case is: what are the principles for the exercise of the jurisdiction to vary an order for sale under section 24A of the Matrimonial Causes Act, or its equivalent achieved via undertakings? I do not think that it can be right to leave the exercise of that jurisdiction in quite the place that Lord Wilson does. It is one thing to say that the jurisdiction to vary an order for sale under section 24A is given by section 31(2)(f), as clearly it is and always has been. It is another to say that it follows that the exercise of that jurisdiction is open ended. In particular, to say that an order for sale under section 24A (or an undertaking to like effect) can be modified whenever the applicant demonstrates a significant change of circumstances since the order was made is, as it seems to me, too wide a gateway for variation. It would be likely to intrude upon an underlying clean break where, as is very often the case, that is what the order for sale is designed to serve. It may also operate as a regrettable deterrent to the inclusion in court orders of a provision for deferred sale, when that kind of provision is of real practical use to parties and to courts. It is trite to record that the scheme for financial provision after divorce contained in the 1973 Act seeks to combine two features. First, it aims to give the courts as flexible a set of powers as is practicable to re organise the financial affairs of parties when their marriage or partnership has collapsed. Such flexibility is necessary in order to achieve justice between the parties in the very wide range of different factual circumstances which may exist. It is needed to protect the more disadvantaged of the parties. It is particularly called for because whilst the marriage was successful it is very likely that many, perhaps most, couples will have treated their finances with great informality, and with much less regard for who owns what and for the source of expenditure than would be the case as between partners engaged in a commercial venture. Second, however, the Act aims to achieve finality in the re organisation of financial affairs when it can. That means avoiding continuing financial dependence between those who are now not happy together if this is not unavoidable. It also means putting as early an end as one can to litigation between them. This last is a goal of general application to all litigation but it is particularly important in the context of soured relationships, where the tendency to continue to ventilate old disputes may be especially strong and where the ordinary constraints of pragmatism are especially likely to be overcome by emotion. If not thus tempered by finality, the courts protective flexibility can easily become an unwitting tool for prolonged and painful litigation. The Act thus deals both with income provision, which is generally of necessity by way of continuing orders, and with capital or property allocation. Orders for continuing provision are necessarily ones which the court needs power to vary if circumstances change. The payers income may rise or fall; the recipients needs may wax or wane. Orders for capital or property allocation require no such power to vary. For the latter, the aim to bring finality prevails. A clean break is to be achieved where it can, although obviously it is not always possible. For this reason, the broad scheme of the Act has been for 40 years that continuing orders are subject to a power to vary, but that orders for capital provision are not. Orders for periodical payments (section 23(1)(a), (b), (d) and (e)) can be varied: see section 31(2)(a) to (c). Property transfer orders (section 24) cannot. Lump sum orders (section 23(c) and (f)) cannot ordinarily be varied, but only if they are given a continuing element by way of direction for payment by instalments (see section 31(2)(d)). The House of Lords confirmed as long ago as Minton v Minton [1979] AC 593 that this was the scheme of the Act. That case concerned an application for periodical payments made by a spouse after a previous order by consent had settled her capital claims by transfer to her of the former matrimonial home and had provided for nominal periodical payments only until that transfer was accomplished, whereupon they were to cease. There was thus no continuing order to be varied, and the House held that there was similarly no jurisdiction to entertain a second application after the first had been dismissed or, as there, ordered by consent to come to an end. At 608E Lord Scarman gave expression to the principle in terms which are now very well known: Once an application has been dealt with upon its merits, the court has no future jurisdiction save where there is a continuing order capable of variation or discharge under section 31 of the Act There are two principles which inform the modern legislation. One is the public interest that spouses, to the extent that their means permit, should provide for themselves and their children. But the other of equal importance is the principle of the clean break. The law now encourages spouses to avoid bitterness after family breakdown and to settle their money and property problems. An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down. Subsequently, this scheme of the Act was reinforced by provisions encouraging clean breaks, where possible, also in relation to periodical payments. Section 25A, inserted by the Matrimonial Proceedings and Property Act 1984, contains three subsections with this design. By subsection (1) the court must consider whether it is appropriate so to use its powers to make financial provision orders in such a way as to terminate the financial obligations of the parties towards each other as soon as just and reasonable. Subsection (2) requires the court to consider whether any periodical payments order ought to have a definite term set to it, to enable the recipient to adjust to termination of dependence on the other party. Subsection (3) spells out the power of the court to dismiss an application for periodical payments and to couple with the dismissal a direction that no further application may be made. It is well established law that if an application for financial provision is dismissed, no subsequent application can be made for that provision: L v L [1962] P 101 and Minton v Minton. In Miller v Miller [2006] UKHL 24; [2006] 2 AC 618 at para 130 Baroness Hale aptly described these provisions as devised to encourage and enable a clean break settlement. The question raised by the present case, as also by other situations, is in what circumstances is an order to be treated as in substance a continuing one, subject to the fullest power of variation in the interests of flexibility, and when is it to be treated as a clean break order, which should be final? That involves considering the nature and purpose of an order for sale made under section 24A. The power in section 24A to make an order for sale was introduced into the 1973 Act by the Matrimonial Homes and Property Act 1981 following the recommendation of the Law Commission (Law Com No 99, 13 February 1980) Family Law Orders for sale under the Matrimonial Causes Act 1973. The Commissions report made clear why this was done. It was that sometimes when operating the 1973 Act courts wished to order the sale of an asset in order to facilitate a financial provision order of a capital nature. There had been debate whether it was or was not necessary to employ the rather cumbersome machinery of a separate application under section 17 of the Married Womens Property Act 1882 (see for example Ward v Ward and Greene [1980] 1 WLR 4), but in any event that kind of application was probably not available when the asset to be sold was in the sole beneficial ownership of one party, so that some different device would have to be found to insist on a sale. The new provision was designed to put the power beyond doubt and to make it available to the court whether a party asked for it or not: see section 5 of the Commissions report. At para 9 the Commission gave examples of the kind of situation in which an order for sale is useful. Chiefly, it envisaged it being used when an asset needed to be sold to enable a lump sum order to be satisfied, particularly if the money was to come from realisation of the matrimonial home. Another case was that of a spouse who ought to be given a share of capital assets in a family business but had no claim to run it; in such a situation a transfer of shares would not achieve the aim but an order that some of them be sold and the proceeds paid over would. These examples still hold good, indeed the more so now that the principles of sharing and compensation are recognised (see Miller). The Commission summarised its proposal at para 8: Accordingly we propose that the power to order sale should be available whenever the court, in proceedings for divorce, judicial separation or nullity makes a lump sum, transfer or settlement of property, variation of settlement, or secured periodical payments order that is to say whenever it makes an order which involves capital assets. The key characteristic of the order for sale is thus that it is ancillary to a capital order. It is an aid to carrying such an order out. The description of section 24A by Thorpe LJ in Omielan v Omielan [1996] 2 FLR 306 at 312 as purely procedural may possibly involve modest oversimplification. The section gave a power which in some cases went somewhat beyond what might have been achieved by other routes such as the Married Womens Property Act; that was the whole point. But that description was nevertheless apt and was borrowed from the judgment of Oliver LJ in Thompson v Thompson [1986] Fam 38 at 53B. In Thompson a property adjustment (variation of settlement) order under section 24 had been made, by consent, before the commencement of section 24A. It had modified the trust for sale of the jointly owned matrimonial home by providing, in the familiar Mesher v Mesher [1980] 1 All ER 126 type form, that the wife and children should occupy it and that it should not be sold until the youngest child reached the age of 17, or completed his education, or further order. Quite soon afterwards, and well before the child had reached 17, the wife, who wished to move house, sought an order for earlier sale. It was the foundation of her argument that her application was for an order working out or giving effect to the original order but did not seek a variation of its substance (see 40G). The County Court judge had felt he had no jurisdiction to entertain the application because it amounted to varying a section 24 order. The Court of Appeal held that he had, because it did not. The Courts primary decision was that independently of the advent of section 24A, the order sought by the wife did not amount to an impermissible variation of the original order and that there was, accordingly, no jurisdictional obstacle to adjudicating upon it. Oliver LJ was at pains to formulate the question in the case as whether an application made under the liberty to apply reserved in a common form Mesher order is an application to vary the order, or an application for the working out of the order (46H). He held that whilst such an application might amount to an impermissible variation, it did not necessarily do so. The question was, in each case, which it was. He held, plainly correctly if I may say so, that orders deferring sale of jointly held property, in the common Mesher form, have an obvious need for scope to adjust them to work out the order. Whilst an application further to delay sale would, he held, ordinarily amount to an impermissible variation, an application for an earlier sale need not do so, and often would not. He instanced examples such as the resident spouse going bankrupt, or wishing to emigrate, or one of the residents becoming incapacitated. It would no doubt have been different if it had been the husband who had sought an earlier sale, thus significantly altering the protection given to the wife and children by the original order; that did not arise, but would, as it seems to me, plainly be the kind of application which would be treated under the approach of Oliver LJ as in substance one to vary the final property adjustment order, and as such one which therefore ought not to be entertained. It was necessary to address the then new section 24A only because it was argued that, notwithstanding the stipulation in the consent order for liberty to apply, the only source of jurisdiction to direct the husband to concur in the sale was found in the non matrimonial relief framework of section 30 Law of Property Act 1925, whilst the value of the house was outside the financial limits within which such power was available to the County Court. Concluding that that argument was correct, the court went on to hold that the new section 24A power to order sale was the kind of procedural provision which could be exercised in a case where the substantive order had been made before its commencement, without improper retrospectivity. It was in this context that Oliver LJ observed at 51H 52A that if the original order had been made after the commencement of section 24A there could have been no question of jurisdictional limits (ie the financial limits on the County Court). The jurisdiction being spoken of was a jurisdiction to make a new order for sale; variation of an order for sale which had already been made did not arise. There is accordingly nothing in the judgments in Thompson inconsistent with the approach subsequently adopted in Omielan, providing that the latter must be seen correctly as a statement of the basis on which a jurisdiction is to be exercised, rather than as defining the existence of the jurisdiction. On the contrary, the whole basis of Thompson was to identify the difference between substantive variation of the original order, which is not permitted, and further order to work out or give effect to the original order, which is. What the Court of Appeal subsequently held in Omielan is that exactly the same principles still need to be applied when considering section 31(2)(f). Thompson was applied in Taylor v Taylor [1987] 1 FLR 142. The original order was again made before the commencement of section 24A. It was not a common form Mesher order, because it fixed the beneficial interests of the spouses in the former matrimonial home, charged the property with the wifes two fifths interest, and gave her the occupation of it, but said nothing about whether or when it could or should be sold and the interests realised. The husband applied, something over 11 years afterwards, for an order for immediate sale. The Recorder had made such an order, ostensibly taking the view that such gave effect to the original order, but he had heard no evidence and given no consideration to any competing argument. The wifes appeal was thus allowed and the case was remitted for re hearing. Her additional argument that there was no jurisdiction to make a section 24A order for sale in relation to a pre commencement original order failed by the application of Thompson. Giving (extempore) judgment in the Court of Appeal, Sir John Arnold P expressly reserved any question of the basis on which the jurisdiction to make a (subsequent) section 24A order ought to be exercised. There was likely to be in that case an open question whether the original order, which Ralph Gibson LJ described as poorly drafted, had been intended to be a Mesher type order with sale after some deferred period contemplated, or had been meant to give the wife indefinite occupation of the house; thus there was an open question whether, in the terms used in Thompson, the application was to work out and give effect to the original order or was to vary it. Referring back to the approach in Thompson, the President said this of the argument that there should be no order for sale because the application was made not by the wife, who had the right of occupation, but by the husband who sought to bring that right to an end: While it may of course be a matter highly relevant to the exercise of discretion who makes the application, it cannot define, it seems to me, the jurisdictional limits of the section itself It is of course right that there is available to the wife in the present case an argument based on the observations in Thompson v Thompson to the effect that where the party with the right of occupation is not the applicant, the discretion will never be exercised in favour of a sale such as to defeat the right of occupation. Similarly, Ralph Gibson LJ, agreeing, summarised his conclusion as follows at p 147: Upon the reading of Thompson v Thompson . there is jurisdiction in the court to hear the application of the respondent for an order for sale under section 24A of the 1973 Act, but the discretion to make the order will not be exercised if the consequence would be to displace vested rights that is to say, rights vested under the order previously made. (emphasis supplied) As Lord Wilson says at para 24, there is an obvious correlation between the power to make a section 24A order for sale subsequently to the original order and the power subsequently to vary one made in the original order. The same principles ought to apply to the exercise of each of these powers. Both in Thompson and in Taylor the acid test was seen to be whether the power was being invoked to give effect to, and carry out, the original order, or was impermissibly to vary it. Thompson was also applied by the House of Lords in Dinch v Dinch [1987] 1 WLR 252. That was a case of a common form Mesher type order deferring sale of the former matrimonial home during the minority of the children and giving the wife occupation meanwhile. When the stipulated time arrived and the husband sought sale, the wife, who had powerful and legitimate complaints that the husband had failed to comply with periodical payments orders in her favour and had caused her some hardship, responded with counter applications for further postponement of sale, for a further transfer of property order in relation to the house, and for a lump sum. Those applications, which had been granted in part in the Court of Appeal, failed on the principles explained in Minton and similar cases, as well as on the basis of Thompson. They failed despite very considerable sympathy for the wife, who had a strong case on the general merits. There was no reference to section 24A, perhaps surprisingly, but perhaps because the original order had been pre commencement and the husbands entitlement to sale was sufficiently demonstrated by it; he needed no new section 24A order. But the principled approach to applications which are in substance to vary a final capital settlement was plainly stated by the House. Lord Oliver, with whom all their Lordships agreed, said this (at p 263) One has, as it seems to me, simply to look at the order and any admissible material available for its construction, and determine what the court intended or, in the case of a consent order, what the parties intended to effect by the order. If the conclusion is that what was intended was a final and conclusive once and for all financial settlement, either overall or in relation to a particular property, then it must follow that that precludes any further claim to relief in relation to that property. These three cases of Thompson, Taylor and Dinch were cited to the Court of Appeal in Omielan. As Thorpe LJ said, giving the judgment of himself and of Peter Gibson and Butler Sloss LJJ, none of the three was directly in point upon section 31(2)(f). But the principles which they enunciated were relied upon by that court for its decision. For the reasons largely set out above, I think that they were relevant, although what they led to was not the absence of jurisdiction, but clear principle on which the jurisdiction should be exercised. Given the terms of section 31(2)(f), it is impossible to say that there is no power to vary a section 24A order such as the one in the present case. I agree that in Omielan the court fell into this error. The judgment contains the following (at 312): section 31(2)(f) must be construed within the statutory context, namely that when post divorce capital adjustments have been incorporated in a final order, whether or not by consent the court has no jurisdiction to revisit the territory, in the absence of an element that might vitiate any court order such a fraud, misrepresentation, or material non disclosure. This cardinal principle was strongly maintained by Lord Oliver in both Thompson and Dinch. (emphasis supplied) As has been seen, in neither Thompson nor Dinch did the court say that there was no jurisdiction (there to make a subsequent section 24A order), and in Taylor it held that there was. What it said was that the jurisdiction could not be exercised so as effectively to vary the substantive original final capital order. But the force of those earlier cases, as also of the Minton line of authority, is not diminished by mischaracterising them as defining the jurisdiction rather than setting out the principles on which it is to be exercised. Thorpe LJ went on, correctly, to say that the principles underlying the earlier cases in relation to the making of (subsequent) section 24A orders must apply equally to applications to vary orders under that section. He said this: It is manifest to me that the considerations that dictated the conclusion in Dinch should equally dictate the conclusion in the present appeal. The same pointer is to be derived from both Thompson and Taylor. Section 24A is a purely procedural section inserted into the statute to clarify or expand the courts power of implementation and enforcement. Any power to vary [under] such a procedural enactment must be construed to be equally limited to matters of enforcement, implementation and procedure. That of course repeats the mischaracterisation of the principle. But if it is treated, as the earlier cases require, as a statement of the right approach to the exercise of the jurisdiction, it is, in my view, both firmly based on authority and correct in principle. It is of course true that on the particular facts of Omielan, there was the additional factor that the agreed (and ordered) trigger for sale had come about, and there had vested in the children beneficial interests in the former matrimonial home. Those were, in that case, powerful additional reasons why any attempt to vary the original order was doomed to failure. But the principle derived from the earlier lines of authority, and confirmed by the structure of the Act, does not depend on such additional factors. The outcome should, and clearly would, have been the same in the commoner case where the beneficial interests in the property are confined to the husband and wife and are already vested, and it should have been the same if the wifes application to delay sale had been made before the trigger event rather than after it. In all these instances, the effect of variation would be to undo a final capital order, whether made by consent or not. Any variation application under section 31 is governed, inter alia, by section 31(7). This requires the court to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family under 18. A change in any of the factors which are made by section 25 material to the making of the original order is stipulated to be among all the circumstances of the case. There is nothing in this which requires the discarding of the principles, derived from Minton, Thompson, Taylor and Dinch, that the power to vary must not be used in a way which amounts to a disguised variation of a final capital order and an evasion of the rule that there can be no second application for capital orders, both of which are inherent, and in some instances explicit, in the terms of the Act itself. In particular, the interests of the children will have been first consideration at the time of the making of the original order: see section 25(1). Any order, whether following a contested hearing or a settlement, must be endorsed by the court, whose approval is no rubber stamp. The compatibility of any final order with the interests of the children can, and indeed must, be assumed. A change in the section 25 circumstances is but one of the factors relevant to an application to vary. It can perfectly properly become relevant only when there is no evasion of the rule against variation of final capital settlements. It is after all well established that, barring the kind of supervening event considered in Barder v Calouri [1988] AC 20, which is not suggested here, there is no power either to entertain a second application for a capital order, or to vary such an order, even if the calculations on which it was based have proved to have been misjudged by one party: see for example, amongst many other cases, the kind of events considered in Myerson v Myerson (No 2) [2009] EWCA Civ 282; [2010] 1 WLR 114. There may of course be difficult marginal cases where there is scope for real argument whether the new order sought is (permissibly) to work out or enforce the original order or (impermissibly) to vary it. Some cases of deferred sale orders may well give rise to this difficulty. It would be a mistake here to attempt to anticipate the kind of situations which might fall on one side of the line or the other. So long as the principles are kept firmly in mind that (1) the section 24A order has always been devised as ancillary to a capital order and (2) that final capital orders cannot be varied in their substance (whether or not there is a change of circumstance), so that (3) the acid test is whether the application is in substance to vary or alter the final order or is to support it by working out how it should be carried into effect, then cases ought to be capable of resolution and there should be sufficient certainty for those, on both sides, who are subject to the orders. If, on the other hand, the undoubted power to vary under section 31(2)(f) is taken to authorise a review of all the circumstances whenever there is a section 24A order, it is very difficult to see what weight judges who are asked to vary an order ought to accord to the fact that it was made as an ancillary to a final capital settlement. To say that that is one of the circumstances of the case poses, but wholly fails to answer, that question. It seems to me inevitable that if this is the position, the utility of an order for sale will be very much diminished. Orders for sale, and particularly orders for deferred sale, are not a universal panacea for matrimonial financial strife, but they can be very useful and are much resorted to. If a party is being advised in delicate negotiations about the settlement of the matrimonial finances, she will have to be told that if there is an order for sale, she is exposed to an application, at any time before the sale takes place, on the grounds at least of a suggested change of circumstances. Of course, such an application may fail. Sometimes its failure may be attended by adverse orders for costs. But the risk of further litigation, not necessarily confined to a first instance hearing, will always be there. It is very likely that she will not wish to run it, but instead will stand out for something which does not involve an order for sale, for then the capital order will indeed be final. The extremely lengthy litigation which has ensued in the present case is no doubt exceptional, but all applications take time to be dealt with, and sometimes much time. The same considerations will, perhaps to a lesser extent, be present to the minds of judges considering the best form of order to make. It is not in the general interest of spouse litigants, whether potential occupiers of the property concerned or out of occupation spouses awaiting sale, that this constraint should operate on the ancillary orders devised by the Law Commission in 1980 and operated ever since on the basis explained in Thompson, Taylor, Dinch and (although there mischaracterised) in Omielan. It should be recorded that Mr Hockman QC, for the wife in the present case, accepted the general principle that the power to vary a section 24A order should not be exercised in such a manner as to alter the substance of the original capital order. His case was confined to the argument that the wifes present application would not do so, because the beneficial interests in the proceeds of sale were not affected, the husband having transferred the whole of his interest to the wife as part of the settlement. In my view, his concession was realistic, although if Lord Wilson is right it went further than was needed, but his argument was not. Although there may be difficult marginal cases, I cannot for myself see that the present is one of them. This seems to me to be one where there is no doubt that the application is one which amounts to an attempt to vary, not to carry into effect, the originally agreed and court endorsed order. Other forms of settlement were plainly available, and indeed an indication was given by the District Judge that sale of the house looked inevitable. As it was, by agreement, sale was directed at a fixed date, not on the occurrence of a trigger event, unless in the meantime the husband was released from his liability under the mortgage. In effect he gave up all interest in the house and in return was to be relieved by a specific deadline of a substantial outstanding liability in relation to it. An application to extend the date by a month or two because the finances to release the husband were unexpectedly held up might well have been an application to carry the order into effect. But the application was to extend the period from two years to nine. Even if the wife is able to point to some change in her circumstances, that is no justification for re opening a final property settlement. Of course, if the correct rule of law is that the husband must face an open ended application to vary, he will indeed have to address exactly what difference it has made to him, over the past five years, to remain liable on a substantial mortgage. But it takes little imagination to understand that for all except the very wealthy such a liability makes a real impact on ones credit rating and ability to borrow, for any purpose, not necessarily for housing. It does not seem likely that the continuing liability has made no difference at all to his personal planning. In any event, whatever may have been the exact impact on him, the purpose of the original order was to give certainty and freedom of financial decision, in the face of competing cases about what should happen to the house and whether it was inevitable that the wife and children needed to move. The application has always been such as to remove the certainty which was the aim of the order. It seems to me that the Court of Appeal was right to hold that the application was bound to fail. For those reasons, I would myself dismiss the appeal and uphold the decision of the Court of Appeal, although on somewhat different grounds from those stated by it.	The husband and wife entered into a consent order on 28 July 2010. Part of the order provided that the husband should transfer to the wife his legal and beneficial interest in the matrimonial home subject to the mortgage so that the wife could continue to live there with the two children of the family. In return the wife undertook at para 4.3 of the recitals to discharge all mortgage payments, to indemnify the husband against any liability under it and to use her best endeavours to release him from the covenants under it. Then, crucially, she undertook at para 4.4 of the recitals that, if the husband had not been released from his mortgage covenants by 30 September 2012, she would secure his release by placing the home on the market for sale and proceeding to sell it. On 18 November 2011 the wife, who had (and still has) duly discharged the mortgage payments, issued an application to vary her undertaking at para 4.4. She explained that she had not been able to secure the husbands release from his mortgage covenants and would not be able to do so by 30 September 2012. The children were in schools in the vicinity of their home and it would be gravely damaging to their interests for them to have to move home while still at school. In such circumstances she sought a variation of the undertaking at para 4.4, so as to postpone for seven years her obligation to secure the husbands release from his covenants under the mortgage by sale of the home until 15 August 2019, being the date of their sons 18th birthday. The husband argued that the court had no jurisdiction to hear the wifes application and requested that the court rule on that preliminary issue. He argued that the wifes undertaking was equivalent to an order for sale under section 24A of the Matrimonial Causes Act 1973 (the Act). And he relied on the Court of Appeals decision in Omielan v Omielan [1996] 2 FLR 306 that jurisdiction to vary the latter did not exist where it related to the territory of the property adjustment order. When the wifes appeal from an adverse decision below came before the Court of Appeal it held that its jurisdiction to hear the application was a formal jurisdiction which existed only technically; that scope for its exercise was extremely limited indeed; and that there was no basis for its exercise upon the wifes application. The Supreme Court by a majority of 4 to 1 allows the wifes appeal and holds that jurisdiction exists to hear the wifes application. Lord Wilson gives the lead majority judgment, with which Lady Hale, Lord Kerr and Lord Carnwath agree. Lord Hughes gives a dissenting judgment. The description of the application as being to vary the wifes undertaking is confused. The courts power is only to grant or refuse an application for release from the undertaking. Although the courts exercise of its power may result in something which looks like a variation of an undertaking, if it decides to accept a further undertaking, it is the product of a different process of reasoning [5]. The courts below wrongly concluded that they did not have jurisdiction to release the wife from her undertaking. They failed to distinguish between the existence of the courts jurisdiction to release the wife from her undertaking, and the exercise of its jurisdiction [6]. The case law indicates that there is full jurisdiction to hear the wifes application [12]. Further, in circumstances where the undertaking in para 4.4 could have been framed as an order for sale of the property under section 24A of the Act, variable under section 31(2)(f), it would be illogical for the existence and exercise of jurisdiction to grant release from the undertaking to differ from those in relation to the variation of any such order [17 18]. The equivalence of the wifes para 4.4 undertaking with a section 24A order for sale seems clearly to confirm the existence of the courts jurisdiction to hear her application for release from it [19]. Lord Wilson is unable to subscribe to the Court of Appeals determination of the appeal in Omielan by reference to the non existence of jurisdiction rather than a refusal to exercise its jurisdiction. Where Parliament has conferred jurisdiction on a court, there is no scope for a court to say part of it does not exist. The terms of a financial order are often interlinked and therefore it is difficult to apply the concept of different territories to such an order. The demarcation of territories within the order is no proper criterion for identifying the existence of a jurisdiction [27]. Parliament did not in section 31(7) or elsewhere in the Act make a change of circumstances a condition for the exercise of jurisdiction to vary a section 24A(1) order for sale. However, unless there has been a significant change of circumstances since the order was made, grounds for variation of it under section 31 seem hard to conceive [15]. The court remits to HHJ Waller the inquiry into whether the courts jurisdiction to vary the undertaking should be exercised. In light of the equivalence of the wifes undertaking with a section 24A order for sale, his inquiry will be conducted in accordance with section 31(7) of the Act. He will give first consideration to the welfare of the two children; but it is a consideration which may be outweighed by other factors. He will have regard to all relevant circumstances including in particular, whether the wife can establish a significant change of circumstances since her undertaking was given and whether, and if so to what extent, the husband has suffered, and is likely to continue to suffer, prejudice by remaining liable under his mortgage covenants [29]. If the court finds that the husband has suffered, and/or would be likely to suffer, prejudice as a result of delay in selling the home, the court might favour compensating him by asking the wife to make provision for him out of the ultimate net proceeds as a condition of release [30]. Lord Hughes gives a dissenting judgment, not on the existence of the jurisdiction to vary a section 24A order for sale, or its equivalent achieved via an undertaking, but on the principles for its exercise. It must be kept in mind that the section 24A order is ancillary to a capital order and that final capital orders cannot be varied in their substance (whether or not there is a change of circumstances). Lord Hughes states that the acid test should be whether the application is in substance (impermissibly) to vary or alter the final order or whether it is (permissibly) to support it by working out how it should be carried into effect [54]. The application in the present case is one which attempts to vary, not to carry into effect, the originally agreed and court endorsed order and therefore the Court of Appeal was right to hold that it was bound to fail [57]. Lord Hughes would dismiss the appeal [58].
This appeal raises two issues relating to the deportation of foreign criminals as defined in the UK Borders Act 2007. The first concerns the significance of sections 32 and 33 of that Act in appeals relating to deportation which are based on article 8 of the European Convention on Human Rights. The second concerns the significance, in the same context, of changes to the Immigration Rules which came into effect in July 2012. The statutory framework It is convenient to begin by considering the principal elements of the legislative framework, as it stood at the time of the events with which this appeal is concerned. It is unnecessary to consider more recent amendments to the legislation, including those effected by the Immigration Act 2014. The Immigration Act 1971 Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation from the United Kingdom if (a) the Secretary of State deems his deportation to be conducive to the public good, or (b) another person to whose family he belongs is or has been ordered to be deported. Section 3(6) provides that, without prejudice to the operation of section 3(5), a person who is not a British citizen shall also be liable to deportation if, after he has attained the age of 17, he is convicted of an offence for which he is punishable by imprisonment and on his conviction is recommended for deportation by a court empowered by the Act to do so. Section 5(1) provides that, where a person is liable to deportation under section 3(5) or (6), the Secretary of State may make a deportation order against him. A deportation order is defined as an order requiring the person to leave and prohibiting him from entering the UK. Section 5(5) gives effect to the provisions of Schedule 3 with respect to the removal from the United Kingdom of persons against whom deportation orders are in force. In particular, paragraph 1 of Schedule 3 provides that, where a deportation order is in force against any person, the Secretary of State may give directions for his removal to a country or territory specified in the directions. The Nationality, Immigration and Asylum Act 2002 Section 82(1) of the Nationality, Immigration and Asylum Act 2002 provides a right of appeal to the First tier Tribunal against an immigration decision. That expression is defined by section 82(2), and includes a decision to make a deportation order under section 5(1) of the 1971 Act (section 82(2)(j)). The giving of removal directions under Schedule 3 to the 1971 Act, following the making of a deportation order, is not an immigration decision, and is therefore not subject to appeal. In terms of section 82(3A) of the 2002 Act (as inserted by section 35(3) of the UK Borders Act 2007), section 82(2)(j) does not apply to a decision to make a deportation order which states that it is made in accordance with section 32(5) of the 2007 Act (to which it will be necessary to return). However, section 82(3A)(a) provides that a decision that section 32(5) applies is itself an immigration decision, with the consequence that an appeal lies under section 82(1). The grounds on which an appeal can be brought under section 82(1) are set out in section 84(1). So far as material, they are: that the decision is not in accordance with immigration (a) rules . (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellants Convention rights . (e) law; (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. that the decision is otherwise not in accordance with the On an appeal, the tribunals task is not merely to review the decision made by the Secretary of State. It reaches its decision after hearing evidence, and on the basis of its own findings as to the facts. Under section 86(3), it is required to allow the appeal in so far as it thinks that: (a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or a discretion exercised in making a decision against (b) which the appeal is brought or is treated as being brought should have been exercised differently. An appeal against a decision of the First tier Tribunal lies to the Upper Tribunal, on a point of law, under section 11 of the Tribunals, Courts and Enforcement Act 2007. A further appeal lies under that Act to the Court of Appeal, or the equivalent courts in Scotland and Northern Ireland, and ultimately to the Supreme Court. The UK Borders Act 2007 Section 32(4) of the 2007 Act provides that, for the purposes of section 3(5)(a) of the 1971 Act, the deportation of a foreign criminal is conducive to the public good. The liability of foreign criminals to deportation, under section 3(5)(a) of the 1971 Act, does not therefore depend on any assessment by the Secretary of State: it is automatic. The expression foreign criminal is defined by section 32(1) of the 2007 Act as meaning a person who is not a British citizen, who is convicted in the United Kingdom of an offence, and to whom one of the conditions in section 32(2) and (3) applies. The first of those conditions is that the person is sentenced to a period of imprisonment of at least 12 months. The second is that the offence is specified by an order made by the Secretary of State, and the person is sentenced to a period of imprisonment. No such order has yet been made. Section 32(5) provides that the Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). Section 33 provides, so far as material: (1) Section 32(4) and (5) (a) do not apply where an exception in this section applies (subject to subsection (7) below) . (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach a persons Convention rights, or the United Kingdoms obligations under the (a) (b) Refugee Convention . (7) The application of an exception (a) does not prevent the making of a deportation order; (b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good; but section 32(4) applies despite the application of Exception 1 or 4. It follows from the concluding words of section 33(7) that the fact that the removal of a foreign criminal would breach his Convention rights does not affect the application of section 32(4), in terms of which his deportation is conducive to the public good. Nor does it prevent the making of a deportation order. On the other hand, it results in the disapplication of section 32(5) of the 2007 Act. Parliament made that clear in section 33(2)(a), read with section 33(1)(a). The Secretary of State is therefore under no duty to make a deportation order. It may seem puzzling that a person may be liable to deportation even when he cannot be deported, but a possible explanation is that the circumstances which may render deportation incompatible with the Convention can be temporary. For example, the risk of a breach of article 3 in the country to which the person would be deported may disappear following a change of regime, or be removed as a result of negotiated guarantees. Section 32(4) keeps open the possibility of automatic deportation under section 32(5) in the event of a material change of circumstances. If the Secretary of State accepts that removal would breach a foreign criminals Convention rights, then she will not make a deportation order: the Immigration Rules have stated since October 2000 that a deportation order will not be made if the persons removal pursuant to the order would be contrary to the UKs obligations under the Convention. If, on the other hand, the Secretary of State rejects a claim that removal would breach the foreign criminals Convention rights, she must decide to make a deportation order as required by section 32(5). As explained earlier, an appeal lies under section 82(1) and (3A) of the 2002 Act against the decision that section 32(5) applies, on the ground that the decision, or removal, is unlawful under section 6 of the Human Rights Act 1998, or on the ground that the decision is not in accordance with immigration rules, or is otherwise not in accordance with the law. Sections 32 and 33 were enacted in response to Parliamentary and public concern about failures to deport large numbers of foreign citizens who had committed serious offences in the UK, due partly to the practices followed by the Home Office at that time (under which there was not, until July 2006, any presumption in favour of deportation), and partly to delays and uncertainty affecting the procedures for deportation. The level of that concern, and the justification for it, are apparent from the documents forming the background to the 2007 Act: see, in particular, Immigration Control, House of Commons Home Affairs Committee, Fifth Report for 2005 06, HC 775 I, paras 516 535, and Fair, effective, transparent and trusted: Rebuilding confidence in our immigration system, Home Office, July 2006. (One might observe, in parenthesis, that the present appeal illustrates the extent to which delays and uncertainty continue to affect the system: a deportation order was made in 2010, and the appeal proceedings have not yet been completed). Sections 32 and 33 make clear Parliaments view that there is a strong public interest in the deportation of foreign nationals who have committed serious offences, and that the procedures for their deportation should be expeditious and effective. The strength of that public interest is reflected in Laws LJs observation that for a claim under article 8 of the ECHR to prevail, it must be a very strong claim indeed: SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550; [2014] 1 WLR 998, para 54. The Immigration Rules Decision making in relation to immigration and deportation is not exhaustively regulated by legislation. It also involves the exercise of discretion, and the making of evaluative judgments, by the Secretary of State and her officials. A perennial challenge, in such a situation, is to achieve consistency in decision making while reaching decisions which are appropriate to the case in hand. The solution generally lies in the adoption of administrative policies to guide decision making: something which the courts have accepted is legitimate, provided two general requirements are met. First, discretionary powers must be exercised in accordance with any policy or guidance indicated by Parliament in the relevant legislation: Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. In relation to the deportation of foreign offenders, the relevant legislation includes sections 32 and 33 of the 2007 Act. Secondly, decision makers should not shut their ears to claims falling outside the policies they have adopted: British Oxygen Co Ltd v Minister of Technology [1971] AC 610). As Lord Reid observed in that case at p 625, there may not be any great difference between a policy and a rule: some policies may constitute more or less flexible guidance, but others may be more formal and prescriptive. The Immigration Rules are an example of policies of the latter kind. They are unusual in having a statutory basis, in requiring the approbation of Parliament, and in being published as House of Commons papers. Section 1(4) of the 1971 Act refers to 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. Section 3(2) requires the Secretary of State to lay before Parliament statements of the rules, or 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. As was said in R (Munir) v Secretary of State for the Home Department [2012] UKSC 32; [2012] 1 WLR 2192, para 29, the point of this provision is to give Parliament a degree of control over the practice to be followed by the Secretary of State in the administration of the 1971 Act for regulating immigration control. The Rules are not law (although they are treated as if they were law for the purposes of section 86(3)(a) of the 2002 Act: see para 8 above), but a statement of the Secretary of States administrative practice: see Odelola v Secretary of State for the Home Department [2009] UKHL 25; [2009] 1 WLR 1230, paras 6 and 7; Munir, para 37; Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48, para 10; R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2011] UKSC 45; [2012] 1 AC 621, para 61; and R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33; [2012] 1 WLR 2208, paras 32 and 33. They do not therefore possess the same degree of democratic legitimacy as legislation made by Parliament: Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, para 17. Nevertheless, they give effect to the policy of the Secretary of State, who has been entrusted by Parliament with responsibility for immigration control and is accountable to Parliament for her discharge of her responsibilities in this vital area. Furthermore, they are laid before Parliament, may be the subject of debate, and can be disapproved under the negative resolution procedure. They are therefore made in the exercise of powers which have been democratically conferred, and are subject, albeit to a limited extent, to democratic procedures of accountability. The Secretary of State has a wide residual power under the 1971 Act to grant leave to enter or remain in the UK even where leave would not be given under the Rules: Munir, para 44. The manner in which that power should be exercised is not, by its very nature, governed by the Rules. There is a duty to exercise the power where a failure to do so is incompatible with Convention rights, by virtue of section 6 of the Human Rights Act 1998. The July 2012 changes to the Rules Prior to July 2012, the Rules did not specifically address the requirements of article 8. From October 2000 onwards, rule 2 instructed the relevant officials to carry out their duties in compliance with the provisions of the Human Rights Act 1998. There were also specific rules dealing with deportation, which set out in rule 364 a non exhaustive list of factors to be taken into account, and provided in rule 380 that a deportation order would not be made if removal would be contrary to the UKs obligations under the Refugee Convention or the ECHR. With effect from July 2006, rule 364 was amended so as to provide that, subject to rule 380, where a person was liable to deportation the presumption should be that the public interest required deportation. All relevant factors were to be taken into account in considering whether the presumption was outweighed in any particular case, but it was said that it would only be in exceptional circumstances that the public interest in deportation would be outweighed in a case where it would not be contrary to the ECHR or the Refugee Convention to deport. Rule 364A, introduced after the enactment of the 2007 Act, disapplied rule 364 where section 32(5) of that Act applied. On 13 June 2012 the Secretary of State laid before Parliament a Statement of Changes in Immigration Rules (HC 194), which (so far as material) deleted a number of the previous rules, including rules 364, 364A and 380, and inserted a number of new rules (which will be referred to as the new rules). The new rules were formally made under the negative resolution procedure, and came into force on 9 July 2012. There was also a debate in the House of Commons on 19 June 2012, in which the changes to the Rules were discussed, on a motion that this House supports the Government in recognising that the right to respect for family or private life in article 8 of the European Convention on Human Rights is a qualified right and agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules. The motion was agreed without a vote (Hansard (HC Debates) 19 June 2012, cols 760 823). It is apparent from the documents which accompanied the Statement of Changes that the changes to the Rules were intended to promote consistency, predictability and transparency in decision making where issues under article 8 arose, and to clarify the policy framework. The changes were said to reflect the Governments and Parliaments view of how, as a matter of public policy, the balance should be struck between the right to respect for private and family life and the public interest in public safety by protecting the public from foreign criminals: Statement of Intent: Family Migration, Home Office, June 2012, para 33. The changes were also intended to align the Rules with the body of case law concerning article 8, and in particular to reflect a consideration of the proportionality of deportation in accordance with article 8: paras 36 38. In relation to the deportation of foreign offenders, in particular, it was explained in the Statement of Intent that the Secretary of State considered that there were some offenders who should almost always be removed because of the seriousness of their crime and the overwhelming public interest in their deportation, despite their family or private life in the UK, and some other offenders who should normally be deported but who might be able to argue in individual cases that their family or private life outweighed the public interest in deportation. There were also cases where the level of criminality was below the automatic deportation threshold, but the offending was so harmful or persistent that deportation would normally be proportionate. The Government believed that a custodial sentence of four years or more represented such a serious level of offending that it would almost always be proportionate that it should outweigh private or family life, even taking into account that the best interests of a child were a primary consideration. Deportation would normally be proportionate where the foreign offender had received a sentence of between 12 months and four years, or where the sentence was of less than 12 months but, in the view of the Secretary of State, the offending had caused serious harm or the person was a persistent offender who showed a particular disregard for the law. Deportation would not, however, be proportionate if the offender had a parental relationship in the UK with a child who was a British citizen or had lived in the UK for the last seven years, the child could not reasonably be expected to leave the UK, and there was no other family member able to care for the child in the UK. Nor would it be proportionate if the offender had a relationship with a partner in the UK who was a British citizen or was in the UK with refugee leave or humanitarian protection, the offender had lived in the UK with valid leave for the last 15 years, and there were insurmountable obstacles to family life with the partner continuing overseas. Nor would it be proportionate if the offender had been continuously resident in the UK for the last 20 years, or was aged under 25 and had spent at least half his life in the UK, and in either case had no ties with his country of origin. Those policies were given effect by the new rules, which provide: 396. Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007. 397. A deportation order will not be made if the persons removal pursuant to the order would be contrary to the UKs obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed. 398. Where a person claims that their deportation would be contrary to the UKs obligations under article 8 of the Human Rights Convention, and the deportation of the person from the UK is (a) conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least four years; the deportation of the person from the UK is (b) conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than four years but at least 12 months; or (c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors. 399. This paragraph applies where paragraph 398(b) or (c) applies if (a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and (i) the child is a British Citizen; or (ii) the child has lived in the UK continuously for at least the seven years immediately preceding the date of the immigration decision; and in either case (a) it would not be reasonable to expect the child to leave the UK; and there is no other family member (b) who is able to care for the child in the UK; or (b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and (i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the the date of immigration decision (discounting any period of imprisonment); and there are insurmountable obstacles to (ii) family life with that partner continuing outside the UK. 399A. This paragraph applies where paragraph 398(b) or (c) applies if the person has lived continuously in the UK for (a) at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or (b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK. The Strasbourg jurisprudence The Human Rights Act 1998 requires public authorities to act compatibly with Convention rights, and requires courts or tribunals to take into account the case law of the European Court of Human Rights. The Convention rights 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 wellbeing 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 question whether the deportation of a foreign offender would be incompatible with article 8 has been considered by the European court in numerous judgments. In cases concerning settled migrants, that is to say persons who have been granted a right of residence in the host country, the court has accepted that the withdrawal of that right may constitute an interference with the right to respect for private and/or family life within the meaning of article 8. If there is an interference, it must be justified under article 8(2) as being in accordance with the law, as pursuing one or more of the legitimate aims set out in that paragraph, and as being necessary in a democratic society, that is to say justified by a pressing social need and proportionate to the legitimate aim pursued. The court has treated the legitimate aim pursued by deportation, on the basis of a persons conviction of a criminal offence, as the prevention of disorder or crime (although there are also a small number of cases in which public safety has been accepted to be an additional aim): see, for example, AA v United Kingdom [2012] Imm AR 107, paras 53 54. In practice, the critical issue is generally whether the necessity test is met. In that regard, the court has often said that the task of the court or tribunal applying article 8(2) consists in ascertaining whether the decision struck a fair balance between the relevant interests, namely the applicant's right to respect for his private and family life, on the one hand, and the prevention of disorder or crime, on the other. In a well known series of judgments the court has set out the guiding principles which it applies when assessing the likelihood that the deportation of a settled migrant would interfere with family life and, if so, its proportionality to the legitimate aim pursued. In Boultif v Switzerland (2001) 33 EHRR 50, para 48, the court said that it would consider the nature and seriousness of the offence committed by the applicant; the length of the applicants stay in the country from which he or she is to be expelled; the time elapsed since the offence was committed and the applicants conduct during that period; the nationalities of the various persons concerned; the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couples family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; whether there are children of the marriage, and if so, their age; and the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled. Two further factors were mentioned in ner v Netherlands (2006) 45 EHRR 14, para 58: the best interests and well being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and the solidity of the social, cultural and family ties with the host country and with the country of destination. In Maslov v Austria [2009] INLR 47, paras 72 75, the court added that the age of the person concerned can play a role when applying some of these criteria. For instance, when assessing the nature and seriousness of the offences, it has to be taken into account whether the person committed them as a juvenile or as an adult. Equally, when assessing the length of the person's stay in the country from which he or she is to be expelled and the solidity of the social, cultural and family ties with the host country, it makes a difference whether the person came to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult. Some of the factors listed in these cases relate to the strength of the public interest in deportation: that is to say, the extent to which the deportation of the person concerned will promote the legitimate aim pursued. Others relate to the strength of the countervailing interests in private and family life. They are not exhaustive. As the Grand Chamber noted in Jeunesse v Netherlands (2014) 60 EHRR 17, para 105, these criteria cannot be transposed automatically to the situation of a person who is not a settled migrant but an alien seeking admission to a host country: a category which includes, as the facts of that case demonstrate, a person who has been unlawfully resident in the host country for many years. The court analysed the situation of such a person, facing expulsion for reasons of immigration control rather than deportation on account of criminal behaviour, as raising the question whether the authorities of the host country were under a duty, pursuant to article 8, to grant the person the necessary permission to enable her to exercise her right to family life on their territory. The situation was thus analysed not as one in which the host country was interfering with the persons right to respect for her private and family life, raising the question whether the interference was justified under article 8(2). Instead, the situation was analysed as one in which the person was effectively asserting that her right to respect for her private and family life, under article 8(1), imposed on the host country an obligation to permit her to continue to reside there, and the question was whether such an obligation was indeed imposed. In addition to identifying the issue in Jeunesse as concerning a positive obligation under article 8(1) rather than a negative obligation under article 8(2), the court also identified a number of factors as being relevant: factors which overlapped with those mentioned in the Boultif line of cases, but were also different in some respects. Factors to be taken into account were said in Jeunesse to include the extent to which family life would effectively be ruptured, the extent of the ties in the contracting state, whether there were insurmountable obstacles (or, as it has been put in some other cases, major impediments: see, for example, Tuquabo Tekle v Netherlands [2006] 1 FLR 798, para 48, and IAA v United Kingdom (2016) 62 EHRR SE 19, paras 40 and 44) in the way of the family living in the country of origin of the alien concerned, and whether there were factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (para 107). Another important consideration was said to be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious. Where this is the case, the court has said that it is likely only to be in exceptional circumstances that the removal of the non national family member will constitute a violation of article 8 (Jeunesse, para 108). The court has found there to be exceptional circumstances in situations where, notwithstanding the importance of that consideration, removal failed to strike a fair balance between the competing interests involved. In the Jeunesse case, for example, a prolonged delay in removing the applicant from the host country, during which time she had developed strong family and social ties there, constituted exceptional circumstances leading to the conclusion that a fair balance had not been struck (paras 121 122). Where children are involved, their best interests are said by the court to be of paramount importance (by which it does not mean to say that they are determinative: see Jeunesse, para 109). Whilst alone they cannot be decisive, they must be afforded significant weight. Accordingly, national decision making bodies should in principle advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it (Jeunesse, paras 108 109). Counsel for the Secretary of State submitted in the appeal against the decision of the Court of Appeal in Agyarko v Secretary of State for the Home Department [2015] EWCA Civ 440; [2016] 1 WLR 390, heard after the present appeal, that in the light of this approach, the deportation of a foreign criminal unlawfully resident in the UK should similarly be analysed as raising the question whether the state is under a positive obligation to permit him to remain in the UK, applying the Jeunesse criteria, rather than whether his deportation can be justified under article 8(2), applying the Boultif criteria. The court was asked to treat those submissions as applying to the present case, and agreed to do so, counsel for the appellant being given an opportunity to respond in writing. Considering first the question whether a positive or a negative obligation is in issue, liability to automatic deportation under section 32(5) of the 2007 Act is distinct from the regime governing admission to the UK. The aim pursued is more specific than the wider social and economic aims pursued by controls on admission. Nevertheless, it is a measure of immigration control, in that it involves the use of the instruments of immigration control to enforce the expectation that foreign citizens living in the UK should respect the criminal law, and risk having their right to stay withdrawn or denied if they fail to do so. Those foreign criminals who are residing in the UK unlawfully, and who resist their deportation on the basis of article 8, are in substance asserting that their right under article 8 to respect for their private and family life imposes on the UK an obligation to permit them to continue to reside here. They are, in that respect, in a similar position to the applicants in cases such as Jeunesse. Whether the situation is analysed in terms of positive or negative obligations is, however, unlikely to be of substantial importance. Whether the person concerned enjoys private or family life in the UK depends on the facts relating to his relationships with others: whether, for example, he is married or has children. Where he does enjoy private or family life in the UK, he has a right under article 8 to respect for that life, whatever his immigration status may be (although that status may greatly affect the weight to be given to his article 8 right, as Jeunesse makes clear). Whether one poses the question whether, striking a fair balance between the interests of the individual in his private or family life and the competing interests of the community as a whole, his right to respect for his private and family life entails an obligation on the part of the state to permit him to remain in the UK; or whether, striking a fair balance between the same competing interests, his deportation would be a disproportionate interference, one is asking essentially the same question. It is true, as counsel pointed out, that the onus is on the state to justify an interference, whereas there is no such onus on the state to demonstrate the absence of a positive obligation, but questions of onus are unlikely to be important where the relevant facts have been established. Ultimately, whether the case is considered to concern a positive or a negative obligation, the question is whether a fair balance has been struck. Considering next the factors which should be taken into account, those mentioned in the Boultif line of cases have a bearing on the proportionality of the deportation of foreign offenders, whether they are settled migrants or not. Where they are not settled migrants, it will also be necessary to have regard to the factors mentioned in Jeunesse, so far as relevant and not already taken into account: notably, whether there are insurmountable obstacles or major impediments in the way of the family living in the country of origin of the alien concerned; whether there are factors of immigration control, such as a history of breaches of immigration law; and whether the family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious. Those factors were mentioned in Jeunesse in a context where family life was relied on to defeat immigration control at the point of admission to the host country. But it is also relevant to consider, in the context of liability to deportation because of criminal behaviour, whether the offender has a bad immigration history, or whether there are major impediments to continuing family life in his country of origin, or whether family life was established in the knowledge that, because of the immigration status of one of the persons involved, its continuation in the UK was uncertain. If that were not so, the perverse consequence would follow that these matters would be liable to carry greater weight if a non offender were sought to be removed on account of his irregular immigration status than if an offender with the same immigration status were sought to be removed on account of serious criminal conduct. It is, however, necessary to bear in mind that whether the continuation of family life in the UK is uncertain may be a more complex question than it might appear at first sight. For example, where a person was residing in the UK unlawfully at the time when the relationship was formed, but would have been permitted to reside here lawfully if an application were made from outside the UK, the latter point should be taken into account. That example illustrates how the distinction between settled migrants and aliens residing in the host country unlawfully may be, in some situations, of limited practical importance when translated into the context of UK immigration law (see, for example, Chikwamba v Secretary of State for the Home Department [2008] UKHL 40; [2008] 1 WLR 1420). While the European court has provided guidance as to factors which should be taken into account, it has acknowledged that the weight to be attached to the competing considerations, in striking a fair balance, falls within the margin of appreciation of the national authorities, subject to supervision at the European level. The ECHR can thus accommodate, within limits, the judgments made by national legislatures and governments in this area. Administrative decision making Considering the new rules in the light of the guidance given by the European court, rule 397 makes it clear that a deportation order is not to be made if the persons removal would be incompatible with the ECHR. Where article 8 claims are made by foreign offenders facing deportation, rule 398 explains that the Secretary of State will first consider whether rule 399 or 399A applies. Those rules, applicable where offenders have received sentences of between 12 months and four years, provide guidance to officials as to categories of case where it is accepted by the Secretary of State that deportation would be disproportionate. The fact that a claim under article 8 falls outside rules 399 and 399A does not, however, mean that it is necessarily to be rejected. That is recognised by the concluding words of rule 398, which make it clear that a claim that deportation would be contrary to article 8 will not be rejected merely because rules 399 and 399A do not apply, but that it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors. How is the reference in rule 398 to exceptional circumstances to be understood, compatibly with Convention rights? That question was considered in the case of MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544. The Court of Appeal accepted the submission made on behalf of the Secretary of State that the reference to exceptional circumstances (an expression which had been derived from the Jeunesse line of case law) served the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who did not satisfy rules 398 and 399 or 399A, and that it was only exceptionally that such foreign criminals would succeed in showing that their rights under article 8 trumped the public interest in their deportation (paras 40 and 41). The court went on to explain that this did not mean that a test of exceptionality was being applied. Rather, the word exceptional denoted a departure from a general rule: The general rule in the present context is that, in the case of a foreign prisoner (sic) to whom paragraphs 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the exceptional circumstances. (para 43) The court added that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence (para 44). As explained in the next paragraph, those dicta summarise the effect of the new rules, construed compatibly with Convention rights. The implication of the new rules is that rules 399 and 399A identify particular categories of case in which the Secretary of State accepts that the public interest in the deportation of the offender is outweighed under article 8 by countervailing factors. Cases not covered by those rules (that is to say, foreign offenders who have received sentences of at least four years, or who have received sentences of between 12 months and four years but whose private or family life does not meet the requirements of rules 399 and 399A) will be dealt with on the basis that great weight should generally be given to the public interest in the deportation of such offenders, but that it can be outweighed, applying a proportionality test, by very compelling circumstances: in other words, by a very strong claim indeed, as Laws LJ put it in SS (Nigeria). The countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of such offenders, as assessed by Parliament and the Secretary of State. The Strasbourg jurisprudence indicates relevant factors to consider, and rules 399 and 399A provide an indication of the sorts of matters which the Secretary of State regards as very compelling. As explained at para 26 above, they can include factors bearing on the weight of the public interest in the deportation of the particular offender, such as his conduct since the offence was committed, as well as factors relating to his private or family life. Cases falling within the scope of section 32 of the 2007 Act in which the public interest in deportation is outweighed, other than those specified in the new rules themselves, are likely to be a very small minority (particularly in non settled cases). They need not necessarily involve any circumstance which is exceptional in the sense of being extraordinary (as counsel for the Secretary of State accepted, consistently with Huang [2007] 2 AC 167, para 20), but they can be said to involve exceptional circumstances in the sense that they involve a departure from the general rule. Appellate decision making The nature of appellate decision making in the context of immigration cases involving article 8 was authoritatively considered in the case of Huang. The appellants in that case had entered the UK and were seeking leave to remain on the basis that their removal would violate their rights under article 8. They did not qualify for leave to remain under the Rules as they then stood. The opinion of the Appellate Committee, delivered by Lord Bingham of Cornhill, made five important points. First, Lord Bingham recognised the importance of the Rules for administrative purposes, noting 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 (para 16). He acknowledged that the Rules, and the supplementary administrative directions, must draw a line somewhere in order to be administratively workable. The rule under which Mrs Huang failed to qualify was unobjectionable. Secondly, appellate decision making was not governed by the Rules, but the Rules were nevertheless relevant to the determination of appeals: [A]n applicants 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. (para 6) Thirdly, an appeal under the 2002 Act was not equivalent to an application for judicial review: [T]he task of the appellate immigration authority is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful. It is not a secondary, reviewing, function dependent on establishing that the primary decision maker misdirected himself or acted irrationally or was guilty of procedural impropriety. The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it . [T]he appellate immigration authority . is not reviewing the decision of another decision maker. It is deciding whether or not it is unlawful to refuse leave to enter or remain, and it is doing so on the basis of up to date facts. (paras 11 and 13) Fourthly, the first task of the appellate immigration authority was to establish the relevant facts, which might well have changed since the original decision was made, and which the authority was in any event much better placed to assess than the original decision maker (para 15). Fifthly, in considering the issue arising under article 8 in the light of its findings of fact, the appellate authority should give appropriate weight to the reasons relied on by the Secretary of State to justify the decision under appeal. In that connection, Lord Bingham gave as examples a case where attention was paid to the Secretary of States judgment that the probability of deportation if a serious offence was committed had a general deterrent effect, and another case where weight was given to the Secretary of States judgment that the appellant posed a threat to public order. He continued: The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision maker is likely to proceed. (para 16) It may be helpful to say more about this point. Where an appellate court or tribunal has to reach its own decision, after hearing evidence, it does not, in general, simply start afresh and disregard the decision under appeal. That was made clear in Sagnata Investments Ltd v Norwich Corpn [1971] 2 QB 614, concerned with an appeal to quarter sessions against a licensing decision taken by a local authority. In a more recent licensing case, R (Hope & Glory Public House Ltd) v City of Westminster Magistrates Court [2011] PTSR 868, para 45, Toulson LJ put the matter in this way: It is right in all cases that the magistrates court should pay careful attention to the reasons given by the licensing authority for arriving at the decision under appeal, bearing in mind that Parliament has chosen to place responsibility for making such decisions on local authorities. The weight which magistrates should ultimately attach to those reasons must be a matter for their judgment in all the circumstances, taking into account the fullness and clarity of the reasons, the nature of the issues and the evidence given on the appeal. These observations apply a fortiori to tribunals hearing appeals against deportation decisions. The special feature in that context is that the decision under review has involved the application of rules which have been made by the Secretary of State in the exercise of a responsibility entrusted to her by Parliament, and which Parliament has approved. It is the duty of appellate tribunals, as independent judicial bodies, to make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law. But, where the Secretary of State has adopted a policy based on a general assessment of proportionality, as in the present case, they should attach considerable weight to that assessment: in particular, that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offenders deportation almost always outweighs countervailing considerations of private or family life; that great weight should generally be given to the public interest in the deportation of a foreign offender who has received a custodial sentence of more than 12 months; and that, where the circumstances do not fall within rules 399 or 399A, the public interest in the deportation of such offenders can generally be outweighed only by countervailing factors which are very compelling, as explained in paras 37 38 above. The approach adopted in Huang has been followed in later decisions of the House of Lords and of this court, including EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] AC 1159, Zoumbas v Secretary of State for the Home Department [2013] UKSC 74; [2013] 1 WLR 3690, and R (Bibi) v Secretary of State for the Home Department [2015] UKSC 58; [2015] 1 WLR 5055. The latter case is particularly relevant for its consideration of the case of Jeunesse. In her judgment, Lady Hale noted the distinction drawn by the European Court between cases where lawfully settled migrants are facing deportation or expulsion, and cases where an alien is seeking admission to a host country. She also noted that, although the criteria developed in the first context cannot be transposed automatically into the second, the applicable principles are nonetheless similar. She went on at para 29 to state that, although Strasbourg analysed cases in the second category in terms of a fair balance, domestic courts had, at least since Huang, applied the proportionality approach described in Aguilar Quila. That approach was criticised by counsel for the Secretary of State in the present case as being premised on the assumption that there was an interference with the right to respect for private and family life, whereas in cases where the individual was not lawfully resident in the UK the issue was whether the right gave rise to a positive obligation. The structured approach to proportionality which has been adopted in the domestic law of the UK makes provision for consideration of the elements involved in an assessment of fair balance in the context of immigration and deportation, whether the assessment arises in relation to a potential positive obligation or in relation to an interference. It can be said that the first of the four stages of the analysis, as described in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700, para 74 (whether the objective of the measure is sufficiently important to justify the limitation of a protected right), and in similar language in Aguilar Quila and other cases, is not entirely apt where the question is whether a positive obligation is imposed, since the language used presumes that the right in question is being limited. But the point is of no practical importance where, as in the context of immigration and deportation, there is no doubt as to the importance of the objective. What has now become the established method of analysis can therefore continue to be followed in this context. The adoption of that method does not, of course, determine the outcome of the assessment. It is necessary to feed into the analysis the facts of the particular case and the criteria which are appropriate to the context, and, where a court is reviewing the decision of another authority, to give such weight to the judgment of that authority as may be appropriate. In that way, relevant differences between, for example, cases where lawfully settled migrants are facing deportation or expulsion, and cases where an alien is seeking admission to a host country, can be taken into account. In summary, therefore, the tribunal carries out its task on the basis of the facts as it finds them to be on the evidence before it, and the law as established by statute and case law. Ultimately, it has to decide whether deportation is proportionate in the particular case before it, balancing the strength of the public interest in the deportation of the offender against the impact on private and family life. In doing so, it should give appropriate weight to Parliaments and the Secretary of States assessments of the strength of the general public interest in the deportation of foreign offenders, as explained in paras 14, 37 38 and 46 above, and also consider all factors relevant to the specific case in question. The critical issue for the tribunal will generally be whether, giving due weight to the strength of the public interest in the deportation of the offender in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed very compelling, as it was put in MF (Nigeria) will succeed. A complete code? In MF (Nigeria) [2014] 1 WLR 544 the Court of Appeal described the new rules set out in para 23 above as a complete code for article 8 claims (para 44). That expression reflected the view that the concluding words of rule 398 required the application of a proportionality test in accordance with the Strasbourg jurisprudence, taking into account all the article 8 criteria and all other factors which were relevant to proportionality (para 39). On that basis, the court commented that the result should be the same whether the proportionality assessment was carried out within or outside the new rules: it was a sterile question whether it was required by the rules or by the general law (para 45). The idea that the new rules comprise a complete code appears to have been mistakenly interpreted in some later cases as meaning that the Rules, and the Rules alone, govern appellate decision making. Dicta seemingly to that effect can be found, for example, in LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310; [2015] Imm AR 227, para 17, and AJ (Angola) v Secretary of State for the Home Department [2014] EWCA Civ 1636, para 39. As explained at para 17 above, the Rules are not law (although they are treated as law for the purposes of section 86(3)(a) of the 2002 Act), and therefore do not govern the determination of appeals, other than appeals brought on the ground that the decision is not in accordance with the Rules: see para 7 above. The policies adopted by the Secretary of State, and given effect by the Rules, are nevertheless a relevant and important consideration for tribunals determining appeals brought on Convention grounds, because they reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament. In particular, tribunals should accord respect to the Secretary of States assessment of the strength of the general public interest in the deportation of foreign offenders, and also consider all factors relevant to the specific case before them, as explained at paras 37 38, 46 and 50 above. It remains for them to judge whether, on the facts as they have found them, and giving due weight to the strength of the public interest in deportation in the case before them, the factors brought into account on the other side lead to the conclusion that deportation would be disproportionate. The present appeal The facts of the present appeal, as found by the Upper Tribunal, are as follows. The appellant is an Iraqi national. He left Iraq in 1988, at the age of 12. With the exception of a few visits prior to 2000, he has not lived there since then. He lived unlawfully in Jordan until 2000, when he was 24 years of age. He then entered the UK unlawfully, and has lived in the UK unlawfully ever since. No attempt appears to have been made to remove him as an illegal immigrant. In 2002 he applied for asylum, but his application was refused, and his appeal against that decision was unsuccessful. In November 2005 he was convicted of possession of class A and C drugs and was fined. He had a serious drugs problem at that time. In March 2006 he was arrested and later charged with two counts of possession of class A drugs (11.1 grams of cocaine and 59 tablets of ecstasy) with intent to supply. In December 2006 he pleaded guilty and was sentenced to four years imprisonment. In the meantime he had begun to address his drug taking. He was released from custody in January 2009. He had by then stopped taking drugs, and has remained drug free since then. When he completed his sentence, in January 2011, his probation officer reported that he had complied with his licence conditions and that he was considered to present a low risk of re conviction and a low risk of harm. In April 2014 he pleaded guilty to a count of driving while uninsured and with excessive alcohol in his system. He was fined and disqualified from driving for 12 months. He is not, and never has been, permitted to take employment in the UK. He has nevertheless worked in a variety of occupations. In February 2005 he began a relationship with a British woman, Ms Harwood, who has lived all her life in the UK. They have had periods of cohabitation but were no longer cohabiting at the time when the appellants appeal came before the Upper Tribunal. It is agreed that they nevertheless saw each other almost every day and spent most nights together. It is agreed that they wished to marry and have children. It is agreed that they have not done so as a result of the appellants immigration status, his inability to take lawful employment, and a lack of finances. The appellant is also the father of two children who probably reside in the UK, and who were born before he began his relationship with Ms Harwood. He has no contact with either child. He has no remaining family in Iraq. In September 2007 the Secretary of State notified the appellant that she was considering his immigration status and that he was liable to removal. In response, his solicitors made a fresh claim to the effect that he was at risk of ill treatment in Iraq, and that his deportation would also be contrary to article 8. In January 2008 the Secretary of State made a decision to make a deportation order, but in March 2008 withdrew that decision on the basis that the appellants nationality was unclear. In April 2008 a nationality interview was conducted. In January 2010 an asylum interview was conducted. On 5 October 2010 the Secretary of State decided to make a deportation order in respect of the appellant on the basis that section 32(5) of the 2007 Act applied to him. She found that he did not fall within any of the exceptions in section 33. She rejected his claim to be at risk in Iraq, and also rejected his claim under article 8. She found that he had failed to demonstrate that he was in a subsisting relationship with Ms Harwood, and that in any case the relationship, if it existed, had been entered into at a time when they should both have been aware that it might not be possible to continue it in the UK. She accepted that deportation might interfere with the appellants private life, but considered that this was proportionate to the aim of preventing disorder or crime and the maintenance of effective immigration control. Under the heading Proportionality, the decision letter stated that the reason why the interference with the appellants private life was not considered to be disproportionate was that: Although you have been resident in the United Kingdom for a number of years you spent your youth and formative years in Iraq. In view of this it is not considered unreasonable to expect you to be able to readjust to life in Iraq. The appellant appealed to the First tier Tribunal. On 10 February 2011 the appeal was dismissed. The appellant then appealed to the Upper Tribunal. On 16 March 2012, the decision of the First tier Tribunal was set aside. On 18 January 2013 the Upper Tribunal re heard the appeal. By that stage, the only remaining ground of appeal was that the appellants removal would breach the Refugee Convention and articles 3 and 8 of the ECHR. The new rules had by then come into force. On 11 February 2013 the Upper Tribunal allowed the appeal on the ground that the appellants removal would be incompatible with article 8. The judge found that the appellant was not a danger to the community: his last offence (at that time) had been almost seven years earlier, in March 2006. He had put drug taking behind him. His relationship with Ms Harwood was genuine, and she could not reasonably be expected to live in Iraq. The judge identified the central issue as being whether the interference with private and family life which would result from the appellants removal to Iraq was proportionate to the proper purpose of deporting foreign criminals for the purpose of the prevention of disorder or crime. He acknowledged that the appellant had committed very serious offences, but concluded that the period of time which had elapsed since the appellants last offence, the unlikelihood of his committing further offences, the strength of his relationship with Ms Harwood, and the weakness of the appellants current links with Iraq, were in combination compelling, so that deportation would be disproportionate. In reaching that conclusion, he explained that he accepted that there was an interest in the appellants being removed: Parliament had said so in section 32(4) of the 2007 Act. The judge explained that he had not had regard to the new rules, stating that the Rules did not assist him with the proper application of the appellants human rights. For the reasons explained earlier, they were a relevant and important consideration. He also does not appear to have taken account of the fact that the appellants relationship with Ms Harwood had been formed at a time when his immigration status was such that the persistence of family life within the UK was uncertain. As was explained earlier, that also was an important consideration. The judge noted in his summary of the evidence that the appellant and Ms Harwood had acknowledged these circumstances, but they were not mentioned in the reasons which he gave for his decision. The Secretary of State then appealed to the Court of Appeal on the grounds that the Upper Tribunal had erred (i) in failing to consider the new rules, (ii) in failing to recognise the importance of the public interest in deporting foreign criminals, (iii) in failing properly to apply the guidance established in ner, and (iv) in allowing the appeal in circumstances in which no reasonable tribunal could have done so. On 22 July 2014 the Court of Appeal (Sullivan, Black and Richards LJJ) [2015] Imm AR 207 allowed the appeal on grounds (i) and (ii). The court found it unnecessary to consider grounds (iii) and (iv), and remitted the appeal for re consideration by a differently constituted Upper Tribunal. In relation to grounds (i) and (ii), the Court of Appeal proceeded on the basis, at para 27, that the new rules tell the decision taker what weight they should give to the public interest in deporting foreign criminals. As counsel for the appellant submitted, that might be understood as meaning that the Rules determined the weight which tribunals must give to the public interest in deportation in all cases. For the reasons already explained, that would be an overstatement of the significance of the new rules to appellate decision making by tribunals. That does not, however, undermine the courts conclusion. As explained above, the reasoning of the Upper Tribunal failed to take any account of the new rules, and also failed to take account of the important fact that the appellants family life had been established when his immigration status was known to be precarious. In addition, no assessment of the compatibility of removal with article 8 has been carried out by reference to the facts currently known, as distinct from those which were known at the time of the hearing before the Upper Tribunal (AA v United Kingdom [2012] Imm AR 107, para 67). In the circumstances, it is appropriate that the appeal should be remitted for reconsideration, as the Court of Appeal ordered. This court should therefore forbear from further comment on the merits of the appeal. Conclusion For these reasons, I would dismiss the appeal against the decision of the Court of Appeal, and remit the appeal against the decision of the Secretary of State for reconsideration by a differently constituted Upper Tribunal. LORD WILSON: This is an important day in the life of our court. For it is the first occasion upon which either we or our predecessors in the House of Lords have had occasion to address the interface between the power of the Secretary of State to deport a foreign criminal and the latters ability to resist deportation by reference to his right to respect for his family or private life under article 8 of the ECHR. It is a subject which generates strong views in our society. MR, giving the judgment of the Court of Appeal, said at para 43: In the MF (Nigeria) case, cited by Lord Reed at para 37 above, Lord Dyson The general rule in the present context is that, in the case of a foreign [criminal] to whom paragraphs 399 and 399A [of the Immigration Rules in force on 9 July 2012] do not apply, very compelling reasons will be required to outweigh the public interest in deportation. Of the numerous issues raised in this appeal, the central issue is whether the Court of Appeals exposition of what it called the general rule was correct. I subscribe to the majority view that it was indeed correct. I agree with the judgment of Lord Reed and I concur in the dismissal of the appeal. A person is a foreign criminal under section 32(1) and (2) of the 2007 Act only if, not being a British citizen, he was convicted in the UK of an offence for which he was sentenced to imprisonment for at least 12 months. So the misleadingly entitled automatic deportation, for which the section provides, applies in effect only to a serious offence. Subsection (4) provides that the deportation of a foreign criminal is conducive to the public good for the purpose of section 3(5)(a) of the 1971 Act, in other words with the result that he should be liable to deportation. So it is only the liability to deportation, not the deportation itself, which the section makes automatic. Section 33 (7) of the 2007 Act, set out at para 11 above, provides, at first sight surprisingly, that the deportation of a foreign criminal remains conducive to the public good even when his rights under article 8 bar his removal. At para 12 above Lord Reed convincingly explains the provision: for the barrier to his removal arising from his rights under article 8 may prove to be temporary so there is no harm in maintaining his liability in principle to deportation by continuing to regard it as conducive to the public good. But there is a further feature of the subsection which is less easy to explain: for the effect of limb (a) of it is that the barrier to a foreign criminals deportation arising from his rights under article 8 does not prevent the making of a deportation order. Like Lord Kerr in his dissenting judgment at para 128 below, I have failed to make any sense of this further feature. In para 14 above Lord Reed suggests that sections 32 and 33 of the 2007 Act were enacted in response to public concern about, in particular, the procedures for the deportation of foreign offenders. But it is clear to me that there was equal, if not greater, dissatisfaction with the decisions themselves, in particular when they rejected deportation. Why, in particular, did the people of the UK, by their elected representatives, take the unusual step of pre empting the ministers decision whether a deportation was conducive to the public good by making a formal resolution in section 32(4) that the deportation of a foreign criminal was conducive to it? No doubt they did so primarily because of the strength of their wish to protect themselves from disorder and crime, which, of course, is an aim specifically recognised in paragraph 2 of article 8 of the ECHR and which the Strasbourg court has consistently considered [to be] the legitimate aim pursued by deportation: para 53 of the AA case, cited at para 25 above. This means, says Lord Kerr at para 96 below, that, customarily, the risk of re offending will be of predominant importance. Indeed Lord Kerr proceeds to ask: If an individual is unlikely to commit crime or be involved in disorder, how can his expulsion on that ground be said to be rationally connected to the stated aim? But, with respect, might Lord Kerrs analysis be too narrow? Might not the deterrent effect upon all foreign citizens (irrespective of whether they have a right to reside in the UK) of understanding that a serious offence will normally precipitate their deportation be a more powerful aid to the prevention of crime than the removal from the UK of one foreign criminal judged as likely to re offend? See DS (India) v Secretary of State for the Home Department [2009] EWCA Civ 544; [2010] Imm AR 81, para 37, Rix LJ. In the Court of Appeal in OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694, [2009] INLR 109, I stated, at para 15(c): A further important facet [of the public interest in deportation] is the role of a deportation order as an expression of societys revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes. By his counsel, the appellant mounts a sustained objection to my statement and I am constrained to agree with part of it. I regret my reference there to societys revulsion at serious crimes and I accept Lord Kerrs criticism of it at para 168 below. Societys undoubted revulsion at certain crimes is, on reflection, too emotive a concept to figure in this analysis. But I maintain that I was entitled to refer to the importance of public confidence in our determination of these issues. I believe that we should be sensitive to the public concern in the UK about the facility for a foreign criminals rights under article 8 to preclude his deportation. Even though, for the purposes of the present appeal, we must ignore section 19 of the Immigration Act 2014, the depth of public concern had earlier been made manifest not only in section 32(4) of the 2007 Act but also in the amendments to the immigration rules introduced on 9 July 2012 to which I will turn in the next paragraph. Laws serve society more effectively if they carry public support. Unless it lacks rational foundation (in which case the courts should not pander to it), the very fact of public concern about an area of the law, subjective though that is, can in my view add to a courts objective analysis of where the public interest lies: in this context it can strengthen the case for concluding that interference with a persons rights under article 8 by reason of his deportation is justified by a pressing social need. In the document entitled Statement of Intent: Family Migration, dated 12 June 2012, the Home Office sought to explain the forthcoming changes to the immigration rules. It said: 37. previous Secretaries of State have asserted that if the courts think that the rules produce disproportionate results in a particular case, the courts should themselves decide the proportionate outcome on the facts before them rather than hold that the rule itself is incompatible with article 8. The courts have accepted this invitation to determine proportionality on a case by case basis and do not indeed cannot give due weight systematically to the Governments and Parliaments view of where the balance should be struck, because they do not know what that view is. 38. The new Immigration Rules are intended to fill this public policy vacuum by setting out the Secretary of States position on proportionality and to meet the democratic deficit by seeking Parliaments agreement to her policy. The rules will state how the balance should be struck between the public interest and individual rights, taking into account relevant case law, and thereby provide for a consistent and fair decision making process. Accordingly rule 398, as was then introduced, provided that, other than in the narrow situations in which paras 399 or 399A applied, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors in the determination of an article 8 claim by a person liable to deportation. Provided that the phrase is not misunderstood, there is nothing wrong with an analysis in certain contexts that exceptional circumstances will be necessary for a claim under article 8 to prevail. In certain situations, the public interest in a persons removal from the UK will be inherently so strong, and in other situations his claim to respect for his private and family life will be inherently so weak, that it is appropriate to identify a need for exceptional circumstances before his claim can prevail. An example of the first type of situation is extradition. The public interest in a persons extradition in accordance with domestic law is inherently strong. In Norris v Government of the United States of America (No 2) [2010] UKSC 9; [2010] 2 AC 487, Lord Phillips of Worth Matravers, with whom all eight of the other members of the court agreed, said: 56. The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. That, no doubt, is what the commission had in mind in Launder v United Kingdom (1997) 25 EHRR CD 67, 73 when it stated that it was only in exceptional circumstances that extradition would be an unjustified or disproportionate interference with the right to respect for family life. An example of the second type of situation is where the appellants family life with another person developed at a time when, to his knowledge, his immigration status rendered his ability to remain living in the UK precarious. In this situation his claim to respect for his family life is inherently weak. It is therefore legitimate to describe it as likely to prevail only in exceptional circumstances. The court in Strasbourg has said so. Thus in Rodrigues Da Silva, Hoogkamer v Netherlands (2006) 44 EHRR 34, the Strasbourg court said: 39. where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non national family member will constitute a violation of article 8. Two years ago, in Jeunesse v Netherlands, cited at para 27 above, the Grand Chamber at para 108 indorsed, almost word for word, the reference to the need in that situation for exceptional circumstances. In the MF (Nigeria) case the Secretary of State informed the court that, in referring to the need for exceptional circumstances in the new rule 198, she was borrowing the phrase from the Strasbourg court, which had used it in certain article 8 cases: see para 34 of the judgment. Although its application by the Strasbourg court had been to situations other than deportation, the Secretary of State was in my view entitled to borrow the phrase and, by the rule, to commend it to her case workers. For deportation is another example of the first type of situation to which I have referred at para 73 above: the public interest in the deportation of a foreign criminal is inherently so strong, arguably even stronger than in the case of extradition, that it is appropriate to identify a need for exceptional circumstances before his claim under article 8 can prevail. There is, however, a well recognised danger that a decision maker will misunderstand the significance of the phrase. It may lead him to slide away from the requisite inquiry into the degree of strength of the public interest in the deportation of this particular foreign criminal, strong though that will always be; and from inquiry into the gravity of the proposed interference with the exercise of his family life, judged in the light of all the factors upon which he relies insofar as they are relevant to it; and therefore from inquiry into the justification or otherwise for the proposed interference. It may lead him instead simply to ask himself are these circumstances exceptional? Even worse, it may even lead him simply to ask himself are these circumstances unusual? The House of Lords has itself been constrained to recognise that use of the word exceptional is capable of being misunderstood. In R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368, Lord Bingham said: 20. Decisions taken pursuant to the lawful operation of immigration control will be proportionate [for the purposes of article 8] in all save a small minority of exceptional cases, identifiable only on a case by case basis. But in the Huang case, cited at para 17 above, Lord Bingham, on this occasion giving the opinion of the committee, said: 20. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para 20. He was there expressing an expectation that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test. When it analysed the reference to exceptional circumstances in the new rule 398, the Court of Appeal in the MF (Nigeria) case had well in mind the risk that the phrase might be misunderstood. It concluded at paras 41 and 42, in my view correctly, that the rule was no more laying down a test of exceptionality than had been Lord Bingham in the Razgar case or indeed than had been the Strasbourg court in its analysis of the situation where family life was precarious. It continued: Rather [the rule means] that, in approaching the question of whether removal is a proportionate interference with an individuals article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be exceptional) is required to outweigh the public interest in removal. Then, at para 43, the Court of Appeal articulated the general rule which I have set out at para 66 above and by which in effect it substituted the phrase very compelling reasons for that of exceptional circumstances. In my view its substitution was wise and, as I have said, its general rule was correct. In July 2014, when introducing changes to the rules to accompany the coming into force of the 2014 Act, the Secretary of State made a corresponding amendment to rule 398 so as, among other things, to substitute the words very compelling for the word exceptional. In the MF (Nigeria) case, however, the Court of Appeal proceeded to make an insignificant but unfortunate error. It held at para 44 that the new rules were a complete code which fell to be applied not only by the Secretary of States case workers but on appeal by the First tier Tribunal. It is one thing to suggest that the Secretary of States rule 398 is relevant to the weight which the tribunal should give to the public interest. By doing so, the tribunal would do no more than, in the words of Lord Bingham in the Huang case, para 16, to accord appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. But it is another thing altogether to suggest that the rules provide the legal framework within which the tribunal should determine the appeal. Both Lord Reed at para 53 and Lord Kerr at para 163 powerfully demonstrate that it is a constitutional solecism for an appellate body to evaluate a persons human rights by the application of a rubric (however sound) which the Secretary of State has chosen to incorporate into her rules. Crucially, however, the Court of Appeal hastened to add: 45. Even if we were wrong about that, it would be necessary to apply a proportionality test outside the new rules as was done by the [Upper Tribunal]. Either way, the result should be the same. In these circumstances, it is a sterile question whether this is required by the new rules or it is a requirement of the general law. What matters is that it is required to be carried out if paragraphs 399 or 399A do not apply. This error in the MF (Nigeria) case was therefore insignificant. We should not allow it to distract us from the validity of the general rule which it articulated. I have come belatedly to realise that the use of a clich can be a quick way of effectively communicating a point. So I make no apology for concluding that we should resist the appellants invitation to us, by reference to this error on the part of the Court of Appeal, to throw the baby out with the bath water. On the contrary we should lift the general rule carefully out of the bath and embrace it. LORD THOMAS: I agree with the judgment of Lord Reed and in particular the matters he sets out at paras 37 38, 46 and 50. I add three paragraphs of my own simply to emphasise the importance of the structure of judgments of the First tier Tribunal in decisions where article 8 is engaged. Judges should, after making their factual determinations, set out in clear and succinct terms their reasoning for the conclusion arrived at through balancing the necessary considerations in the light of the matters set out by Lord Reed at paras 37 38, 46 and 50. It should generally not be necessary to refer to any further authority in cases involving the deportation of foreign offenders. One way of structuring such a judgment would be to follow what has become known as the balance sheet approach. After the judge has found the facts, the judge would set out each of the pros and cons in what has been described as a balance sheet and then set out reasoned conclusions as to whether the countervailing factors outweigh the importance attached to the public interest in the deportation of foreign offenders. The use of a balance sheet approach has its origins in Family Division cases (see paras 36 and 74 of the decision of the Court of Appeal In re B S (Children) (Adoption Order: Leave to Oppose) [2014] 1 WLR 563). It was applied by the Divisional Court in Polish Judicial Authority v Celinski [2016] 1 WLR 551 to extradition cases where a similar balancing exercise has to be undertaken when article 8 is engaged see paras 15 17. Experience in extradition cases has since shown that the use of the balance sheet approach has greatly assisted in the clarity of the decisions at first instance and the work of appellate courts. LORD KERR: (dissenting) I agree with much of the legal analysis in Lord Reeds judgment. There are, however, some important differences of emphasis in our approaches to the proper application of article 8 in cases such as this. Strasbourg jurisprudence concerning expulsion of foreign criminals In a series of cases, Strasbourg has given close attention to, and generally applicable guidance on, the requirements of article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) in the context of the expulsion of foreign criminals. The court has recognised that the removal of a person from a country where close members of his family are residing may infringe his right to respect for family life (Boultif v Switzerland (2001) 33 EHRR 50, para 39), and that even where there is no family life, the expulsion of a settled migrant constitutes an interference with his private life (ner v Netherlands (2006) 45 EHRR 14, para 59). The facts of these and subsequent cases, and the legal analysis applied to them, is illuminating of the approach required to be undertaken by domestic decision makers when considering making a deportation order after conviction. As Lord Bingham noted in Huang v Secretary of State for the Home Department [2007] 2 AC 167, para 18, these cases are valuable in demonstrating where the European Court of Human Rights (ECtHR), as the ultimate guardian of Convention rights, has drawn the line in a number of different factual scenarios, thus guiding national authorities in making their own decisions. (i) Boultif v Switzerland (2001) 33 EHRR 50 Mr Boultif arrived in Switzerland from Algeria in 1992. He married a Swiss woman in 1993. In 1997 his conviction of offences of robbery and damage to property was confirmed by the Swiss Court of Appeal. Those offences had been committed in 1994. In May 1998 he began a period of imprisonment which the appeal court had imposed. In the same month it was decided that his residence permit would not be renewed. His appeal against that decision was dismissed despite his wife having complained that if he was returned to Algeria she could not be expected to follow him. Ultimately, Mr Boultif complained to the ECtHR that his expulsion from Switzerland was in violation of his rights under article 8 ECHR. The court agreed that it was. That decision was reached notwithstanding the courts conclusion that expelling Mr Boultif from Switzerland was in accordance with law and was rationally connected to the legitimate aim of preventing disorder and crime. The court then addressed the question whether the undoubted interference with Mr Boultifs article 8 rights was necessary in a democratic society. It immediately acknowledged, in para 48, that previously it had only considered this question to a limited extent. Mr Boultifs case required it to establish guiding principles on this question. The court then proceeded to set out with some precision what those principles should be. It said this: In assessing the relevant criteria in such a case, the court will consider the nature and seriousness of the offence committed by the applicant; the length of the applicants stay in the country from which he is going to be expelled; the time elapsed since the offence was committed as well as the applicants conduct in that period; the nationalities of the various persons concerned; the applicants family situation, such as the length of the marriage; and other factors expressing the effectiveness of a couples family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage, and if so, their age. Not least, the court will also consider the seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself exclude an expulsion. Lord Reed has listed those criteria at para 26 of his judgment, but the preface given by the Grand Chamber to this outline of the relevant criteria is particularly important. These were to be guiding principles. Although the weight to be given to them was determined by an examination of their application to Mr Boultifs case, they were precisely what they were stated to be: guiding principles. In other words, principles which should be taken into account in all cases where the propriety of expelling or deporting someone from a member state of the Council of Europe had to be decided. (ii) ner v Netherlands (2006) 45 EHRR 14 Mr ner came to the Netherlands in 1981 at the age of 12. Until then he had lived in Turkey where he was born. He obtained a permanent residence permit in 1988. In 1991 he formed a relationship with a Dutch national and this produced in 1992 and 1996 two children. Mr ner was found guilty of relatively minor offences in 1989, 1990 and 1992. In 1994, however, he was convicted of wounding one man and the manslaughter of another. He was sentenced to seven years imprisonment. While in prison, Mr ner was visited regularly by his partner and children. He undertook various courses and qualified as a sports instructor. Despite his progress in prison his permanent residence permit was withdrawn. Throughout a number of appeals and other hearings that decision was confirmed and he was deported to Turkey. He claimed that he had virtually no familial contacts there and he returned illegally on a number of occasions to the Netherlands. He was deported again, finally in May 2006. On an application to ECtHR, Mr ner claimed that his expulsion represented a breach of his article 8 rights. The court disagreed. But it repeated and confirmed, setting them out in tabular form, what it described as the Boultif principles. At para 58 it referred to two criteria in particular. It said this: The court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment: the best interests and well being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and the solidity of social, cultural and family ties with the host country and with the country of destination. As to the first point, the court notes that this is already reflected in its existing case law (see, for example, Sen v Netherlands (2003) 36 EHRR 7, para 40; Tuquabo Tekle v Netherlands [2006] 1 FLR 798, para 47) and is in line with the Committee of Ministers Recommendation Rec (2002) 4 on the legal status of persons admitted for family reunification (see para 38 above). As to the second point, it is to be noted that, although the applicant in the case of Boultif was already an adult when he entered Switzerland, the court has held the Boultif criteria to apply all the more so (a plus forte raison) to cases concerning applicants who were born in the host country or who moved there at an early age (see Mokrani v France (2005) 40 EHRR 5, para 31). Indeed, the rationale behind making the duration of a persons stay in the host country one of the elements to be taken into account lies in the assumption that the longer a person has been residing in a particular country the stronger his or her ties with that country and the weaker the ties with the country of his or her nationality will be. Seen against that background, it is self evident that the court will have regard to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there. Although the court identified these two particular criteria as being of especial importance, the matter of significance (so far as the present appeal is concerned) is the courts proclamation that the Boultif criteria are fundamental in the examination of whether article 8 has been breached. Different emphasis might be placed on some of those criteria in different cases. Particular importance (as in Mr ners case) may be accorded to some of them, reflecting the specific circumstances of an individual. But, the relevance of the factors in article 8 cases involving expulsion is not left in doubt. Their status as guiding principles, to be considered and, where appropriate, applied in all such cases, is clearly affirmed. That was emphasised again by the Grand Chamber in Maslov v Austria [2009] INLR 47. I agree with Lord Reeds analysis at para 26 of his judgment as to the effect of that decision. In particular, I would stress that some of the Strasbourg criteria (such as the nature and seriousness of the offence) will be relevant to the weight to be afforded to the public interest in deportation, and that other criteria will go to the strength of the individuals private and family life. A consequence of the detailed guidance given by the ECtHR in these cases is that the domestic margin of appreciation is narrower than in many other contexts where article 8 is engaged. (iii) AA v United Kingdom [2012] Imm AR 107 In this case the applicant came to the United Kingdom in 2000 at the age of 13. In 2007, when he was 15 years old he was convicted with others of the rape of a girl aged 13. He was sentenced to four years detention at a Young Offenders Institution. While there, it was assessed that he posed a low risk of re offending or of causing harm to the public. Despite this, he was served with a deportation order. This was said to be necessary for the prevention of disorder and crime and for the protection of health and morals. When the application came before ECtHR, the government argued that AAs deportation would serve the aims of public safety and the protection of the rights of others, as well as the aims already referred to in the deportation order. Interestingly, the court observed in para 53 that it had consistently considered that the legitimate aim [in this type of case] was the prevention of disorder and crime citing Bouchelkia v France (1997) 25 EHRR 686; Boujlifa v France (1997) 30 EHRR 419; Boultif and Maslov; Omojoudi v United Kingdom (2009) 51 EHRR 10. While this statement may not amount to a final conclusion by the ECtHR that the only legitimate aim possible for the expulsion of foreign criminals is the prevention of disorder and crime, it must be taken as an indication that that aim will normally be the basis on which deportation is to be justified. Indeed it is doubtful, in cases involving persons who hold indefinite leave to remain in the United Kingdom, whether immigration control (insofar as it is relevant to the economic well being of the country under article 8(2)) is a legitimate aim under which deportation can be justified. This means that, customarily, the risk of re offending will be of predominant importance. If the risk of re offending is low, it will be more difficult to justify an interference with a persons article 8 rights on the basis that this is necessary in order to prevent disorder and crime. If an individual is unlikely to commit crime or be involved in disorder, how can his expulsion on that ground be said to be rationally connected to the stated aim? On the question of whether the expulsion of the applicant was necessary in a democratic society the court said this at para 56: The assessment of whether the impugned measure was necessary in a democratic society is to be made with regard to the fundamental principles established in the courts case law and in particular the factors summarised in ner, cited above, paras 57 85, namely: the nature and seriousness of the offence committed by the applicant; the length of the applicants stay in the country from which he or she is to be expelled; the time which has elapsed since the offence was committed and the applicant's conduct during that period; the nationalities of the various persons concerned; the applicants family situation, such as the length of any marriage and other factors expressing the effectiveness of a couples family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; whether there are children of the marriage, and if so, their age; the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled; the best interests and well being of any children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and the solidity of social, cultural and family ties with the host country and with the country of destination. This constitutes a restatement of the principles and guidelines in Boultif and ner. It is important to note that these are expressed as a generally applicable set of fundamental principles which constitute a prescriptive set of rules to be applied in all cases involving expulsion of what are described as foreign criminals. Foreign criminals are defined in section 32(1) (3) of the UK Borders Act 2007 as persons who are not British citizens, who are either convicted in the United Kingdom of an offence and sentenced to at least 12 months imprisonment, or are sentenced to a period of an imprisonment for an offence which is specified as serious by the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002. As it happens and as the cases above demonstrate, to describe all who might be subject to deportation as foreign criminals can be misleading. Some have lived most of their lives in the countries from which it is proposed that they be expelled. Indeed, in the case of the United Kingdom, some so called foreign criminals may even have been born here or hold permanent residency in this country but, because they do not have British citizenship, they are liable to expulsion. Given the wide category of persons who can be expelled after having been found guilty of criminal offences, it is unsurprising that Strasbourg has given prominence, in the article 8 assessment, to the length of time that an individual who claims breach of that provision has spent in the host country and whether that person is a settled migrant, in other words someone who has been granted a right of residence (even if temporary) in the host country. (iv) Jeunesse v Netherlands (2014) 60 EHRR 17 This case does not involve a decision to deport a foreign criminal but it is worth considering because of the difference that is said to apply between settled migrants (ie persons with a right of residence, whether temporary or permanent), and those who do not have a right of residence. Although Jeunesse did not feature quite so prominently on the hearing of this appeal as in the subsequent case of R (Agyarko) v Secretary of State for the Home Department [2016] 1 WLR 390, it is relied on by the Secretary of State to advance a proposition that a person who is not a settled migrant, in order to rely on article 8, is obliged to establish a positive obligation on the part of the state to grant a right of residence. Absent such an obligation, no right to respect for a family or private life arose. If this proposition is correct, it follows that a foreign criminal who is not a settled migrant and who cannot show that there was a positive obligation to grant him permission to reside, cannot rely on article 8. On that basis, discussion of interference with article 8 or justification of any such interference would be irrelevant. Some consideration of the circumstances of Jeunesse is needed. The applicant and her partner were born and lived in Suriname. They had cohabited there. In October 1991 the applicants partner went to stay in the Netherlands with his father and was granted Netherlands nationality. In March 1997 the applicant was granted a visa for the Netherlands for a short period to visit a relative. She entered the country on 12 March 1997 and did not return to Suriname when her visa expired. She had lived in the Netherlands since then. She made various applications for a residence permit, all of which were refused. In June 1999 the applicant married her partner and their first child was born in September 2000 and was a Netherlands national. She renewed her applications for a residence permit and, apart from a short lived success in obtaining an injunction against removal, her applications were refused. In December 2005 she had a second child, again a Netherlands national. Further applications for residence followed again with no success. Finally, in April 2010, while pregnant with her third child, the applicant filed a fifth request for a residence permit in order to stay with her children. This was also rejected, it being decided that the refusal did not contravene article 8. The relevant minister attributed decisive weight to the fact that the applicant had never resided lawfully in the Netherlands and that there was no indication that it would be impossible to exercise family life in Suriname. Although the argument was not raised in the present appeal, in the subsequent case of R (Agyarko) v Secretary of State for the Home Department it was submitted for the Secretary of State that the effect of Jeunesse was that it was necessary for an applicant who was not a settled migrant to show that his or her circumstances were sufficiently weighty to oblige the state to allow him or her to remain before article 8 was engaged in their case. In other words, the applicant had to show that the state was under a positive obligation to admit the applicant. Implicit in this argument was that, in the case of someone who was not a settled migrant, the question of a states negative obligation not to act in violation of that persons article 8 rights did not arise because access to those rights could only be obtained by such a person by showing that the state had a positive obligation to grant leave to remain. Reference was made to paras 103 108 of the Grand Chambers judgment in Jeunesse. It is not necessary to set out all of these passages but para 103 sets the scene: Where a contracting state tolerates the presence of an alien in its territory thereby allowing him or her to await a decision on an application for a residence permit, an appeal against such a decision or a fresh application for a residence permit, such a contracting state enables the alien to take part in the host countrys society, to form relationships and to create a family there. However, this does not automatically entail that the authorities of the contracting state concerned are, as a result, under an obligation pursuant to article 8 of the Convention to allow him or her to settle in their country. In a similar vein, confronting the authorities of the host country with family life as a fait accompli does not entail that those authorities are, as a result, under an obligation pursuant to article 8 of the Convention to allow the applicant to settle in the country. The court has previously held that, in general, persons in that situation have no entitlement to expect that a right of residence will be conferred upon them. It is important to note that the Grand Chamber did not say that an applicant for permission to remain who prays article 8 in aid of his or her application must show, as a prerequisite to reliance on the rights enshrined in that provision, that the state is obliged to allow him or her to remain. The burden of the Grand Chambers reasoning is that a person who has been allowed to remain while applications for a right of residence are being dealt with cannot expect that the period accumulated by those processes will automatically bring entitlement to a right to reside. Likewise, the creation of a family and the presentation of that circumstance to state authorities as a fait accompli carries no automatic right to the grant of leave to remain. And there is no general obligation to respect a married couples choice of country for their matrimonial residence (para 107). It is also relevant that, at the time that family life was created, the persons involved were aware that the immigration status of one of them was such that family life being permitted to continue in the host state was precarious. In para 108 of Jeunesse the Grand Chamber said that where this was the case, it was likely only to be in exceptional circumstances that the removal of the non national family member would constitute a violation of article 8. It is important to understand, however, that none of these considerations has been expressed by the Strasbourg court as determinative. Each, provided it is relevant to the particular circumstances of the individual case, must be taken into account. But the weight to be attached to them will depend upon the significance that they have according to those circumstances. The fact that an applicant is or is not a settled migrant a settled migrant being someone who has been granted some form of residence, whether temporary or indefinite is likewise a relevant factor. On that account, the Grand Chamber, in para 104, drew a distinction between Ms Jeunesses case and those of settled migrants. As was pointed out, withdrawal of a right to residence inevitably involves an interference with family or private life. The same is not true in the case of someone who is not a settled migrant. The factual and legal situation of a settled migrant and that of an alien seeking admission to a host country are, self evidently, not the same see para 105. As the Grand Chamber there pointed out: the question to be examined is whether, having regard to the circumstances as a whole, the Netherlands authorities were under a duty pursuant to article 8 to grant her a residence permit, thus enabling her to exercise family life on their territory. (emphasis supplied) The conjunction of the obligation to grant a residence permit and the facilitation of the exercise of family life in the host state is critical. The flaw in the argument made by the Secretary of State is the suggestion that these two issues should be considered disjunctively and, moreover, that the duty to grant a residence permit should be considered by way of anterior inquiry to the question of whether the article 8 rights of the individual are engaged and should prevail over the community interests at stake. It is true that the Grand Chamber in Jeunesse said that the case was to be seen as one involving an allegation of failure on the part of the respondent state to comply with a positive obligation under article 8 of the Convention (para 105), but that does not mean that it is to be considered in isolation from the conventional approach to the question of whether a right to respect for family and private life is engaged. Showing that the state is under a positive obligation to grant permission to reside must not be regarded as a gateway to reliance on article 8 rights. On the contrary, examination of the particular circumstances of the individual who seeks to rely on article 8 and which are claimed to constitute family life is central to the question of whether the article is engaged. This cannot be determined by some extraneous, abstract assessment of whether the state is under a positive obligation to grant a right to reside. The Secretary of State, while acknowledging that the distinction between positive and negative obligations had recently tended to be downplayed by Strasbourg in many contexts, argued in the subsequent case of Agyarko v Secretary of State for the Home Department that, in cases such as that of Mr Ali, it was of especial significance. Unless it could be shown that there was a positive obligation to grant a right to remain, the question of whether there was an interference with article 8 did not arise, she argued. This does not chime well with observations of the Grand Chamber in para 106 of Jeunesse, where it said that: the boundaries between the states positive and negative obligations under [article 8] do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole This passage, which confirms the approach taken in Nunez v Norway (2011) 58 EHRR 17, para 69, exposes the essential nature of the debate. It is not a question of an applicant for leave to reside showing that they are owed a positive obligation to be allowed to remain before they can rely on article 8. Rather, what is required is an open ended examination of the interests of the individual pitted against those of the community as a whole. In the Jeunesse case the interests of the community as a whole were, principally, control of immigration. In the present appeal the community interests are the prevention of disorder and crime. But the following passage from para 107 of Jeunesse is pertinent for either context: in a case which concerns family life as well as immigration, the extent of a states obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the contracting state, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion. The striking of a fair balance between general community interests and the particular circumstances of the persons involved is the cornerstone on which the dispute is to be resolved, so far as Strasbourg jurisprudence is concerned. Expressed in that way, one can recognise the distinction between, on the one hand, the generally constant, if not unalterable, nature of the community interests and, on the other, the potentially infinitely variable importance of individual family and private life interests. The distinction between positive and negative obligations has not been thought to be significant by our domestic courts. As Lord Bingham held in Huang, whether an article 8 claim involves a complaint of interference or a lack of respect, the ultimate question is proportionality: In most cases where the applicants complain of a violation of their article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved. (para 18) Domestic law has developed somewhat differently from the Strasbourg jurisprudence in relation to the approach to be taken to the question of proportionality, as Lord Reed has explained in paras 47 50 of his judgment. But this does not affect the question of whether someone who is not a settled migrant must show, as a preliminary step, that he or she is owed a positive obligation by the state to grant leave to remain before they can canvass the normal factors that constitute article 8 entitlement. The statement in the passage quoted at para 111 above whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned is not of prominent importance to the issues arising in this appeal. But the expression insurmountable obstacles does appear in rule 399 of the 2012 Rules, and is discussed below, at para 150. The message provided by the Strasbourg cases A consistent thread running through the cases which I have discussed (and others which preceded them such as Benhebba v France (Application No 53441/99) (unreported) 10 July, 2003 and Mehemi v France (1997) 30 EHRR 739) is the need to review and assess a number of specifically identified factors in order to conduct a proper article 8 inquiry. Another theme is that this examination must be open textured so that sufficient emphasis is given to each of the factors as they arise in particular cases. Of their nature factors or criteria such as these cannot be given a pre ordained weight. Any attempt to do that would run counter to the essential purpose of the exercise. This can be readily exemplified: a significant prison sentence may be offset by the strength of family ties or progress on the part of the offender post conviction, for instance. Or expulsion might be justified where the offending is relatively minor but the length of time spent in the host country is short and there are no strong family ties there. The application of the various factors as opposed to the recognition of their relevance involves a holistic, open minded approach. For this reason, giving pre emptive, indicative weight to particular factors on a generic basis is impermissible if it distorts the proper assessment of these in their peculiar and individual setting. ECtHR jurisprudence does not expressly forbid the making of policies in relation to the normal circumstances in which expulsion of foreign criminals should take place but it has not sanctioned the setting of policy standards as to how article 8 might be applied. In Boultif the court said at para 46: The court recalls that it is for the contracting states to maintain public order, in particular by exercising their right, as a matter of well established international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of article 8, be necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued. Likewise in ner the court said this in para 54: The court reaffirms at the outset that a state is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there [see, among many other authorities, Abdulaziz v United Kingdom (1985) 7 EHRR 471, para 67; Boujlifa v France (1997) 30 EHRR 419, para 42]. The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, contracting states have the power to expel an alien convicted of criminal offences. The Grand Chamber in Maslov, at para 68, quoted paras 54 to 58 of the ner judgment in full, stating, at para 69, that in this judgment, as well as in Boultif, the court had taken care to establish the criteria which were so far implicit in its case law to be applied when assessing whether an expulsion measure is necessary in a democratic society and proportionate to the legitimate aim pursued. The entitlement of an individual state to set policy standards as to when deportation should normally occur must not be confused with a power to prescribe how article 8 is to be applied in its territory. Rules as to when deportation should generally take place may be unexceptionable, so long as they yield to an uninhibited assessment of an individuals article 8 right, where that right is claimed. The ECtHR cases do not permit a national policy which limits or dictates the weight to be given to the Boultif factors in the article 8 balancing exercise. This is clear from, for example, the courts judgment in ner where in para 60 it said that all the [Boultif] factors should be taken into account in all cases concerning settled migrants who are to be expelled and/or excluded following a criminal conviction. When it comes to applying article 8, therefore, as opposed to following a purely domestic policy, it is not open to the state to say that some of the Boultif factors should not be taken into account or should be subservient to others. If those factors are relevant to a potential deportees situation, they must be taken into account and they must be given the weight that they deserve, following an open ended and rounded evaluation of the case. This approach is also endorsed in Maslov where, at para 70, the Grand Chamber said: The court would stress that while the criteria which emerge from its case law and are spelled out in the Boultif and ner judgments are meant to facilitate the application of article 8 in expulsion cases by domestic courts, the weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case. Moreover, it has to be borne in mind that where, as in the present case, the interference with the applicants rights under article 8 pursues, as a legitimate aim, the prevention of disorder or crime (see para 67 above), the above criteria ultimately are designed to help evaluate the extent to which the applicant can be expected to cause disorder or to engage in criminal activities. (emphasis added) It follows that such of the criteria from Boultif and ner as are relevant to a particular article 8 claim must be taken into account and evaluated according to the circumstances of the individual case rather than by reference to some preconceived weighting accorded to them by national rules. This was again made clear in AA v United Kingdom [2012] Imm AR 107 where, at para 57, the court said: The court reiterates that these criteria are meant to facilitate the application of article 8 in expulsion cases by domestic courts and that the weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case. Further, not all the criteria will be relevant in a particular case. It is in the first instance for the domestic courts to decide, in the context of the case before them, which are the relevant factors and what weight to accord to each factor. This, then, is the setting in which the relevant immigration legislation and the status and effect of the Immigration Rules 2012 (which are the rules which were applied in Mr Alis case) must be considered. The Immigration Act 1971 Lord Reed has set out the relevant provisions of the Immigration Act 1971 at paras 3 and 4 of his judgment. Under this Act deportation was a two stage process requiring: (i) a person to be liable to deportation under the provisions of the Act; and (ii) the Secretary of State, in the exercise of her discretion under section 5(1), to have decided whether a deportation order should be made in respect of him. If the deeming provision in play was (as here) section 3(5)(a), therefore, the Secretary of State, before deciding whether to make a deportation order, had to make a judgment that the deportation of the person concerned was conducive to the public good. If she made that judgment, she then had to exercise a discretion as to whether the deportation order should be made. These functions underwent significant change as a result of the enactment of the UK Borders Act 2007. UK Borders Act 2007 The purpose of the UK Borders Act 2007 was stated to be to make deportation the presumption for foreign criminals (p 11 of the Immigration and National Directorate review in July 2006, Fair, effective, transparent and trusted: Rebuilding confidence in our immigration system). Deportation of certain foreign criminals was to become mandatory. As noted above, (at para 98) foreign criminals are defined in section 32(1) (3) of the Act. By section 32(4) the deportation of those coming within that category is stated to be conducive to the public good. Effectively, therefore, this provision removes from the Secretary of State the function of deciding whether the deportation of someone who meets the criteria for designation as a foreign criminal conduces to the public good. But it goes further than that. The terms of the provision, that the deportation of a foreign criminal is conducive to the public good, purport to foreclose any legal debate as to whether the deportation of anyone who comes within that category can be other than conducive to the public good. Thus, the deportation of a person convicted of a criminal offence and sentenced to more than 12 months imprisonment is to be considered as immutably in the public good, irrespective of, for instance, any philanthropy or other worthy endeavours in which he may have engaged since his incarceration. The second major change brought about by the 2007 Act was the requirement in section 32(5) that the Secretary of State must make a deportation order against a foreign criminal unless he came within one or more of the exceptions stipulated in section 33. This transformed the open ended discretion that the Secretary of State had under section 5(1) of the 1971 Act into a circumscribed judgment as to whether the person to be deported came within any of the exceptions in section 33 of the 2007 Act. Sub sections (2) to (6A) of section 33 (as amended by section 146 of the Criminal Justice and Immigration Act 2008) contain six exceptions. The only one relevant to this appeal is the first. It is to the effect that section 32(4) and (5) do not apply where deportation would breach a persons rights under the ECHR. The disapplication of section 32(4) and (5) of the 2007 Act, provided for in section 33(1), is made subject to section 33(7), however. It provides: The application of an exception (a) does not prevent the making of a deportation order; (b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good; but section 32(4) applies despite the application of Exception 1 or 4. So, even if a deportation order would, under the first exception provided for in section 33(2), breach a persons Convention right, section 33(7) states that this would not prevent its being made. This is difficult to reconcile with section 6 of the Human Rights Act 1998 (HRA) which provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. If the Secretary of State (a public authority) made a deportation order in the case of someone whose Convention right would thereby be breached, she would inevitably act in contravention of her section 6 HRA duty. In these circumstances, it appears to me that it would be problematic for the Secretary of State to have recourse to this particular power. Moreover, it would not be easy to square the preservation of the operation of section 32(4) (that the deportation of a foreign criminal is conducive to the public good) with the breach of a potential deportees Convention rights. For how could it be said to conduce to the public good to do something which conflicts with the Secretary of States legal obligation not to act in a way which is incompatible with a Convention right? These difficulties may be theoretical rather than practical, however. It has not been suggested that the Secretary of State has used or would use her powers under section 32 in a way that would bring her into conflict with her duty under section 6 of HRA. Indeed, after the hearing of the appeal in this case, the court received a letter dated 21 January 2016 from the Government Legal Department. This gave the Secretary of States view as to how section 33(7) would be applied when it is accepted that a persons deportation would breach the UKs obligations under the ECHR. The letter referred to the fact that, since at least 2000, para 380 of the Immigration Rules had provided that a deportation order would not be made against any person whose removal would be contrary to the United Kingdoms obligations under ECHR. That paragraph was deleted in July 2012, although replaced by the new para 397 which was to the same effect. The letter asserted that the Secretary of State would not make a deportation order in the majority of cases where there is a protection or human rights barrier to deportation because it would not be right to do so, and in any event could not be enforced. The letter went on to say, however, that a deportation order might be made, despite the existence of an ECHR barrier to deportation when it is known that the barrier will fall away. Two examples of when this might arise were given: This could be because the breach (on the basis of article 8, for example) is known to be time limited or because [the Secretary of State] will obtain reliable assurances from the country of return that the person will not be subjected to treatment that would breach the ECHR Another example of when the [Secretary of State] might consider that a deportation order could be made would be where the foreign criminal decides to leave the UK of his own accord or the person waives his or her rights In such circumstances the deportation order would not be enforced but the foreign criminal would comply with the requirement to leave the UK and the order would serve as preventing re entry to the UK while it is in force. There are two principal difficulties in the examples given by the Secretary of State. In the first place, the distinction between making a deportation order and enforcing it does not signify when one is considering a Convention right. The imperative in section 6 HRA is not to act in a way which is incompatible with a Convention right. If deporting someone would conflict with his article 8 right, I cannot see how it can be said to be compatible with that right to make an order for his deportation, irrespective of whether, at the time of the making of the order, it is not intended to enforce it. Moreover, it is not the enforcement of an immigration order which is in contravention of a Convention right that animates a right of appeal but the making of the order or the refusal to revoke it see section 82 of the Nationality, Immigration and Asylum Act 2002. The second difficulty with the Secretary of States examples is that, properly analysed, most of these do not involve any conflict with a Convention right at all and do not come within the first exception in section 33. Thus, for instance, if the Secretary of State receives assurances on which she can properly rely that the deported persons Convention rights will not be violated in the country to which he is deported, then no Convention right is in play. Likewise, if the ECHR barrier to deportation has fallen away, self evidently, the Convention right no longer exists. And if the Convention right has been waived, there is no question of the Secretary of State acting in contravention of it. That does not mean that the Secretary of State may deport in anticipation of a Convention right disappearing. So long as the right is in existence no public authority may act in a way that is incompatible with it. Plainly, to deport someone in contravention of a subsisting Convention right which is expected to vanish (but has not done so) is just as much a breach of section 6 of HRA as is acting in violation of a right which, it is believed, will endure. Although these difficulties may be no more than theoretical, they demonstrate the error of the approach taken by the Court of Appeal in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550; [2014] 1 WLR 998, where at para 54 Laws LJ suggested that the effect of section 33(7) was to demonstrate the strength of the public interest in deportation. The 2012 Immigration Rules The 2012 rules were made under Section 3(2) of the 1971 Act. On 12 June 2012 the Secretary of State published her Statement of Intent: Family Migration. Explaining the reasons for making the new rules she said, in paragraph 7, that they would reflect fully the factors that weigh for and against an article 8 claim. Paragraph 11 stated: The Immigration Rules will reflect all the factors which, under current statutes and case law, can weigh in favour of an article 8 claim, eg a childs best interests, or against an article 8 claim, eg criminality and poor immigration history. The courts will continue to determine individual cases according to the law but, in doing so, they will be reviewing decisions taken under Immigration Rules which expressly reflect article 8. If an applicant fails to meet the requirements of the new Immigration Rules, it should only be in genuinely exceptional circumstances that refusing them leave and removing them from the UK would breach article 8. It is interesting to note two of the themes from this passage. First, the claim that the rules would reflect all the factors engendered by applicable statute and case law. Secondly, that, although courts would determine individual cases according to the law, they would be reviewing decisions under rules that expressly reflected article 8. The somewhat Delphic nature of the latter of these statements can be viewed in at least two ways. On the one hand, it might appear to recognise the courts autonomous function in applying the law, independent of any guidance that the rules purported to give. On the other, there is more than a hint that it was expected of judges that, in their review of immigration decisions, they should acknowledge and give due weight to the fact that those decisions had been informed by consideration of what was claimed to be a complete charter of all relevant Convention factors. Moreover, the statement that removing from the UK an applicant who fails to meet the requirements of the rules would only breach article 8 in exceptional circumstances is not expressed to be for the guidance of immigration officers only. Paragraph 12 reiterates that where article 8 is prayed in aid, whether under the Immigration Rules or on an asylum application, or if it is raised in the course of an appeals or enforcement process, the applicant is expected to meet the requirements of the Immigration Rules in order to be granted leave on article 8 grounds. This again indicates an intention that the article 8 assessment should be contained within and conducted according to the precepts of the 2012 rules, rather than as an exercise freestanding of them. The 2012 rules took effect on 9 July 2012. So far as concerns the present appeal, the relevant provisions are contained in rules 396 399A. Rule 396 expresses an important presumption and makes a significant statement about the public interest. It stipulates that where a person is liable to deportation, it is to be presumed that the public interest requires deportation. And where the Secretary of State must make a deportation order in accordance with section 32 of the 2007 Act, it is in the public interest to deport. Rule 397 provides that a deportation order will not be made if the persons removal would be contrary to the UKs obligations under the Refugee Convention or ECHR. Where, however, it would not be contrary to those obligations, it is stated that the public interest in deportation is only to be outweighed in exceptional circumstances. Rule 398 makes provision for circumstances where a person claims that their deportation would be contrary to the UKs obligations under article 8 but their deportation is deemed to be conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least four years (sub paragraph (a)); or a period of imprisonment of less than four years but at least 12 months (sub paragraph (b)); or because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law (sub paragraph (c)). In any of the specified circumstances, the Secretary of State, in assessing the claim, is required to consider whether paragraph 399 or 399A applies and if neither does, it is stated that the public interest in deportation will only be outweighed by other factors in exceptional circumstances. Rules 399 and 399A need to be set out in full. They are in these terms: 399. This paragraph applies where paragraph 398(b) or (c) applies if (a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and the child is a British Citizen; or (i) the child has lived in the UK continuously (ii) for at least the seven years immediately preceding the date of the immigration decision; and in either case (a) it would not be reasonable to expect the child to leave the UK; and (b) there is no other family member who is able to care for the child in the UK; or (b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and the person has lived in the UK with valid (i) leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and (ii) there are insurmountable obstacles to family life with that partner continuing outside the UK. 399A. This paragraph applies where paragraph 398(b) or (c) applies if (a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or (b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK. These complicated provisions require to be unravelled. It is probably easiest to consider them as a series of categories. The first category arises under rule 398(a). This relates to persons liable to deportation who have been sentenced to at least four years imprisonment. Paragraphs 399 and 399A do not apply to this category of persons (see the opening words of each of those provisions), although it is clear from ECtHR jurisprudence that persons falling within this category may be able to succeed in resisting deportation under article 8. A number of recent cases involving the UK exemplify this: Omojudi v United Kingdom (2009) 51 EHRR 10, AW Khan v United Kingdom (2010) 50 EHRR 47, AA v United Kingdom (2011) Imm AR 107. The effect of rule 398 is that, notwithstanding a claim by such persons that their deportation would contravene their article 8 rights, the public interest in having them deported can only be outweighed by other factors in exceptional circumstances. This means that the article 8 assessment in relation to this class of persons is necessarily skewed. Their claim that deportation would disproportionately interfere with their right to respect for private and family life will only avail if they are able to demonstrate exceptional circumstances. Otherwise, the compulsorily assumed public interest in having them deported will prevail. The threshold imposes two requirements. In addition to demonstrating exceptional circumstances, the factors which such persons can call upon to substantiate their article 8 claim are factors other than those in paragraphs 399/399A. A similar two fold threshold applies in the 2014 Rules: the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A. The second category relates to those who are liable to deportation and who have been sentenced to a period of at least 12 months but less than four years imprisonment and who have a genuine and subsisting parental relationship with a child under the age of 18 years. Several requirements as to the condition of the child are stipulated. First he or she must be a British citizen. So a child with leave to remain, but without British citizenship, will not bring a parent within the provision. Alternatively, the child must have lived in the UK continuously for at least seven years before the date of the immigration decision. In either case, in order to come within para 399, it must be established that it would not be reasonable to expect the child to leave the UK and that there is no other family member able to care for the child in the UK. It goes without saying that vibrant family life can exist in circumstances other than those specified in this second category. It is not difficult to envisage tight knit families where it would be possible under the rules to separate a parent from his or her child if that child is not a British citizen or is less than seven years old or where there is another family member who might care for her or him. But whether to bring about a separation in those circumstances would violate the right of the parent and the child to respect for his or her family life is an entirely different matter. Family life is not to be defined by the application of a series of rules. Disturbance of that precious aspect of existence is not avoided by a limited set of exemptions. While a limited area of discretionary judgment must be allowed the government in the matter of justification of an interference with the rights enshrined in article 8(1) of ECHR, it is important, as a first step in an examination of whether there has been a breach of that article, that one should recognise that family life and the requirement to respect it are not susceptible to verification solely by a system of checks against a set of prescriptive rules. It is crucial, also to draw attention here to the obligation under section 55 of the Borders, Citizenship and Immigration Act 2009, incorporating article 3(1) of the United Nations Convention on the Rights of the Child, to treat the childs best interests as a primary consideration (as discussed in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166). The rules do not permit consideration of the best interests of the children concerned. Indeed, insofar as they envisage that where an alternative family member can care for a child deportation will be proportionate, the rules positively disregard the childs interests. The third category involves those who have a genuine and subsisting relationship with someone who comes within one of the groups specified in para 399(b): British citizens, persons with indefinite leave to remain, and those who have been granted refugee or humanitarian protection. Again, conditions are applied in order to qualify for the exemption provided for in this sub paragraph. The person with whom the relationship exists must have lived in the UK for at least 15 years and there must be insurmountable obstacles to continuing family life with that partner outside the UK. Similar observations about these requirements may be made as those that pertain to the second category. Some comment in particular is required on the use of the phrase insurmountable obstacles. In the article 8 contexts, our domestic courts have repeatedly emphasised that the test for whether a family can be expected to relocate abroad to continue their family life is whether relocation would be reasonable. In Huang at para 20, Lord Bingham refers to circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere; in EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159, para 12, whether the spouse can reasonably be expected to follow the removed spouse to the country of removal, (see also para 18); and in ZH (Tanzania), where Lady Hale at para 15 observes that of particular importance is whether a spouse or a child can reasonably be expected to follow the removed parent to the country of removal (see also para 29). The issue was laid to rest in VW (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 5; [2009] Imm AR 436 (paras 19, 24)). The ECtHR, although it uses the phrases insurmountable obstacles, major impediments, serious impediments or, in the French version of certain judgments, merely obstacles, looks in substance at the difficulties facing families and whether it is reasonable to expect family members to relocate. This is so, not only in cases involving settled migrants (see Boultif, paras 48, 52 55) but also in cases involving a precarious immigration status. For example, in Mokrani v France (2003) 40 EHRR 5, which involved a relationship commenced after a deportation order had been issued, the court, noting that the applicant could not have been unaware of the relative precariousness of his situation went on to say, in finding a violation of article 8, it is hardly conceivable that the wife, a French national who has never lived in Algeria and who has no links with that country, should be expected to follow the applicant to Algeria (para 34). The fourth and fifth categories under para 399A (the article 8 private life provisions, whilst para 399 purports to deal with family life) involve those who have been living in the UK for a prescribed number of years or who are less than 25 years old and have spent at least half their life in the UK and have no ties with the country to which they would be deported. This is an extremely high threshold to meet. Despite having lived in the UK for many years, a person may continue to speak the language of their country of origin, or may have family who remain living there. But this does not mean that their deportation would not be disproportionate. Furthermore, the rules do not take into account the personal, cultural, linguistic and economic ties that a person has with the United Kingdom, or assess their degree of integration in this country, factors which are indisputably relevant to an article 8 assessment. One can accept that all five categories describe groups of people who may readily be supposed to have established a family or private life in the UK. It cannot be said, however, that these groups are comprehensive of all whose circumstances might properly come within that rubric. Indeed, the rules also make the mistake of addressing family and private life separately, rather than recognising that the impact of expulsion on private and family life must be considered cumulatively (Maslov para 63; AA v United Kingdom [2012] Imm AR 107, para 49). Many who fall outside the categories set out in the rules enjoy a full family or private life in every sense. The significance of that inescapable truth is that, under the 2012 Immigration Rules, anyone who does not come within any of the specified categories and who is liable to deportation as a result of their status as a foreign criminal must demonstrate exceptional circumstances in order to outweigh the statutorily imposed public interest in their deportation. That requirement runs directly counter to a proper assessment of whether an interference with the right to respect for family or private life on the part of those who do not come within one of the exemptions is justified. Exceptional circumstances In requiring exceptional circumstances to be established for a claim made by someone who does not come within one of the narrowly prescribed exemptions in the various categories described above, the Immigration Rules are contrary to a long line of authority, beginning with Huang. At paras 39 to 44 of his judgment in this case, Lord Reed has set out the background to the appeal in Huang and quoted a number of passages from the speech of Lord Bingham which, as Lord Reed has said, remain entirely pertinent to the issues in the present appeal. It is of supreme importance to recognise two features of the Huang decision. The first of these is that consideration of whether an individuals article 8 rights will be infringed by a decision to deport her or to refuse her permission to reside in this country, notwithstanding her article 8 right, does not lend itself naturally to the application of a series of rules. The essential nature of the inquiry into whether (i) the article 8 right is engaged; (ii) there has been an interference with it; and (iii) if so, the interference is justified, inevitably involves a fact sensitive focus. Of course, Immigration Rules, in order to be administratively workable, must contain a series of checks or filters. But two points need to be made about this. First, the primary function of such checks should be to determine whether the applicant qualifies under the rules. And the second is that failure to qualify under the rules should not inhibit the open minded examination of whether article 8 mandates that a decision to grant leave to enter or remain or, as in this case, to refuse to make a deportation order, should be made. The second feature of the Huang decision mirrors the second point made above. At para 20 of Huang Lord Bingham said: In an article 8 case the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. So, the ultimate question is whether the refusal of leave to enter or remain (or, as in this case, the decision to make a deportation order) prejudices the family or private life of the individual sufficiently seriously to amount to a breach of the article 8 right. That quest should not be encumbered by pre emptive considerations of exceptionality. It is, in essence, a simple exercise. Of course, the fact that the person liable to deportation has committed a criminal offence looms large in the considerations weighing in favour of the refusal. But that consideration is no more than a factor to be accorded the weight that the particular circumstances of the case warrant. It must not be an intrinsic impediment of unvarying significance which creates a hurdle of identical weight in all cases and which can only be overcome by the existence of closely defined exceptional circumstances. A proper understanding of the role of the appellate immigration authority, on an appeal from a decision to refuse leave is, as Lord Reed has pointed out (in paras 42 43), vital to an appreciation of how it is to perform its function. It is not a reviewing body. It is not inhibited by findings previously made. On the contrary, it is its duty to find facts for itself and these must include, where relevant, circumstances which have arisen since the original findings were made. For this reason, although the Upper Tribunal in the present case was bound to take account of the Secretary of States reasons for making a deportation order, that was only because these were relevant considerations to which appropriate weight should be given. The fact that the Secretary of State had decided to make a deportation order has no significance for the Upper Tribunal beyond that. Lord Reed refers at para 45 to a licensing decision case, Sagnata Investments Ltd v Norwich Corpn [1971] 2 QB 614, which quotes, at p 637, from a much older licensing case, Stepney Borough Council v Joffe [1949] 1 KB 599, 603. I question the relevance of those decisions in the present context. In a human rights appeal, the function of the Tribunal is to anxiously scrutinise the decision of the Secretary of State, and to assess the proportionality of the interference with the individuals rights for itself. I find myself unable to agree with the statement, in the human rights context, that a court ought not lightly to reverse the Secretary of States decision. My view that this is not the correct approach is reinforced by the existence of a statutory appeal right on human rights grounds. As Lord Reed has observed at para 47, Huang has been followed and developed in such cases as EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] 1 AC 1159; Zoumbas v Secretary of State for the Home Department [2013] UKSC 74; [2013] 1 WLR 3690, para 13, and R (Bibi) v Secretary of State for the Home Department [2015] UKSC 58; [2015] 1 WLR 5055. Observations made by Lord Bingham in EB (Kosovo) as to the impossibility of subjecting article 8 assessments by appellate tribunals to general rules are reflected in the more recent cases referred to, and are thus worthy of particular emphasis: Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court . [T]here is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard edged or bright line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires. (para 12) I agree with Lord Reeds rejection at para 48 of counsel for the Secretary of States criticism of the decision in Bibi. For the reasons given earlier, although the fact that a person resisting deportation is not a settled migrant is relevant, it does not mean that they are debarred from relying on the same type of circumstances as would a settled migrant in advancing an article 8 claim. And as Lady Hale said in Bibi the applicable principles are similar in both instances. Moreover, as Lord Reed has explained, the analytical structure by which the proportionality of a decision or measure should be assessed can, with modest modification, be applied to the present circumstances. That structure has been developed and refined through such cases as Huang; R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2011] UKSC 45; [2012] 1 AC 621, and Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700. It is now firmly established as the appropriate means by which the proportionality of an impugned decision should be determined and it comprehends the fair balance element. It should be applied in this case. MF (Nigeria) v Secretary of State for the Home Department and later cases In MF (Nigeria) the Secretary of State had asserted (in a statement produced during the hearing of the appeal and at the request of the court) that the new rules sought to reflect the Strasbourg jurisprudence when applied to the deportation of foreign criminals: see para 34. In as much as the Court of Appeals statement in MF (Nigeria), at para 44, that the new rules were a complete code suggests that article 8 factors which are not covered by the rules need not be considered, I would strongly disagree. As I have said, the primary function of the checks which the rules contain is to determine whether the applicant qualifies under them. They cannot be regarded as a comprehensive means by which a persons article 8 rights are determined and, indeed, on the hearing of this appeal, Ms Giovanetti made no such claim. In the words of Lord Bingham, an applicant's failure to qualify under the rules is the point at which to begin, not end, consideration of the claim under article 8 (Huang, para 6). The approach to proportionality can be structured; indeed, the formulation of the correct approach in such cases as Aguilar Quila and Bank Mellat is positively helpful in ensuring that examination of whether a decision or measure is proportionate is conducted in a controlled way. But the content of Convention rights and whether interference with them can be said, in any given context, to be proportionate cannot be prescribed. Indeed, although the ECtHR has set out a number of factors that will frequently require to be examined, these do not purport to be exhaustive of the circumstances in which a Convention right is in play or whether interference with such a right is proportionate. Nor will all of those factors be relevant in every conceivable situation. Much less will it be appropriate to attempt to attach a particular weight to individual factors in any general, pre emptive way. For these reasons, the suggestion (made in AJ (Angola) v Secretary of State for the Home Department [2014] EWCA Civ 1636, para 39) that an official or a tribunal should seek to take account of any Convention rights of an appellant through the lens of the new rules themselves, rather than looking to apply Convention rights for themselves in a free standing way outside the new rules cannot be accepted. Nor can it be accepted, as was said in Secretary of State for the Home Department v AQ (Nigeria) [2015] EWCA Civ 250; [2015] Imm AR 990, para 70, that national policy as to the strength of the public interest in the deportation of foreign criminals is a fixed criterion. That proposition cannot be accepted if it was intended to convey that this was a factor of unvarying, immutable weight. The public interest The strength of the public interest in favour of deportation must depend on such matters as the nature and seriousness of the crime, the risk of re offending, and the success of rehabilitation, etc. These factors are relevant to an assessment of the extent to which deportation of a particular individual will further the legitimate aim of preventing crime and disorder, and thus, as pointed out by Lord Reed at para 26, inform the strength of the public interest in deportation. I do not have trouble with the suggestion that there may generally be a strong public interest in the deportation of foreign criminals but a claim that this has a fixed quality, in the sense that its importance is unchanging whatever the circumstances, seems to me to be plainly wrong in principle, and contrary to ECtHR jurisprudence. It is important for the decision maker to scrutinise the elements of public interest in deportation relied upon in an individual case, and the extent to which these factors are rationally connected to the legitimate aim of preventing crime and disorder. That exercise should be undertaken before the decision maker weighs the public interest in deportation against the countervailing factors relating to the individuals private or family life, and reaching a conclusion on whether the interference is proportionate. Three component factors of the public interest in deportation were discussed in OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694; [2009] INLR 109, para 15): risk of re offending, deterrence and societal revulsion towards the commission of criminal offences. I have touched upon the risk of re offending at para 96 above. Where an individual is assessed to pose a low risk of re offending, interference with his article 8 rights on the basis that it is necessary to prevent crime and disorder is more difficult to justify, and the weight to be attached to the public interest in deportation in such a case will be reduced. As to deterrence, Lord Bingham at para 16 of Huang acknowledged the need to discourage non nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain. This observation posits an appropriate distinction between migrants admitted temporarily to the United Kingdom, and persons who hold permanent residence or who have resided in this country for a substantial period of time, for example, children who have lived in this country all or most of their lives. It is at least open to question whether deterrence is a relevant component of the public interest in deportation so far as this latter group is concerned. Where the threat of a custodial sentence has failed to deter such persons from offending, one must query whether the threat of deportation would have any greater effect. No evidence has been presented to support such a contention. Expression of societal revulsion, the third of the factors applied in OH (Serbia), should no longer be seen as a component of the public interest in deportation. It is not rationally connected to, nor does it serve, the aim of preventing crime and disorder. Societal disapproval of any form of criminal offending should be expressed through the imposition of an appropriate penalty. There is no rational basis for expressing additional revulsion on account of the nationality of the offender, and indeed to do so would be contrary to the spirit of the Convention. Much has been said of the public interest in the deportation of foreign national criminals. But the public interest is multi faceted, and there are other important factors which contribute to the positive development of our society and are thus matters in the general public interest. These factors may be a relevant consideration in the article 8 proportionality assessment, and have a free standing value, independent of that which attaches to the individual facing deportation. For example, there is a public interest in families being kept together, in the welfare of children being given primacy, in valuing a person who makes a special contribution to their community, and in encouraging and respecting the rehabilitation of offenders. These factors all play a role in the construction of a strong and cohesive society. They are recognised outwith the immigration context, and certain factors are given statutory recognition. Where relevant they should be part of the proportionality equation. The proceedings I agree with and gratefully adopt Lord Reeds account of the proceedings, save for his review of the Upper Tribunals consideration of the appellants circumstances. Lord Reed has said (in para 60) that it is not apparent that the judge took account of the fact that the appellants relationship with Ms Harwood had been formed at a time when his immigration status was such that the persistence of family life within the UK was precarious and that its continuance after his release from prison took place when he was facing deportation proceedings. At para 42 of the judges reasons he recorded that the appellant had accepted that his relationship with [Ms Harwood] developed when his immigration status was uncertain. And at para 64, the judge observed that Ms Harwood had learned of the appellants precarious immigration status following his involvement in criminal offences. At para 70, Ms Harwood is recorded as having said that she wanted to marry the appellant and have a proper wedding but that this was difficult because of his uncertain immigration status. Quite apart from these items of evidence and the judges express reference to them, the appellants precarious immigration status and the fact that he was facing deportation proceedings when he was released from prison are indisputable facts. I find it hard to believe in these circumstances that the judge did not attach weight to them. The fact that they were not discussed prominently among the welter of matters that the judge was required to consider does not mean that they were left out of account. On the contrary, his mention of the appellants and Ms Harwoods awareness of them seems to me to suggest that he had them well in mind in reaching his conclusion. Lord Reed also considers that the Upper Tribunal erred in failing to take any account of the new rules on the basis that they did not assist with the proper assessment of the applicants human rights (paras 60 and 63). I do not consider that the Upper Tribunals failure to take account of the rules impaired its approach to the article 8 proportionality assessment. In my opinion, the Upper Tribunal succinctly, but correctly, expressed the proper approach to article 8, apart from its reference to societys disapproval as a basis on which deportation could be justified. (Since the Upper Tribunal found that the decision to deport was disproportionate, however, this error does not signify.) At para 95 of his Determination and Reasons the judge said: I have to decide if the interference in (sic) the private and family life consequent on removal is proportionate to the proper purpose of deporting foreign criminals for the purposes of the prevention of disorder and crime. I have to do that knowing that it is unlikely that this appellant will commit further offences. The point is the deterrent effect or general expression of societys disapproval of foreign criminals, rather than preventing further trouble from this particular man, that is important in this case. The judge also recognised that the 2007 Act had expressed a legitimate public interest in the deportation of foreign criminals and acknowledged that he was bound to respect the policy as set out in section 32(5) of the 2007 Act (para 96), and subsequently referred to the imperative of removal in his discussion (paras 98 and 102). He then set out a number of reasons which, taken in combination, led him to the conclusion that his deportation would be disproportionate. These included that the appellant had no family in Iraq and had not lived there since the age of 12 (this was not determinative, but a factor against removal para 100); the appellants length of stay in the UK and positive attitude to future behaviour were significant factors to weigh in the balance against the imperative of removal (para 102); and his genuine, strong and important relationship with his fiance (paras 94, 99), whose being required to relocate to Iraq would not be reasonable (para 88). This is precisely the type of fact sensitive proportionality assessment that both ECtHR jurisprudence and binding domestic authority requires and I cannot fault it. The Court of Appeal decision The Court of Appeals basic error was its misunderstanding of the significance of sections 32 and 33 of the 2007 Act, and its conclusion that MF (Nigeria) [2014] 1 WLR 544 and SS (Nigeria) [2014] 1 WLR 998 required tribunals to give preponderant weight to the public interest in the deportation of foreign criminals at the expense of a proper examination of the circumstances of individual cases. All article 8 claims had to be refused if they fell outside rules 399 and 399A unless they could identify exceptional or compelling circumstances. The inevitable circumscription of a proper article 8 inquiry that such an approach entails cannot be upheld for the reasons earlier given. The second ground of appeal (that the Upper Tribunal had failed to recognise the importance of the public interest in deporting foreign criminals) is plainly unsustainable once the correct approach to sections 32 and 33 is understood. As I pointed out in para 172 above, the judge actually overstated the scope of the public interest but, for the reasons given, this had no impact on the otherwise correct decision that he reached. Grounds (iii) and (iv) (which the Court of Appeal found it unnecessary to consider in light of its conclusion on grounds (i) and (ii)) are unarguable, in my opinion. Ground (iii) averred that the Upper Tribunal had failed to apply the guidance given in ner. I need not repeat my discussion of the guidance to be derived from that case. There is nothing in that guidance which is in conflict with the approach of the Upper Tribunal. Since, for the reasons that I have given as to the general propriety of the Upper Tribunals approach, I consider that ground (iv) is unsustainable. Conclusion I would allow the appeal and restore the decision of the Upper Tribunal.	These proceedings challenge a deportation order made in respect of the appellant, an Iraqi national who has lived unlawfully in the UK since 2000. He made an asylum claim in 2002, which was rejected, and his subsequent appeal was dismissed. In November 2005 he was convicted of Class A and C drug possession and was fined. On 4 December 2006, he was convicted of two counts of Class A drug possession with intent to supply, and sentenced to four years' imprisonment. Upon completion of his sentence in January 2011 he was considered to present a low risk of re offending. He has been in a relationship with his fiance, a British citizen, since 2005. The appellant has two children who probably reside in the UK, and with whom he has no contact. He has no remaining family in Iraq. On 5 October 2010 the Secretary of State made an automatic deportation order under s.32(5) of the UK Borders Act 2007. S.32(5) requires deportation orders to be made in respect of foreign criminals unless one of the exceptions in s.33 applies, which include breach of ECHR rights. A foreign criminal is defined in s.32(1) as a person who is not a British citizen, who is convicted in the UK of an offence and is sentenced to a period of imprisonment of at least 12 months. The Secretary of State found that the appellant did not fall within any of the exceptions in s.33: she accepted that deportation might interfere with the appellants ECHR article 8 rights to private and family life, but considered that this was proportionate to the aim of preventing disorder or crime and the maintenance of effective immigration control. The appellant appealed the Secretary of States decision, but the First tier Tribunal dismissed his appeal. The appellant then appealed to the Upper Tribunal, which set aside the First tier Tribunals decision and re heard the appeal, allowing it on the ground that a s.33 exception applied: the appellants removal would be incompatible with his rights under article 8. The Court of Appeal allowed the Secretary of States appeal on the ground that the Upper Tribunal had failed, in its assessment of proportionality, to take into account the new Immigration Rules which had come into force in July 2012, and had failed to recognise the importance of the public interest in deporting foreign criminals. The Court of Appeal remitted the appeal for re consideration by a differently constituted Upper Tribunal. This is the appeal against the decision of the Court of Appeal to remit. The Supreme Court dismisses Mr Alis appeal by a majority of 6 to 1. Lord Reed gives the lead judgment (with which Lord Neuberger, Lady Hale, Lord Wilson, Lord Hughes and Lord Thomas agree). Lord Wilson and Lord Thomas each add a concurring judgment. Lord Kerr gives a dissenting judgment. The Immigration Rules (the Rules) were a relevant and important consideration which the Upper Tribunal ought to have taken into account when assessing the proportionality of the interference with the appellants article 8 rights. It should also have taken into account that his relationship with his partner was formed at a time when his immigration status was such that the persistence of family life within the UK was uncertain [60]. The European Court of Human Rights has provided guidance to the factors which should be taken into account in the balancing exercise (for example in Boultif v Switzerland (2001) 33 EHRR 50, Maslov v Austria [2009] INLR 47, Jeunesse v Netherlands (2014) 60 EHRR 17). These factors involve wide ranging consideration of the appellants circumstances including the nature of his private and family life in the UK, his links to the destination country, and the likelihood of him re offending [26 33]. The weight to be attached to each factor in the balancing exercise falls within the margin of appreciation of the national authorities [35]. The Rules set out the Secretary of States assessment of the weight generally to be afforded to some of these factors. In particular, the Rules prescribe a presumption that the deportation of foreign criminals is in the public interest, except where specified factors are present which the Rules accept outweigh that interest. Outside of those specified factors (for example in every case where a custodial sentence of 4 years of more has been imposed, as here), the Rules state that exceptional circumstances that is, compelling reasons are required to outweigh the public interest in deportation. The Rules are not law, but do have a statutory basis and require the approval of Parliament. It is within the margin of appreciation to adopt rules reflecting the assessment of the general public interest made by the Secretary of State and endorsed by Parliament. [15 23, 36 39]. As an appellate body, the Upper Tribunals decision making process is not governed by the Rules, but should nevertheless involve their consideration. The Upper Tribunal must make its own assessment of the proportionality of deportation, on the basis of its own consideration of the factors relevant to the particular case, and application of the relevant law. But in doing so, it must not disregard the decision under appeal. Where the Secretary of State has adopted a policy in relation to the assessment of proportionality, set out in the Rules and endorsed by Parliament, the Upper Tribunal should give considerable weight to that policy. In this case that policy was that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offenders deportation almost always outweighs countervailing considerations of private or family life [39 50, 60 64]. Lord Wilson adds that public concern (as reflected in the Rules endorsed by Parliament) can assist a courts objective analysis of where the public interest lies [65 81]. Lord Thomas emphasises the importance of clear reasoning at first instance through a structured balance sheet approach [82 84]. In a dissenting judgment, Lord Kerr would have allowed the appeal and upheld the decision of the Upper Tribunal. He concluded that the application of the Rules, and their prescription of the weight to be given to the public interest in the deportation of foreign criminals, were not compatible with the balancing exercise that had to be undertaken in considering the relevant factors arising under article 8 in a particular case. It had been sufficient for the Upper Tribunal to take into account those relevant factors. Undue or unique reliance on the Rules, at the expense of a comprehensive survey of the pertinent article 8 factors was not appropriate.
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.	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].
The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights (ECHR). A person who was unlawfully imprisoned could, and can, secure his release through the writ of habeas corpus. He could, and can, also secure damages for the tort of false imprisonment. This case is about the meaning of imprisonment at common law and whether it should, or should not, now be aligned with the concept of deprivation of liberty in article 5 of the ECHR. The story so far This is a claim for damages for false imprisonment brought in judicial review proceedings challenging the legality of a curfew imposed upon the claimant, purportedly under paragraph 2(5) of Schedule 3 to the Immigration Act 1971 (the 1971 Act). That reads: A person to whom this sub paragraph applies shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by the Secretary of State. There is a dispute about the claimants identity. He claims to be a Liberian national named Ibrahima Jalloh. The Secretary of State asserts that he is a Guinean national named Thierno Ibrahima Diallo. This dispute is irrelevant to the issues before this Court. The claimant was granted asylum under his claimed name on 29 August 2003. However, following his conviction of various offences in 2006, the Secretary of State made a deportation order against him on 21 July 2008. This was still extant when the events with which we are concerned began. (It was revoked on 22 September 2015 and a new order made on 20 December 2016.) On 15 April 2013, the claimant was convicted and sentenced for a further offence and on 16 April 2013, when the custodial part of his sentence expired (because of time already spent in custody on remand), he was detained by the Secretary of State under powers conferred by the 1971 Act. On 29 October 2013, the claimant was given bail by a judge of the First tier Tribunal. The bail conditions included requirements as to residence and electronic monitoring but not a curfew. On 30 October, as required in the grant of bail, the claimant reported to an immigration officer. The bail granted by the tribunal thereupon came to an end. The claimant was then issued with a document headed NOTICE OF RESTRICTION. This stated that he was liable to be detained under the Immigration Act 1971 but that he would not be detained. Instead, he would have restrictions imposed upon him under paragraph 2(5) of Schedule 3 to the 1971 Act. The restrictions included a requirement to report to an immigration officer every Monday, Wednesday and Friday, to live at a specified address and YOU ARE TO ELECTRONICALLY BY MEANS OF BE MONITORED TAGGING/TRACKING. He was to be at his address in Sunderland between specified hours on a specified date for induction into the monitoring system. Following induction, he must be present at the address shown above between the hours of 23.00 hours to 07.00 am every day, and every day thereafter between the hours of 23.00 hours to 07.00 am. This imposed a curfew of eight hours every day. The notice continued: You should note that [i]f without reasonable excuse you fail to comply with any of these restrictions you will be liable on conviction to a fine not exceeding the maximum on level 5 of the standard scale (currently 5,000) or imprisonment for up to six months or both. The monitoring equipment was installed on 3 February 2014 and the claimant was fitted with an electronic tag. The claimant was issued with a further Notice of Restriction on 8 March 2014 to the same effect as the first. The curfew was in place from 3 February until 14 July 2016, a total of 891 days. The claimant did not always comply with it. On 37 occasions he was away from home without permission for the whole of the curfew period, 29 of those because he was attending care proceedings in Coventry relating to his daughter and step daughter. On 108 occasions he was away from home without permission for part of the curfew period, 57 of those for more than an hour. Some of those were connected with Ramadan and some with returning from Coventry. But the claimant did, broadly, seek to comply with the curfew and curtailed his social activities to a limited extent. The curfew was lifted by order of Collins J in these judicial review proceedings, which were brought by the claimant following the judgment of the Court of Appeal in the case of R (Gedi) v Secretary of State for the Home Department [2016] EWCA Civ 409; [2016] 4 WLR 93. The court there held that paragraph 2(5) of Schedule 3 to the 1971 Act (see para 2 above) did not empower the Secretary of State to impose a curfew by way of a restriction under that paragraph. The Secretary of State has, understandably, not sought to challenge that holding. However, she did seek to impose the same curfew again on the claimant, but this time under paragraph 22 of Schedule 2 to the 1971 Act. On 14 July 2016, Collins J ordered that that curfew be lifted, which it was. On 14 February 2017, at a preliminary hearing, Lewis J held that the curfew constituted imprisonment for the purpose of the tort of false imprisonment, following the decision of Edis J at first instance in the case of R (Gedi) v Secretary of State for the Home Department [2015] EWHC 2786 (Admin) (the Court of Appeal did not deal with this point in Gedi but left it open): [2017] EWHC 330 (Admin). After a three day trial, on 9 November 2017, Lewis J awarded the claimant 4,000 damages for false imprisonment: [2017] EWHC 2821 (Admin). On appeal, the Court of Appeal held that the curfew did indeed amount to imprisonment and so dismissed the Secretary of States appeal on liability; it also dismissed the claimants cross appeal on the measure of damages: [2018] EWCA Civ 1260; [2019] 1 WLR 394. The Secretary of State now appeals to this Court, arguing, first, that the curfew did not amount to imprisonment at common law, and second, that if it did, it did not amount to a deprivation of liberty under article 5 of the ECHR and the common law concept of imprisonment should now be aligned with that concept. The first issue: Imprisonment at Common Law Mr Robin Tam QC, for the Secretary of State, argues that the curfew did not amount to imprisonment at common law. He makes five propositions. His first proposition is that imprisonment requires constraint on a persons freedom of movement, usually by physical or human barriers, such as locked doors or guards. Voluntary compliance with a request or instruction is not enough. An illustration is the Irish case of Phillips v Great Northern Railway Co (1903) 4 NIJR 154. There was an argument between the claimant, who was travelling with two daughters and a dog, and the ticket collector, who wrongly thought that she was defrauding the company. As the claimant was stepping into the cab ordered by one of her daughters, the ticket collector told her not to move. He fetched the station master, but after some further argument, she got into the cab and it drove off. Lord OBrien LCJ held that there was no evidence of total restraint of the person. Voluntary compliance is not enough, even if the request is backed up with a warrant which could be executed by force. He cites Arrowsmith v Le Mesurier (1806) 2 Bos & P (NR) 211, 127 ER 605, where Sir James Mansfield CJ held that there was no imprisonment when a constable simply showed the claimant a magistrates warrant for his arrest and the claimant went voluntarily with the constable to see the magistrate: the warrant was treated as a summons rather than an arrest. Berry v Adamson (1827) 6 B & C 528, 108 ER 546, was a fortiori: the officer merely sent his man with a message to the claimant that there was a writ and that he should fix a time for giving bail. On the other side of the line was Grainger v Hill (1838) 4 Bing (NC) 212, 132 ER 769. Tindal CJ held that it was enough for the sheriffs officer to tell the claimant, while he was lying ill in bed, that there was a writ of capias against him and unless he surrendered his ships register or found bail, he would be taken away or a man would be left with him: this was a sufficient restraint of his person to amount to an arrest. His second proposition is that, if the constraint is not by physical barriers, it has to be of a nature that is intended to keep the person in the same place and there have to be the means of doing so. He cites Grainger v Hill as an illustration of this form of imprisonment; also Warner v Riddiford (1858) 4 CB (NS) 180, 140 ER 1052, where it was held that the claimant was imprisoned when he was refused permission by police officers, acting on behalf of his employers, to leave the room and go upstairs in his own house; and Meering v Graham White Aviation Co Ltd (1920) 122 LTR 44, where the claimant was suspected of being involved in thefts of material from the company. A warrant was obtained to search the place where the claimant was staying. The claimant was not there when the search took place, but the companys own security officers waited until he returned and took him to the companys offices where they waited for the police officers who eventually arrested him. It was held that he was imprisoned by the companys officers while they were waiting. From the moment that the claimant had come under the influence of the companys officers, there was evidence to support the jurys conclusion that he was no longer a free man. Atkin LJ emphasised, at p 53, that it is perfectly possible for a person to be imprisoned in law without his knowing the fact and appreciating that he is imprisoned: if a man could be imprisoned in a locked room without knowing that the door was locked, he could also be imprisoned by being in a room with guards who would prevent his leaving, even if he did not know this. His third proposition is that the constraint must be total or complete, restricting the person to a particular place. The leading case is Bird v Jones (1845) 7 QB 742. Part of Hammersmith Bridge, which was usually used as a footpath, was enclosed and seats were erected for people to watch a boat race on the Thames, for which they were charged a fee. The claimant wanted to walk along the footpath in the usual way but was forcibly prevented by policemen from doing so. He could always have left the enclosure, and crossed the bridge along the roadway, but he could not leave in the way that he wanted to do. The majority held that this was not imprisonment because it was only a partial obstruction. Bird v Jones was approved by the Judicial Committee of the Privy Council in Syed Mahamad Yusuf Ud Din v Secretary of State for India (1903) 30 Ind App 154, where it was held that a prisoner who was out on bail was not imprisoned while on bail: nothing short of actual detention and complete loss of freedom would do. Robinson v Balmain New Ferry Co Ltd [1910] AC 295 was another Privy Council case. There were entry and exit turnstiles to the ferry wharf on each side of the water to be crossed. The claimant paid his penny to enter the wharf on one side, intending to take the ferry to the other side, but then changed his mind and was not allowed to leave without paying the exit penny. This was not imprisonment as there was an exit route and he had agreed to the terms. His fourth proposition is that a person is not imprisoned if he is able to leave that place by another route, even if that is not the way he wants to go and even if it involves trespassing. The earliest case cited was Wright v Wilson (1699) 1 Ld Raym 739, 91 ER 1394, where Holt CJ ruled that it was not false imprisonment to lock one of two doors out of a room, when the claimant could have got out through the other door, although this would involve trespassing through another persons room. His fifth proposition is that it is not enough that the act of leaving would trigger an adverse response, such as prosecution or arrest. This is illustrated by cases such as Arrowsmith v Le Mesurier and Phillips v Great Northern Railway Co, but also by the decision of the House of Lords in R v Bournewood Community and Mental Health NHS Trust, Ex p L [1999] 1 AC 458. L was a severely mentally disabled man who became agitated at his day centre and an emergency psychiatric team was called. He was sedated and taken to hospital. The psychiatrist decided to admit him as an informal patient, rather than compulsorily, because by that time he was compliant and showing no desire to leave. He was placed in an unlocked ward, but his foster parents were not allowed to visit in case he showed signs of wanting to leave with them. If he had wanted to leave, he would have been compulsorily detained under the Mental Health Act 1983. The House of Lords held, by a majority, that he had not been detained while an informal patient. Lord Steyn and Lord Nolan disagreed. Lord Steyn, at p 495, described the suggestion that he was free to leave as a fairy tale. The fact that he did not know that he was imprisoned was irrelevant, as Meering showed. Applying these propositions, Mr Tam argues that the claimant was not locked into his home; there were no guards to prevent his leaving; there was no other way in which he was physically prevented from leaving home; indeed, he was able to break the curfew on numerous occasions the constraint was not total or complete; there might be adverse consequences if he did so either prosecution for an offence or being detained once more under the 1971 Act but these would not result in his being kept in the place where he was instructed to remain. The situation is not comparable to being detained in an open prison or psychiatric hospital, to which one can be returned by force if one goes absent without leave. Against this, Ms Dinah Rose QC, for the claimant, derives the following propositions from those same authorities. First, imprisonment is the imposition of restraint upon a persons liberty so that he is compelled at the will of a third person to stay within a defined boundary. Second, the restraint must be complete, in the sense that he is required to stay within a defined area. There is no imprisonment if movement is blocked in one direction but he remains free to depart in a different direction. Third, it is imprisonment no matter how short the period a few seconds is sufficient. Fourth, the restraint must be immediate and not conditional. Fifth, complete restraint does not mean that there must be physical barriers such as locks or guards to prevent him leaving. Nor does it mean that it must be physically impossible to leave. He is imprisoned if he is made to stay by intimidation or threats, fear of the consequences, or submission to apparent legal authority. Sixth, it is also imprisonment if he is made to stay by the threat of imprisonment if he leaves, including the threat of arrest or prosecution. Seventh, the threat does not have to be a threat to return him to the same place of confinement. Eighth, it is also imprisonment if he is only able to leave the defined area by an unreasonable means or route, for example, by jumping out of a first floor window or risking prosecution by doing so. An obvious illustration of the reasonableness principle is the true story told by Eric Williams in his 1949 novel, The Wooden Horse. Prisoners of war escaped from their prison camp by concealing their tunnelling under a wooden vaulting horse: their will was never overborne because they always intended to escape and it did prove physically possible for them to do so but they clearly were imprisoned while they were in the camp. Another illustration is the decision of the Court of Appeal of Victoria in McFadzean v Construction, Forestry, Mining and Energy Union [2007] VSCA 289; [2007] 20 VR 250. The Union set a picket round a camp set up by anti logging protesters to prevent the protesters getting out. The protesters could have asked the police to escort them out, but that did not mean that they were not imprisoned until they did so. But the protesters could also have escaped at any time along a track through the bush: this was a reasonable means of egress and so they had not been imprisoned. The most problematic case from the claimants point of view is the Bournewood decision in the House of Lords. But, argues Ms Rose, it has no bearing because if a person is not actually confined at the moment, the fact that he might be confined if he tries to leave does not make it imprisonment. This is different from being actually confined by fear of the consequences if one leaves. In any event, she points out that the case might well be decided differently today. The Court of Appeal were unanimous in holding that the patient was imprisoned. The House of Lords decided otherwise by a narrow majority and it is not easy to grasp their rationale. And the European Court of Human Rights held that he had been deprived of his liberty: HL v United Kingdom (2004) 40 EHRR 32. So far as is known, this is the only example of a deprivation of liberty which did not amount to imprisonment at common law: generally speaking, one may well be imprisoned without being deprived of ones liberty, but the other way round is harder to envisage. Discussion on the first issue As it is put in Street on Torts, 15th ed (2018), by Christian Witting, p 259, False imprisonment involves an act of the defendant which directly and intentionally (or possibly negligently) causes the confinement of the claimant within an area delimited by the defendant. The essence of imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various. They could be physical barriers, such as locks and bars. They could be physical people, such as guards who would physically prevent the person leaving if he tried to do so. They could also be threats, whether of force or of legal process. A good example is R v Rumble [2003] EWCA Crim 770; (2003) 167 JP 205. The defendant in a magistrates court who had surrendered to his bail was in custody even though there was no dock, no usher, nor security staff and thus nothing to prevent his escaping (as indeed he did). The point is that the person is obliged to stay where he is ordered to stay whether he wants to do so or not. In this case there is no doubt that the defendant defined the place where the claimant was to stay between the hours of 11.00 pm and 7.00 am. There was no suggestion that he could go somewhere else during those hours without the defendants permission. This is not a case like Bird v Jones where the claimant could cross the bridge by another route or Robinson v Balmain New Ferry Co Ltd where he had agreed to go onto the wharf on terms that he could only get out if he paid a penny. The fact that the claimant did from time to time ignore his curfew for reasons that seemed good to him makes no difference to his situation while he was obeying it. Like the prisoner who goes absent from his open prison, or the tunneller who gets out of the prison camp, he is not imprisoned while he is away. But he is imprisoned while he is where the defendant wants him to be. There is, of course, a crucial difference between voluntary compliance with an instruction and enforced compliance with that instruction. The Court of Appeal held that this was a case of enforced not voluntary compliance and I agree. It is not to be compared with those cases in which the claimant went voluntarily with the sheriffs officer. There can be no doubt that the claimants compliance was enforced. He was wearing an electronic tag which meant that leaving his address would be detected. The monitoring company would then telephone him to find out where he was. He was warned in the clearest possible terms that breaking the curfew could lead to a 5,000 fine or imprisonment for up to six months or both. He was well aware that it could also lead to his being detained again under the 1971 Act. All of this was backed up by the full authority of the State, which was claiming to have the power to do this. The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal. For what it is worth, in the case of Secretary of State for the Home Department v JJ [2007] UKHL 45; [2008] AC 385, it was taken for granted that a curfew enforced by electronic tagging, clocking in and clocking out, and arrest or imprisonment for breach was a classic detention or confinement (para 59). The only question was whether it was also a deprivation of liberty within the meaning of article 5 of the ECHR, which leads on to the second issue. The second issue: Deprivation of Liberty Mr Tam makes an alternative argument in this Court which was not open to him in the courts below. This is that the concept of imprisonment for the purpose of the tort of false imprisonment should now be aligned with the concept of deprivation of liberty within the meaning of article 5 of the ECHR. The classic definition of this concept is taken from Guzzardi v Italy (1980) 3 EHRR 333, para 92: In order to determine whether someone has been deprived of his liberty within the meaning of article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The ECHR distinguishes between the deprivation and restriction of liberty and the court emphasised that this was a matter of degree rather than nature or substance (para 93). This multi factorial approach is very different from the approach of the common law to imprisonment. In Austin v Comr of Police of the Metropolis [2007] EWCA Civ 989; [2008] QB 660, the Court of Appeal held that kettling the claimants for several hours at Oxford Circus was indeed imprisonment at common law, but that it was justified by the common law principle of necessity; however, it was not a deprivation of liberty within the meaning of article 5, a conclusion with which both the House of Lords and the European Court of Human Rights agreed: [2009] UKHL 5; [2009] 1 AC 564, and Austin v United Kingdom (2012) 55 EHRR 14. The trial judges observation that there could be imprisonment at common law without there being a deprivation of liberty under article 5 and vice versa was cited by the Court of Appeal with apparent approval (para 87). That observation was repeated by the Court of Appeal in Walker v Comr of Police of the Metropolis [2014] EWCA Civ 897; [2015] 1 WLR 312, where it was held to be false imprisonment for a police officer to stand in the front doorway of a house so as to prevent the claimant from leaving, even for a very short time, but it was not a deprivation of liberty within the meaning of article 5. By contrast, when the Bournewood case reached the European Court of Human Rights, that court held that the patient had been deprived of his liberty within the meaning of article 5: HL v United Kingdom. This is thought to be the only case going the other way. Imprisonment for the purpose of the tort of false imprisonment can take place for a very short period of time, whereas a number of factors are relevant to whether there has been a deprivation of liberty. On the other hand, imprisonment may be justified at common law in circumstances which are not covered by the list of possibly permissible deprivations of liberty in article 5(1) of the ECHR. Mr Tam argues that the time has now come to align the two concepts: specifically to align the concept of imprisonment with the concept of deprivation of liberty. He says this because, in Secretary of State for the Home Department v JJ [2007] UKHL 45; [2008] AC 385, while the House of Lords held, by a majority, that a 16 hour curfew was a deprivation of liberty, Lord Brown of Eaton under Heywood expressed the view that an eight hour curfew, such as this, would not be such a deprivation. It is, of course, the case that the common law is capable of being developed to meet the changing needs of society. In Lord Toulsons famous words in Kennedy v Charity Commission [2014] UKSC 20; [2015] AC 435, para 133, it was not the purpose of the Human Rights Act that the common law should become an ossuary. Sometimes those developments will bring it closer to the ECHR and sometimes they will not. But what Mr Tam is asking this Court to do is not to develop the law but to make it take a retrograde step: to restrict the classic understanding of imprisonment at common law to the very different and much more nuanced concept of deprivation of liberty under the ECHR. The Strasbourg court has adopted this approach because of the need to draw a distinction between the deprivation and the restriction of physical liberty. There is no need for the common law to draw such a distinction and every reason for the common law to continue to protect those whom is has protected for centuries against unlawful imprisonment, whether by the State or private persons. The Court of Appeal in Austin and in Walker were right to say that there could be imprisonment at common law without there being a deprivation of liberty under article 5. Whether they were also right to add and vice versa may be open to doubt in the light of the Bournewood saga, but it is not necessary for us to express an opinion on the matter. Conclusion I would dismiss this appeal.	This appeal is about the law on damages for false imprisonment. It requires the Supreme Court to consider the meaning of imprisonment at common law and whether this should be aligned with the concept of deprivation of liberty under the European Convention on Human Rights (ECHR). The claimant (who claims to be a Liberian national named Ibrahima Jalloh, although his identity is disputed by the Home Office) was released from immigration detention on bail in October 2013. On the following day, he reported to an immigration officer. He was given a document headed NOTICE OF RESTRICTION purporting to impose restrictions on him under paragraph 2(5) of Schedule 3 to the Immigration Act 1971. The restrictions included a requirement to report to an immigration officer every Monday, Wednesday and Friday, to live at a specified address in Sunderland, to submit to electronic tagging and to stay at home each night between the hours of 11.00 pm and 7.00 am. The notice warned him that he would be liable to imprisonment or a fine if he failed to comply with the curfew without reasonable excuse. Electronic monitoring equipment was installed and the curfew was in place from 3 February 2014 until 14 July 2016, a total of 891 days. On the whole, the claimant sought to comply with the curfew although he did break it on a number of occasions, leaving the house (among other things) for religious observance and to attend family court proceedings in Coventry. It transpired in 2016 that the Secretary of State had no legal power to impose restrictions by way of curfew in this way: R (Gedi) v Secretary of State for the Home Department [2016] EWCA Civ 409. In consequence of that decision, the High Court ordered the claimants curfew to be lifted. The Secretary of State now accepts the curfew was unlawful from the start. The claimant sought damages for false imprisonment, arguing he had been confined to his house without any legal basis for long periods of time. Mr Justice Lewis accepted that argument and awarded him 4,000 in damages. The Court of Appeal upheld his decision. On appeal to the Supreme Court, the Home Secretary argues that (1) the curfew (although unlawful) did not qualify as imprisonment at common law; and (2) if it did, the common law concept of imprisonment should be modified and aligned with the more demanding concept of deprivation of liberty under article 5 of the ECHR. The Supreme Court unanimously dismisses the Secretary of States appeal. Lady Hale gives the only judgment with which Lord Kerr, Lord Carnwath, Lord Briggs and Lord Sales agree. Imprisonment The essence of imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various. They include physical barriers, guards or threats of force or of legal process [24]. In this case there is no doubt that the Secretary of State defined the place where the claimant was to stay between the hours of 11.00 pm and 7.00 am. There was no suggestion that he could go somewhere else during those hours without the Secretary of States permission [25]. Although the claimant broke his curfew from time to time, this made no difference to his situation while he was obeying it. Like a prisoner who goes absent from an open prison, or a tunneller who successfully escapes from a prison camp, the claimant was not imprisoned while he was away, but he was imprisoned as long as he stayed at home [26]. Although it was physically possible for the claimant to leave, his compliance was enforced and not voluntary. He was wearing an electronic tag which meant that leaving his address would be detected. The monitoring company would then telephone him to find out where he was. He was warned in the clearest possible terms that breaking the curfew could lead to a 5,000 fine or imprisonment for up to six months or both. He was well aware that it could also lead to his being detained again under the 1971 Act. All of this was backed up by the full authority of the State, which was claiming to have the power to do this [27]. This is a case of classic detention or confinement [28]. Deprivation of liberty The ECHR distinguishes between deprivation and mere restriction of physical liberty. Whether there has been a deprivation of liberty depends on a number of factors including the type, duration and effects of the confinement [29] [30]. In Secretary of State for the Home Department v JJ [2007] UKHL 45, Lord Brown expressed the view that an eight hour curfew would not amount to a deprivation of liberty for these purposes [32]. Consequently, the Secretary of State argued the curfew in this case would not amount to a deprivation of liberty, and suggested the time had come to align the domestic law of false imprisonment with the concept of deprivation of liberty under the ECHR. The Supreme Court unanimously declines to do so. Although the common law may develop to meet the changing needs of society, this proposal would not develop the law but make it take a retrograde step. It would restrict the classic understanding of imprisonment at common law to the very different and much more nuanced concept of deprivation of liberty under the ECHR. This approach derives from the need to distinguish under the ECHR between the deprivation and the restriction of physical liberty. There is no need for the common law to draw such a distinction and every reason for the common law to continue to protect those whom is has protected for centuries against unlawful imprisonment, whether by the state or private persons [33]. Accordingly, it is possible for there to be imprisonment at common law without a deprivation of liberty under article 5. It is not necessary to decide whether the converse is true [34].
The object of damages in tort is to put the claimant, as far as possible, back in the position in which she would have been had the tort not been committed. Money has to compensate, as far as it can, for those injuries that cannot be cured. For some women, the ability to bear and to rear children is a vital part of their identity. What then should be the measure of damages for a woman who has been wrongfully deprived of the ability to bear children herself? Along with general damages for pain, suffering and loss of amenity, should it include the cost of making surrogacy arrangements with another woman to bear a child for her to bring up? In particular, should it include the cost of making commercial surrogacy arrangements abroad? The history The claimant was born in 1983 and so was aged 29 when the negligence in question was discovered. She had a cervical smear test in 2008 which was wrongly reported as negative when in fact it showed severe dyskariosis. She had another smear test in February 2012 which again was wrongly reported as inadequate when in fact it showed invasive carcinoma. She had a repeat smear test in September 2012 which again was wrongly reported as showing severe dyskariosis when in fact it showed features suggestive of invasive carcinoma. In September and October 2012 she underwent cervical biopsies and these too were wrongly reported as showing pre malignant changes when in fact they showed evidence of invasive carcinoma. The hospital admitted negligence in respect of the 2008 and February 2012 smear tests and both the biopsies. Had appropriate action been taken in 2008, there was a 95% chance of a complete cure, and she would not have developed cancer at all. The errors were detected in 2013 when her pathology was reviewed as a result of the symptoms she was suffering. In June 2013 she was told that she had cervical cancer and was referred to another hospital. That hospital assessed her condition as too far advanced for her to have the surgery which would have preserved her ability to bear a child. She was advised to have chemo radiotherapy which would result in her being unable to bear a child. This was confirmed by two further medical opinions. In June 2013, therefore, the claimant underwent a round of ovarian stimulation and egg collection as a result of which she has eight mature eggs frozen in storage. After that, she had surgery and chemo radiotherapy. As a result of this she suffered significant complications, long term disability and psychiatric injury, for which she has been awarded substantial damages. The damage to her womb was such that she could not bear children herself. The focus of this appeal is upon the damages payable for the loss of the ability to bear her own child. The claimant has always wanted a large family. Both her parents come from large families and they had one of their own. Her sister has ten children. Her partner also comes from a large family. They would like to have four children. The expert evidence is that it is probable that they can have two children using her eggs and his sperm. They would then like to have two further children using donor eggs and his sperm. The claimant would prefer to use commercial surrogacy arrangements in California. But if this is not funded, she will use non commercial arrangements in the United Kingdom. Liability was admitted and judgment entered in May 2016. Damages were assessed, after a hearing in June 2017, by Sir Robert Nelson in September 2017: [2017] EWHC 2318 (QB); [2018] PIQR Q2. Much of his judgment relates to matters other than the surrogacy claim. In relation to surrogacy he held that he was bound by the decision of the Court of Appeal in Briody v St Helens and Knowsley Area Health Authority [2001] EWCA Civ 1010; [2002] QB 856, first, to reject the claim for commercial surrogacy in California as contrary to public policy, and second, to hold that surrogacy using donor eggs was not restorative of the claimants fertility. Non commercial surrogacy using the claimants own eggs, however, could be considered restorative of the claimants fertility. Hence he awarded her the sum of 37,000 per pregnancy, a total of 74,000. The claimant appealed against the denial of her claim for commercial surrogacy and the use of donor eggs. The hospital cross appealed against the award for the two own egg surrogacies. The Court of Appeal (McCombe, King and Nicola Davies LJJ) dismissed the cross appeal and allowed the claimants appeal on both points: [2018] EWCA Civ 2832; [2019] 3 WLR 107. Public policy was not fixed in time and had now to be judged by the framework laid down by this court in Patel v Mirza [2016] UKSC 42; [2017] AC 467. Attitudes to commercial surrogacy had changed since Briody; perceptions of the family had also changed and using donor eggs could now be regarded as restorative. The hospital now appeals to this court. There are three issues: (1) Are damages to fund surrogacy arrangements using the claimants own eggs recoverable? If so, are damages to fund surrogacy arrangements using donor eggs (2) recoverable? (3) arrangements in a country where this is not unlawful recoverable? In either event, are damages to fund the cost of commercial surrogacy The UK law relating to surrogacy UK law on surrogacy is fragmented and in some ways obscure. In essence, the arrangement is completely unenforceable. The surrogate mother is always the childs legal parent unless and until a court order is made in favour of the commissioning parents. Making surrogacy arrangements on a commercial basis is banned. The details are more complicated. The starting point is that the woman who bears the child is always the childs legal mother when the child is born (Human Fertilisation and Embryology Act 1990, section 27; Human Fertilisation and Embryology Act 2008, section 33). This means that she has (in English law) parental responsibility or (in Scots law) parental responsibilities and rights. A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another (Children Act 1989, section 2(9)). Even without the Surrogacy Arrangements Act 1985, this would mean that any contract between a surrogate mother and the commissioning parent or parents is unenforceable against her. But section 1A of that Act (as inserted by section 36(1) of the Human Fertilisation and Embryology Act 1990) goes further and expressly provides that no surrogacy arrangement is enforceable by or against any of the persons making it. If she refuses to surrender the child, the commissioning parent or parents will have to go to court seeking an order that the child is to live with them. The welfare of the child is the paramount consideration in deciding whether to make such an order. The agreement would be a relevant factor, but is by no means decisive. If the mother is not married or in a civil partnership, and the commissioning father has provided the sperm, then he will be the childs legal father. However, if the mother is married or in a civil partnership, her husband, wife or civil partner will automatically be the childs other legal parent, unless it is shown that he or she did not consent to the placing in her of sperm and eggs, or the embryo, or the artificial insemination which led to the pregnancy (1990 Act, section 28; 2008 Act sections 34, 35 and 42). This complicates any decision as to where the child should live with the gestational mother (who may also be the genetic mother) and her partner or with the commissioning parents one or both of whom will have a genetic relationship with the child but not a gestational one. It also makes it even more important that there be a mechanism for transferring legal parenthood from surrogate to commissioning family. That mechanism is to be found in the scheme for making parental orders, which has existed since 1994 but is now contained in sections 54 and 54A of the Human Fertilisation and Embryology Act 2008. Applications can be made jointly by a married couple, by civil partners or by two people who are living as partners in an enduring family relationship (but are not within the prohibited degrees of relationship, such as siblings) (section 54(2)). Applications can also now be made by a single person (following the insertion of section 54A(1) by the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 (SI 2018/1413)), made after a declaration that their exclusion was incompatible with the right to respect for private and family life in article 8 of the European Convention on Human Rights (ECHR): In re Z (Surrogate Father: Parental Order) (No 2) [2016] EWHC 1191 (Fam); [2017] Fam 25. All applicants must be aged at least 18 when the order is made. The child must have been carried by another woman as a result of the placing in her of eggs and sperm, or an embryo, or her artificial insemination. The gametes of at least one of the applicants must have been used to create the embryo. This may have been done anywhere in the world, so the procedure is available after a foreign surrogacy and if the commissioning parents are the legal parents according to the law of the place where that took place. Without it, they would not be recognised as legal parents here. Applications cannot be made until after the child is born but must then be made within the period of six months beginning with the day on which the child was born (section 54(3); section 54A(2)). Nevertheless, in In re X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam); [2015] Fam 186, Sir James Munby, President of the Family Division held that the deadline could be relaxed and the courts now frequently make parental orders in respect of children who are much older (in A v C [2016] EWFC 42; [2017] 2 FLR 101, for example, as old as 12 and 13). The child must have his home with the applicants or sole applicant both at the time of making the application and at the time of making the order (section 54(4)(a), section 54A(3)(a)). This too was liberally interpreted in In re X, as not requiring the applicants to have a single family home, as long as the child had his home with both of them. This has been applied in many cases where the commissioning parents have separated either before the application or before it is granted. At least one of the applicants must be domiciled in the UK, Channel Islands or Isle of Man, both at the time of the application and at the time of the order (section 54(4)(b), section 54A(3)(b)). Residence here is neither necessary nor sufficient. The court must be satisfied that the woman who carried the child and anyone else who is a legal parent (not being an applicant) has freely and with full understanding of what is involved agreed unconditionally to the making of the order. The womans agreement is ineffective if given less than six weeks after the childs birth. The only exceptions to the agreement requirement are if the person cannot be found or is incapable of giving agreement. The surrogate mother may therefore refuse her consent even if she has handed over the child. Not only that, another legal parent may do so, even if the surrogate has agreed. In In re AB (Surrogacy: Consent) [2016] EWHC 2643 (Fam); [2017] 2 FLR 217, both the surrogate and her husband refused to agree to the order even though they had handed over the child to the commissioning parents. All the court could do was make a child arrangements order which gave them parental responsibility but left the child a member of the surrogates family. Theis J commented that an adoption order would be inappropriate as the parents would be asking to adopt their own children: a parental order recognises their genetic link to the child. She did, however, adjourn the parental order application generally in the hope of a change of mind or a change in the law, as the President had done in In re Z. The court must also be satisfied that no money or other benefit, other than for expenses reasonably incurred, has been given or received by any applicant for making the arrangements, handing over the child, giving agreement, or making the order, unless authorised by the court (section 54(8), section 54A(7)). This might be thought to discourage the making of parental orders following a foreign (or indeed any) commercial surrogacy. But what is the court to do when confronted with a fait accompli? It was soon held that payments other than reasonable expenses could be authorised retrospectively, after they had been made: In re Q (Parental Order) [1996] 1 FLR 369. In In re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam); [2009] Fam 71, which was the first case dealing with payments for a foreign commercial surrogacy, Hedley J asked himself whether the sums paid were disproportionate to reasonable expenses, whether the applicants were acting in good faith in their dealings with the surrogate, and whether they were party to any attempt to defraud the authorities. This set the tone. The Law Commissions are not aware of any case in which a parental order has been refused on the basis of payments which exceed reasonable expenses (Building families through surrogacy: a new law (2019) (LCCP 244, SLCDP 167), para 5.93). This is not surprising: the deed has been done, the child is here living with the commissioning parents, and his welfare will almost always require that he is not left legally parentless (and possibly also stateless). This has led one academic commentator to remark that: English law, as developed through the jurisprudence of the High Court in the 30 years since [the Warnock Report] does not view commercial surrogacy as an intrinsic wrong (Claire Fenton Glynn, Outsourcing Ethical Dilemmas: Regulating International Surrogacy Arrangements (2016) 24 Med LR 59, 67). Certain provisions in the Adoption and Children Act 2002 and its equivalent in Scotland are applied to parental order applications by Regulations (currently the Human Fertilisation and Embryology (Parental Orders) Regulations 2018 (SI 2018/1412), replacing those in 2010). These include the requirement that the court treat the welfare of the child as its paramount consideration: the court is required to have regard to the welfare of the child, not only during childhood, but throughout his life. As the Law Commissions comment, although laudable, this creates a tension: welfare considerations will almost always point towards making a parental order but this makes it difficult for the court to police even the requirements of sections 54 and 54A, let alone to enforce any public policy against commercial surrogacy arrangements which might be deduced from the Surrogacy Arrangements Act 1985. The Surrogacy Arrangements Act 1985 was passed as a result of the Report of the Committee of Inquiry into Human Fertilisation and Embryology chaired by Dame Mary Warnock (1984) (Cmnd 9314). The view of the majority was this (para 8.17): Even in compelling medical circumstances the danger of exploitation of one human being by another appears to the majority of us far to outweigh the potential benefits, in almost every case. That people should treat others as a means to their own ends, however desirable the consequences, must always be liable to moral objection. Hence they recommended that the criminal law should ban all agencies, whether profit or non profit making, recruiting surrogates and making surrogacy arrangements; and also ban all professionals from knowingly assisting in the establishment of a surrogate pregnancy; and that surrogacy agreements should be illegal contracts and unenforceable (paras 8.18, 8.19). The minority (Dr Wendy Greengross and Dr David Davies) took the view that the question of exploitation of the surrogate mother, or the treating of her as a means to other peoples ends, is not as clear cut a moral issue as our colleagues suggest (para 3). They agreed that there was no place for commercial surrogacy agencies, as with commercial adoption agencies; but they disagreed with preventing gynaecologists from helping couples to achieve a surrogate pregnancy; they thought that arrangements made by a regulated non profit making body should not be illegal; and that payments made to a surrogate mother should not be a barrier to adoption by the commissioning couple: most surrogate mothers would expect payment for their services (para 7). The resulting Act was a compromise. Professionals were not banned from taking part in surrogate pregnancies, but the activities of agencies, whether or not for profit, if on a commercial basis, and advertisements, were banned. Section 2 of the 1985 Act bans third parties (but not the surrogate or the commissioning parents) from initiating or taking part in negotiations, offering or agreeing to do so, and compiling information for use in making surrogacy arrangements on a commercial basis: this means for payment to the third party or anyone else except the surrogate mother (section 2(1), (2), (3)). However, amendments made by the 2008 Act permit non profit making bodies to initiate (but not actually take part in) negotiations with a view to making a surrogacy arrangement and to compile information for use in negotiating or making surrogacy arrangements in respect of which any reasonable payment is received by that body or another (section 2(2A), (2B)); payment to the body must not exceed the bodys reasonable costs in doing those things (section 2(2C)). Commercial surrogacy agencies are banned from receiving money from the surrogate or commissioning parents (section 2(5)) Taking part in the management and control of commercial surrogacy agencies is also banned (section 2(7), (8)). Once again, however, the 2008 Act introduced exceptions for non profit making bodies taking part in surrogacy arrangements in the UK (sections 2(5A), (8A), (8B)). Section 3 of the 1985 Act bans advertisements indicating that anyone might be willing to enter into or negotiate a surrogacy arrangement or that anyone is looking for a surrogate mother or asking for such persons (section 3(1)). Once again, however, the 2008 Act introduced an exception for advertisements placed by a non profit making body relating to acts done by that body which would not fall within the ban in section 2 even if done on a commercial basis (section 3(1A)). The surrogacy arrangements referred to might be anywhere in the world. The offences, however, can only be committed in the United Kingdom. There is nothing to stop agencies based abroad from helping to make surrogacy arrangements on a commercial basis abroad. Nor is there anything to stop commissioning parents and surrogate mothers from making their arrangements directly, either here or abroad, even on a commercial basis. The Review for Health Ministers of Current Arrangements for Payments and Regulation, chaired by Professor Margaret Brazier (1998) (Cm 4068), recommended that payments to the surrogate mother be expressly limited to expenses occasioned by the pregnancy; but this has not been implemented. Agreements for such payments are, of course, unenforceable and could result in the refusal of a parental order. As seen above, however, that is highly unlikely. In the circumstances, it is scarcely surprising that the claimants clear preference is for a commercial surrogacy arrangement in California. As Sir Robert Nelson said, the system is well established, the arrangement binding and the intended parents can obtain a pre birth order from the Californian court confirming their legal status in relation to the surrogate child (para 31). A further disadvantage of the UK system in the claimants eyes is that it is the surrogate mother who chooses the intended parent rather than the other way around the idea of being at the mercy of someone elses choosing, and attending informal parties to meet surrogate mothers frightens her (para 32). In other words, the friendship model of altruistic surrogacy arrangements promoted by surrogacy organisations here does not appeal. Briody v St Helens and Knowsley Area Health Authority Owing to medical negligence, the claimant underwent a sub total hysterectomy when aged around 19, having lost two babies in quick succession. Her ovaries were left intact. Many years later, she brought proceedings claiming damages for, among other things, the cost of a Californian surrogacy. The claim was on the basis that there should be two cycles of treatment using her own eggs, which it was accepted would probably fail, and four cycles using donor eggs, all using her partners sperm. Ebsworth J rejected both proposals, partly because the chances of success using her own eggs were so low and partly because a commercial surrogacy was not lawful here. By the time the case reached the Court of Appeal, however, eggs had been successfully recovered from the claimant and fertilised with her partners sperm. There were now six embryos in storage. Nevertheless, the chances of success were still no more than 1%. The claimant was now proposing two cycles using her own embryos and if that failed up to four more cycles using the surrogates eggs and if successful three more to have a second child. All of this would be arranged, not commercially abroad, but here through the well known self help group, Childlessness Overcome Through Surrogacy (COTS). I gave the leading judgment on the issue of principle. Having set out the law relating to surrogacy, I commented that these provisions do not indicate that surrogacy as such is contrary to public policy. They tend to indicate that the issue is a difficult one, upon which opinions are divided, so that it would be wise to tread with caution. If there is a trend, it is towards acceptance and regulation as a last resort rather than towards prohibition (para 11). On the Californian proposals put before the judge, I had no difficulty in agreeing with her that they were contrary to the public policy of this country, clearly established in legislation, and that it would be quite unreasonable to expect a defendant to fund it (para 15). As to the new proposals, I also agreed with the judge that it would not be reasonable to expect the defendant to pay for the implantation of the claimants embryos when this had such a slim chance of success (para 22). As to a surrogacy using donor eggs, I took the view that this was not in any sense restorative of Ms Briodys position before she was so grievously injured. It is seeking to make up for some of what she has lost by giving her something different. Neither the child nor the pregnancy would be hers (para 25). Having reached the conclusion that, even with the evidence of the new proposals, the claim should not succeed, it was not strictly necessary to decide whether that evidence should be admitted (para 33). I agreed, however, with Judge LJ, who explained that it should not be admitted because it would inevitably require a new trial and the claimant should not have two bites of the cherry (para 53). Judge LJ agreed with me that in any event there was no sufficient basis for an award of damages to reflect these new proposals (para 54). Henry LJ agreed with us both (para 56). Developments since Briody This Court is not, in any event, bound by the ratio of Briody. But the persuasiveness of that ratio is inevitably affected by the developments in law and social attitudes which have taken place since then. We have also had the benefit of the joint Consultation Paper issued in June 2019 by the Law Commission and the Scottish Law Commission, Building families through surrogacy: a new law (LCCP 244, SLCDP 167), which contains much useful information. The developments in the law have been quite dramatic. Under the 1985 Act, originally all third parties were banned from taking part in surrogacy arrangements for payment, whereas under the 2008 Act amendments, non profit making bodies may initiate negotiations and compile information for reasonable payment. Non profit making bodies can also advertise. There are now three not for profit organisations facilitating surrogacy arrangements in the UK, COTS, Brilliant Beginnings and Surrogacy UK (Building families through surrogacy: a new law, para 3.17). More dramatic still have been the developments in the laws ideas of what constitutes a family. Traditionally, families were limited to those related by consanguinity (blood) or affinity (marriage). Hence at first only opposite sex married couples could apply for parental orders. Now they have been joined by same sex married couples, by same sex and opposite sex civil partners, and by couples, whether of the same or opposite sexes, who are neither married nor civil partners, but are living together in an enduring family relationship. They have also been joined by single applicants. All of these would be regarded as family relationships within the meaning of article 8 of the ECHR. The law now recognises and supports same sex relationships and parenthood in almost exactly the same way as it recognises and supports opposite sex relationships. Civil partnerships between same sex couples were introduced throughout the UK by the Civil Partnerships Act 2004. Gay marriage was introduced in England and Wales by the Marriage (Same sex Couples) Act 2013, in Scotland by the Marriage and Civil Partnership (Scotland) Act 2014, and in Northern Ireland by the Marriage (Same sex Couples) and Civil Partnership (Opposite sex Couples) (Northern Ireland) Regulations 2019 (SI 2019/1514). Same sex couples have been able to adopt jointly in England and Wales since the Adoption and Children Act 2002 and in Scotland since the Adoption and Children (Scotland) Act 2007. In In re G (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] 1 AC 173, this Court declared the exclusion of unmarried couples from the Northern Ireland Adoption Order incompatible with the equal enjoyment of the right to respect for family life protected by articles 8 and 14 of the ECHR. Obviously, male same sex couples can achieve parenthood only through adoption or surrogacy and there is evidence of a growing demand from them for surrogacy arrangements. The UK surrogacy organisations report a growing proportion of male same sex couples using their services, as many as 50% of those using COTS and Brilliant Beginnings (Building families through surrogacy: a new law, paras 3.18 to 3.21). All of this supports the observations of King LJ in this case (para 101): It is unnecessary to resort to statistics or research in order to appreciate the social changes in the years since Briody. These changes have led to the current acceptance of an infinite variety of forms of family life of which single sex, single person and so called blended families are but examples. The creation of these families is often facilitated consequent upon the advances in fertility treatment including the acceptance of and increased use of donor eggs. Not only does family law recognise a much wider set of relationships as family life these days. Government policy has moved strongly in the direction of supporting surrogacy arrangements in appropriate cases. The Children and Families Act 2014, section 122, provides for the extension of the right to shared parental leave under the Employment Rights Act 1996 and statutory paternity and adoption pay under the Social Security and Contributions Act 1992 to people who have applied for or intend to apply for a parental order under the 2008 Act. The Human Fertilisation and Embryology (Parental Orders) Regulations 2018 adapt the Children Act 1989 and the Foster Children (Scotland) Act 1984 so that commissioning parents who propose to apply for a parental order no longer fall within the definition of private foster parents who are required to inform the local authority that the child is living with them. As well as these statutory changes, the Department of Health and Social Care published guidelines on the practice of surrogacy in February 2018 (updated November 2019): The Surrogacy Pathway: Surrogacy and the legal process for intended parents and surrogates in England and Wales and Care in Surrogacy: guidance for the care of surrogates and intended parents in surrogate births in England and Wales. The former states as follows: The government supports surrogacy as part of the range of assisted conception options. Our view is that surrogacy is a pathway, starting with deciding which surrogacy organisation to work with, deciding which surrogate or intended parent(s) to work with, reaching an agreement about how things will work, trying to get pregnant, supporting each other through pregnancy and then birth, applying for a parental order to transfer legal parenthood and then helping your child understand the circumstances of their birth. This guidance gives more information about each stage. Not only that, it was the Department of Health and Social Care which asked the Law Commissions to consider reforms to the law of surrogacy in the United Kingdom. Another change which has taken place over the decades since the Surrogacy Arrangements Act was passed in 1985 is the progress of the medicine and science of assisted reproduction, coupled with their regulation by the Human Fertilisation and Embryology Authority (HFEA), and increasing public familiarity with and acceptance of such methods of founding a family. When the Act was passed, donor insemination had become safer because sperm could be successfully frozen, but IVF and embryo transfer were in their infancy and success rates were very low, and eggs could not be frozen. Public concern about the ethics of these techniques had led to the Warnock committees report, which in turn led to the pioneering work of the HFEA as the first body in the world to regulate such treatments. Since then, new techniques have been developed, success rates have improved, and people who are experiencing problems in conceiving or bearing children, or who are in same sex relationships, increasingly turn to assisted reproduction rather than to adoption in order to fulfil their desire to have a family. While treatment is sometimes available on the NHS, much of it is also provided commercially. It is probable that most gestational surrogacy arrangements in this country involve treatments provided by a clinic licensed by the HFEA. This is required where IVF or embryo transfer are involved. The HFEAs first Code of Practice had one paragraph about surrogacy: this advised that, because either the carrying mother, and in certain circumstances her husband or partner, or the commissioning parents might become the childs legal parents, the welfare of any resulting child should be assessed in relation to both sets of parents, and any risk of disruption to the childs early care and upbringing in the event of a dispute between them considered (para 3.16.a). The most recent, ninth, edition of the Code of Practice, version 2 (2019), has a section on The welfare of the child assessment process for surrogacy arrangements which emphasises the need for a standard operating procedure for centres offering surrogacy treatment (paras 8.9 to 8.13); and a whole chapter (paras 14.1 to 14.14) on surrogacy generally which emphasises the need for full information and discussion about the legal and other implications, as well as counselling, for both the surrogate and the commissioning parents. While this may be off putting for some, and centres are advised to be alive to the vulnerability of all parties, there is no suggestion that such arrangements should be viewed with particular suspicion or discouraged. As to changes in the attitudes of society in general to surrogacy arrangements, the Law Commissions say this (para 1.9): Whilst we acknowledge that there is a lack of public attitudinal research in this area, the research that exists suggests that public attitudes to surrogacy also now stand in stark contrast to the prevailing hostile attitudes at the time of the [Surrogacy Arrangements Act] 1985. The available research reflects the fact that the legislation is now out of step with attitudes towards surrogacy. They cite a YouGov poll in 2014 showing that 59% of adults in Great Britain supported using gestational surrogacy to have children. The Law Commissions paper, Building families through surrogacy: a new law, also includes a full discussion of the empirical evidence about the possible harmful effects of surrogacy on the participants involved and the children and of the ethical arguments about surrogacy (Chapter 2). The latter debate reflects a tension between autonomy and paternalism (para 2.69). The concerns about exploitation and commodification feature most prominently in relation to commercial arrangements. Domestically, those concerns could be alleviated by more effective regulation (para 2.71). Internationally, where the arrangements are almost invariably commercial in nature, it is impossible for UK law to effect change, except in situations involving intended parents who will bring the child back to the UK (para 2.72): In that respect, we make a provisional proposal for reform that would enable legal parenthood granted overseas to be recognised in the UK, only after an appraisal of the law and practice of surrogacy in each country. We hope that such a development would encourage UK intended parents who do look for an international surrogacy arrangement to use countries where there is a level of confidence in the protection provided to women who become surrogates. The reality is that there is a spectrum of surrogacy arrangements. At one end of the scale there are desperately poor women who are induced to sell one of the few things they have for sale, their wombs, and are often grossly exploited by the agents and middlemen who make serious profits from the large sums which desperate commissioning parents are prepared to pay. At the other end of the scale are altruistic women who enjoy being pregnant and are happy to make a gift of their child bearing capacity to people who need it. It is no longer thought that women should not have the right to choose to use their bodies in this way. But it is thought that both they and the commissioning parents should be protected from exploitation and abuse. It is also thought that surrogacy arrangements, whether altruistic or commercial, should guard against any possibility that children are being bought and sold: see the Report of the United Nations Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material (A/HRC/37/60, 15 January 2018). Application to this case This case is about the assessment of reasonable damages to compensate a woman who has been wrongly deprived of the ability to bear her own children. With the greatest of respect to the argument on behalf of the claimant, accepted by the Court of Appeal, it is not about the illegality defence and the new framework adopted in Patel v Mirza [2017] AC 467. Nor is it to be likened to a case like Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 AC 1339, where the injury suffered by the claimant led to his committing a serious criminal offence and suffering the consequences of doing so, for which he claimed but was denied compensation. Nothing which the claimant proposes to do involves a criminal offence either here or abroad. Her preferred solution is a Californian surrogacy which is lawful there and UK law does not prohibit her from arranging or taking part in it. Her second best solution would be lawful surrogacy arrangements here. The general principle upon which damages in tort are assessed was stated by Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39: I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. There are qualifications to that principle, of course. The first is that some heads of damages which would readily fall within that principle are nevertheless irrecoverable because to allow this would be contrary to legal or public policy. A well known example is McFarlane v Tayside Health Board [2000] 2 AC 59. The Inner House of the Court of Session held that a couple who had a child after the husband had had a vasectomy, allegedly because of negligent advice, could claim damages, not only for the pregnancy and birth, but also for the cost of bringing up the child they never meant to have. The House of Lords held that they could not claim the costs of bringing up a healthy child. They gave a variety of reasons for this, but they all amount to a policy against awarding what would be the normal measure of the claimants loss. A second qualification is that, in seeking to restore what has been lost, the steps taken must be reasonable ones and the costs thereby incurred must be reasonable. The first question, therefore, is whether it is ever possible to claim damages for the cost of surrogacy arrangements, even where these are made on a lawful basis in this country and using the claimants own eggs. It might once have been possible to argue that the law should not facilitate the bringing into the world of children who would otherwise never have been born. But the acceptance and widespread use of assisted reproduction techniques, for which damages are payable, means that this is no longer possible. In Briody, I did not consider that an arrangement which conformed to English law would be contrary to public policy. The question was whether it was reasonable to seek to remedy the loss of a womb through surrogacy (para 30). This would depend upon the chances of a successful outcome. In that case they were vanishingly small. Nevertheless, had they been better, I expressed the tentative view that it would be a step too far. But I recognised the force of the contrary argument that, given the right evidence of the reasonableness of the procedure and the prospects of success, it should be capable of attracting an award (para 32). Sir Robert Nelson found it difficult to see why, on general principle, where the prospects of success are reasonable, if not good, and the claimant had delayed her cancer treatment to ensure that her eggs were harvested, the claim should not succeed (para 49). McCombe LJ agreed (para 84). So do I. The next question is whether it is possible to claim damages for UK surrogacy arrangements using donor eggs. In Briody, I expressed the view that this was not truly restorative of what the claimant had lost. It was seeking to make up for what she had lost by giving her something different (para 25). We need not concern ourselves with whether or not this view was technically obiter. In my view it was probably wrong then and is certainly wrong now. It was argued for the claimant that this is no different from other artificial means of replacing what has been lost, for example, by having an artificial limb fitted to replace the one which has been amputated. It is not ones own genetic material and it is not as good as a real limb, but it is the closest one can get to putting the claimant in the position she would have been in had she not been injured. Of course, the analogy is not exact, because the claimant is not being supplied with a replacement womb. But in many ways that is indeed what she is being supplied with, albeit temporarily, through the generosity of a surrogate mother who offers the use of her own womb. Not only that, as counsel had argued for Mrs Briody, a woman can hope for four things from having a child: the experience of carrying and giving birth to a child; the perpetuation of ones own genes; the perpetuation of ones partners genes; and the pleasure of bringing up a child as ones own (para 24). Donor egg surrogacy using a partners sperm gives her two of those. And for many women, the pleasure of bringing up children as ones own is far and away the most important benefit of having children. If this is the best that can be achieved to make good what she has lost, why should she be denied it? This view is reinforced by the dramatic changes in the idea of what constitutes a family which have taken place in recent decades, referred to earlier. There are many different kinds of family these days. As King LJ pointed out in the Court of Appeal, psychologically and emotionally the baby who is born is just as much their child as if one of them had carried and given birth to him or her (para 103). This is the experience of those judges who have the happy experience of granting parental orders. I would therefore hold that, subject to reasonable prospects of success, damages can be claimed for the reasonable costs of UK surrogacy using donor eggs. That leaves only the most difficult question: what about the costs of foreign commercial surrogacy? Surrogacy contracts are unenforceable here. It is well established that the UK courts will not enforce a foreign contract which would be contrary to public policy in the UK: see Rousillon v Rousillon (1880) 14 Ch D 351; Israel Discount Bank of New York v Hadjipateras [1984] 1 WLR 137. Why then should the UK courts facilitate the payment of fees under such contracts by making an award of damages to reflect them? In this case, we have the advantage of evidence about the comparative costs of UK and Californian surrogacy. One thing becomes clear. Many of the items in the Californian bill would also be claimable if the surrogacy took place here. The costs of the fertility treatment and egg donation itself, although they are higher in the US than here, would be recoverable for a UK surrogacy. Then there is the cost of the payment to the surrogate mother herself, which is higher than the reasonable expenses thought acceptable here. But, as we have seen, it is not unlawful for commissioning parents to make such payments here. And whether made here or abroad they are likely to be retrospectively authorised by the court. Then there are the fees paid to the UK lawyers, which would also be recoverable here, if reasonable. They are very much higher for a US than for a UK surrogacy, presumably because there is so much more work to be done, but we must also presume that such work does not fall foul of the Surrogacy Arrangements Act 1985. That leaves the fees paid to the US lawyers and surrogacy agency, which would be unlawful here but are not in the US. To what extent should that taint all of the items in the bill? The damages would be awarded to the claimant, the commissioning parent. It is not against the law in this country for a commissioning parent to do any of the acts which are prohibited by section 2(1) of the Surrogacy Arrangements Act 1985 (see section 2(2)(b)). Nor is it against the law in this country for an intending surrogate to do so (see section 2(2)(a)). That is true even of activities in this country, let alone in another country. It has never been the object of the legislation to criminalise the surrogate or commissioning parents. The only deterrent is the risk that the court hearing an application for a parental order might refuse retrospectively to authorise the payments. As we have seen, there is no evidence that that has ever been done. The courts paramount consideration is the welfare of the child involved, which will almost certainly be best served by cementing his home and his family links with the commissioning parents. Added to that are all the other developments which have taken place since the decision in Briody. The courts have bent over backwards to recognise the relationships created by surrogacy, including foreign commercial surrogacy. The government now supports surrogacy as a valid way of creating family relationships, although there are no plans to allow commercial surrogacy agencies to operate here. The use of assisted reproduction techniques is now widespread and socially acceptable. The Law Commissions have provisionally proposed a new pathway for surrogacy which, if accepted, would enable the child to be recognised as the child of the commissioning parents from birth, thus bringing the law closer to the Californian model, but with greater safeguards. While the risks of exploitation and commodification are heightened in commercial surrogacy, they are not thought an insuperable ethical barrier to properly regulated arrangements. For all those reasons, I conclude that it is no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy. However, that does not mean that such damages, still less damages such as are claimed in this case, will always be awarded. There are some important limiting factors. First, the proposed programme of treatments must be reasonable. There may be good reasons to think that, but for the negligence, the claimant would have had the number of children now proposed, but there may not. Second, it must be reasonable for the claimant to seek the foreign commercial arrangements proposed rather than to make arrangements within the UK. This is unlikely to be reasonable unless the foreign country has a well established system in which the interests of all involved, the surrogate, the commissioning parents and any resulting child, are properly safeguarded. Unregulated systems where both surrogate and commissioning parents are at the mercy of unscrupulous agents and providers and children may be bought and sold should not be funded by awards of damages in the UK. This has not been explored in this case, but it should not be concluded that, even in California, all is always well (as the Report of the United Nations Special Rapporteur shows). Third, the costs involved must be reasonable. This too has not been put in issue in this case, which has been argued as a matter of principle, but it should certainly not be taken for granted that a court would always sanction the sorts of sums of money which have been claimed here. With those caveats, therefore, I would dismiss this appeal. LORD CARNWATH: (dissenting) (with whom Lord Reed agrees) I am grateful for Lady Hales full exposition of the facts, and of the legislative and policy background. This enables me to deal with the remaining issues between us relatively briefly, without in any way diminishing the impact of these tragic events on the claimant, or the seriousness of the legal issues to which they give rise. On the first two issues identified by Lady Hale (para 8), I agree with her reasoning and conclusions. I differ only on the last issue: damages to fund the cost of commercial surrogacy arrangements in a country (in this case California) where this is not unlawful. As I think Lady Hale accepts, her conclusion on that issue is a departure from the clear, indeed emphatic, position on this issue, expressed in 2001 in her leading judgment in Briody v St Helens and Knowsley Area Health Authority [2001] EWCA Civ 1010; [2002] QB 856. It is important to note that in Briody there was a difference between the claimants case as presented to the judge, and as sought to be advanced in the Court of Appeal. Before the judge it was based solely on a proposed commercial surrogacy agreement in California (para 4). Before the Court of Appeal, as Lady Hale noted (para 9), the claimant had abandoned the Californian agreement and sought leave to adduce evidence of a proposed surrogacy arrangement through the self help group, COTS (Childlessness Overcome Through Surrogacy), governed by English law. Having observed that English law on surrogacy is quite clear, that the activities of commercial surrogacy agencies are unlawful, and that it is an offence for any person to take part in negotiating surrogacy arrangements on a commercial basis (para 10), and having reviewed the varying practice round the world, she had no difficulty in agreeing with the judge that the proposals put to her were contrary to the public policy of this country, clearly established in legislation, and that it would be quite unreasonable to expect a defendant to fund it. (para 15) By contrast, she found it impossible to say that the claimants new proposals were contrary to public policy in that sense (para 16). The remainder of the judgment is devoted largely to that aspect. We are not of course bound by that decision even as respects commercial surrogacy. But I do not understand it to have been seriously questioned as a reflection of the law and policy as it stood at the time. However, in her present judgment, Lady Hale has described the dramatic developments in law and social attitudes (para 28ff) which lead her to conclude ultimately that it is no longer contrary to public policy to award such damages (para 53). I agree with her (para 40) that the resolution of this issue is not assisted by reference to recent judgments of this court on the scope of the illegality defence (such as Patel v Mirza [2016] UKSC 42; [2017] AC 467). A commercial surrogacy arrangement, such as is proposed, is not in itself unlawful in the country in which it would take place. Nor is the claimants participation in such an arrangement from this country. For that reason I agree that the case cannot be likened directly to a case like Gray v Thames Trains Ltd [2009] UKHL 33; [2009] AC 1339, which involved a serious criminal offence by the claimant. However that is not the end of the enquiry. As Lady Hale recognises (para 42), there is a further question of legal or public policy perhaps best exemplified by McFarlane v Tayside Health Board [2000] 2 AC 59. It is not easy to extract a single ratio to support the conclusion in that case that the damages could not extend to the cost of bringing up a healthy but unwanted child. However further light was cast by the speeches in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] 1 AC 309, in which the House had to consider the application of the McFarlane principles to the birth of an unwanted child to a mother with a severe visual handicap. Lord Bingham (para 6) spoke of the different approaches and different reasons adopted by the members of the House in McFarlane but thought it clear that all of them were moved to adopt it for reasons of policy (legal, not public, policy). He explained: The policy considerations underpinning the judgments of the House were, as I read them, an unwillingness to regard a child (even if unwanted) as a financial liability and nothing else, a recognition that the rewards which parenthood (even if involuntary) may or may not bring cannot be quantified and a sense that to award potentially very large sums of damages to the parents of a normal and healthy child against a National Health Service always in need of funds to meet pressing demands would rightly offend the communitys sense of how public resources should be allocated. Kirby J was surely right to suggest in Cattanach v Melchior [2003] HCA 38, para 178) that: Concern to protect the viability of the National Health Service at a time of multiple demands upon it might indeed help to explain the invocation in the House of Lords in McFarlane of the notion of distributive justice. To similar effect Lord Steyn said (para 29): The House did not rest its decision on public policy in a conventional sense Instead the Law Lords relied on legal policy. In considering this question the House was bound, in the circumstances of the case, to consider what in their view the ordinary citizen would regard as morally acceptable. Invoking the moral theory of distributive justice, and the requirements of being just, fair and reasonable, culled from case law, are in context simply routes to establishing the legal policy. Lord Millett also spoke of legal policy (para 105): In their speeches [in McFarlane] the individual members of the Appellate Committee all based this conclusion on legal policy, though they expressed themselves in different terms. My noble and learned friend, Lord Steyn, spoke of distributive justice; he asked himself what would be morally acceptable to the ordinary person. Others spoke of what was fair, just and reasonable which expresses the same idea. I spoke openly of legal policy. I said, at p 108: The admission of a novel head of damages is not solely a question of principle. Limitations on the scope of legal liability arise from legal policy, which is to say our more or less inadequately expressed ideas of what justice demands (see Prosser & Keeton on Torts, 5th ed (1984), p 264). This is the case whether the question concerns the admission of a new head of damages or the admission of a duty of care in a new situation. Legal policy in this sense is not the same as public policy, even though moral considerations may play a part in both. The court is engaged in a search for justice, and this demands that the dispute be resolved in a way which is fair and reasonable and accords with ordinary notions of what is fit and proper. It is also concerned to maintain the coherence of the law and the avoidance of inappropriate distinctions if injustice is to be avoided in other cases. Others too made it clear that this was not the same as public policy in the traditional sense of that expression. It would not have been contrary to public policy to award damages to the pursuers in McFarlane any more than it would be contrary to public policy to award damages for breach of contract beyond the limits imposed by the rule in Hadley v Baxendale (1854) 9 Exch 341. But in both cases the denial of damages rests upon policy considerations. It seems clear therefore that the issue is seen as one of legal policy, to be determined by the courts. It is more difficult to identify the criteria which the court is to use for that purpose. In the present context I find most helpful Lord Milletts emphasis on maintaining the coherence of the law. In that respect the present case seems to me easier than either McFarlane or Rees. It is difficult to think of a better guide to where to draw the line in a highly sensitive area such as this than that indicated by Parliament. Although this case is not concerned with illegality as such, the underlying principle of coherence or consistency in the law is of broader application. Although, as noted above, Gray v Thames Trains Ltd is not directly relevant, the speeches of Lord Hoffmann and Lord Rodger contain a valuable discussion of the underlying principle. The same idea is echoed in some of the judgments in Patel v Mirza (see para 155 per Lord Neuberger; para 191 per Lord Mance: the law must aspire to be a unified institution, the parts of which contract, tort, the criminal law must be in essential harmony quoting McLachlin J in Hall v Hebert [1993] 2 SCR 15, 175 176). Lord Rodger, in particular, referred in Gray to the desirability of different organs of the same legal system adopting a consistent approach to the same events (para 76). He continued: 77. In British Columbia v Zastowny [2008] 1 SCR 27, 38, para 23, Rothstein J treated the need to preserve the integrity of the justice system, by preventing inconsistency in the law, as a matter of judicial policy that underlay the ex turpi causa doctrine. In other words, in the circumstances of that case the application of the ex turpi causa doctrine helped to promote the more fundamental legal policy of preventing inconsistency in the law. That such a policy exists is beyond question. In Zastowny and the preceding cases, the need was to ensure that the civil and criminal courts were consistent in their handling of the plaintiffs criminal conduct and its consequences. But that is simply one manifestation of a desirable attribute of any developed legal system. In classical Roman law the jurists were at pains to ensure that the various civil law and praetorian remedies worked together in harmony in relation to the same facts. One of the hallmarks of a good modern code is that its provisions should interrelate and interact so as to achieve a consistent application of its overall policy objectives. Complete harmony may well be harder to achieve in an uncodified system hence the constant attention paid by the classical jurists to the problem since different remedies will have developed at different times and in response to particular demands. But the gradual drawing together of law and equity in English law illustrates the same pursuit of harmony and consistency. And, certainly, the courts are conscious that inconsistencies should be avoided where possible. So, for instance, a court should not award damages in tort if a contractual claim based on the same events would be excluded by some term in the contract between the parties. Similarly, a court should not give a remedy on the ground of unjust enrichment if this would be tantamount to enforcing a contract which the law would treat as void in the circumstances. Likewise, in the present case, when considering the claim for loss of earnings, a civil court should bear in mind that it is desirable for the criminal and civil courts to be consistent in the way that they regard what the claimant did. As Samuels JA observed in State Rail Authority of New South Wales v Wiegold [(1991)] 25 NSWLR 500, 514, failure to do so would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute. As that passage makes clear, the objective is consistency or coherence between the civil and criminal law within a particular system of law. The fact that the laws of other jurisdictions and other systems may reflect different policy choices seems to me beside the point. It would in my view be contrary to that principle for the civil courts to award damages on the basis of conduct which, if undertaken in this country, would offend its criminal law. It is true that there have been striking developments in societys approach to many issues affecting family life, including surrogacy, as the Law Commissions comprehensive report demonstrates. There has however been no change to the critical laws affecting commercial surrogacy, which led to the refusal in 2001 of damages on that basis. Nor does the Law Commission propose any material change in that respect. It is also apparent from recent studies that public attitudes remain deeply divided (see for example the Second Report of the Surrogacy UK Working Group on Surrogacy Law Reform (December 2018). So long as that remains the state of the law on commercial surrogacy in this court, it would not in my view be consistent with legal coherence for the courts to allow damages to be awarded on a different basis. In short, I consider that the decision of the Court of Appeal was correct in 2001, and remains correct today. I would therefore allow the appeal on the third issue.	The claimant (respondent to this appeal) was born in 1983. She had cervical smear tests in 2008 and 2012 and cervical biopsies in 2012. Each of these tests was negligently wrongly reported by the defendant hospital (the appellant). In 2013, when the errors were detected, her cervical cancer was too far advanced for her to have surgery which would preserve her ability to bear a child. She was advised to have chemo radiotherapy, which would result in her being unable to do so. Before having the treatment, she had eight eggs collected and frozen. The focus of this appeal is on the damages payable for the loss of the ability to bear her own child. She and her partner wanted to have four children. It was probable that, through surrogacy arrangements, they could have two children using her eggs and his sperm. They then wished to have two more children using donor eggs and his sperm. Her preference was for surrogacy arrangements in California on a commercial basis. If this was not funded, she intended to use non commercial arrangements in the UK. The hospital admitted liability. Assessing damages, the judge held in relation to surrogacy that, following Briody v St Helens & Knowsley Area Health Authority [2000] EWCA Civ 1010; [2002] QB 856 (Briody), he was bound to reject the claim for commercial surrogacy in California as contrary to public policy, and to hold that surrogacy using donor eggs was not restorative of the claimants fertility. By contrast, damages could be awarded for two own egg surrogacies in the UK. The claimant appealed against the denial of her claim for commercial surrogacy and the use of donor eggs. The hospital cross appealed against the award for the two own egg surrogacies. The Court of Appeal dismissed the cross appeal and allowed the appeal on both points. The hospital now appeals to the Supreme Court. The appeal raises three issues. First, can damages to fund surrogacy arrangements using the claimants own eggs be recovered? Second, if so, can damages to fund arrangements using donor eggs be recovered? Third, in either event, can damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful be recovered? By a majority, the Supreme Court dismisses the appeal. Lady Hale gives the majority judgment, with which Lord Kerr and Lord Wilson agree. Lord Carnwath gives a judgment dissenting on issue three, with which Lord Reed agrees. Lady Hales judgment explains that under UK law, in essence, surrogacy arrangements are completely unenforceable; the surrogate mother is always the childs legal parent unless and until a court makes a parental order transferring legal parenthood to the commissioning parents; and the making of surrogacy arrangements on a commercial basis is banned. The details are more complicated [9]. For example, section 2(1) of the Surrogacy Arrangements Act 1985 (the 1985 Act) bans third parties from (among other things) initiating or taking part in negotiations with a view to making surrogacy arrangements on a commercial basis. However, offences under the 1985 Act can only be committed in the UK, and so there is nothing to stop agencies based abroad from making surrogacy arrangements on a commercial basis abroad. Nor does this ban extend to acts by commissioning parents or surrogate mothers [19 21]. As for Briody, it is not binding on the court, and its persuasiveness is affected by subsequent developments in the law and social attitudes relating to surrogacy (see below) [29 39]. Nothing which the claimant proposes to do involves a criminal offence here or abroad. Damages in tort seek to put the injured party in the position she would have been in had she not been injured; but they cannot be recovered where it would be contrary to legal or public policy, or unreasonable [40 43]. On the first issue in the appeal, Briody did not rule out the award of damages for own egg surrogacy arrangements made in the UK; rather, it held that whether it was reasonable to seek to remedy the loss of a womb through surrogacy depended on the chances of a successful outcome. Here, those chances are reasonable, and the claimant delayed cancer treatment to ensure that her eggs were harvested. It is therefore difficult to see why the claim should not succeed [44]. On the second issue, the view expressed in Briody, that damages for donor egg surrogacy arrangements could not be recovered as they were not restorative of what the claimant had lost, was probably wrong then, and is certainly wrong now. There have been dramatic developments in the laws idea of what constitutes a family [30]. And this is the closest one can get to putting the claimant in the position she would have been in had she not been injured. Therefore, as long as the arrangement has reasonable prospects of success, damages for the reasonable costs of it may be awarded [45 48]. On the third issue, UK courts will not enforce a foreign contract if it would be contrary to public policy. But most items in the bill for a surrogacy in California could also be claimed if it occurred here. In addition, damages would be awarded to the claimant, the commissioning parent, and it is not against UK law for such a person to do the acts prohibited by section 2(1) of the 1985 Act. Added to that are developments since Briody: the courts have striven to recognise the relationships created by surrogacy; government policy now supports it; assisted reproduction has become widespread and socially acceptable; and the Law Commissions have proposed a surrogacy pathway which, if accepted, would enable the child to be recognised as the commissioning parents child from birth. Awards of damages for foreign commercial surrogacy are therefore no longer contrary to public policy. However, there are important factors limiting the availability and extent of such awards: both the treatment programme and the costs involved must be reasonable; and it must be reasonable for the claimant to seek the foreign commercial arrangements proposed rather than to make arrangements within the UK; this is unlikely to be reasonable unless the foreign country has a well established system in which the interests of all involved, including the child, are properly safeguarded [49 54]. Lord Carnwaths dissenting judgment differs from the majority on the third issue only. In his view, while this case is not concerned with illegality, there is a broader principle of legal coherence, which aims to preserve consistency between civil and criminal law. It would go against that principle for civil courts to award damages based on conduct which, if undertaken in the UK, would offend its criminal law. Societys approach to surrogacy has developed, but there has been no change in the critical laws on commercial surrogacy which led to the refusal in Briody of damages on that basis. It would not be consistent with legal coherence to allow damages to be awarded on a different basis [55 68].
A man is convicted of an offence. Satisfied that he is suffering from mental disorder, the court makes an order for his detention in hospital. Satisfied that it is necessary for the protection of the public, the court also makes a restriction order, which removes from the hospital the power to discharge him. In due course a tribunal directs his discharge from hospital on conditions. Afterwards, however, the Secretary of State for Justice (the Minister) exercises his power to recall the man to hospital, where he is subject to renewed detention. This appeal is about the explanation for the recall which the law requires the Minister to provide to the man both at the time of his recall and soon afterwards. In this case the explanation provided on behalf of the Minister, the respondent, to Mr Lee Hirons, the appellant, at the time of his recall was simply that his mental health had deteriorated. This generates three questions: (1) Was such an explanation legally sufficient? (2) If not, did it make the appellants renewed detention unlawful? (3) If his detention was unlawful, should the court formally so declare and, in particular, should it award him damages for it and, if so, how much? Fifteen days after the appellants recall, a fuller oral explanation for it was provided to him. The Minister concedes that each of two separate legal principles required it to have been provided to him within three days of the recall and indeed in writing. These conceded breaches of the appellants rights generate three further questions: (4) Did the breaches make the appellants detention between the third and the fifteenth days following his recall unlawful? (5) award him damages and, if so, how much? If so, should the court formally so declare and, in particular, should it (6) Even if they did not make his detention unlawful, should the court make the breaches the subject of a formal declaration and, in particular, should it award him damages for them and, if so, how much? The appellant appeals against the order of the Court of Appeal dated 1 May 2014, whereby it dismissed his appeal against the dismissal of his application for judicial review of the Ministers explanations to him: [2014] EWCA Civ 553, [2015] QB 385. The leading judgment was given by Sir Stanley Burnton; and Jackson LJ (who added some observations of his own) and Patten LJ both agreed with it. In effect the answers to the questions given by the Court of Appeal were: (1) Yes. (2) Not applicable. (3) Not applicable. (4) no. (5) Not applicable. (6) Not addressed but the courts order means no. B: BACKGROUND The appellant is aged 49. He has the misfortune to have suffered protracted mental disorder, namely a personality disorder and a chronic paranoid delusional disorder. The question whether he has also suffered mental illness, in particular paranoid schizophrenia, has for long been the subject of clinical disagreement. He has a long history of admission to psychiatric hospitals. The appellant has 61 convictions for a variety of offences. In 2006 he was convicted of offences of arson and burglary. In the light of the nature or degree of his mental disorder and of all the other circumstances, the court then made a hospital order pursuant to section 37 of the Mental Health Act 1983 (the Act), by which it authorised his admission to and detention in a secure hospital. But, in the light of the perceived need to protect the public from serious harm, the court then also made a restriction order pursuant to section 41 of the Act, by which the power From 11 June 2012 to 19 July 2012 the appellant resided at the care home in to discharge the appellant was removed from the hospital and vested in the Minister or the First tier Tribunal (Health, Education and Social Care Chamber). By section 79(1) of the Act, the appellant thereby became a restricted patient for the purposes of Part V of it. The appellants detention took place in medium secure hospitals first in Dawlish and, from 2009, in Doncaster. On 27 April 2012, under section 73(2) of the Act, the First tier Tribunal made a direction, which on 24 August 2011 it had in principle resolved to make but had deferred, that he should be conditionally discharged from the hospital in Doncaster. In so directing, the tribunal overruled the concerns of the appellants responsible clinician that the risks of his discharge, even on a conditional basis, were too great. Having received evidence from Mr Hart, the appellants proposed social supervisor at a registered care home for ex offenders in Lancaster, the tribunal approved a plan that the appellant should move there on 11 June 2012. There were eight conditions, including that he should reside only at places approved by Mr Hart, that he should accept treatment directed by whoever was to become his responsible clinician, that he should not drink alcohol, that he should not approach members of the public in order to promote his (very intense) religious beliefs and that he should not contact an identified woman. Lancaster. On 19 July 2012 both Mr Hart, who had indeed become the appellants social supervisor at the home, Ms Weldon, who was a psychologist attached to the home, and Dr Omar, who had become his responsible clinician in Lancaster, resolved to invite the Minister to consider whether to exercise his power under sections 42(3) and 73(4)(a) of the Act to recall the appellant to a secure hospital. That afternoon Mr Hart telephoned Mr Elliott, who was a senior case worker at the National Offender Management Service within the Ministry of Justice (the Ministry). Mr Elliott was responsible for acting on behalf of the Minister in deciding whether to recall conditionally discharged patients to hospital. Immediately after their conversation, Mr Hart sent to Mr Elliott, by email, a statement in which he outlined the concerns of himself and of Ms Weldon, who had together seen the appellant that morning, and of Dr Omar. In the statement Mr Hart suggested that in the appellant there was a greater component of mental illness (as opposed to other types of mental disorder) than had at first been observed; that his mental health had deteriorated; that he had become fixated upon securing change of the conditions of his discharge; that he had been craving alcohol; that his presentation had become more unpredictable; that he had threatened to assault somebody; that he had been ranting and swearing in the office; that, against Dr Omars advice, he had refused to take all medication; that he was likely to abscond and thereupon to abuse alcohol and to seek to contact the woman identified in one of the conditions; that the only option was to recall him; and that a bed was available for him in a medium secure hospital in Manchester. Mr Elliott immediately resolved that the appellant should be recalled to the hospital in Manchester. One hour after receiving Mr Harts email, he sent to Mr Hart by email a warrant for the appellants recall. It recited no reason for the recall. When, however, Mr Hart thereupon informed the appellant that he had been recalled to a hospital in Manchester, he added that the reason for his recall was that his mental health had deteriorated. No fuller explanation was provided to the appellant that day; and, as I have indicated, the warrant with which he was then served would not have enlightened him. That evening police officers took him from Lancaster to the hospital in Manchester. He was unhappy but cooperative. Mr Hart at once confirmed to Mr Elliott by email that the warrant had been executed. Nothing in the evidence casts doubt on the appellants assertions that, when he arrived there, the hospital in Manchester knew nothing about him; that, during that evening, Dr Kasmi, a consultant forensic psychiatrist who was to become his responsible clinician there, asked him why he had been recalled; and that even two days later the nursing staff remained unable to explain to him the reasons for his recall. Within a month of recalling a restricted patient to hospital, the Minister is obliged by section 75(1)(a) of the Act to refer his case to the First tier Tribunal. In the appellants case the Minister did so at once, namely on 20 July 2012. On 24 July 2012 an officer in the Ministry, not Mr Elliott, sent a profoundly unsatisfactory letter to the hospital in Manchester. It was no doubt intended to be addressed to the appellants responsible clinician there, namely Dr Kasmi. But it was addressed to Dr Omar even though the writer should have been well aware that he had been the appellants responsible clinician in Lancaster. It enclosed a copy of the warrant which, for some reason, the writer understood not yet to have been executed. The writer was equally unaware of the fact that the Minister had already referred the appellants case to the tribunal. In the letter the writer stated that the appellant should be informed of the reasons for his recall within 72 hours of admission; but 72 hours had passed by the date of the letter. Nor did the letter in any way identify the reasons for the recall; it did not even attach the statement which Mr Hart had emailed to Mr Elliott on 19 July. One surely needs to hope that the letter represents an isolated example of incompetence and that it does not betoken within the Ministry a cavalier attitude towards recall wholly inappropriate to the discharge of its grave responsibilities. On 3 August 2012, namely 15 days following his recall, the appellant was apprised of the reasons for it. Dr Kasmi, who had somehow secured a copy of Mr Harts statement, then read it out to the appellant and discussed it with him. But he did not give the appellant a copy of it nor provide him with any other written explanation of the reasons for his recall. As quickly as 13 August 2012 the appellants long standing and energetic solicitors in Cornwall wrote a pre action letter to the Ministry, by which he challenged the lawfulness of the decision to recall him to hospital. On 19 October 2012 his application for judicial review was issued. It is clear from the judgment by which Dingemans J dismissed the application (reported together with the judgments in the Court of Appeal at [2015] QB 385) that at that stage the appellants primary case was that there were insufficient grounds for the Ministers decision to recall him. But it was only his secondary case that he took to the Court of Appeal, namely that there was an unlawful failure to explain the reasons for the recall to him; that the failure infected the legality of his detention; but that, even if it did not do so, it nevertheless generated a right to a declaration and damages. This court is not concerned with the outcome of the proceedings before the First tier Tribunal but understands that the appellant remains presently detained in hospital, albeit no longer the one in Manchester. C: THE CONCEDED BREACHES In April 1993 the Department of Health issued a circular to local authorities, LAC (93)9, and guidelines to health authorities, HSG (93)20, both of which were entitled Recall of mentally disordered patients subject to Home Office restrictions on discharge. The two documents are in much the same terms and remain substantially operative today. In annexes they state the governments policy towards the provision to recalled patients of an explanation for their recall. The annexes introduce the subject by pointing out that a patient recalled to hospital may be in an excitable and nervous state and that it is difficult to expect whoever is escorting him to hospital to provide a full explanation of the decision to recall him. Accordingly, so they continue, a three stage procedure should be applied: (1) at the time of the patients return to hospital, the person returning him should inform him in simple terms that he is being recalled by the Minister and that, to the extent possible, a further explanation will be given later; (2) as soon as possible after re admission to hospital and in any event within 72 hours of it the patients responsible clinician or another specified person at the hospital should explain to him the reasons for his recall and ensure so far as possible that he understands them; and (3) within 72 hours of his re admission the patient should be provided with a written explanation of the reasons for his recall. Where a public authority issues a statement of policy in relation to the exercise of one of its functions, a member of the public to whom it ostensibly applies, such as this appellant, has a right at common law to require the authority to apply the policy, so long as it is lawful, to himself unless there are good reasons for the authority not to do so: Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR 4546, paras 29 31. But the appellant also had rights under article 5 of the European Convention on Human Rights (the Convention): (1) Para 1(e) provides that the lawful detention of persons of unsound mind is a case in which deprivation of liberty is permissible so long as it is in accordance with a procedure prescribed by law. (2) Para 2 provides: Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. (3) Para 4 provides that everyone deprived of his liberty should be entitled to take proceedings by which a court will speedily decide the lawfulness of his detention. (4) Para 5 provides that every victim of detention in contravention of any of the earlier paragraphs should have an enforceable right to compensation. No issue arises in respect of para 4 of article 5 of the Convention. The Ministers obligation under section 75(1)(a) is to refer the case of a recalled patient to the tribunal within a month. But we can leave open whether, were he to delay the reference for that full month, he would nevertheless be in breach of para 4; for his practice is to make the reference much more quickly, as exemplified by his immediate reference of the appellants case. The result was that, within a day of his recall, the tribunal was seised of a jurisdiction to direct his further discharge. Equally, within 25 days of his recall, the appellants solicitors had, by their pre action letter, set in train the present proceedings, the focus of which has been the lawfulness of the Ministers decision to recall him. So there was no violation of para 4. In relation to para 2 of article 5 of the Convention the Minister submits that, in the case of the recall of a restricted patient, implementation of the three stage procedure set out in the issued policy would satisfy the patients Convention rights thereunder. He accepts that, although it is convenient for him to delegate to those on the ground the task of explaining to the patient the reasons for the decision to recall, the obligation to do so remains on him as the maker of that decision. He contends that the first stage of the procedure, applicable to the time of the recall to hospital, was duly implemented and indeed that, when Mr Hart then explained to the appellant that the reason for his recall was a deterioration in his mental health, the explanation went slightly further than was required at the first stage. Inevitably, however, the Minister concedes that the second and third stages of the procedure were not implemented: for an adequate explanation was provided to the appellant not within three days but only within 15 days of the recall and, which seems to be agreed to have been less significant, an explanation in writing was provided to him not within three days but only months later in response to the present proceedings. The Minister therefore concedes that: (1) he breached the appellants right at common law to receive within three days an adequate explanation for the recall in accordance with published policy; and (2) he also breached the appellants analogous right under article 5(2) of the Convention to be informed promptly of the reasons for his recall. The Minister makes no further concessions. So it is almost time to consider the questions identified in para 2 above. But first they must be placed in context. D: CONTEXT The context is that, for seven reasons, the way in which the Minister both reaches and implements a decision to recall a restricted patient to hospital is a function of great importance which he must approach with scrupulous care: (1) He is depriving a person of liberty. We can be proud of the fact that, even in the dark ages, our law recognised the need for strict control of a deprivation of liberty: no free man, so King John was obliged to concede in clause 39 of Magna Carta (9 Hen 3), is to be arrested, or imprisoned nor will we go against him or send any against him, except by the lawful judgment of his peers or by the law of the land. (2) Only exceptionally will the law countenance a deprivation of liberty at the direction of the executive, rather than of the judiciary before whom protections are built into the system. (3) In particular the procedure entitles the Minister to effect a persons recall without having received any representations by him or on his behalf. (4) Often, as in the present case, the Minister is depriving a person of liberty shortly after a judicial body concluded that, albeit subject to conditions, he was, on the contrary, entitled to liberty. (5) The person whom the Minister is depriving of liberty is, as a restricted patient, a member of a particularly vulnerable group and therefore any interference with their rights must be subject to strict scrutiny (Zagidulina v Russia, European Court of Human Rights (ECtHR), 2 May 2013, Application No 11737/06, para 52). The patient may well be unable to respond to his recall in a manner which, objectively, would best serve his interests. (6) The recall deprives the person of liberty for an indefinite length of time subject only to the possibility of further discharge at some stage. (7) The recall exposes the person to the possible administration to him of medical treatment without his consent pursuant to section 58(3)(b) of the Act. E: QUESTIONS (1), (2) AND (3) The appellant cannot contend that the explanation provided to him by Mr Hart at the time of his recall failed to comply with the Ministers published policy referable to the provision of an explanation at that first stage. In this regard the appellant invokes a different strand of the common law; and the cornerstone of his submission is the decision of the House of Lords in Christie v Leachinsky [1947] AC 573. There police officers arrested the respondent without a warrant. They told him that they were arresting him for an offence categorised as a misdemeanour, for which there was no power to arrest without a warrant. In fact they had reasonable grounds for suspecting that he had committed a felony, namely larceny of a bale of cloth, which, but for the deficit identified by the House of Lords, would have entitled them to arrest him without a warrant. The deficit was that they did not tell him that they were arresting him on suspicion of larceny of the cloth. Viscount Simon said at p 586: in normal circumstances an arrest without warrant either by a policeman or by a private person can be justified only if it is an arrest on a charge made known to the person arrested. Lord Simonds said at p 592: Arrested with or without a warrant the subject is entitled to know why he is deprived of his freedom, if only in order that he may, without a moments delay, take such steps as will enable him to regain it. And at p 593 he referred to the principle, which lies at the heart of the matter, that the arrested man is entitled to be told what is the act for which he is arrested. Lord du Parcq expressed it starkly at p 598: a man is entitled to his liberty, and may, if necessary, defend his own freedom by force. If another person has a lawful reason for seeking to deprive him of that liberty, that person must as a general rule tell him what the reason is, for, unless he is told, he cannot be expected to submit to arrest, or blamed for resistance. When Mr Hart told the appellant that the ground for his recall was a deterioration in his mental health, the Ministers duty about what to explain to him at that first stage was in my view satisfied. It was an accurate summary of the ground. Deterioration in health is not the only permissible ground for recall. For example the commission of a crime or the breach of a condition would, if of sufficient significance (R (MM) v Secretary of State for the Home Department [2007] EWCA Civ 687, para 50, Toulson LJ), justify a recall. Just as in the Christie case the officers had to tell the respondent only that the ground of his arrest was the suspected larceny of the cloth, without any need to refer to the grounds for their suspicion, so there was no need at that stage for Mr Hart or anyone else to communicate to the appellant the grounds for considering that his mental health had deteriorated. In any event, had he wanted to understand those grounds, the appellant had only to recall his discussion with Mr Hart and Ms Weldon that morning when, as Mr Harts written note makes clear, they had ventilated their concerns with him. It was reasonable for the Department of Health, when introducing its guidelines, to have suggested both that, at the time of his recall, a restricted patient is likely to be under stress and probably not able to digest a detailed presentation of the reasons for it and that those, for example the police, deputed to effect the recall, often in an emergency, might well know little or nothing about the background to it. Equally the effect of the Ministers immediate reference of the appellants case to the First tier Tribunal was that the failure to have provided him with detailed reasons for the recall at that stage did not delay his recourse to that facility for seeking renewed discharge. If, as I conclude, there was at the time of his recall no breach of the appellants right at common law, was there nevertheless a violation at that time of his right under article 5(2) of the Convention? Inevitably I reach for the decision of the European Commission of Human Rights, and thereafter of the ECtHR, on facts closest to those of this appeal: X v United Kingdom (1981) 4 EHRR 188. The applicant, a restricted patient, challenged the Home Secretarys recall of him in 1974 to a secure hospital following his conditional discharge, pursuant to the Mental Health Act 1959. Reporting in July 1980 to the ECtHR, the Commission concluded that his recall did not violate article 5(1) of the Convention. In relation to article 5(2), however, the Commission accepted at para 107 that: it may not be the role of police officers, who are charged with the sometimes delicate task of arresting a patient, to inform him of the detailed reasons of arrest or recall, as they are not qualified to assess the patients condition and his ability to understand the position. However, the responsibility of informing the patient or his representatives will, in such circumstances, fall on the medical officers concerned. Then in its report the Commission added and this is the high point of the appellants submissions in this connection: Nevertheless this obligation has to be discharged promptly, ie at the latest on arrival at the hospital. In the event, in the light of an unresolved dispute between the applicant and the hospital as to what he had been told on arrival, the Commission concluded that a violation of article 5(2) had at any rate occurred seven weeks later when his solicitors request for reasons for the recall had been inadequately addressed on behalf of the Home Secretary. Two points are worthy of note: (1) Under section 66 of the Mental Health Act 1959, the power to discharge a restricted patient was vested solely in the Home Secretary and the role of a tribunal, namely the Mental Health Review Tribunal, was only advisory. (2) By way of swift response to the Commissions report (and as the ECtHR was informed when in 1981 it came to consider the Commissions reference see para 16 of its judgment), the Home Secretary issued advisory circulars about the stages at which recalled patients should be informed of the reasons for their recall, which closely parallel the circulars still operative today. Upon reference to it of the X case, the ECtHR agreed with the Commission that the relief available in the habeas corpus proceedings which the applicant had swiftly taken was inadequate to satisfy his right under para 4 of article 5 of the Convention and, in that there was at that time no other avenue by which to challenge his continued detention, his right under that paragraph had been violated. When it turned to para 2, the court stressed the link between it and para 4: 66. anyone entitled to take proceedings to have the lawfulness of his detention speedily decided cannot make effective use of that right unless he is promptly and adequately informed of the facts and legal authority relied on to deprive him of his liberty. Its conclusion was that, in that the complaint under para 2 was no more than an aspect of the complaint under para 4, there was no need to rule separately upon it. In Fox, Campbell and Hartley v United Kingdom (1990) 13 EHRR 157 the ECtHR held that, in arresting the applicants in Northern Ireland on no more than a suspicion that they were terrorists, the UK authorities had deprived them of their liberty in violation of para 1 of article 5. But the court rejected their complaint under para 2. It explained the paragraph as follows: 40. This provision is an integral part of the scheme of protection afforded by article 5: by virtue of paragraph (2) any person arrested must be told, in simple, non technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph (4). Whilst this information must be conveyed promptly (in French: dans le plus court dlai), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features. The Commissions throw away remark in the X case that article 5(2) requires detailed reasons for a recall to be provided to a restricted patient at the latest on arrival at the hospital is far too slender a thread on which to hang a conclusion that the appellants right under para 2 was breached on the day of his recall. The remark shows no understanding of the special features of a recall which, often effected in an emergency, may, as in the case of the appellant, render the hospital unacquainted with those reasons until later. The flexibility, albeit limited, of the courts analysis in the Fox case is much to be preferred. In relation to the explanation required to be provided to the appellant at the time of his recall, I conclude that the demands of article 5(2) did not extend beyond the demands of the common law. Their demands were met. In answer to the first question, the Court of Appeal was right to conclude that Mr Harts explanation to him at that time was legally sufficient; and it followed that the second and third questions were indeed not applicable. The court is told that, since 2012, it has become the Ministers practice to include within the warrant to be served upon the restricted patient at the time of recall a brief reason for it. Indeed, in the Mental Health Act 1983: Code of Practice published in 2015, the Department of Health goes further than the guidance given in 1993 in relation to stage one when it states at para 4.19: Where a conditionally discharged patient is to be recalled to hospital, a brief verbal explanation of the Secretary of States reasons for recall must be provided to the patient at the time of recall unless there are exceptional reasons why this is not possible, eg the patient is violent or too distressed. Were this guidance to be followed and were the warrant served upon the patient also to include a brief reason for the recall, the Ministers obligations to provide an explanation for it at the time of his recall would be likely to be discharged. F: QUESTIONS (4) and (5) The starting point for consideration of the fourth question, namely the effect of the conceded breaches on the lawfulness of the appellants actual detention, is the decision of this court in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245. The Home Secretary had, so the majority held, infringed the rights of two men in reaching a decision to detain them pending deportation by reference to unpublished criteria inconsistent with her published criteria. Also by a majority, the court decided that the infringement had rendered their actual detention unlawful. It was obvious that the criteria by reference to which the Home Secretary decided whether initially to detain the men, and thereafter whether to continue to detain them, bore in principle, ie at least theoretically, on the decision to detain them even though, as the court also proceeded to find, they would nevertheless have fallen to be detained by reference to the published criteria. Lord Dyson said: 68. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Lady Hale said: 207. the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result which is not the same as saying that the result would have been different had there been no breach. Lord Kerr added at para 248 that the breach had to have a direct bearing on the decision to detain. Lord Kerrs adjective took centre stage in this courts decision in R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 WLR 1299, which swiftly followed the Lumba case. In breach of a rule and indeed by way of departure from her own policy the Home Secretary had failed on about 12 occasions in the course of less than two years to conduct a monthly review of whether the appellant should continue to be detained. By a majority the court held that her failures had rendered his detention unlawful. Lady Hale said at para 77 that the departure from policy was so obvious and so persistent and so directly related to the decision to continue to detain that it was clearly material in the Lumba sense. Lord Kerr stressed at paras 83 and 88 that the public law error touched directly on the decision to detain. The first of three decisions on the other side of the line is that of the House of Lords in R (Saadi) v Secretary of State for the Home Department [2002] UKHL 41, [2002] 1 WLR 3131, and, following the appellants application to it, also of the ECtHR in Saadi v United Kingdom (2008) 47 EHRR 427. The reason why the appellant had been detained was to enable the determination of his claim for asylum to be subject to a fast track procedure but for three days a different explanation for his detention was provided to him. The House of Lords held that the error did not affect the legality of his detention. The ECtHR held that, in informing him only after three days of the true reason for his detention, the Secretary of State had failed to inform him of it promptly and so had breached his right under article 5(2) of the Convention; but there was no suggestion that the breach had affected the validity of his detention. The second of the decisions is that of the House of Lords in Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39, [2003] 1 WLR 1763. Police officers were statutorily entitled in limited circumstances to defer compliance with an arrested persons request to see a solicitor but they were required as soon as practicable to tell him their reason for deferring it. It was held that their breach of the latter requirement did not make the appellants detention unlawful. Lord Millett at para 61 described his claim to that effect as hopeless. The third of the decisions is that of this court in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66, [2015] AC 1344. The court held that the Secretary of State had breached the rights of prisoners, implied by article 5 of the Convention, to be given access to programmes which might enable them to demonstrate to the Parole Board that they no longer represented an unacceptable danger to the public. Lord Mance and Lord Hughes considered that the implied rights were analogous to rights under article 5(4). They stated unequivocally at para 37 that a breach of article 5(4) did not directly impact on the lawfulness of detention; and they held at para 38 that, likewise, breach of the implied rights did not affect the lawfulness of the prisoners detention. In my opinion there is no link, let alone a direct link, between, on the one hand, the Ministers wrongful failure for 12 days to provide to the appellant an adequate explanation for his recall and, on the other, the lawfulness of his detention. The failure did not delay reference of his case to the First tier Tribunal. Nor has the appellant suggested that it delayed institution of the present proceedings. Even if it had created delay, the unequivocal statement of Lord Mance and Lord Hughes in the Kaiyam case about the limited effects of a violation of article 5(4) would appear to exclude the relevance of the delay to the validity of the detention itself. The case closest to the present is the Saadi case where the difference was one only of degree (namely a delay of three days rather than of 12) and not of kind. The wise judge will also address the consequences of the argument presented to him. In the present case there was a clear departure from the 72 hour policy, in relation to which the Minister can claim no extenuating circumstances. But it is easy to imagine lively arguments in other cases about either the adequacy of the reasons provided to the patient for the recall or the practicability of having provided them to him within that time frame. I would be very concerned if the right of a restricted patient to walk out of hospital or to seek to do so should depend upon where the stronger of such an argument lies. I therefore consider that the Court of Appeal was right to conclude, in answer to the fourth question, that the conceded breaches did not make the appellants detention for those 12 days unlawful; and to conclude that the fifth question was therefore inapplicable. G: QUESTION (6) As a result of the conceded breaches, the appellant suffered no pecuniary loss. But in his evidence, unchallenged by the Minister, he says that in the months following his recall to hospital he suffered great distress. Nevertheless, as one would expect, he attributes his distress to the recall itself. He does not identify the failure for 12 days to have provided him with the reasons for it as an additional cause of it and, although one may infer that to some extent it increased his level of frustration and anxiety, the time span of only 12 days precludes any inference that it caused significant non pecuniary injury. The appellant is not entitled to damages for the breach of his right at common law to receive an adequate explanation for his recall within the time identified by published policy. The breach does not amount to a tort and there is nothing to suggest that damages would have been available to the appellant in any ordinary action which he might have brought against the Minister in that respect; see section 31(4)(b) of the Senior Courts Act 1981. But the Ministers concession is also of a breach of the appellants right under article 5(2) of the Convention. Thus the claim for damages must be appraised also through the prism of section 8 of the Human Rights Act 1998 which in particular requires the court, by subsection (3), to make an award of damages for the breach only if it is necessary to afford just satisfaction to the appellant and, by subsection (4), to take into account the principles applied by the ECtHR in relation to the award of compensation under article 41 of the Convention. In R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14, [2005] 1 WLR 673, Lord Bingham of Cornhill stressed at paras 4 and 9 that the focus of the Convention was upon securing the observance of minimum standards in the protection of human rights and that compensation to the victim of a breach was of secondary, if any, importance to it. Before the House, however, was a violation of article 6; and, having referred to the specific provision under article 5(5) for compensation for violation of any of the earlier paragraphs of that article, Lord Bingham stressed in para 7 the risk of error if the decisions of the ECtHR in relation to one article were read across so as to apply to another. In R (Faulkner) v Secretary of State for Justice and R (Sturnham) v Parole Board [2013] UKSC 23 and 47, [2013] 2 AC 254, the rights of two prisoners under article 5(4) to a speedy review of their continued detention by the Parole Board had been breached. In the first case the wrongful delay was about ten months and in the second it was about six months. In the first case this court reduced the award of damages to 6,500 and in the second it restored an award of 300. In explaining the courts decisions Lord Reed conducted a masterly exposition of the approach of the ECtHR to damages for violations of article 5(4). Having observed at para 53 that the ECtHR was prepared, without direct proof, to presume harm in the form of feelings of frustration and anxiety and in answer to his question is there a de minimis principle?, he concluded that: 66. a delay [in the conduct of the requisite review] 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 unlikely to be of sufficient severity. In Damages and Human Rights, 2016, Hart Publishing, Dr Varuhas argues in chapter 5(1) that in the Faulkner and Sturnham cases this court has sought too rigidly to apply the principles of the ECtHR, such as they are, to awards of compensation for Convention violations. Be that as it may, it is clear to me that damages should not be payable to the appellant for the breach of his right under article 5(2) of the Convention any more than that they should be payable for the breach of his right at common law. He has failed to establish that their effects on him were sufficiently grave. Nor would a formal declaration in this courts order add anything to my recording in this judgment of the Ministers concessions. No doubt under pressure, the Court of Appeal failed in its judgments to address the sixth question, squarely raised though it had been. But that courts wholesale dismissal of the appeal incorporates the correct, negative, answer. I therefore propose that the appeal should be dismissed. H: DISPOSAL LORD REED: I respectfully agree with the judgment of Lord Wilson, and wish only to add some brief observations in relation to the legal consequences, under the common law, of the Secretary of States failure to comply with the administrative policy under which the appellant should have been provided, after being recalled to hospital, with a full explanation of the reasons for the decision to recall him. It was decided on 19 July 2012 that the appellant should be recalled to hospital, and the decision was implemented that day. There was, under the common law, a duty to give the appellant reasons for that decision. That duty followed from the fact that the effect of the decision was to deprive him of his liberty. For the reasons explained by Lord Wilson at para 25, the Secretary of State complied with that duty. The case illustrates the extent to which the common law duty to give reasons for a decision is context specific, in the sense that what is required in order to comply with the duty depends on the context in which it arises. Quite separately, the Secretary of State had adopted an administrative policy that a full explanation of the decision to recall should be provided to patients within 72 hours of their re admission to hospital. That policy was adopted in the context of a statutory scheme governing the discharge of restricted patients, under the Mental Health Act 1983 as amended, which imposes on the Secretary of State a duty to refer the patients case to the First tier Tribunal within a month of his recall to hospital, as Lord Wilson explains at para 11. On such a reference, the tribunal has the power to order the patients discharge. It is conceded that the adoption of the policy created a public law duty to comply with it, absent good reason for non compliance. That duty arose under the common law in accordance with principles of good administration. It is conceded that there was a failure to comply with that duty in the appellants case. At the hearing of the appeal, the discussion of the effect of that failure focused primarily upon the appellants Convention rights. So far as the legal consequences under the common law are concerned, the failure to comply with the policy did not in my view render the decision to recall invalid, either ab initio or with effect from the expiry of the 72 hour period. That is so for three reasons. First, the duty is to provide reasons ex post facto. It remains capable of meaningful performance even after the 72 hour period has expired. Such performance can if necessary be enforced. Delayed performance does not, in this situation, call into question the validity of the antecedent decision. Secondly, the duty to refer the case to the tribunal within a month provides a statutory mechanism for ensuring that an adequate justification is provided for the patients detention in hospital, failing which he will be discharged. It would be inconsistent with the statutory framework governing discharge if an entitlement to release arose under the common law as soon as there had been a failure to comply with the administrative policy. Thirdly, it would be perverse if the legal consequence of the breach of a duty imposed for the sake of good administration was one which itself created administrative chaos, such as would occur if patients whose condition might require detention in hospital were entitled to walk out of the hospital as soon as the 72 hours had expired. For these reasons, in addition to those given by Lord Wilson, I agree that the failure to comply with the policy did not affect the validity of the decision to recall the appellant, or therefore the lawfulness of his consequent detention.	The appellant suffers from a personality disorder and chronic paranoid delusional disorder. He has a history of admission to psychiatric hospitals. In 2006 he was convicted of arson and burglary. In the light of his mental disorder, he was made the subject of a hospital order under the Mental Health Act 1983 (the Act), which authorised his admission to and detention in a secure hospital, and a restriction order under the Act, which vested the power to discharge him in the respondent (the Minister) or the First tier Tribunal (Health, Education and Social Care Chamber) (the Tribunal). The appellant thereby became a restricted patient under the Act, and was detained in medium secure hospitals. In April 2012 the Tribunal directed that the appellant should be conditionally discharged from hospital and approved a plan that he should move to a registered care home subject to conditions. The appellant took up residence at a care home. On 19 July 2012 the carers responsible for the appellant invited the Minister to consider recalling the appellant to hospital. This was for a number of reasons, including that the appellants mental health had deteriorated, that he was likely to abscond, and that he was likely to breach the conditions of his discharge. The Minister immediately issued a warrant for the appellants recall and the warrant was executed on 19 July 2012. As required by the Act, the Minister referred the appellants case to the Tribunal promptly on 20 July 2012. The warrant set out no reasons for the appellants recall. When the appellant was informed that he was being recalled, he was told only that it was because his mental health had deteriorated. When the appellant was taken into hospital, the staff were unable to explain the reasons for his recall. On 24 July 2012 the Minister wrote a letter to the hospital which contained a number of errors, including the assertion that the recall warrant had not been executed, and the instruction that the appellant should be informed of the reasons for his recall within 72 hours of admission (even though that time limit had already expired). The letter also failed to state any reasons for the appellants recall. On 3 August 2012 (15 days after the appellants recall), he was provided orally with a fuller, adequate explanation for the recall, but was not provided with a written explanation. The appellant challenged the lawfulness of the decision to recall him. His application was dismissed at first instance. Before the Court of Appeal, his primary case was that there was an unlawful failure to explain the reasons for his recall and that (a) that failure affected the legality of his detention, or alternatively (b) that it generated a right to a declaration and damages. The Court of Appeal dismissed his appeal, and the appellant appealed to the Supreme Court. The Supreme Court unanimously dismisses the appellants appeal. Lord Wilson (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Toulson agree) gives the leading judgment. Lord Reed gives a short concurring judgment. The Department of Health has issued guidelines on the recall of patients to hospital, which set out a three stage procedure for the communication of reasons (the Policy) [16]. The Minister concedes that the second and third stages of the Policy were not implemented: namely, an adequate explanation was not provided to the appellant within three days of his recall (but only after 15 days), and no explanation in writing was provided within three days (but only months later in the context of these proceedings). The Minister further concedes that this means there has been a breach of the appellants common law right to have the Policy properly applied, and his right under Article 5(2) of the European Convention on Human Rights (ECHR) to be informed promptly of the reasons for his recall [17 21]. Legal sufficiency of the Ministers explanation The explanation provided to the appellant at the time of his recall (i.e. that it was because of his deteriorating mental health) satisfied the first stage of the Policy. It also complied with the Ministers common law duty to provide reasons [24 25]. As for the ECHR, Article 5(2) does not in this respect extend beyond the demands of the common law and, accordingly, there is no violation of that article [26 32]. The Court of Appeal was therefore correct to find that the Ministers explanation at that time was legally sufficient, and it is unnecessary to consider the effect of an insufficient explanation [32]. Effect of the Ministers conceded breaches on the legality of detention The appellant argued that the Ministers conceded breaches rendered his detention between the third and 15th days following his recall unlawful. As to this, there is no link, let alone a direct link (as is required following R (Lumba) and R (Kambadzi) [34 35]) between the Ministers wrongful failure for 12 days to provide the appellant with an adequate explanation for his recall, and the lawfulness of his detention during that 12 day period [39]. Further, the consequences of the appellants argument would be of concern in other similar cases, given the need to detain restricted patients under the Act in appropriate circumstances [40]. The Court of Appeal was therefore right to conclude that the conceded breaches did not render the detention unlawful [41]. Damages and declaration The appellant is not entitled to damages for the breach of his common law right to receive an adequate explanation for his recall within the time set out by the Policy. The breach does not amount to a tort and there is nothing to suggest that damages would have been available in an ordinary action against the Minister [43]. The conclusion is the same in relation to the violation of Article 5(2) ECHR; the appellant has failed to establish that the effects of the breach were sufficiently grave [46]. As for a formal declaration, it would not add anything to the recording of the Ministers concessions in the Courts judgment [46]. Lord Reed adds some observations in relation to the consequences at common law of the Ministers failure to comply with the Policy [48 53].
The issue in this appeal is when time starts to run for a claim by a part time judge to a pension under the Part time Workers Directive (Directive 97/81) (PTWD), as applied by the Parttime Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) (PTWR). The directive was required to be transposed into domestic law by 7 April 2000. The appellants are four judges, each of whom has held one or more appointments as fee paid part time judges, in some cases moving between such part time and full time salaried appointments. They are illustrative of the different ways in which such part time (PT) and full time (FT) appointments may be combined in a single career, as Mr Allen QC (for the appellants) explains in his printed case: The careers of Mr Haworth and Mr Sprack illustrate the common situation of a judge moving from PT to FT in the same jurisdictions: Mr Haworth as a Costs Judge, and Mr Sprack as an Employment Judge. Mr Sprack also reverted to working PT before finally retiring. The careers of Mr Fox and Mr Wain illustrate the kinds of judicial careers that are based on a portfolio of PT judicial appointments which can change over time prior to retirement. Additionally, Mr Wain also held a FT appointment as a District Judge between May 2004 and January 2011, though even then he also held a PT appointment as a Mental Health Tribunal judge. Each appellant lodged a claim with the Employment Tribunal more than three months after the end of a part time appointment, and therefore out of time if that is the relevant date; but within time, if the relevant date is the date of retirement. In a decision given on 2 January 2014 EJ Macmillan held that the period of three months started to run from the end of any part time appointment, and that the claims were accordingly out of time. He declined to exercise the discretion (under PTWR para 8(3)) to extend time as being just and equitable; that part of his decision is no longer in issue. Since then there has been no substantive judicial consideration of these issues at higher levels, the issues being treated as in substance turning on decisions, domestic and European, in the related case of OBrien v Ministry of Justice (see below). The statutory framework In Ministry of Justice v OBrien (No 2) [2017] UKSC 46; [2017] ICR 1101, para 10, Lord Reed summarised the domestic legislation governing judicial pensions: Domestic legislation provides for the payment of judicial pensions under two statutes, the Judicial Pensions Act 1981 and the Judicial Pensions and Retirement Act 1993. The 1981 Act applies to persons appointed prior to 31 March 1995, unless they elect to have their pension paid under the 1993 Act. The 1993 Act applies to persons appointed on or after 31 March 1995. Under the Acts, a pension is payable to any person retiring from qualifying judicial office, subject to their having attained the age of 65 and, under the 1993 Act, subject also to their having completed at least five years service in such office. At the material time, full time judges and salaried part time judges held a qualifying judicial office, but fee paid part time judges, such as recorders, did not. Under both schemes, the amount of pension payable to a full time judge is based on his or her final years salary and on his or her number of years service in a qualifying judicial office by the date of retirement. Under the 1981 Act, circuit judges must have served for 15 years in order to qualify for a full pension of one half of their last annual salary. The corresponding period under the 1993 Act is 20 years. Under both schemes, judges who have served for shorter periods receive a proportion of the full pension corresponding to the length of their service. There is also a lump sum payable on retirement, the sum being based on the amount of the annual pension. Judicial pensions were at the material time non contributory. Since 2012, judges have had to pay a contribution. For present purposes it is sufficient to refer to the provisions of the 1993 Act, which applied to those appointed on or after 31 March 1995. The basic concept in the 1993 Act is qualifying judicial office (1993 Act section 1(1)). By section 1(6): (6) For the purposes of this Act, a person shall be regarded as holding, or serving in, qualifying judicial office at any time when he holds, on a salaried basis, any one or more of the offices specified in Schedule 1 to this Act; Schedule 1 is a list of offices ranging from court judges at different levels, through court officers (such as Queen Bench Masters), to members of tribunals in a range of specified jurisdictions. It is to be noted that the focus (under section 1(6)) is not on individual offices or appointments, but on qualifying judicial office a composite term which may comprise any one or more of the listed offices. By section 2(1): Any person to whom this Part applies (a) who retires from qualifying judicial office on or after the day on which he attains the age of 65, and (b) who has, at the time of that retirement, completed, in the aggregate, at least five years service in qualifying judicial office, shall be entitled during his life to a pension at the appropriate annual rate. Later subsections deal with the variation of the pension entitlement in special cases: for early retirement on medical grounds (section 2(3)); early removal from office (section 2(4)); and resumption of qualifying office after beginning to take a pension (section 2(5)). Section 3 fixes the appropriate annual rate by reference to the aggregate length of service in qualifying judicial office at the point of retirement. The appellants, so long as not being paid on a salaried basis, were excluded from the definition of qualifying judicial office, and therefore also excluded from rights to pensions under the Act. The PTWR, which came into force on 1 July 2000, and gave effect to the PTWD, were designed to put part time workers on the same footing as their full time equivalents. Regulation 5 provided: 5(1) A part time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full time worker as regards the terms of his contract; or (a) (b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer Initially this did not assist the appellants, since regulation 17 provided: These Regulations do not apply to any individual in his capacity as the holder of a judicial office if he is remunerated on a daily fee paid basis. However, the Supreme Court later made clear (in the first OBrien judgment see below) that regulation 17 must be disapplied so as to bring the meaning of worker in the PTWR into line with the PTWD. This opened the way to claims by fee paid judges, such as the appellants, under the PTWR. The relevant time limit for a complaint to the Employment Tribunal is set by regulation 8 of the PTWR which provides: (2) Subject to paragraph (3), an employment tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months beginning with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment, the last of them, (4) For the purposes of calculating the date of the less favourable treatment or detriment under paragraph (2) (a) where a term in a contract is less favourable, that treatment shall be treated, , as taking place on each day of the period during which the term is less favourable; OBrien v Ministry of Justice Dermod OBrien QC was appointed as a Recorder of the Crown Court from March 1978, initially for three years, but extended periodically until his retirement on 31 March 2005. Although his terms of service gave no right to a pension, he claimed to be entitled under the PTWR to a pension on terms equivalent to those applying to a circuit judge. Following a reference to the CJEU, in February 2013 his claim in principle was upheld by the Supreme Court (OBrien v Ministry of Justice [2013] UKSC 6; [2013] 1 WLR 522; [2013] ICR 499). The claim was remitted to the Employment Tribunal for determination of other matters in dispute, including a dispute as to the period to be taken into account in calculating his pension. The question was whether, in calculating the amount of his pension, account should be taken of the whole of his service since the beginning of his appointment on 1 March 1978 (a period of 27 years), or only his service since the deadline for transposing the directive expired (a period of less than five years). Following conflicting decisions of the Employment Tribunal and the Employment Appeal Tribunal, on 6 October 2015 the Court of Appeal held that only the shorter period should be taken into account (OBrien v Ministry of Justice [2015] EWCA Civ 1000; [2016] ICR 182). On 9 November 2015, the Court of Appeal dismissed the appellants appeals in the Miller cases without further analysis, treating them as governed by its judgment in OBrien. Following an appeal to the Supreme Court, the court decided on 12 July 2017 to refer a further question to the CJEU (OBrien v Ministry of Justice (No 2) [2017] UKSC 46; [2017] ICR 1101). In his judgment explaining the reference, Lord Reed (paras 15 20) cited Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers en Schoonmaakbedrijf (Case C 109/91) [1995] ICR 74; [1993] ECR I 4879) (Ten Oever), as showing that the CJEU had treated occupational pensions as a form of pay, the entitlement to which accrues over the length of the employees service. Mr OBrien had argued that, consistently with the future effects principle, earlier periods of employment were to be taken into account when applying the directive in situations which arose after it should have been transposed. In contrast the Ministry had argued that, since (under Ten Oever) the entitlement to an occupational pension accrued at the time of the work, his non entitlement to pension in respect of his first 22 years of service must, in line with the non retroactivity principle, be left out of account having been definitively established before the directive entered into force. While accepting that the resolution of these conflicting arguments was not acte clair so that a reference was necessary, Lord Reed indicated the provisional view of the majority of the court in favour of Mr OBriens contention: The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part time workers when a retirement pension falls due for payment. The directive applies ratione temporis where the pension falls due for payment after the directive has entered into force. In so far as part of the period of service took place prior to the directives entry into force, the directive applies to the future effects of that situation. On 7 November 2018, the CJEU handed down judgment in OBrien v Ministry of Justice (No 2) (Case C 432/17) [2019] ICR 505 (OBrien 2). The CJEU, in effect upholding the majority view, held that periods of service prior to the deadline for transposing the directive must be taken into account for the purpose of calculating the retirement pension entitlement. As the court explained, while a new legal rule does not apply to legal situations that arose and became definitive prior to its entry into force, it does apply to the future effects of a situation which arose under the old law (para 27). It was accordingly necessary to examine whether the gradual acquisition of pension entitlements over the period preceding the deadline [for transposition of the directive] has the effect that the legal situation of the claimant must be considered to have become definitive at that date. (para 29) It noted the argument for the government that at the end of each period of service the corresponding pension entitlement exhausts its effects, and therefore should be left out of account (para 30). However, (in a passage relied on by both parties in the present appeal) the court observed: with regard to the argument of the United Kingdom Government that the calculation of the period of service required to qualify for a retirement pension should be distinguished from the rights to a pension, it must be noted that it cannot be concluded from the fact that a right to a pension is definitively acquired at the end of a corresponding period of service that the legal situation of the worker must be considered definitive. It should be noted in this respect that it is only subsequently and by taking into account relevant periods of service that the worker can effectively avail himself of that right with a view to payment of his retirement pension. (para 35) The Ministry has accepted that judgment as determinative of the OBrien appeal in his favour. Innospec Ltd v Walker (Walker) Before returning to the present appeals, it is necessary to refer to another case which was heard by the Supreme Court at the same time as the OBrien but in which the court gave a final ruling rather than making a reference ([2017] UKSC 47; [2017] ICR 1077). The issue in Walker in short was whether the civil partner of Mr Walker (under a partnership registered in January 2006) was entitled to be paid a survivors pension calculated by reference to Mr Walkers service, both before and after the transposition date of Directive 2000/78/EC (the Framework Equality Directive), which outlawed discrimination on grounds of sexual orientation. Consistently with its view in OBrien, applying the Ten Oever principle, the Court of Appeal had held that only Mr Walkers service after the transposition date (2 December 2003) should be taken into account in calculating the survivors pension to which his partner would be entitled. This court rejected that approach. No issue arose as to the time limit for bringing the claim under regulation 8. However, Mr Allen relies on a paragraph in the majority judgment of Lord Kerr dealing with the Ten Oever argument: Mr Chamberlain [counsel for Mr Walker] submitted that the appeal tribunal wrongly took Advocate General Van Gervens description of pension benefits in the Ten Oever case as deferred pay as equating the time at which a pension right accrues with the time at which any discrimination in the provision of resulting benefits is to be judged. I agree that the appeal tribunal was wrong to do so. The point of unequal treatment occurs at the time that the pension falls to be paid. If Mr Walker married a woman long after his retirement, she would be entitled to a spouses pension, notwithstanding the fact that they were not married during the time that he was paying contributions to his pension fund. Whether benefits referable to those contributions are to be regarded as deferred pay is neither here nor there, so far as entitlement to pension is concerned. Mr Walker was entitled to have for his married partner a spouses pension at the time he contracted a legal marriage. The period during which he acquired that entitlement had nothing whatever to do with its fulfilment. (para 56, emphasis added) The Miller appeals Judge Macmillans reasoning It is right to pay tribute to Judge Macmillans commendably thorough and insightful treatment of the issues in the Employment Tribunal. He summarised his conclusion on the time limit issue at the outset of his judgment: 1. For the purposes of bringing a claim under the Part time Workers (Prevention of Less Favourable Treatment) Regulations 2000 in respect of denial of access to the judicial pension scheme, time runs from the ending of each fee paid appointment about which complaint is made, irrespective of whether the claimant then transfers into a salaried appointment or has other fee paid appointments which continue (paras 15 26) The paragraphs there referred to contain a careful analysis of the respective submissions before him, including discussion of the House of Lords decision in Barclays Bank plc v Kapur [1991] 2 AC 355. It is sufficient to quote the most relevant part of his conclusion: 25. I therefore reach the same conclusion as the tribunal in OBrien, namely that the act of discrimination complained of, denial of access to the scheme while a fee paid judge, must be distinguished from the consequences of that act, the failure to pay a pension reflecting fee paid service, a passage expressly approved by the Court of Appeal in OBrien. Barclays Bank plc v Kapur, in my judgment, far from being a trump card is in fact irrelevant. In a simple transfer case time therefore runs from the date on which the fee paid office about which complaint is made, ended. If that is true of the simple transfer cases it must, in my 26. judgment be true of the so called portfolio cases, that is those cases where at some point in their career a fee paid judge has held other fee paid offices which they no longer hold at the time the claim was presented. Time runs in those cases from the date on which each office was relinquished. The variants of the simple transfer case, where the salaried judge returns to fee paid office on retirement from the salaried post and where the fee paid judge continues to hold a fee paid office in addition to their salaried office, produce the same result although for different reasons. In the former case Mr Allen has failed to explain how, if the first period of fee paid service is out of time, the second period somehow resurrects the corpse. He has failed to explain it because no explanation is available. In the latter case the answer lies in regulations 5(1) and 8(4)(a). Any term in the parallel fee paid contract cannot be less favourable in the sense of the pension it fails to generate as the salaried terms and conditions are generating the maximum pension entitlement possible As already noted, there was no substantive consideration of this reasoning in the Employment Appeal Tribunal or the Court of Appeal, in view of the perceived link with the issues in OBrien. As Lewison LJ explained in the Court of Appeal: 1. The issue on these appeals is whether the appellants were in time in submitting their claims to the Employment Tribunal complaining of unlawful discrimination under the Part Time Workers Directive. That, in turn, depends on whether their pension rights are definitively acquired at the time of their service or only when they retired; which is a question of EU law. 2. In OBrien v Ministry of Justice [2015] EWCA Civ 1000, decided on 6 October 2015, this court held that a worker definitively requires pension rights attributable to a particular period of days during that period of service and does so by reference to the law applicable during that period of service. The decision in OBrien is equally applicable to these appeals with the consequence that the appellants applications were out of time. ([2015] EWCA Civ 1368, paras 1 2) The competing arguments in this court Ministry of Justice For the Ministry Mr Cavanagh QC accepts that, before the CJEU judgment in OBrien 2, the expectation was that the OBrien and Miller appeals would stand or fall together. However, that view was no longer tenable in the light of the reasoning of the court. He starts from the key issue in Miller as identified in the Statement of Facts and Issues, agreed by the parties in October 2016 (at para 22): The answer to the question whether [the Miller appellants] claims are in time depends on the point in time at which pension rights are definitively acquired and time for bringing a claim starts to run. In OBrien 2 (para 35) the CJEU confirmed that the right to a pension is definitively acquired at the end of the corresponding period of service. That would appear to give a clear answer to the issue identified in the Miller appeals, which is unaffected by the CJEUs disposal of OBrien itself by reference to its application of the future effects principle. He notes that, following the first judgment of this court in OBrien [2013] 1 WLR 522, para 42, it is clear that the claims are domestic claims, arising under the PTWR, but subject to the disapplication of regulation 17 so as to bring the meaning of worker in the PTWR in line with its meaning in the PTWD. The procedural rules and limitations applicable to such claims are matters for domestic law (subject to the requirements of effectiveness and equivalence, which are not in issue). Applying regulation 8, the question for the purpose of the primary time limit is when the less favourable treatment took place. Under domestic legal principles, pensions are treated as deferred pay (Parry v Cleaver [1970] AC 1 at 16C D), the entitlement to which accrues at the time of service. The fact that the pay is received some time after employment has ended, so that the consequences may not be felt for some time afterwards, does not detract from the position that the less favourable treatment or detriment took place during the service. A distinction is to be drawn between the less favourable treatment or detriment and its consequences (Barclays Bank plc v Kapur [1989] ICR 753, 770 per Mann LJ). This is illustrated by Sougrin v Haringey Health Authority [1992] ICR 650, in which it was held that time ran from the alleged act of discrimination (the refusal to promote the claimant), not from the subsequent period during which she received a lower salary in consequence. This approach is, he submits, consistent with the decision of the House of Lords in Barclays Bank plc v Kapur [1991] 2 AC 355. This was a claim under the Race Relations Act 1976, brought by Asian Barclays employees whose service in Kenya (before their expulsion and further employment by Barclays in the UK) had not been treated as counting towards their pension entitlement with Barclays Bank Ltd. The time limit for bringing a claim was set by section 68, which provided: (1) An industrial tribunal shall not consider a complaint [of race discrimination] unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done. (7) For the purposes of this section (a) when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and (b) as done at the end of that period; and (c) when the person in question decided upon it a deliberate omission shall be treated as done any act extending over a period shall be treated Under section 68 the House of Lords held that the less favourable treatment took place throughout the period of employment, so that the three month primary limitation period commenced at the end of the employment. Lord Griffiths, with whom the other members of the House agreed, said (at p 369): In the present case the Court of Appeal were in my view right to approve these two decisions and to classify the pension provisions as a continuing act lasting throughout the period of employment and so governed by subsection (7)(b). A man works not only for his current wage but also for his pension and to require him to work on less favourable terms as to pension is as much a continuing act as to require him to work for lower current wages. As Mr Cavanagh submits, it is clear from this that less favourable treatment or detriment in relation to pensions takes place at the same time as in relation to any other aspect of a workers terms and conditions, that is during service. Lord Griffiths did not say that it occurred at the time the claimants took their pensions. He submits further that to hold that the relevant date does not arise until the pension is taken would lead to absurd consequences: It would mean that a claimant in a pensions case would have no right to take proceedings under the PTWR until they had reached pension age which may be very many years after the period of service and which may well be too late to obtain a genuine remedy. It would also mean that the very many claims that have been brought by claimants in the judicial pensions litigation who are below retirement age would have to be struck out on the basis that there has been as yet no breach of the PTWR. The appellants Mr Allen for the appellants reads regulation 8 as posing the question: when did the less favourable treatment allegedly unlawful contrary to regulation 5 finally occur? (his emphasis). The Ministrys arguments fail to give weight to the true nature of their claims. The treatment which is less favourable, compared to that afforded to a full time judge, is the non payment of a pension pro rata temporis on retirement at or above 65. The detriment finally occurs at the point at which, had they only ever worked full time in qualifying judicial office, they would have been actually entitled to a pension: Until then the pension entitlement of the comparator is, prospective, contingent and inchoate in the sense of not being fully formed. Until then their right to equal treatment is similarly prospective, contingent and inchoate. This approach is, he submits, entirely consistent with para 35 of the CJEUs judgment in OBrien 2 (see above). Although the court spoke of the right being definitively acquired at the end of a period of service, it recognised that this was not definitive of the workers legal situation, since it was only subsequently and by taking into account relevant periods of service that he could effectively avail himself of that right with a view to payment of his retirement pension. The passage of Lord Griffiths speech in Kapur does not assist Mr Cavanagh, both because the wording of the relevant provision was different, but also because the House was not asked to consider whether or not there was relevant unfavourable treatment also at the time of retirement. Conversely, his argument disregards the clear and specific treatment of this issue by Lord Kerr in Walker. Nor is there any basis for the suggested absurdity arising from the appellants argument. The fact that there is relevant detriment at the time of retirement does not mean that there is no detriment at an earlier period, nor that there is anything to prevent proceedings in that respect at an earlier stage. Discussion As I understand it, it is now common ground that the issue in this appeal is one of domestic law, turning on the construction and application of regulation 8 of the PTWR, and that the determinative question is: when did the less favourable treatment occur, or (in Mr Allens words) when did it finally occur? Although perhaps understandable at the time, the former assumption (apparent in the judgment of the Court of Appeal) that the issue was one of European Law, and that the present claims would stand or fall with OBrien, seems to have proved something of an impediment to a clear analysis of the relevant issues of domestic law. At the same time it must be borne in mind that that the regulations have to be construed in a highly artificial context. That results not only from the need to conform to the requirements of European law, but also from the special characteristics of judicial appointments and judicial pensions under domestic law. In the first place, while the regulations assume the existence of a contract of employment (see regulation 5, 8(4)), a judicial officer is not employed under a contract (see Gilham v Ministry of Justice (Protect intervening) [2019] UKSC 44; [2019] 1 WLR 5905), so that references to the terms of a contract can at best be applied by analogy. Secondly, as has been seen, the judicial pension scheme is not based on individual appointments, but on qualifying judicial office, which may include a number of different appointments within those specified in Schedule 1 of the 1993 Act. That special feature of the scheme needs to be taken into account in making a comparison for the purposes of the regulations. It may be misleading and unfair to direct attention to the nature and timing of individual part time appointments, without regard to the broader concept of qualifying judicial office, which would have applied had they been brought within the statutory scheme. This as I understand it was a point made by Mr Allen in the Employment Tribunal, as recorded by Judge Macmillan (ET para 12): The Judicial Pensions and Retirement Act 1993 permits the payment of pension only on retirement from judicial office, not from a judicial office and requires the judges pension to be calculated on their aggregated service in judicial office, meaning that the judge who changes roles has her total service counted for pension purposes, not just her service in the latest role. The European cases relied upon by Mr Cavanagh are simply not in point as they do not deal with time limit issues at all. As has been seen (para 19 above), the judge took a narrower view. He proceeded on the basis that, in what he called a simple transfer case time therefore runs from the date on which the fee paid office about which complaint is made, ended. He applied the same approach to more complex portfolio cases where a fee paid judge has held other fee paid offices, or has moved between salaried and fee paid offices: time runs from the date on which each office was relinquished. I understand the logic of that approach. But, as Mr Allen submitted, it does not fit well with the aggregate approach required by the 1993 Act. The varied combinations of fee paid or salaried offices undertaken by different individuals were a desirable feature of a flexible judicial system, but there is no reason why they should govern the entitlement to pension, under the PTWR any more than under the 1993 Act itself. I also agree with Mr Allen that the speech of Lord Griffiths in Kapur is not determinative. The issue was whether the unfavourable treatment continued throughout the period of employment. The House was not required to consider whether there was an unfavourable treatment also at the point when the pension was or would be taken. For the same reason, I would reject Mr Cavanaghs submission as to the absurd consequences which would follow from denying complainants a remedy at an earlier stage. As regulation 5 makes clear, the unfavourable treatment may relate to the terms of the contract, or any other detriment resulting from an act or failure to act by the employer. By analogy, in the context of judicial pensions, the part time judge may properly complain both during his period of service, that his terms of office did not include provision for a future pension; and, at the point of retirement, that there has been a failure at that point to make a pension available. The former does not exclude the latter. Finally, I agree with Mr Allen that Lord Kerrs judgment in Walker is helpful in that respect. Although he was not concerned with the application of a comparable time limit, that does not detract from the generality of his statement that the point of unequal treatment occurs at the time that the pension falls to be paid. It is consistent also with Lord Reeds statement in OBrien that it is unlawful to discriminate against part time workers when a retirement pension falls due for payment. In my view, that also accords with the common sense of the matter. It may be that the appellants could have complained of less favourable treatment, as compared to their full time colleagues, by reference to the lack of any equivalent provision for a pension in their terms of office. But that does not detract in any way from the less favourable treatment they undoubtedly suffered, or would suffer, at the point of retirement. Conclusion For these reasons I would allow the appeals, and make declarations accordingly.	This issue in this appeal is when time starts to run for a claim by a part time judge to a pension under the Part time Workers Directive (Directive 97/81), as applied by the Part time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) (PTWR). Regulation 5 of the PTWR provides that a part time worker is entitled not to be treated by their employer less favourably than the employer treats a comparable full time worker, either with regard to the terms of their contract or by being subject to any other detriment. Regulation 8 of the PTWR provides insofar as is relevant: (2) Subject to paragraph (3), an employment tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months beginning with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment the last of them For the purposes of calculating the date of the less favourable treatment or detriment under paragraph (4) (2) (a) where a term in a contract is less favourable, that treatment shall be treated, , as taking place on each day of the period during which the term is less favourable; The Appellants are four judges, each of whom has held one or more appointments as fee paid part time judges, in some cases moving between such part time and full time salaried appointments. Judicial pensions, for those who are appointed on or after 31 March 1995, are provided for under the Judicial Pensions and Retirement Act 1993 (the 1993 Act). The basic concept in that Act is qualifying judicial office (s.1). The Appellants, so long as not being paid on a salaried basis, were excluded from the definition of qualifying judicial office, and therefore were excluded from rights to a pension. The Appellants brought claims on the basis that they had been the subject of less favourable treatment in the provision to them of a judicial pension. Each lodged a claim with the Employment Tribunal more than three months after the end of a part time appointment, and therefore out of time if that is the relevant date for regulation 8 of the PTWR, but within time if the relevant date is the date of retirement. At first instance EJ Macmillan held that the three months started to run from the end of any part time appointment, and thereby held that the claims were brought out of time. There has been no substantive judicial consideration of this issue before the Upper Tribunal and Court of Appeal, as the issue has been treated as subject to the appeal in Ministry of Justice v OBrien. However, before the Supreme Court the issue is now understood as one of domestic law, and has been argued fully. The determinative question is: when did the less favourable treatment occur? The Supreme Court unanimously allows the appeals. Lord Carnwath gives the sole judgments, with which the other Justices agree. As judicial officers are not employed under a contract of employment, the PTWR must be construed in an artificial context. determining this case, it must be borne in mind that the judicial pension scheme is not based upon individual appointments. Instead, regard must be had to the composite term qualifying judicial office, which may include a number of different appointments [31]. That special feature of the scheme must be taken into account when making the comparison between part time and full time judges called for by the PTWR, as it may be misleading or unfair to direct attention to the nature and timing of individual part time appointments [32]. There is no reason why entitlement to pension should be governed by the varied combinations of fee paid or salaried offices undertaken by different individual judges. This does not sit well with the aggregate approach provided for by the 1993 Act [33]. Regulation 5 of the PTWR makes clear that unfavourable treatment may relate to the terms of a contract or any other detriment resulting from an act or failure to act by the employer. By analogy, in the context of judicial pensions, a part time judge may properly complain: (1) during their period of service that their terms of office do not include proper provision for a future pension; and, (2) at the point of retirement, that there has been a failure to make a proper pension available. The former does not exclude the latter [34]. This accords with case law, which indicates that the point of unequal treatment occurs at the time the pension falls to be paid, and accords with the common sense of the matter [35].
This appeal raises the issue as to whether a third country (ie non member state) national (TCN) otherwise benefiting from the derivative right to reside within the territory of the European Union pursuant to the principle in Ruiz Zambrano v Office national de l'emploi (Case C 34/09) EU:C:2011:124; [2012] QB 265 (Zambrano) enjoys enhanced protection against deportation, such that she can be deported in exceptional circumstances only. In Zambrano, the Court of Justice of the European Union (the CJEU) held that a TCN parent of a Union citizen child resident in Union territory who was dependent on the TCN parent, was entitled to a right of residence if expulsion of the TCN parent would require the child to leave the territory of the Union, thereby depriving the child of the genuine enjoyment of the substance of the childs Union citizenship rights. The principle extends to dependants who are not children, and applies even though the Union citizen has not exercised their right of free movement. The right of residence of the TCN is a derivative right, that is, one derived from the dependent Union citizen. It flows from article 20 of the Treaty on the Functioning of the European Union (article 20FEU) and was expressed in unqualified terms in Zambrano so as to be thought to prevent expulsion of the TCN parent in all circumstances. The Upper Tribunal (the UT) in its decision promulgated on 23 August 2013 proceeded on the basis that the Zambrano right of residence was unqualified, so that there was an absolute prohibition preventing deportation of the TCN parent without any consideration of proportionality even if that parent had committed serious crimes. The Secretary of State for the Home Department (the Secretary of State) appealed to the Court of Appeal against the determination of the UT which appeal was stayed to await the judgments of the CJEU in S v Secretary of State for the Home Department (Case C 304/14) EU:C:2016:674; [2017] QB 558 (CS) and Rendn Marn v Administracin del Estado (Case C 165/14) EU:C:2016:675; [2017] QB 495 (Marn). These judgments were delivered on 13 September 2016. By its judgments in CS and Marn the CJEU held that there was a limitation on the Zambrano derivative right of residence so that the right was not absolute. In CS at para 36 it stated that article 20FEU does not affect the possibility of member states relying on an exception linked, in particular, to upholding the requirements of public policy and safeguarding public security. In the same judgment at para 50 it stated However, in exceptional circumstances a member state may adopt an expulsion measure provided that it is founded on the personal conduct of that third country national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that member state, and that it is based on consideration of the various interests involved, matters which are for the national court to determine (emphasis added). Following the delivery of the judgments in CS and Marn the issues on appeal narrowed. The appellant accepted that the UT had erred in law in that it had wrongly concluded that protection against removal was absolute and there was no need to consider proportionality if it concluded that the deportation of a TCN parent would require a child who was a Union citizen to depart from the territory of the Union with the person being deported. On behalf of the Secretary of State it was submitted and the Court of Appeal [2018] EWCA Civ 85; [2018] WLR 81 held at para 67, that exceptional circumstances in para 50 of CS simply means that it is an exception to the general rule which general rule was that a person who enjoys the fundamental rights of an EU citizen cannot be compelled to leave the EU. The Court of Appeal added that It does not mean that, where the criteria set out in the proviso are satisfied, there is an additional hurdle that there must also be exceptional circumstances. The Court of Appeal remitted the case to the UT in order to carry out the proportionality exercise required by the decisions of the CJEU in CS and Marn. The appellant applied for permission to appeal to the Supreme Court on three grounds: a. Ground one: Whether the Court of Appeal was wrong to conclude that there was no need for exceptional circumstances to be established before a person relying on Zambrano could be deported. b. Ground two: Whether there was a sufficient evidential basis for finding that the deportation of the appellant was potentially lawful. c. Ground three: Whether the Court of Appeal erred by remitting rather than determining proportionality directly. On 4 July 2019 permission to appeal was granted on ground one only (whether exceptional circumstances need to be established before a Zambrano carer could be deported). That is the only question to be determined in this appeal. After the Court of Appeal delivered its judgment on 2 February 2018 the CJEU on 8 May 2018 delivered judgment in KA v Belgische Staat (Case C 82/16) EU:C:2018:308; [2018] 3 CMLR 28 (KA) which again addressed the test that should be applied as an exception to the Zambrano principle. This means that there are now three CJEU decisions addressing the sole issue in this appeal. It is a feature of this appeal that the decisions in Zambrano, Marn, CS and KA were all decisions of the CJEU (Grand Chamber). In this judgment I will refer to these decisions as the decisions of the CJEU to avoid repeating Grand Chamber on each occasion. II Factual background The appellant is a national of Jamaica who was born on 13 March 1975. She is now aged 45. Initially she entered the United Kingdom as a visitor on 2 August 2002 and was granted leave to enter until 23 August 2002. Further extensions were made permitting her to remain as a student until 28 February 2004. On 11 November 2003 the appellant married Marlon MacPherson, a person present and settled in the United Kingdom. Following her marriage and on 24 February 2004, she applied for leave to remain as the spouse of a person present and settled in the United Kingdom. She was granted leave until 2 March 2006. On 28 February 2006 she applied for indefinite leave to remain which was granted on 22 March 2006. The appellant committed a serious criminal offence, of supplying a class A drug (cocaine). On 5 October 2006, at Wood Green Crown Court the appellant was convicted of this offence and was sentenced to a period of imprisonment of two years and six months. The appellants evidence to the First tier Tribunal was that she decided to sell drugs as she needed additional funds because her grandmother had fallen seriously ill in Jamaica with heart failure, arthritis, and high blood pressure. On 20 November 2007 a deportation order in respect of the appellant was signed by the Secretary of State. On 24 September 2008 the appellant was detained, pending removal but her removal was subsequently deferred as she was pregnant. On 29 December 2008, the appellant gave birth to a boy, whom I will call D, who is now almost 12 years old. His father is Mr MacPherson. D is a British national and a citizen of the Union. The appellants evidence is that D has lived in the United Kingdom with her throughout his life. There was a history of unsuccessful challenges to the deportation order culminating on 7 January 2009 with an unsuccessful judicial review application following which the appellant failed to co operate with the authorities between 2009 and 2012, being listed as an absconder on 6 May 2009. On 20 February 2012, the appellant submitted an application for leave to remain outside the Immigration Rules. This was treated by the Secretary of State as an application to revoke her deportation order. On 29 August 2012, the Secretary of State refused the application. It is that decision which gave rise to a further right of appeal to the First tier Tribunal and is the subject of these proceedings. III The judgments of the Tribunals and the Court of Appeal (a) The First tier Tribunal On appeal to the First tier Tribunal before Judge Mitchell the appellant contended that her deportation would violate rights under article 8 of the European Convention on Human Rights (ECHR). The judgment of the CJEU in Zambrano which had been delivered on 8 March 2011 was referred to in the determination of Judge Mitchell promulgated on 7 December 2012. However, the appeal before Judge Mitchell proceeded purely on the basis that deportation would violate the article 8 ECHR rights of the appellant, D and of Mr MacPherson. In summary the evidence before Judge Mitchell was that by 22 February 2012 the appellant and her husband were living separately but had prior to the hearing reconciled so that they were back together again. The appellant stated that her husband played an important role in Ds life and that the deportation order requiring the appellant to leave the United Kingdom would also require D to leave with her so as to separate the appellant and her son from her husband who would remain in the United Kingdom. Judge Mitchell carried out an article 8 ECHR proportionality exercise stating at para 74 that the appellant was convicted of extremely serious offences. She is a foreign criminal. The scourge of drugs on society has been held many times to be utterly reprehensible. The decision of the Secretary of State to deport a foreign criminal who has received such a significant sentence for drugs offences is proportionate even taking into account the circumstances of the appellants family and herself. The judge dismissed the appellants appeal finding that deportation would not violate article 8 ECHR. (b) The Upper Tribunal The appeal before the UT proceeded not only on the basis that deportation would violate article 8 ECHR but also on the basis of the appellants derived right of residence under the Zambrano principle. The UT (which comprised UT Judges Jordan and Pitt) allowed the appeal with the determination being given by UT Judge Jordan. He held that the effective care of D was in the hands of the appellant so it followed that the appellants removal would be the effective cause of Ds removal to Jamaica. At para 19 he stated that the rights of Union citizens arising from Ruiz Zambrano are not derived from rights arising under the Citizens [Parliament and Council Directive 2004/38/EC] or the Immigration (European Economic Area) Regulations 2006 (2006 No 1003) transposing them into domestic law. They are a principle of European Union citizenship law developed by the Court of Justice in [Luxembourg]. Importantly, they are not a principle of European human rights law operated on principles of proportionality. In other words, the court or tribunal is not deciding whether it [is] proportionate to remove the British child so that his best interests (as a primary consideration) are weighed against the public interest in favour of removing those who commit serious crimes. The prohibition against removal is absolute and prevents removal, notwithstanding the seriousness of the offence. (Emphasis added) On this basis the UT held that no question of proportionality arose as a matter of EU law and that the removal of the appellant was not permitted under the Zambrano principle. The UT then remade the decision and allowed the appeal against the Secretary of State. This meant that it was not necessary to consider proportionality, but for the sake of completeness the judge proceeded to do so in the context of article 8 ECHR. He stated at para 28 The appellant was sentenced to 30 months imprisonment. Whilst this is at the low end of sentences for supplying cocaine, this was nevertheless serious offending and the canker caused by the spread of drugs particularly those recognised as Class A creates a substantial public interest in removing those who are involved, if their removal is permissible. Ds best interests (those of a single individual) have to be weighed against the interests of society in its entirety. That interest includes, UT Judge Jordan held, following Wilson LJ in OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694 the role of a deportation order as an expression of societys revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes. On this basis UT Judge Jordan held that he was not persuaded that the appellants removal together with D would be disproportionate, notwithstanding that the best interests of D was a primary consideration. I would add as a footnote to the quotation from OH (Serbia) v Secretary of State for the Home Department that in Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, at para 70 Lord Wilson regretted his reference to societys revulsion at serious crimes as being too emotive a concept to figure in this analysis. However, he maintained the substance of the point made by stating that Laws serve society more effectively if they carry public support. He continued that Unless it lacks rational foundation (in which case the courts should not pander to it), the very fact of public concern about an area of the law, subjective though that is, can in my view add to a courts objective analysis of where the public interest lies: in this context it can strengthen the case for concluding that interference with a persons rights under article 8 by reason of his deportation is justified by a pressing social need. (c) The Court of Appeal The issues before the Court of Appeal (which comprised Underhill, Lindblom, Singh LJJ) had become narrower because of the CJEUs determination in CS and Marn that the prohibition against removal was not absolute so that it was conceded by the appellant that there were errors of law made by the UT. The Secretary of State submitted that the case should be remitted to the UT for redetermination, after considering any further evidence that might be necessary. The appellant submitted that the errors of law were not material as the decision of the UT would inevitably have been the same so that the appeal should be dismissed. The appellants submission raised the issue as to whether the test that should be applied in the light of the decisions of the CJEU in Marn and CS included a requirement of exceptional circumstances to justify the appellants deportation. At para 47 Singh LJ giving the judgment of the court, identified all the remaining issues before the Court of Appeal as being: (1) Should this court perform the proportionality exercise itself or should it remit the case to the UT? (2) What is the correct test that should be applied in the light of the decisions of the CJEU in Rendn Marn and (CS)? (3) What is the current status and effect of the decision in R v Bouchereau (Case C 30/77) EU:C:1977:172; [1978] QB 732? (4) What is the relevance, if any, of the Rehabilitation of Offenders Act 1974? Singh LJ having referred to In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911, rejected the appellants submission that the Court of Appeal should perform the proportionality exercise itself. At paras 50 52 Singh LJ identified three difficulties with the appellants submission, none of which could be subject to any sensible challenge particularly given that at no previous stage had the threat which the appellant posed to the United Kingdoms public policy or public security been considered in accordance with the proportionality test set out by the CJEU in Marn and CS. It is sufficient to refer solely to the third difficulty which Singh LJ identified. At para 52 he stated This leads me to my third point. It is that the question of proportionality should be addressed in the present case only after full consideration has been given to the issues of fact and, in particular, up to date information should be placed before the UT. One reason for this in the present case is that it concerns the potential impact of deportation on a young child, D. Since the best interests of a child must always be a primary consideration for the court, it is important that the UT should have available to it the most up to date information about the likely impact of Ds mothers deportation on him. Singh LJ held that the case should be remitted to the UT for redetermination, but proceeded to address the remaining issues to provide guidance to the UT as to how it should approach the case on remittal. In relation to the correct test which should be applied in the light of the decisions of the CJEU in Marn and CS Singh LJ conducted a careful and comprehensive analysis of both of those judgments together with the joint opinion of the Advocate General (M Szpunar) in CS and Marn (p 500). The Advocate General made the following recommendation to the CJEU in the case of CS (at point 177 of his opinion): , I propose that the courts answer should be that it is, in principle, contrary to article 20FEU for a member state to expel from its territory to a non member state a third country national who is the parent of a child who is a national of that member state and of whom the parent has sole care and custody, when to do so would deprive the child who is a citizen of the Union of genuine enjoyment of a substance of his or her rights as a in exceptional citizen of circumstances, a member state may adopt such a measure, provided that it: observes the principle of proportionality and is based on the personal conduct of the foreign national, which must constitute a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, and is based on an imperative reason relating to public security. (Emphasis added) the Union. Nevertheless, As is apparent from the words to which I have added emphasis, the Advocate Generals recommendation included the phrase exceptional circumstances and a requirement of an imperative reason confined solely to public security so as to exclude an imperative reason relating to public policy. Relying on that recommendation and the CJEUs reference to exceptional circumstances in para 50 of its judgment in CS, Mr Southey QC on behalf of the appellant sought to establish an enhanced level of protection for carers by restricting the exception to the Zambrano principle. Singh LJs conclusions at paras 66 67 were as follows: 66. Mr Blundell [on behalf of the Secretary of State] invites this court to attach significance to the fact that the last phrase in that passage (and is based on an imperative reason relating to public security) did not find its way into the judgments of the CJEU. He submits that the CJEU did not adopt that part of the recommendation made by the Advocate General. He also points out that the language used by the Advocate General is the language of (Directive 2004/38/EC), in particular article 28(3). He submits that it imposes a higher test than the test that was eventually adopted by the CJEU in the context of articles 20 21FEU. I agree with those submissions by Mr Blundell. 67. Mr Southey emphasises the use of the phrase exceptional circumstances in the opinion of the Advocate General, at para 177, and in the judgment of the CJEU in (CS), at para 50. I do not attach the significance to that phrase which Mr Southey submits it has. In my view, it does not import an additional requirement which the state must satisfy on top of what follows; rather the phrase is a helpful summary of what follows (provided . ). In other words exceptional circumstances simply means that it is an exception to the general rule, which is that a person who enjoys the fundamental rights of an EU citizen cannot be compelled to leave the EU. It does not mean that, where the criteria set out in the proviso are satisfied, there is an additional hurdle that there must also be exceptional circumstances. Accordingly, the Court of Appeal held that the correct test that should be applied did not require exceptional circumstances to be established before someone in the appellants position could be deported. Rather the reference to exceptional circumstances in the relevant case law of the CJEU was merely a reference to the fact that deportation of someone in the appellants position is a departure from the general rule that a person who enjoys the fundamental rights of an EU citizen cannot be compelled to leave the territory of the EU. Singh LJ then addressed at paras 68 86 the current status and effect of the decision of the European Court of Justice in R v Bouchereau. That decision envisages that past conduct alone which has caused public revulsion and is therefore a threat to the requirements of public policy may be sufficient to justify deportation without there necessarily being any clear propensity on behalf of the individual to act in the same way in the future. Singh LJ concluded that, subject to various limitations this remained good law. That conclusion has not been appealed to this court. In relation to the final issue as to the relevance of the Rehabilitation of Offenders Act 1974 Mr Southey conceded, and for the reasons set out at paras 87 90 Singh LJ held, that the Act had no direct application in the present context. The outcome in the Court of Appeal was that the Secretary of States appeal was allowed and the case was remitted to the UT for redetermination on the merits. IV The impact on this appeal of the United Kingdoms withdrawal from the EU Section 2(1) of the European Communities Act 1972 (the 1972 Act) provides: 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. Section 1 of the European Union (Withdrawal) Act 2018 (the 2018 Act) repealed the 1972 Act on exit day which is defined by section 20 as 11pm on 31 January 2020. However, exit day is followed by an implementation period (IP) which ends on the IP completion day defined in section 39 of the European Union (Withdrawal Agreement) Act 2020 (the 2020 Act) as 31 December 2020 at 11pm. During this period the 1972 Act continues to have effect pursuant to section 1A of the 2018 Act, as amended by the 2020 Act. The Charter of Fundamental Rights of the European Union (the Charter) also continues to have effect during this period: see Part Four of the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2019, C384 l, p 1) and section 1A(3) of the 2018 Act. As to the position after IP completion day the current position is that the Immigration (European Economic Area) Regulation 2016, and relevant provisions of the FEU Treaty to the extent that they are not implemented in domestic law, would continue to have effect as retained EU law pursuant to sections 2 and 4 of the 2018 Act. However, this is subject to the Immigration and Social Security Co ordination (EU Withdrawal) Act 2020 as well as secondary legislation made under it. This Act provides for repeal of the main retained EU law relating to free movement. The present position is that the United Kingdoms withdrawal from the EU has no impact on this appeal but the legal principles to be applied may change after 31 December 2020 at 11pm. V Legal landscape (a) Union citizenship and the right to move and reside freely Article 20(1)FEU establishes Union citizenship and provides that Every person holding the nationality of a member state is a citizen of the Union. Under article 20(2)(a)FEU, citizens of the Union have the right to move and reside freely within the territory of the member states. Article 21(1)FEU also provides that Every citizen of the Union shall have the right to move and reside freely within the territory of the member states. This right is not absolute but is subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. The significance of citizenship of the Union is apparent from Zambrano at para 41 and KA at para 47 in that citizenship of the European Union is intended to be the fundamental status of nationals of the member states. The CJEU confirmed at para 48 of KA that Union citizenship conferred a primary and individual right to move and reside freely within the territory of the member states but continued that this was not absolute as it was subject to the limitations and restrictions laid down by the Treaty and the measures adopted for their implementation. (b) Parliament and Council Directive 2004/38/EC On 29 April 2004 the Parliament and Council of the European Union adopted Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of member states (OJ 2004 L158, p 77) (the Directive). The Directive lays down the conditions surrounding the exercise of the right of free movement and residence within EU territory, the right of permanent residence and the limits placed on those rights. Under the rubric of Beneficiaries article 3(1) provides that the Directive applies to all Union citizens who move to or reside in a member state (the host member state) other than that of which they are a national and to their family members who accompany or join them. Accordingly, the Directive does not apply in this case as the only Union citizen is D and he has not moved to or resided in a member state other than that of which he is a national, see Zambrano at para 39, CS at para 22 and Marn at para 40. In so far as D is not covered by the concept of beneficiary for the purposes of article 3(1) of the Directive, a member of his family is not covered by that concept either, given that the rights conferred by that Directive on the family members of a beneficiary of the Directive are not autonomous rights of those family members, but derived rights, acquired through their status as members of the beneficiarys family: see McCarthy v Secretary of State for the Home Department (Case C 434/09) EU:C:2011:277; [2011] ECR I 3375; [2011] All ER (EC) 729, para 42. However, both articles 27 and 28 of the Directive are relevant as the CJEU has used some but not all of the language in those articles in relation to the limitation on the Zambrano derived right of residence under article 20FEU. Articles 27 and 28 are in Chapter VI of the Directive under the rubric Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health. Article 27 of the Directive under the rubric General principles and in so far as relevant provides: 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. (Emphasis added) The CJEU has incorporated into the limitation on the Zambrano derived right of residence many parts of article 27, including those parts to which I have added emphasis. In relation to the grounds of public policy and public security see Marn at para 81, CS at para 36 and KA at para 90. In relation to the requirement to comply with the principle of proportionality see Marn at para 85, CS at para 41 and KA at paras 93 and 97. In relation to the requirement that the conduct must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society see Marn at para 84, CS at para 40 and KA at para 92. Article 28(1) of the Directive under the rubric Protection against expulsion provides 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. Again, the CJEU has incorporated into the limitation on the Zambrano derived right of residence the language of article 28(1). In relation to the requirement to take into account considerations such as how long the individual concerned has resided on its territory, his/her age, state of health (etc) see Marn at para 86, CS at para 42 and KA at para 94. As expected given the context of both a crime committed by the TCN parent and the interests of children, the list of factors identified by the CJEU as in particular to be taken into account include factors not mentioned in article 28(1), such as the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of the children at issue and their state of health, as well as their economic and family situation. The CJEU also referred to the legality of the residence of the TCN parent as a relevant factor, which is not specifically mentioned in article 28(1). Article 28(2) and (3) provides: 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 [the UNCRC]. The CJEU has not incorporated into the limitation on the Zambrano derived right of residence the parts of article 28(2) and (3) to which I have added emphasis. However, in relation to the UNCRC the Zambrano derived right of residence is within the ambit of EU law so that article 24(2) of the Charter applies which provides that In all actions relating to children, whether taken by public authorities or private institutions, the childs best interests must be a primary consideration. Furthermore, article 7 of the Charter which provides for the right to respect for private and family life must be read in conjunction with the obligation to take into consideration the childs best interests, recognised in article 24(2) of the Charter, see Marn at paras 66 and 81. In considering article 28(3) it should be recalled that the Directive does not apply in this case. However even if the Directive did apply D is not the individual subject to the expulsion decision so that article 28(3) would not be engaged. It is correct that the effective result of the expulsion of Ds Zambrano carer is that D also is expelled. However, the consequences are different as between D and a minor expelled under article 28(3). D is entitled to return to the territory of the Union at any time whilst a minor expelled under article 28(3) is restricted to submitting an application under article 32 after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering their exclusion. It is then for the member state concerned to reach a decision on this application. Furthermore, a minor expelled under article 28(3) has no right of entry to the territory of the member state concerned while their application under article 32 is being considered. (c) The Directive was implemented into domestic law by the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (the 2006 Regulations). Those Regulations were amended on 16 July 2012 to give effect to a number of derivative rights of residence in EU law and to include an associated power of removal for persons enjoying such rights, where removal would be conducive to the public good. The 2006 Regulations were further amended on 8 November 2012 to make wider provision reflecting CJEU case law, as then embodied in the Zambrano decision, based, as it was, on article 20FEU and to apply the conducive to the public good removal provision to such persons. The 2006 Regulations have since been replaced by new Regulations made in 2016 (the 2016 Regulations). However, it was the 2006 Regulations that applied at the time of the impugned decision (see paragraph 5 of Schedule 6 to the 2016 Regulations). The 2006 Regulations must, to the extent possible, be interpreted to ensure conformity with article 20FEU. If, in its case law since the Zambrano decision, the CJEU has interpreted article 20FEU as requiring exceptional circumstances as an additional Implementation of the Directive into domestic law requirement, then national courts must strive to interpret the 2006 Regulations on that basis in accordance with the Marleasing principle, see Marleasing SA v La Comercial Internacional de Alimentacin SA (Case C 106/89) EU:C:1990:395; [1990] ECR I 4135; [1992] 1 CMLR 305, para 13 and Pfeiffer v Deutsches Rotes Kreuz Kreisverband Waldshut eV (Joined Cases C 397/01 and C 403/01) EU:C:2004:584; [2005] ICR 1307; [2004] ECR I 8835; [2005] 1 CMLR 44, para 115. So, the focus of this appeal returns to the decisions of the CJEU in order to determine what test is to be applied in order to accord with CJEUs case law. (d) The Zambrano right of residence The CJEUs ruling in Zambrano is the landmark decision. Mr Ruiz Zambrano and his wife, Mrs Moreno Lopez, were both nationals of Colombia. While they were living in Belgium Mrs Moreno Lopez gave birth to two children, who acquired Belgian nationality by operation of Belgian law. Accordingly, both children were also citizens of the EU and their parents were TCN parents. The two children did not at any stage exercise their right to move freely within the EU but remained in Belgium with their parents. Mr Zambrano applied for unemployment benefit. That application was rejected on the ground that, since he had never held a work permit in Belgium, he did not have the requisite qualifying period as required by national legislation governing the residence and employment of foreign workers. The Employment Tribunal in Belgium made a reference to the CJEU which held that article 20FEU is to be interpreted as precluding a member state from refusing a TCN on whom his minor children, who are European Union citizens, are dependent, a right of residence in the member state of residence and nationality of those children, and from refusing to grant a work permit to that TCN, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen. (e) The Zambrano right of residence is a derivative right As is apparent from para 50 of KA the Treaty provisions on citizenship do not confer any autonomous right on third country nationals. Any rights conferred on third country nationals are not autonomous rights of those nationals but rights derived from those enjoyed by a Union citizen. The purpose and justification of those derived rights are based on the fact that a refusal to allow them would be such as to interfere, in particular, with a Union citizens freedom of movement: see also CS at para 28. (f) The consideration of a Zambrano right of residence falls within the ambit of European Union law Consideration of whether there is a Zambrano derived right of residence falls within the ambit of EU law. Accordingly, account must be taken of the right to respect for private and family life, as laid down in article 7 of the Charter, an article which, must be read in conjunction with the obligation to take into consideration the childs best interests, recognised in article 24(2) of the Charter, see Marn at para 81. (g) The very specific situations giving rise to the Zambrano derived right of residence The very specific situations giving rise to this derived right of residence are set out in Zambrano at paras 43 and 44, in Chavez Vilchez v Raad van bestuur van de Sociale verzekeringsbank (Case C 133/15) EU:C:2017:354; [2018] QB 103; [2017] 3 CMLR 35 at para 63 and most recently in KA at paras 51 and 52 as follows: 51. , a right of residence must nevertheless be granted to a third country national who is a family member of that Union citizen, since the effectiveness of Union citizenship would otherwise be undermined, if, as a consequence of refusal of such a right, that citizen would be obliged in practice to leave the territory of the EU as a whole, thus depriving him of the genuine enjoyment of the substance of the rights conferred by that status 52. However, a refusal to grant a right of residence to a third country national is liable to undermine the effectiveness of Union citizenship only if there exists, between that third country national and the Union citizen who is a family member, a relationship of dependency of such a nature that it would lead to the Union citizen being compelled to accompany the third country national concerned and to leave the territory of the EU as a whole The requirement of being compelled to leave the territory of the EU as a whole as opposed to being compelled to leave the territory of the member state was specifically referred to in the decision of the CJEU in Dereci v Bundesministerium fr Inneres (Case C 256/11) EU:C:2011:734; [2011] ECR I 11315; [2012] All ER (EC) 373; [2012] 1 CMLR 45. The CJEU stated at para 66 of its judgment that the criterion refers 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. (h) The first question to be addressed by the national court On this basis the first question to be addressed in determining whether there is a Zambrano derived right of residence is whether there is a relationship of dependency of such a nature that it would lead to the Union citizen being compelled to accompany the TCN concerned and to leave the territory of the Union as a whole. In determining that question the CJEU set out at para 71 of KA the factors to be taken into account. The CJEU stated: More particularly, in order to assess the risk that a particular child, who is a Union citizen, might be compelled to leave the territory of the EU and thereby be deprived of the genuine enjoyment of the substance of the rights conferred on him by article 20 TFEU if the childs third country national parent were to be refused a right of residence in the member state concerned, it is important to determine, in each case at issue in the main proceedings, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third country national parent. As part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in article 7 of the Charter, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in article 24(2) of the Charter (Chavez Vilchez [2017] 3 CMLR 35, para 70). (i) The second question to be addressed by the national court In CS at para 40 the CJEU stated that an expulsion decision founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security, in view of the criminal offences committed by a TCN who is the sole carer of children who are Union citizens, could be consistent with EU law. At para 46 it stated that the national court has the task of examining what, in the TCNs conduct or in the offence that she committed, constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or of the host member state, which may justify, on the ground of protecting the requirements of public policy or public security, an order deporting her from the United Kingdom. Accordingly, the second question to be addressed is whether there is such a threat. It is clear from CS at para 41 and Marn at para 85 that the existence of such a threat cannot be drawn automatically on the basis solely of the criminal record of the person concerned. Furthermore, article 20FEU must be interpreted as precluding national legislation which requires a TCN parent of minor children who are Union citizens in his sole care to be automatically refused the grant of a residence permit on the sole ground that he has a criminal record, where that refusal has the consequence of requiring those children to leave the territory of the European Union. Rather it is incumbent upon the national court to assess (i) the extent to which the TCN parents criminal conducts is a danger to society and (ii) any consequences which such conduct might have for the requirements of public policy or public security of the member state concerned, see Marn at para 87 and CS at para 47. (j) The third question to be addressed by the national court If there is such a threat then the national court carries out an exercise balancing, on the one hand, the nature and degree of that threat which leads to the legitimate aim of safeguarding public order or public security. On the other hand, the national court has to take account of the fundamental rights whose observance the CJEU ensures, in particular the right to respect for private and family life, as laid down in article 7 of the Charter and to ensure that the principle of proportionality is observed. In a case involving children account is to be taken of the childs best interests when weighing up the interests involved. Particular attention must be paid to his age, his situation in the member state concerned and the extent to which he is dependent on the parent: see CS at paras 48 49. VI Whether exceptional circumstances need to be established before a Zambrano carer can be deported (a) The parties submissions On behalf of the appellant Mr Southey submitted that the use of the phrase exceptional circumstances demonstrates the weight to be attached to the interests of the Zambrano child when conducting a proportionality balancing exercise. He also submitted that the use of the phrase exceptional circumstances in CS at para 50 cannot merely connote a departure from the norm but rather that it implies that the interests of the Zambrano child must carry great weight that can only be outweighed by particularly compelling reasons. On behalf of the Secretary of State Mr Blundell relied on the CJEU decisions in CS, Marn and KA in order to submit that the imperative grounds test does not apply, and nor does any broader exceptional circumstances test. He submitted that on a proper textual analysis of the judgment in CS the single use of the phrase exceptional circumstances was to be read as an exception to the usual application of the Zambrano principle. (b) Rejection by the CJEU of imperative grounds of public security Advocate General M Szpunar in his opinion in CS proposed the adoption of enhanced protection based on imperative grounds relating to public security. At point 168 he stated that In the present case, given that the minor child who is a citizen of the Union might, as a consequence of the expulsion of his mother, temporarily have to leave the territory of the European Union altogether, it is appropriate, to my mind, that he should be accorded the enhanced protection implied by the term imperative grounds of public security. Accordingly, only imperative grounds of public security are capable of justifying the adoption of an expulsion order against (CS) if, as a consequence, her child would have to follow her. (Emphasis added) In this paragraph he did not propose the adoption of the phrase exceptional circumstances. At point 177 Advocate General M Szpunar proposed that the courts answer in CS should be that it is, in principle, contrary to article 20FEU for a member state to expel from its territory to a non member state a third country national who is the parent of a child who is a national of that member state and of whom the parent has sole care and custody, when to do so would deprive the child who is a citizen of the Union of genuine enjoyment of the substance of his or her rights as a citizen of the Union. He went on to define a proposed limitation on the derived right of residence in terms that used the phrases exceptional circumstances and based on an imperative reason relating to public security. He proposed that Nevertheless, in exceptional circumstances, a member state may adopt such a measure, provided that it: observes the principle of proportionality and is based on the personal conduct of the foreign national, which must constitute a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, and is based on an imperative reason relating to public security. (Emphasis added) At para 36 of the judgment in CS the CJEU recognised an exception to the Zambrano principle linked, in particular, to upholding the requirements of public policy and safeguarding public security. That is entirely inconsistent with the test of imperative grounds in article 28(3) of the Directive which is only linked to public security. The rejection of the test of imperative grounds is also apparent from para 40 which requires the expulsion decision to be founded on the existence of a genuine, present and sufficiently serious threat. That is not a test of imperative grounds. Again, in that paragraph it is made clear that this is a threat to either the requirements of public policy or of public security. I consider that it is clear that the CJEU rejected the proposal of enhanced protection based on imperative grounds of public security. Two questions remain. The first is whether by using the phrase exceptional circumstances Advocate General M Szpunar was proposing that a Zambrano carer should enjoy enhanced protection against deportation, such that she can be deported in exceptional circumstances only. In view of his associated proposal that there should be an imperative reason relating to public security I am prepared to proceed, without deciding the point, on the basis that he was proposing an additional requirement of exceptional circumstances. On the basis of that assumed answer to the first question the second remaining question is whether the CJEU adopted Advocate General M Szpunars proposal of exceptional circumstances. (c) Textual analysis of the judgment in CS CJEU did not adopt the proposal in relation to exceptional circumstances. In CS the applicant, a TCN, married a British national and was granted indefinite leave to remain in the United Kingdom where she had a child for whom she was the sole carer. She was convicted of a criminal offence in the United Kingdom and sentenced to a term of imprisonment whilst her child was still very young. The Secretary of State rejected the applicants asylum application and ordered her deportation after she had been released from prison, in reliance on, inter alia, section 32(5) of the UK Borders Act 2007 under which deportation would always be ordered in respect of a TCN who was convicted of an offence of a certain gravity, unless that order breached the offenders rights under, inter alia, the European Union treaties. The applicants appeal was allowed by the First tier I consider that a textual analysis of the judgment in CS makes it clear that the Tribunal on the ground that her deportation would lead to, inter alia, a breach of her childs right as a Union citizen to move and reside within the European Union under article 20FEU in that, if the applicant were deported, her child would also have to leave the European Union. On the Secretary of States appeal, the UT referred to the CJEU for a preliminary ruling the question whether article 20FEU precluded the national legislation. The CJEU held that a decision to expel a TCN who was the sole carer of a Union citizen child on the ground of public policy or public security could not be made automatically on the sole basis of the criminal record of the person concerned. The CJEU went on to consider the basis upon which such an expulsion decision could be made. In paras 34 50 of the judgment and under the heading The possibility of limiting a derived right of residence flowing from article 20FEU the CJEU set out its analysis of the limitation on the Zambrano right of residence. At para 36 the CJEU stated as follows: It should be pointed out that article 20FEU does not affect the possibility of member states relying on an exception linked, in particular, to upholding the requirements of public policy and safeguarding public security. (Emphasis added) In other words, conduct which is potentially contrary to the interests of public policy and public security in most cases, the commission of a criminal offence was capable, in principle, of justifying an exception to the ordinary general rule (namely, that a Zambrano carer cannot be expelled where to do so would lead to the departure of the dependent EU citizen from the territory of the Union). As I have emphasised the CJEU specifically referred to reliance on an exception, rather than the existence of exceptional circumstances. At para 37 in relation to the exception the CJEU relying on its case law stated that the concepts of public policy and public security must be interpreted strictly. At para 38 the CJEU considered the exception as linked to upholding the requirements of public policy identifying that in addition to the disturbance of the social order which any infringement of the law involves there must exist a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. At para 39 the CJEU analysed its case law in relation to the public security exception. At para 40 the CJEU set out the test as being whether the expulsion decision is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security. Then at paras 41 42 and 46 49, the CJEU set out in detail the particular factors which have to be considered when deciding whether that test was satisfied. I consider that para 50 provides a summary of what is contained in the preceding paragraphs so that the reference to exceptional circumstances can only sensibly be read in the context of what comes before. When seen against the background of the analysis beginning at para 34, it is clear that the CJEU did not add any additional criterion through the use of the words exceptional circumstances. On the contrary, and as the Court of Appeal correctly decided, it was simply explaining that, in the prescribed circumstances, an exception could be made to the general rule that a Zambrano carer could not be compelled to leave the territory of the Union. It was not stating that certain undefined exceptional circumstances had first to be demonstrated. (d) The judgments in Marn and KA In Marn under the same heading as used in CS (The possibility of limiting a derived right of residence flowing from article 20FEU) the CJEU at paras 81 88 carried out the same analysis as in CS as to the exception to the Zambrano derived right of residence, specifying the test to be applied and the factors to be taken into account. In that respect the analysis of the CJEU in Marn is identical to the analysis in CS. Furthermore, the test in para 84 of Marn is in the same terms as the test in para 40 of CS. In paras 85 and 86 in Marn the CJEU set out the matters to be taken into account. There is no reference in Marn to the phrase exceptional circumstances. The CJEU also took the same approach in KA, at paras 85 97. In that case, the Belgian authorities refused to consider applications for residence permits from the TCN parents of Belgian children on the grounds that the applicant was subject to an entry ban. Having dealt with the circumstances in which a Zambrano right could come into being at paras 63 76, the CJEU repeated at para 90 that article 20 TFEU did not affect the possibility of member states relying on an exception linked to upholding the requirements of public policy and safeguarding public security. The CJEU went on, at paras 90 97, to repeat the factors set out in CS and Marn which should be taken into account when that test is being applied. At para 92 it stated: , it must be held that, where the refusal of a right of residence is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or public security, in view of, inter alia, criminal offences committed by a third country national, such a refusal is compatible with EU law even if its effect is that the Union citizen who is a family member of that third country national is compelled to leave the territory of the EU Again, this is a repetition of the test in para 84 of Marn and in para 40 of CS. Nowhere in its detailed analysis in KA does the CJEU state or even imply that there is an additional hurdle that there must also be exceptional circumstances. On three occasions, the CJEU has set out what must be taken into account when the deportation of a Zambrano carer is being considered. Not once has it stated that an imperative grounds test applies, nor has it stated that there is an additional hurdle that there must also be exceptional circumstances. I consider that it is inconceivable that the CJEU would have omitted to mention this on three occasions if such a test applied. VII Disposal of the appeal For my part I consider that the Court of Appeals clearly reasoned conclusion cannot be faulted and was plainly right. The phrase exceptional circumstances simply means that it is an exception to the general rule that a person who enjoys the fundamental rights of an EU citizen cannot be compelled to leave the territory of the EU. The phrase does not import an additional hurdle. I would dismiss the appeal and would, as a consequence maintain the order of the Court of Appeal remitting the case to the UT for redetermination on the merits.	This appeal concerns the extent to which a non member state national, who is the parent of a dependent European Union (EU) citizen child, is protected against deportation from the territory of the EU pursuant to the principle in Ruiz Zambrano v Office national de l'emploi (Case C 34/09) [2012] QB 265 (the Zambrano principle, and a person protected pursuant to it a Zambrano carer). The issue is whether a Zambrano carer enjoys enhanced protection, such that she can only be deported in exceptional circumstances. Ms Robinson is a Jamaican national. She was convicted and imprisoned of a serious criminal offence in the UK of dealing in cocaine and subsequently made the subject of a deportation order. Prior to her removal, she gave birth to a boy, D who is a British national and an EU citizen. Ms Robinson thereafter applied for leave to remain. The Secretary of State refused that application. That is the decision which is the subject of these proceedings. On appeal to the Upper Tribunal, Ms Robinson argued that she had a right to reside in the EU derived under the Zambrano principle from Ds rights as an EU citizen. As she was Ds effective carer, her removal would require D to accompany her to Jamaica. D would thereby be deprived of the enjoyment of his rights as an EU citizen. The Upper Tribunal agreed. It held that her protection from deportation was absolute. The Secretary of State appealed to the Court of Appeal. Before the appeal was heard, the Court of Justice of the EU (the CJEU) delivered judgment in two cases which restricted the extent of the Zambrano principle. In S v Secretary of State for the Home Department (Case C 304/14) [2017] QB 558, (CS), it held that in exceptional circumstances a member state may adopt an expulsion measure provided that it is founded on the personal conduct of that third country national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that member state, and that it is based on consideration of the various interests involved, matters which are for the national court to determine (para 50). On that basis, the Court of Appeal allowed the appeal and remitted the case to the Upper Tribunal for redetermination. The Court of Appeal held that the phrase exceptional circumstances in CS was not an additional requirement which the state must satisfy, but merely summarised an exception to the general rule that D, an EU citizen, cannot be compelled to leave the territory of the EU. Ms Robinson appeals to the Supreme Court contending that the phrase created an additional hurdle to deportation. The Supreme Court unanimously dismisses the appeal and holds that the phrase exceptional circumstances does not import an additional hurdle before a Zambrano carer can be deported from the territory of the EU. The case is remitted to the Upper Tribunal for redetermination on that basis. Lord Stephens gives the judgment, with which all members of the Court agree. The Zambrano principle applies in very specific situations where, if a third country (ie non member state) national were not given a right to reside in the EU, a dependent EU citizen would be forced in practice to leave the territory of the EU. The EU citizen would then be deprived of the genuine enjoyment of the substance of the rights conferred by EU citizenship [42] [43]. The right of residence of a Zambrano carer therefore derives from the rights of the dependent EU citizen. It flows from article 20 of the Treaty on the Functioning of the EU [1], which establishes EU citizenship. The CJEU has recognised the significance of EU citizenship, while confirming that it is subject to limitations [31]. The United Kingdoms withdrawal from the EU has no impact on this appeal, but the legal principles to be applied may change after 31 December 2020 [30]. The case law of the CJEU shows that a national court must consider three questions. The first question is to determine whether a third country national has a right of residence under the Zambrano principle. If a right of residence is established, then the second and third questions address whether the third country national can still be deported. Accordingly, the first question is whether there is a relationship of dependency between the third country national and the EU citizen, such that the EU citizen would be forced to accompany the third country national and leave the territory of the EU as a whole [44]. The second question is whether the third country nationals conduct or offence constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society of the host member state, which may justify, on the ground of protecting the requirements of public policy or public security, an order deporting them from the member state [45]. The third question arises if there is such a threat and requires the national court to carry out a balancing exercise. Against the nature and degree of the threat, it must balance the fundamental rights which the CJEU recognises as relevant in this context: in particular, the right to respect for private and family life in article 7 of the Charter of Fundamental Rights of the European Union. In a case involving children, account is to be taken of the childs best interests, and particular attention must be paid to their age, situation in the member state concerned, and the extent to which they are dependent on their parent. The national court must ensure that the principle of proportionality is observed [46]. The CJEU derived these limitations on the Zambrano principle from some of the language in articles 27 and 28 of Parliament and Council Directive 2004/38/EC (the Directive) [32] [37]. Ms Robinson argues that the CJEUs use of the phrase exceptional circumstances in CS demonstrates that the interests of a child of a Zambrano carer must carry great weight and can only be outweighed by particularly compelling circumstances. She relies on the Advocate Generals opinion in CS that deportation of a third country parent could only be justified in exceptional circumstances based on an on imperative reason relating to public security (CS, AG Opinion para 177) [47] [50]. The Supreme Court holds that the CJEU did not adopt the Advocate Generals proposed test. In CS, the CJEU recognised an exception to the Zambrano principle linked, in particular, to upholding the requirements of public policy and safeguarding public security (CS, para 36). That is inconsistent with an imperative grounds test [51], derived from article 28 of the Directive, which the CJEU did not incorporate into the exception to the Zambrano principle [36]. Viewed in context, the CJEUs reference to exceptional circumstances in CS simply explains that, in the prescribed circumstances, an exception can be made to the rule that a Zambrano carer cannot be compelled to leave EU territory [57]. The CJEU repeated this formulation of the test in Rendn Marn v Administracin del Estado (Case C 165/14) [2017] QB 495 [58] and in KA v Belgische Staat (Case C 82/16) [2018] 3 CMLR 28 [59]. Not once in any of these cases did the CJEU state that the imperative grounds test applies, or that there is an additional hurdle of exceptional circumstances before a Zambrano carer can be deported [60].
The Preamble to the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) states that its purpose is to protect children internationally from the harmful effects of their wrongful removal or retention. But under article 3 the taking or keeping of a child is only wrongful if it is in breach of rights of custody. The same applies under the Brussels II Revised Regulation (the Regulation), which complements and takes precedence over the Hague Convention as between all but one of the member states of the European Union. So what is meant by rights of custody? It might be thought that the meaning of a concept so central to the operation of both instruments would be well settled by now. But this is not even true within the United Kingdom. The Courts of Appeal in England and Wales and in Northern Ireland have taken different views. It therefore falls to this court to resolve the difference. If nothing else, the position should be the same throughout the United Kingdom. The concept of rights of custody would appear to have at least two functions. One is to identify those removals or retentions which are presumptively so harmful to the welfare of a child that the authorities must take swift action to return him to the country from which he has been taken or kept away. Many international removals of children will not be harmful to them at all, for example where their united parents take a well planned sabbatical in another country or even emigrate permanently. Other international removals may or may not be so harmful. The Convention draws a clear distinction between rights of custody and rights of access. It does not presume that removal or retention in breach of rights of access is so harmful that the child must instantly be returned. Another function of rights of custody, therefore, is to secure that long term decisions about the childs future are taken in the country where he was habitually resident immediately beforehand and not in the country to which he has been taken. The issue, therefore, is between two different approaches to the interpretation of the concept. Is it to be interpreted strictly and literally as a reference to rights which are already legally recognised and enforceable? Or is it to be interpreted purposively as a reference to a wider category of what have been termed inchoate rights, the existence of which would have been legally recognised had the question arisen before the removal or retention in question? The issue is well illustrated by the facts of the present case. The facts We are concerned with a little boy whom I shall call Karl. He was born in Lithuania on 13 March 2005 and so is now nine years old. His father and mother separated before he was born and his father has played no part in his life. From the time of his birth until his removal from Lithuania in March 2012 he lived with and was cared for by his maternal grandparents. His mother returned to work in the Lithuanian army shortly after his birth. There is an unresolved dispute of fact as to whether she remained based with the family for about a year after Karls birth. It is however clear that in May 2006 she moved to live and work in Northern Ireland with her then partner, leaving Karl in the sole care of her parents, and that she has lived there ever since. She and that partner had a child together in July 2010. Some time after that they separated and the mother now has another partner. There is also an unresolved dispute about the level of interest which the mother showed in Karl over the years. Between May 2006 and October 2011, she sent 28 payments to the grandmother totalling some 2,590. She was in contact with her family by telephone and by SKYPE but we do not know how often. The grandmother came to visit her once in Northern Ireland in 2006 but did not bring Karl with her. The mother visited the family once in Lithuania in November 2006 for five days or a week when Karl was 20 months old. Otherwise Karl had not seen her until she returned to Lithuania in February 2012 shortly before his seventh birthday. According to the solicitor working with the Official Solicitor in Northern Ireland, who interviewed Karl a year later, it was his firm belief that his grandmother was his mother. He was confused as to who the woman he spoke to on the computer (via SKYPE) was. His grandmothers evidence is that he referred to the mother as his mum from far away. In February 2012 his mother returned to Lithuania in order to take Karl with her to Northern Ireland, where she now had suitable accommodation, employment and a stable relationship. Her own evidence is that she knew that her parents would not agree to Karl moving to live with her. A friend had told her that her mother was taking preliminary steps to obtain legal custody of the child. A lawyer advised her that legal proceedings between her and her mother would be very protracted and costly. So she decided to take matters into her own hands. On 12 March 2012, as the grandmother was walking Karl home from school, the mother and her partner drew up beside them in a van and there was a tug of war which resulted in Karl being removed from his grandmother and taken away in the van. Again, there is a dispute of fact. The grandmother says that she heard the mother shouting pull him, pull him, a man jumped out of the van and grabbed the child. When she would not let him go, the van door was shut on her hand, injuring her. The mother says that her partner was driving the van and it was she who had the tug of war to remove Karl from his grandmothers grip. Either way, it was a shocking episode of which any mother should be deeply ashamed. Thereafter they travelled by car and ferry through Slovakia, Germany, France and England, arriving in Northern Ireland around 17 March 2012. Karl had to leave behind his country, his home, his toys and his clothes, his school and many other activities, and the grandparents with whom he had lived all his life. He was taken to a country he did not know, with a language he did not know, by a mother he scarcely knew, to live with her and a half sister and step father whom he had never met. After arriving in Northern Ireland, Karl had some contact with his grandparents by telephone and by SKYPE, but this was terminated by the mother later in 2012 and there has been no contact since then. Shortly after the removal, the grandmother contacted the Childrens Rights Division in her home city in Lithuania and a referral was made via Children and Families Across Borders to the local authority in Northern Ireland. A social worker undertook an assessment using the Understanding the Needs of Children in Northern Ireland (UNOCINI) framework, which was completed on 24 May 2012. Karl had been enrolled in school in April, after the Easter break. His behaviour during the first week had been very disturbed and the school had requested specialist support for this. Otherwise, the assessment was that the mother appeared to have good insight into the needs of her children, but that Karl had experienced a major change in his life, and would benefit from support in relation to the current language barrier and emotional support which would enable him to process his thoughts and feelings about the move. Nevertheless it was agreed that the case should be closed as the school had involved behaviour support. A letter from the head teacher in February 2013 reported that his behaviour since returning to school in September 2012 had been exemplary. He had very quickly mastered English and was making excellent academic and social progress. When the solicitor for the Official Solicitor interviewed Karl at his mothers home in April 2013, she found a little boy who presented as very young. He expressed a desire to stay with his mother in Northern Ireland. The solicitor concluded: [Karl] has experienced a situation where he was cared for by a grandmother, whom he believed was his mother, and had irregular contact with a woman with whom his relationship was unclear. He was subsequently abducted from his grandmother in an extremely frightening manner by a person whom he believed at the time was a stranger. He was removed from the country of his upbringing to a country where he struggled initially with the language. Contact with his grandparents, who had been his primary carers and the significant adults in his life, was brought to an abrupt end by his mother and he was informed that his grandparents had lied to him throughout his entire life. In light of the above, despite [Karls] assertion that he wants to remain with his mother, I have concerns about the emotional well being of this young boy and the impact of the traumatic events on his ability to formulate his wishes and feelings freely and without influence. It is entirely possible that [Karl] has suffered emotional harm and I would consider that it might be in his best interests for an expert assessment to be carried out in order to identify appropriate supports for him. The legal position in Lithuania These proceedings are unusual in that we have no formal evidence as to the legal position of the grandparents in Lithuanian law. The central authority in Lithuania has not supplied the central authority in Northern Ireland with a certificate or affidavit, such as is contemplated by article 8(f) of the Convention, concerning the relevant Lithuanian law. There has been no contact through liaison judges. The mothers legal advisers did attempt to obtain evidence of Lithuanian law but this could not be obtained within the tight time table for child abduction cases. No one suggests that at this late stage it would be appropriate for the court to exercise its power, under article 15 of the Hague Convention, to request that the grandparents obtain from the Lithuanian authorities a decision or other determination that the removal was wrongful within the meaning of article 3 of the Convention. We shall have to do the best we can with the limited material at our disposal. On 13 April 2005, when Karl was one month old, the mother signed a document authorising the grandmother to visit all medical institutions and hospitals with her son. On 20 April 2006, shortly before her move to Northern Ireland, the mother executed a notarised consent for Karl to travel to any foreign country together with the grandmother and/or the grandfather. On the same date, she also executed a notarised power of attorney, to be valid for ten years, authorising the grandmother to receive the passport of my minor son . ; to represent me at the Migration Service Passports subdivision and other state, legal and governmental institutions, companies and organisations; to receive and submit all necessary documents; to make applications on my behalf; to sign on my behalf and to perform all other actions in relation to this authorisation. On 10 January 2007, the Director of the City Municipality Administration for the city where the grandparents live made an order, pursuant to various articles of the Lithuanian Civil Code and Law on Child Benefits and in accordance with the Description of Care (Guardianship) Procedure of the City Child Crisis Centre. According to one of the translations we have, this order put Karl under temporary care (custody); appointed the grandmother as his carer (guardian); determined that the place of care (custody) should be the carers (guardians) place; and transferred the supervision of this temporary care (custody) to the City Child Crisis Centre. (The Lithuanian original also uses alternative terminology, globa (rupyba), and globeja (rupintoja); given the etymological similarity between rupyba and rupintoja, it may well be that custodian would be a closer translation than guardian, but that is by the way.) There matters stood until the mother returned to Lithuania in February 2012. On 20 February 2012, the Manager of the Childrens Rights Division of the City Administration issued a notice to the mother stating that, under an Order of the Social Security and Labour Minister, it is indicated in the children temporary care provision that temporary care terminates when the parents return from a foreign state and inform Childrens Rights Division about it. The mother had that day informed the Division that she had returned and would take her son into her own care. The temporary care was therefore held to be terminated on that date. On 2 March 2012, the mother issued applications to the notarys office to withdraw the two notarised consents which she had given on 20 April 2006. It would appear, therefore, that she was doing whatever she could to withdraw the parental authority which she had delegated to the grandmother in 2006. However, Karl obviously remained living with his grandparents. The grandmother says in her affidavit that a little earlier the child had begun to suffer from anxiety and was afraid of leaving the house. A psychologist had become involved through his school and had recommended that he be educated at home for a while. We do not know whether this was in any way related to the mothers return but it may have been completely unrelated. On 2 March 2012, the Manager of the Childrens Rights Division issued a notice to the grandfather, copied to the mother, headed Re: Request dated 20/02/12, but we do not know what that request was. The notice recounted events subsequent to that request. There was a meeting on 22 February 2012 in relation to the mothers contact with her son. A temporary contact order was agreed, for the mother to see Karl on Wednesday of each week between 15.30 and 17.00. A further meeting took place, attended by a psychologist from the family and childs welfare centre, on 27 February 2012. A psychiatrists certificate was also submitted on that date. The grandmother had said that the doctor forbade the child to have contact with other people except his family members, that he would not attend school for one to one and a half months and that he would be taught at home. The staff of the Childrens Rights Division spoke to the doctor on 27 February, who advised that the child should see the medical staff once a week and that he could have contact with his mother. They concluded that the temporary contact agreed on 22 February would not breach the childs interests and therefore recommended keeping it. The mother was required to attend the appointments with the psychologist. On 7 March 2012, the mother wrote to the Manager of the Childrens Rights Division informing her that she arrived for her contact visit with her son at the recommended time but that the child was not brought to the office for the visit. Thus it would appear that the Childrens Rights Division was still actively managing the dispute between the mother and the grandparents in what they saw as the best interests of the child on the basis that, for the time being at least, he would live with his grandparents. Nevertheless, after his abduction on 12 March, the grandmother was informed by the authorities that she had no rights. Hence the application transmitted on behalf of the grandparents by the central authority of Lithuania to the central authority of Northern Ireland on 19 November 2012 was not for the immediate return of a child who had been wrongfully removed from his country of habitual residence but for arrangements to be made for him to spend 30 days holiday a year with them at their expense. Unlike an application for return, such an application would not normally be accompanied by a certificate or affidavit concerning the relevant Lithuanian law relating to rights of custody. This may explain why we do not have one. These proceedings However, the originating summons issued by the grandparents in the High Court in Northern Ireland sought a declaration that Karl was being wrongfully retained in Northern Ireland in breach of their rights of custody and an order that he be returned forthwith. No doubt by that time the grandparents had been advised by their lawyers that there was case law in the Court of Appeal and High Court in England and Wales indicating that those courts would regard them as having rights of custody for purposes of the Hague Convention and that there was (at least) a realistic possibility that the High Court in Northern Ireland would take the same view. As it turned out, Maguire J in the High Court declined to follow the English case law, on the ground that it was inconsistent with two House of Lords decisions on the Convention and with one decision in the Court of Justice of the European Union on the Regulation. The Lord Chief Justice, Higgins and Coghlin LJJ in the Northern Ireland Court of Appeal took the same view: [2014] NICA 15. Therefore, in the interests of consistency within the United Kingdom, if nowhere else, it is necessary for this court to resolve the matter. The relevant provisions of the Convention and the Regulation The crucial provision of the Convention is article 3: The removal or 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; and (b) at the time of removal or retention those rights were actually being exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Rights of custody are further defined in article 5(a), which provides that, for the purposes of the Convention, rights of custody shall include rights relating to the care of the person of the child and, in particular, the right to determine the childs place of residence; while rights of access are further defined in article 5(b), which provides that rights of access shall include the right to take a child for a limited period of time to a place other than the childs habitual residence. Rights of custody are respected by the obligation in article 12 to order the return of the child forthwith where he has been wrongfully removed or retained in terms of article 3, unless one of the limited exceptions provided for in articles 12 and 13 apply. Rights of access are respected through the arrangements in article 21 for securing their effective exercise. The Convention is supplemented as between the member states of the European Union (apart from Denmark) by the Regulation. Under article 60(e), this takes precedence over the Convention. The obligation to respect rights of custody by returning the child forthwith under article 12 of the Convention remains, subject to the limited exceptions in articles 12 and 13, but with some additional obligations in article 11 of the Regulation. The relevant definitions are contained in article 2 of the Regulation. Article 2(9) provides that: 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; Article 2(11) provides that: the term wrongful removal or retention shall mean the childs removal or retention where: (a) it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention; and (b) provided that, at the time of the removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. It is most unfortunate that the wording of the Convention and Regulation are not identical. However, despite the difference in wording, the apparent intention of both instruments is that the attribution of rights of custody is to be determined according to the law of the country where the child was habitually resident immediately before his removal or retention. Further, article 3 of the Convention contemplates that rights of custody may arise in particular in three ways: by operation of law, by administrative or judicial decision, and by an agreement having legal effect. This does not rule out that such rights might arise in other ways (see the Explanatory Report by Professor E Perez Vera, para 67). By contrast, the list in article 2(11) of the Regulation appears exhaustive. Furthermore, a judicial or administrative decision in article 3 is intended in its widest sense (see Perez Vera, para 69). By contrast, a judgment is defined in article 2(4) of the Regulation as a judgment relating to parental responsibility pronounced by a court of a Member State. Given, however, that the whole thrust of the Regulation is to supplement and to strengthen the obligations laid down in the Convention, and that it would appear unlikely that the Regulation intended to cut down the possible sources of custody rights which are indirectly protected by the obligation to return the child, they should be construed consistently with one another wherever possible. The English cases on inchoate rights The line of cases begins with the majority decision of the Court of Appeal in Re B (A Minor)(Abduction) [1994] 2 FLR 249. The childs parents were not married to one another and by the law of Western Australia where they lived an unmarried father enjoyed no parental rights by operation of law. Nevertheless he had become the childs primary carer when the mother moved back to Britain, leaving the child in the shared care of the father and her mother. The father agreed to the grandmother bringing the child to Britain for a holiday but only on terms to be embodied in a consent order giving the parents joint guardianship and him sole custody. This was agreed by the mother and eventually approved by the Australian court but only after the mother had begun wardship proceedings in Wales. Waite LJ held that the term rights of custody was capable of being applied in a Convention context to describe the inchoate rights of those who are carrying out duties and enjoying privileges of a custodial or parental character which, though not yet formally recognised or granted by law, a court would nevertheless be likely to uphold in the interests of the child concerned (p 261B). In this case the fathers status was one which any court . would be bound to uphold; at least to the point of refusing to allow it to be disturbed abruptly or without due opportunity of a consideration of the claims of the childs welfare merely at the dictate of a sudden reassertion by the mother of her official rights. Staughton LJ agreed with Waite LJ but he also accepted evidence that under the law of Western Australia parents could make valid agreements as to the custody or guardianship of their children which would be binding without a court order. Peter Gibson LJ dissented on the ground that rights must mean more than de facto rights. The agreement between father and mother did not confer rights of custody when the child left Australia and (under the authority of Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, see para 42 below) a young child in the sole lawful custody of his mother had the same habitual residence as she did, which was now in Wales. Re B was an incoming case, where England and Wales was the requested state. The concept of inchoate rights of custody has been deployed in several later cases, both incoming and outgoing, in the High Court of England and Wales where, of course, the decision in Re B is binding. In Re O (Child Abduction: Custody Rights) [1997] 2 FLR 702, another incoming case, the facts were not unlike those of the present case. A German mother had left her German daughter in the care of the maternal grandparents in Germany. They had taken sole responsibility for the child for over a year and had started custody proceedings in the German court. But before these could be heard the mother kept the child, who was staying with her for the weekend, and brought her to England. The grandmother obtained a provisional custody order in Germany and orders from the High Court in England, under both the Convention and the inherent jurisdiction of the High Court, for the immediate return of the child. Cazalet J thought the non exhaustive wording may arise in article 3 of the Convention (see para 19 above) was important. He asked himself whether the mother could properly be said to have agreed to the child making her home with the grandmother or whether some situation arose whereby the grandparents were carrying out duties and enjoying the privileges of a custodial or parental character which the court would be likely to uphold in the interests of the child concerned (p 709). While he had some doubts about whether there was any such agreement he had no doubt that the grandparents had joint custodial rights within the provisions of Waite LJs definition (p 710). Re G (Abduction: Rights of Custody) [2002] 2 FLR 703 was an outgoing High Court case in which Sumner J declared that the paternal grandmother in whose care the child had been left by the mother had rights of custody as defined in Re B, so that it was in breach of those rights for the mother to retain the child (and take her to South Africa) during an agreed holiday in this country. In Re G, Sumner J also declared that the unmarried father, who had joined the household after the child had been left with the grandmother, had rights of custody. Many of the cases have concerned unmarried fathers who do not have rights of custody by operation of law in the country where the child is habitually resident but who have nevertheless played a role in the childs care. In Re W; Re B (Child Abduction: Unmarried Father) [1999] Fam 1, which concerned two different outgoing cases, I suggested that removing a child who is habitually resident here would be wrongful under the Convention if (a) the unmarried father has parental responsibility either by agreement or court order (or, it should now be added, by operation of law); (b) there is a court order in force prohibiting it; (c) there are relevant proceedings pending in a court in England and Wales; or (d), following Re B, where the father is currently the primary carer for the child, at least if the mother has delegated such care to him (p 20). The facts of Re W fell within (c), but those of this Re B fell within none of these categories, as the mother had a residence order with no prohibition on removing the child from the jurisdiction and the father had only a contact order. Re J (Abduction) (Declaration of Wrongful Removal) [1999] 2 FLR 653 was another outgoing case which fell within category (c); but I doubted whether the concept of inchoate rights could be extended to an unmarried father, who was living with and sharing care of the child with the mother in the way that mothers and fathers living under the same roof commonly do, because that would be difficult to reconcile with the House of Lords decision in Re J (pp 659 660) (see para 42 below). In Re C (Child Abduction) (Unmarried Father: Rights of Custody) [2002] EWHC 2219 (Fam), [2003] 1 FLR 252, where the facts were similar, Munby J agreed with my formulation at (d), so long as it is understood as also applying to a case of shared primary care with someone other than the mother (para 41). Like me, he held that there was nothing in the authorities to suggest that an unmarried father (or anyone else) could acquire rights of custody while the mother who had sole legal rights remained the primary carer, whether alone or sharing it with the father (para 37). He pointed out that the common thread running through the Re B cases was the mother had left the scene and abandoned the care of the child to someone else (para 36). Baron J also followed this approach in Re J (Abduction: Acquiring Custody Rights by Caring for the Child) [2005] 2 FLR 791, holding that the mother had not abandoned the child or delegated sole care to the father during the periods when he had been in the fathers care and thus that the father did not have rights of custody within the Re B principle. In Re F (Abduction: Unmarried Father: Sole Carer) [2002] EWHC 2896 (Fam), [2003] 1 FLR 839, an outgoing case, there was doubt about whether the mothers former partner, and father of her three older children, was in fact the father of her youngest child, who had been left by the mother in his sole care (there were no pending proceedings when the child was abducted because his legal aid application had been lost). Dame Elizabeth Butler Sloss P held that he had inchoate rights of custody, whether or not he was in fact the father, there being a reasonable prospect that a court would grant him a residence order. Reunite, to whom this court is most grateful for their erudite and dispassionate intervention, has drawn our attention to the treatment of the concept of inchoate rights in other states parties to the Hague Convention. In summary, the concept has received enthusiastic support in New Zealand: in the family court in Anderson v Paterson [2002] NZFLR 641; in the High Court on appeal from the family court in M v H [Custody] [2006] NZFLR 623; and by Baragwanath J in the Court of Appeal in Fairfax v Ireton [2009] 3 NZLR 289. These were all cases of unmarried fathers who did not have guardianship rights under New Zealand law, but were enjoying regular contact with their children by agreement with the mother, so the question of inchoate rights was combined with the question of rights acquired by an agreement having legal effect. In the Ontario Superior Court of Justice in Canada, in Courtney v Springfield [2008] CanL II 35920 (ON SC), unreported, Mackinnon J applied the English concept of inchoate rights when deciding whether two children had been wrongfully removed from England and Wales. Both children had been placed with a same sex couple as foster parents and adopted by the abducting party alone because joint adoptions by same sex partners were not then permitted in English law. A shared residence order had been made in relation to one of the children but not the other. Nevertheless the left behind party had been their primary carer while the couple lived together. Following their separation the children had at first spent roughly equal time with each party, and then two days a week with the left behind party, who had also continued her parental involvement in the childrens activities and schooling. MacKinnon J held that it was not necessary to have been the primary carer in order to have inchoate custody rights within the meaning of Re B (para 56). We do not know whether the same approach might be adopted in relation to children habitually resident in Canada, although in VW v DS [1996] 2 SCR 108, the Supreme Court held that the concept of custody must be given a large and liberal interpretation as a narrow reading would contradict the very object of the implementing legislation. On the other hand, the Supreme Court of Ireland, in HI v MG [2000] 1 IR 110, held by a majority of four to one that the Hague Convention did not provide protection for inchoate rights of custody. The mother and father had gone through an Islamic ceremony of marriage in the state of New York which was not valid in US law. An unmarried father had no legal status and no rights of custody under New York law unless conferred by court order. So although the family had been living together for some five and a half years, until shortly before the mother obtained a temporary order of protection and removed the child to Ireland, and the father had already begun proceedings for a visitation order, the father did not have rights of custody within the meaning of the Convention. Barron J, dissenting, held that The reality is that the Hague Convention is not concerned with legal rights under the law of habitual residence but with rights which were actually being exercised and . which the courts of that state would not totally disregard as having no legal effect within that state (p 140). Citing the Re B line of authorities with approval, he concluded that when the party entitled to the legal rights enters into an agreement whether by words or conduct whereby the de facto exercise of those rights is passed to another whether solely or jointly with the possessor of the rights such rights so passed arise within the meaning of article 3 of the Hague Convention (p 146). The Re B concept of inchoate rights was applied as a back up reason by Morgan J in the Family Court of Australia in State Central Authority v LJK [2004] FamCA 724. The child had been born before the parents were married and the mother had obtained a consent order in Australia making her solely responsible for the childs care. But then she had returned to the United States with the child and married the father. Morgan J held that the marriage had nullified the Australian order and so the father had rights of custody by operation of law. But if he was wrong about that, he would have held that the father had inchoate rights within the Re B principle. In MW v Director General of the Department of Community Services [2008] HCA 12, (2008) 244 ALR 205, the High Court of Australia, by a majority of four to one, overturned an order made in the family court that a child be returned to New Zealand. The unmarried father had not established that he was a joint guardian under New Zealand law and his access order did not give him a right of veto over the childs removal. Hence he had no rights of custody. Kirby J dissented on both points. But despite the length and erudition of the judgments, there is no mention of the concept of inchoate rights or of the New Zealand decisions (para 28 above) which would have recognised such a father as having them. The diligence of Reunite, and indeed the other parties, has not unearthed any helpful United States authority on this issue, or indeed any authority from a non common law country. The upshot is that England and Wales have embraced the concept of inchoate rights both for incoming (requested) and outgoing (requesting) abduction cases. New Zealand has recognised it for outgoing (requesting) cases. Canada has recognised it for an incoming (requested) case from England and Wales, thus as part of our law but not necessarily theirs. Australia has recognised it for an incoming (requested) case from the USA but failed even to consider it in an incoming (requested) case from New Zealand. Ireland has expressly refused to recognise it in an incoming (requested) case from the United States. An agreement having legal effect This third source of rights of custody is explained thus in Professor Perez Veras Explanatory Report, para 70: In principle, the agreements in question may be simple private transactions between the parties concerning the custody of their children. The condition that they have legal effect according to the law of the State of habitual residence was inserted during the Fourteenth Session in place of a requirement that it have the force of law as stated in the Preliminary Draft. The change was made in response to a desire that the conditions imposed upon the acceptance of agreements governing matters of custody which one convention seeks to protect should be made as clear and as flexible as possible. As regards the definition of an agreement which has legal effect in terms of a particular law, it seems that there must be included within it any sort of agreement which is not prohibited by such a law and may provide a basis for presenting a legal claim to the competent authorities. (emphasis supplied) As already noted, there is also some New Zealand authority on when rights of custody may arise by virtue of an agreement having legal effect in New Zealand. Section 18 of the New Zealand Guardianship Act 1968 expressly provided that an agreement between the father and mother of a child as to the custody or upbringing of or access to a child was valid, although not to be enforced if the court was of the opinion that this would not be for the welfare of the child. In Dellabarca v Christie [1999] 2 NZLR 548, the Court of Appeal pointed out that this was originally enacted so as to nullify the common law rule that an agreement by a father to part with custody was void as contrary to public policy. While holding that there was no such agreement on the facts of that case, they were inclined to doubt the trial judges view that it would not have had legal effect for the purpose of article 3 of the Convention. This was followed up by the High Court in M v H (para 28 above), holding that such agreements did not have to be in writing and if established on the evidence would have legal effect for the purpose of article 3. By the time of Fairfax v Ireton (para 28 above), section 18 had been replaced by section 40 of the Care of Children Act 2004, which did not in terms state that such agreements were valid, and did provide that they could not be enforced as such, but that some or all of their terms could be embodied in a court order which could be enforced in the usual way. The Court of Appeal held that such an agreement did have legal effect for the purpose of article 3. Reunite have conducted a comprehensive search of the law reports in England and Wales, revealing 59 cases in the Family Law Reports where the phrase an agreement having legal effect appears, but only one in which its meaning was specifically considered. In Hunter v Murrow (Abduction: Rights of Custody) [2005] EWCA Civ 976, [2005] 2 FLR 1119, there had been an article 15 request to the courts of New Zealand which (unsurprisingly in the light of the above) had replied that a father enjoying regular and frequent contact with the child by informal agreement with the mother did have rights of custody and therefore that the childs removal to England and Wales had been wrongful. Nevertheless, both the English High Court and the Court of Appeal held that it was not: the English perception of the autonomous law of the Hague Convention (para 29) was that rights of access could not, without more, amount to rights of custody: citing the then most recent cases of Re V B (Abduction: Custody Rights) [1999] 2 FLR 192 and Re P (Abduction Consent) [2004] EWCA Civ 971, [2004] 2 FLR 1057 (paras 23 24). The case is therefore of very little help in determining what is meant by an agreement having legal effect. It is worth considering the answer which might be given by the English courts were an equivalent request to be made of them. Indeed, in Re W; Re B (para 25 above) I was invited on behalf of the father in B to hold that the parties had agreed that the mother could not take the child out of the jurisdiction except for short periods. I was unable to spell out any such agreement from the known facts and evidence. Moreover (pp 161 162): Even if I had done so, I would have had difficulty in bringing it even within the wide definition given by Professor Perez Vera. The common law does not permit parents to surrender their parental responsibilities (and see also the Children Act 1989, section 2(9)) nor does it recognise or enforce private agreements about the upbringing of children. It regards such agreements as contrary to public policy (see Barnardo v McHugh [1891] AC 388; see also A v C [1985] FLR 445). It cannot be suggested, therefore, that any such agreement could be enforced. But neither does it provide a basis for presenting a legal claim to the competent authorities. The father could at any time have applied for parental responsibility or prohibited steps orders: his basis for doing so would have been his relationship to the child rather than any alleged agreement with the mother. Of course, had they earlier made a parental responsibility agreement under section 4 of the Children Act 1989, that would have been an excellent example of rights of custody arising from an agreement having legal effect in our law. That was a brief and some might think inadequate summary of the position in English law. The common law rule was indeed that a married father could not surrender his parental rights by agreement, but that was modified by a provision in the Custody of Infants Act 1873 similar to that in section 18 of the New Zealand Guardianship Act. An agreement contained in a separation deed between husband and wife was not invalid by reason only that it provided for the father to give up custody or control of the child to the mother; but no court should enforce such an agreement if it would not be of benefit to the child to do so. In the famous case of Re Besant (1879) 11 Ch D 508, it was held not to be for the benefit of a little girl to enforce the agreement in a separation deed between her parents that she should live with her mother for 11 months of the year. Annie Besant had not only published atheistical books but also co operated with Charles Bradlaugh in publishing a pamphlet on birth control which the court considered obscene. In Barnardo v McHugh [1891] AC 388, the common law rule was also applied to an agreement between the mother of an illegitimate child and Dr Barnardo that she would leave the boy in his care for 12 years. To this extent, unmarried mothers were treated as on a par with married fathers. When the Guardianship Act 1973 at last gave married mothers the same rights and authority as married fathers, section 1(2) repeated the rule that any agreement to give up such rights was unenforceable, but again made an exception for agreements between husband and wife which were to operate only while they were separated; but even those agreements were not to be enforced if it would not be for the benefit of the child to give effect to it. Section 85(2) of the Children Act 1975 enacted the common law rule, providing that, subject to section 1(2) of the 1973 Act, a person cannot surrender or transfer to another any parental right or duty he has as respects a child. Both provisions were repealed by the Children Act 1989, section 2(9) of which provides that A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another but may arrange for some or all of it to be met by one or more persons acting on his behalf. Section 2(10) provides that the person with whom any such arrangement is made may himself be a person who already has parental responsibility for the child concerned. Thus any explicit recognition of agreements between parents has gone, no doubt because the court could always decline to enforce them if they were not for the childs benefit, but (again as in New Zealand) the whole thrust of the Act was to encourage parents to make their own arrangements for their childrens future without seeking the intervention of the courts unless it was needed (see, for example, section 1(5)). Whether section 2(9) and (10) amount to giving such arrangements legal effect for the purpose of article 3 of the Hague Convention must await a fuller argument and more careful consideration than it was given in Re W; Re B. But one obvious problem is that there would appear to be nothing to prevent the parent from unilaterally rescinding the delegation before the abduction. The only other relevant case found by Reunite is the US decision in Shalit v Coppe 182 F 3d 1124 (9th Circuit 1999). The question was whether an agreement between the parents that the child would live in Israel for three years had legal effect in Israeli law such as to give the father rights of custody and make the mothers removal of the child to Alaska wrongful in Convention terms. The US Court held that it did not, because Israeli law specifically provided that agreements between parents were subject to the approval of the court. Thus it is difficult to reconcile the English cases on inchoate rights with the concept of an agreement having legal effect, unless that concept is given an extremely wide meaning. Although they all had a basis in the voluntary delegation or abandonment of the child to the care of the people from whom the child had been taken, it could not be said that such delegation had the effect of a legally binding agreement which could not be revoked without the approval of a court. The abduction, and the steps leading up to it, were the clearest possible evidence that the delegation had been revoked. Can inchoate rights be reconciled with Re J and other cases? As will already be apparent, the courts in England and Wales have tried hard to reconcile the concept of inchoate rights recognised in Re B, Re O, Re G and Re F (paras 23, 24 25, 27, above) with the decision of the House of Lords in Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, as well as with the careful distinction drawn in the Convention between rights of custody and rights of access. Like Re B, Re J concerned a little boy born in Western Australia to unmarried parents. Their relationship had its ups and downs, its separations and its reconciliations (Lord Donaldson of Lymington MR, p 566), but they were living together in their jointly owned home when the mother brought the child to live permanently in England without telling the father of her plans. Under the law in Western Australia, an unmarried father had no right to the custody or guardianship of the child unless and until a court made an order in his favour. The Family Court of Western Australia made a sole custody order in his favour after the mother had left and followed this with a declaration that removing the child was wrongful. The House of Lords held that this was not correct. Although there was no doubt that, while the mother and father were living together with J in their jointly owned home in Western Australia, the de facto custody of J was exercised by them jointly, the legal rights of custody, including the right to decide where the child should live, belonged to the mother alone (Lord Brandon of Oakwood, p 577). Further, retaining the child in England after the court order in the fathers favour was not wrongful because by that time the child had become habitually resident in England and Wales. In Re B, Peter Gibson LJ was unable to distinguish the de facto rights exercised by the father in that case from the de facto rights exercised by the father in Re J. Waite LJ, on the other hand, distinguished it on the basis that the mother had delegated the primary care of the child to the father and the grandmother, and any court would be bound to uphold his status at least in the short term. All the cases in which inchoate rights have been recognised in this country, Re B itself, Re O, Re G and Re F, are cases in which the person with legal rights of custody had abandoned the child or delegated his primary care to others. The cases in which inchoate rights have not been recognised are cases in which the person with legal rights of custody continues to have the primary care of the child, either alone, as in Re W; Re B, Re C, and Re J [2005] (paras 25 and 26 above) or jointly with the other parent, as in Re J [1990]. However, the courts in Northern Ireland found themselves unable to reconcile inchoate rights with Re J and also with an observation of mine in the House of Lords in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619. On their divorce in Romania, the mother had been granted a custody order and the father an access order. Following a request under article 15, the courts in Romania had held that the fathers rights did not include a right to veto the mothers bringing the child to England, did not amount to rights of custody and that the removal was not wrongful. In reaching the same conclusion, I observed (para 38): I would not, however, go so far as to say that a parents potential right of veto could amount to rights of custody. In other words, if all that the other parent has is the right to go to court and ask for an order about some aspect of the childs upbringing, including relocation abroad, this should not amount to rights of custody. To hold otherwise would be to remove the distinction between rights of custody and rights of access altogether. It would also be inconsistent with the decision of this House in Re J [1990] 2 AC 562. There an unmarried father had no parental rights or responsibility unless and until a court gave him some; but he did, of course, have the right to go to court to seek an order. Re D was not a case where mother and father were sharing the primary care of the child. Still less was it a case in which the mother had delegated the primary care of the child to the father. It was a clear case of the distinction between rights of access and rights of custody. The cases on inchoate rights were not cited to the House, no doubt because none of the experienced counsel appearing in the case considered them relevant. But they can readily be reconciled. The final case relied upon in the courts of Northern Ireland was the decision of the Court of Justice of the European Union in McB v E (Case C 400/10ppn) [2011] All ER (EC) 379. This concerned an unmarried couple who had three children together and lived in Ireland. The mother left the family home with her children and fled to a refuge. The father prepared an application to the Irish court in order to obtain rights of custody but the mother took the children to England before this could be served upon her. The father brought proceedings in England under the Convention and the Regulation for the return of the children to Ireland. The English court requested that he obtain a determination from the Irish court under article 15. The High Court held that he had no rights of custody at the time of the childrens removal. On his appeal, the Supreme Court of Ireland referred this question to the CJEU: Does [the Regulation], whether interpreted pursuant to article 7 [of the Charter of Fundamental Rights] or otherwise, preclude a member state from requiring by its law that the father of a child who is not married to the mother shall have obtained an order of a court of competent jurisdiction granting him custody in order to qualify as having custody rights which render the removal of that child from its country of habitual residence wrongful for the purpose of article 2(11) of that Regulation? The CJEU answered that question in the negative (para 44). While article 2(9) gave an autonomous meaning to the rights of custody, it followed from article 2(11) (see para 21 above) that the Regulation does not determine who has such rights of custody as may render the removal wrongful within the meaning of article 2(11), but refers that question to the law of the member state where the child was habitually resident immediately before the removal. It was the law of that member state which determines the conditions under which the natural father acquires rights of custody within the meaning of article 2(9). That law may provide that his acquisition of such rights is dependent upon his obtaining a judgment from the national court (para 43). This was not affected by article 7 of the Charter (which is the equivalent of article 8 of the European Convention on Human Rights) because it was sufficient for that purpose that the father had the right to go to court to seek rights of custody (paras 55 and 57, applying Guichard v France, (Application No 56838/00), 2 September 2003, unreported and B v United Kingdom [2000] 1 FLR 1, in the European Court of Human Rights). It is not surprising, therefore, that the courts of Northern Ireland took the view that, if the Regulation throws the attribution of rights of custody entirely onto the law of the member state where the child was habitually resident, there is no room for the concept of inchoate rights. The father had made the rather different argument that the Charter gave inchoate rights to those who could make an application to the court, but the CJEU rejected that (see para 47). Given that this too is a case between member states of the European Union, however, McB v E does present a difficulty for the grandparents. The answer may depend upon precisely what question is left entirely to the law of that member state. Discussion The dilemma presented by this case is summed up neatly in the Perez Vera Report, para 9: The Convention reflects on the whole a compromise between two concepts, different in part concerning the end to be achieved. In fact one can see in the preliminary proceedings a potential conflict between the desire to protect factual situations altered by the wrongful removal or retention of a child, and that of guaranteeing, in particular, respect for the legal relations which may underlie such situations. The Convention has struck a rather delicate balance in this regard. On the one hand, it is clear that the Convention is not essentially concerned with the merits of custody rights (article 19), but on the other hand it is equally clear that the characterisation of the removal or retention of a child as wrongful is made conditional on the existence of a right of custody which gives legal content to a situation which was modified by those very actions which it is intended to prevent. (emphasis supplied) Thus it is not enough that this was, as the Official Solicitor forcefully argues on behalf of Karl, a classic example of the sort of conduct which the Convention was designed to prevent and to remedy. Looked at from his point of view, he was wrested away from the person he regarded as his mother, who had looked after him for the whole of his life, by one person whom he scarcely knew, if he recognised her at all, and another whom he did not know at all; he was taken away from his familiar home, his clothes and his toys, his school and his country; he was taken over land and sea to a place which he did not know, where they speak a language which he did not know, to live with people whom he did not know, and to go to a new school. Small wonder that his behaviour in the first few weeks there was deeply disturbed. These were indeed the harmful effects referred to in the preamble to the Convention. But that is not enough. We are looking for the existence of a right of custody which gives legal content to the situation which was modified by the abduction. The second question, therefore, is where are we looking for this right? Some terms and provisions in an international treaty have an autonomous meaning, a meaning independent of that which they would be given in the domestic laws of any of the states parties. Those terms are meant to be interpreted and applied consistently among all the states parties. Where, as with the Convention, there is no supra national body responsible for its interpretation, the task falls to the national court. But, as Lord Steyn explained in R v Secretary of State for the Home Department, Ex p Adan [2001] 2 AC 477, 517, in doing so, it must search, untrammelled by notions of its national legal culture, for the true, autonomous and international meaning of the treaty. And there can be only one true meaning. There can now be no doubt that the content of the rights of custody protected by the Convention has its own autonomous meaning. The second conclusion of the Second Special Commission to Review the Operation of the Convention (held 18 21 January 1993) was that The key concepts which determine the scope of the Convention are not dependent for their meaning upon any single legal system. Thus the expression rights of custody, for example, does not coincide with any particular concept of custody in a domestic law, but draws its meaning from the definitions, structure and purposes of the Convention. This conclusion was more recently reaffirmed by the Sixth Meeting of the Special Commission (held 1 10 June 2011). It was for this reason that England and Wales was able to conclude, from an early stage, that a right to veto the childs relocation abroad (what the Americans call a ne exeat right) was a right of custody for the purpose of the Convention, even if its purpose was to support rights of access rather than to protect rights of custody, a view which is now widely shared among member states: see C v C (Abduction: Rights of Custody) [1989] 1 WLR 654; Re D (Abduction: Rights of Custody) [2007] 1 AC 619, especially the discussion by Lord Hope at paras 8 to 19; and, now, Abbott v Abbott 560 US 000 (2010) in the United States. It was also for that reason that Dyson LJ, in Hunter v Murrow (above, para 36) divided the question of whether the father had rights of custody into two. The first, which he called the domestic law question, was what rights the father had in national law. The second, which he called the Convention question, was whether those rights were to be characterised as rights of custody for the purposes of the Convention. To which question are the inchoate rights recognised in Re B the answer? There is a suggestion, in the written submissions from Reunite, that the Hague Conference, in its INCADAT database, may see them as falling within the first, the domestic law question. It is, of course, the case that their existence has been recognised in outgoing as well as incoming cases in England and Wales; and that MacKinnon J was persuaded that they were part of our national law in Courtney v Springfield (para 29 above). But in my view there can be no doubt that the concept was developed as an answer to the second question: in Re B, the Court was asking itself whether the position of the father amounted to rights of custody for the purposes of the Convention, not whether the national law of Western Australia would so regard it. Again, in outgoing cases such as Re W; Re B (para 25 above), the court was not suggesting that these were rights recognised for domestic law purposes, but whether they were rights which in English law were recognised for Convention purposes. If it is indeed a Convention question, then the answer should be the same in all member states. Yet we face the very real difficulty that there is very little support for such an expansive view of rights of custody among the other states parties to the Convention. Once again, the courts of England and Wales, in their enthusiasm to support the object and purposes of the Convention, have pushed at the boundaries. However they have done so for many years now, albeit in a very narrow category of cases, without apparent objection from the rest of the Hague community. One reason may be that it is apparent from the Perez Vera report that, although there must be some legal content to the factual situation disrupted by the abduction, the listed sources of that legal content were not intended to be exhaustive, thus favouring a flexible interpretation of the terms used, which allows the greatest possible number of cases to be brought into consideration (para 67). Another reason may be that the English approach is entirely consistent with the two fundamental purposes of the Convention, to protect children from the harmful effects of international abduction and to secure that disputes about their future are determined in the state where they were habitually resident before the abduction. Does the decision of the CJEU in McB v E (paras 46 47 above) constitute an insuperable obstacle to our continuing to take that approach? After anxious consideration I have reached the view that it does not. The CJEU stressed that, in the Regulation as in the Convention, the concept of rights of custody is an autonomous one (para 41). It must follow that its content is not to be determined by reference to the laws of individual member states, even if the question of who enjoys such rights is left to them. The CJEU were asked whether the Regulation precluded a member state from providing in its own law that the acquisition of rights of custody by a childs father depended upon his obtaining a judgment from a national court. They were not asked whether the Regulation precluded a requesting state from regarding whatever legal situation the father might be in as being within the autonomous concept of rights of custody for the purpose of the Regulation. If a strictly limited category of so called inchoate rights fall within that concept for the purpose of the Convention, there is no reason why they should not do so for the purpose of the Regulation, which is intended to strengthen rather than weaken the implementation of the Convention. As it happens, the father in McB v E would not have fallen within the Re B concept, as at the very highest he was sharing care with the mother. How then may the people who possess that strictly limited category of rights be defined, consistently with the principles and purposes of the Convention and the Regulation? In my view the continuum as described in Re B is imprecise. It risks disrupting the important distinctions drawn in the Convention between rights of custody and rights of access and between those who do and those who do not have something which can plausibly be termed a right. I would define such people thus. (a) They must be undertaking the responsibilities, and thus enjoying the concomitant rights and powers, entailed in the primary care of the child. Thus, for example, our law recognises the obvious truth that people who are actually looking after a child, even if they do not have parental responsibility, may do what is reasonable in all the circumstances of the case for the purpose of safeguarding and promoting the childs welfare (Children Act 1989, s 3(5)). (b) They must not be sharing those responsibilities with the person or persons having a legally recognised right to determine where the child shall live and how he shall be brought up. They would not then have the rights normally associated with looking after the child. (c) That person or persons must have either abandoned the child or delegated his primary care to them. (d) There must be some form of legal or official recognition of their position in the country of habitual residence. This is to distinguish those whose care of the child is lawful from those whose care is not lawful. Examples might be the payment of state child related benefits or parental maintenance for the child. And (e) there must be every reason to believe that, were they to seek the protection of the courts of that country, the status quo would be preserved for the time being, so that the long term future of the child could be determined in those courts in accordance with his best interests, and not by the pre emptive strike of abduction. Those requirements are consistent with the twin purposes of the Convention. First, they protect the child from the harmful effects of international child abduction by recognising that he should not be peremptorily removed from their care. Second, they enable the courts of the childs habitual residence to determine where his long term future should lie. It is possible to analyse them in terms of an agreement having legal effect, but only if the unilateral (and usually clandestine) decision of the abducting parent is not seen as effective to revoke that agreement. Applying the principle to the facts How then does such a concept apply in this case? The grandparents had for many years undertaken the responsibilities entailed in the primary care of the child. They had exercised all the decision making rights and powers associated with that. Until days before the abduction they had done so with the benefit of some specific authorisations granted by the mother. The mother had undoubtedly delegated the care of her son to them. For most of that period the grandmothers status had been officially recognised. Had it not been for what appears to have been the automatic cancellation of that status on the mothers notification of her return, there would have been no problem at all in ascribing rights of custody to the grandmother. There would have been no need to involve any concept of inchoate rights. But it seems to me that her position did still have some legal content after that order was revoked. The Childrens Rights Division, which appears to have been the competent authority for this purpose, was monitoring and controlling the situation of the child. An order was agreed on 22 February and confirmed on 27 February that the mother should have weekly contact with the child. Obviously this was on the basis that it was in the best interests of the child to remain living with his grandparents for the time being. The question for the authorities was whether, given the childs fragile psychological condition, it was in his best interests to be reintroduced to his mother. It can also be concluded from the legal advice which the mother was given that had either she or the grandmother taken legal proceedings the status quo would have been preserved while these were resolved. I conclude, therefore, that the grandmothers status did constitute rights of custody in relation to Karl on the day when he was removed for the purpose of the Convention and the Regulation. Her status had legal content derived from the decisions taken by the competent authorities in the light of the mothers previous delegation of primary care to her. It had not been deprived of all content by the mothers notice to the authorities (which may or may not have been communicated to the grandmother). Thus to take him out of the country without her consent was in breach of those rights and wrongful in terms both of the Convention and the Regulation. Conclusion It follows that the appeal must be allowed. It also follows that this court is obliged, pursuant to article 12 of the Convention and article 11 of the Regulation, to order that the child be returned to Lithuania forthwith. The mother has not yet sought to raise any of the exceptions to that obligation contained in article 13 of the Convention; nor does the possible exception in article 12 for children who have become settled in the country to which they have been abducted apply, as these proceedings were begun less than a year after the abduction. This is not, however, the result for which the Official Solicitor contends on behalf of the child. While strongly arguing that this was indeed a wrongful removal, which should be recognised as such by this court, she submits that there should be a reconsideration of the childs position and the effect of another move upon him after two years of living with his mother and her family. This submission, with all respect to her, is trying to have it both ways and ignores the binding effect of article 12 of the Convention and article 11 of the Regulation. This court cannot allow the inevitable effect of the passage of time involved in the appellate process (however expedited) to affect its decision. However, although they have given instructions to pursue this appeal, it may be that this is also what the grandparents would prefer. In her second affidavit, the grandmother states that if the court in Northern Ireland is satisfied that it is in Karls best interests to remain in Northern Ireland with the mother, then they would be willing to consider allowing this, but only on condition that proper contact arrangements are put in place and incorporated in a court order which could be enforced against the mother. Despite all that has passed, she may still be prepared to consider an agreed solution along those lines and the mother, of course, now has every incentive to do so. The mother has indeed brought this situation upon herself, and more importantly upon her son, not only by her cruel and high handed actions in taking the law into her own hands, but also by her insensitive handling of the relationship between her son and the people whom he had regarded as his parents for so long. She has cut off all contact between them and appears to have poisoned his mind against them by suggesting that they lied to him. She should now be doing her best to put that right. Otherwise, the only conceivable way of getting this case back before the High Court in Northern Ireland would be if the mother were to seek permission, even at this late stage, to raise one of the exceptions in article 13 to the courts obligation to order the return of the child. We have not heard argument upon whether this is even possible, given the stage which the proceedings have reached. But were the mother to make such an application, and were the High Court to grant her such permission, it would be necessary to stay this courts order until the case could be heard. All these matters would be better dealt with by the High Court in Northern Ireland. Accordingly, I would direct that if within 21 days the mother applies to the High Court for permission to apply for the child not to be returned, pursuant to article 13 of the Convention, the order of this court is to be stayed until the matter is mentioned, on the first available date, before the Family Division Judge in the High Court in Northern Ireland. Should he permit the mother to make her application, and I am very far from suggesting that he should, he should also have power to stay the order of this court until the matter is determined. It goes without saying that the time table for hearing and determining the whole matter should be very tight. There is one final comment. Cases like this are mercifully rare and ought to be rarer still. This is because the High Court retains its inherent jurisdiction to order the immediate return of a child who has been removed from his country of habitual residence. That jurisdiction is governed by the best interests of the child. But it has long been recognised that there are situations in which those interests are best served by a swift return to his home country for his future to be decided there. Indeed, in cases within the European Union, jurisdiction to determine matters of parental responsibility remains with the country of habitual residence unless and until the child acquires a new habitual residence. There are therefore cases, and this is one, in which it is appropriate to allow an application under the inherent jurisdiction to proceed hand in hand with an application under the Hague Convention (as in fact happened in Re O, para 24 above, where Cazalet J made return orders under both). The Family Division in Northern Ireland may therefore wish to reconsider its practice of automatically postponing such applications until the Hague case has been determined. I consider that the court should have dismissed the appeal. LORD WILSON The grandparents need to establish that on 12 March 2012 they had rights of custody in relation to Karl. But in my view they face an insuperable difficulty. For on 20 February 2012 the Childrens Rights Division of the Social Security Department of Klaipeda City Municipal Administration in Lithuania revisited the order dated 10 January 2007 by which it had invested temporary care of Karl in them or, to be more accurate, in the grandmother. Its order dated 20 February was as follows: RE: TERMINATION OF TEMPORARY CARE Under the Order 28.05.2007 of the Social Security Minister it is indicated in the children temporary care provision that temporary care terminates when the parents return from a foreign state and inform Childrens Rights Division about it. [The mother] informed Childrens Rights Division on 20.02.2012 that she came back from abroad and she will take her son into her own care. Referring to the Order stated above and considering that [the mother] did inform about the return, [Karls] temporary care is held to be terminated from 20.2.2012. There are grounds for suspecting that, in the translation of the order into English, that last date has been wrongly typed as 20 February and should have read 28 February 2012. But whether it took effect immediately or eight days later, the order dated 20 February terminated the legal entitlement of the grandparents to care for Karl even on a temporary basis. Why? Because the mother will take her son into her own care. I cannot accept that the grandparents had rights of custody in relation to Karl after the order for temporary care of him was terminated. I am convinced that the effect of the order dated 20 February 2012 was that they no longer had rights of custody. Lady Hales ingenious conclusion otherwise seems to me to be strained. She relies in particular, at para 59, on the agreed order for the mothers contact with Karl dated 22 February 2012. The courts limited understanding of the order for contact largely derives from the notice to the grandfather dated 2 March 2012. This refers to a meeting on 22 February between the mother and the grandmother in the presence of the child psychologist and to the arrangement of a contact visit on Monday 27 (or possibly Wednesday 29) February; and it makes a recommendation, as of 2 March, that temporary contact on Wednesdays should be maintained. In one of her affidavits the grandmother casts light on these arrangements: she says that on 22 February the psychologist recommended that [the mother] take her time to get to know her son. I infer that the temporary contact order reflected the mothers acceptance at that time of the advice that she should get to know Karl again through some contact visits prior to taking him into her care. I cannot infer that its effect was to invest the grandparents with the rights of which the termination order, made almost simultaneously, clearly deprived them. Lady Hale suggests at para 59 above that the corollary of the temporary contact order agreed on 22 February 2012 was the mothers acceptance that Karl should continue to reside temporarily with the grandparents. She also suggests that, had any dispute about his future been presented to it, a Lithuanian court would have directed that he should continue to reside with them pending its resolution. I agree with both of Lady Hales suggestions but I do not accept the significance which she attaches to them. The search is for rights of custody in the grandparents. The mothers apparent concession that, presumably only for a few weeks, she should delay her removal of Karl from the home of the grandparents says nothing about rights of custody other than her own. And a courts usual concern to maintain a child in his existing environment pending its resolution of a dispute about his future reflects its usual inability to resolve a dispute immediately and a resultant concern that a childs initial move might later fall to be reversed. Take a father without parental responsibility who, following a period of contact, refuses to return an adolescent child to the mother on the basis that the child refuses to return to her. A court in the UK is likely to order the mother not to seek to remove the child from the fathers home pending its urgent inquiry but it does not thereby invest the father with anything which in Convention terms could be described as rights of custody. Lady Hale has conducted a valuable tour dhorizon of the doctrine of inchoate rights and concludes that it is by reference to the doctrine that the grandparents establish that on 12 March 2012 they had the requisite rights. I will explain why I agree with much, but not all, of Lady Hales analysis of the doctrine. But it will be essential to bear in mind that, as Lady Hale accepts at para 24, the inchoate rights must be rights of custody. Can the inchoate rights of a childs carer to prevent, for a few weeks, his removal by a person who on any view had rights of custody amount to inchoate rights of custody? In my view the closest scrutiny falls to be given to any deconstruction of the doctrine which yields an affirmative answer. Article 3 of the Convention provides that rights of custody may arise in particular in any of three ways, namely by operation of law or by reason of a judicial or administrative decision or by reason of an agreement having legal effect under the law of the state of the childs habitual residence: see para 19 above. Article 2.11 of the Regulation provides that rights of custody are acquired in any of the same three ways, albeit described in slightly different terms, but it omits the words may arise in particular: see para 21 above. My view is that the omission was deliberate. I infer that it reflects a study of Convention jurisprudence which gave no support for the view that rights of custody could arise otherwise than in one of the three ways and therefore a conclusion that the words were redundant and productive only of confusion. At all events my view is that the doctrine of inchoate rights, first articulated in the courts of England and Wales, reflects a legitimate application of the third of the prescribed ways in which rights of custody may arise, namely by an agreement having legal effect. Usually the agreement will be express and if, as Professor Perez Vera explains in the passage of her report quoted at para 34 above, it provides a basis for presenting a legal claim to the competent authorities, it will have the requisite legal effect. Even in the absence of an express agreement, however, it may, in certain unusual circumstances, be proper to infer from the conduct of a person with rights of custody that she (or he) has agreed that another person should not just help to care for the child nor even care single handedly for him but should have rights of custody over him. If in those circumstances there is a likelihood that, had it been asked to do so, a court in the state of habitual residence would have given legal effect to the inferred agreement by investing that other person with rights of custody, one can properly conclude that that other person had rights of custody even though they were inchoate. The words of the Regulation seem to me to allow no wider principle. The crux of Lady Hales judgment lies in para 59 above, where she identifies five requirements which must be satisfied before persons can be held to have had inchoate rights of custody. She says: (a) that they must be undertaking the responsibilities, and thus enjoying the concomitant rights and powers, entailed in the primary care of the child; (b) that they must not be sharing these responsibilities with the person having a legally recognised right to determine where the child shall live and how he shall be brought up; (c) that that person must have either abandoned the child or delegated his primary care to them; (d) that there must be some form of legal or official recognition of their position in the country of habitual residence; and (e) that there must be every reason to believe that, were they to seek the protection of the courts of that country, the status quo would be preserved for the time being so that the long term future of the child could be determined in those courts in accordance with his best interests and not by the pre emptive strike of abduction. Respectfully, I agree with (a), (b) and (c) above; discern no logical need for (d); and disagree with (e). In my view (e) sets the bar too low. For it fails to reflect the fact that the search is for rights of custody (defined in article 2.9 of the Regulation as including in particular the right to determine the childs place of residence) rather than a right to continue to care for a child in a specified place on an interim basis pending the resolution of proceedings. So my formulation of the requirement at (e), which I would re label as the requirement at (d), would be that there is a likelihood that, had it been asked to do so, a court in the state of habitual residence would have inferred from the facts in (a), (b) and (c) an agreement that the carers should have rights of custody and would by virtue of the agreement have proceeded to invest them with such rights. It is also important to remember, as Reunite points out, that the inquiry is not into whether the carers had at some earlier stage had rights of custody but whether they had them at the time of the childs removal. In my view it follows that the facts required at (a), (b) and (c) must have existed immediately prior to the removal and that the hypothesis at (d) is of an application to the court at that same point. No doubt the unilateral removal of the child amounts to revocation of the requisite agreement but the inquiry is of course into its subsistence immediately prior thereto. It will be easy to understand the basis of my conclusion that the grandparents in the present case had no inchoate rights of custody on 12 March 2012 nor at any time after 20 February 2012. In respect of the period from that date onwards it cannot be said, for the purposes of the fact required at (c), that the mother abandoned Karl; and I doubt that it can be said that she was continuing to delegate his primary care to the grandparents. On any view, however, no court at any time after 20 February could have inferred an agreement on her part that the grandparents should have rights of custody or, by virtue of any agreement, could have invested them with such rights. I am clear that the Lithuanian authorities were correct to advise the grandmother immediately after Karls removal that she had no rights in respect of him. There is no need for this court to shoe horn into the Convention a case, like the present, which (so I consider) does not naturally fit into it. The risk is that it thereby distorts the domestic jurisprudence relating to the Convention; sets it at odds with the international jurisprudence; and compromises the need for a swift and straightforward inquiry into the existence of rights of custody. I would develop Lady Hales final comment in para 64 above. The grandparents case was tailor made for a prompt application for an order for Karls immediate return to their care pursuant to the inherent jurisdiction of the High Court recently reaffirmed by this court in In re L (A Child) (Custody: Habitual Residence), [2013] UKSC 75, [2013] 3 WLR 1597, at para 28 (Lady Hale). The courts inquiry would then have been into the best interests of Karl but who knows? its early conclusion might well have been that they were served by his immediate return to Lithuania on the basis that, irrespective of whether they retained jurisdiction under the Regulation, its courts were better placed to conduct the full inquiry. The unsuitability of the present proceedings is further exemplified by the unusual order which Lady Hale proposes, namely that the mother should be afforded a limited opportunity (a) to seek to raise a defence under article 13 of the Convention to the grandparents application for an order for Karls return to Lithuania and (b) therefore also to apply to the High Court for a stay of the order for return which, so Lady Hale concludes, this court should make. This court would, I respectfully suggest, turn elementary procedural rules on their head if it were to indorse the possibility that a defence to an application might be raised notwithstanding that an order granting it had already been made. Were the possible defence apt, I would have expected this court to decline to make the substantive order for Karls return and to remit the grandparents application for re determination in the light of this courts rulings. But would such a defence be apt? The basis of it is the following submission of the Official Solicitor: It did take almost one year before the grandparents made the application under the Convention and now another year has passed. If this Court decides the case by recognising [that] a wrongful removal has taken place, there should be a reconsideration of the childs position and the effect of another move upon him after two years of living with his mother and family, including a half sibling. Expert evidence may be necessary and further enquiries can be made on behalf of the child about re establishing relationships with his home country, his grandparents and how he feels now. In other words the Official Solicitor unsurprisingly calls for a welfare inquiry prior to any return of Karl to Lithuania. The courts proposed response is that the only possible vehicle for inquiry would be a contention on the part of the mother pursuant to article 13 of the Convention that there is a grave risk that Karls return would expose him to psychological harm or otherwise place him in an intolerable situation and, conceivably also, that he objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his views. I consider, however, that the identified vehicle is not fit for its purpose. Article 11.3 of the Regulation requires a member state to determine an application under the Convention expeditiously and, save in exceptional circumstances, within six weeks of its issue. The grandparents application has already been on foot for more than a year. In my view it would be contrary to principle for the mother to be allowed at this stage to raise a defence which would apparently be based to a substantial extent on the consequences for Karl of the existing delay in determination of the application and which would be productive of significant further delay. The determination of an application under the Convention remains an exercise only in choosing the forum for the welfare inquiry in accordance with its rules and a defence under article 13 impacts only on that choice. Irrespective of whether the mother could now establish the facts specified in article 13, the ultimate determination of the grandparents application, if reopened, can only be either that Karl should be returned to Lithuania (where it would surely now be increasingly difficult to conduct the welfare inquiry) or that he need not be returned to Lithuania (being an order which would entirely fail to address what at first sight is the most glaring shortcoming in the current arrangements for Karl, namely the absence of contact between him and the grandparents). On my analysis of inchoate rights of custody, the way forward would, by contrast, have been clear. If, as I consider to be the case, the grandparents lacked rights of custody on 12 March 2012, their application would correctly have been dismissed. Under article 16 of the Convention the dismissal would have opened the door to an entitlement in the High Court in Northern Ireland to conduct a welfare inquiry in respect of Karl. The grandparents would therefore have proceeded to seek leave to apply for an order for contact, or if so advised for an order for residence, in respect of Karl under article 10 (2)(b) of the Children (Northern Ireland) Order 1995, 1995 No.755 (N.I.2).	This appeal concerns the meaning of the words rights of custody in article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (the Convention), and in the Brussels II Revised Regulation (EC) No 2201/2003 (the Regulation) which complements and takes precedence over the Convention between most member states of the European Union. A child is wrongfully removed or retained in a country under the Convention if such removal or retention is in breach of rights of custody. The issue is whether the rights of custody must already be legally recognised and enforceable, or include informal rights (termed inchoate rights), the existence of which would have been legally recognised had the question arisen before the removal or retention in question. The proceedings concern a boy (K) born in Lithuania in March 2005. From the time of his birth until 2012 he lived with and was cared for by his maternal grandparents. His father separated from his mother before he was born and has played no part in his life. His mother moved to Northern Ireland without K in May 2006 and has lived there ever since. A month after Ks birth she authorised her mother to seek medical assistance for K and, before she left for Northern Ireland, executed a notarised consent for her mother to deal with all institutions in relation to K on her behalf. In 2007 a court order was made in Lithuania putting K under the temporary care of his grandmother. This order terminated when Ks mother returned in February 2012 seeking to take K into her own care. Ks mother also applied to withdraw the notarised consents. Meetings were held at the Childrens Rights Division of the local authority where orders were made for her to have weekly contact with K. She was advised that legal proceedings against her mother to obtain custody of K would be costly and protracted and decided instead to seize K forcibly in the street while he was walking home from school with his grandmother on 12 March 2012, and to travel immediately back to Northern Ireland with him by car and ferry. The grandparents were told by the Lithuanian authorities that they had no right to demand the return of K. However, in February 2013 they issued an originating summons in Northern Ireland seeking a declaration that K was being wrongfully retained in breach of their rights of custody. Maguire J refused their application, and their appeal against his decision was dismissed by the Northern Ireland Court of Appeal. The Supreme Court by a majority (Lord Wilson dissenting) allows the appeal, finding that the grandmother did enjoy rights of custody such that Ks removal from Lithuania was wrongful. It orders that K should be returned to Lithuania forthwith. If Ks mother wishes to apply for permission to argue at this very late stage that any of the exceptions to the courts obligation to return K found in article 13 of the Convention apply, this order will be stayed if she makes her application within 21 days. Lady Hale gives the only judgment of the majority. Lord Wilson gives a dissenting judgment. The courts of states parties to the Convention have on several occasions dealt with applications based on inchoate rights of custody [23 42]. In England and Wales such rights have been recognised where the person with legal rights of custody had abandoned the child or delegated his primary care to others [44], but other countries have taken a less expansive view. The Convention is not concerned with the merits of custody rights but it will only characterise a removal of a child as wrongful if it interferes with a right of custody which gives legal content to the situation altered by the removal. Thus it is not enough that Ks removal was a classic example of the sort of conduct which the Convention was designed to prevent and to remedy, given the harmful effects on K of wresting him from the person he regarded as his mother and taking him without notice to a country where he knew no one and did not speak the language [50 51]. The rights relied on by Ks grandparents must amount to rights of custody for the purposes of the Convention. The majority considered that the English courts should continue to recognise inchoate rights as rights of custody under the Convention and the Regulation, provided that the important distinction between rights of custody and rights of access was maintained, and provided that (a) the person asserting the rights was undertaking the responsibilities and enjoying the powers entailed in the primary care of the child; (b) they were not sharing them with the person with a legally recognised right to determine where the child should live and how he should be brought up; (c) that person had abandoned the child or delegated his primary care to them; (d) there was some form of legal or official recognition of their position in the country of habitual residence (to distinguish those whose care of the child is lawful and those whose care is not); and (e) there is every reason to believe that, were they to seek the protection of the courts of that country, the status quo would be preserved for the time being while the long term future of the child could be determined in those courts in accordance with his best interests [59]. These conditions applied to the situation of Ks grandparents. The Childrens Rights Division was supervising the situation on the basis that K remained living with his grandparents while having contact with his mother. Taking K out of the country without his grandmothers consent was in breach of her rights of custody [61 62]. It followed that the court was bound under the Convention to make an order to return K to Lithuania forthwith. It may be that the grandparents would be content with legally enforceable contact arrangements and the mother now has every incentive to agree to these. If the mother were to seek permission at this late stage to raise one of the exceptions in article 13 to the courts obligation to order the return of the child within 21 days, the order would be stayed until the hearing on the first available date in the High Court to determine whether such permission should be granted to her [66]. Lord Wilson would have dismissed the appeal. In his view the rights of custody enjoyed by Ks grandmother were terminated on the mothers return [71]. Even if the courts in Lithuania might have maintained the status quo while Ks future was decided, this did not amount to recognition of rights of custody in the grandparents [72]. The Convention application should therefore have been dismissed. As a result, a welfare inquiry into Ks interests could then have been conducted under the Children (Northern Ireland) Order 1995, in which his grandparents might have been granted an order for contact or even residence [84].
Imprisonment for public protection (IPP) is a sentence which condemns a defendant to indeterminate detention. Section 225(3) of the Criminal Justice Act 2003 (the 2003 Act), as substituted by section 13(1) of the Criminal Justice and Immigration Act 2008, permits a judge to impose a sentence of IPP on a defendant who has been convicted of a serious offence where the judge finds that there is a significant risk that he will commit further offences that will cause serious harm to members of the public. Can or should a judge impose a sentence of IPP on a defendant who is already serving a sentence of life imprisonment under which he will not be released from prison until he can satisfy the Parole Board that he no longer poses a danger to the public? Although this question has been certified by the Court of Appeal as being a point of general public importance, its significance lies in the issue of law, rather than the practical implications of imposing a sentence of IPP in place of a determinate sentence in such circumstances. An indeterminate sentence is one designed not merely to imprison a defendant for a minimum period that properly reflects the gravity of his offence, but to ensure that he is not released thereafter unless and until he has ceased to be a danger to the public. There are two types of indeterminate sentence. One is a sentence of life imprisonment, for a prisoner sentenced to life imprisonment is entitled to be considered by the Parole Board for release on licence once he has served a fixed term of imprisonment specified by the sentencing judge. The other indeterminate sentence is the IPP. Once again the sentencing judge will specify a minimum term to be served after which the prisoner will be entitled to be considered by the Parole Board for release on licence. The test applied by the Parole Board is the same, whether the defendant has been sentenced to life imprisonment or to IPP. Release will be ordered if, but only if, the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined see sections 28(6)(b) and 34(2) of the Crime (Sentences) Act 1997, as amended by section 230 of, and Schedule 18 to, the 2003 Act. The 2003 Act makes the following provisions in relation to the imposition of indeterminate sentences: 225. (1) This section applies where (a) (b) 2) (c) (d) 3) after a person aged 18 or over is convicted of a serious offence the committed commencement of this section, and 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. If the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and 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. In a case not falling within subsection (2), the court may impose a sentence of imprisonment for public protection if the condition in subsection (3A) or the condition in subsection (3B) is met. (3A) The condition in this subsection is that, at the time the offence was committed, the offender had been convicted of an offence specified in Schedule 15A. (3B) The condition in this subsection is that the notional minimum term is at least two years. The word may which I have emphasised was substituted for must by the Criminal Justice and Immigration Act 2008. The Facts The appellant was born on 25 February 1950. He has been in and out of prison all his adult life much more in than out, for on each release from prison he has almost immediately returned to crime and been fairly swiftly apprehended and re convicted. His more recent convictions prior to that which resulted in the sentence which is the subject of the present appeal were as follows: (i) On 21 November 1975, at the Central Criminal Court, he was sentenced to a total of ten years imprisonment for two offences of robbery, contrary to section 8 of the Theft Act 1968, two offences of conspiracy to rob contrary to section 1(1) of the Criminal Law Act 1977 and one offence of wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861. (ii) On 29 September 1982, at the Central Criminal Court, he was sentenced to a total of 12 years imprisonment for one offence of conspiracy to rob contrary to section 1(1) of the Criminal Law Act 1977, one offence of having an imitation firearm with intent to commit an indictable offence contrary to section 18 of the Firearms Act 1968, one offence of taking a conveyance without authority contrary to section 12 of the Theft Act 1968 and one offence of criminal damage contrary to section 1(1) of the Criminal Damage Act 1971. (iii) On 28 October 1994, at the Central Criminal Court, he was sentenced to a total of nine years imprisonment for three offences of robbery, contrary to section 8 of the Theft Act 1968 and three associated offences of carrying a firearm with intent to commit an indictable offence contrary to section 18 of the Firearms Act 1968. (iv) On 24 January 2000, in the Crown Court at Kingston, he was sentenced to imprisonment for life for one offence of attempted robbery, contrary to section 1(1) of the Criminal Attempts Act 1981 and one offence of having a firearm with intent, contrary to section 18 of the Firearms Act 1968. The minimum term to be served prior to consideration of release was fixed at four years. The life sentence was mandatory by reason of the appellants previous convictions and the provisions of section 2 of the Crime (Sentences) Act 1997. Having served the minimum term under the sentence passed on 24 January 2000, the appellant persuaded the Parole Board that he qualified for release on licence and was released on 25 September 2004. On 11 January 2008 he was arrested again on this occasion on suspicion of having committed eight armed robberies of bookmakers premises between 4 March 2006 and 28 May 2007. In accordance with the provisions of section 32 of the Crime (Sentences) Act 1997 his arrest resulted in his recall under life sentence for breach of the terms of the licence under which he had been released. On 2 September 2008 in the Crown Court at Harrow he pleaded guilty to eight offences of robbery, contrary to section 8 of the Theft Act 1968 and eight linked offences of possession of a firearm at the time of committing a specified offence, contrary to section 17(2) of the Firearms Act 1968. The Sentence The appellant was sentenced on 10 October 2008 by His Honour Judge Greenwood. In the course of passing sentence the judge made the following remarks: Nicholas Smith, I have to sentence you for a total of eight offences of robbery and eight offences of possessing a firearm at the time of committing robberies. What you did was to select premises where you expected large sums of money to be kept. You were armed with an imitation firearm and disguised and you threatened members of staff with that imitation firearm. I have no doubt at all that on each occasion those threatened were terrified and it was for this reason that you managed to rob the victims of a total of 13,338.74; none of which has been recovered. As I discussed earlier with your counsel, there are a number of aggravating features in cases such as this. There is the pre planning; the disguise; the targeting of large sums and, of course, the fact that the victims are vulnerable for that very reason; that they have to look after large sums of money. You have a dreadful record which includes robberies; an offence of wounding with intent to cause grievous bodily harm, and the use on a previous occasion of a real firearm. I agree with the conclusion expressed in the pre sentence report that you are a career criminal. You present without any doubt a significant risk to the public of serious personal injury caused by your committing further specified offences. I have taken into account everything that I have heard and read about you. But, in the result, I have no alternative whatsoever but to pass upon you a sentence of imprisonment for public protection. That is because the offences for which you are now to be sentenced are offences specified in Schedule 15 to the Criminal Justice Act 2003. Your offences; the offences to which you have pleaded guilty, are punishable by a life sentence, but I do not consider these matters sufficiently serious to justify such a sentence. On the other hand, in my opinion, there is a significant risk to the public of serious personal injury caused by your committing further offences specified in Schedule 15. I reach that conclusion, having taken into account the nature and circumstances of your current offences; the pattern of behaviour of which your current offences form a part, and everything else that I know about you from what I have heard and read. In these circumstances, as I have said already, I will impose a sentence of imprisonment for public protection, which will be concurrent on each of the counts that you face. The judge went on to specify a minimum term to be served of six years on the basis that, had he not imposed a sentence of IPP, he would have imposed a determinate sentence of 12 years imprisonment, of which the appellant would have had to serve at least half. Mr Tim Barnes QC for the appellant has submitted that the sentencing remarks suggest that the judge was unaware of the amendment of must to may to which I have referred at para 3 above. I am not persuaded that this is so. What does seem clear is that the objections of principle to the sentence imposed which were raised on appeal and which have been pursued before this court were not raised before the judge. The Appellants Case Mr Barnes advanced the appellants grounds of appeal with admirable clarity, and they can be shortly summarised. They were advanced on an alternative basis. The primary submission was that the imposition of a sentence of IPP was unlawful because the requirement of section 225(1) (b) of the 2003 Act was not satisfied. Judge Greenwood could not properly have formed the opinion that there was a significant risk to members of the public of serious harm occasioned by the commission by [the appellant] of further specified offences. This was because the appellant had been recalled to prison under his life sentence. He would not be released unless and until the Parole Board was satisfied that it was no longer necessary for the protection of the public that he should be confined. It followed that the significant risk specified in section 225(1)(b) did not exist. In the alternative, Mr Barnes submitted that Judge Greenwood had erred in principle in imposing a sentence of IPP. By amending must to may Parliament had conferred a discretion on the sentencing judge, even though the statutory criteria for the imposition of IPP were satisfied. Where a defendant was already serving a life sentence, nothing was achieved by an additional sentence of IPP, rather than a determinate sentence, and it was wrong to impose one. The Decision of the Court of Appeal Counsel who represented the appellant in the Court of Appeal did not submit that it was unlawful to impose a sentence of IPP on a prisoner who was already serving a life sentence. He simply submitted that it was wrong in principle to do so advancing Mr Barnes alternative case. Giving the judgment of the Court [2010] EWCA Crim 246 Maurice Kay LJ rejected this submission. He observed, at paras 8 9: The discretion conferred by the statute was not expressly constrained in a case such as this where there is an existing indeterminate sentence. It was for the judge to decide upon the punishment for these robberies and associated firearms offences, having regard to the provisions of the 2003 Act. Moreover, there is nothing anomalous or unusual about two indeterminate sentences being imposed on different occasions, or even in different forms. Section 34 of the Crime (Sentences) Act 1997 expressly addresses the position of a life prisoner, which expression means, a person serving one or more life sentences. For this purpose, life sentence is defined in section 34(2) as embracing both a sentence of imprisonment for life and a sentence of imprisonment for public protection. Section 34(4) then provides: Where a person has been sentenced to one or more life sentences and to one or more terms of imprisonment, nothing in this Chapter shall require the Secretary of State to release the person in respect of any of the life sentence unless and until the Secretary of State is required to release him in respect of each of the terms. It seems to us that that is a statutory provision designed to ensure that, where more than one indeterminate sentence exists, release is not required until the last of the minimum terms has been completed. Discussion: The Lawfulness Issue It is true that section 34 of the Crime (Sentences) Act 1997 expressly contemplates that two indeterminate sentences may be imposed on a defendant, but that is not, of itself, fatal to Mr Barnes primary submission. Section 34 might simply be addressing the case of a defendant convicted of two murders, each carrying a mandatory life sentence. Mr Jafferjee QC for the Crown referred the court to a number of cases where the Court of Appeal had considered the problems associated with the imposition of a sentence of IPP together with another determinate or indeterminate sentence. The most pertinent was R v Delucca [2010] EWCA Crim 710; [2011] 1 WLR 1148, where Thomas LJ, in giving the judgment of the court, referred to the earlier decision of R v OBrien (Practice Note) [2007] 1 WLR 833. He approved, at para 11, the practice of imposing two concurrent sentences of IPP, one having a longer minimum term than the other. If Mr Barnes primary submission were sound, this practice would not be lawful, for the imposition of the sentence with the longer minimum term would have the effect that the requirement of section 225(1)(b) could not be satisfied in relation to the other sentence. Once again, however, the argument relied upon by Mr Barnes in this court does not appear to have been advanced. Section 225(1)(b) is in the present tense. The sentencing judge is permitted to impose a sentence of IPP if there is a significant risk that members of the public will suffer serious harm as a result of the commission by the defendant of further offences. The construction for which Mr Barnes contends requires the sentencing judge to factor in, when considering the question of risk, the fact that the defendant is and will remain detained in prison for a significant period, regardless of the type of sentence imposed. Plainly the defendant will pose no risk to the public so long as he remains in custody. Mr Barnes submits that the judge must consider whether he will pose a significant risk when he has served his sentence. 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. For those reasons we reject the primary case advanced by Mr Barnes on behalf of the appellant. Discretion It was originally the appellants case that to impose an IPP sentence on a prisoner who was already serving a life sentence would not merely have no benefit, but would have adverse procedural consequences. These would result from a perceived conflict between, or overlap of, the Parole Boards review requirements in respect of a life sentence and in respect of an IPP. Mr Barnes now accepts that there will be no such conflict or overlap as a result of the sentence imposed on the appellant. The procedural position is exactly the same as if the appellant had been given a determinate sentence of 12 years imprisonment. He will have to serve a minimum term of six years and, thereafter, will have to satisfy the Parole Board that he does not pose a risk to the public in order to secure his release from prison. In these circumstances Mr Barnes case on discretion is simply that the IPP sentence achieved no benefit. The result is the same as if a determinate sentence of 12 years had been imposed. There was thus no point in exercising the power to impose a sentence of IPP and, as a matter of good sentencing practice, a determinate sentence should have been imposed. We have some sympathy with this submission. It is not sensible to impose a sentence of IPP in circumstances where it will achieve no benefit. We would not, however, condemn the sentence imposed in this case. Maurice Kay LJ remarked at para 11 of his judgment that a determinate sentence would not contain within its terms the finding of the sentencing judge on the most recent occasion, that the appellant does in fact satisfy the dangerousness provisions of the 2003 Act as at 10 October 2008. The Parole Board had released the appellant on licence having been persuaded that he did not pose a risk of serious harm to the public. The judge cannot be criticised for imposing a sentence that demonstrated that the contrary was the case. For these reasons we would dismiss this appeal.	This appeal concerns the imposition of two types of indeterminate sentences of imprisonment. The first is a sentence of life imprisonment, under which a prisoner is entitled to be considered by the Parole Board for release on licence once he has served a fixed term of imprisonment specified by the sentencing judge. The second is a sentence of imprisonment for public protection (IPP) which a judge can impose on a defendant convicted of a serious offence pursuant to s 225 Criminal Justice Act 2003 (as amended), where he finds that there is a significant risk that the defendant will commit further offences that will cause serious harm to members of the public. Again, the sentencing judge will specify a minimum term to be served before the prisoner will be entitled to be considered by the Parole Board for release on licence. The test applied by the Parole Board is the same in the case of both sentences. It must be satisfied that it is no longer necessary for the protection of the public that the prisoner be confined. Mr Smith has numerous convictions for robbery related offences. On 24 January 2000 he received a mandatory sentence of life imprisonment upon further such convictions, with a minimum term of four years. He satisfied the Parole Board that he should be released on 25 September 2004 but was arrested in 2008 on suspicion of having committed eight armed robberies between 2006 and 2007. His arrest resulted in his recall to prison under his life sentence for breach of his licence conditions. He pleaded guilty to the offences and was sentenced on 10 October 2008 to a sentence of IPP with a minimum term to be served of six years. Mr Smith appealed against the imposition of the sentence of IPP on two alternative grounds. The first was that it was unlawful because the judge could not have been satisfied for the purposes of s 225 that he represented a significant risk to the public, given that he had been recalled to prison under his life sentence and would have to satisfy the requirements of the Parole Board before he could be released. The second was that the judge should not have exercised his discretion under s 225 to impose the sentence of IPP when it would achieve no additional benefit. The Supreme Court unanimously dismisses the appeal. It holds that the imposition of the sentence of IPP on Mr Smith was both lawful and open to the sentencing judge in the exercise of his discretion. Lord Phillips gives the judgment of the court. On the lawfulness issue, the wording of s 225(1)(b) is in the present tense and requires the sentencing judge to impose a sentence of IPP if there is a significant risk of harm to the public. It would place an unrealistic burden on the judge to require him to form a view of the position at the end of the minimum term of imprisonment. It is implicit that the risk must be assessed on the premise that the defendant is at large at the moment the sentence is passed [15]. On the exercise of discretion, although it was not sensible to impose a sentence of IPP in circumstances where it will achieve no benefit, in this case it enabled the sentencing court on the most recent occasion to express its finding that Mr Smith did in fact satisfy the dangerousness provisions of the Criminal Justice Act 2003. Given that the Parole Board had earlier released him on the basis that he did not pose a risk of serious harm to the public, the judge could not be criticised for imposing a sentence that demonstrated that the contrary was the case [19].
This appeal concerns the compatibility with EU law of regulations 21 and 24 of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (EEA Regulations 2006) and the legality at common law of the appellants administrative detention from 3 April until 6 June 2012 and of bail restrictions thereafter until 2 January 2013. The regulations were designed to give effect to the Citizens Directive 2004/58/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states (hereinafter the Directive). The appellant appeals, with permission granted by the Supreme Court, against an order of the Court of Appeal (Moore Bick, Briggs and Christopher Clarke LJJ) of 10 December 2013 [2014] 1 WLR 3313. In a judgment given by Moore Bick LJ, with whom the other members of the court agreed, the Court of Appeal dismissed the appellants appeal against the amended order of Eder J made in the Administrative Court on 24 June 2013. In a judgment handed down on 15 March 2013; [2013] EWHC 567 (Admin), Eder J refused part of the appellants claim for judicial review challenging his administrative detention by the respondent (SSHD). The SSHD sought to justify the appellants detention under regulations 19 and 24 of the EEA Regulations 2006 (as amended), which provide, so far as material, as follows: 19. Exclusion and removal from the United Kingdom (3) Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if (a) to reside under these Regulations; or that person does not have or ceases to have a right (b) the Secretary of State has decided that the persons removal is justified on grounds of public policy, public security or public health in accordance with regulation 21. 24. Person subject to removal (1) If there are reasonable grounds for suspecting that a person is someone who may be removed from the United Kingdom under regulation 19(3)(b), that person may be detained under the authority of an immigration officer pending a decision whether or not to remove the person under that regulation, . (3) Where a decision is taken to remove a person under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provision as to deportation) are to apply accordingly. Regulation 21, which is designed to give effect to articles 27 and 28 of the Directive, is referred to in paras 34 and 35 below. Issues in this appeal In the agreed statement of facts and issues the parties agreed that the appeal raises the following issues. (1) Does the detention power under regulation 24(1) of the EEA Regulations 2006 discriminate without lawful justification against EEA nationals and their family members? (2) Is the power in regulation 24(1) to detain before the making of a decision to deport disproportionate? (3) In particular, does the absence of a time limit render such detention unlawful under EU law? (4) Does regulation 24(1) unlawfully restrict the rights of EEA nationals and their family members by contrast to those enjoyed before the coming into force of the Citizens Directive which the EEA Regulations 2006 purport to implement? (5) Do regulations 21 and 24 of the EEA Regulations 2006 fail accurately to transpose the safeguards of articles 27 and/or 28 of the Citizens Directive? (6) Were the appellants administrative detention from 3 April until 6 June 2012 and the bail restrictions imposed upon him until 2 January 2013 unlawful by reason of the matters raised in questions (1) to (5) above? The facts The facts are not in dispute and can largely be taken from the agreed statement of facts and issues. The appellant is an Algerian national born on 21 August 1968 who arrived in the United Kingdom in March 1996, gaining entry using a false French identity card. On 4 March 1996 he applied for asylum, which was refused. He appealed. On 25 February 1997 he married a French national who was a worker in the UK and on 5 February 1998 he was granted a five year residence permit as the family member of an EEA national. The permit was renewed until 14 April 2004. The appellant and his wife had two children who were born on 30 June 1997 and 23 October 1998 respectively. He withdrew his asylum appeal on 9 February 1999. In or about 2001, the appellants wife became depressed with psychotic symptoms and became involuntarily unemployed. The appellant, who worked as a barber, began abusing alcohol, heroin and crack cocaine. The two children were taken into care. The couple became estranged before the birth of their third child in July 2004. The appellants wife returned to France with the youngest child in late 2005. The two older children were transferred to care in France by an order of the Family Court dated 31 January 2006. The appellant acquired a right of permanent residence in the UK under EU law. Article 16(2) of the Directive establishes a right of permanent residence for family members legally residing with an EEA national in a host member state for a continuous period of five years. That entitlement was transposed in regulation 15(1)(b) of the EEA Regulations 2006. The appellant had fulfilled that condition by 5 February 2003. By the end of January 2012, the appellant had been subject to 28 criminal convictions for 48 offences. His longest custodial sentence was imposed in 2008 when he was sentenced to 23 months imprisonment for three offences of theft, possession of controlled drugs and affray and possession of a bladed article. His other custodial sentences have been imposed for acquisitive offences (theft and handling stolen goods) and offences of personal drug possession, namely possession of a class A drug (crack cocaine) and possession of a Class B drug (cannabis resin). He also received non custodial sentences for motor vehicle offences, failure to surrender to bail, failure to comply with community punishments, being drunk and disorderly and further acquisitive and drug possession offences. A full list of the appellants convictions until and including the index offence (which gave rise to the period of detention under challenge) was agreed between the parties as an addendum to the agreed facts and issues. The list is attached to this judgment. It can be seen that the appellant was guilty of a series of offences. The First tier Tribunal, Immigration and Asylum Chamber (the FtT IAC) subsequently described his offending in this way: 16. We have studied the record of the appellants offences with care. Whatever the future may hold, no one can gainsay the appellants past propensity to re offend. However, the appellants convictions are, almost without exception, for petty opportunistic thefts or possession of drugs. None discloses any violence, nor is it suggested that the appellant has ever dealt in drugs. When sentencing the appellant to 8 months imprisonment on 20 November 2006, the Recorder described the appellant as a pest, a nuisance. He went on to note that the offences were petty thefts and that the appellant to his credit had not sought to use violence or hide anything. The Recorders characterisation of the appellant as a pest was endorsed in the AITs November 2008 determination. 17. We have looked with particular care at the apparently most serious convictions on 15 December 2008, when the offences included affray and possession of a blade in a public place. The appellant was sentenced to 23 months imprisonment, the longest term by a considerable margin. As to the affray, the appellant states that he was drunk at the time of the incident and got into an argument. The sharp object was a razor blade that he carried with him because at the time he was self harming. We note that the psychiatric reports of Professor Kantona to which we return below contain some confirmation of the appellants self harming claim. There remains no evidence that the appellant has ever used violence in the course of his offences, or that he was carrying the blade with any intention of using it on a third party. 18. We do not consider that the offences for which the appellant was convicted on 15 December 2008 or any other of the offences set out in the record are of a gravity such as to alter the overall character of the appellants record of offences as a petty criminal committing mainly theft offences to fund his drug use. On 8 January 2007 the SSHD made the decision to deport the appellant in the light of his convictions to date. He appealed against that decision. On 23 July 2007, the Asylum and Immigration Tribunal (AIT) found that the appellant had established a right of permanent residence in the UK under EU law and allowed the appellants appeal on EU law grounds but applied the incorrect legal test. The matter was remitted and on 3 November 2008 the AIT again found that the appellant had acquired a right of permanent residence in the United Kingdom and again allowed his appeal. It held that the serious grounds of public policy or public security threshold for expulsion of permanent residents in article 28(2) of the Directive and regulation 21(3) of the EEA Regulations 2006 was not met. The SSHD was granted permission by the AIT to appeal to the Court of Appeal but withdrew her appeal by a consent order sealed on 11 April 2012. As the addendum shows, the appellant continued to offend after the AIT allowed his appeal on 3 November 2008. On 25 January 2012, the appellant was convicted of theft for which he was sentenced to a further term of 20 weeks imprisonment, with a release date of 3 April 2012. This conviction gave rise to further deportation proceedings against the appellant and to the administrative detention under challenge in this appeal. While the appellant was serving his custodial sentence, on 27 March 2012 the SSHD issued internally a notice purporting to authorise the appellants detention under Schedule 3 of the Immigration Act 1971. The detention authority stated (it is agreed erroneously) that the SSHD had decided to make a deportation order against the appellant under section 5(1) of the Immigration Act 1971. On 3 April 2012, the appellant completed his criminal custodial term but (as stated above) was administratively detained. On the same date, he was served with three documents from the UK Border Agency. The first document, dated 29 March 2012, was a letter which invited the appellant to make representations as to why he should not be deported and stated that he had 20 working days to respond. The second, dated 3 April 2012, was a notice of Decision to make a Deportation Order under the EEA Regulations 2006. The decision was said to be made on grounds that he would pose a genuine, present and sufficiently serious threat to the interests of public policy if he were allowed to remain in the United Kingdom but gave no other reasons. The third document was a letter dated 29 March 2012 which informed the appellant that he was being detained under Schedule 3 of the Immigration Act 1971 pending his removal. The reasons for detention letter made no reference to the Directive or the EEA Regulations 2006. On 12 April 2012 the appellants solicitors sent a pre action protocol letter stating that the decision to deport was procedurally unfair since it had been made before the appellant had time to make representations and was in breach of the mandatory safeguards contained in regulation 21(6) of the EEA Regulations, which required the SSHD to take specific considerations into account before making a relevant decision. The letter also drew the SSHDs attention to the earlier findings of the AIT that the appellants deportation would be in breach of EU law. A reply on behalf of the SSHD dated 13 April 2012 said that the SSHD considered that the appellant posed a risk of harm to the general public and that his deportation was proportionate and justified. On 20 April 2012, the SSHD provided reasons for deportation which acknowledged that the appellant had acquired a right of permanent residence in the UK and could only be deported on serious grounds of public policy or public security but asserted that this threshold was met. The letter set out an account of the appellants offending and an assessment of the threat posed by him. On 11 May 2012, in her acknowledgment of service in these proceedings the SSHD withdrew her decision to deport the appellant dated 3 April 2012 and stated that she would notify the [appellant] of any decision to deport following consideration of any representations received. The letter further said that the [appellant]s extensive criminal convictions give the SSHD reasonable grounds for believing that he may be someone who may be removed from the United Kingdom under regulation 19(3) so that in her view the appellants detention remained lawful. There have been two relevant periods when the appellant was on bail. The appellant was first granted bail on 31 May 2012 by the FtT IAC subject to a reporting restriction and an electronic curfew and was released from detention on 6 June 2012. It was subsequently conceded by the SSHD in these proceedings that the appellants detention from 3 April 2012 until 6 September 2012 was to be regarded as pursuant to regulation 24(1) of the EEA Regulations 2006, since there had been no valid decision to deport him in that period. As to the second period of bail, on 7 September 2012 the SSHD issued a further decision to deport him under the EEA Regulations 2006. That decision was accompanied by reasons and referred to the factors listed in regulation 21(6) of the EEA Regulations 2006 (quoted below). The SSHD again acknowledged that the appellant had acquired a right of permanent residence in the UK. The appellants appeal against the decision of 7 September 2012 was allowed by the IAT in a determination promulgated on 2 January 2013 on the ground that, as a permanent resident, his deportation would breach EU law since the threshold for the expulsion of a permanent resident was not met. The SSHD did not seek to challenge that decision. These proceedings On 27 April 2012 the appellant issued the claim for judicial review which gives rise to this appeal. On 16 May 2012, the appellant was granted limited permission on the papers to apply for judicial review by James Dingemans QC, sitting as a Deputy High Court Judge. The appellant sought permission to enlarge his grounds and the matter was dealt with at a rolled up hearing before Eder J (the judge) on 6 and 7 March 2013. He recorded two concessions made on behalf of the SSHD. The first was that the decision to deport the appellant dated 3 April 2012 was to be regarded as null and void ab initio at least so far as it constituted a decision or notice to remove or deport. It followed that it was common ground that the appellant was in effect to be regarded as having been detained from 3 April 2012, not pursuant to regulation 24(3) of the EEA Regulations 2006 but rather pursuant to regulation 24(1). The second related to the second period of bail after the second decision to deport, which was on 7 September 2012. The judge said at para 15 of his judgment that, at least until 2 January 2013, the appellant was to be regarded as detained on bail under regulation 24(3). I note in passing that it is not accepted on behalf of the SSHD that the expression detained on bail was used on her behalf. It was also accepted by the appellants then counsel that he could not, and did not, challenge the detention decisions on grounds of Wednesbury unreasonableness or irrationality: see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223. Nor did the appellants counsel below seek to argue that the Secretary of State had acted contrary to the principle of proportionality. Moreover, it was agreed at the hearing before the judge that questions concerning the lawfulness of any remaining restrictions on the appellants liberty after 2 January 2013 should be adjourned with liberty to apply. For present purposes the issues are accordingly limited to the detention of the appellant for about two months from 3 April to 6 June 2012 and the restraint upon his liberty while on bail for just under seven months until 2 January 2013. As stated above, the application for judicial review failed before the judge and the Court of Appeal dismissed his appeal. One of the ironies of this appeal is that the Court of Appeal dismissed some of the appellants submissions on the basis that they had not been raised at first instance, whereas the appellant, who has the benefit of fresh counsel, now raises a number of issues which were not before the Court of Appeal. However, he does so without objection on behalf of the SSHD. The court will accordingly consider the particular questions raised by the parties and set out in para 4 above. Before doing so, it is appropriate to set out the relevant legal framework. A striking feature of the appellants case is that it does not for the most part focus on his particular circumstances. It is put at the highest level of abstraction. The appellant contends that the impugned legislation is invalid and must be disapplied in each and every case and in all circumstances. The critical provisions are regulation 24(1) and (3) of the EEA Regulations 2006, which must of course be construed in their context. The legal framework The legal framework is not in dispute. There are UK immigration controls relating to (a) entry, (b) restrictions on removal and (c) detention, although this appeal is directly concerned only with detention. At each point there are important differences between the rules which apply to those exercising rights of free movement derived from laws applying to the European Economic Area, which I will call EU law rights, namely EEA nationals and their family members, and those who are not exercising such rights. As to controls on entry, for a non British citizen not exercising EU law rights, the regime which confers leave to enter and remain in the United Kingdom is governed by the Immigration Act 1971. By section 3(1) of that Act, people who are not British citizens and do not fall within defined exceptions are not permitted to enter the UK other than with specific permission, or leave, to do so. Leave to remain may be granted for either indefinite or limited periods and may be subject to conditions, such as (amongst other things) restrictions on employment. These rules are subject to specific exceptions, although the general position is that a form of permission is required to enter and remain in the UK. Those who require leave to enter or remain in the UK are subject to immigration control. The process of the granting of leave to enter or remain to those subject to immigration control involves consideration of whether the presence of the individual in question would be conducive to the public good. Those with previous criminal convictions, or in relation to whom there are other grounds to conclude that their presence will not be conducive to the public good, may be subject to immigration controls preventing their entry. By contrast, those exercising EU law rights are not subject to the above regime. They enjoy extensive additional rights, no doubt as a means of promoting the internal market, including the market for labour, as given effect in UK law. By section 7(1) of the Immigration Act 1988, people with directly effective EU rights to enter or remain in the UK, or who enjoy such rights by virtue of any provision made under section 2(2) of the European Communities Act 1972, do not require leave to enter or remain. Critical to the construction of the EEA Regulations 2006, including of course regulation 24(1), is the true meaning and effect of the Directive, which consolidates and extends the rights granted by pre existing secondary legislation and reflects established CJEU case law. Further, it applies to all of the countries in the EEA. It appears to me that the recitals are of some assistance. Moore Bick LJ drew attention (at para 6) to the following recitals: Whereas (1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the member states . (2) The free movement of persons constitutes one of the fundamental freedoms of the internal market . (5) The right of all Union citizens to move and reside freely within the territory of the member states should, . be also granted to their family members, irrespective of nationality . (20) In accordance with the prohibition of discrimination on grounds of nationality, all Union citizens and their family members residing in a member state on the basis of this Directive should enjoy, in that member state, equal treatment with nationals in areas covered by the Treaty . Article 1 explains that the Directive lays down the conditions governing the exercise of the right of free movement and residence by Union citizens and their family members, the right of permanent residence and the limits placed on the rights set out above, on grounds of public policy, public security or public health. Article 2 defines Union citizen as any person having the nationality of a member state, and defines family member to include a spouse. Article 3 makes clear that the beneficiaries of the Directive are Union citizens who move to or reside in a member state other than that of which they are a national, and to their family members. Accordingly, it does not apply to a wholly internal situation, which arises where an EU national has not moved between member states. The class of persons who are able to exercise EU law rights extends not only to nationals of EEA member states who exercise rights of free movement, but also to certain third country family members who are nationals of non EEA states. The residence rights conferred by EU law on third country family members are nevertheless personal rights. Article 13 of the Directive makes clear that rights of residence of a spouse may survive divorce in certain circumstances. In short, so far as leave to enter and remain are concerned, those exercising EU rights have much greater rights than those not exercising such rights but are subject to immigration control. The same is true so far as restrictions on removal and deportation are concerned. For example, a person subject to immigration control who has leave to remain may be liable to deportation or removal under a number of statutory provisions, namely sections 3(5)(a), 3(5)(b) and 3(6) of the Immigration Act 1971 and section 32 of the UK Borders Act 2007. There are differences between deportation and removal but it is not necessary to discuss those differences here. A person who is not a British citizen (and not exercising EU law rights) is liable to deportation under the Immigration Act 1971 where (a) the SSHD determines that his or her deportation is conducive to the public good: section 3(5)(a); or (b) another person to whose family he belongs is or has been ordered to be deported: section 3(5)(b); or (c) after attaining the age of 17 he has been convicted of an offence punishable by imprisonment and on his conviction the judge recommended deportation: section 3(6). The power to make deportation orders is contained in section 5 of the 1971 Act. In addition to those powers of deportation, the UK Borders Act 2007 introduced automatic deportation for certain foreign criminals. Section 32(5) of that Act provides that the Secretary of State must make a deportation order in respect of a foreign criminal. The regime of automatic deportation is, however, subject to certain exceptions set out in section 33 of the 2007 Act including, inter alia, where removal of the foreign criminal would breach that persons rights under EU Treaties (section 33(4)) and where deportation would breach a persons Convention rights or the UKs obligations under the Refugee Convention (section 33(2)). Detention pending a decision whether or not to deport I turn to detention pending a decision whether or not to deport. In summary, it is a familiar feature of the system of immigration controls that the power of detention can be used in a variety of situations prior to the making of a decision to deport or remove. These include the following: (1) the 1971 Act, Schedule 2, paragraph 16(2), where there are reasonable grounds to suspect a person is someone in respect of whom removal directions may be given, including inter alia under section 10 of the Immigration and Asylum Act 1999; (2) the 1971 Act, Schedule 3, paragraph 2, pending the making of a deportation order following a court recommendation; (3) under the 2007 Act, detention pending a decision as to whether a person is liable to automatic removal; and (4) under regulation 24(1) of the EEA Regulations 2006. It is correctly accepted on behalf of the SSHD that, in contrast to the position described above, those exercising EU rights do not require leave to enter or remain and have the benefit of powerful protections against their expulsion from the UK. The ability of member states to restrict the Treaty rights described above is limited by Chapter VI of the Directive, which is entitled RESTRICTIONS ON THE RIGHT OF ENTRY AND THE RIGHT OF RESIDENCE ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH and comprises articles 27 to 33. For present purposes articles 27 and 28 are of particular significance and provide, so far as relevant, as follows: Article 27 General principles 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 Protection against expulsion 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. It is clear that EEA residents who fall within the scope of the Directive enjoy powerful rights of residence far beyond those afforded by domestic law. As appears above, the Directive applies three different escalating threshold tests for restriction on rights of free movement as follows. In the case of a person such as the appellant with the right of permanent residence, an expulsion decision must be based on serious grounds of public policy or public security: article 28(2). Article 24, which is entitled Equal Treatment, provides so far as relevant: 1. all Union citizens residing on the basis of this Directive in the territory of the host member state shall enjoy equal treatment with the nationals of that member state within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a member state and who have the right of residence or permanent residence. As already noted the Directive has been implemented into domestic law by the EEA Regulations 2006. The Regulations extend to the EEA rather than just the EU because the Directive applies throughout the EEA. They include the following. Regulation 2 contains definitions, including the definition of EEA decision as meaning a decision under these Regulations that concerns (a) a persons entitlement to be admitted to the United Kingdom (c) a persons removal from the United Kingdom. Regulation 7(1)(a) provides that a spouse or his civil partner shall be treated as a family member. Regulations 11 to 15B provide for rights of admission and residence which implement the relevant provisions of the Directive. As noted in para 3 above, regulation 19(3)(b) provides for the removal of an EEA national or the family member of an EEA national where the Secretary of State has decided that the persons removal is justified on grounds of public policy, public security or public health in accordance with regulation 21. Regulation 21 is designed to give effect to articles 27 and 28 of the Directive. It applies to relevant decisions, meaning an EEA decision taken on the grounds of public policy, public security or public health. It provides that such a decision to remove inter alia (2) may not be taken to serve economic ends, and (3) may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security. Regulations 21(5) and (6) provide: (5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles the decision must be based exclusively on the the decision must comply with the principle of (a) proportionality; (b) personal conduct of the person concerned; (c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society; (d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision; (e) in themselves justify the decision. a persons previous criminal convictions do not (6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the persons length of residence in the United Kingdom, the persons social and cultural integration into the United Kingdom and the extent of the persons links with his country of origin. In summary, an EEA national who has entered the United Kingdom or the family member of such a national, exercising free movement rights, may be removed if certain limited circumstances apply, and under circumscribed conditions. Broadly, removal may only occur where: (1) There are grounds of public policy, public security or public health: article 27(1) of the Directive and regulation 19(3)(b). In the case of a person with a permanent right to reside under regulation 15, there must be serious grounds of public policy or public security: article 28(2) and regulation 21(3). If the EEA national has resided in the United Kingdom for a continuous period of at least ten years there must be imperative grounds of public security: article 28(3)(a) and regulation 21(4)(a). For an EEA national under 18 there must be imperative grounds of public security and expulsion must be necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child: article 28(3)(b) and regulation 21(4)(b). (2) But a decision to remove taken on public policy or public security grounds must also be a proportionate response and taken exclusively on the basis of the individuals personal conduct, which must itself represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. It cannot be based on matters isolated from the case, considerations of general prevention or prior convictions (see, generally, article 27(2) and regulation 21(5)(a e)). (3) Decisions on grounds of public policy or public security further require consideration of a set of specific factors, including age, state of health, family and economic situation, length of residence and social and cultural integration in the UK and links to the country of origin: article 28 and regulation 21(6). It is to be noted that, as originally drafted, regulation 24(1) referred to regulation 19(3) without the restriction to paragraph (b) of that provision. The regulation was amended with effect from 16 July 2012 to its present form which refers only to cases in which regulation 19(3)(b) is satisfied. Although that change took place during the period of detention with which the appeal is concerned, it is not suggested that it is material to any of the issues in the appeal. Discussion of issues The agreed issues are set out at para 4 above. Although there is considerable overlap between some of them, it seems to me to be sensible to consider them separately. (1) Does the detention power under regulation 24(1) discriminate without lawful justification against EEA nationals and their family members? Before the Court of Appeal it was argued that this question should be answered in the affirmative on the basis that the power under regulation 24(1) to detain is contrary to article 18 of the TFEU, which provides: Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. Reliance is placed upon a statement by CWA Timmermans in Kapteyn Verloren Van Themaat, The Law of the European Union and European Communities, Kluwer Law International, 4th ed (2008), para 6.5.1 at p 158, where he described article 18 as The most fundamental expression of the principle of equality in relation to the functioning of the Common Market. Both the judge and the Court of Appeal rejected this submission. The Court of Appeal put it thus in para 28: Equality of treatment among EU nationals is one of the cornerstones of the European Union but [article 18 TFEU] is not concerned with the way in which member states treat nationals of other countries who reside within their territories, provided that they do not undermine the laws of the Union. Consistently with the purpose of the Treaty, which is to establish the fundamental legal architecture of the Union, article 18 TFEU is concerned only with the way in which citizens of the Union are treated in member states other than those of which they are themselves nationals. The argument therefore falls down at the first hurdle. It was correctly conceded on behalf of the appellant that the Court of Appeal was right to hold that article 18 is concerned only with the way in which citizens of the Union are treated in member states other than those of which they are nationals. This can be seen in the decision of the CJEU in Vatsouras and Koupstantze v Arbeitsgemeinschaft (AGRE) Nrnberg (Joined Cases C 22/08 and C 23/08) [2009] ECR I 4585, where two Greek nationals complained that they were not permitted access to certain social assistance benefits which were granted to illegal immigrants. The CJEU explained that the referring Court was essentially asking whether article 12 EC [now article 18 TFEU] precluded national rules which excluded nationals of member states from receipt of social assistance benefits in cases where those benefits were granted to nationals of non member states. The court rejected the complaint in these terms: 52. [Article 18 TFEU] concerns situations coming within the scope of Community law in which a national of one member state suffers discriminatory treatment in relation to nationals of another member state solely on the basis of his nationality and is not intended to apply to cases of a possible difference in treatment between nationals of member states and nationals of non member countries. 53. The answer to the third question, therefore, must be that [article 18 TFEU] does not preclude national rules which exclude nationals of member states of the European Union from receipt of social assistance benefits which are granted to nationals of non member countries. As observed in argument on behalf of the SSHD, in Vatsouras, Advocate General Ruiz Jarabo Colomer formulated the same point at a higher level of abstraction: 66. In relation to the third question, Community law does not provide rules for resolving issues of difference in treatment between Community citizens and citizens of non member countries who are subject to the law of the host member state. [article 18 TFEU] seeks to eliminate discrimination between Community citizens and nationals of the host member state but does not offer guidelines for eliminating the discrimination complained of by the referring court. In so far as it was suggested that Vatsouras can be confined to its own facts and to consideration of articles 12 and 39 EC and article 24 of the Directive, and did not purport to set out general principles of equality under article 18 TFEU, it is my opinion, in agreement with the judge and the Court of Appeal, that Vatsouras was indeed setting out general principles. Further, in Martinez Sala v Freistaat Bayern (Case C 85/96) [1998] ECR I 2691, para 62, the CJEU said: Article 8(2) of the Treaty [now article 20(2) TFEU] attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right, laid down in article 6 of the Treaty [now article 18 TFEU], not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty. Finally, in Edward and Lane on European Union Law (2013), para 8.02, Professor Sir David Edward QC, former UK judge at the European Court of Justice, writing extra judicially, observed: Discrimination against third country nationals is not prohibited. It is presumed, and indeed expected, that they will be treated differently. Such discrimination is simply a function of the limited scope of the EU legal order. It is not legitimate to draw a comparison between those exercising EU rights and other third country nationals for the purposes of EU discrimination law. Thus, in R (Bhavyesh) v Secretary of State for the Home Department [2012] EWHC 2789 (Admin) Blake J held at para 27 that members of such a class are the beneficiaries of a special legal regime, in a different position from either aliens or generally, or British citizens who fall altogether outside the scope of EU law. They are thus incapable of being a comparator class, or a group who are analogously situated with the claimants. It is submitted on behalf of the SSHD that this analysis is fatal to the appellants discrimination case. I agree. It follows to my mind that the other points made on behalf of the appellant under this head do not assist his case. They all fall foul of the principle in Vatsouras that those concerned are subject to a different legal order. It may be noted that the European Court of Human Rights has approached the problem in a similar way. In Moustaquim v Belgium (1991) 13 EHRR 802 the claimant was a Moroccan national who had resided in Belgium for most of his life. On committing criminal offences the Belgian government decided to deport him to Morocco. He claimed that he was the victim of discrimination on grounds of nationality (contrary to article 14 taken together with article 8 ECHR) because two categories of persons could not be deported in the same circumstances: those with Belgian nationality and those who were citizens of another member state of the European Community. The ECtHR rejected this challenge. Paragraph 49 included the following: the court would reiterate that article 14 safeguards individuals placed in similar situations from any discriminatory differences of treatment in the enjoyment of the rights and freedoms recognised in the Convention. In the instant case the applicant cannot be compared to Belgian juvenile delinquents. The latter have a right of abode in their own country and cannot be expelled from it As for the preferential treatment given to nationals of the other member states of the Communities, there is objective and reasonable justification for it as Belgium belongs, together with those states, to a special legal order. See also, to the same effect, Ponomaryov v Bulgaria (2011) 59 EHRR 20, where the applicants complained they were required to pay school fees as a result of their Kazakh nationality and immigration status. At para 54 the ECtHR said: [A state] may also, in certain circumstances, justifiably differentiate between different categories of aliens residing in its territory. For instance, the preferential treatment of nationals of member states of the European Union some of whom were exempted from school fees when Bulgaria acceded to the Union may be said to be based on an objective and reasonable justification because the Union forms a special legal order, which has, moreover, established its own citizenship. Here too the ECtHR regarded such differences as objectively justified by the existence of a special legal order rather than treating such a comparator as impermissible. It was submitted on behalf of the SSHD that it is artificial to isolate regulation 24(1) and complain as to the lack of precisely analogous powers under the non EEA regime. That submission was accepted by both the judge and the Court of Appeal. The judge held at para 52 that whilst there was no power to detain pending a decision to remove/deport this does not necessarily mean that there is any relevant disadvantage to EEA nationals or their family members. He noted that EEA nationals and their families benefit from extended rights which non EEA nationals do not benefit from and that there is a lower threshold test for deportation conducive to the public good which applies to non EEA nationals. He said at paras 53 and 54: 53. As to the former a non British citizen is liable to deportation if the SSHD deems his deportation to be conducive to the public good. In my judgment this is indeed a lower threshold test than that which exists with regard to the power of the SSHD to remove pursuant to regulation 19(3)(b). In particular, the latter is limited to the grounds of public policy, public security or public health in accordance with Regulation 21. Again, [the appellants] comparison exercise ignores this additional important aspect and for that reason as well is, in my judgment, fundamentally flawed. 54. Given these differences I do not consider that there is any proper basis for comparing the different circumstances which exist to deport/remove under each applicable regime. As to this part of the appellants argument, Moore Bick LJ said at the end of para 28 that article 18 TFEU is not concerned with the way in which member states treat nationals of other countries who reside in their territories. He added at para 29: 29. However, the difficulties do not end there. In seeking to compare the position of EEA nationals with that of nationals of other countries [the appellant] sought to focus exclusively on the Secretary of States power of detention, but that is to view the matter too narrowly. As the judge pointed out, the provision for detention in each case forms part of a wider regime dealing with removal. Unlike nationals of other countries, nationals of the EEA are entitled to reside in this country and enjoy the protection from removal afforded by the Treaty and the Directive. They are subject to a different legal regime which cannot be directly compared to that which applies to other foreign nationals, who can be deported if the Secretary of State deems their removal to be conducive to the public good: see section 3(5)(a) of the 1971 Act. For both these reasons I agree with the judge that [the appellants] argument is fundamentally flawed and that there is no substance in this ground of appeal. I agree with the reasoning of both the judge and Moore Bick LJ. In this court Mr Saini QC for the appellant has put his case rather differently. He argues that two forms of discrimination arise which require justification, and to which the Vatsouras principle has no application. The first is discrimination between EU nationals or their spouses and third country nationals, on grounds of their status as beneficiaries of the Directive, contrary to article 21(1) of the EU Charter of Fundamental Rights. The second is discrimination on grounds of nationality, contrary to article 18 TFEU, between British nationals and EU nationals, both of whom have third country spouses. The first argument in my view adds nothing to the discussion under TFEU article 18. Article 21 of the Charter cannot be relied on to extend the rights otherwise provided under European law. As the CJEU said in NS v Secretary of State (Case C 411/10) at para 119: the Charter reaffirms the rights, freedoms, and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles. Furthermore, as has been seen above, article 24(1) contains a specific application of the principle of non discrimination on grounds of nationality contained in article 18 TFEU. It makes clear that the relevant comparators for the purposes of the Directive are the nationals of the host member state but does not include and is not concerned with discrimination as regards third country nationals who fall entirely outside the scope of EU law. The second argument appears to be new. The following comparison is relied on: i) A French woman exercising Treaty rights in the UK is married to an Algerian man. Her husband is sentenced to less than 12 months imprisonment for a criminal offence. Her husband is liable to be detained under regulation 24(1). ii) A British woman resident in the UK is married to an Algerian man. Her husband is sentenced to less than 12 months imprisonment for a criminal offence. Her husband is not liable to be detained before a decision to deport. At first sight this comparison does not appear to assist an argument that the appellant has been discriminated against in the enjoyment of his EEA law rights. In each limb of the comparator the situation of the third country national is the same. The argument is that the spouse of the third country national has been the subject of discrimination. But here the appellants wife has not brought a claim and is not before the court. As stated in para 5 above, she returned to France in late 2005 with her third child and the two older children joined her in 2006. So the couple have been separated for ten years. There is nothing to suggest that she has suffered any discrimination because of the appellants detention. However, Mr Saini submits that, contrary to the requirement to treat an EU national equally to a British national, the French wife exercising Treaty rights has been adversely affected. Her husband was liable to be detained, whereas the British wifes husband was not. When considering whether regulation 24(1) is discriminatory, it is legitimate to consider the EU spouse, regardless of whether she has brought a claim herself. This is because any adverse effects on third country spouses interfere with the EU nationals own free movement rights. Mr Saini supports his argument by reference to the decision of the CJEU in R v Immigration Appeal Tribunal, Ex p Secretary of State for the Home Department (Case C 370/90) [1992] 3 All ER 798. Mr Singh was the Indian husband of a British woman. They had married in the UK in 1982, and lived in Germany from 1983 1985 where they were employed. They returned to the UK to open a business in 1985. A decree nisi of divorce was pronounced in 1987. Mr Singh remained in the UK without leave from 1988. A deportation order was made against Mr Singh, which he appealed, asserting a Community law right to reside in the UK. The decree absolute was pronounced in 1989. The court held that the fact that the marriage was dissolved by the decree absolute was irrelevant to the issue raised by the question before the court which concerned the basis of his right of residence in the period before the decree (para 12). Mr Saini relies in particular on the following passage of the judgment, at para 19: A national of a member state might be deterred from leaving his country of origin in order to pursue an activity as an employed or self employed person as envisaged by the Treaty in the territory of another member state if, on returning to the member state of which he is a national in order to pursue an activity there as an employed or self employed person, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another member state. The court rejected the submission that her rights turned on domestic law. The case was concerned with free movement under Community law. As the court said, at para 23: These rights cannot be fully effective if such a person may be deterred from exercising them by obstacles raised in his or her country of origin to the entry and residence of his or her spouse. Thus, submits Mr Saini, Mr Singh was able to rely on the fact that the free movement rights of his EEA spouse might be affected hypothetically by restrictions placed on his own movements, and to continue to do so even after any connection had ceased. It is unfortunate that this authority, described by Mr Saini as seminal, was not referred to in the courts below or even in his own 50 page case for this appeal. It seems to have emerged for the first time in a note accompanying a set of supplementary authorities submitted shortly before the hearing. For this reason, no doubt, it was not addressed in the respondents case, or in any detail in oral argument. Had it been necessary to reach a conclusion on the scope and implications of that decision, the court might have required further submissions including submissions on the possibility of a reference. However, I am satisfied that the decision has no direct bearing on this case. In the first place, the court made clear that its reasoning was addressed to Mr Singhs position before the divorce was finalised. It seems doubtful that it was intended to apply to a case where, as here, any practical link between the spouses came to an end eight years before the relevant actions of the Secretary of State. Any effect on the rights of Mr Nouazlis spouse would surely be truly hypothetical because she was unlikely ever to exercise her rights and thus unlikely ever to be deterred from exercising them. It is important in any event to bear in mind that we are concerned not with the removal of the appellant, but merely with his temporary detention or subjection to bail conditions for a few months, first pending a decision by the Secretary of State, and then pending his successful appeal. Whether in other circumstances any relevant discrimination might arise as a result of mere detention pending a decision to remove will also be a fact sensitive matter. It cannot be a reason for holding, as Mr Saini would submit, that regulation 24(1) is invalid in each and every case. At most, such a claim could justify the disapplication of the offending measure in a particular case. On the facts of the present case I can see no conceivable basis for holding that any actual or hypothetical rights of the appellants former spouse have been affected by the appellants detention for a few months in 2012, still less by the imposition of bail conditions. In the light of these conclusions it is not necessary to consider whether regulation 24(1) can be objectively justified. I would answer the question raised by issue (1) in para 4 above, by holding that regulation 24(1) does not discriminate without lawful justification against EEA nationals and their family members. Is the power in regulation 24(1) before making a decision to deport (2) disproportionate? So far as I am aware it is not in dispute that regulation 24(1) must be applied proportionately. In these circumstances, so long as it is so applied, I do not see how it can be said that the regulation is itself disproportionate. It is not said in this appeal that it was applied disproportionately on the facts. This question must therefore be answered in the negative, subject to the answer to question (3). In particular, does the absence of a time limit render such detention (3) unlawful under EU law? It is submitted on behalf of the appellant that this question should be answered in the affirmative. In particular it is submitted that it is inconsistent with the general EU law provisions of legal certainty and proportionality to permit executive detention of those exercising free movement rights when such incarceration is subject neither to specified time limits nor to initial or further mandatory judicial oversight. It is submitted that the ECtHR has found mandatory detention time limits to be a necessary component of the quality of law for the purposes of justifying deprivation of liberty under article 5(1)(f) ECHR, which provides: 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: the lawful arrest or detention of a person to (f) prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. The SSHD relies upon the well known principles originally propounded by Woolf J in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704. In R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, Dyson LJ noted at para 46 that the principles were approved by Lord Browne Wilkinson in the House of Lords in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97, 111A D. Dyson LJ identified the following four principles as emerging from Hardial Singh: (i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) The deportee may only be detained for a period that is reasonable in all the circumstances; (iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; (iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal. In R (WL (Congo)) v Secretary of State for the Home Department [2012] 1 AC 245, para 171, those principles were was endorsed by Lord Hope of Craighead, for the majority. Those principles have been applied by the courts on many occasions. I would accept the submission made on behalf of the SSHD that they were intended to impose limitations on the powers of immigration detention: R (Francis) v Secretary of State for the Home Department [2015] 1 WLR 567, para 45. The principles have been applied to the following: mandatory detention pending deportation: Francis; detention pending administrative removal: R (FM) v Secretary of State for the Home Department [2011] EWCA Civ 807, para 25; detention pending examination of immigration status: R (Saadi) v Secretary of State for the Home Department [2002] 1 WLR 3131, para 26; and detention pending a decision on whether one of the exceptions to automatic deportation applies: R (Rashid Hussein) v Secretary of State for the Home Department [2009] EWHC 2492 (Admin), para 44 and R (Saleh (Sudan)) v Secretary of State for the Home Department [2013] EWCA Civ 1378, para 16. It is clear that the approach taken in Hardial Singh requires both the SSHD and the courts to take a fact sensitive approach to the length of detention. Thus in Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931, paras 37 41, Lord Thomas CJ deprecated the use of tariffs or yardsticks. He said between paras 37 and 41: 37. The Secretary of State acting through his officials has to determine whether the period of detention is reasonable when deciding whether or not to continue the detention, subject to the right of any detainee to apply for bail. It is a judgment which has to be made on the evidence and in the circumstances as appear to the officials in each case. 38. There is no period of time which is considered long or short. There is no fixed period where particular factors may require special reasons to make continued detention reasonable. 39. McFarlane LJ said in R (JS) Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 1378 at 50 51 that fixing a temporal yardstick might cause the courts to accept periods of detention that could not be justified on the facts of a particular cases. In R (NAB) v Secretary of State for the Home Department [2010] EWHC 3137 (Admin) Irwin J made clear at paras 77 80 that a tariff would be repugnant and wrong 41. Each deprivation of liberty pending deportation requires proper scrutiny of all the facts by the Secretary of State in accordance with the Hardial Singh principles. Those principles are the sole guidelines. The courts have recognised that there are sound policy reasons for a flexible and fact sensitive approach. I find nothing in the judgments of the ECtHR which undermines the Hardial Singh approach to the duration of detention. In this regard our attention was drawn to R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299, para 94, where Lord Kerr observed that Hardial Singh principles are more favourable to detainees than Strasbourg requires. We were also referred to the leading case of Chahal v United Kingdom (1996) 23 EHRR 413, where the Grand Chamber considered a lengthy period of detention prior to deportation. The court said at para 113: any deprivation of liberty under article 5 para (1)(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with reasonable diligence, the detention will cease to be permissible under article 5 para (1)(f). As counsel observed on behalf of the SSHD, that is evidently a fact sensitive question, just as it is in English law. The court in Chahal held that article 5(1)(f) was satisfied on the facts. It did not suggest that the lack of a specified time limit rendered the detention unlawful. The Grand Chamber revisited Chahal in Saadi v United Kingdom (2008) 47 EHRR 17 and made an explicit link between the notion of arbitrariness and the duration of detention (para 74): To avoid being branded as arbitrary the length of the detention should not exceed that reasonably required for the purpose pursued. In R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299, para 76, Baroness Hale described this as an endorsement of Hardial Singh principles, and noted that the ECtHR had not yet imposed a requirement for regular reviews. There is no suggestion in the Strasbourg judgment that a firm time limit is required. I would accept the submission that the principles set out in Chahal and Saadi contain a specific application of the relevant rules in the context of the legality of detention. Nothing in the broad dicta in the CJEU cases referred to on behalf of the appellant demonstrates a narrower approach in EU law. Hardial Singh was considered by the ECtHR in Tabassum v United Kingdom (Application No 2134/10) decision on admissibility, 24 January 2012), where the applicant complained of unlawful detention pending deportation. The ECtHR expressly considered the formulation of the Hardial Singh principles in R (WL (Congo)) and concluded at para 23 that the applicants period of detention did not exceed what was reasonable in all the circumstances of the case and was not arbitrary. None of the cases cited on behalf of the appellant in his case to support his contention that mandatory time limits are a necessary component of the quality of law. They all turn on very different facts. See, for example Ismoilov v Russia (2008) 49 EHRR 42 and Muminov v Russia (2008) 52 EHRR 23. In Ismoilov the ECtHR criticised the Russian system under review and concluded at para 140 that: in the absence of clear legal provisions establishing the procedure for ordering and extending detention with a view to extradition and setting up time limits for such detention, the deprivation of liberty to which the applicants were subjected was not circumscribed by adequate safeguards against arbitrariness. There is nothing to suggest time limits are a general requirement of article 5(1)(f). This is not to say that the absence of time limits is not a relevant factor in deciding in a particular case. This is shown in a number of cases to which we were referred. See, for example six cases against Turkey, namely Abdolkhani and Karimnia v Turkey (Application No 30471/08) (unreported) given 22 September 2009, para 135, applied in ZNS v Turkey (Application No 21896/08) (unreported) given 19 January 2010, para 56; Tehrani v Turkey (Application Nos 32940/08, 41626/08 and 43616/08) (unreported) given 13 April 2010, para 70; Charahili v Turkey (Application No 46605/07) (unreported) given 13 April 2010, para 66; Alipour and Hosseinzadgan v Turkey (Application Nos 6909/08, 12792/08 and 28960/08) (unreported) given 13 July 2010, para 57; and Dbouba v Turkey (Application No 15916/09) (unreported) given 13 July 2010, para 50. In those cases the ECtHR treated the absence of a time limit as a relevant factor in reaching the same conclusion as in Ismoilov quoted in para 71 above, in almost identical terms. In Abdolkhani, at para 135, the ECtHR said, in the context of detention pending deportation concluded: In sum, in the absence of clear legal provisions establishing the procedure for ordering and extending detention with a view to deportation and setting time limits for such detention, the deprivation of liberty to which the applicants were subjected was not circumscribed by adequate safeguards against arbitrariness. See also Mathloom v Greece (Application No 48883/07) (unreported) given 24 April 2012 and Massoud v Malta (Application No 24340/08) (unreported) given 27 July 2010 to much the same effect. Again, the absence of a time limit was treated as a relevant factor but no more. In each case the ECtHR focused on the importance of having a procedure capable of avoiding the risk of arbitrary detention. In my judgment in the instant case there is in place a clear statutory framework which involves appropriate judicial scrutiny and the consideration of the guidelines referred to above. In short, each case depends upon its particular facts. I would endorse the approach identified by Lord Thomas CJ and quoted in para 66 above: Each deprivation of liberty pending deportation requires proper scrutiny of all the facts by the SSHD in accordance with the Hardial Singh principles. Those principles are the sole guidelines. Nor can I accept the five reasons given on behalf of the appellant as to why the Hardial Singh approach is unlawful. They are these. First, it is said that this approach fails to address the fundamental legality test of reasonable foreseeability. For my part, I would reject the argument based on reasonable foreseeability. As explained above, the principles in Chahal are an application of the legality principle in the context of the legality of detention. Secondly, it is said that Hardial Singh is not satisfied because detention under regulation 24(1) does not comply with the requirement that detention must be for the purpose of facilitating the deportation. As I see it, facilitating the deportation is precisely the purpose of regulation 24(1) detention, even if no final decision has been made. Thirdly, it is said that the principles in Hardial Singh only apply ex post facto. In my view that is wrong. What is required is proper scrutiny of all the facts: see paras 64 and 70 above. The court is able to ensure that Hardial Singh is adhered to, but the primary responsibility to comply lies with the SSHD. The courts provide supervision of the application of these criteria and in practice, challenges are brought to secure release, not just damages after the event. Fourthly, it is said that a lack of legal certainty may amount to a restriction on free movement. The authority cited for this proposition is a tax case, namely Safir v Skattemyndigheten i Dalarnas Ln (Case C 118/96) [1999] QB 451, which was not concerned with detention. I would accept the submission made on behalf of the SSHD that it gives no reason to suppose that EU law requires more in this particular context than the ECHR. Fifthly, the appellant argues that it is no answer to lack of legal certainty that the national courts interpret the measures compatibly with EU law. That is not the case for the SSHD, which is that the Hardial Singh limitations form part of what has been accepted by European courts as meeting the requirements imposed by law. For all these reasons I would reject the case for the appellant and in answer to the question posed by issue (3), would hold that the absence of a time limit does not, as a matter of principle, render such detention unlawful under EU law. (4) Does regulation 24(1) unlawfully restrict the rights of EEA nationals and their family by contrast to those enjoyed before the coming into force of the Directive which the EEA Regulations purport to implement? I would answer this question in the negative, essentially for the reasons given in the answer proposed to issue (1). (5) Do regulations 21 and 24 of the EEA Regulations 2006 fail accurately to transpose the safeguards of articles 27 and/or 28 of the Directive? The essential point made on behalf of the appellant is that the Directive has not been properly transposed into the EEA Regulations 2006 because regulation 24 fails to transpose the safeguards contained in articles 27 and 28 of the Directive. It is said that decisions taken under regulation 24(1) are not EEA decisions for the purposes of regulation 2 of the Regulations, which is the definition section. It provides: EEA decision means a decision under these Regulations that concerns (a) (b) (c) a persons removal from the United Kingdom; (d) . The argument is that a decision to detain a person in the position of the appellant, who is detained under regulation 24(1) pending a decision whether or not to remove him, is not a decision which concerns a persons removal within the meaning of sub paragraph (c). In my view there is a short answer to this point. The power to detain under regulation 24 is not free standing, but is purely ancillary to the powers of removal in the circumstances permitted by regulation 21, which properly transposes articles 27 and 28. Where the Secretary of State has reason to believe that there is a case for removal under those provisions, it is clearly appropriate that she should have power to detain while the matter is being considered, and thereafter pending deportation, if otherwise there might be a risk of the subject absconding. The creation of such a power is well within the margin of appreciation given to the national authorities under the Directive, provided it is suitable and proportionate to its purpose and reasonably exercised (see for example R (Lumsdon) v Legal Services Board [2015] 3 WLR 121, para 55). It is not necessary to show that a decision under regulation 24 is itself an EEA decision within the meaning of article 2. It is enough that it is directly linked to regulation 19(3)(b) which in turn is made expressly subject to regulation, and hence to requirements equivalent to those in the Directive. Moreover, I can see no basis for concluding the regulations themselves are disproportionate and it is not said that the impugned decisions were arbitrary or disproportionate on the facts. Both the judge and the Court of Appeal rejected the submission, albeit on somewhat different grounds. The submission advanced on behalf of the SSHD is shortly this. Regulation 24(1) provides: If there are reasonable grounds for suspecting that a person is someone who may be removed from the United Kingdom under regulation 19(3)(b), that person may be detained . Thus, regulation 24(1) makes express reference back to regulation 19(3)(b). Regulation 19(3)(b) permits the removal of an EEA national on grounds that: the Secretary of State has decided that the persons removal is justified on grounds of public policy, public security or public health in accordance with regulation 21. So regulation 19(3)(b) in turn makes express reference back to the requirements of regulation 21 and is in any event itself an EEA decision and a relevant decision. See paras 34 to 35 above. In these circumstances, I would accept the submission made on behalf of the SSHD that regulation 21 implements the requirements of articles 27 and 28 of the Citizens Directive. It appears to me to follow from the above that regulation 24(1) gives an express power to detain a person who may be removed under regulation 19(3)(b), which contains essentially the same criteria as articles 27 and 28 of the Directive. It seems to me therefore that a person who is so detained can fairly be said to be detained pursuant to a decision which concerns a persons removal within the meaning of sub paragraph 2(c) of the EEA Regulation 2006 in the definition of an EEA decision. For these reasons I would answer the question posed by issue 5 in the negative. Regulations 21 and 24 of the EEA Regulations 2006 do not fail accurately to transpose the safeguards of articles 27 and/or 28 of the Directive. (6) Were the appellants administrative detention from 3 April until 6 June 2012 and the bail restrictions imposed upon him until 2 January 2013 unlawful by reason of the matters raised in questions (1) to (5) above? It follows from the above that the answer must be no. The appellants detention was not unlawful for the reasons suggested. The remaining question is whether the court should refer any of the questions discussed above to the CJEU for a preliminary reference. I am not persuaded that the Supreme Court should do. In so far as the questions raise issues of EU law, the principles adopted seem to me to be acte clair. Conclusion For the reasons given above I would dismiss the appeal. Postscript After preparing a draft judgment in the form set out above (as agreed by the other members of the court) we received a detailed note containing submissions on behalf of the appellant relying upon a decision of the Grand Chamber of the CJEU in JN v Staatssecretaris van Veiligheid en Justitie (Case C 601/15 PPU), in which judgment was handed down on 15 February 2016. It was submitted that, where in the implementation of EU law, a member state authorises administrative detention prior to expulsion and seeks to justify it on public order grounds, first, the member state must previously have formed a concluded view as to the threat posed to public order by the individual and must have balanced that against the interference with liberty: Such a provision cannot form the basis for measures ordering detention without the competent national authorities having previously determined, on a case by case basis, whether the threat that the persons concerned represent to national security or public order corresponds at least to the gravity of the interference with the liberty of those persons that such measures entail. (see para 69) Second, administrative detention for the purpose of expulsion (including, in that instance of third country nationals exercising no free movement rights) in the implementation of EU law must be necessary. Reliance was placed on the right to liberty in article 6 of the EU Charter of Fundamental Rights and upon article 52 of the Charter, which provides that limitations may be made only if they are necessary. See paras 49 50 in JN. It is submitted that article 52(3) of the Charter and article 5(1)(f) of the ECHR do not preclude article 6 of the Charter from proposing a necessity test in detention for expulsion for the reasons given in paras 47 and 48. Thus, it is submitted, a legislative measure authorising administrative detention must be necessary in order to attain the legitimate objectives pursued by the legislation in question, since the disadvantages caused by the legislation must not be disproportionate to the aims pursued: see para 54. It is stressed that, in view of the importance of the right to liberty, limitations on the exercise of the right must apply only in so far as they are strictly necessary. See para 56, where reliance is also placed upon para 52 of the judgment in the Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources (Joined cases C 293/12 and C 594/12). Reliance is further placed upon article 8(3) of Directive 2013/33/EU, which lays down standards for the reception of applicants for international protection. It is said that article 8(3)(e) is the analogue, in the asylum context, of article 27 of the Citizens Directive. Indeed, it is submitted that the Citizens Directive is a fortiori to Directive 2013/33/EU. In all the circumstances it is submitted that the EEA Regulations incorrectly transposed the safeguards of article 27 of the Citizens Directive and that the test is one of necessity. In all the circumstances it is said that, on this new ground, the appeal should be allowed and that, in any event, an appropriate question should be referred to the CJEU. It is properly accepted on behalf of the appellant that Directive 2013/33/EU now relied upon is not binding on the United Kingdom. It is not therefore in issue in these proceedings. Where it does apply, it sets out an express legislative code which governs the circumstances in which an applicant for international protection may be detained. Article 8(1) provides that the member states to which it applies shall not hold a person in detention for the sole reason that he or she is an applicant for international protection: see para 15 of the JN judgment. Article 8(2) then provides that when it proves necessary and on the basis of an individual assessment of each case, member states may detain an applicant, if other less coercive alternative measures cannot be applied effectively. Article 8(3) then provides that an applicant for international protection may be detained only on certain exhaustive grounds. By contrast, as is correctly submitted on behalf of the SSHD, the Citizens Directive contains no legislative provisions which refer expressly to detention. Articles 27 and 28 are concerned respectively with restrictions on freedom of movement and residence and removal. The substantive issue in JN was whether the freestanding power contained in article 8(3)(e) was compatible with fundamental rights. A question referred by the Dutch court was whether such a power could be compatible with article 5 of the ECHR if such detention was not imposed with a view to removal. The CJEU held (in para 82) that the provision was valid. There is no similar freestanding power in EU law applicable in the United Kingdom. Moreover, the JN case was not concerned with the central issue in the Nouazli case, namely whether detention may be permitted in circumstances prior to the making of a decision to effect the removal of the family member of an EEA national. By contrast, Directive 2013/33/EU contains a pre decision power to detain in order to decide on an applicants right to enter (article 8(3)(c)) and in order to secure the transfer of a claimant for international protection to the responsible member state (article 8(3)(f)). Those powers were not in issue in Nouazli. I have set out in detail above the basis upon which in my opinion the appeal of the appellant should be dismissed. By contrast, the CJEU in JN was considering a different legislative provision and did not purport to address the issue before the court in this appeal. I would accept the submission made on behalf of the SSHD that the CJEU did not lay down minimum criteria that must be satisfied in all cases within the scope of EU law. It was instead addressing the requirements that must be satisfied before the exercise of a specific statutory power of unusually broad scope. For these reasons I would not accept that this new point affords any supportable basis for allowing the appeal or indeed for making a reference to the CJEU. I would therefore dismiss the appeal for the reasons I gave earlier. Sentence Addendum to the Statement of Facts and Issues List of appellants convictions and sentences until and including the conviction giving rise to the detention under challenge in this appeal Offence Date 06/11/2001 Driving a motor vehicle with excess alcohol 21/08/2002 Failing to provide a specimen for analysis (driving or attempting to drive) 12/01/2004 Theft 22/01/2004 Possession controlled drug class A Drug Crack cocaine 28/06/2004 Theft from person Fine 100 Disqualification from driving 6 months Driving licence endorsed Fine 150 Disqualification from driving 18 months Driving licence endorsed Imprisonment 28 days Possession controlled drug Fine 50 Forfeiture and destruction Class B Cannabis Failing to surrender to bail Fine 100 Failing to surrender to bail Fine 150 Fine 100 Forfeiture Community rehabilitation order 12 months Community punishment order 140 hours concurrent Community punishment order 140 hours Community punishment order Attempt/ obtaining services by deception 140 hours concurrent Failing to surrender to bail Community punishment order 140 hours concurrent 30/12/2004 Obtaining property by deception Theft Date Offence 14/03/2005 Breach of community rehabilitation order 27/04/2005 Detainee fail/ refuse to provide sample of fluid for purpose of ascertaining whether class A drug is in body Handling stolen goods 18/05/2005 Theft from person 04/07/2005 Theft Theft Theft Possession controlled drug Class C cannabis Handling stolen goods (receiving) 24/05/2006 Theft from person 20/11/2006 Theft shoplifting Theft from person 20/05/2008 Possession of a class C drug Sentence Resulting from original conviction of 28/06/2004, order to continue Fine 50 or 1 day (served) Imprisonment 3 months Conditional discharge 18 months Imprisonment 4 months Imprisonment 2 months consecutive Imprisonment 2 months concurrent Fine 150 or 1 day (served) Forfeiture Imprisonment 4 months consecutive Imprisonment 21 weeks Imprisonment 4 months Imprisonment 4 months consecutive Fine 75 Victim surcharge 15 Forfeiture and destruction with intent to supply Possession of a class A drug Fine 75 03/06/2008 Being drunk and disorderly Fine 60 Date Offence 15/12/2008 Theft from person Theft from person Possession cannabis resin Affray Possession knife blade/ sharp pointed article in a public place 01/07/2010 Possession Cannabis resin 28/09/2010 Obstructing powers of search for drugs 22/10/2010 Possession Cannabis resin Failing to surrender to custody at appointed time 08/12/2010 Failing to comply with the requirements of a community order 13/12/2010 Theft from person 14/01/2011 Theft Sentence Imprisonment 4 months consecutive Imprisonment 4 months consecutive Imprisonment 1 week concurrent Forfeiture and destruction Imprisonment 15 months Imprisonment 9 months concurrent Forfeiture and destruction of razor Fine 100 Forfeiture and destruction Community order, unpaid work requirement 80 hours Subsequently varied on 08/12/2010 to curfew requirement 2 months with electronic tagging Fine 100 Victim surcharge 15 Forfeiture and destruction Fine 100 Resulting from original conviction of 30/09/2010, order revoked Imprisonment 5 months Imprisonment 5 months Consecutive 04/07/2011 13/07/2011 05/09/2011 Date Offence 19/01/2011 Possession controlled drugclass A cocaine Possession controlled drugclass B cannabis resin Handling stolen goods Theft from person Possession controlled drug class A crack cocaine Theft shoplifting Possession controlled drugclass A crack cocaine Failure to comply with the requirements of a community order Theft from person Sentence Forfeiture and destruction 1 days detention Forfeiture and destruction 1 days detention Imprisonment 12 weeks Imprisonment 3 months Community order, curfew requirement 3 months, subsequently varied to imprisonment 2 weeks One days detention Imprisonment 2 weeks consecutive Resulting from original conviction of 05/09/2011, order revoked Imprisonment 20 weeks 20/10/2011 14/11/2011 14/11/2011 25/01/2012 LORD CARNWATH: I agree that the appeal should be dismissed for the reasons given by Lord Clarke. I add a few words of my own to underline the need to avoid overcomplicating what is in essence a relatively narrow, albeit important, issue. The appellant has an appalling record of thefts and other crimes (described by the tribunal as mainly petty opportunistic thefts not involving violence) extending over a decade before the events in question. They had resulted in jail terms amounting cumulatively to at least five years. It is not surprising that the Secretary of States patience ran out in early 2012 and that she set in motion steps for his removal from this country. There was an administrative muddle in April 2012 over the powers used to detain him, but that is not an issue in the appeal. Nor is it argued that the detention was in itself unreasonable in the circumstances, assuming there was power to do it. The Secretary of States problem was that by then he had acquired permanent rights of residence here under European law, and thus could only be removed on serious grounds of public policy or public security. He was entitled to have that issue determined by the First tier Tribunal. They decided the point in his favour in on 2 January 2013, and the Secretary of State has properly accepted that decision. We are concerned solely with his detention under regulation 24(1) from 3 April to 6 September 2012 (on bail from 6 June); and thereafter under regulation 24(3) (again on bail) until the tribunals decision. The period of actual detention therefore lasted little over two months. On one view the case could be seen as an example of the system working as it should. However, he now seeks damages for that short period of detention, on the basis that the powers on which the Secretary of State relied did not comply with European law. Mr Saini QC (who did not appear below) has developed his case in elaborate detail. In terms of written submissions it is to be found in a 55 page statement of case, to which were added shortly before the hearing a 12 page note on supplementary authorities, and an 18 page note concerning statutory and factual context. They depart in a number of respects from the case as presented below. For the Secretary of State Mr Ward QC has not objected to these changes, but (perhaps understandably) has felt it necessary to respond in kind, with a 73 page statement of case. The bundles of authorities include 184 items, including cases, legislative material and academic commentary. I am however grateful to Mr Saini, in response to my request on the first day of the hearing, for reducing his submissions to a two page summary of appellants challenge. Although the summary contains a note to the effect that all of the points in the submitted case are maintained, I assume that summary can be taken as indicating the substantial points on which he now relies. The summary identifies four matters of challenge. There is some overlap between them but the essential points can be stated briefly: (1) Equality/discrimination applicable to regulation 24(1) only. The power to detain an EEA national under regulation 24(1) is discriminatory on the grounds of nationality, contrary to TFEU article 18, because there is no equivalent power in relation to a third country national. (2) Proportionality applicable to regulation 24(1) only. The power was introduced for the first time in June 2009. The Secretary of State has failed to show a need for a power which had not been required before. Nor had she shown any reason why consideration of deportation could not have taken place during the criminal custodial term. (3) Legal certainty, proportionality and time limits applicable to regulation 24(3) as well as regulation 24(1). This is principally a challenge to the Hardial Singh principles, which do not require a fixed time limit. (4) Further transposition flaws applicable to both regulation 24(1) and 24(3). Regulation 24 is not in terms made subject to the principles set out in articles 27 and 28 of the Directive, or in regulation 21 which gives effect to them in domestic law. In particular the test of reasonable grounds under regulation 24(1) is well below the threshold required by article 27. On the first point I have nothing to add to what Lord Clarke has said (in agreement with the Court of Appeal). Article 18 is not directed to the comparative treatment of nationals of other countries, who are outside the scope of European law. The alternative formulation based on the case of R v Immigration Appeal Tribunal, Ex p Secretary of State for the Home Department (Case C 370/90) [1992] 3 All ER 798 (raised for the first time in the note on supplementary authorities) is equally unsustainable for the reasons given by Lord Clarke. On the second point, the Secretary of State has a wide margin or appreciation as to the powers required to give effect to the Directive. If their exercise were shown to be disproportionate in a particular case (which is not alleged here), it could to that extent be disapplied. It is not a reason for striking down the regulation. On the third point, the Hardial Singh principles are well established, and approved by high authority; their legality is not open to serious question for the reasons given by Lord Clarke. The last question raises a possible point on the construction of the definition (in regulation 2(1)) of the expression decision that concerns a persons removal from the United Kingdom. If necessary I would read this as extending to a decision such as in the present case which is part of the process leading to removal. But in any event the powers in article 24 are ancillary to the substantive power of removal under regulation 19(3)(b). That refers in terms to the requirements of regulation 21 (reproducing articles 27 and 28). It follows that the Secretary of State cannot properly exercise her powers under article 24, with a view to action under article 19(3)(b), without taking account of the need as part of that process to satisfy regulation 21. That seems to me sufficient to ensure that the action is compliant with the Directive. For these reasons, which are no more than a distillation of those given by Lord Clarke, I would dismiss the appeal.	The appellant, an Algerian national, entered the United Kingdom in 1996 and was refused asylum. He married a French national in 1997. He was granted a residence permit, and had acquired a right of permanent residence by February 2003. He had two children with his wife but they were estranged by July 2004 and she returned to France in late 2005. By the end of January 2012, the Appellant had acquired 28 criminal convictions for 48 offences, including one 23 month sentence. The Home Secretary unsuccessfully attempted to deport him for that reason in January 2007. But he continued to offend, and was sentenced to 20 weeks imprisonment for an offence of theft on 25 January 2012. On 3 April 2012, just as the appellant was due to be released from custody for that offence, the Secretary of State served him with notice of her intention to make a deportation order against him under the Immigration (European Economic Area) Regulations 2006, on grounds that he would pose a genuine, present and sufficiently serious threat to the interests of public policy if he remained. He was detained from 3 April 2012 to 6 September 2012 (on bail from 6 June) under regulation 24(1) and Schedule 3 of the Immigration Act 1971 pending a decision being made on whether to deport him. He was served with a fresh Notice to that effect on 7 September 2012, and was again detained from 7 September 2012 until 2 January 2013. The appellant contended that his detention pending removal was unlawful, and sought judicial review. He argued that his detention contravened article 27(1) of the Citizens Directive (2004/38/EC) and that regulation 24(1) was incompatible with European law and unlawful because it discriminated against him on the basis of nationality without lawful justification contrary to Article 18 TFEU (there being no equivalent provision for pre decision detention in relation to family members of British nationals or non EEA nationals). The Upper Tribunal and the Court of Appeal dismissed his claim and appeal respectively. Before the Supreme Court, the appellant raised four essential points of challenge, namely that (i) the power to detain under regulation 24(1) was discriminatory without lawful justification, (ii) the power was unnecessary and disproportionate, (iii) the absence of a time limit for detention infringed the Hardial Singh principle and (iv) regulations 21 and 24 failed to accurately transpose the safeguards in articles 27 and/or 28 of the Directive. The Supreme Court unanimously dismisses Mr Nouazlis appeal, thereby holding that the appellants pre decision detention was not unlawful. It further declines to make a preliminary reference to the CJEU. Lord Clarke gives the judgment, and Lord Carnwath writes a concurring judgment. The legal framework for detention pending a decision to deport comprises Articles 27 and 28 of the Citizens Directive, as transposed by the EEA Regulations 2006. EEA Nationals or their family members exercising EU rights benefit from powerful protections against their expulsion from the UK, and can only be removed if certain limited circumstances apply, including where there are grounds of public policy, public security or public health [30, 36]. The power to detain under regulation 24(1) does not discriminate without lawful justification against EEA nationals and their family members. The general principle is that Article 18 TFEU is only concerned with the way in which EU citizens are treated in member states other than their states of nationality, and not the way in which member states treat nationals of other countries residing within their territories see the decision of the European Court of Justice in Vatsouras and Koupstantze v Arbeitsgemainschaft (AGRE) Nurnnerg (Joined Cases C 22/08, C 23/08) [2009] ECR I 4585. Third country nationals are not appropriate comparators for testing discrimination: such discrimination is simply a function of the limited scope of the EU legal order, into which third country nationals do not fall [39 49]. Nor is there discrimination between EU nationals and third country nationals contrary to article 21(1) of the EU Charter of Fundamental Rights [50 51, 61, 104]. The appellants new way of putting this argument was that discrimination occurs between British nationals and EEA nationals (exercising treaty rights) who each have third country spouses, since the spouse of the EEA national who is liable to be detained might be hypothetically deterred from exercising their own free movement rights the principle in Surinder Singh (R v Immigration Appeal Tribunal Ex p Secretary of State for the Home Department (Case C370/90) [1992] 3 All ER 798). But this argument also fails, since there is no basis for holding that the actual or hypothetical rights of this appellants spouse, who was long since estranged, would be so affected in this case [52 60, 104] As to proportionality, it is not in dispute that regulation 24(1) must be applied proportionately, but it was not argued that it was applied disproportionately in this case [62]. In this case, the absence of a specified time limit for detention does not infringe the principles in R v Governor of Durham Prison, Ex P Hardial Singh [1984] 1 WLR 704. That approach is fact sensitive, and the clear statutory framework here provides sufficient judicial scrutiny. The Hardial Singh approach, moreover, is entirely consistent with European law [63 78, 105]. Finally, regulations 21 and 24 do not fail accurately to transpose the safeguards in articles 27 and 28 of the Directive and are compliant with it [80 84, 106]. The recent CJEU decision in JN v Staatssecretaris van Veiligheid en Justitie (Case C 601/15), brought to the Courts attention in written submissions after the conclusion of the hearing, concerns a different Directive that is not binding on the United Kingdom. It also materially differs from the Citizens Directive because it contains an express freestanding power of detention for applicants for international protection, and not detention pending a deportation decision. It does not affect the disposal of this appeal [88 96]. Lord Carnwath writes a concurring judgment, setting out the appellants four overall challenges and agreeing with Lord Clarke that they should be dismissed [97 107].
FA is an Iraqi national who was born on 21 October 1991. He arrived in the United Kingdom on 21 August 2007 when he was 15 years old. He was not accompanied. He applied for asylum. On 9 October 2007 the Secretary of State refused the application. The evidence that FA had supplied in support of his claim was deemed not to be credible. Having refused FA asylum, the Secretary of State then considered whether he qualified for humanitarian protection and/or discretionary leave to remain in the United Kingdom. Humanitarian protection in this context is the domestic means of providing the subsidiary protection which Council Directive 2004/83/EC of 29 April 2004 (the Qualification Directive) requires to be given to certain third country nationals or stateless persons. It was decided that FA did not qualify for humanitarian protection. He was granted discretionary leave to remain, however, limited in time until he was seventeen years and six months old. As he was entitled to under section 83(2) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), FA appealed to the Asylum and Immigration Tribunal (AIT) against the refusal of his claim for asylum. Included in the grounds of appeal, however, were claims that FAs rights under articles 2, 3 and 5 of the European Convention on Human Rights and Fundamental Freedoms would be contravened if he was removed from the United Kingdom to Iraq. It was also averred that he might suffer serious harm as defined in the Qualification Directive. FAs appeal was dismissed by Immigration Judge (IJ) Jhirad. The dismissal was said to be on asylum grounds and humanitarian protection grounds. FA applied to AIT for a reconsideration of his appeal. Senior Immigration Judge (SIJ) Mather ordered that there should not be reconsideration of his appeal on asylum grounds but that the issue of whether there would be a serious and individual threat to his life by reason of indiscriminate violence during internal armed conflict should be reconsidered. SIJ Mather felt that IJ Jhirad may not have considered whether there was a risk of serious harm under the Qualification Directive and para 339 of the Immigration Rules which incorporates into domestic law the subsidiary protection provisions of the Qualification Directive. When the reconsideration application came on for hearing, AIT (IJs Lobo and Cohen) held that the original appeal before IJ Jhirad should have been confined to the refusal of the asylum claim. In their view, no appeal was available to FA in relation to human rights claims or humanitarian protection grounds under section 83 of the 2002 Act. That section provided for an appeal against the refusal of the application for asylum only. On that account, AIT substituted IJ Jhirads decision with a dismissal of the original appeal on asylum grounds only. The focus of FAs appeal against the decision of AIT to the Court of Appeal was initially on the construction of sections 82 to 84 of the 2002 Act and the question whether the decision of AIT deprived him of an effective judicial remedy against an adverse act of the administration, contrary to general principles of European Union law. Shortly before the hearing of the appeal, a supplementary written submission was presented which developed the argument that the principle of equivalence (a general principle of EU law) required that claims based on EU law must not be subject to rules which are less favourable than those based on claims which have national law as their source. It is this argument that principally preoccupied the Court of Appeal and it held centre stage in the appeal before this court. Section 82 lists a number of immigration decisions from which, by virtue of section 82 (1), an appeal will lie. Among these are a refusal to vary a persons leave to enter or remain (section 82 (2) (d)) and a decision that a person be removed from the United Kingdom pursuant to various directions (section 82 (2) (g)). FA could not have recourse to these because there had not been a relevant refusal to vary the leave to remain that he had been given and there had not been, at the time that the matter came before AIT (or for that matter the Court of Appeal), a decision to remove him. None of the other decisions listed in section 82 (2) was relevant to his situation. (As it happens on 11 January 2011, the Secretary of State rejected FA's application for an extension of his discretionary leave so that he now has a right of appeal under section 82(1) of the 2002 Act.) Section 83 of the Act gives a specific right of appeal against a refusal of asylum to a person who, like FA, has been granted leave to enter or remain for a period exceeding one year. It was this right of appeal that FA had exercised in appealing to AIT. Before the Court of Appeal Mr Raza Husain QC, for FA, had argued that, by resort to normal canons of construction, section 83 could and should be interpreted as including a right of appeal against a humanitarian protection decision, particularly in light of the definition of asylum claim in section 113 of the 2002 Act. That argument was rejected by the Court of Appeal and it has not been renewed before this court. The Court of Appeal held that, although a section 83 appeal was a status appeal (i.e. one that depended on the status of the person making the appeal as opposed to the species of decision appealed against) it was nevertheless restricted to a particular class of persons, namely those who have been given leave to remain for at least twelve months. Moreover, by virtue of section 84 (3) of the 2002 Act, the only grounds on which the appeal could be taken were that removal of the person appealing would breach the United Kingdoms obligation under the Refugee Convention. These considerations meant that section 83 could not be construed on any conventional basis of interpretation as extending to an appeal against a humanitarian protection decision. Mr Husains alternative submission was accepted, however. In broad terms it was to the effect that the principle of equivalence required that a right of appeal against the humanitarian protection decision be recognised since the lack of an appeal would mean that this claim, based as it was on EU law, was being subjected to rules which were less favourable than those which applied to the asylum claim, such a claim being based on national law. The Court of Appeal held that the definition section (113 (1) of the 2002 Act,) which provides that asylum claim means a claim made by a person that to remove him from or require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention would have to have the words and/or the Qualification Directive 2004/83/EC added to it. A similar addition to section 84 (3) was required so as to enlarge the grounds on which the appeal might be brought. The Secretary of State appeals against this decision on the ground that there is no purely domestic measure against which a comparison of the rules applicable to claims for humanitarian protection can be made. It is argued that such claims have far closer similarities to those that are made under the Human Rights Act 1998. The Secretary of State further contends that the mooted comparators (the asylum claim and the humanitarian protection claims) both have their origin in Chapter VII of the Qualification Directive. Both therefore are rooted in EU law. They do not spring from different sources and since that is the essential requirement for the activation of the equivalence principle, it cannot be prayed in aid in this instance. The procedural autonomy of member states In the absence of EU law stipulating a particular form of remedy to ensure protection of EU rights, it is for member states to decide which courts or tribunals will have jurisdiction to give effect to those rights and to prescribe the procedural conditions necessary for their enforcement article 19(1) of the Treaty on (TEU), Case 33/76 Rewe Zentralfinanz eG v European Union Landwirtschaftskammer fr das Saarland (Rewe I) [1976] ECR 1989, Case 45/76 Comet BV v Produktschap voor Siergewassen [1976] ECR 2043 and Preston v Wolverhampton Healthcare NHS Trust (No 2) [2001] UKHL 5, [2001] 2 AC 455. This is known as the procedural autonomy of member states. Procedural autonomy is subject to two qualifications. National rules may not render the exercise of rights conferred by EU law virtually impossible to achieve or excessively difficult to access. This is known as the principle of effectiveness. Nor must national rules be less favourable than those governing comparable domestic actions. This is the principle of equivalence. The equivalence principle It is no longer suggested in this appeal that FA does not have effective access to his humanitarian protection or subsidiary rights. The effectiveness principle is no longer in issue. The critical question now is whether the equivalence principle requires, as the Court of Appeal decided it did, that a right of appeal must be available against the decision to dismiss FAs application for humanitarian protection. This, in turn, depends on whether FA can demonstrate that there is a comparable domestic right which is subject to more favourable rules than is his humanitarian protection right. In the particular circumstances of this case, this means that he must show that his asylum claim is a legitimate comparator with his claim for humanitarian protection. If he is able to demonstrate this, it is clear that the humanitarian protection claim is subject to less favourable rules than the asylum claim. The latter brings with it a status appeal. The humanitarian protection claim does not. FA must do more than show that there is a difference between the two claims in terms of the availability of a right of appeal, of course. He must also establish that the proper basis of comparison exists. It is on this particular point that crucial issue is joined between the parties. The issue has a number of aspects. Must the claim to asylum, in order to qualify as an effective comparator, be based exclusively on domestic or national law? Or is it sufficient that it partake partly of a national law and partly of EU law? If it is a measure that is given effect in domestic law in the fulfilment of a member states obligations under a treaty, does this affect its status as a potential comparator? How similar must the rights under domestic and Community law be? If there is a more marked similarity between the Community right and a human rights claim, how does this affect the application of the principle of equivalence? Must the comparator with the Community law claim be a purely domestic measure? The nature of the required comparison exercise was described in the judgment of the Court of Justice of the European Union in Rewe I in the following passage, [1976] ECR 1989, para 5: Applying the principle of cooperation laid down in Article 5 of the Treaty, it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law. Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature. This formulation recognises the primacy of the role of the domestic legal system in providing the necessary protection for Community rights, with what has become known as the principle of equivalence being a qualification on that autonomy. Its purpose is to ensure that there is no dilution of the adequacy of the protection of the relevant rights and in that sense it is complementary to the principle of effectiveness. The principle of equivalence received somewhat fuller consideration by the Court of Justice in the case of Case C 326/96 Levez v T. H. Jennings (Harlow Pools) Ltd [1998] ECR I 7835. One of the questions referred to the Court of Justice by the Employment Appeals Tribunal in that case sought guidance on how the expression similar domestic actions should be interpreted in the field of equal pay legislation. Advocate General Lger described the aim of the principle of equivalence in para 26 of his opinion: The aim of this principle is that domestic law remedies should safeguard Community law without discrimination that is to say, exercise of a Community right before the national courts must not be subject to conditions which are more strict (for example, in terms of limitation periods, conditions for recovering undue payment, rules of evidence) than those governing the exercise of similar rights derived wholly from domestic law. In the present appeal, the Secretary of State draws particular attention to the phrase similar rights derived wholly from domestic law. It is suggested that this conveys clearly the notion that the proposed comparable right must originate exclusively from a domestic source. Similar expressions can be found in earlier jurisprudence of the Court of Justice. In Joined Cases 205 to 215/82 Deutsche Milchkontor GmbH v Federal Republic of Germany [1983] ECR 2633, para 19 the court said that national legislation must be applied in a manner which is not discriminatory compared to procedures for deciding similar but purely national disputes. (emphasis supplied). The expression purely internal in relation to the national measure was also used in the later case of Case C 34/02 Pasquini v Istituto Nazionale della Previdenza Sociale, judgment of 19 June 2003. The respondent to the present appeal has drawn attention, however, to the fact that neither purely domestic nor purely internal are used in the latest decisions of the Court of Justice in cases involving the principle of equivalence. A large number of cases have been cited by the respondent to support this proposition. They include Joined Cases C 222/05 to C 225/05 Van der Weerd v Minister van Landbouw, Natuur en Voedselkwaliteit [2007] ECR I 4233; Case C 268/06 Impact v Minister for Agriculture and Food [2009] All ER (EC) 306; Case C 445/06 Danske Slagterier v Bundesrepublik Deutschland, 24 March 2009; Case C 118/08, Transportes Urbanos y Services Generales SAL v Adminisracin del Estado, 26 January 2010; Case C 542/08, Barth v Bundesministerium fr Wissenschaft und Forschung, 15 April 2010; Joined Cases C 145/08 and C 149/08, Club Hotel Loutraki AE v Ethniko Simvoulio Radiotileorasis, 6 May 2010; Case C 246/09 Bulicke v Deutsche Bro Service GmbH, 8 July 2010; and Case C 429/09 Gnter Fu v Stadt Halle, 25 November 2010; Case C 568/08 Combinatie Spijker Infrabouw/De Jonge Konstruktie, v Provincie Drenthe, 9 December 2010. It is noteworthy (and, in the context of this particular debate, significant) that in none of these decisions of the Court of Justice has the expression purely domestic been expressly disavowed. Notwithstanding this, the respondent confidently asserts that the Court of Justice has not definitively pronounced on the question whether the national measure that is proffered as a comparator must be purely domestic. Moreover, it is claimed that it would be unwieldy and impractical to require the national court, as a condition of applying the principle of equivalence, to inquire in every case whether a particular procedure was designed exclusively for the protection of national rights. It is also argued that an insistence on the compared right being uniquely domestic would give rise to anomalies in that a right based on national law that would qualify as a comparator might lose that status if subsumed under an EU measure. This issue has not been expressly addressed in any of the decisions of the Court of Justice to which this court has been referred. One can acknowledge the strength of the arguments on either side. On the one hand, there is a consistent line of authority (which has not been renounced) to the effect that the domestic measure must be precisely what the term suggests a purely domestic provision. If comparison with another Community law provision was possible, much of the underlying purpose of the principle, it is argued, would be diverted. After all, the essential reason for the development of the principle was that a Community law right should not suffer disadvantageous treatment vis vis national rights which lie outside the field of Community law. On the other hand, the aim of the principle is the elimination of discrimination and it would be, it is suggested, anomalous if comparison with another right was precluded because it could be branded as deriving partly form a Community law source. Viewed as a complement to the principle of effectiveness, the principle of equivalence should not be thwarted by the imposition of what might arguably be said to be the artificial or technical requirement of a comparison between a Community law right and one which is distinctively and exclusively domestic. What is required in order that the compared measures may be regarded as sufficiently similar? On the separate question of what is required in terms of similarity between the Community law right and the domestic law right, at para 43 of its judgment in Levez the Court of Justice said: In order to determine whether the principle of equivalence has been complied with in the present case, the national court which alone has direct knowledge of the procedural rules governing actions in the field of employment law must consider both the purpose and the essential characteristics of allegedly similar domestic actions (see Palmisani, paragraphs 34 to 38) [Palmisani v Istituto Nazionale della Previdenza Sociale (Case C 261/95) [1997] ECR I 4025] The court went on to point out (in para 44) that it was for the national court to examine the part played by the (avowedly similar) domestic measure in the procedure as a whole, and to take account of any special features of that procedure. The theme of the need for close similarity between the Community law right and the domestic law right was taken up again in Case C 231/96 Edilizia Industriale Siderurgica Srl (Edis) v Ministero delle Finanze [1998] ECR I 4951. At para 36 of its judgment the Court of Justice said: Observance of the principle of equivalence implies, for its part, that the procedural rule at issue applies without distinction to actions alleging infringements of Community law and to those alleging infringements of national law, with respect to the same kind of charges or dues (see, to that effect, Joined Cases 66/79, 127/79 and 128/79 Amministrazione delle Finanze dello Stato v Salumi [1980] ECR 1237, para 21). That principle cannot, however, be interpreted as obliging a Member State to extend its most favourable rules governing recovery under national law to all actions for repayment of charges or dues levied in breach of Community law. (emphasis supplied) On the basis of these statements, the Secretary of State argues that simply because there is some similarity between the rights claimed, or because the rights are of the same generic type, it does not follow that the principle of equivalence comes into play. The juristic structure of the two rights under comparison must be the same. In advancing this argument the Secretary of State relies on two domestic authorities. The first of these is Matra Communications SAS v Home Office [1999] 1 WLR 1646 where at 1658H Buxton LJ said: the principle of equivalence really does mean what it says. The domestic court, in applying the principle, must look not merely for a domestic action that is similar to the claim asserting Community rights, but for one that is in juristic structure very close to the Community claim. It does that, in the words of the Court of Justice in Levez vs T H. Jennings (Harlow Pools) Ltd. (Case C 326/96 ) [1999] I.C.R. 521, 545, para. 43, by considering the purpose and the essential characteristics, of allegedly similar domestic actions. The second domestic case on which the Secretary of State relies is Preston v Wolverhampton Healthcare NHS Trust (No 2)[2001] UKHL 5, [2001] 2 AC 455. In that case the majority expressed doubts about the view favoured by Lord Slynn of Hadley in his speech that a broad view of the exercise of comparing the domestic right with the Community law claim was permissible. Lord Slynn had accepted that one should be careful not to accept superficial similarity as being sufficient. He also accepted that it was not enough to say that both sets of claims arose (as they did in that case) in the field of employment law. Nevertheless, he considered that claims under the Equal Pay Act 1970 (which by virtue of article 119 of the Treaty and Council Directive (75/117/EEC) were Community law claims) bore a sufficient resemblance to claims for breach of contract against an employer so as to permit the possible application of the principle of equivalence. Lord Clyde, with whom Lord Goff of Chieveley and Lord Nolan agreed, thought that this conclusion was difficult to sustain. The appellants claim under Community law was concerned not with arrears of pay or other remuneration but with retroactive membership for the applicants of an occupational pension scheme (para 43). In effect this required something to be added to the contract, rather than being a claim for breach of contract. Lord Clyde thought that it was extremely difficult to conclude that as between these two actions one would be comparing like with like. The Secretary of State relies on the Matra and Preston decisions as authority for what is described as a cautious approach to the question of the recognition of one form of action as a true comparator of a Community law claim. It is argued that where there is a far more readily comparable action to the Community law claim such as a human rights claim, the allegedly domestic law refugee claim had even less to commend it as a proper comparator. There are, says the Secretary of State, significant structural and substantive reasons why section 83 is not sufficiently close in its juristic structure to serve as an appropriate comparator. The purpose and the essential characteristics of the alleged domestic action are quite different. The Preamble to the Qualification Directive ([14]) and the 1951 Refugee Convention make clear that the recognition of refugee status is a declaratory act of a pre existing right and, as a result, there is no discretion on the part of the decision maker in the Member State. By contrast, subsidiary protection status is a status which has been created by the Qualification Directive and only arises upon a decision to grant such status. Furthermore, subsidiary protection is only intended to be complementary and additional to the refugee protection enshrined in the Geneva Convention (preamble [24]) and is only available to those who do not qualify as a refugee. As a result, the Secretary of State argues, the two are mutually exclusive. The respondent disputes the claim that there is any significant or relevant difference between the claim to refugee status and the claim for subsidiary protection. It is argued that recognition as a person eligible for subsidiary protection carries with it an entitlement to subsidiary protection status akin to the refugee status that an applicant for asylum acquires. Moreover, the grant of that status carries with it certain benefits while the human rights claim (which the Secretary of State suggests is a more suitable comparator) does no more than prevent removal. At a fundamental level, both refugee status and subsidiary protection exist to protect individuals from return to serious harm. As to the effect of Matra and Preston the respondent counters the Secretary of States claims by reference to more recent authority, particularly Byrne v Motor Insurers Bureau [2009] QB 66 and Revenue and Customs Comrs v Stringer & Ors [2009] ICR 985. In Byrne, the respondent claims, the Court of Appeal rejected the narrow approach advanced by the defendant and found a sufficient similarity between a claim for compensation against the Motor Insurers Bureau and an action in tort. Mr Husain relied particularly on an observation by Carnwath LJ in para 27 of his judgment alluding to Buxton LJs statement in Matra that there should be a close relationship between the juristic structures of the Community law right and the domestic measure. Carnwath LJ said that he did not find it helpful to argue in the present case that the claim against the MIB has a different juristic structure to a claim in tort. I do not construe this as a rejection of the juristic structure approach to the question, however. Carnwath LJs comment must be seen in its context. In Byrne the court was dealing with a claim that the scheme for compensation for victims of uninsured drivers should not be any less favourable than the system whereby victims of drivers who were insured could claim compensation. It was also, incidentally, confronted by a decision of the Court of Justice to the effect that the protection provided by the national scheme must be equivalent to and as effective as the protection available under the national legal system to victims of insured drivers Evans v Secretary of State for the Environment, Transport and the Regions (Case C 63/01) [2005] All ER (EC) 763; [2004] RTR 534; [2003] ECR I 14447, ECJ. Against that background a technical argument that the juristic structure of a claim in tort differed from that of a claim whose purpose was to require the MIB to meet its contractual obligations (and that, on that account, the principle of equivalence did not apply) was unlikely to prevail. It does not necessarily follow that the comparison of the juristic structures of mooted comparators in other, more appropriate, contexts will not be a relevant means of assessing their claimed similarity. In Revenue and Customs Comrs v Stringer & Ors the comparison was between the statutory right to paid annual leave (based on the EC Working Time Directive 93/104/EC) and a contractual right to holidays with pay. The House of Lords concluded both that the two claims were sufficiently similar for equivalence purposes, and that the different limitation periods applicable to each amounted to less favourable treatment of the Community law right. The respondent in this appeal argued that this betokened a broader approach than had hitherto been taken to the question of similarity between rights for the purposes of equivalence. For reasons that I will shortly state, I question that claim. The Working Time Directive has as its foundation concern for health and welfare. The House of Lords did not consider that this feature made it dissimilar to a contractual right to paid leave. After commenting in not unfavourable terms to Lord Slynns admonition in Preston that one should be careful not to accept superficial similarity as sufficient, Lord Walker of Gestingthorpe, who delivered the principal speech said, at para 62: In these appeals, however, the parallel between the statutory right to paid annual leave and a contractual right to holidays with pay is to my mind much clearer and closer. It is not less close because of the Working Time Directive's emphasis on health and safety at work. Similar thinking has for many years informed the approach of responsible employers in framing contractual terms of employment. Moreover in each case the remedy would be an order for payment of the liquidated sum due. Lord Walker did not propound a different approach from that of the majority in Preston. He merely commented that the two rights in the Stringer case had a much more obvious connection than did the rights that were involved in the earlier case. Indeed, his reference to health and safety considerations informing contractual terms of employment illustrates Lord Walkers acceptance that something more than mere superficial similarity was required. A similar stance can be detected from the opinion of Lord Neuberger of Abbotsbury. At para 71 he said that the purpose of a holiday from work is, at least in part, the psychological and social well being of the employee. But of perhaps greater consequence is the interesting and, in relation to the issues that arise in this case, highly pertinent observation that Lord Neuberger made in para 88 to the effect that the question of similarity, in the context of the principle of equivalence, has to be considered by reference to the context in which the principle is being invoked. Various formulae have been employed to describe the nature of the similarity that is required. For instance, whether the purpose and essential characteristics of the two measures are the same Palmisani, paras 34 to 38. Or whether the role played by the provision in the procedure as a whole, as well as the operation and any special features of that procedure before different national courts, sustain or detract from the claim to equivalence Levez para 44. Another criterion suggested is that the purpose and cause of action should be similar para 41 of Levez. The latter part of this formulation prompted the statement by Buxton LJ that the juristic structure of the two measures should be closely related. It is not clear, however, whether any or all of these criteria are indispensable requirements. As Lord Clyde observed in Preston the requirement of similarity or comparability is an inexact one (para 41). It is unlikely that juristic structures of exactly similar type are required if by that term it is implied that the means of securing the right should be the same or directly analogous. If the essential characteristics of the rights claimed are identical or closely similar, it would be a curious result that equivalence should be denied simply because the legal means of obtaining vindication of the right asserted differed. On the other hand, if the juristic structures are the same, this might well be a good indicator that the principle of equivalence applies. On the whole therefore there is much to be said for Lord Neubergers view that the question of the required similarity and the criteria necessary to establish it in an individual case will depend on the context in which the application of the principle of equivalence is canvassed. It does not appear, however, that this issue has been directly considered by the Court of Justice and on that account alone a reference is required. The source of procedural rights of the asylum applicant At para 47 of the Court of Appeals judgment, Pill LJ stated that the rights of a refugee, as now provided in national law, and the rights of a person with subsidiary protection status, as provided by the Directive are in many respects similar. The Secretary of State contends that this clearly implied that the court had concluded that the source of FAs rights in relation to his asylum application was exclusively national law. It is submitted that such a conclusion was plainly incorrect. It is common case between the parties that by virtue of article 4 of the Treaty on the Functioning of the European Union (TFEU) the area of freedom, security and justice in Community law is one of shared competence between the EU and member states. It is also agreed that EUs competence in this area is defined by article 78 of TFEU. And both parties have referred to the requirement in article 2 (2) of TFEU that member states shall exercise their competence to the extent that the EU has not exercised its competence or to the extent that the Union has decided to cease exercising its competence. Mr Eicke for the Secretary of State submits that the EU has exercised its competence under article 78 to define, among other things, the requirements for qualification as a refugee; the grant and content of refugee status; and the procedures, including the appeals procedure in relation to the grant and withdrawal of refugee status. The last of these found expression in domestic law through sections 82, 83 and 83A of the 2002 Act. In consequence, it is argued, the purported comparators (sections 82 83A) are not domestic measures at all. Since, it is said, they are not eligible for that role, the principle of equivalence cannot be invoked. Indeed, the appellant argues, the substantive content of both rights (i.e. the right to refugee status and the right to humanitarian protection) is derived from the same EU law instrument and, in fact, the same chapter within that EU law instrument: namely Chapter VII of the Qualification Directive. It is claimed, therefore, that there can be no question of comparison with a domestic law right. For the respondent Mr Husain emphasises that the United Kingdom is not prevented by the Qualification Directive from adopting and maintaining purely domestic legislation in the field of refugee law. He points out that the Qualification Directive is a minimum standards instrument. In stark contrast to Art 1A of the Refugee Convention, which applies the term refugee to any person who comes within the definition set out in Art 1A(1) and 1A(2), the Qualification Directive applies only to third country nationals. Moreover, domestic legislation even transposing instruments has continued to define a claim to asylum by reference to the Refugee Convention rather than the Qualification Directive. While these arguments are indisputable at a theoretical level, it is questionable that they have any relevance to the issues joined between the parties. It is not a matter of dispute that the asylum claim is based on provisions that were enacted on foot of the United Kingdoms obligations under the Qualification Directive. True it is that they mirror requirements set out in the Refugee Convention and that this may have been the original source of many of the provisions of the Qualification Directive. But this does not answer the essential question of whether the claim to refugee status can qualify as a valid comparator either because it can be described as having a mixed source i.e. it is based on both EU and domestic law or because the Refugee Convention is the original source of the relevant claim to refugee status and its provisions shaped those contained in the Qualification Directive. Again, it does not appear that these questions have been addressed directly in the case law of the Court of Justice and for that reason also a reference is required. Conclusions For the reasons given in this judgment a number of issues have arisen on this appeal which, in the opinion of this court, require a preliminary ruling by the Court of Justice of the European Union under article 267 of the Treaty on the Functioning of the European Union. The parties are therefore invited to make submissions in writing within 28 days on the questions to be referred to the Court of Justice.	This appeal concerns the relationship between two rights which enable non nationals to remain in the United Kingdom: humanitarian protection, which derives from European law, and asylum, which derives from a combination of domestic law, European law, and international law. The issue in the appeal is whether, because a right of appeal exists against a refusal of an asylum application, European law requires that a right of appeal also be available against a refusal of an application for humanitarian protection. FA is an Iraqi national who arrived unaccompanied in the United Kingdom in August 2007 when he was 15 years old. He made an application for asylum which the Secretary of State refused on the grounds that his claim was not credible. The Secretary of State also considered whether FA qualified for humanitarian protection and / or discretionary leave to remain in the United Kingdom. Humanitarian protection is the domestic means of providing the subsidiary protection which Directive 2004/83/EC (the Qualification Directive), a European legislative instrument, requires to be given to certain third country nationals and stateless persons. The Secretary of State decided that FA did not qualify for humanitarian protection, but granted him discretionary leave to remain until he was 17 and a half years old. Section 83(2) of the Nationality Immigration and Asylum Act 2002 entitled FA to appeal to the Asylum and Immigration Tribunal against the refusal of his claim to asylum. FA made such an appeal and also appealed against the refusal of his claim for humanitarian protection. The Tribunal dismissed both the asylum and humanitarian protection appeals, deciding in respect of the latter that no appeal was available to FA in relation to humanitarian protection. On appeal to the Court of Appeal, FA relied upon the European law principle of equivalence. This provides that, although it is for Member States to prescribe the procedural conditions necessary for the protection of European law rights, national rules regarding those procedural conditions must not be less favourable than those governing comparable domestic actions. FA argued that he must be entitled to a right of appeal against the humanitarian protection decision since the lack of an appeal would mean that this claim, based as it was on European law, was being subjected to rules which were less favourable than those which applied to the asylum claim, such a claim being based on national law. The Court of Appeal acceded to this argument and allowed FAs appeal. The Secretary of State appealed to the Supreme Court against that decision. The Supreme Court unanimously decides that a number of issues arise on the appeal which require a reference to the Court of Justice of the European Union for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union. Lord Kerr delivers the judgment of the panel. The critical question on the appeal is whether the principle of equivalence requires that a right of appeal must be available against the decision to dismiss FAs application for humanitarian protection. This in turn depends on whether there is a comparable domestic right which is subject to more favourable rules than his humanitarian protection right. It is clear that the humanitarian protection claim is subject to less favourable rules than the asylum claim, given that the latter provides FA with an appeal against the initial refusal. The issue, however, is whether the asylum claim is a legitimate comparator. This issue has a number of aspects, in particular: (i) whether the comparator with the European law claim must be a purely domestic measure; (ii) what is required in order that the compared measures may be regarded as sufficiently similar; and (iii) the source of the procedural rights of the asylum applicant. As to (i), on the one hand there is a consistent line of authority from the European Court of Justice to the effect that the domestic measure must be a purely domestic provision. If comparison with another European law provision was possible, much of the underlying purpose of the equivalence principle would be subverted, given that the essential reason for the development of the principle was that a European law right should not suffer disadvantageous treatment relative to national law rights. On the other hand, however, it might be inconsistent with the aim of eliminating discrimination and overly technical to preclude comparison with another right on the basis that the right could be branded as deriving partly from a European law source. [24] [25] As to (ii), various formulae have been employed in case law to describe the nature of the similarity that is required, including whether the purpose, essential characteristics and / or juristic structures of the two measures are the same. There is much to be said for the view that the question of the required similarity and the criteria necessary to establish it in an individual case will depend on the context in which the application of the principle of equivalence is canvassed. [40] [42] As to (iii), the asylum claim is based on provisions that were enacted in pursuance of the United Kingdoms obligations under the Qualification Directive. Yet they mirror requirements set out in the Refugee Convention, an instrument of international and not European law, and this may have been the original source of many of the provisions of the Qualification Directive. Whatever the answer to (iii), however, it does not provide an answer to (i) and (ii). Those essential questions have not been directly addressed by the European Court of Justice and for that reason a reference to the Court for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union is required. [47] The Supreme Court decides to make such a reference and invites the parties to make submissions on the precise questions to be referred. [48]
On 2 December 2010 the Swedish Prosecution Authority (the Prosecutor), who is the respondent to this appeal, issued a European Arrest Warrant (EAW) signed by Marianne Ny, a prosecutor, requesting the arrest and surrender of Mr Assange, the appellant. Mr Assange was, at the time, in England, as he still is. The offences of which he is accused and in respect of which his surrender is sought are alleged to have been committed in Stockholm against two women in August 2010. They include sexual molestation and, in one case, rape. At the extradition hearing before the Senior District Judge, and subsequently on appeal to the Divisional Court, he unsuccessfully challenged the validity of the EAW on a number of grounds. This appeal relates to only one of these. Section 2(2) in Part 1 of the Extradition Act 2003 (the 2003 Act) requires an EAW to be issued by a judicial authority. Mr Assange contends that the Prosecutor does not fall within the meaning of that phrase and that, accordingly, the EAW is invalid. This point of law is of general importance, for in the case of quite a number of Member States EAWs are issued by public prosecutors. Its resolution does not turn on the facts of Mr Assanges case. I shall, accordingly, say no more about them at this stage, although I shall revert briefly to them towards the end of this judgment. Part 1 of the 2003 Act was passed to give effect to the Council of the European Union Framework Decision on the European arrest warrant and surrender procedures between Member States of the European Union 2002/584/JHA (the Framework Decision). I annexe a copy of the English version of the Framework Decision to this judgment. As can be seen, the phrase judicial authority is used in a number of places in the Framework Decision. In particular it is used in article 6, which provides: 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. It is Mr Assanges primary case, as presented by Miss Dinah Rose QC, that judicial authority bears the same meaning in the Framework Decision as it bears in the 2003 Act, so that the Prosecutor does not fall within the definition of issuing judicial authority within article 6 of the Framework Decision. Alternatively Miss Rose submits that, if judicial authority in article 6 of the Framework Decision has a meaning wide enough to embrace the Prosecutor, it has a different and narrower meaning in the 2003 Act. She seeks to support that meaning by reference to parliamentary material. The issue Miss Rose contends that a judicial authority must be a person who is competent to exercise judicial authority and that such competence requires impartiality and independence of both the executive and the parties. As, in Sweden, the Prosecutor is and will remain a party in the criminal process against Mr Assange, she cannot qualify as a judicial authority. In effect, Miss Roses submission is that a judicial authority must be some kind of court or judge. Miss Clare Montgomery QC for the Prosecutor contends that the phrase judicial authority, in the context of the Framework Decision, and other European instruments, bears a broad and autonomous meaning. It describes any person or body authorised to play a part in the judicial process. The term embraces a variety of bodies, some of which have the qualities of impartiality and independence on which Miss Rose relies, and some of which do not. In some parts of the Framework Decision the term judicial authority describes one type, in other parts another. A prosecutor properly falls within the description judicial authority and is capable of being the judicial authority competent to issue an EAW under article 6 if the law of the State so provides. Judicial authority must be given the same meaning in the 2003 Act as it bears in the Framework Decision. The approach to the interpretation of Part 1 of the 2003 Act Part 1 of the 2003 Act has unfortunately spawned more than its share of issues of law that have reached the highest level. In Office of the Kings Prosecutor, Brussels v Cando Armas [2005] UKHL 67; [2006] 2 AC 1 Lord Bingham of Cornhill remarked at para 8 that interpretation of Part 1 of the 2003 Act must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less. Lord Hope of Craighead at para 24 adopted what might appear to be a conflicting approach. He expressed the view that the task of interpreting Part 1 so as to give effect to the Framework Decision should be approached on the assumption that, where there were differences, these were regarded by Parliament as a necessary protection against an unlawful infringement on the right to liberty. Both Lord Bingham and Lord Hope in Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 returned to this topic after the Grand Chamber of the European Court of Justice had commented on it when giving a preliminary ruling in Criminal proceedings against Pupino (Case C 105/03) [2006] QB 83, to which I shall shortly refer. The House was concerned with the effect of section 64(2)(b) of the 2003 Act, which on its face appears to require an EAW to be accompanied by a separate certificate that the conduct in respect of which surrender is sought falls within the Framework list. The issue was whether it was sufficient that the warrant itself so certified. In holding, in agreement with the rest of the House, that it was, Lord Hope, after citing from Pupino, referred with approval to Lord Binghams statement in Cando Armas and remarked that the imposition of additional formalities not found in the Framework Decision by one member state to suit its own purposes would tend to frustrate the objectives of the Decision. Article 34.2(b) of the EU Treaty provides: Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect. In Pupino the European Court of Justice held at para 43: When applying the national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34.2(b) EU. In a well reasoned written joint intervention Mr Gerard Batten MEP and Mr Vladimir Bukovsky comment on the uncertainty of the scope of the phrases result to be achieved, purpose of the framework directive and result which it pursues. They argue that these should be treated as referring to the specific objectives of the particular Framework Decision and not the wider objectives of the EU Treaty that the specific objectives may be designed to serve. I have concluded that their interesting discussion does not bear on the issue that this Court has to resolve. What is in issue in respect of the construction of the 2003 Act is not a suggestion that the English Court ought, when interpreting the 2003 Act, to follow some general objective that the Framework Decision is designed to advance. It is the narrow issue of whether the words judicial authority in section 2(2) of the 2003 Act should, if possible, be accorded the same meaning as those two words bear in the parallel requirement in article 6 of the Framework Decision. I have read with admiration Lord Mances analysis of the effect of the decision in Pupino and I accept, for the reasons that he gives, that it does not bind this Court to interpret Part 1 of the 2003 Act, in so far as this is possible, in a manner that accords with the Framework Decision. I consider, none the less that it is plain that the Court should do so. This is not merely because of the presumption that our domestic law will accord with our international obligations. As Lord Mance himself acknowledges at para 201 of his judgment Part 1 of the 2003 Act was enacted in order to give effect to the Framework Decision. The immediate objective of that Decision is to create a single uniform system for the surrender of those accused or convicted of the more serious criminal offences. That objective will only be achieved if each of the Member States gives the same meaning to judicial authority. If different Member States give different meaning to those two words, that uniformity will be destroyed. In these circumstances it is hard to conceive that Parliament, in breach of the international obligations of this country, set out to pass legislation that was at odds with the Framework Decision. It is even more difficult to conceive that Parliament took such a course without making it plain that it was doing so. For this reason it is logical to approach the interpretation of the words judicial authority on the presumption that Parliament intended that they should bear the same meaning in Part 1 of the 2003 Act as they do in the Framework Decision. Parliamentary material Counsel for both parties placed before us a substantial volume of parliamentary material without any close analysis as to whether this was admissible as an aid to interpretation of the 2003 Act under the doctrine of Pepper v Hart [1993] AC 593 or for any other reason. I add those last words because some of this material related to proceedings of the House of Commons European Scrutiny Committee and the House of Lords Select Committee on European Union which predated both the final Framework Decision and, of course, the Extradition Bill which became the 2003 Act. While this material may provide some insight into the approach of the United Kingdom in negotiations that preceded the Framework Decision and into the understanding of Members of Parliament as to the effect of that Decision, I do not see how it can be directly admissible under Pepper v Hart, save to the extent that it was referred to in parliamentary debate on the Bill. More generally it is open to question whether there is room for the application of Pepper v Hart having regard to the requirement to give the words judicial authority the same meaning in the Act as they bear in the Framework Decision. That requirement should resolve any ambiguity in the language of the statute. Having said this I shall summarise shortly the effect of the parliamentary material. It evidences a general understanding and intention that the words judicial authority would and should bear the same meaning in the Act as they bore in the Framework Decision. As to that meaning there are statements in debate in the House of Lords, on the part of both members and a minister, that appear to reflect an understanding that the judicial authority would be a court or judge. The clearest ministerial statement is, however, that of the Under Secretary of State, Mr Ainsworth, on 9 January 2003 to Standing Committee D (Hansard, col 48), referred to by the Divisional Court at para 26: We expect that European arrest warrants will be issued in future by exactly the same authorities as issue warrants under the current arrest procedures. We intend to do that in the United Kingdom. There is no reason to suppose that our intentions are different from those of any other European country. The Bill is drafted in such a way as to include all those authorities that currently issue arrest warrants, as issuing authorities. I have yet to hear an argument that says that we should change that. If the parliamentary material to which I have referred were admissible, I would find it inconclusive. For the reasons that I have given I approach the interpretation of the words judicial authority in Part 1 of the 2003 Act on the basis that they must, if possible, be given the same meaning as they bear in the Framework Decision. I turn to consider that meaning. The meaning of judicial authority in the Framework Decision It is necessary at the outset to decide how the task of interpreting the Framework Decision should be approached. Craies on Legislation, 9th ed (2008), remarks at para 31.1.21 that the text of much European legislation is arrived at more through a process of political compromise, so that individual words may be chosen less for their legal certainty than for their political acceptability. That comment may be particularly pertinent in the present context in that, as we shall see, an earlier draft of the Framework Decision left no doubt as to the meaning of judicial authority but a subsequent draft expunged the definition that made this clear. The reason for and effect of this change lies at the heart of the problem of interpretation raised by this appeal. How does one set about deciding on these matters? The approach to interpretation must be one that would be acceptable to all the Member States who have to strive to identify a uniform meaning of the Decision. Craies rightly comments at para 32.5.1 that one cannot simply apply the canons for construction or even the principles that apply to interpreting domestic legislation. In the next paragraph Craies identifies the approach of the European Court of Justice to interpreting European legislation as involving the following stages, to be followed sequentially in so far as the meaning has not become clear. Start with the terms of the instrument in question, including its preamble; Turn to preparatory documents; Consider the usual meaning of expressions used and [compare] different language texts of the instrument; Consider the purpose and general scheme of the instrument to be construed. While I shall consider these matters I propose to adopt a different order. The natural meaning As we are here concerned with the meaning of only two words, I propose at the outset to consider the natural meaning of those words. It is necessary to do this in respect of both the English words judicial authority and the equivalent words in the French text. Those words are autorit judiciaire. In the final version of the Framework Decision the same weight has to be applied to the English and the French versions. It is, however, a fact that the French draft was prepared before the English and that, in draft, in the event of conflict, the meaning of the English version had to give way to the meaning of the French. The critical phrase does not bear the same range of meanings in the English language as in the French and, as I shall show, the different contexts in which the phrase is used more happily accommodate the French rather than the English meanings. The first series of meanings of judicial given in the Oxford English Dictionary is: Of or belonging to judgment in a court of law, or to a judge in relation to this function; pertaining to the administration of justice; proper to a court of law or a legal tribunal; resulting from or fixed by a judgment in court. In the context of a judicial authority the more appropriate meanings are: having the function of judgment; invested with authority to judge causes; a public prosecutor would not happily fall within this meaning. Judiciaire is capable of bearing a wide or a narrow meaning. Vocabulaire Juridique (6th ed, 1996) states that it can be used (dans un sens vague). Qui appartient la justice, par opp legislative et administrative, or (dans un sens prcis). Qui concerne la justice rendue par les tribunaux judiciaires. A computer dictionary search discloses a number of examples of its use in the sens vague, for instance affaire judiciaire/legal case; aide judiciaire/legal aid; annonce judiciaire/legal notice; poursuite judiciaire/ legal proceedings and last but not least, autorit judiciaire/legal authority. Having regard to the range of meanings that autorit judiciaire is capable of embracing, it is no cause for surprise that the phrase often receives some additional definition. Examples of particular relevance in the present context are found in the Rapport explicatif of the 1957 European Convention on Extradition see para 26 below and in the definition of autorit judiciaire in article 3 of the first draft of the Framework Decision itself see para 46 below. Another example is found in article 18.7 of the 1990 European Convention on money laundering: soit autorise par un juge, soit par une autre autorit judiciaire, y compris le ministre public (my emphasis). Miss Rose in her written case referred to a further example, in the English version, in the definition of an issuing authority in respect of a European Evidence Warrant under article 2(c) of the relevant Framework Decision (2008/978/JHA), namely : (i) a judge, a court, an investigating magistrate, a public prosecutor; or (ii) any other judicial authority as defined by the issuing State and, in the specific case, acting in its capacity as an investigating authority in criminal proceedings (my emphasis) These definitions demonstrate the width of meaning that autorit judiciaire is capable of bearing and the fact that the ambit of the phrase can vary according to its context. Article 5.1(c) of the European Convention on Human Rights, in the English version, provides that deprivation of liberty may be lawful where it results from the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence The French version of legal authority is autorit judiciaire. Miss Rose submitted that a line of Strasbourg authority on the meaning of that phrase in the context of article 5 provided the key to its meaning in the context of the Framework Decision. That submission calls for a comparison of the functions of the autorit judiciaire in the two different contexts. I shall postpone that exercise to later in this judgment. First I propose to consider the purpose and the general scheme of the Framework Decision and then the preparatory documents and their genesis. The purpose of the Framework Decision The purpose of the Framework Decision is stated in recital (5) of its preamble: 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 judicial decisions, within an area of freedom, security and justice. What were the present extradition procedures that gave rise to complexity and potential for delay? They were those provided for by the European Convention on Extradition 1957. This was a Convention between members of the Council of Europe. As in the case of other post war European Conventions the United Kingdom played a major role in its negotiation. The general scheme under this Convention was one whereby, after an antecedent process to which I shall return at a later stage, the executive of a requesting State would make a request for extradition to the executive of the requested State. The Convention laid down the criteria that had to be satisfied if the requested State was to be obliged to comply with the request. As to the procedure for considering whether or not to comply with a request, which I shall call the process of execution, the Convention provided by article 22 that this should be governed solely by the law of the requested State. The complexities and potential for delay that the Framework Decision sought to avoid were those that arose out of the involvement of the executive in the extradition process. I do not believe that this had much relevance in this jurisdiction, for although the process of extradition had great potential for delay, this was seldom attributable to the fact that the decision to extradite was ultimately political. A hint of the delays that were endemic on the Continent is given by a comment in the Explanatory Memorandum dated 25 September 2001 that accompanied the first draft of the Framework Decision, at 4.5.4: The political phase inherent in the extradition procedure is abolished. Accordingly, the administrative redress phase following the political decision is also abolished. The removal of these two procedural levels should considerably improve the effectiveness and speed of the mechanism. Thus the Framework Decision did not set out to build a new extradition structure from top to bottom, but rather to remove from it the diplomatic or political procedures that were encumbering it. The objective was that the extradition process should involve direct co operation between those authorities responsible on the ground for what I have described as the antecedent process and those authorities responsible on the ground for the execution process. It is important for the purposes of this appeal, to consider the manner in which extradition used to work under the 1957 Convention and, in particular, to identify those who, under the operation of that Convention, were responsible for the antecedent process. The 1957 Convention Article 1 of the 1957 Convention provided that the contracting parties undertook to surrender to each other, subject to the provisions of the Convention, all persons against whom the competent authorities of the requesting party were proceeding for an offence or who were wanted by the said authorities for the carrying out of a sentence or detention order. I shall refer to such persons as fugitives. The Council of Europe Explanatory Report commented: Le terme competent authorities contenu dans le texte anglais correspond aux mots autorits judiciaires contenus dans le texte francais. Ces expressions visent les autorits judiciaires proprement dites et le Parquet lexclusion des autorits de police. Article 12.2 provided that a request for extradition should be supported by (a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party; (b) a statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible; and (c) a copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality. Thus, where the fugitive was someone accused of a crime, the Convention required that there should have been an antecedent process that resulted in a warrant of arrest or other order having the same effect. This had to be issued in accordance with the law of the requesting State. The Convention itself did not impose any specific requirement as to the status of the authority responsible for the warrant of arrest or other order. As to this, the Council of Europe Explanatory Report commented: Some of the experts thought that the warrant of arrest or any other order having the same effect should be issued by an authority of a judicial nature. This point arises from article 1, in which the Parties undertake to extradite persons against whom the competent authorities of the requesting Party are proceeding or who are wanted by them. During the discussion of article 12 it was found that most of the States represented on the Committee of Experts do not extradite a person claimed until after a decision by a judicial authority. It is noteworthy that there was no requirement under the 1957 Convention for a requesting State to adduce any evidence to support the allegation that the fugitive had committed the crime in respect of which he was accused. This had never been a requirement that European States imposed, perhaps because they were not prepared to countenance the extradition of their own nationals. In contrast, when concluding bilateral extradition treaties, this country had always insisted on evidence being produced that would have been sufficient to lead to a defendant within the jurisdiction being committed for trial. According to Jones on Extradition and Mutual Assistance, 2nd ed (2001) at 10 004 the lack of any evidence requirement in the Convention was one of the reasons why the United Kingdom allowed over 30 years to pass between signing the 1957 Convention and embodying its provisions in our domestic law. The 1957 Convention contained provisions for provisional arrest, which had always been a feature of English extradition law. This important procedure enabled a fugitive to be apprehended and detained before the diplomatic formalities of inter State extradition were implemented. Thus article 16 provided: 1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. 2. The request for provisional arrest shall state that one of the documents mentioned in article 12, paragraph 2(a), exists and that it is intended to send a request for extradition. It shall also state for what offence extradition will be requested and when and where such offence was committed and shall so far as possible give a description of the person sought. 3. A request for provisional arrest shall be sent to the competent authorities of the requested Party either through the diplomatic channel or direct by post or telegraph or through the International Criminal Police Organisation (Interpol) or by any other means affording evidence in writing or accepted by the requested Party. The requesting authority shall be informed without delay of the result of its request. In contrast to article 1, the French version of competent authorities was autorits comptentes. The United Kingdom acceded to the 1957 Convention in 1991. By the European Convention on Extradition Order 2001 (SI 2001/962), passed pursuant to section 3(2) of the Extradition Act 1989, it was incorporated into domestic law. Para 3 of this Order removed the requirement to produce evidence of the commission of the offence in respect of which extradition was sought. By way of reservation the United Kingdom required foreign documents supplied pursuant to article 12 to be authenticated by being signed by a judge, magistrate or officer of the State where they were issued and certified by being sealed by a Minister of State. Thus, when negotiations began in relation to the terms of the Framework Decision, the United Kingdom had given effect to a European Convention that required it to surrender fugitives on proof of an antecedent process, namely that there had been issued in the requesting State a warrant of arrest or other order having the same effect, notwithstanding that, at least in 1957 when the Convention was negotiated, this might not have resulted from a judicial process and where the authority initiating the request might be a court or a public prosecutor. It is worth pausing at this point to consider the nature of the antecedent process. In this country the liberty of the subject has long been recognised as a fundamental right, as demonstrated by the remedy of habeas corpus. Save in the limited circumstances where arrest without warrant is lawful, arrest of a person suspected of a criminal offence has required a warrant of arrest issued by a magistrate. After arrest the suspect has had to be brought before a court. Detention before charge is only permitted for a very short period and remand in custody after charge will be pursuant to a court order. These protections of the liberty of the subject did not exist in all Continental States and notably had not existed in those that were, or fell, under the domination of Germany before and during the Second World War. Article 5 of the European Convention of Human Rights was designed to make universal protections that already existed in this country. Article 5.1(c) permits the lawful arrest or detention of a person for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence. Lawful arrest or detention is not defined. What this involves in other Member States was not explored in argument before us, but we were provided with Evaluation Reports in respect of the working of the EAW in 15 Member States prepared by the Commission pursuant to the requirement of article 34.4 of the Framework Decision. In the case of most of these the issue by a court of a domestic arrest warrant or a similar order, such as an order for detention in absentia, was a precondition to the issue of an EAW. It seems likely that these domestic procedures were in place when the Framework Decision was negotiated and that in the case of the majority of Member States, the power to arrest was subject to judicial safeguards similar to, or even more stringent than, our own. As I have shown above, in 1957 a minority of the parties to the European Convention on Extradition had no judicial involvement in the issue of an arrest warrant. It may well be that, as a consequence of the ECHR and the series of Strasbourg decisions to which I refer below, this minority had reduced by the time that the Framework Decision was negotiated. Public prosecutors As the issue on this appeal is whether a public prosecutor constitutes a judicial authority under Part 1 of the 2003 Act, it is appropriate to consider the nature of that office. Public prosecutors as their name suggests are public bodies that carry out functions relating to the prosecution of criminal offenders. On 8 December 2009 the Consultative Council of European Judges and the Consultative Council of European Prosecutors published for the attention of the Committee of Ministers a joint Opinion (2009) that consisted of a Declaration, called the Bordeaux Declaration together with an Explanatory Note. This comments at para 6 on the diversity of national legal systems, contrasting the common law systems with the Continental law systems. Under the latter the prosecutors may or may not be part of the judicial corps. Equally the public prosecutors autonomy from the executive may be complete or limited. Para 23 of the Note observes: The function of judging implies the responsibility for making binding decisions for the persons concerned and for deciding litigation on the basis of the law. Both are the prerogative of the judge, a judicial authority independent from the other state powers. This is, in general, not the mission of public prosecutors, who are responsible for bringing or continuing criminal proceedings. A recurrent theme of both the Declaration and the Note is the importance of the independence of the public prosecutors in the performance of their duties. Para 3 of the Declaration states that judges and public prosecutors must both enjoy independence in respect of their functions and also be and appear to be independent of each other. Para 6 states: The enforcement of the law and, where applicable, the discretionary powers by the prosecution at the pre trial stage require that the status of public prosecutors be guaranteed by law, at the highest possible level, in a manner similar to that of judges. They shall be independent and autonomous in their decision making and carry out their functions fairly, objectively and impartially. The Note comments at paras 33 and 34 that public prosecutors must act at all times honestly, objectively and impartially. Judges and public prosecutors have, at all times, to respect the integrity of suspects. The independence of the judge and the prosecutor is inseparable from the rule of law. Later the Note deals with the roles and functions of judges and public prosecutors in the pre criminal procedures: 48 At the pre trial stage the judge independently or sometimes together with the prosecutor, supervises the legality of the investigative actions, especially when they affect fundamental rights (decisions on arrest, custody, seizure, implementation of special investigative techniques, etc). Both the function and the independence of the prosecutor must be borne in mind when considering whether, under the Framework Decision, the term judicial authority can sensibly embrace a public prosecutor. The more recent genesis of the Framework Decision Stepping stones towards the Framework Decision were the Convention of 10 March 1995 on a simplified extradition procedure between Member States of the EU and the Convention of 27 September 1996 relating to extradition between the Member States. Of more relevance in the present context was the integration into the European Union under the Amsterdam Treaty of 1997 of the Schengen Agreement of 1985. Title 1V of the 1990 Convention implementing the Schengen Agreement established the Schengen Information System (SIS). Article 95 provided for the judicial authority of a Member State to issue an alert requesting the arrest of a person for extradition purposes. This had to be accompanied by, inter alia, information as to whether there was an arrest warrant or other document having the same legal effect. Article 98 made provision for the competent judicial authorities to request information for the purpose of discovering the place of residence or domicile of witnesses or defendants involved in criminal proceedings. Article 64 provided that an alert under article 95 should have the same force as a request for provisional arrest under article 16 of the 1957 Convention. We were not provided with any information as to the nature of the judicial authorities who sought provisional arrest under article 95. We were, however, provided with a Report dated 13 October 2009 of the Schengen Joint Supervisory Authority on an inspection of the use of article 98 alerts. This provided the following answer to the question which competent authorities may decide on an article 98 alert? While public prosecutors and judicial authorities obviously play a major role in the decision leading to article 98 alerts, in some Schengen States the police, security police, tax and customs authorities, border guard authorities and other authorities competent for criminal investigations are also competent to decide on article 98 alerts. It seems certain that public prosecutors must, in some Member States, have been responsible for initiating an article 95 alert and not unlikely that some of the other authorities competent to decide on an article 98 alert may have done so. On 15 and 16 October 1999 the European Council met at Tampere. Proposals made at this meeting under the heading of Mutual recognition of judicial decisions included that consideration should be given to fast track expedition procedures, without prejudice to the principle of fair trial. This led to the Commission submitting to the Council on 19 September 2001 a proposal for a Framework Decision. I shall call this the September draft. I propose to consider this in conjunction with the Explanatory Memorandum which accompanied it. The Preamble stated that the EAW aimed to replace the traditional extradition arrangements and had to have the same scope of application as the system of extradition built on the 1957 Convention (recital 5). The EAW was based on the principle of mutual recognition. If a judicial authority requested a person for the purpose of prosecution for an offence carrying a sentence of at least twelve months detention, the authorities of other Member States should comply with the request (recital 7). The decision on the execution of the EAW required sufficient controls and had, in consequence, to be taken by a judicial authority (recital 8). The role of central authorities was limited to practical and administrative assistance (recital 9). Article 1 of the September draft provided: The purpose of this Framework Decision is to establish the rules under which a Member State shall execute in its territory a European arrest warrant issued by a judicial authority in another Member State. Article 2 provided: A European arrest warrant may be issued for: (a) final judgments in criminal proceedings, and judgments in absentia, which involve deprivation of liberty or a detention order of at least four months in the issuing Member State; in criminal judicial decisions (b) other enforceable proceedings which involve deprivation of liberty and relate to an offence, which is punishable by deprivation of liberty or a detention order for a maximum period of at least twelve months in the issuing Member State. Thus, so far as a fugitive from prosecution was concerned, this article envisaged that before the issue of the EAW there would be an enforceable judicial decision involving deprivation of liberty. The issue of an arrest warrant is an obvious example of such a decision. Article 3 of the September draft included the following important definitions: (a) European arrest warrant means a request, issued by a judicial authority of a Member State, and addressed to any other Member State, for assistance in searching, arresting, detaining and obtaining the surrender of a person, who has been subject to a judgment or a judicial decision, as provided for in article 2; (b) issuing judicial authority means the judge or the public prosecutor of a Member State, who has issued a European arrest warrant; (c) executing judicial authority means the judge or the public prosecutor of a Member State in whose territory the requested person sojourns, who decides upon the execution of a European arrest warrant. In dealing with this article the Explanatory Memorandum made the following summary of the effect of the scheme (a) The European arrest warrant is a warrant for search, arrest, detention and surrender to the judicial authority of the issuing country. In the previous system, under the 1957 Convention as implemented by the Schengen Convention, the provisional arrest warrant and the extradition request were two separate phases of the procedure. Pursuant to the principle of mutual recognition of court judgments, it is no longer necessary to distinguish the two phases. The arrest warrant thus operates not only as a conventional arrest warrant (search, arrest and detention) but also as a request for surrender to the authorities of the issuing State. This provides an important insight as to the manner in which it was envisaged that the Framework Decision would alter the extradition process. The judicial authorities who were responsible for the article 95 alert requesting provisional arrest were those who might be expected to be responsible for the issue of the new EAW. As I have suggested above, it is not unlikely that in some Member States these included the police or other authorities who were responsible for article 98 alerts. If so, the definition of issuing judicial authority in article 3 of the September draft made it clear that this was not acceptable. As to this, the Explanatory Memorandum commented: The procedure of the European arrest warrant is based on the principle of mutual recognition of court judgments. State to State relations are therefore substantially replaced by court to court relations between judicial authorities. The term judicial authority corresponds, as in the 1957 Conventionto the judicial authorities as such and the prosecution services, but not to the authorities of police force. The issuing judicial authority will be the judicial authority which has authority to issue the European arrest warrant in the procedural system of the Member State. So far as the process of execution of the EAW was concerned, the Explanatory Memorandum made it plain that the nature of the judicial authority concerned would depend upon whether or not the fugitive was challenging extradition. If he was, the challenge would have to be resolved by a judge. If he was not, the judicial authority responsible for executing the warrant might be the prosecution service. Article 4 of the September draft provided: Each Member State shall designate according to its national law the judicial authorities that are competent to (a) issue a European arrest warrant The Explanatory Memorandum commented: The judicial authority having the power to issue a European arrest warrant is designated in accordance with the national legislation of the Member States. They will be able to entrust the decision either to the same authority as gave the judgment or the judgment referred to in article 2 or to another authority. The position in respect of the issue of an EAW can be summarised as follows. Before the EAW was issued there would be an antecedent process that would result in an enforceable judicial decision involving deprivation of liberty. In most, but not necessarily all, Member States this would involve a judge. The Swedish process in the present case, which I shall consider in due course, provides a good example of this. The subsequent issue of the EAW would have to be done by a judicial authority, but that term embraced both a judge and a public prosecutor. The judicial authority in question might or might not be that responsible for the antecedent process. Article 6 of the September draft dealt with the contents of the EAW. These included whether there is a final judgment or any other enforceable judicial decision, within the scope of article 2. The provisions of the September draft in relation to issue provided a degree of safeguard that the EAW would only be issued in a proper case, but further safeguards were provided in relation to the execution of the EAW. It was, of course, at that stage that the process would result in deprivation of liberty. The Preamble to the September draft provided: The decision 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 person has been arrested will take the decision whether to execute the warrant. Articles 10 to 23 of the September draft dealt with execution of the EAW. As the Explanatory Memorandum explained when commenting on article 4 and repeated when dealing with the various articles in section 3, the nature of the judicial authority involved in the execution of the EAW could depend upon whether or not the fugitive was challenging surrender. In some cases it might be the prosecuting authority, in others it would be a court. Thus article 18 provided: A court in the executing Member State shall decide on whether the European arrest warrant shall be executed after a hearing, held in accordance with the national rules of criminal procedure. (a) (b) if the requested person does not consent to his or her surrender; in cases referred to in articles 17(2) and (3). The issuing Member State may be represented or submit its observations before the court. In summary, under the September draft it was beyond doubt that judicial authority was a term that embraced both a court and a public prosecutor. It was a precondition to the issue of a valid EAW that there should have been an antecedent process leading to an enforceable judicial decision which would involve deprivation of liberty. The subsequent decision to issue the EAW might be taken by the same judicial authority responsible for the antecedent decision, or another. There was nothing to indicate that this could not be a public prosecutor. The scheme had much in common with the 1957 Convention, as implemented under Schengen, stripped of political involvement. Had the final Framework Decision followed the September draft, the issue that has led to this appeal could never have arisen. Article 3 expressly provided that the issuing judicial authority might be a public prosecutor. Elsewhere the judicial authority might or might not be a public prosecutor depending upon the function being performed. The September draft was, however, amended in a manner that obfuscated the position. The relevant changes appear to have been made in the course of discussion in the Council of Ministers. On 6 December the Presidency noted that fourteen delegations agreed on the new draft (the December draft), noting parliamentary scrutiny reservations from, inter alia, the United Kingdom. The December draft formed the basis of the final Framework Decision approved by the Council. I turn to consider the manner in which the Framework Decision differs from the September draft. Article 1 of the Framework Decision begins by stating that the EAW is a judicial decision issued by a Member State. The English version of the December draft read a court decision issued by a Member State. The words that I have emphasised were both translations of the French judiciaire in the original text. The French version was the original and is to be preferred. Thus I do not consider that the use of the word court in the English version of the December draft is of any assistance in determining the meaning of judiciaire. Most significantly, for present purposes, the definitions of issuing judicial authority and executing judicial authority in the final version no longer define these as being a judge or public prosecutor. The new definitions, now in article 6, are as follows: 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. With the exception of article 19.1, the articles dealing with execution make no reference to a hearing before a court. The phrase judicial authority is used throughout. Article 19.3 does, however, give a hint that more than one type of judicial authority may be involved. The article provides: The competent executing judicial authority may assign another judicial authority of its Member State to take part in the hearing of the requested person in order to ensure the proper application of this article and of the conditions laid down. It is to be noted that article 19.1 refers to requesting court. The French version of the word court is juridiction. The two versions replicate the words used in the French and English versions of the equivalent provision of the December draft. The French draft was the original and it is hard to see any justification for translating juridiction as court. In these circumstances, while the use of the phrase requesting court in the final version lend some support to Mr Assanges case on the meaning of issuing judicial authority it would not be safe to place much weight on that support. The overall scheme of the EAW did not change from that proposed in the September draft. In particular there remained a requirement for an antecedent process before the issue of the EAW. Article 2, under the heading Scope of the European arrest warrant set out the offences in respect of which an EAW could be issued. Article 8 specified the content of the warrant, which included (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. This simplified the description of the antecedent process in articles 2 and 6 of the September draft. It adopted the description of the antecedent process in the 1957 Convention. The critical question The critical question is whether the changes made to the draft Framework Decision between September and December altered the meaning of judicial authority so as to exclude a public prosecutor from its ambit. There would seem to be two possible reasons for removing the precise definition of judicial authority that had been included in article 3 of the September draft. The first was to restrict the meaning by excluding from its ambit the public prosecutor. The second was to broaden the meaning so that it was not restricted to a judge or a public prosecutor. For a number of reasons I have reached the firm conclusion that the second explanation is the more probable. In the first place, had the intention been to restrict the power to issue an EAW or to participate in its execution to a judge, I would expect this to have been expressly stated. The change would have been radical, and would have prevented public prosecutors from performing functions that they had been performing in relation to the issue of provisional arrest warrants since 1957. In the second place it is hard to see why the majority of Member States would have wished to restrict the ambit of the issuing judicial authority in this way. The significant safeguard against the improper or inappropriate issue of an EAW lay in the antecedent process which formed the basis of the EAW. If there had been concern to ensure the involvement of a judge in relation to the issue of an EAW, the obvious focus should have been on this process. The function of the issuing authority was of less significance. That fact is underlined by the only case outside the United Kingdom to which we have been referred where a challenge was made to the issue of an EAW by a public prosecutor. In Piaggio (Germany) (14 February 2007, Court of Cassation Sez 6 (Italy)) the appellant challenged the issue by the Hamburg Public Prosecutors Office of an EAW on the ground that it should have been issued and signed by a judge. The Court rejected this contention for the following reasons: The claim alleging breach of article 1(3) of Law no 69 of 2005 on the ground that the EAW was not signed by a judge is completely unfounded. The provision allegedly requiring signature by a judge does not refer to the EAW, as the appellant mistakenly claims, but to the precautionary measure on the basis of which the warrant was issued: in the present case, it is in fact the arrest warrant issued by the Hamburg District Magistrates Court on 24 August 2005, regularly signed by Judge Reinke. The guarantee specified in the aforesaid article1(3) does not relate to the act requesting the Member State to grant extradition but is directly connected with the custodial measure, that is to say it is a substantial guarantee concerned with the basic conditions underlying the EAW, which must be subject to jurisdiction. In this procedure, the true guarantee of personal freedom is not the fact that the EAW is issued by a judicial authority but the fact that the warrant is based on a judicial measure. Moreover, article 6 of the framework decision leaves to the individual Member State the task of determining the judicial authority responsible for issuing (or executing) a European Arrest Warrant, and the Italian implementing law, with regard to the active extradition procedure, provides for certain cases in which the Public Prosecutors office is to be responsible for issuing the EAW (article 28 of Law no 69/2005). Essentially, the alleged breach of the law in respect of the fact that the EWA was signed by the Hamburg Public Prosecutors Office, must be excluded. On 23 February 2009 this decision was acknowledged with approval in the Experts Evaluation Report on Italys procedures in relation to the EAW (5832/2/09 REV 2) The final comment made at 7.3.2.6 is of particular significance: Under article 1(3) of the Italian implementing law, Italy shall implement the EAW as long as the preventative remedy on the basis of which the warrant has been issued has been signed by a Judge and is adequately motivated. The expert team notes that this provision gave rise to at least two difficulties: the requirement that the domestic arrest warrant (a) must be signed by a judge could wrongly be interpreted in the sense that the Italian executing authority should refuse the execution of an EAW if the domestic arrest warrant on which it was based is issued by a judicial authority other than a judge, in particular by a prosecutor; the requirement that the domestic arrest warrant (b) must be adequately motivated could be interpreted in the sense that the Italian executing authority should proceed to a factual verification of the case it is not supposed to do. On this point, the requirement seems in contradiction with the principle of mutual recognition on which the Framework Decision is based. However, the Court of Cassation has given an interpretation of this provision in line with the Framework Decision (my emphasis). Miss Rose suggested that the issuing judicial authority had a role to play in ensuring that it was proportionate to issue the EAW. Since the EAW was introduced there has been concern that some EAWs are being issued in respect of trivial offences. The Council, in a note dated 28 May 2010 (8436/2/10 REV 2) commented on the need for Member States to conduct a proportionality check before issuing an EAW. It stated, however It is clear that the Framework Decision on the EAW does not include any obligation for an issuing Member State to conduct a proportionality check In the light of this statement it would not be right to infer that when the EAW was being negotiated Member States agreed to restrict its issue to a judge in order to ensure that proportionality received proper judicial consideration. In the third place I find it likely that the removal of the definition of judicial authority as being a judge or public prosecutor was not because Member States wished to narrow its meaning to a judge, but because they were not content that its meaning should be restricted to a judge or a public prosecutor. Member States had existing procedures for initiating an extradition request and for requesting provisional arrest in another Member State which involved their domestic arrest procedures. They also had existing procedures for giving effect to extradition requests. The authorities involved in these procedures were not restricted to judges and prosecutors. It seems to me likely that the removal of a precise definition of judicial authority was intended to leave the phrase bearing its sens vague so as to accommodate a wider range of authorities. In the fourth place aspects of the December draft suggest that the meaning of judicial authority was not restricted to a court or judge. The requirement that became article 6.3 of the final version to inform the General Secretariat of the Council of the competent judicial authority under its law makes more sense if there was a range of possible judicial authorities. And, as I have pointed out in para 58 above, article 19.3 of the final version suggests the co operation of different types of judicial authority in the execution process. In the fifth place the manner in which not merely the Member States but also the Commission and the Council acted after the Framework Direction took effect was in stark conflict with a definition of judicial authority that restricted its meaning to a judge. Article 31.3(b) of the 1969 Vienna Convention on the Law of Treaties permits recourse, as an aid to interpretation, to any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. The EAW processes of the Member States were subject to Reports by the Commission and Evaluation Reports on the working of the EAW were prepared by experts and submitted to the Council (see below). The practices of the Member States in relation to those they appointed as issuing and executing judicial authorities coupled with the comments of the Commission and the Council in relation to these, provide I believe a legitimate guide to the meaning of those two words in the Framework Decision. Implementation of the Framework Decision by the Member States Had the omission of the definition of judicial authority in the final version of the Framework Decision reflected an intention on the part of the Member States that negotiated it that only a judge or court could act as an issuing or executing authority, I would have expected the Member States to have implemented that intention when giving effect to the Framework Decision. I would equally have expected Reports published by the Commission and the Experts Evaluation Reports for the Council to have commented critically on any failure by a Member State to appoint a court or judge as the issuing and executing judicial authority. This was far from the case. 11 Member States designated a prosecutor as the issuing judicial authority in relation to fugitives sought for prosecution and 10, not in every case the same, designated a prosecutor as the issuing judicial authority in respect of fugitives who had been sentenced. 10 Member States designated a prosecutor as the executing judicial authority. Some of these had designated a judge or court as the issuing judicial authority. A handful of Member States had designated the Ministry of Justice as the issuing or executing judicial authority Article 34 of the Framework Decision required the Commission to submit a report to the European Parliament and to the Council on the operation of the Framework Decision. We have been provided with two such reports, the First Report dated 24 January 2006 and the Second Report dated 11 July 2007. These Reports commented adversely on the appointment by a small minority of Member States of executive bodies as judicial authorities but made no adverse comment on the use of public prosecutors as judicial authorities. Mutual Evaluation Reports into the practical application of the European Arrest Warrant and corresponding surrender procedures between Member States were made to the Council by experts nominated by Member States. We have been provided with 15 Reports from the fourth round of these mutual evaluations. Once again, while the Reports contain adverse comment on the use of Ministries of Justice as issuing or executing judicial authorities, there is no adverse comment on the use of prosecutors in this role. Indeed, as I have pointed out in para.63 above, in the case of Italy the report commended this practice. On 28 May 2009 the Council published a Final Report on the fourth round of mutual evaluations. Its Conclusions included, in para 3.1, comments on the role of the judicial authorities. These commented that in some Member States non judicial central authorities continued to play a role in cardinal aspects of the surrender procedure. This was criticised as difficult to reconcile with the letter and the spirit of the Framework Decision. No criticism was made of the use of prosecutors as judicial authorities. The Council went on to call on Member States to provide judges, prosecutors and judicial staff with appropriate training on the EAW. There is once again a clear inference, this time in relation to the Council, that there was no objection to prosecutors performing the role of issuing judicial authorities. Conclusions on the Framework Decision I turn now to Miss Roses reliance on the meaning of autorit judiciaire (legal authority) in the context of article 5, to which I referred at para 21. I there set out article 5.1(c). Article 5.3 provides: 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 Miss Rose referred us to a series of 17 decisions of the Strasbourg Court which establish that the competent legal authority referred to in article 5.1(c) is shorthand for the judge or other officer authorised by law to exercise judicial power in article 5.3. These start with Schiesser v Switzerland (1979) 2 EHRR 417 and finish with Medvedyev v France (2010) 51 EHRR 899. They are, for the most part, cases where prosecutors or those subject to their control, authorised the detention of suspects during pre trial investigations on the basis that they were competent legal authorities within the meaning of that phrase in article 5.1(c). The Strasbourg Court made it plain that those involved in the prosecution of a defendant lacked the necessary independence to qualify as competent legal authorities. In Medvedyev the Grand Chamber held at paras 123 124: Since article 5.1(c) forms a whole with article 5.3, competent legal authority in para 1 (c) is a synonym, of abbreviated form, for judge or other officer authorised by law to exercise judicial power in para 3. The judicial officer must offer the requisite guarantees of independence from the executive and the parties, which precludes his subsequent intervention in criminal proceedings on behalf of the prosecuting authority, and he or she must have the power to order release, after hearing the individual and reviewing the lawfulness of, and justification for, the arrest and detention. Miss Rose submitted that this line of authority conclusively established the meaning of judicial authority in the Framework Decision. This was coupled with the submission that those two words had to be given the same meaning wherever they appeared in the Decision. I consider that both submissions are unsound. The article 5 authorities apply to the stage of pre trial proceedings at which the suspect has to be afforded the opportunity to challenge his detention. They have direct application to the stage of the execution of an EAW for which articles 14, 15 and 19 of the Framework Decision make provision. At this stage the competent judicial authority must have the characteristics identified in the Strasbourg decisions relied upon. Those decisions do not, however, apply to the stage at which a request is made by the issuing State for the surrender, or as the English statute incorrectly describes it, the extradition, of the fugitive. That is not a stage at which there is any adversarial process between the parties. It is a stage at which one of the parties takes an essentially administrative step in the process. That is a step that it is appropriate for a prosecutor to take. When considering the meaning of a word or phrase that is used more than once in the same instrument one starts with a presumption that it bears the same meaning wherever it appears. That is not, however, an irrebuttable presumption. It depends upon the nature of the word or phrase in question and the contexts in which it appears in the instrument. In the Framework Decision the same phrase is used to describe different authorities performing different functions at different stages of the overall process. The phrase is capable of applying to a variety of different authorities. The contexts in which it is used in the Framework Decision do not require that all the authorities have the same characteristics. On the contrary the contexts permit the issuing judicial authority to have different characteristics from the executing judicial authority and, indeed, for the phrase judicial authority to bear different meanings at the stage of execution of the EAW dependent upon the function being performed. The purpose of the Framework Decision, its general scheme, the previous European extradition arrangements, the existing procedures of the Member States at the time that the Framework Decision was negotiated, the preparatory documents and the variety of meanings that the French version of the phrase in issue naturally bears, the manner in which the Framework Decision has been implemented and the attitude of the Commission and the Council to its implementation all lead to the conclusion that the issuing judicial authority bears the wide meaning for which Miss Montgomery contends and embraces the Prosecutor in the present case. All that weighs the other way is the narrower meaning that the English phrase naturally bears. That does not begin to tilt the scales in favour of Miss Roses submission. For this reason I conclude that the Prosecutor in this case fell within the meaning of issuing judicial authority in the Framework Decision. The 2003 Act It is necessary, if possible, to give judicial authority the same meaning in the 2003 Act as it bears in the Framework Decision. Is it possible? The manner in which the Act sets out to give effect to the Framework Decision has been vigorously criticised by Professor John Spencer in Implementing the European Arrest Warrant: A Tale of How Not to Do it (2009) 30(3) Statute Law Review 184. This appeal will afford him additional grounds of attack. The Act does not make clear the overall nature of the EAW scheme for which the Framework Decision provides. It does not make clear the vital part that the antecedent process plays in the scheme. The scheme is founded on the mutual recognition of the decision that is taken in that process. Article 8 of the Framework Decision provides that the EAW must contain evidence of an enforceable judgment, an arrest warrant or other enforceable judicial decision having the same effect. Section 2 of the 2003 Act requires the arrest warrant to give particulars of any other warrant issued in the category 1 territory for the persons arrest in respect of the offence (my emphasis). I am not surprised that this provision has given rise to some judicial confusion, as evidenced by the series of decisions that culminated in the decision of the House of Lords in Louca v Public Prosecutor, Bielefeld, Germany [2009] UKSC 4; [2009] 1 WLR 2550. Only in that case was it appreciated that the provision referred to any domestic warrant on which the European warrant is based per Lord Mance at para 15. Because the 2003 Act does not make clear the importance of the antecedent decision, it can give the impression that the decision to issue the EAW is the step in the procedure at which are considered all the matters that will be taken into account in the course of the antecedent process. This, in its turn, can lead to the conclusion that the decision to issue the EAW is of such importance that Parliament must have intended it to be taken by a judge, and that judicial authority must be interpreted as meaning a judge. As I have sought to demonstrate this reasoning is unsound. Under the scheme of the Framework Decision the safeguard against the inappropriate issue of an EAW lies in the process antecedent to the issue of the EAW. I have drawn attention to the uncertainty on the material before us as to whether a court is involved in that process in all Member States, though this material indicates that it is in at least most States. No material has been put before us that suggests that EAWs are being issued on the basis of an antecedent process that is unsatisfactory for want of judicial involvement. The scheme does not provide for a second judicial process at the stage of the issue of the EAW. To interpret issuing judicial authority as meaning a court or judge would result in a large proportion of EAWs being held to be ineffective in this country, notwithstanding their foundation on an antecedent judicial process. For these reasons I can see no impediment to according to judicial authority in Part 1 of the 2003 Act the same meaning as it bears in the Framework Decision. On the contrary there is good reason to accord it such meaning. I have concluded that the Prosecutor who issued the EAW in this case was a judicial authority within the meaning of that phrase in section 2 of the 2003 Act and that Mr Assanges challenge to the validity of the EAW fails. The Lord Advocates intervention The Lord Advocate for Scotland, in a written intervention, submitted that the 2003 Act did not permit the Court to look behind a designation of a judicial authority made by a Member State under article 6.3 of the Framework Decision and accepted by the certificate of the designated authority under section 2 of the 2003 Act. This submission challenged the finding of the Divisional Court in this case that neither the designation by Sweden of its issuing judicial authority nor the issue of a certificate under section 2 barred Mr Assange from contending that his EAW had not been issued by a judicial authority. This did not discourage Miss Montgomery from aligning herself with the Lord Advocates submission at the ninth hour. Miss Rose made written submissions after the hearing supporting the reasoning of the Divisional Court. While I found this reasoning persuasive, I was none the less impressed by the opposite view expressed in Sir Scott Bakers Report, to which I refer below. In the circumstances I think that it would be better not to express a final opinion on the point, leaving it open for oral argument on a future occasion. The facts of this case The point on the meaning of judicial authority taken in this case has been technical, in as much as there has been no lack of judicial consideration of whether there is a case that justifies the prosecution of Mr Assange for the offences in respect of which his extradition is sought. I shall give a bare outline of events in Sweden. The proceedings against Mr Assange are founded on complaints made by two women on 20 August 2010. A Preliminary Investigation conducted by the Chief Officer, in which Mr Assange co operated, concluded that there was no case against him in respect of the alleged rape. The complainants appealed against this decision to the Prosecutor, who re opened the full Preliminary Investigation. Mr Assange instructed counsel to represent him. He then left the country, which he was free to do. On 18 November the Prosecutor applied to the Stockholm District Court for a domestic detention order in absentia. The Stockholm District Court granted the order. The following day Mr Assange, by his counsel, appealed to the Svea Court of Appeal against the order on the grounds that the domestic arrest was not proportionate and was not based on sufficient evidence to give rise to probable cause. The Prosecutor informed the Court of Appeal that she intended to issue an EAW. The Court of Appeal dismissed Mr Assanges appeal on the papers and without an oral hearing on 24 November. On 26 November the Prosecutor issued an EAW. This was submitted to SOCA and rejected because it failed to specify the potential sentences in respect of the offences alleged. A replacement EAW was issued on 2 December 2010 and this was certified by SOCA under section 2(7) and (8) of the 2003 Act on 6 December 2010. Under Swedish law the issue of a domestic detention order in absentia was a precondition to the issue of an EAW. That order was issued by a court which, it seems, had to be satisfied that there was sufficient evidence giving rise to probable cause and that domestic arrest was proportionate. The only possible additional area of discretion so far as the issue of the EAW was concerned would seem to be whether this was proportionate. There does not appear to have been a requirement that this should receive judicial consideration. Proportionality On 30 September 2011 a Committee chaired by the Rt Hon Sir Scott Baker presented a report to the Home Secretary that reviewed the United Kingdoms extradition arrangements. At paras 5.106 to 5.119 the Report considers a criticism that it is possible for an EAW to be issued by non judicial authorities, most often by public prosecutors. It makes the following comment: The rationale which underpins both article 6 and section 2(7) is the obvious need for an internationalist or cosmopolitan approach to the interpretation of the term judicial authority: it is for the domestic law of each Member State to decide which body or authority is responsible for issuing warrants and it is not for other Member States to question the competence of the body in question, or the institutional arrangements for the issuing of warrants. The Report gave a number of reasons for concluding that this position was satisfactory, not least of which was the statement that the panel was not aware of any cases in which EAWs issued by designated prosecuting authorities had led to oppression or injustice. The Report went on, in considerably greater detail, to consider the importance of proportionality. This had been considered in the Councils Report to which I have referred at para 71 above. The 9th recommendation of this Report was that there should be continued discussion on the institution of a proportionality requirement for the issue of any EAW with a view to reaching a coherent solution at European Union level. The Scott Baker Report agreed that proportionality should be considered at the stage of issuing an EAW. It did not recommend that the question of proportionality should be reviewed as part of the process of execution. There are three principal areas of judgment that may be involved in issuing and executing an accusation EAW. The first involves consideration of whether there are reasonable grounds for arresting the fugitive for the purpose of prosecuting him. Under the scheme consideration of this question should form part of the antecedent process. It should not be repeated at the stage of execution. The second involves consideration of whether surrender of the fugitive will involve an infringement of his human rights. This issue will not often arise, and when it does it is likely to involve considering proportionality. Under the scheme of the EAW, consideration of any human rights issue should take place at the extradition hearing, which will necessarily involve a judge. The third area of judgment involves consideration of whether, quite apart from any discrete human rights issues, the alleged offence is sufficiently serious to justify the draconian measure of removing the fugitive from the country in which he is living to the country where he is alleged to have offended. The Framework Decision dealt with this to a degree in as much as it provides that an accusation EAW can only be issued where the offence for which the fugitive is to be prosecuted must carry a maximum sentence of at least 12 months. It has become clear that this is insufficient to prevent the issue of an EAW in respect of an offence that is too trivial to justify the process. It seems that EAWs are being issued in some cases for offences as trivial as stealing a chicken. This reflects the fact that in some States such as Poland, under a constitutional principle of legality, the prosecutor has an obligation to prosecute a person who is reasonably suspected of having committed a criminal offence, however trivial the offence. The scheme of the EAW needs to be reconsidered in order to make express provision for consideration of proportionality. It makes sense for that question to be considered as part of the process of issue of the EAW. To permit proportionality to be raised at the stage of execution would result in delay that would run counter to the scheme. It does not necessarily follow that an offence that justifies the issue of a domestic warrant of arrest will justify the issue of an EAW. For this reason the antecedent process will not necessarily consider the proportionality of issuing an EAW. There is a case for making proportionality an express precondition of the issue of an EAW. Should this be done, it may be appropriate to define issuing judicial authority in such a way as to ensure that proportionality receives consideration by a judge. At present there is no justification for such a course. For the reasons that I have given I would dismiss this appeal. 32002F0584 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States Statements made by certain Member States on the adoption of the Framework Decision Official Journal L 190 , 18/07/2002 P. 0001 0020 on the European arrest warrant and the surrender procedures between Council Framework Decision of 13 June 2002 Member States (2002/584/JHA) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Article 31(a) and (b) and Article 34(2)(b) thereof, Having regard to the proposal from the Commission(1), Having regard to the opinion of the European Parliament(2), Whereas: (1) According to the Conclusions of the Tampere European Council of 15 and 16 October 1999, and in particular point 35 thereof, the formal extradition procedure should be abolished among the Member States in respect of persons who are fleeing from justice after having been finally sentenced and extradition procedures should be speeded up in respect of persons suspected of having committed an offence. (2) The programme of measures to implement the principle of mutual recognition of criminal decisions envisaged in point 37 of the Tampere European Council Conclusions and adopted by the Council on 30 November 2000(3), addresses the matter of mutual enforcement of arrest warrants. (3) All or some Member States are parties to a number of conventions in the field of extradition, including the European Convention on extradition of 13 December 1957 and the European Convention on the suppression of terrorism of 27 January 1977. The Nordic States have extradition laws with identical wording. (4) In addition, the following three Conventions dealing in whole or in part with extradition have been agreed upon among Member States and form part of the Union acquis: the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their common borders(4) (regarding relations between the Member States which are parties to that Convention), the Convention of 10 March 1995 on simplified extradition procedure between the Member States of the European Union(5) and the Convention of 27 September 1996 relating to extradition between the Member States of the European Union(6). (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. (7) Since the aim of replacing the system of multilateral extradition built upon the European Convention on Extradition of 13 December 1957 cannot be sufficiently achieved by the Member States acting unilaterally and can therefore, by reason of its scale and effects, be better achieved at Union level, the Council may adopt measures in accordance with the principle of subsidiarity as referred to in Article 2 of the Treaty on European Union and Article 5 of the Treaty establishing the European Community. In accordance with the principle of proportionality, as set out in the latter Article, this Framework Decision does not go beyond what is necessary in order to achieve that objective. (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. (10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof. (11) In relations between Member States, the European arrest warrant should replace all the previous instruments concerning extradition, including the provisions of Title III of the Convention implementing the Schengen Agreement which concern extradition. (12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union(7), in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons. This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media. (13) No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. (14) Since all Member States have ratified the Council of Europe Convention of 28 January 1981 for the protection of individuals with regard to automatic processing of personal data, the personal data processed in the context of the implementation of this Framework Decision should be protected in accordance with the principles of the said Convention, HAS ADOPTED THIS FRAMEWORK DECISION: CHAPTER 1 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 2 Scope of the European arrest warrant 1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months. 2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant: participation in a criminal organisation, terrorism, trafficking in human beings, sexual exploitation of children and child pornography, illicit trafficking in narcotic drugs and psychotropic substances, illicit trafficking in weapons, munitions and explosives, corruption, fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests, laundering of the proceeds of crime, counterfeiting currency, including of the euro, computer related crime, environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties, facilitation of unauthorised entry and residence, murder, grievous bodily injury, illicit trade in human organs and tissue, kidnapping, illegal restraint and hostage taking, racism and xenophobia, organised or armed robbery, illicit trafficking in cultural goods, including antiques and works of art, swindling, racketeering and extortion, counterfeiting and piracy of products, forgery of administrative documents and trafficking therein, forgery of means of payment, illicit trafficking in hormonal substances and other growth promoters, illicit trafficking in nuclear or radioactive materials, trafficking in stolen vehicles, rape, arson, crimes within the jurisdiction of the International Criminal Court, unlawful seizure of aircraft/ships, sabotage. 3. The Council may decide at any time, acting unanimously after consultation of the European Parliament under the conditions laid down in Article 39(1) of the Treaty on European Union (TEU), to add other categories of offence to the list contained in paragraph 2. The Council shall examine, in the light of the report submitted by the Commission pursuant to Article 34(3), whether the list should be extended or amended. 4. For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described. Article 3 Grounds for mandatory non execution of the European arrest warrant The judicial authority of the Member State of execution (hereinafter "executing judicial authority") shall refuse to execute the European arrest warrant in the following cases: 1. if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law; 2. if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State; 3. if the person who is the subject of the European arrest warrant may not, owing to his age, be held criminally responsible for the acts on which the arrest warrant is based under the law of the executing State. Article 4 Grounds for optional non execution of the European arrest warrant The executing judicial authority may refuse to execute the European arrest warrant: 1. if, in one of the cases referred to in Article 2(4), the act on which the European arrest warrant is based does not constitute an offence under the law of the executing Member State; however, in relation to taxes or duties, customs and exchange, execution of the European arrest warrant shall not be refused on the ground that the law of the executing Member State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing Member State; 2. where the person who is the subject of the European arrest warrant is being prosecuted in the executing Member State for the same act as that on which the European arrest warrant is based; 3. where the judicial authorities of the executing Member State have decided either not to prosecute for the offence on which the European arrest warrant is based or to halt proceedings, or where a final judgment has been passed upon the requested person in a Member State, in respect of the same acts, which prevents further proceedings; 4. where the criminal prosecution or punishment of the requested person is statute barred according to the law of the executing Member State and the acts fall within the jurisdiction of that Member State under its own criminal law; 5. if the executing judicial authority is informed that the requested person has been finally judged by a third State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country; 6. if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law; 7. where the European arrest warrant relates to offences which: (a) are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such; or (b) have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory. Article 5 Guarantees to be given by the issuing Member State in particular cases The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions: 1. where the European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment; 2. if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non execution of such penalty or measure; 3. where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State. 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. 2. The European arrest warrant must be translated into the official language or one of the official languages of the executing Member State. Any Member State may, when this Framework Decision is adopted or at a later date, state in a declaration deposited with the General Secretariat of the Council that it will accept a translation in one or more other official languages of the Institutions of the European Communities. CHAPTER 2 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. Article 10 Detailed procedures for transmitting a European arrest warrant 1. If the issuing judicial authority does not know the competent executing judicial authority, it shall make the requisite enquiries, including through the contact points of the European Judicial Network(8), in order to obtain that information from the executing Member State. 2. If the issuing judicial authority so wishes, transmission may be effected via the secure telecommunications system of the European Judicial Network. 3. If it is not possible to call on the services of the SIS, the issuing judicial authority may call on Interpol to transmit a European arrest warrant. 4. The issuing judicial authority may forward the European arrest warrant by any secure means capable of producing written records under conditions allowing the executing Member State to establish its authenticity. 5. All difficulties concerning the transmission or the authenticity of any document needed for the execution of the European arrest warrant shall be dealt with by direct contacts between the judicial authorities involved, or, where appropriate, with the involvement of the central authorities of the Member States. 6. If the authority which receives a European arrest warrant is not competent to act upon it, it shall automatically forward the European arrest warrant to the competent authority in its Member State and shall inform the issuing judicial authority accordingly. Article 11 Rights of a requested person 1. When a requested person is arrested, the executing competent judicial authority shall, in accordance with its national law, inform that person of the European arrest warrant and of its contents, and also of the possibility of consenting to surrender to the issuing judicial authority. 2. A requested person who is arrested for the purpose of the execution of a European arrest warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State. Article 12 Keeping the person in detention When a person is arrested on the basis of a European arrest warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State. The person may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding. Article 13 Consent to surrender 1. If the arrested person indicates that he or she consents to surrender, that consent and, if appropriate, express renunciation of entitlement to the "speciality rule", referred to in Article 27(2), shall be given before the executing judicial authority, in accordance with the domestic law of the executing Member State. 2. Each Member State shall adopt the measures necessary to ensure that consent and, where appropriate, renunciation, as referred to in paragraph 1, are established in such a way as to show that the person concerned has expressed them voluntarily and in full awareness of the consequences. To that end, the requested person shall have the right to legal counsel. 3. The consent and, where appropriate, renunciation, as referred to in paragraph 1, shall be formally recorded in accordance with the procedure laid down by the domestic law of the executing Member State. 4. In principle, consent may not be revoked. Each Member State may provide that consent and, if appropriate, renunciation may be revoked, in accordance with the rules applicable under its domestic law. In this case, the period between the date of consent and that of its revocation shall not be taken into consideration in establishing the time limits laid down in Article 17. A Member State which wishes to have recourse to this possibility shall inform the General Secretariat of the Council accordingly when this Framework Decision is adopted and shall specify the procedures whereby revocation of consent shall be possible and any amendment to them. Article 14 Hearing of the requested person Where the arrested person does not consent to his or her surrender as referred to in Article 13, he or she shall be entitled to be heard by the executing judicial authority, in accordance with the law of the executing Member State. Article 15 Surrender decision 1. The executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered. 2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17. 3. The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority. Article 16 Decision in the event of multiple requests 1. If two or more Member States have issued European arrest warrants for the same person, the decision on which of the European arrest warrants shall be executed shall be taken by the executing judicial authority with due consideration of all the circumstances and especially the relative seriousness and place of the offences, the respective dates of the European arrest warrants and whether the warrant has been issued for the purposes of prosecution or for execution of a custodial sentence or detention order. 2. The executing judicial authority may seek the advice of Eurojust(9) when making the choice referred to in paragraph 1. 3. In the event of a conflict between a European arrest warrant and a request for extradition presented by a third country, the decision on whether the European arrest warrant or the extradition request takes precedence shall be taken by the competent authority of the executing Member State with due consideration of all the circumstances, in particular those referred to in paragraph 1 and those mentioned in the applicable convention. 4. This Article shall be without prejudice to Member States' obligations under the Statute of the International Criminal Court. Article 17 Time limits and procedures for the decision to execute the European arrest warrant 1. A European arrest warrant shall be dealt with and executed as a matter of urgency. 2. In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given. 3. In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person. 4. Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days. 5. As long as the executing judicial authority has not taken a final decision on the European arrest warrant, it shall ensure that the material conditions necessary for effective surrender of the person remain fulfilled. 6. Reasons must be given for any refusal to execute a European arrest warrant. 7. Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article, it shall inform Eurojust, giving the reasons for the delay. In addition, a Member State which has experienced repeated delays on the part of another Member State in the execution of European arrest warrants shall inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level. Article 18 Situation pending the decision 1. Where the European arrest warrant has been issued for the purpose of conducting a criminal prosecution, the executing judicial authority must: (a) either agree that the requested person should be heard according to Article 19; (b) or agree to the temporary transfer of the requested person. 2. The conditions and the duration of the temporary transfer shall be determined by mutual agreement between the issuing and executing judicial authorities. 3. In the case of temporary transfer, the person must be able to return to the executing Member State to attend hearings concerning him or her as part of the surrender procedure. Article 19 Hearing the person pending the decision 1. The requested person shall be heard by a judicial authority, assisted by another person designated in accordance with the law of the Member State of the requesting court. 2. The requested person shall be heard in accordance with the law of the executing Member State and with the conditions determined by mutual agreement between the issuing and executing judicial authorities. 3. The competent executing judicial authority may assign another judicial authority of its Member State to take part in the hearing of the requested person in order to ensure the proper application of this Article and of the conditions laid down. Article 20 Privileges and immunities 1. Where the requested person enjoys a privilege or immunity regarding jurisdiction or execution in the executing Member State, the time limits referred to in Article 17 shall not start running unless, and counting from the day when, the executing judicial authority is informed of the fact that the privilege or immunity has been waived. The executing Member State shall ensure that the material conditions necessary for effective surrender are fulfilled when the person no longer enjoys such privilege or immunity. 2. Where power to waive the privilege or immunity lies with an authority of the executing Member State, the executing judicial authority shall request it to exercise that power forthwith. Where power to waive the privilege or immunity lies with an authority of another State or international organisation, it shall be for the issuing judicial authority to request it to exercise that power. Article 21 Competing international obligations This Framework Decision shall not prejudice the obligations of the executing Member State where the requested person has been extradited to that Member State from a third State and where that person is protected by provisions of the arrangement under which he or she was extradited concerning speciality. The executing Member State shall take all necessary measures for requesting forthwith the consent of the State from which the requested person was extradited so that he or she can be surrendered to the Member State which issued the European arrest warrant. The time limits referred to in Article 17 shall not start running until the day on which these speciality rules cease to apply. Pending the decision of the State from which the requested person was extradited, the executing Member State will ensure that the material conditions necessary for effective surrender remain fulfilled. Article 22 Notification of the decision The executing judicial authority shall notify the issuing judicial authority immediately of Article 23 Time limits for surrender of the person 1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned. 2. He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant. 3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. the decision on the action to be taken on the European arrest warrant. 4. The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. 5. Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released. Article 24 Postponed or conditional surrender 1. The executing judicial authority may, after deciding to execute the European arrest warrant, postpone the surrender of the requested person so that he or she may be prosecuted in the executing Member State or, if he or she has already been sentenced, so that he or she may serve, in its territory, a sentence passed for an act other than that referred to in the European arrest warrant. 2. Instead of postponing the surrender, the executing judicial authority may temporarily surrender the requested person to the issuing Member State under conditions to be determined by mutual agreement between the executing and the issuing judicial authorities. The agreement shall be made in writing and the conditions shall be binding on all the authorities in the issuing Member State. Article 25 Transit 1. Each Member State shall, except when it avails itself of the possibility of refusal when the transit of a national or a resident is requested for the purpose of the execution of a custodial sentence or detention order, permit the transit through its territory of a requested person who is being surrendered provided that it has been given information on: (a) the identity and nationality of the person subject to the European arrest warrant; (b) the existence of a European arrest warrant; (c) the nature and legal classification of the offence; (d) the description of the circumstances of the offence, including the date and place. Where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the Member State of transit, transit may be subject to the condition that the person, after being heard, is returned to the transit Member State to serve the custodial sentence or detention order passed against him in the issuing Member State. 2. Each Member State shall designate an authority responsible for receiving transit requests and the necessary documents, as well as any other official correspondence relating to transit requests. Member States shall communicate this designation to the General Secretariat of the Council. 3. The transit request and the information set out in paragraph 1 may be addressed to the authority designated pursuant to paragraph 2 by any means capable of producing a written record. The Member State of transit shall notify its decision by the same procedure. 4. This Framework Decision does not apply in the case of transport by air without a scheduled stopover. However, if an unscheduled landing occurs, the issuing Member State shall provide the authority designated pursuant to paragraph 2 with the information provided for in paragraph 1. 5. Where a transit concerns a person who is to be extradited from a third State to a Member State this Article will apply mutatis mutandis. In particular the expression "European arrest warrant" shall be deemed to be replaced by "extradition request". CHAPTER 3 EFFECTS OF THE SURRENDER Article 26 Deduction of the period of detention served in the executing Member State 1. The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed. 2. To that end, all information concerning the duration of the detention of the requested person on the basis of the European arrest warrant shall be transmitted by the executing judicial authority or the central authority designated under Article 7 to the issuing judicial authority at the time of the surrender. Article 27 Possible prosecution for other offences 1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender. 2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered. 3. Paragraph 2 does not apply in the following cases: (a) when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it; (b) the offence is not punishable by a custodial sentence or detention order; (c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty; (d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty; (e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the speciality rule, in accordance with Article 13; (f) when the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State's domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel; (g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4. 4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request. For the situations mentioned in Article 5 the issuing Member State must give the guarantees provided for therein. Article 28 Surrender or subsequent extradition 1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States which have given the same notification, the consent for the surrender of a person to a Member State other than the executing Member State pursuant to a European arrest warrant issued for an offence committed prior to his or her surrender is presumed to have been given, unless in a particular case the executing judicial authority states otherwise in its decision on surrender. 2. In any case, a person who has been surrendered to the issuing Member State pursuant to a European arrest warrant may, without the consent of the executing Member State, be surrendered to a Member State other than the executing Member State pursuant to a European arrest warrant issued for any offence committed prior to his or her surrender in the following cases: (a) where the requested person, having had an opportunity to leave the territory of the Member State to which he or she has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it; (b) where the requested person consents to be surrendered to a Member State other than the executing Member State pursuant to a European arrest warrant. Consent shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State's national law. It shall be drawn up in such a way as to make clear that the person concerned has given it voluntarily and in full awareness of the consequences. To that end, the requested person shall have the right to legal counsel; (c) where the requested person is not subject to the speciality rule, in accordance with Article 27(3)(a), (e), (f) and (g). 3. The executing judicial authority consents to the surrender to another Member State according to the following rules: (a) the request for consent shall be submitted in accordance with Article 9, accompanied by the information mentioned in Article 8(1) and a translation as stated in Article 8(2); (b) consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision; (c) the decision shall be taken no later than 30 days after receipt of the request; (d) consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. For the situations referred to in Article 5, the issuing Member State must give the guarantees provided for therein. 4. Notwithstanding paragraph 1, a person who has been surrendered pursuant to a European arrest warrant shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person. Such consent shall be given in accordance with the Conventions by which that Member State is bound, as well as with its domestic law. Article 29 Handing over of property 1. At the request of the issuing judicial authority or on its own initiative, the executing judicial authority shall, in accordance with its national law, seize and hand over property which: (a) may be required as evidence, or (b) has been acquired by the requested person as a result of the offence. 2. The property referred to in paragraph 1 shall be handed over even if the European arrest warrant cannot be carried out owing to the death or escape of the requested person. 3. If the property referred to in paragraph 1 is liable to seizure or confiscation in the territory of the executing Member State, the latter may, if the property is needed in connection with pending criminal proceedings, temporarily retain it or hand it over to the issuing Member State, on condition that it is returned. 4. Any rights which the executing Member State or third parties may have acquired in the property referred to in paragraph 1 shall be preserved. Where such rights exist, the issuing Member State shall return the property without charge to the executing Member State as soon as the criminal proceedings have been terminated. Article 30 Expenses 1. Expenses incurred in the territory of the executing Member State for the execution of a European arrest warrant shall be borne by that Member State. 2. All other expenses shall be borne by the issuing Member State. CHAPTER 4 GENERAL AND FINAL PROVISIONS Article 31 Relation to other legal instruments 1. Without prejudice to their application in relations between Member States and third States, this Framework Decision shall, from 1 January 2004, replace the corresponding provisions of the following conventions applicable in the field of extradition in relations between the Member States: (a) the European Convention on Extradition of 13 December 1957, its additional protocol of 15 October 1975, its second additional protocol of 17 March 1978, and the European Convention on the suppression of terrorism of 27 January 1977 as far as extradition is concerned; (b) the Agreement between the 12 Member States of the European Communities on the simplification and modernisation of methods of transmitting extradition requests of 26 May 1989; (c) the Convention of 10 March 1995 on simplified extradition procedure between the Member States of the European Union; (d) the Convention of 27 September 1996 relating to extradition between the Member States of the European Union; (e) Title III, Chapter 4 of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders. 2. Member States may continue to apply bilateral or multilateral agreements or arrangements in force when this Framework Decision is adopted in so far as such agreements or arrangements allow the objectives of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants. Member States may conclude bilateral or multilateral agreements or arrangements after this Framework Decision has come into force in so far as such agreements or arrangements allow the prescriptions of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants, in particular by fixing time limits shorter than those fixed in Article 17, by extending the list of offences laid down in Article 2(2), by further limiting the grounds for refusal set out in Articles 3 and 4, or by lowering the threshold provided for in Article 2(1) or (2). The agreements and arrangements referred to in the second subparagraph may in no case affect relations with Member States which are not parties to them. Member States shall, within three months from the entry into force of this Framework Decision, notify the Council and the Commission of the existing agreements and arrangements referred to in the first subparagraph which they wish to continue applying. Member States shall also notify the Council and the Commission of any new agreement or arrangement as referred to in the second subparagraph, within three months of signing it. 3. Where the conventions or agreements referred to in paragraph 1 apply to the territories of Member States or to territories for whose external relations a Member State is responsible to which this Framework Decision does not apply, these instruments shall continue to govern the relations existing between those territories and the other Members States. Article 32 Transitional provision 1. Extradition requests received before 1 January 2004 will continue to be governed by existing instruments relating to extradition. Requests received after that date will be governed by the rules adopted by Member States pursuant to this Framework Decision. However, any Member State may, at the time of the adoption of this Framework Decision by the Council, make a statement indicating that as executing Member State it will continue to deal with requests relating to acts committed before a date which it specifies in accordance with the extradition system applicable before 1 January 2004. The date in question may not be later than 7 August 2002. The said statement will be published in the Official Journal of the European Communities. It may be withdrawn at any time. Article 33 Provisions concerning Austria and Gibraltar 1. As long as Austria has not modified Article 12(1) of the "Auslieferungs und Rechtshilfegesetz" and, at the latest, until 31 December 2008, it may allow its executing judicial authorities to refuse the enforcement of a European arrest warrant if the requested person is an Austrian citizen and if the act for which the European arrest warrant has been issued is not punishable under Austrian law. 2. This Framework Decision shall apply to Gibraltar. Article 34 Implementation 1. Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 31 December 2003. 2. Member States shall transmit to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision. When doing so, each Member State may indicate that it will apply immediately this Framework Decision in its relations with those Member States which have given the same notification. The General Secretariat of the Council shall communicate to the Member States and to the Commission the information received pursuant to Article 7(2), Article 8(2), Article 13(4) and Article 25(2). It shall also have the information published in the Official Journal of the European Communities. 3. On the basis of the information communicated by the General Secretariat of the Council, the Commission shall, by 31 December 2004 at the latest, submit a report to the European Parliament and to the Council on the operation of this Framework Decision, accompanied, where necessary, by legislative proposals. 4. The Council shall in the second half of 2003 conduct a review, in particular of the practical application, of the provisions of this Framework Decision by the Member States as well as the functioning of the Schengen Information System. publication in the Official Journal of the European Communities. Article 35 Entry into force This Framework Decision shall enter into force on the twentieth day following that of its Done at Luxembourg, 13 June 2002. For the Council The President M. Rajoy Brey LORD WALKER In agreement with Lord Phillips, Lord Brown, Lord Kerr and Lord Dyson, I would dismiss this appeal. The reasoning of the majority that I find most compelling is that on the application of the Vienna Convention (Lord Phillips paras 67 to 76; Lord Brown para 95; Lord Kerr paras 106 to 109; Lord Dyson paras 127 to 141) and on the non application of the principle in Pepper v Hart [1993] AC 593 (Lord Phillips paras 11 to 13; Lord Brown paras 96 to 98; Lord Kerr paras 114, 115, 118 and 119; Lord Dyson paras 160 to 170). The parliamentary material, as set out in paras 247 to 264 of Lord Mances powerful judgment, is certainly disturbing. But I consider that it would be at least one step too far, in constitutional terms, for this court to treat it as determinative. If the parliamentary material is disregarded, as I think it must be, the Vienna Convention point is to my mind determinative. It would serve no useful purpose for me to express my opinion on other points on which different members of the majority may take rather different views. LORD BROWN I too conclude, in common with the great majority of the Court, that the term judicial authority within the meaning of the Framework Decision is properly to be understood as including public prosecutors. Although, like some others, I am inclined to base this conclusion principally upon the fifth of Lord Phillips reasons (paras 67 71 of his judgment), I would certainly not discount entirely the various other strands of reasoning on which he relies. On this first (and, to my mind ultimately critical) issue in the appeal there is nothing more I wish to say. I do, however, wish to address Lord Mances judgment, in favour of allowing the appeal, on the second issue, the true construction of the Extradition Act 2003, much of the reasoning underlying which I confess that at one time I too found attractive. It rests above all on a close analysis of the parliamentary material surrounding the enactment of the 2003 Act and Lord Mances conclusion based on this material a conclusion with which I entirely agree firstly, that ministers repeatedly gave assurances or endorsed assumptions that an issuing judicial authority would have to be a court, judge or magistrate, and did so moreover in contexts where a judicial authority was being contrasted by other speakers with the police and prosecutors and, secondly, that ministers also gave these assurances with the understanding that the implementation of the Framework Decision by the 2003 Act would not in this respect lead to any change by comparison with previous practice (Lord Mance, paras 261, 262). Whereas, however, it is Lord Mances judgment that by operation of the rule in Pepper v Hart [1993] AC 593, this conclusion requires the uncertainty [and] ambiguity about what Parliament meant (Lord Mance, para 246) by the term judicial authority in the 2003 Act to be given a more restricted meaning than the majority of the Court (including in this instance Lord Mance himself) would give the term in the Framework Decision, I for my part have arrived clearly at the opposite conclusion. To my mind, once one recognises that a judicial authority within the meaning of the Framework Decision is properly capable of encompassing a public prosecutor, this Court, the parliamentary material notwithstanding, is inexorably bound to construe the identical term in the 2003 Act no less widely. Certainly the term in the 2003 Act can be regarded as uncertain and ambiguous. But the interpretative guide here is not, in the context of legislation implementing a Framework Decision, Pepper v Hart; rather it is Criminal proceedings against Pupino (Case 105/03) [2006] QB 83, a decision of the Court of Justice consistently applied in a series of later House of Lords decisions to construe the 2003 Act so as to attain the ends sought by the Framework Decision. Indeed, even were the Pupino imperative not in play (which now appears may well be the correct view), the general presumption that the United Kingdom legislates in compliance with its international obligations would produce the same result. True it is that on the Second Reading of the Bill on 1 May 2003 Lord Filkin confirmed that Parliament is indeed sovereign and so can if it wishes legislate inconsistently with the United Kingdoms treaty obligations (see para 204 of Lord Mances judgment). But it is not as if in the various exchanges relied upon by the appellant here ministers were saying to Parliament: whatever may be the true meaning of judicial authority in the Framework Decision, we are assuring you that in the 2003 Act it is to be confined to courts, judges and magistrates. There was here no hint of a suggestion by ministers that, in so construing the term judicial authority in the 2003 Act, the United Kingdom might not be fully implementing its obligations under the Framework Decision. The plain (and, if the Bill of Rights permits the Court to say so, regrettable) fact is that the ministers were mistaken about the true scope of the term in the Framework Decision (just as they were as to the practice which had operated throughout the earlier extradition regime). Where, as here, Parliament uses the very same term as appears in the Framework Decision, in my judgment that term could only legitimately be given a different and narrower meaning than it bears in the Framework Decision if it were absolutely plain that Parliament had intended to legislate inconsistently with the United Kingdoms international obligations. All that is plain here is that certain members of the respective Houses were at various times unintentionally misled as to just what those obligations were. I too would dismiss this appeal. LORD KERR The expression judicial authority, if removed from the extradition (or, more properly, surrender) context, would not be construed so as to include someone who was a party to the proceedings in which the term fell to be considered. A judicial authority must, in its ordinary meaning and in the contexts in which the expression is encountered in this jurisdiction other than that of surrender, be an authority whose function is to make judicial decisions. The essence of a judicial decision (in the normal use of that term) is that it should have the attributes of independence and impartiality. If one were approaching the question free from the terms of the Framework Decision and without the background that many civil law systems regard prosecutors as part of the judicial cadre (which must have been in the contemplation of those who drafted the Framework Decision), the question whether judicial authority meant someone who was neutral and disinterested in the outcome of the dispute would scarcely need to be asked. The central issues on this appeal are, therefore, 1. whether the Framework Decision in its use of the term must be taken to have intended that those who decided whether a European Arrest Warrant should be issued did not require to have the attributes of independence and impartiality; and 2. whether the 2003 Act can and must be read so as to reflect that intention. As Lord Phillips has pointed out, had the Framework Decision been made in the terms of the September 2001 draft, there could have been no debate as to whether public prosecutors came within the rubric, judicial authority. How is the removal of the definition from the final draft to be approached? Lord Phillips has concluded that the more probable explanation is that the removal of the definition was prompted by a desire to broaden the possible embrace of the expression so as to extend it beyond judges and prosecutors. If it were otherwise, it would have been, he has said, a radical change and would have prevented public prosecutors from carrying out functions that they had been performing in relation to the issue of provisional arrest warrants since 1957. Lord Dyson has suggested that the fundamental change in the system of extradition that had been introduced by the Framework Decision makes it difficult to reach any conclusion as to whether it was intended that the role for prosecutors of issuing extradition arrest warrants should be preserved or abandoned. Lord Mance felt that the Court of Justice of the European Union would be hesitant about speculating as to the reasons for the differences between the Commissions original proposal and the 10 December 2001 text. On that account, Lord Mance suggests, it is at least as likely that the removal of the definition reflected a lack of consensus and that it was intended to leave the matter open for subsequent decision by the Court of Justice. For the reasons given by Lord Mance, a decision by the Court of Justice as to the significance of the omission cannot be obtained at present and this court must therefore confront that question directly. I can see force in all three views as to the importance (or lack of it) to be attached to possible reasons for the alteration of the September draft. But the inescapable fact is that public prosecutors in many of the member states had traditionally issued arrest warrants to secure extradition for many years. This was a firmly embedded practice in many jurisdictions. To bring that practice to an end would indeed have wrought a radical change. A substantial adjustment to administrative practices in many countries would have been required. It may well be, as Lord Mance has suggested, that agreement on this intensely controversial subject could not be reached. But the consequence of that must surely be that there was no accord as to the removal of prosecutors from that role. Lord Mance has said that the Court of Justice would (in these circumstances) focus on the final Framework Decision and seek to make sense of its text in the light of its purpose, the principles underlying it and general principles of European law (para 233). I respectfully agree but would add that the court would surely not ignore what had gone before or the major modification of the hitherto well entrenched arrangements in many jurisdictions that would be required to bring about an end to the issue of arrest warrants by prosecutors. If it had been intended that those arrangements were to be swept away, one would have expected that this would have been more explicitly stated. I accept, of course, that the absence of such an explicit statement does not finally determine the question but it would be incongruous that it be left to member states under article 6 of the Framework Decision to determine which body or person should constitute a judicial authority within its legal system for the purpose of issuing a European arrest warrant. I agree with Lord Mance that the object of this provision is to require member states to identify which judicial authority is competent, rather than to confer on them the power to assign judicial status to persons or bodies that would not otherwise possess it. But if the effect of the Framework Decision were to be that only persons or bodies possessed of the attributes of impartiality and independence were to be considered as eligible judicial authorities, the need for the article 6 power is not easy to find. If only an independent and impartial body or person could fulfil that role, the purpose in allowing member states to identify such a person or body seems otiose. It seems to me likely, therefore, that the Court of Justice would find that the role of prosecutors in issuing arrest warrants for those whose extradition was sought, traditional in many member states before the introduction of the Framework Decision, was not extinguished by its provisions. That preliminary conclusion is strongly fortified by the consideration that a significant number of member states have nominated public prosecutors as issuing judicial authorities since the Framework Decision has come into force. Once again I agree with Lord Mance that, alone, this is not a conclusive factor. Article 31.3(b) of the Vienna Convention on the Law of Treaties requires that subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation (emphasis supplied) is to be taken into account. In the passage from Villiger in Commentary on the 1969 Vienna Convention on the Law of Treaties, (Leiden, 2009) quoted by Lord Dyson at para 130 of his judgment, it is suggested that what is required to establish the agreement of the parties is that there should be active practice on the part of at least some of the parties to the treaty; that this should not be haphazard; and it must have been acquiesced in or at least not objected to by the other parties. Lord Dyson considered that the practice of appointing prosecutors as judicial authorities was sufficiently widespread and free from objection to meet these criteria and, in so far as this conclusion relates to judicial authorities who issue European Arrest Warrants, I agree. Lord Mance has suggested, however, that the appointment by some member states of prosecutors to the role of executing judicial authorities is suspect and that therefore the requirements of article 31.3(b) had not been fulfilled so far as those appointments are concerned. It is, I think, unnecessary for the purposes of this appeal to decide whether the nomination of prosecutors as competent to perform some of the functions of the executing judicial authorities is capable of prompting the invocation of article 31.3(b). I certainly agree with Lord Mance that some of those functions could only be discharged by a judicial figure or body such as a judge or a court. The appointment of a prosecutor as the exclusive executing judicial authority is, therefore, of dubious validity. That does not mean (or, at least, does not necessarily mean) that the fact that some member states have included prosecutors among the judicial authorities that could discharge some of the executing functions is irrelevant to the possible use of article 31.3(b) in relation to those functions which need not be carried out by a judge or court. But that does not need to be decided now. The critical question in the present appeal is whether there is a sufficiently widespread and uncontroversial practice in relation to issuing authorities to allow that provision to come into play in the case of prosecutors who issue European Arrest Warrants. As I understand it, Lord Dysons conclusion that there is has been accepted by Lord Mance and I agree with both. Even if I had been of the view that the necessary pre conditions for the activation of article 31.3(b) were not present, the possible relevance of such practice as exists would not have ended there. As Lord Mance has pointed out, Brownlie in Principles of Public International Law, 7th ed (2008), suggests that subsequent practice by individual parties, falling short of showing that there has been universal agreement as to the propriety of the nomination of judicial authorities, is nevertheless of some probative value. The continuing widespread use of prosecutors as issuing judicial authorities, without demur from the European Commission, and with apparent acceptance by member states who have nominated only judges or courts as their own issuing judicial authorities must, on any showing, indicate strongly that the Framework Decision does not exclude prosecutors from the category of issuing judicial authorities. Lord Mance has concluded that the European legal answer is obscure. The legal answer in this context is, presumably, that to be given to the question, may a prosecutor be an issuing judicial authority for the purposes of the Framework Decision. While I am prepared to accept that the answer to that question is not immediately obvious, I would certainly not be disposed to agree that the answer is obscure, if by that term it is meant that its meaning is uncertain or doubtful. In my view there really can be no doubt that the Framework Decision permits prosecutors to be issuing judicial authorities for European Arrest Warrants and must therefore be taken as having intended that prosecutors should fulfil that role. That being the case, must the Extradition Act 2003 be interpreted in a way that will accord with that intention? In Office of the Kings Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, Lord Bingham said that the interpretation of the 2003 Act must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 [of the Act] to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of co operation by the United Kingdom than the Decision required, it did not intend to provide for less. Lord Mance has identified a possible tension between this approach and that of Lord Hope in the same case where the latter said, at paras 20, 24, that the introduction of the European arrest warrant system was highly controversial and that there were limits to the principle that extradition treaties and statutes should receive a broad and generous construction, because the liberty of the subject was at stake. These considerations led Lord Hope to the view that where there were differences between the Framework Decision and the 2003 Act, it was to be assumed that Parliament had introduced those differences in order to protect against unlawful interference with the right to liberty. It had been assumed that the decision of the Court of Justice of the European Union in Criminal proceedings against Pupino (Case C 105/03) [2006] QB 83 would require national courts, in applying national law which purported to give effect to the Framework Decision, to do so in a manner that will attain the result which it pursues (para 43), Lord Mance has now authoritatively demonstrated that this is not the case. But of the proposition that the 2003 Act was enacted in order to give effect to the Framework Decision there can be no doubt. The domestic law presumption that Parliament did not intend to legislate contrary to the United Kingdoms international obligations under the Framework Decision may not be as strong in terms of injunctive force as the Pupino prescription but it is nevertheless a factor of considerable potency in determining the proper interpretation to be given to the 2003 Act. This is particularly so in light of the scheme of surrender that the Framework Decision introduced. As Lord Dyson has pointed out, the twin assumptions referred to by Lord Bingham in Cando Armas did not depend on the Pupino principle. Importantly, Lord Bingham considered it clear that Parliament must be taken to have intended that the 2003 Act would provide a measure of co operation by the United Kingdom which at least matched that provided for in the Framework Decision. To give the expression judicial authority a different meaning and scope for the purpose of the 2003 Act from that in the Framework Decision would reduce significantly the level of co operation by the United Kingdom from that intended by the Framework Decision. This would, at a stroke, prevent extradition to the significant number of member states who have nominated public prosecutors as issuing judicial authorities. Lord Mance has painstakingly analysed much of the legislative history of the 2003 Act and has concluded that ministers gave repeated assurances or allowed assumptions to be made that an issuing judicial authority would have to be a court, judge or magistrate before a surrender warrant could be executed in the United Kingdom. I agree with Lord Dyson that the various utterances and statements made by ministers do not partake of the clear and unequivocal character that would permit a confident view to be performed that it was Parliaments intention (as opposed to an individual ministers aspiration) that an issuing judicial authority must be a court. Quite apart from this, however, there are compelling reasons for concluding that, whatever may have exercised individual ministers or members during the passage of the Bill which became the 2003 Act, Parliament cannot be taken as having intended to legislate in a way that confined judicial authority to the scope of application for which the appellant contends. For this to be the parliamentary intention, rather than the hope and expectation of some Members of Parliament or even ministers, an unambiguous intent would have had to be formed that the new surrender scheme would be severely curtailed in terms of its operation in the United Kingdom. It would be surprising, not to say astonishing, if it was considered that such a radical circumscription of the operation of the new scheme could be achieved by using the same term as was employed in the Framework Decision, judicial authority. This would involve giving the term a significantly more restricted meaning than that it enjoyed in the Framework Decision context. Why would precisely the same expression be used by Parliament if it was meant to have a markedly different connotation? If it was intended that judicial authority should mean a court, why should that not be made unmistakably clear? Finally, Parliaments intention to depart from the Framework Decisions meaning of the term judicial authority would involve a rebuttal of the strong presumption that it would legislate in a way that would fulfil its international obligations. It cannot have been lost on legislators here that, if the United Kingdom was prepared only to execute warrants from judicial authorities that were courts or the like, there was at least a distinct possibility that warrants from a significant number of countries would not be executed. I cannot believe that Parliament could have intended to espouse an interpretation which would effectively debar extradition from a number of the subscribing states to the Framework Decision. Returning to the theme of the possible tension between the views of Lord Bingham and Lord Hope on the possible significance in differences between the 2003 Act and the Framework Decision, it is true , as Lord Mance has pointed out in para 205 of his judgment, that Lord Hope repeated what he had said in Cando Armas in para 35 of his speech in Dabas but this must be viewed in light of the subsequent case of Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy [2008] UKHL 51, [2008] 1 WLR 1724 in which Lord Hope expressed unqualified agreement with the opinion of Lord Bingham. At para 23 of Lord Binghams speech he said: Providing as they do for international co operation between states with differing procedural regimes, the Framework Decision and the 2003 Act cannot be interpreted on the assumption that procedures which obtain in this country obtain elsewhere. The evidence may show that they do not. Such was the case in In re Coppin LR 2 Ch App 47, where Lord Chelmsford LC considered a form of judgment unknown in this country, and in R v Governor of Brixton Prison, Ex p Caborn Waterfield [1960] 2 QB 498, where the court examined and contrasted the legal effect, in France, of on the one hand a jugement par dfaut and an arrt de contumace and on the other a jugement itratif dfaut: the latter was final, the former were not. The need for a broad internationalist approach signalled by Lord Steyn in In re Ismail [1999] 1 AC 320, 326 327 is reinforced by the need to pay close attention to whatever evidence there is of the legal procedure in the requesting state. It would be destructive of the international co operation between states to interpret the 2003 Act in a way that prevented prosecutors from being recognised as legitimate issuing judicial authorities for European Arrest Warrants, simply because of the well entrenched principle in British law that to be judicial is to be impartial. Lord Mance has suggested that Parliament had correctly identified that the Framework Decision was not conclusive. This was a reference to general observations by the minister, Lord Filkin, during the passage of the Bill through the House of Lords, to the effect that Parliament had the power to amend laws, notwithstanding the expectation that, where the government had been a party to a framework agreement, it would give effect to this in national law. Lord Filkins comments do not provide the basis for a conclusion that the meaning of the Framework Decision is obscure or that there is any ambiguity as to the meaning of judicial authority in this instrument and the 2003 Act. If, as I consider it to be, the purpose of the Framework Decision is to sanction the issue of European Arrest Warrants by persons who did not possess the attributes of impartiality and independence by recognising that they may qualify as judicial authorities, there is no difficulty as a matter of textual analysis in ascribing the same meaning to section 2(2). As Lord Filkin said, Parliament is sovereign. As a matter of constitutional theory, it could decide to restrict the meaning of judicial authority to a narrower compass than that intended by the Framework Decision. In my view, there is no reason to conclude that it did so. I would therefore dismiss the appeal. LORD DYSON Introduction On 27 September 2010, the Swedish Prosecution Authority ordered the arrest of Mr Assange in respect of complaints by two women of rape and sexual molestation. The lawfulness of the order was challenged Mr Assange in the Svea Court of Appeal in Sweden. The Court of Appeal upheld the arrest warrant and on 2 December 2010 a European Arrest Warrant (EAW) was issued by Marianne Ny, a Director of Public Prosecutions with the Swedish Prosecution Authority, seeking the arrest and surrender of Mr Assange who was in England at the time. The EAW described four offences of rape and sexual assault alleged to have been committed by him. The issue that arises in these proceedings is whether an EAW issued by a public prosecutor is a valid warrant issued by a judicial authority within the meaning of sections 2(2) and 66 of the Extradition Act 2003 (the EA). The Divisional Court (Sir John Thomas P and Ouseley J) held that it was. The aim and objective of the Framework Decision It is common ground that the EA was enacted in order to give effect to the Framework Decision on the European Arrest Warrant 2002/584/JHA (the Framework Decision). I agree with Lord Mance that, for the reasons that he gives at paras 207 217 below, the duty of conforming interpretation under European law, which the European Court of Justice held in Criminal proceedings against Pupino (Case C 105/03) [2006] QB 83 to exist in the context of framework decisions, does not apply in relation to the Framework Decision. But there is no doubt that there is a strong presumption in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations: see, for example, per Lord Hoffmann in R v Lyons [2003] 1 AC 976, para 27. It is worth repeating what Lord Bingham said in Office of the Kings Prosecutor, Brussels v Cando Armas [2006] 2 AC 1 at para 8, because his comments about the correct approach to the interpretation of the EA do not seem to have been influenced by the Pupino principle. He said: Part 1 of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less. I would approach the correct interpretation of the EA in the same way. But before I reach the EA, I need to consider the meaning of the issuing judicial authority in article 6.1 of the Framework Decision. It is important to start with the background to the Framework Decision which Lord Phillips has set out at paras 26 to 35 and 39 to 42. Its object was to replace the existing political state to state process of extradition with a simplified system of surrender involving judicial authorities. The new scheme was based on the principle that the Member States had mutual trust and confidence in the integrity of their legal and judicial systems and would therefore respect and recognise each others judicial decisions. The preamble to the Framework Decision makes this clear: (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. The nature of the change was described well by Adv Gen Ruiz Jarabo Colomer in his opinion in Advocaten voor de Wereld VZW v Leden van de Ministeraad (Case C 303/05) [2007] ECR I 3633, 3651 3652: 41. The move from extradition to the European arrest warrant constitutes a complete change of direction. It is clear that both concepts [extradition and surrender under an EAW] serve the same purpose of surrendering an individual who has been accused or convicted of an offence to the authorities of another State so that he may be prosecuted or serve his sentence there. However, that is where the similarities end. 42. In the case of extradition, contact is initiated between two sovereign States, the requester and the requested, each of which acts from an independent position. One state asks for the cooperation of the other State which decides whether to provide that cooperation on a case by case basis, having regard to grounds which exceed the purely legal sphere and enter into the scope of international relations, where the principle of opportuneness plays an important role. Accordingly, the intervention of politicians and criteria such as reciprocity and double criminality are justified because they have their origins in different spheres. 43. The nature of the situation changes when assistance is requested and provided in the context of a supranational, harmonised legal system where, by partially renouncing their sovereignty, States devolve power to independent authorities with law making powers. The meaning of judicial authority in article 6.1 With this introduction, I can turn to the question of interpretation: what does the phrase judicial authority in article 6.1 of the Framework Decision mean? Clearly, it includes a judge. But is it limited to a judge? In answering these questions, it is necessary to bear in mind that the Framework Decision is a European instrument which was agreed by states which have different legal systems and traditions. As the Divisional Court pointed out, we should be careful not to be overly influenced by the legal systems and traditions of the United Kingdom with its long established and deeply rooted common law ideas of the essential characteristics of a judicial authority. The language of the text is the correct starting point. But one immediately runs into the problem that the phrase judicial authority in the French version is autorit judiciaire and that judiciaire is capable of bearing a narrow meaning (which would coincide with the English common law idea of judicial) and a wider meaning (pertaining to law or the legal system): see para 18 above. It follows that the use of the phrase judicial authority does not of itself provide the answer to the question of interpretation. It is necessary to look elsewhere. Article 3(b) of the September 2001 draft Framework Decision provided that an issuing judicial authority means the judge or the public prosecutor of a Member State, who has issued a[n EAW]. Lord Phillips suggests that there are two possible explanations for the decision to exclude the definition from the final version of the Framework Decision. The first is that it was to restrict the meaning of the phrase by removing the public prosecutor from the definition. The second is that it was to enlarge its meaning so as not to restrict it to a judge or public prosecutor. We have seen no material which explicitly shows why the Member States agreed to make the change. Lord Phillips has given a number of inferential reasons for concluding that the second explanation is the more probable. Rather than seeking to infer the reason why the Member States changed the definition, I prefer to concentrate on how the relevant part of the Framework Decision has been applied and viewed in practice. I agree with Lord Phillips that the manner in which the Member States, the Commission and the Council acted after the Framework Decision took effect was in stark conflict with a judicial authority being restricted to a judge. The statistics are that in relation to accusation EAWs, in 11 Member States the issuing authority is a public prosecutor, in 17 it is a judge and in 2 it is the Ministry of Justice. In relation to conviction EAWs, in 10 Member States the issuing authority is a public prosecutor, in 14 it is a judge and in 6 it is the Ministry of Justice or National Police Board. Article 31.3 of the Vienna Convention on the Law of Treaties provides that, in interpreting a treaty, there shall be taken into account, together with the context:. (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. In his Commentary on the 1969 Vienna Convention on the Law of Treaties,(Leiden, 2009) Villiger states of article 31.3(b): it requires active practice of some parties to the treaty. The active practice should be consistent rather than haphazard and it should have occurred with a certain frequency. However, the subsequent practice must establish the agreement of the parties regarding its interpretation. Thus, it will have been acquiesced in by the other parties; and no other party will have raised an objection. The fact that it is only in the majority (and not all) of the Member States that the issuing judicial authority is a judge is not inconsistent with the existence of an agreement established by subsequent practice that a public prosecutor may be a judicial authority within the meaning of the Framework Decision. There is nothing to suggest that Member States which do not have public prosecutors as their issuing judicial authorities criticise those that do. More particularly, we have been shown no evidence that, until the present case, any executing state objected to surrendering a person on the grounds that the EAW was issued by a public prosecutor. In my view, this is powerful evidence that even those Member States whose issuing judicial authorities are judges acquiesce in EAWs being issued in other Member States by public prosecutors. That is a sufficient practice to establish agreement by the Member States. As regards the Council, article 34.4 of the Framework Decision requires it to conduct a review of the practical application of the provisions of the Framework Decision by the Member States. The fourth round of mutual evaluations was assigned to the practical application of the European Arrest Warrant and corresponding surrender procedures between Member States. The evaluation process was conducted between March 2006 and April 2009. It is a striking feature of the evaluation reports that they contain no criticism of those states that have designated prosecutors as competent to issue EAWs; and the article 34 reports dated 24 January 2006 and 11 July 2007 contain no criticism of the use of public prosecutors as judicial authorities either. They do, however, find regrettable the fact that an executive body has been appointed as the competent judicial authority by a number of Member States. This is clearly a reference to the designation of their Ministry of Justice by those states. The Councils Final Report on the fourth round of mutual evaluations dated 28 May 2009 contains a complaint that in some Member States non judicial central authorities continue to play a role in cardinal aspects of the surrender procedure far beyond the administrative tasks assigned in the Framework Decison. This is clearly a reference to those states where the role of the judicial authority is assigned to the Minister of Justice or some emanation of the police. But I agree with Lord Phillips that there is no indication in this report either that it was objectionable for a public prosecutor to issue an EAW. Denmark, Estonia, Finland, Germany and Lithuania all designated their Ministry of Justice as the issuing judicial authority. The evaluation reports on Denmark, Germany and Lithuania criticised these designations, although the reports did not criticise the Estonian or Finnish designations. Miss Rose QC submits that these omissions suggest that caution should be exercised in attaching too much significance to what is not stated in evaluation reports. The reports cover a great deal of ground and their main concern is to see what problems are occurring in relation to the application of the EAW system as a whole. It can also be said that these reports contain little criticism of those states that have designated prosecutors to execute EAWs either. And yet, as was recognised by the Divisional Court and as is common ground, only a judge is a judicial authority for the purpose of executing an EAW. I would, therefore, accept that the evaluation reports and the article 34 reports should be treated with some caution. They do not purport to be authoritative rulings on the implementation of the Framework Decision. But they do contain some criticisms of the practice of the Member States. It is striking that there is no criticism of the use of public prosecutors as judicial authorities. In my view, they provide support for the view that a public prosecutor can be an issuing judicial authority within the meaning of article 6.1 of the Framework Decision. A further point made by Miss Montgomery QC is that in Criminal proceedings against Leymann and Pustovarov (Case C 388/08) [2008] ECR I 8983, the ECJ made no adverse comment on the fact that the case concerned proceedings in Finland resulting from the issue of an EAW by the Helsinki District Public Prosecutor. But in my view, it would be wrong to make too much of this point, since it is not discussed in the judgment of the court. Apart from the way in which the relevant provision of the Framework Decision has been applied in practice by the Member States and viewed by the Council and the Commission, there is further support for the view that the Member States considered that a public prosecutor could be an issuing judicial authority. First, as we have seen, an issuing judicial authority was defined in the September 2001 draft as meaning the judge or the public prosecutor of a Member State. Miss Rose submits that the withdrawal of this definition shows that the Member States decided that a public prosecutor would not be included in the definition of an issuing judicial authority. As I have said, there is no evidence as to why they decided to abandon this definition. But more important for present purposes is the fact that, at one stage in the negotiations, the Member States were willing to countenance the idea that an issuing judicial authority should include a public prosecutor. If they had been of the view that a judicial authority could not in any circumstances be a public prosecutor, it is remarkable that they were willing to include a public prosecutor in the definition at any stage of the negotiations. In my view, the inclusion of a public prosecutor in the definition of a judicial authority in the September 2001 draft shows that the Member States did not regard it as objectionable in principle to treat a public prosecutor as a judicial authority. Secondly, it is instructive to consider other instances where the term judicial authority has been adopted in other analogous EU instruments which (like the Framework Decision) seek to further a system of free movement of judicial decisions within an area of freedom, security and justice: see recital 5 of the preamble to the Framework Decision. Among the other Framework Decisions based on the Tampere Proposals (to which Lord Phillips refers at para 42 above) is the Council Framework Decision 2008/978/JHA of 18 December 2008 on the European Evidence Warrant (EEW) for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters. Recital 8 of the preamble sets out the meaning of judicial authority in these terms: The principle of mutual recognition is based on a high level of confidence between Member States. In order to promote this confidence, this Framework Decision should contain important safeguards to protect fundamental rights. The EEW should therefore be issued only by judges, courts, investigating magistrates, public prosecutors and certain other judicial authorities as defined by Member States in accordance with this Framework Decision. It goes on to provide at article 2: (c) issuing authority shall mean: (i) a judge, a court, an investigating magistrate, a public prosecutor or (ii) any other judicial authority The Explanatory Memorandum to the proposal for the EEW Framework Decision explained at para 47: In the issuing State, the issuing judicial authority is limited to judges, investigating magistrates or prosecutors. Similarly, the Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement agencies of the Member States in defining a criminal investigation refers to a procedural stage within which measures are taken by competent law enforcement or judicial authorities, including public prosecutors. There are other examples to similar effect, but it is unnecessary to refer to any more. Miss Rose submits that these examples show that, where an EU mutual recognition instrument intends to empower a public prosecutor to exercise functions that are to be mutually recognised, it says so. By way of contrast, she points to other Framework Decisions where the term judicial authority is not defined, for example, the Framework Decision on the execution in the European Union of orders freezing property or evidence, 22 July 2003 (2003/577/JHA) and the Framework Decision on the application of the principle of mutual recognition to confiscation orders, 6 October 2006 (2006/783/JHA). She submits that the scheme of these instruments (and others like the Framework Decision), where the judicial authority is not defined, is that Member States may select from within their pool of judicial authorities, as defined by human rights norms and jurisprudence, the subset which are competent to perform the allotted task. But the important point for present purposes is that it can be seen that there are EU instruments, whose aim is to promote co operation and mutual recognition by Member States in criminal matters within the EU area, which define a judicial authority as including a public prosecutor. This is further evidence that there is a common understanding among the Member States that, at any rate in the context of instruments whose purpose is to promote such an aim, a public prosecutor may be a judicial authority. In my view, the material that I have set out at paras 129 to 140 above provides formidable support for the respondents case. The principal argument that Miss Rose advances the other way is that, since there is no definition of judicial authority in the Framework Decision, the expression should be construed in accordance with established EU law norms. She argues as follows. All EU Member States are High Contracting Parties to the European Convention on Human Rights (ECHR) and it is a fundamental norm of EU law that EU measures should not be construed in a manner which is inconsistent with the ECHR: see, for example, Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforasiss (Case C 260/89) [1991] ECR I 2925. Article 6 of the Treaty on European Union (TEU) provides: (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. (2) The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. (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. I accept that the EAW system was always intended to comply with the ECHR. Thus recital 12 to the preamble to the Framework Decision provides that This Framework Decision respects fundamental rights and observes the principles recognised by article 6 of the [TEU] and reflected in the Charter of Fundamental Rights of the European Union. . Article 1.3 of the Framework Decision states: 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 [TEU]. The importance of upholding fundamental rights has been repeatedly emphasised by the Commission. It is sufficient to refer to its Green Paper on Strengthening mutual trust in the European judicial area (2011) COM/2011/ 0327 which confirms at para 3.1: While the EAW has proved to be a very useful tool to ensure that criminals cannot use borders to evade justice, particularly in relation to serious and organised crime with a cross border dimension, its implementation, including the core principle of mutual recognition on which it is based, must respect fundamental rights. Moving from the general to the particular, Miss Rose relies on the jurisprudence of the European Court of Human Rights (the ECtHR) to support the proposition that public prosecutors cannot be officer[s] authorised by law to exercise judicial power within the meaning of article 5(3) of the ECHR. There is no doubt that this proposition is correct. The leading authority is Schiesser v Switzerland (1979) 2 EHRR 417. An officer authorised by law to exercise judicial power must be independent of the executive and of the parties. This principle was applied in Skoogstrm v Sweden (1983) 6 EHRR 77 where it was held that a Swedish prosecutor could not be a judge or other officer authorised by law to exercise judicial power. This was not because the prosecutor was part of the executive. That fact alone did not mean that the public prosecutor was not independent for the purposes of article 5.3, because the public prosecutor enjoyed a personal independence. But the court held that the Swedish public prosecutor did not satisfy the requirements of article 5.3 because he or she was not independent of the parties. Miss Rose places particular reliance on Skoogstrm because it is a decision about the Swedish public prosecutor. In short, therefore, she submits that a construction of judicial authority in the Framework Decision which conforms to ECHR principles must lead to the conclusion that a public prosecutor does not satisfy the definition. The decisions of the ECtHR on article 5.3 are determinative. I cannot accept this argument. As we have seen, the Framework Decision respects fundamental rights and shall not have the effect of modifying the obligation to respect fundamental rights. But as Miss Montgomery points out, there is no principle of ECHR law which requires decisions to arrest to be made by an impartial judge. Arrests may be ordered and effected by persons (such as police officers) who are not judges and who are not impartial. The lawful arrest or detention of a person effected for the purpose of bringing him before a competent legal authority on reasonable suspicion of having committed an offence is specifically authorised by article 5.1(c) of the ECHR. There is no requirement that the person authorising the arrest should be a judge or be impartial. The protection provided by article 5 is that the individual arrested is brought promptly before a judge or other officer authorised by law to exercise judicial power and that he is able to take proceedings by which the lawfulness of his detention is decided quickly by a court and his release ordered if the detention is not lawful. It can, therefore, be seen that the premise on which the appellants argument is based, namely that article 5.3 of the ECHR applies to the issue of an EAW, is without foundation. Article 5.3 of the ECHR cannot be used as a basis for the argument that judicial authority in article 6 of the Framework Decision should be interpreted as limited to a judge. That is not to say that the rights protected by the ECHR are irrelevant to the Framework Decision. That would be quite wrong: see para 144 above. It is unnecessary to explore the reach of the ECHR as regards the implementation of the Framework Directive. It is sufficient to say that article 5.3 sheds no light on the meaning of judicial authority. The other argument advanced by Miss Rose is that judicial authority in article 6.1 must be given the same meaning as it bears in article 6.2 and that, since in article 6.2 it is limited to a judge, it must similarly be limited in article 6.1. I would reject this argument for the reasons given by Lord Phillips at para 75 above. I would, therefore, dismiss this appeal. To interpret an issuing judicial authority as including a public prosecutor gives a meaning to that phrase which (i) accords with the interpretation repeatedly applied and acquiesced in by the Member States and approved by the Council and the Commission, (ii) is supported by other analogous texts and (iii) promotes rather than frustrates the principle of mutual recognition and trust which underpins the Framework Decision. On the other hand, the only arguments advanced by Miss Rose in support of the contrary interpretation are, for the reasons that I have given, without foundation. There was some discussion before us as to the essential characteristics of an issuing judicial authority. Miss Montgomery suggested that it is sufficient that the person or body is authorised to perform some function in the judicial process. But that is too wide. Without descending to the absurdity of including court ushers and other similar court officials, it seems to me that this definition would certainly be wide enough to include the police and officials employed by a Ministry of Justice. And yet it seems to be accepted (at any rate as revealed by the Council reports) that neither the police nor a Ministry of Justice official can be an issuing judicial authority, although, so far as I am aware, the reasons for this have not been articulated. The Divisional Court said at para 47 of its judgment that a warrant issued by a Ministry of Justice which the Member State had designated as an authority under article 6 would not be a valid EAW. Such a warrant would self evidently not have been issued by a body which, on principles universally accepted in Europe, was judicial. They did not, however, explain what these principles are or why, notwithstanding that in a number of Member States the Ministry of Justice has been designated as their judicial authority, these designations are of no effect. I think that the Divisional Court were wise not to attempt a comprehensive definition. I am 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. As we have seen, the fundamental objective of the Framework Decision was to replace a political process with a non political process. This could only be achieved if the new judicialised system was operated by persons who de facto operated independently of the executive. But it is not necessary to explore this question further, since, for the reasons that I have given, I am satisfied that a public prosecutor is an issuing judicial authority within the meaning of article 6.1. The reasons that I have given coincide with the fifth reason given by Lord Phillips (paras 67 to 71). I would, however, like to comment on the other reasons given by Lord Phillips for dismissing the appeal. Lord Phillipss other reasons Lord Phillipss first reason (para 61) is that, if it had been intended to restrict the power to issue an EAW to a judge, he would have expected this to be expressly stated. It would have been a radical change and would have prevented public prosecutors from performing functions that they had been performing in relation to the issue of provisional arrest warrants since 1957. As we have seen, the Framework Decision ushered in a fundamentally different regime from its predecessor. Under the European Convention on Extradition 1957 (the ECE), the act of extradition was an inter governmental act. The judicialisation of the extradition process was accompanied by a number of substantive changes whereby the circumstances in which surrender could take place were expanded. Thus, for example, a substantial number of serious offences (defined in article 2 of the Framework Decision) would give rise to surrender pursuant to an EAW without verification of the double criminality of the act. This was an important relaxation of the conditions for surrender. I acknowledge that article 16.1 of the ECE provided that in case of urgency, the competent authorities of the requesting Party may request the provisional arrest of the person sought and that the term competent authorities included public prosecutors (see para 26 above). But I doubt whether much can be made of this. The point can also be made that in some Schengen States, the police, security police, tax and customs authorities are competent to decide on article 98 alerts (see para 40 above). And yet nobody suggests that this means that these authorities may be judicial authorities within the meaning of the Framework Decision. In my view, the fact that the two regimes were so different means that the arrangements that were made pursuant to the ECE cast little light on the proper interpretation of the Framework Decision. I do not consider that there is any real significance in the fact that the Framework Decision did not explicitly state that only a judge had the power to issue an EAW. Lord Phillipss second reason (paras 62 to 64) is that there was no need to restrict the ambit of the issuing judicial authority. This is because the significant safeguard against the improper or inappropriate issue of an EAW lay in the antecedent process which formed the basis of the EAW. The EAW was of less significance than the enforceable judgment, arrest warrant or other enforceable judgment having the same effect on which the EAW is based: see article 8.1(c) of the Framework Decision. But an EAW is defined by article 1.1 as a judicial decision and article 8.1(c) requires 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 (emphasis added). As Miss Rose pointed out in her reply, if an EAW is a judicial decision which may be issued by a public prosecutor, then so may an arrest warrant or other enforceable judicial decision be issued or made by a public prosecutor. It is impossible to give the phrase judicial decision different meanings in article 1.1 and article 8.1(c). In any event, even if the antecedent warrant or other judicial decision is issued or made by a judge, I would not agree that the subsequent issue of an EAW is or should be regarded as an essentially administrative step in the process (para 74 above). Of course, the issue of a domestic arrest warrant is a serious matter. But a person who is arrested will often be able to apply for bail so that the consequences for him of the arrest may be limited. He may be able to continue in his employment and to live in his home. The implications of an EAW are likely to be more serious. Unless he can rely on the limited grounds for resisting surrender in the executing state, he will be removed to a different state, possibly many hundreds of miles away. In short, I do not think that the nature of the antecedent process provides support for the view that a public prosecutor is an issuing judicial authority. The third reason given by Lord Phillips (para 65) is that the removal of the definition of a judge or public prosecutor was not because Member States wished to narrow its meaning to a judge, but because they were not content that its meaning should be restricted to a judge or public prosecutor. There is nothing in the considerable documentation that has been placed before us which indicates that the Member States decided to enlarge the scope of an issuing judicial authority or why they should have wished to do so. We know that the definition of an executing judicial authority in the Framework Decision (ie limited to a judge) was narrower than that contained in the September 2001 draft. But our knowledge of that fact is based solely on an examination of the wording of the two documents. We do not know why the Member States made this change either. In my view, there is no secure basis for reaching any conclusion as to the reasons why the definition of issuing and executing judicial authorities was changed. The fourth reason given by Lord Phillips (para 66) is that the requirement in article 6.3 of the Framework Decision to inform the General Secretariat of the Council of the competent judicial authority under its law makes more sense if there is a range of possible judicial authorities. I agree that article 6.3 envisages the possibility of a range of different judicial authorities. But I do not see how this sheds light on whether a public prosecutor may be one of them. A Member State may choose to give the power to issue an EAW to a particular judge or a judge of a particular court. It makes perfectly good sense for it to be known by the executing state which judge or which court is authorised to issue an EAW. In short, I consider that article 6.3 is consistent with either of the two competing interpretations. The meaning of issuing judicial authority in the EA The strong presumption to which I have referred at para 122 above suggests that the phrase judicial authority should bear the same meaning in section 2(2) of the EA as it does in article 6.1 of the Framework Decision. In my view, the presumption is all the stronger where (as here) the language of the implementing national law is the same as that of the corresponding provision of the international instrument to which it gives effect. There is nothing in the language of the EA itself which indicates that Parliament intended that an issuing judicial authority in section 2(2) should bear a different meaning from the counterpart phrase in article 6.1. Lord Mance appears to accept this. But he has subjected certain ministerial pre enactment statements to close scrutiny and has concluded that ministers repeatedly gave assurances or endorsed assumptions that an issuing judicial authority would have to be a court, judge or magistrate (para 261) and that these assurances should control [the] meaning [of the phrase judicial authority] (para 264). I would not go so far as to say that it is impossible to invoke the doctrine of Pepper v Hart [1993] AC 593 in a context such as this. But at first sight, it seems extraordinary to do so if the consequence is that a phrase in an implementing national law bears a different meaning from the same phrase in the international instrument to which it gives effect. The suggestion that the phrase in the implementing law bears a different meaning invites the obvious comment that, if the same meaning had not been intended, surely different language would have been used. I accept that there are some passages in the parliamentary exchanges in relation to what was to become the EA in which ministerial assurances were given that an issuing judicial authority would be a court. But some of the statements were by no means entirely clear. On 10 December 2001, Mr Ainsworth, when pressed by Mrs Dunwoody, said that the only people who would be allowed to issue an arrest warrant would be a judicial authority as recognised normally within either the issuing or the executing state. . In [countries other than this country], there are various different authorities such as magistrates and judges who normally issue extradition warrants. Those are the people who will execute a European arrest warrant (emphasis added). As I have already said, in a substantial number of these other countries, public prosecutors had been issuing provisional arrest warrants since 1957. On 9 January 2002, Mr Ainsworth said that the issuing authority will have to be that, a judicial authority and a court, so it will not be for the British authorities to say what is and what is not a court in another European state, but it will not be possible for authorities that clearly are not courts, that are not judicial authorities to issue requests. (emphasis added). Later, he said that a warrant shall be a court decision and it cannot be a police authority, but it must be a court, a judicial authority. Later still, he said: there are different legal systems that apply in different parts of the European Union, but there are clear judicial authorities who apply for extradition and who will be the authorities that have the power to apply for a European arrest warrant. Two points emerge from these statements: (i) a police authority was not a judicial authority, but some European systems were different from ours and it was not for the United Kingdom to say what was a court in other countries (although an authority that was clearly not a court was not a judicial authority); and (ii) the judicial authorities who issued warrants under the existing system would issue European arrest warrants under the new one. On 9 January 2003, Mr Ainsworth made the important statement which is set out by Lord Mance at para 253 of his judgment. The minister said We expect that European arrest warrants will be issued in future by exactly the same authorities as issue warrants under the current arrest procedures. The Bill is drafted in such a way as to include all those authorities that currently issue arrest warrants, as issuing authorities. I have yet to hear argument that says that we should change that. He went on to say that extradition requests come from a variety of sources and that there would be no change: the framework document insists on no widening outwith the judicial authorities in the Part 1 countries. .The current system works well and has not given rise to any problems in the recent past stemming from an inappropriate request from a European partner for extradition. I see no reason to change the system. On 9 June 2003, Lord Wedderburn said that he understood that the Government did not intend that a public prosecutor should just be able to demand of someone who is on the list of designated judicial authorities that an arrest warrant be issued and, if that was so, this should be made clear in the Bill. The ministers response was that he could not see what this would add, since, as he had already explained, all warrants will have to be issued by a judicial authority. A little later, Lord Bassam said that he expected the judicial process in other countries to be very similar to ours and as robust as ours (Hansard (HL Debates) (GC) cols 34 37). What is one to make of all these exchanges? In my view, the assurances that an issuing judicial authority would be a court did not clearly rule out the possibility that a judicial authority could include a public prosecutor. First (and crucially), the minister stated several times that European arrest warrants would be issued by the same authorities as issued arrest warrants under the existing system and that it was not intended to change that. I cannot agree with Lord Mance (para 262) that this does not undermine the force of the assurances given in relation to the new and more radical procedures being introduced by the EA. The statements that European arrest warrants would be issued by the same authorities as issued arrest warrants under the existing regime were inconsistent with an assurance that they could not be issued by public prosecutors. I do not see how these statements can be swept aside as Lord Mance seeks to do. Secondly and in any event, it is not at all clear precisely what Mr Ainsworth meant by a court in his statement on 9 January 2002, except that it did not include a police authority. He said nothing about public prosecutors. But he did say that there were different European court systems and it was not for the United Kingdom to say what a court was; and that it would not be possible for any authority that was clearly not a court (in the eyes of the relevant European state) to be a judicial authority. It is at least uncertain whether a public prosecutor was a court in the eyes of some European states. At the very least, I find it impossible to spell out of what was said by Mr Ainsworth in the passages to which I have referred at paras 161 to 163 a clear assurance that an issuing judicial authority could only be a court (as we understand that word), judge or magistrate. Was this changed by what was said on 9 June 2003 and the subsequent amendments to which Lord Mance refers? It is clear that Lord Wedderburn was of the view that an issuing judicial authority should not include a public prosecutor and asked for it to be clarified in the Bill that a public prosecutor could not insist that a judicial authority issue an arrest warrant. I have referred to the ministers response which was merely that all warrants wild have to be issued by a judicial authority. In the light of all the exchanges during the preceding 18 months, I do not consider that this answer (or the subsequent amendments to which Lord Mance has referred) amounted to a clear assurance that, even if a public prosecutor was an issuing judicial authority within the meaning of the Framework Decision, it was not an issuing judicial authority in the corresponding provision in the EA. I would, therefore, hold that the strong presumption that the phrase judicial authority bears the same meaning in section 2(2) of the EA as it does in article 6.1 of the Framework Decision was not rebutted by any assurances given by the minister during the progress of the Bill through Parliament. Taken as a whole, the ministers statements did not amount to assurances that were sufficiently clear to justify the conclusion reached by Lord Mance. Conclusion It follows that, for the reasons that I have given earlier (which coincide with Lord Phillipss fifth reason), I would dismiss this appeal. DISSENTING JUDGMENTS LADY HALE I would allow this appeal for the reasons given by Lord Mance. My reasons for preferring his view to that of the majority can be briefly stated. We are construing an Act of the United Kingdom Parliament. It is that Act which gives the courts the power to order the arrest, remand, and eventual extradition of an individual named in a European Arrest Warrant (EAW). Without the authority of an Act of Parliament it would not be possible to employ the coercive power of the state to deprive an individual of his liberty in this way. We are not here concerned with the reverse situation, where European law may have direct effect, irrespective of United Kingdom law, to confer rights against the state upon individuals or entities. Direct effect is expressly precluded by article 34.2(b) of the Treaty on European Union. But community law goes further than that. It imposes an obligation on member states to interpret legislation in conformity with community law, even if on ordinary principles of statutory interpretation, this would not be possible. In Criminal proceedings against Pupino (Case C 105/03) [2006] QB 83, the Court of Justice made it clear that the principle of interpretation in conformity with Community law applies to the interpretation of framework decisions adopted under Title VI of the Treaty on European Union (para 43). But this obligation is limited by general principles of law (para 44). These include the principle that criminal liability cannot be determined or aggravated on the basis of a framework decision, independently of an implementing law (para 45). Further, the obligation ceases when national law cannot be applied compatibly with the result envisaged by the framework decision. In other words, the principle cannot serve as the basis for an interpretation of national law contra legem (para 47). As Paul Craig puts it, the domestic court is not required to give the legislation an interpretation it cannot bear (Craig and De Burca, EU Law: Text, Cases and Materials, 5th ed (2011), p 203). In Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31 and Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy [2008] UKHL 51, [2008] 1 WLR 1724, it was assumed without argument that Pupino applied to the construction of the provisions of the Extradition Act 2003 implementing the Framework Decision on the European Arrest Warrant in United Kingdom law. However, as Lord Mance has convincingly shown, the source of that obligation in United Kingdom law lies in section 2(1) of the European Communities Act 1972. This refers to obligations created or arising by or under the Treaties as defined in section 1 of the 1972 Act and it is now common ground between the parties that the Framework Decision falls outside this definition for the reasons explained by Lord Mance. Nor can section 3 of the 1972 Act affect the matter, again for the reasons given by Lord Mance. Section 3 is about the way in which the rule established in section 2 is to be put into effect, not about the extent of that rule. It follows that the Framework Decision and the Courts decision in Pupino are not part of United Kingdom law. The principle of conforming interpretation does not apply. The Framework Decision is, of course, an obligation undertaken by the United Kingdom in international law. There is a long standing presumption in common law that Parliament intends to give effect to the United Kingdoms obligations in international law. It has also been said that extradition treaties, and extradition statutes, ought . to be accorded a broad and generous construction so far as the texts permit it: In re Ismail [1999] 1 AC 320, 327, per Lord Steyn. But that is only one among many canons of statutory construction. As Lord Hope pointed out in Office of the Kings Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, para 24, the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. This is not, as he explained, an easy task, as the wording of Part I of the Extradition Act 2003 does not match that of the Framework Decision in every respect. He had earlier pointed out that the language of extradition is inappropriate to what is, in reality, a system of backing of warrants (para 22). But he concluded that the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty (para 24). In this case, we have a situation where Parliament did use the same wording as the Framework Decision (judicial authority). But we also have a situation where the words in the Act of Parliament have (at least in my view) a clear meaning in United Kingdom law, while the words of the Framework Decision do not (at least in my view) have a clear meaning in Community law. Are we to disregard the clear meaning of the United Kingdom statute in order to conform to some unclear meaning of a European instrument which is only part of United Kingdom law to the extent that the 2003 Act makes it so? Given that we are concerned with a serious interference with the right to liberty, I take the view that we should apply the clear intention of the United Kingdom legislature. I regard the point at issue in this case very differently from the points at issue in some of the other cases under this legislation. If a foreign judicial authority has faithfully followed the wording of the European Arrest Warrant annexed to the Framework Decision, we should do our utmost to hold that it complies with our legislation. That authority cannot reasonably be expected to know what our legislation says. Furthermore, it is issuing a warrant which might be executed anywhere within the territories of the member states, so it cannot pander to the peculiar demands of one of those states. But the question of who is to issue a warrant which we are bound to execute is in a different category. This goes to the heart of the protection given to the individual against unwarranted interference with his right to liberty. There is no authoritative interpretation of judicial decision or judicial authority in Community law. The United Kingdom has not accepted the jurisdiction of the Court of Justice in relation to the Framework Decision on the European Arrest Warrant so we cannot refer the question to the Court. Nor can the Commission take enforcement proceedings against the UK in respect of a perceived failure to implement it. The Court of Justice would not give much weight to the travaux prparatoires (non papers). In any event they are inconclusive. As Lord Mance points out, dropping the proposed definition of a judicial authority which included public prosecutors is consistent with (a) narrowing it so as to exclude prosecutors, (b) widening it so as to include others, or (c) a lack of consensus thus leaving it to the ECJ to interpret as a matter of principle. As a matter of principle, it is apparent that prosecutors do enjoy a special status in many European countries. In particular they are expected to take their decisions independently of the executive. However, even in countries where they do enjoy such status, a principled distinction could be drawn between a prosecutor who is independent of the prosecution in the particular case and a prosecutor who is in fact a party to the case in question. The Framework Decision defines a European Arrest Warrant as a judicial decision and by no stretch of language could a decision taken by a party to the case be termed judicial. There are also several good reasons to conclude that it was not intended that judicial authority should bear the much wider meaning contended for by Miss Montgomery on behalf of the prosecutor in this case. First, objection has been taken both by the Commission and the Council to the police and the Ministry of Justice being designated as competent judicial authorities. But if it is permissible to go beyond a court, tribunal, judge or magistrate, on what principled basis does one stop at prosecutors rather than any other public official who is in some way associated with the administration of justice? Would it include prosecutors in this country, where they do not enjoy the special status of prosecutors in some (but by no means all) European countries, or would it depend upon their particular status in the country in question? If so, what would the characteristics of that status be? Second, it is clear that many of the functions of an executing authority are only appropriate to a court, yet article 6.1 and 6.2 use the same phrase judicial authority in relation to both. It does contemplate different authorities being designated as competent in relation to the different functions, but both must be a judicial authority. Are we to take it that a different definition of judicial is appropriate to the choice of issuing authority than is appropriate to the choice of executing authority? Why should the meaning of judicial be different in each case? Thirdly, in the initial draft it was possible to see the issue of an EAW as an administrative step following an earlier court decision. There had to be a prior judgment or enforceable judicial decision, after which a request for assistance was issued by a judicial authority in one member state and addressed to any other member state. The structure is different in the eventual Framework Decision. 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 (article 1.1). The warrant has to contain evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect (article 8.1(c)). Thus the underlying process has been widened and cannot be read as requiring greater independence or affording greater protection than the judicial decision to issue the European arrest warrant. In those circumstances it is difficult to predict what the Court of Justice would decide if the point were to be raised with them. It may be right that they would recognise some prosecutors as judicial authorities but if so it is not clear on what basis they would distinguish between those prosecutors and others or between prosecutors and other bodies. Nor is it clear whether they would distinguish between a prosecutor with conduct of the case and a prosecutor who is independent of it. It is difficult, therefore, to know how we are to interpret the Act consistently with Community law when it is not clear and under the present arrangements cannot be made clear to us what Community law is on this point. Lord Phillips gives five reasons for concluding that the changed draft Framework Decision was intended to broaden the meaning from judge or prosecutor (para 60). Lord Dyson (with whom Lord Walker agrees) disagrees with four of them. First, Lord Phillips would have expected the restriction to a judge to be expressly stated because it was a radical change from the position under the European Convention on Extradition, where prosecutors had been able to issue provisional arrest warrants (para 61). Lord Dyson rejects this reason as the two regimes are so different and the European arrest warrant regime is notably wider in scope than the earlier Convention (doing away with double criminality for framework offences and, I would add, requiring states to extradite their own nationals) (para 155). Furthermore it does little to support the suggestion that it was intended to go further than prosecutors. I agree. Second, why would they wish to limit the issue of the European arrest warrant when the significant safeguard against improper issue lies in the antecedent process (paras 62 to 64)? Lord Dyson rejects this as article 8.1(c) refers to an enforceable judgment, an arrest warrant or any other enforceable judicial decision and judicial decision cannot mean something different in articles 1.1 and 8.1(c) (paras 156 157). I agree with that, but observe that both are happy to give judicial authority a different meaning in article 6.1 and 6.2. Third, it was likely that they removed the definition because they were not content to limit it to judges and prosecutors (para 65). That is not a reason independent of his conclusion. Lord Dyson rejects it because we do not know why the change was made (para 158). Furthermore, it is difficult to reconcile the even broader meaning with the objections taken to other authorities being designated competent authorities. Again, I agree. Fourth, the requirement to notify the Council which are the competent judicial authorities under the law of the member state makes more sense if there is a range (para 66). But as Lord Dyson points out (para 159) it also makes perfect sense if a member state wishes to designate a particular court as the competent authority. For England and Wales, of course, the competent judicial authority is a district judge sitting in the Westminster Magistrates Court. The executing state will need to be able to check whether the issuing authority is competent to issue. It says nothing about the nature of that authority. Again, I agree. However, Lord Dyson does agree with Lord Phillips fifth reason: that the manner in which member states, the Commission and the Council acted after the Framework Decision took effect is in stark conflict with restricting a judicial authority to a judge (para 67). What this amounts to is that some member states have designated prosecutors and sometimes other bodies for the purpose of article 6.1 and/or 6.2. No objection has been taken by the Council or the Commission to designating prosecutors but objection has been taken to designating the police or the Ministry of Justice. This is an odd reason to conclude that the change was intended to broaden the scope of judicial authority beyond prosecutors. It is more plausibly a reason for concluding that no change was intended. The real relevance, as Lord Kerr and Lord Dyson see it, is as evidence of subsequent state practice. Article 31.3(b) of the Vienna Convention on the Law of Treaties provides that there shall be taken into account, along with the context, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. While the practice need not be that of all the parties to the treaty (as in this case it obviously is not) the practice has to be such as to establish the agreement of all the parties as to its interpretation. Given the lack of common or concordant practice between the parties, is the failure to date of those countries which do not authorise prosecutors and other bodies to object to those who do sufficient to establish their agreement? Nobody in this country seems to have addressed their mind to the issue until it arose in this case. Failure to address minds to an issue is not the same as acquiescence in a particular state of affairs. Subsequent practice does not give support to the respondents extreme position and there has been no consideration of the principles which might distinguish some prosecutors from others. This seems to me to be a rather flimsy basis on which to hold that we are obliged to construe a United Kingdom statute contrary both to its natural meaning and to the clear evidence of what Parliament thought that it was doing at the time. We have to interpret the Act of Parliament. Even without reference to the parliamentary materials, it seems clear that the term judicial authority is restricted to a court, tribunal, judge or magistrate. First, that is the natural meaning of judicial in United Kingdom law. We may talk about the legal system or the justice system when we mean, not only the courts, but those involved in the administration of justice. But when we use the word judicial we mean a court, tribunal, judge or magistrate. Second, the Act uses the same term in relation to both the issuing and executing judicial authority. The executing judicial authority undoubtedly has to be a court. There is a strong presumption that the same words in the same statute especially in the same place mean the same thing. Third, the point about the European Convention on Human Rights is not that article 5.3 applies to the issue of a European arrest warrant. It clearly does not. The point is that it uses the word judicial (other officer authorised by law to exercise judicial power) in a sense which is clearly only compatible with a court, tribunal, judge or magistrate who is independent of the parties to the case. It could not include the prosecutor who is conducting the case. This indicates a European understanding of the word judicial which coincides with ours. It is also quite clear from the parliamentary history detailed by Lord Mance that judicial was deliberately inserted into the Bill in order to limit the authorities who could issue European arrest warrants to bodies which we would recognise as judicial. In this respect, I would place more weight on the parliamentary history in terms of the changes made to the Bill during its passage through Parliament than on the assurances given by ministers. Why make the amendments eventually made unless to make the matter clear? As Lord Filkin said to the House of Lords (Hansard (HL Debates), 1 May 2003, col 858), Parliament is sovereign. This is not a case where Parliament has told us that we must disregard or interpret away the intention of the legislation. I would therefore have allowed this appeal. LORD MANCE Introduction The appellant, Mr Assange, is wanted in Sweden on allegations of sexual molestation and rape being pursued against him by the respondent, the Swedish Prosecution Authority. Mr Assange is in England. On 18 November 2010 Marianne Ny, the prosecutor handling the case against Mr Assange, obtained from the Stockholm District Court a domestic detention order against Mr Assange in absentia, and on 24 November 2010 this was upheld by the Svea Court of Appeal, following written argument as to whether it was proportionate and based on sufficient evidence. On 2 December 2010 Mrs Ny herself then issued on the respondents behalf a warrant seeking Mr Assanges surrender pursuant to the arrangements put in place under the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). In the United Kingdom, these arrangements are found in Part 1 of the Extradition Act 2003. Under section 2(2) of that Act: A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory . Sweden and other Member States are all category 1 territories. Section 2(7) to (9) further provide that a designated authority (in England, SOCA, the Serious Organised Crime Agency) may, if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory issue a certificate that that authority has that function. SOCA issued a corresponding certificate in respect of the respondent. Under Swedish law the respondent is the only authority authorised to issue a European arrest warrant seeking surrender for trial. Under section 3 of the 2003 Act, the issue of a (valid) certificate under section 2 brings the remaining machinery of Part 1 into play. The issue which the Administrative Court rightly identified as being of general public importance for the purposes of an appeal to the Supreme Court is whether a warrant of this nature issued by a public prosecutor is a valid Part 1 warrant issued by a judicial authority within the meaning of sections 2(2) and 66 of the Extradition Act 2003. On appeal, a preliminary issue has also been raised, whether it is open to Mr Assange to question the warrants validity having regard to section 2(7) to (9) and SOCAs certificate. The status of the Framework Decision The Framework Decision on the European arrest warrant was a third pillar measure agreed under Title VI of the Treaty on European Union (TEU) in the form that Treaty took before the Treaty of Lisbon. Third pillar measures in the criminal area required unanimity, and article 34.2(b) of the Treaty on European Union provided that they were binding as to the result to be achieved but shall leave to the national authorities the choice of form and methods and that [t]hey shall not entail direct effect. Member States were not obliged to accept the jurisdiction of the European Court of Justice or the preliminary ruling system in regard to them, and the United Kingdom did not do so. The European Commission had and has no power to take enforcement measures against Member States in respect of any perceived failure to implement domestically the requirements of a Title VI measure. Under Protocol No 36 to the Treaty of Lisbon this position continues. The relevant text of this protocol is, for convenience, set out in an annex to this judgment. Article 9 provides that the legal effects of agreements concluded between Member States on the basis of the TEU prior to the entry into force of the Treaty of Lisbon shall be preserved until such agreements are repealed, annulled or amended in implementation of the Treaties. Article 10 provides that, as a transitional measure and with respect to acts of the Union in the field of police co operation and judicial co operation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the Commission and Court of Justice remain the same, unless and until the relevant Title VI measure is by agreement repealed, annulled or amended or a period of five years has elapsed after the date of entry into force of the Treaty of Lisbon (ie until 1 December 2014). This transitional provision was designed to give the opportunity for any textual, institutional and procedural adjustments necessary at a European and/or national level, on moving from an inter governmental framework to a harmonised and enforceable European system. The present appeal highlights points that could deserve attention in that context. When the House of Lords European Union Committee wrote its 10th Report of Session 2007 2008 entitled The Treaty of Lisbon: an impact assessment, the expectation was that the European Commission would introduce measures to convert some of the more significant Title VI instruments, such as the European Arrest Warrant, soon after the Treaty of Lisbon enters into force (para 6.323). This has evidently not occurred, at least so far, in relation to the Framework Decision on the European arrest warrant. Failing their repeal, annulment or amendment, the position in respect of Title VI measures remaining in force unamended at the end of the five year period is that the United Kingdom has, under article 10.3 to 10.5 of Protocol No 36, an option to notify a blanket opt out as from 1 December 2014, with an accompanying right to apply to opt back in selectively to individual measures. If the United Kingdom decides not to notify the blanket opt out or if, having notified one, it applies successfully to opt back in to the Framework Decision on the European arrest warrant, it must accept the jurisdiction of the Court of Justice and the Commissions right of enforcement. The proper interpretative approach and the status of Pupino The issues on the present appeal thus involve consideration of the interface between the European Framework Decision operating at an inter government level and the United Kingdoms domestic legislation in the form of the Extradition Act 2003. The Act was introduced to give effect to the Framework Decision. There are two different bases upon which this may be relevant. The first basis is the common law presumption that the Act gave effect to the United Kingdoms international obligations fully and consistently (see Bennions Statutory Interpretation, 5th ed (2008), sections 182 and 221). However, the Act was and is in noticeably different terms, and it is not axiomatic that it did so in every respect. The presumption is a canon of construction which must yield to contrary parliamentary intent and does not exclude other canons or admissible aids. As Lord Bridge of Harwich said in R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, 748B C: When confronted with a simple choice between two possible interpretations of some specific statutory provision, the presumption whereby the courts prefer that which avoids conflict between our domestic legislation and our international treaty obligations is a mere canon of construction which involves no importation of international law into the domestic field. The second basis upon which the Framework Decision may be relevant is the duty of conforming interpretation, which the Court of Justice in Criminal proceedings against Pupino (Case C 105/03) [2006] QB 83 held to be incumbent on domestic courts in the context of framework decisions. It did so in these terms: 43 In the light of all the above considerations, the court concludes that the principle of interpretation in conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. When applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34.2(b) EU. 47 The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision. In other words, the principle of interpretation in conformity with Community law cannot serve as the basis for an interpretation of national law contra legem. In relation to European Treaty law falling within the scope of the European Communities Act 1972, the European legal duty of conforming interpretation has been understood by United Kingdom courts as requiring domestic courts where necessary to depart from a number of well established rules of construction: Pickstone v Freemans plc [1989] AC 66, 126B, per Lord Oliver of Aylmerton; and to go beyond what could be done by way of statutory interpretation where no question of Community law or human rights is involved: Test Claimants in the FII Group Litigation v Revenue and Customs Comrs [2010] EWCA Civ 103, [2010] STC 1251, paras 97 and 260, per Arden LJ. See also Litster v Forth Dry Dock Co Ltd [1990] 1 AC 546, 576H 577A, per Lord Oliver; R ( IDT Card Services Ireland Ltd) v Customs and Excise Comrs [2006] EWCA Civ 29, [2006] STC 1252, paras 67 92, per Arden LJ. An analogy has been drawn between the positions under the European Communities Act 1972 and under section 3 of the Human Rights Act 1998: see the IDT Card Services case, paras 85 90, per Arden LJ and Vodafone 2 v Revenue and Customs Comrs [2009] EWCA Civ 446; [2010] Ch 77; [2009] STC 1480, paras 37 38, per Sir Andrew Morritt C. Pursuant to the resulting duty, domestic courts may depart from the precise words used, eg by reading words in or out. The main constraint is that the result must go with the grain or be consistent with the underlying thrust of the legislation being construed, that is, not be inconsistent with some fundamental or cardinal feature of the legislation: Vodafone 2, para 38, per The Chancellor and Test Claimants in the FII Group Litigation, para 97, per Arden LJ, in each case citing Ghaidan v Godin Mendoza [2004] 2 AC 557. In this light, considerable significance may attach to whether the European legal duty of conforming interpretation applies or whether the case is subject only to the common law presumption that Parliament intends to give effect to the United Kingdoms international obligations. The force of the common law presumption in the context of the Extradition Act 2003 has itself been addressed with differing emphases. In Office of the Kings Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, Lord Bingham said that the interpretation of the 2003 Act must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 [of the Act] to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of co operation by the United Kingdom than the Decision required, it did not intend to provide for less (para 8). In contrast, Lord Hope, recognising that the introduction of the European arrest warrant system was highly controversial (para 20), noted that there were limits to the principle that extradition treaties and statutes should receive a broad and generous construction, in so far as the liberty of the subject is at stake here, and said that the task of giving effect to Part 1 of the 2003 Act in the light of the Framework Decision had to be approached on the assumption that where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty (para 24). In Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31, Lord Hope, with whose speech the three other members of the majority agreed, repeated at para 35 what he had said in para 24 in Cando Armas. However, in common with the majority he found on examination that the defendants argument in that case (that the Act required a separate certificate as to the category of offence involved) was much more about form than it was about substance, and rejected it. More recently still, in Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy [2008] UKHL 51, [2008] 1 WLR 1724, Lord Bingham, with whose speech Lord Hope, Lady Hale and Lord Carswell all agreed, noted, at para 23, that Providing as they do for international co operation between states with differing procedural regimes, the Framework Decision and the 2003 Act cannot be interpreted on the assumption that procedures which obtain in this country obtain elsewhere. The evidence may show that they do not. The need for a broad internationalist approach signalled by Lord Steyn in In re Ismail [1999] 1 AC 320, 326 327 is reinforced by the need to pay close attention to whatever evidence there is of the legal procedure in the requesting state. While the common law presumption will therefore readily overcome apparent formal or procedural inconsistencies, it does not exclude the possibility that Parliament may deliberately have intended a result differing from that inherent in the United Kingdoms international obligations. Lord Hoffmann described the legal position as follows in R v Lyons [2002] UKHL 44; [2003] 1 AC 976, para 27: Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. 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. Returning to the duty of conforming interpretation under European law, the Court of Justices decision in Pupino was not cited in Cando Armas, although Cando Armas was decided some five months after Pupino. But Pupino was extensively relied upon in Dabas and Caldarelli. It was assumed without argument in each case that Pupino was directly applicable and binding under domestic law in the United Kingdom: see in particular Dabas, para 5 per Lord Bingham, paras 38 40 per Lord Hope, para 69 per Lord Scott, para 75 79 per Lord Brown (referring to it as of considerable importance and as the decision on which the respondent authority principally relied on that appeal) and para 81 per Lord Mance (agreeing with the other speeches), and Caldarelli, para 22 per Lord Bingham, with whose reasoning Lord Hope, Lady Hale and Lord Carswell agreed. Whether the assumption made in Dabas and Caldarelli was correct has, however, been examined at the Supreme Courts instance in submissions invited and received after the hearing of the present appeal. This involves considering the history of the European Treaties, and the extent to which they and instruments under them have been incorporated or referred to in domestic law under the European Communities Act 1972 and the European Union (Amendment) Act 2008. Title VI measures in the field of criminal law were introduced under the third pillar of the Treaty of Maastricht 1992. Amendments to the scope and terms of the third pillar were made by articles 1 of, successively, the Treaty of Amsterdam 1997 and the Treaty of Nice 2001. Section 2 of the 1972 Act provides that: (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. Section 1 of the 1972 Act defines the Treaties for present purposes as including in relation to the Treaty of Maastricht 1992 only Titles II, III and IV, and in relation to the Treaties of Amsterdam 1997 and Nice 2001 various articles other than article 1. The definition also includes the Treaty of Lisbon 2007 together with its Annex and Protocols with a presently immaterial exception relating to the Common Foreign and Security Policy. Having regard to this, and to article 9 of Protocol No 36 to the Treaty of Lisbon, the Framework Decision on the European Arrest Warrant remains to be regarded as a Title VI measure and as falling outside the definition of the Treaties or the Community Treaties contained in section 1 of the European Communities Act 1972, and so outside the scope of section 2 of that Act. This is now, rightly, common ground between all parties to the present appeal. It is a constitutional point (see Thomas v Baptiste [2000] 2 AC 1, 23A C) and it has been overlooked in the previous case law. Although Title VI measures in the criminal law field are outside the scope of the the Treaties for the purposes of the 1972 Act, the respondent submits that instruments under them have become part of domestic law under section 3 of the 1972 Act. Since 1 December 2009, section 3 reads: Decisions on, and proof of, Treaties and EU instruments etc. (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. (2) Judicial notice shall be taken of the Treaties, of the Official Journal of the European Union and of any decision of, or expression of opinion by, the European Court on any such question as aforesaid; and the Official Journal shall be admissible as evidence of any instrument or other act thereby communicated of the EU or of any EU institution . (3) Evidence of any instrument issued by a EU institution, including any judgment or order of the European Court , or of any document in the custody of a EU institution, or any entry in or extract from such a document, may be given in any legal proceedings by production of a copy certified as a true copy by an official of that institution; and any document purporting to be such a copy shall be received in evidence without proof of the official position or handwriting of the person signing the certificate. (4) Evidence of any EU instrument may also be given in any legal proceedings (a) by production of a copy purporting to be printed by the Queens Printer; (b) where the instrument is in the custody of a government department (including a department of the Government of Northern Ireland), by production of a copy certified on behalf of the department to be a true copy by an officer of the department generally or specially authorised so to do; and any document purporting to be such a copy as is mentioned in paragraph (b) above of an instrument in the custody of a department shall be received in evidence without proof of the official position or handwriting of the person signing the certificate, or of his authority to do so, or of the document being in the custody of the department. (5) In any legal proceedings in Scotland evidence of any matter given in a manner authorised by this section shall be sufficient evidence of it. The respondent submits that, although Title VI framework decisions continue to fall outside the Treaties, United Kingdom courts are under section 3 bound, since 1 December 2009, by Court of Justice decisions on their validity, meaning or effect. The submission is in my judgment incorrect for several reasons. First, it is section 2, read with section 1, that defines the extent to which European law has domestic effect. Section 3, as its heading and text indicate, regulates the manner in which and principles by which European law is to be given effect, not the extent to which European law applies. Secondly, although section 3 refers since 1 December 2009 to any EU instrument or EU institution, before that date it referred to any Community instrument or Community institution. It had therefore no relevance to decisions on or proof of framework decisions, which were not European Community instruments. The reference to any EU instrument or institution as from 1 December 2009 was to give effect to the unified terminology introduced by the Treaty of Lisbon, amalgamating for the future the previously separate pillars. However, article 9 of Protocol No 36, which is part of domestic law under section 1 of the 1972 Act, provides that for the time being the legal effects of measures adopted on the basis of the old TEU shall be preserved. Title VI measures such as the framework decision remain therefore for the time being Title VI measures and not EU instruments within section 3. Thirdly and more generally, it would be inconsistent with the carefully limited scope of sections 1 and 2 of the 1972 Act and with the whole thrust of Protocol No 36 to treat Title VI measures or Court of Justice decisions in respect of them as acquiring with effect from 1 December 2009 a domestic force which they never had before. It would bizarre to provide that Title VI should not be domestically binding, but that instruments enacted under it should be. It would be equally bizarre to provide for United Kingdom courts to be bound by principles established and any decision reached by the Court of Justice in cases which happened to be referred by courts of other member states, but to have no power to refer themselves: see article 10 of the Protocol. (Indeed, the reference in section 3 to questions of law if not referred to the European Court being for determination in accordance with such principles and any such relevant decision is itself another indication that section 3 was not conceived with the intention of covering Title VI measures which could not be so referred.) The respondent submits, further or alternatively, that the principle of conforming interpretation established in Pupino finds domestic force through the duty of sincere co operation found in article 10 of the former Treaty on the European Community (TEC). Article 10 TEC was mentioned by Lord Hope in Dabas, para 38. But it is a duty on the United Kingdom as a state, not on its courts, and in any event it can have had no application, prior to 1 December 2009, to Title VI measures agreed under the former TEU, rather than under the European Community Treaty. Post Lisbon, the duty of co operation is found in article 4(3) TEU. But again it is not a principle of domestic interpretation, and again it would be contrary to Protocol No 36 to treat Title VI measures as being in a different position now to that in which they were before 1 December 2009. Finally, the respondent notes that, unless United Kingdom courts interpret domestic legislation to match precisely the true European legal interpretation of any relevant Title VI measure, there will exist a discrepancy which would involve the United Kingdom in breach of its international obligations. That is so. But it is a position which even the Court of Justice in Pupino accepted could in some circumstances occur. The risk is one which, even on the respondents case, must always have existed prior to 1 December 2009. In preserving the existing legal effect of Title VI measures by article 9 of Protocol No 36, the United Kingdom preserved that possibility, if and when it had any reality. In fact, the risk of infraction proceedings by the Commission under article 258 TFEU (ex article 226 TEC) to which the respondent refers is effectively non existent, since under article 10 of Protocol No 36 the Commission continues for the time being to have no power to bring any such proceedings. The framework decision, the Court of Justices decision in Pupino and the European legal principle of conforming interpretation are not therefore part of United Kingdom law under the 1972 Act. The only domestically relevant legal principle is the common law presumption that the Extradition Act 2003 was intended to be read consistently with the United Kingdoms international obligations under the framework decision on the European arrest warrant. But this presumption is subject always to the will of Parliament as expressed in the language of the Act read in the light of such other interpretative canons and material as may be relevant and admissible. In this light, it is also relevant to record the basis upon which the British Government promoted the Bill leading to the Extradition Act. Asked by Lord Lamont on its second reading on 1 May 2003 to confirm that it was open to the House to amend the provisions of the Bill and arrest warrant, the minister, Lord Filkin, replied (Hansard (HL Debates), col 858): My Lords, the constitutional position is clear. On framework agreements to which the Government have been a party and have signed with other member states, there is an expectation that member states will put them into effective law in their own countries. However, as I am sure the noble Lord, Lord Lamont, knows, the position is that Parliament is sovereign and Parliament can do what it wishes in this respect. Clearly, if there were to be a discontinuity between our treaty obligations and our own law, that is another issue that goes further. But Parliament is sovereign. That also reflects my view of the domestic legal position. The Framework Decision and its interpretation under European law On this basis, I turn to the Framework Decision. Article 1 provides: 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 provides: 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. Both the Framework Decision and the 2003 Act provide that a European arrest warrant is to be issued by a judicial authority. Under both, the question arises what is meant by a judicial authority. For Mr Assange, Ms Dinah Rose QC submits that the phrase refers under both to an authority which is not only vested with responsibility for issuing such a warrant, but is independent of the executive and of the parties and impartial in the same sense as the competent legal authority or the court referred to in article 5.1(c) and 5.4 of the European Convention on Human Rights. For the Swedish Prosecution Authority, Miss Clare Montgomery QC submits that it means no more than an authority which is vested with responsibility for issuing such a warrant and which the issuing Member State has notified to the General Secretariat of the Council of Ministers under article 6 of the Framework Decision as competent to do this under its own domestic law. A second point is that, on Ms Roses case, it is for the courts of the executing state to determine whether the criteria of independence which she advances have been met. On Miss Montgomerys case, the courts of the executing state have no role to play, save, under sections 2 and 3 of the United Kingdoms 2003 Act, to check that SOCA has in fact issued a certificate in the terms required by section 2(8); the only possible qualification, again under domestic law, is that a defendant might be able to seek judicial review of SOCAs conduct in issuing a certificate, if it could be shown that SOCA had no rational basis for believing that the issuing authority had the function of issuing warrants in the issuing state. Each interpretation faces problems. Ms Roses interpretation of the phrase judicial authority has the merit, noted by Lord Phillips at para 76, that it corresponds naturally to expectations derived from the English text. But the position may be cloudier if one looks behind the language of the English statute and the English version of the framework decision to other language texts of the framework decision, particularly the French (autorit judiciaire) and German (Justizbehrde). The parallel that Ms Rose draws with article 5.1(c) and 5.4 of the Convention on Human Rights also faces a difficulty. It is well established that the competent legal authority and court there mentioned must have the qualities on which Ms Rose relies: see eg Schiesser v Switzerland (1979) 2 EHRR 417, Skoogstrm v Sweden (1983) 6 EHRR 77 and Medvedyev v France (2010) 51 EHRR 899. In Skoogstrm v Sweden the court was, as in the present case, concerned with the position of a Swedish prosecutor. The court noted, at paras 77, 78, that there was in Sweden no question of a distinction between investigating and prosecuting authority, and that the organisation of the prosecuting functions was hierarchical; the public prosecutor was responsible for investigating a matter, for deciding whether to institute a prosecution, for drawing up an indictment and for pursuing the prosecution in the courts and was not independent of the parties. But the cases on article 5.1(c) and 5.4 concern the competent legal authority and court before which a person must be brought after arrest, not the authorities by which an arrest may be authorised. In the present context, their most natural analogues are the magistrates court responsible for executing the warrant in England, before which Mr Assange has been brought, and/or the Swedish court, before which Mr Assange would have to be brought following any surrender to Sweden. A domestic arrest, for the purpose of bringing a defendant before such a court, is commonly made at the instance of the police or a prosecution service not possessing the full qualities of independence and impartiality which Ms Rose invokes. Despite this and despite the principle of mutual recognition which underpins the Framework Decision, Ms Rose is correct to question whether there is a complete equation between domestic arrest and international surrender. A European arrest warrant seeking the surrender of a defendant by one state to another to face charges is a generally speaking more intrusive measure than a domestic warrant. In many cases (though not the present) surrender between European Union member states will uproot a defendant from his or her familiar and personal environment. It may therefore engage human rights issues, eg under article 8 of the European Convention on Human Rights (as indeed section 21 of the 2003 Act recognises from the point of view of the United Kingdom as an executing state). If (again, unlike Mr Assange) the defendant is a national of the executing state, then such a warrant may also deprive him or her of the customary international right to remain within the jurisdiction of that state. Lord Hopes statement in Cando Armas that the liberty of the subject is at stake here (para 204 above) reflects such considerations. The Framework Decisions insistence in articles 1 and 6 that a European arrest warrant should be a judicial decision taken by an issuing judicial authority can only have been intentional, designed to allay fears that the measure might be excessively or inappropriately deployed. But there is as yet no authority, in Strasbourg or in Luxembourg, as to the precise nature of the judicial decision and judicial authority to which these articles refer. Miss Montgomerys submission that these words refer to no more than an authority which is, and which a state notifies to the Council as being, vested with responsibility for issuing such a warrant is also open to objection. It means that any member state could notify any body or person to the Council as the authority responsible for issuing an European arrest warrant, and thereby clothe that body or person with the mantle of a judicial authority making a judicial decision. Miss Montgomery does not shrink from this conclusion: she submits that judicial means no more than appertaining to the administration of justice, and that the mere assignation to an authority of the role of issuing a European arrest warrant makes that authority judicial. Accordingly, it was and is, she submits, perfectly permissible for countries to assign as their relevant judicial authority their Ministry of Justice or their police. A number of states have indeed taken this view: eg in relation to the issue of both accusation and conviction warrants, Denmark where the Ministry of Justice is the only relevant authority and Germany where the Ministry is a relevant authority alongside the State prosecution service (Staatsanwaltschaft) and courts and in relation to the issue of conviction warrants, Estonia, Finland and Lithuania, where the Ministry is the only relevant authority and Sweden, where the National Police Board is the only relevant authority. The background to the proposal for the Framework Decision can be shortly stated. Under the European Convention on Extradition 1957 (to which the United Kingdom adhered on 14 May 1991 and to which effect was given domestically in the Extradition Act 1989), extradition was effected by and between states in respect of persons against whom the competent authorities of the requesting state were proceeding or who they wanted for the carrying out of a sentence or detention order. There was a requirement of double criminality and states had the right to refuse extradition of their nationals. The 1957 Convention was supplemented by a Council Act of 27 September 1996 (96C 313/02). This retained the requirement of double criminality with modifications (articles 2 and 3), and it provided for the extradition of nationals, but at the same time it gave states the right not to extradite their own nationals by successive five year reservations (article 7). States were also given the right to provide on a mutual basis for requests for supplementary information to be handled directly between judicial authorities or other competent authorities which they authorised and specified for that purpose (article 14). Various authorities, including prosecutors, the Ministry of Justice and police, were specified for this limited purpose by some countries. The third instrument requiring mention is the Schengen Convention of 19 June 1990, which implemented the Schengen Agreement of 14 June 1985 between the Benelux countries, Germany and France and to some parts of which, including article 95, the United Kingdom later acceded by 2003. Articles 39 and 53 of the Schengen Convention distinguish between on the one hand the police and Ministries of Justice and on the other judicial authorities in the context of mutual assistance. Article 95 provides for data on persons wanted for arrest for extradition purposes to be entered at the request of the judicial authority of the requesting state, and for such alert to be sent by the quickest means possible to the requested state with information as to the authority issuing the request for arrest, as to whether there is an arrest warrant or other document having the same legal effect, or an enforceable judgment and as to the nature, circumstances and consequences of the offence. Unless the requested state refused on exceptional grounds, or because the person wanted was one of its nationals, article 95 alerts would lead to arrest of the wanted person in the requested state, to enable extradition proceedings to take place. Otherwise, they would be treated as a request for information as to that persons place of residence (article 95(5)). Article 98 also addressed the provision at the request of the competent judicial authorities of information as to place of residence of a wanted person. A report dated 13 October 2009 by the Joint Supervisory Authority of Schengen states that: [w]hile public prosecutors and judicial authorities obviously play a major role in the decision leading to article 98 alerts, in some Schengen States the police, security police, tax and customs authorities, border guard authorities and other authorities competent for criminal investigations are also competent to decide on article 98 alerts (para V.I.A.1). If the same applied or applies to the more coercive article 95 alerts, that, as will appear, was certainly not what Parliament understood when it passed the Extradition Act 2003, incorporating section 212 (see para 258 below). The Framework Decision was designed to introduce a new era. First, the surrender of requested persons between member states was to become entirely or basically judicial. So the Commission wrote in a first report on the Framework Decision, although noting that certain states including Sweden had designated an executive body as the relevant authority for all or some aspects. Second, the requirement of double criminality was to go. Third, the surrender of nationals was now to be required a major innovation as the Commission described it in its report. The correct interpretation of the Framework Decision is a matter of European Union law. The Court of Justice may one day have to adjudicate upon it, either at the instance of a member state which has already accepted the courts jurisdiction in respect of third pillar instruments or, after 1 December 2014, at the instance of a state remaining party to the Framework Decision. The Court of Justices general interpretational approach has been described by Professor Anthony Arnull of the University of Birmingham, as teleological and contextual: The European Union and its Court of Justice, 2nd ed (2006), pp 612 and 621; Professor Arnull goes on to note that the recourse to travaux prparatoires contemplated as a secondary source of assistance in other international contexts under article 32 of the Vienna Convention on the Law of Treaties is not a method which has in the past commended itself to the Court in cases concerning the interpretation of the Treaties themselves: p 614. This is for a good reason, which applies in the present context. Such travaux (or, in the European jargon, non papers) relating to matters decided in preparatory working groups, are not made generally available (although a facility to seek access to them under certain conditions is available in Council Regulation (EC) No 1049/2001). This is relevant because of the striking differences between the original Commission proposal of 25 September 2001 (COM(2001) 522 final/2) and the redraft which was agreed by the Council of Ministers at a meeting of 6 7 December 2001, recorded on 10 December 2001 as Council document 14867/1/01 Rev 1 and agreed by the European Parliament on 6 February 2002. Article 3 of the original Commission proposal defined a European arrest warrant as a request, issued by a judicial authority in a Member State, and addressed to any other Member State, for assistance in searching, arresting, detaining and obtaining the surrender of a person, who has been subject to a judgment or a judicial decision, as provided for in article 2. It defined issuing judicial authority as the judge or the public prosecutor of a Member State, who has issued a European arrest warrant and executing judicial authority as the judge or the public prosecutor of a Member State who decides upon the execution of a European arrest warrant. Article 4 provided that each member state shall designate according to its national law the judicial authorities that are competent to (a) issue a European arrest warrant and (b) take decisions under the provisions dealing with execution of such a warrant. Article 2 provided that a European arrest warrant may be issued for (a) final judgements in criminal proceedings, and judgements in absentia which involve deprivation of liberty or a detention order of at least four months or (b) other enforceable judicial decisions in criminal proceedings which involve deprivation of liberty and relate to an offence punishable by a sentence or detention order of at least twelve months. Any European arrest warrant had under article 6 to contain information as to whether there is a final judgement or any other enforceable judicial decision, within the scope of article 2. Under this scheme, there would have been no doubt that a member state could designate either a court or a public prosecutor as competent to issue a European arrest warrant. But it would have been open to doubt in accusation cases what sort of enforceable judicial decision taken by whom would have had to precede the issue of such a warrant. And enforceable judicial decision in that context might or might not have been limited to a court decision. The Council redraft of 10 December 2001 elevated to article 1 the description of a European arrest warrant as (in the original French text) une dcision judiciaire mise par un tat membre en vue de larrestation et de la remise par un autre tat membre dune personne recherche pour lexercice de poursuites pnales ou pour lexcution dune peine ou dune mesure de surt privatives de libert. The English and German versions, described as liable to revision in the light of the French original, spoke of a court decision and (the German text being in this respect consistent with the English) eine gerichtliche Entscheidung. Article 2(1) followed the same scheme as article 2 of the September draft, but article 2(2) introduced a long list of offences punishable by sentences of at least three years which were to give rise to surrender without verification of double criminality. Article 6 was in substantially the terms that became article 6 of the Framework Decision, but the Council redraft did not attempt to define judicial authority. Article 9 required the European arrest warrant to contain evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, within the scope of articles 1 and 2. This redraft left unclear both what was meant by judicial authority and whether the prior domestic arrest warrant or any other enforceable judicial decision on which a European arrest warrant was to be based had to involve a court decision. The Framework Decision recites the Commission proposal and the European Parliaments opinion, but is closely based on the Council redraft. The Council redraft must, in the ordinary course, have followed the circulation, under the aegis of the Belgian presidency of the Council, of non papers which could, if available, shed light on the drafting history. The United Kingdom government made a preliminary presidency text of this nature available to the House of Lords European Union Committee: see Lord Brabazon of Taras letter to the minister at Appendix 3 to the committees 6th Report of Session 2001 02. Lord Brabazons letter records that the preliminary presidency text included an article 24 (left blank in the version of 10 December 2001) enabling a member state to suspend the application of the Framework Decision in relation to states not complying with article 6.1 TEU, that the minister had also stated that it was implicit that national authorities would apply the European Convention on Human Rights, and that the committee inferred but wished to have expressly stated that an executing authority could refuse execution in the case of a request which came from a judicial authority not possessing the degree of independence needed to satisfy article 5 ECHR. That latter thought, that a judicial authority should have that independence, is reflected in Ms Roses current submissions. For present purposes, the content and thinking of any non papers remain (in the absence of any request to see them under Regulation (EC) No 1049/2001 of 30 May 2001) unknown. Even if they were now known, it seems unlikely that the Court of Justice would attach any weight to them. Equally, the Court would I think be hesitant about speculating in their absence as to the reasons for the differences between the Commissions original proposal, on the one hand, and the 10 December 2001 text and the final Framework Decision, on the other. Lord Phillips suggests two possible reasons for the absence from the Council redraft of any definition of judicial authority: one, to restrict the meaning to a judicial authority in the strict court sense; the other, to broaden it beyond judge or prosecutor. He favours the latter (paras 60 and 65). But it is also possible that there was no consensus, and that the removal of any definition left the matter open, in effect for whatever the Court of Justice might decide. In any event, I doubt whether the Court of Justice would speculate in this area either. Rather, it would focus on the final Framework Decision and seek to make sense of its text in the light of its purpose, the principles underlying it and general principles of European law. Under article 6.3 of the Treaty on European Union in its current form, these include [f]undamental 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. In this connection, it is notable that the Framework Decision draws no explicit distinction between the qualities which must be possessed by an issuing and an executing judicial authority. Nor in fact did either the Commission proposal or the Council redraft draw any such distinction the former contemplated that a judge or a prosecutor could fulfil either role, the latter is silent as to the qualities required. Yet it seems clear that executing authorities have adjudicative responsibilities which can only be fulfilled by a judicial authority in the strict court sense in other words, complying with the requirements laid down by the Strasbourg court in the cases cited in para 223 above. Adjudicative responsibilities of this nature can arise for example under each of articles 11, 12, 13 (where the words before the executing judicial authority underline the point), 14, 15, 16, 17, 18 and 19 of the Framework Decision. One very possible reason for the removal from the Council redraft of any definition is that it was appreciated that the Commission definition was, at least in this respect, inappropriately wide. That does not necessarily mean that the meaning of judicial authority in the Council redraft was itself narrowed it may simply have been left to member states, pursuant to article 1.3, to comply with their Convention obligations by nominating appropriately independent and impartial courts as executing authorities. But it does mean that it is unsafe to approach the present appeal on the basis that the absence of a definition of judicial authority was intended to broaden or relax, rather than tighten, the meaning of a judicial authority (compare Lord Phillips, para 60). What is striking is in my view the emphasis placed in article 1 of the Framework Decision on a European arrest warrant being a judicial decision. Returning to the Commission proposal and Council redraft, it was the Council redraft that insisted on a judicial decision by the issuing judicial authority to issue such a warrant. The Commission proposal had spoken simply of a request issued by a judicial authority for assistance in respect of a person subject to a domestic sentence or other enforceable judicial decisions in criminal proceedings which involve deprivation of liberty and relate to an offence, which is punishable by deprivation of liberty or a detention order for a maximum period of at least twelve months. Under the Commission proposal a European arrest warrant could be requested without more, once there was a domestic sentence or judicial decision of this nature. Under the Council redraft and the Framework Decision, there are two separate stages, and the focus is on the first, the judicial decision involved in the issue of the European arrest warrant. The prior stage, at which there must exist an enforceable judgment, an arrest warrant or any other enforceable judicial decision on which the European arrest warrant is based is no more than additional information to be mentioned in the European arrest warrant: see article 8 of and Annex (b) to the Framework Decision and Louca v Public Prosecutor, Bielefeld, Germany [2009] UKSC 4; [2009] 1 WLR 2550. Lord Phillips describes the second stage as involving an essentially administrative step in the process and the first stage as the significant safeguard against the improper or inappropriate issue of an EAW (paras 62, 74 and 79). To my mind, this considerably downplays the significance which must have been attached to the introduction of the requirement of a judicial decision by an issuing judicial authority to issue a European arrest warrant. Further, in so far as it is implicit in his description and Miss Montgomerys case that there must have been a judicial decision by a court at the first stage, there is no basis for this assumption in the Framework Decision, or in practice. As Lord Phillips acknowledges in para 32, under prior practice followed in relation to the European Convention on Extradition 1957, states were able to issue requests for extradition based on domestic arrest warrants that might not have resulted from any judicial (in the sense of court) process. Nothing in the Framework Decision expressly requires any prior arrest warrant to be the result of a court process, nor do the to consider judicial authority ought evaluation reports attach importance to this being so, or establish that it is so, in practice in relation to a number of member states. The argument that the words in article 8.1(c) an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect imply that any such domestic arrest warrant will have been issued by a court would, if correct, support Ms Roses submission that judicial in articles 1 and 6 also means by a court. The parties are also at issue with regard to the nature of the judicial decision to be taken by a judicial authority issuing a European arrest warrant. On any view, the phrase must have been introduced with a protective purpose: see para 224 above. The issuing judicial authority must have been seen as a body or person applying an open and objective mind to the question whether circumstances existed justifying the issue of such a warrant. It is also clear, and the word may in article 2(1) of the Framework Decision confirms, that no duty is imposed on any state to issue a European arrest warrant. The Framework Decision confers a power. In these circumstances, Ms Rose submits that, before issuing such a warrant, an issuing the appropriateness (or proportionality) of doing so. Miss Montgomery submits that there is no such requirement. The evaluation reports on the implementation of the Framework Decision show that, while a number of states undertake such an exercise, the issue of a European arrest warrant is currently obligatory under the domestic law of several other states. The Council has urged states to change their domestic law to ensure that a proportionality check is undertaken in all before the issue of any European arrest warrant: para 3 of its European Handbook on how to issue a European Arrest Warrant (set out in 8216/2/08 Rev 2 COPEN 70 EJN 26 EUROJUST 31). However, the Council takes the same view of the current legal situation as Miss Montgomery, stating in its Handbook, para 3, that It is clear that the Framework Decision does not include any obligation for an issuing Member State to conduct a proportionality check. It will be the legislation and judicial practice of the Member States that will ultimately decide this question. Notwithstanding the respect due to the Councils legal service which may have endorsed this passage, it does not follow that the Court of Justice would necessarily take the same view. It seems to me quite possible that the Court would hold that it was inherent in the creation of the discretionary power conferred by article 2, to be exercised under articles 1 and 6 by judicial decision taken by an issuing judicial authority, that some consideration should be paid to the appropriateness in all the circumstances of the issue of a European arrest warrant. Whether this would be so or not, the protective emphasis in the Framework Decision on a judicial decision by a judicial authority lends some impetus to Ms Roses case that a body independent of the parties should undertake this role. If and when it had to address the present issues, the Court of Justice would have to address at the outset Miss Montgomerys submission that article 6 leaves it to each member state to determine which body, bodies or person(s) constitute judicial authorities within its legal system for the purpose of issuing a European arrest warrant, with the effect that any decision by such a body or person constitutes a judicial decision within article 1. This submission deprives the words judicial authority of any autonomous or objective meaning. It makes states their master. Alice would have been right to question whether you can make words mean so many different things (Through the Looking Glass). The alternative and to my mind more natural way of reading article 6 is that it requires each member state to identify which judicial authority is competent, but does not authorise a member state to assign judicial status to take judicial decisions to bodies which or persons who obviously do not possess it. In my view, the Court of Justice would be likely to conclude that the concepts of a judicial decision by a judicial authority cannot be stripped of all objective or autonomous content in the manner that Miss Montgomerys submission suggests. However this conclusion leaves open the question whether a judicial decision by a judicial authority must under the Framework Decision be taken by a body possessing all the characteristics of independence of the executive and the parties for which Ms Rose submits. It is at this point that I have greater difficulty in accepting the case she advances on European law. I do not accept much of the reasoning involved in the five points made by Lord Phillips in his paras 60 to 67, and I am in substantial agreement with all Lord Dysons comments in paras 155 to 159 on the first four of those points. I do however see force in the general point Lord Phillips makes in paras 16 to 20 of his judgment. The words judicial authority, and all the more so their homologues autorit judiciaire and Justizbehrde, have a degree of flexibility about them that a reference to a court or judge would not have had. To this, one may add the knowledge that in some civil law countries (France, Greece, for example), public prosecutors (le parquet) are described as an arm of the judiciary. F H Bridges French English Legal Dictionary published by the Council of Europe in 1994 defines autorit judiciaire as court; judicial authorities; judiciary; (occasionally) legal authorities and fonction judiciaire as judicial office; legal office; legal functions. (The term includes the office of prosecutor as well as that of judge in certain contexts). In Sweden the public prosecutor is not regarded as part of the judiciary. Nevertheless, it is recognised throughout Europe that public prosecutors have a special status in the administration of justice, which requires them to be independent and autonomous in their decision making and carry out their functions fairly, objectively and impartially: para 6 of the Bordeaux Declaration Judges and Prosecutors in a Democratic Society, issued jointly by the Consultative Council of European Judges and Consultative Council of European Prosecutors as part of their Opinions numbered respectively 12 (2009) and 4 (2009). It is right, however, to add that para 7 of the same Declaration goes on to add, after reference to the case law to which mention has already been made in para 223 above, that: Any attribution of judicial functions to prosecutors should be restricted to cases involving in particular minor sanctions, should not be exercised in conjunction with the power to prosecute in the same case and should not prejudice the defendants right to a decision on such cases by an independent and impartial authority exercising judicial functions. That passage favours Ms Roses case, because, even on a broad view of judicial, it means that a public prosecutor should not be taking judicial decisions in a case which she or he is prosecuting. In support of his view that the phrase judicial authority must have been used without definition in order to open the concept still wider than the Commission proposed in September 2001, Lord Phillips refers to subsequent state practice, already touched on in para 225 above. In fact, the practice of nominating a Ministry of Justice or the police has been criticised, though it appears without avail, both by the Commission, eg in its first report on the Framework Decision (COM (2006)8 final of 24 January 2006, and in various Council evaluation reports on the operation of the Framework Decision, as summarised in the Councils overall Final report on the fourth round of mutual evaluations The practical application of the European Arrest Warrant and corresponding surrender procedures between Member States (8302/4/09 REV 4CRIMORG55 COPEN 68 EJN24 EUROJUST20): The findings of the evaluation demonstrate, however, that in some Member States non judicial central authorities continue to play a role in cardinal aspects of the surrender procedure far beyond the administrative tasks assigned in the Framework Decision. As a matter of principle, this situation seems difficult to reconcile with the letter and the spirit of the Framework Decision, irrespective of how understandable it may be in view of the specificities of the national system or associated practical advantages. Recommendation 1: The Council calls on those Member States that have not done so to consider restricting the mandate of non judicial authorities, or to put equivalent measures in place so as to ensure compliance with the Framework Decision with regard to the powers of judicial authorities. For subsequent practice in the application of the parties to be relevant to be taken into account in the interpretation of the Framework Decision, it must under article 31.3 be practice which establishes the agreement of the parties regarding its interpretation. It must be practice which clearly establishes the understanding of all the parties regarding its interpretation, although subsequent practice by individual parties also has some probative value: Brownlie, Principles of Public International Law, 7th ed (2008) pp 633 634. Evidently suspect practice consisting of the use and nomination of executive authorities by a few states cannot come near establishing the agreement of the parties regarding [the] interpretation of the Framework Decision within the meaning of article 31.3 of the Vienna Convention on the Law of Treaties. On this I disagree with Lord Phillips in paras 60 and 67. However, a greater number of the member states of the European Union have nominated public prosecutors as issuing judicial authorities (eleven, it appears in relation to accusation warrants and ten in relation to post conviction warrants) without this receiving the same disapproval, and this is at least a factor to be taken into account in attempting to understand the parameters at a European level of the concept of judicial authority. A countervailing factor is, however, that ten states have nominated public prosecutors as an executing judicial authority, in the case of three of them as the only executing judicial authority, in circumstances where it is clear that only a court could properly fulfil a large number of the duties of such an authority: see para 234 above. Another factor mentioned in argument is the existence of other third pillar measures, containing various different references to judicial authorities such as those cited by Lord Phillips in para 19. I find these of little assistance, except to show that words can mean whatever they are defined to mean. Further, there is no reason to regard the 1990 European Convention on money laundering as background to the Framework Decision, and the European Arrest Warrant 2008/978/JHA cannot support an argument of state practice under the Framework Decision. My examination of the Framework Decision leads to a conclusion that it is far from easy to predict what the attitude of the Court of Justice might be on the question whether a public prosecutor can qualify as an issuing judicial authority for the purposes of reaching a judicial decision to issue a European arrest warrant in a case in which he or she is conducting the criminal prosecution. There are strong arguments each way. However, if a prediction has to be made as to what would be likely now to be held by the Court of Justice to be the legal position under the Framework Decision, I would come down on balance on the same side as Lord Phillips, though for somewhat different reasons. I would be prepared to accept, in the light of the special role and responsibilities to the fair administration of justice of a public prosecutor and in the light of the subsequent use, without apparent criticism, by a not inconsiderable number of states, of public prosecutors as an issuing judicial authority (and despite the highly questionable designation of public prosecutors as an executing authority), that a public prosecutor may, even in relation to a case which he or she is prosecuting, constitute a judicial authority taking a judicial decision to issue a European arrest warrant. I would not however accept that either the police or a Ministry of Justice could or would properly be regarded as constituting such an authority under the Framework Decision. The Extradition Act 2003 and its interpretation under domestic law I turn in this light to consider whether it follows from this conclusion that the Extradition Act 2003 recognises and gives effect to the concept of a judicial decision by a judicial authority in the same sense as that in which I am prepared to accept that the Court of Justice probably would. For the reasons given in paras 204 to 206 and 217 above, and especially because both the Framework Decision and the Act use the phrase judicial authority, there is a strong presumption that it does, but this does not follow automatically. A question arises here as to the proper starting point. The natural meaning of the English phrase judicial authority favours Ms Roses case. But Lord Phillips (para 10) takes the view, as I read him, that once one has determined what the Court of Justice is likely now to regard as the proper European legal meaning, that dictates the proper meaning of the domestic Act. Lord Phillips postulates that Parliament can only have intended a different meaning if it set out deliberately to breach this countrys European obligations, and that it would in that event also have made it plain that it was doing this, and Lord Kerr at para 115 and Lord Dyson at para 161 make similar comments. I do not regard this reasoning as sustainable. It pre supposes that the correct European legal answer has always been clear in the sense now considered correct or probable by the Supreme Court, so that Parliament can only have differed from it deliberately. On no view is that the case. Even looking at the matter now, after a long hearing, in my view the European legal answer remains obscure in part as a result of a deliberate choice by the Council to exclude any definition of a judicial authority. Further, to the extent that there is any clarity about the current European legal position, it arises in part from subsequent state practice, whereas the primary focus in construing the 2003 Act must be on the parliamentary intention in 2003. As I see it, the natural assumption is either that Parliament meant the phrase judicial authority in its ordinary English meaning, or, in the light of the uncertainty at all times about the position under European law, there is at lowest ambiguity about what Parliament meant. The Framework Decision is an important potential source of guidance, but it is obscure. The Supreme Court is concerned with the construction of a British statute, and our role is to elicit the true parliamentary intention in passing it. Parliament in 2003 may well have thought that the concept of a judicial authority (taking a judicial decision) in the Framework Decision meant the same as its natural English meaning. If so, we should give effect to Parliaments intention. The parliamentary history and material as an aid to interpretation In these circumstances, it is appropriate to consider whether any guidance is properly to be obtained from parliamentary material. Under the rule in Pepper v Hart [1993] AC 593 reference is permissible to parliamentary material as an aid to statutory construction where (a) legislation is ambiguous or obscure or leads to absurdity, (b) the material relied upon consists of one or more statements by a minister or other promoter of the relevant Bill together if necessary with such other parliamentary material as necessary to understand such statements and their effect and (c) the statements relied upon are clear. It may also be necessary or relevant to consider whether any such statements were made against the interest of the executive. From the very outset the Commissions proposal for a European arrest warrant and the Councils redraft were the subject of close parliamentary scrutiny. In relation to the Commission proposal and presidency redraft, concern was expressed by the House of Lords European Union Committee in its 6th report dated 12 November 2001. On 10 December 2001 the responsible minister was also being pressed by European Standing Committee B of the House of Commons and gave assurances as the following exchange shows (Hansard (HC Debates), cols 25 52): Mrs Dunwoody: What does judicial authority mean to Her Majesty's Government? Mr Ainsworth: I tried to give my hon Friend that assurance last week. The only people who will be allowed to issue or execute an arrest warrant will be a judicial authority as recognised normally within either the issuing or the executing state. Mrs Dunwoody: With respect, I ask again, what is the definition of judicial authority? An answer in any language that I can vaguely understand will do, and I speak five. Mr Ainsworth: The definition of a judicial authority is exactly that. In this country, it is the Bow Street magistrates court. In other countries, there are various different authorities such as magistrates and judges who normally issue extradition warrants. Those are the people who will execute a European arrest warrant. In the course of what Mr David Cameron described as a knock about finish, Mr Ainsworth ended the debate by saying: [Mrs Dunwoody] asked me for a definition of a judicial authority. Having listened to the comments of Opposition Members, I imagine that they must be advising their friends and relatives not to travel abroad. I would not want to go to any of the countries that the hon Member for Surrey Heath describes, where he says that we are likely to be locked up on trumped up charges by corrupt and politically motivated judiciaries. Where are those countries? Does the hon Gentleman go back to his constituency and advise his constituents not to travel abroad? I feel guilty now, because during the short time in which I have had the privilege of holding my current position I have been responsible for signing extradition warrants to send people back to these dreadful places. I have sent people back to the examining magistrate in Liege, to the magistrate at the public prosecutor's office in Amsterdam, to the court of Brescia, to the county tribunal of Bobigny, to Judge Weber of Saarbrucken, and to magistrate Judge Maria Teresa Palacios Criado of central trial court No 3 in Madrid. That is in southern Europe; what on earth have I done? God knows what happened to the person concerned, or whether they are even still alive. It is clear that the only people who the minister had in mind as making requests under the existing system were courts, judges or magistrates, of one sort or another. Subsequently, an English language version of the Council redraft became available, containing in article 1 a reference to a court decision. This led to the following further exchange with the minister, Mr Ainsworth, on 9 January 2002, recorded by the House of Commons European Scrutiny Committee in its 17th Report (Session 2001 2002): 5. The minister was asked on 9 January if it followed from article 1 that the courts of this country would not be obliged to recognise and enforce a warrant if it came from a body which they did not recognise as a court. In reply, the minister said that: The judicial authority will be designated by the issuing State, but it will have to be that, a judicial authority and a court, so it will not be for the British authorities to say what is and what is not a court in another European State, but it will not be possible for authorities that clearly are not courts, that are not judicial authorities to issue requests for European arrest warrants as they will not be recognised. 6. When asked if this matter would be made clear in the Extradition Bill, the minister replied that it would need to be spelt out in the Bill, but that he was not certain that any further clarification was needed, since article 1 stated that the European arrest warrant was to be a court decision. The Minister later confirmed that judicial authorities in the United Kingdom: will not only have the ability but will certainly not execute a European arrest warrant that comes from anything other than a judicial authority in another European State. The Committee continued: 7. We think it regrettable that the term judicial authority is not defined, given its central importance to the scheme of mutual recognition and enforcement established by the Framework Decision. However, we welcome the ministers acceptance of the principle that a warrant which is not a court decision within the meaning of article 1 will not be recognised in this country. It is also worth quoting more fully the words following the ministers assurance that the position would have to be spelt out in the Bill. He went on: I think that it is now clear within the Framework Decision where you will see in later articles that it says that the requirement is between the judicial authority in the issuing State to the judicial authority in the executing State and quite rightly article 1 says that the European arrest warrant shall be a court decision. I am not certain there is any further clarification and I am happy to try and understand concerns that there may be remaining, but it appears to me that it is very clear that this cannot be a police authority, but it must be a court, a judicial authority, At a later point, the minister said: Yes, there are different legal systems that apply in different parts of the European Union, but there are clear judicial authorities who apply for extradition and who will be the authorities that have the power to apply for a European arrest warrant. Those judicial authorities will be reported under the Framework Agreement, they are the judicial authorities that will have that power and it is clearly stated in the Framework Decision that it will be a court decision. The minister may not have been accurately informed about the nature of the foreign authorities at whose behest states had up to 2002 been acting when requesting extradition. All these statements show the importance attached on all sides to any European arrest warrant being issued by a court. The Framework Decision was agreed on 13 June 2002. As set out more fully in paras 219 to 220 above, articles 2 and 6 used the terminology of judicial decision (dcision judiciaire or justizielle Entscheidung) and judicial authority (autorit judiciaire or Justizbehrde). In contrast, the Extradition Bill introduced on 14 November 2002 was phrased simply to apply if the designated authority (in the event SOCA) receives a Part 1 warrant in respect of a person (clause 2(1)) stating, in summary, that the person was either accused of and wanted for trial on an offence or was unlawfully at large after conviction. Clause 2(5) to (7) were in similar form to those which ultimately became section 2(7) to (9) (see para 196 above). Not surprisingly, these provisions attracted immediate parliamentary criticism. In its 1st report (Session 2002 2003) dated 5 December 2002 the House of Commons Home Affairs Committee recited the parliamentary history to that date as follows: 59. At the time at which the European Scrutiny Committee first considered the draft framework decision, the draft provided for the European Arrest Warrant to be issued and executed by a judicial authority. The Committee was concerned that, without an agreed definition of judicial authority, it was not possible to ensure that orders made by police forces, with no recognisably judicial involvement in the making or approval of such orders, would be excluded from recognition and enforcement under the framework decision. Article 1 of the draft framework decision was subsequently amended to refer to the European Arrest Warrant as being a court decision issued by a member state. The Committee inferred from this reference that the judicial authority would have to exercise recognisably judicial functions in an independent manner. 60. The European Scrutiny Committee asked the Parliamentary Under Secretary if it followed from article 1 that the UK courts would not be obliged to recognise and enforce a warrant if it came from a body which they did not recognise as a court. He responded that it will not be possible for authorities that clearly are not courts, that are not judicial authorities to issue requests for European Arrest Warrants as they will not be recognised, although he pointed out that it will be for each member state to designate a judicial authority competent to issue such warrants. He later confirmed that, under the Extradition Bill, the UK judicial authority will not only have the ability but will certainly not execute a European Arrest Warrant that comes from anything other than a judicial authority in another European state. The Parliamentary Under Secretary also stated that the whole thing will need to be spelt out within the Bill. He gave similar assurances to European Standing Committee B. The Committee concluded: 63. We agree with the European Scrutiny Committee that the European Arrest Warrant should be able to be issued only by a judicial authority exercising recognisably judicial functions in an independent manner. We consider that this requirement should apply to all Part 1 warrants. We therefore recommend that clause 2(5) be amended to provide that the UK judicial authority may not issue a clause 2 certificate unless it believes that the Part 1 warrant was issued by such a judicial authority. The Bill was considered in Standing Committee in the House of Commons on 9 January 2003, when the shadow minister took up the same points, referring back once again to the assurances given in January 2002. Amendments were proposed and (at that stage) lost. One was to add judicial into the requirement that an arrest warrant be issued by an authority of a category 1 territory (Hansard (HC Debates), cols 42 45). As will appear, an amendment to this effect was ultimately accepted on 22 October 2003. Another was that only European arrest warrants issued abroad by the equivalent of a High Court judge should be recognised in the United Kingdom. The minister, Mr Ainsworth, said in debate in response, at col 47, that: There is no attempt to renege on any commitments that were given in previous Committees. The framework document could not be clearer. We sought safeguards during the negotiation of the document to ensure that we protected rights in the way the hon Gentleman suggests we should. Mr. Maples interposed: A British court dealing with an application for the extradition of someone under Part 1 would read the Bill, not the framework document. If the Government took the trouble to get judicial inserted into the framework document, why cannot they simply put it in the Bill? Subsection (5) is ambiguous. It says that the authority has the function of issuing arrest warrants in the category 1 territory. A police officer may well be one of the people or organisations that have a function of issuing arrest warrants in another territory. If the arrest warrant is acted on under this legislation, it should be issued by a judicial authority. The question of the presumption of innocence is different, but the insertion of judicial in these two places could solve the problem. I am not sure why the minister resists it. Mr Ainsworth replied, at col 48: Let us discuss how we deal with extradition warrants currently and how we expect them to be dealt with under the European arrest warrant framework. If hon. Members are still not satisfied at the end of the debate they can make their views known. We expect that European arrest warrants will be issued in future by exactly the same authorities as issue warrants under the current arrest procedures. We intend to do that in the United Kingdom. There is no reason to suppose that our intentions are different from those of any other European country. The Bill is drafted in such a way as to inc1ude all those authorities that currently issue arrest warrants, as issuing authorities. I have yet to hear an argument that says that we should change that. The Committee is well aware that we have enjoyed extradition arrangements with all EU member states for many years. Extradition requests come from a variety of sources. Any Member who read the proceedings of European Standing Committee B would be aware of the wide variety of sources for current extradition requests the examining magistrate in Liege, the magistrate at the public prosecutors office in Amsterdam, the Court of Brescia, the county tribunal of Bobigny or even the magistrate judge Maria Teresa Palacios Criado in Madrid. That gives an idea of the span of arrangements used by our European partners and the sort of people who make arrest warrants today. We do not believe that that will or can change: the framework document insists on no widening outwith the judicial authorities in the Part 1 countries. We receive extradition requests from a variety of sources throughout the UK and, we should recognise that other EU countries do not have exactly the same structure of criminal justice system as our own. As the hon Member for Orkney and Shetland rightly pointed out, our system is structured in two different ways .The current system works well and has not given rise to any problems in the recent past stemming from an inappropriate request from a European partner for extradition. I see no reason to change the system. The Government responded formally on 12 February 2003 to the House of Commons Home Affairs Committees Report of 5 December 2002 (para 252 above), the response being published in by a further first special report on 3 March 2003. In response to para 63 of the Report of 5 December 2002 the Government recognised that there is very real concern about this point and said that it therefore intended to bring forward further amendments to make clear that any incoming European arrest warrant must have been issued by a judicial authority, but to disapply this requirement to requests for arrest already in the pipeline under the Schengen information system prior to 1 January 2004 (the date when the European arrest warrant was due to come into force), since it was appreciated that Schengen requests could be entered into the system at the request of police officers. The Bill had its third reading in the Commons on 25 March 2003, when the minister introduced amendments Nos 35 and 36 to insert into clauses 2(7) and (8) (the differently worded precursors of the eventual section 2(7) and (8)) a requirement that the designated authority should only certify if it believes that the authority which issued the Part 1 warrant (a) is a judicial authority of the category 1 territory and (b) has the function of issuing arrest warrants in the category 1 territory. The minister explained that these amendments: . respond to a point raised by representatives of both parties in Committee. members of the Select Committee on Home Affairs should also welcome them because they raised the same concern. The amendments will make a European arrest warrant acceptable only if it is issued by a judicial authority in a requesting state. If the warrant came from any other source, the UK designated authority would be unable to certify it and no further action could be taken on it. The stipulation that the warrant must be issued by a judicial authority is already in the framework document, so the amendments will make little difference in practice. Nevertheless, we thought it right to respond to the wishes of those who raised the issue and to make the guarantee explicit in the Bill. (Hansard (HC Debates), cols 166 167). On 1 May 2003 the Bill had its second reading in the House of Lords, where the minister, Lord Filkin, explained the constitutional position, in the passage I have set out in para 218 above. The Bill was referred to a Grand Committee, where three main areas of concern was raised on 9 June 2003, by the speakers on both sides of the House, particularly Baroness Anelay and Lord Wedderburn. First, they proposed an amendment to insert judicial in the first line of clause 2, to make clear, as Lord Wedderburn put it: that, right from the outset there should be absolutely no doubt that a judicial authority I believe a ministerial statement once indicated that that means a court must be the source of the Warrant (Hansard (HL Debates)(GC) col 11). The ministers response, at col 13, was to agree to consider this: Lord Filkin: As ever, I shall reflect on what my noble friend says. If, on reflection, there are better ways of dealing with the issue, we shall not be churlish or obdurate for the sake of it in resisting such amendment. But clause 2 is quite clear as it stands. A warrant is valid only if it is certified by the UK certifying authority. The UK authority can certify the warrant only if it comes from a judicial authority, as set out in subsections (7) and (8) of clause 2. Lord Stoddart of Swindon: Then why not say so!? Lord Filkin: That stipulation could hardly be closer to the beginning of the Bill. Nevertheless, I shall not be churlish, 1 shall consider and reflect. I do not believe that there is any issue of principle here. We are absolutely clear about that, and I have been happy to respond positively to the request of the Official Opposition in this respect. Second, Lord Wedderburn, at col 28, proposed an amendment to omit from clause 2(7) (in its form set out in para 255 above) the words it believes that. Lord Bassam, now speaking for the government, acknowledged, at col 32, that the Bill was for many . a controversial piece of legislation and agreed to consider this amendment also. Finally, Lord Wedderburn moved an amendment to insert into clause 2(7)(b) after the words the phrase the function of issuing arrest warrants the phrase after a judicial decision. He said, at cols 33 34: As we understand it, a judicial authority must, if it is a court, act judicially. If it were found that a particular court had acceded to requests without a judicial examination of the case, I suggest that the court's action would not fall within the spirit of what we intend. Therefore, we should make it clearas it is in article 1 of the framework decision that it is not just a matter of a judicial authority, but of a judicial authority exercising a procedure which amounts to a judicial decision. A case in point might be that a body which was a judicial authority acted as a matter of courseas a matter of formalityon the request of a public prosecutor. If that could be shownat least beyond reasonable doubtI apprehend that such procedure would fall outwith the spirit of what the Government intend. The Government do not, as I understand it, intend that a public prosecutor should just be able to demand of someone who is on the list of designated judicial authorities that an arrest warrant be issued. If that is so, perhaps we should make that understanding clear in the Bill . The ministers response was that he could not see what that would add, that, as he had already explained, all warrants will have to be issued by a judicial authority, and that I think that it is reasonable to argue that any decision taken on a matter of law or procedure by a person holding judicial office such as a judge or magistrate is a judicial decision (col 36). He then expressed concern that the amendment was aimed at requiring that the decision to issue a warrant should be taken in court with some kind of official procedure or hearing. After Baroness Anelay and Lord Stoddart had intervened to assure him of the seriousness with which she and other magistrates took the issue of any warrant, the minister said, at col 37: That is exactly what we expect to happen outwith our own jurisdiction. However, we see no need to impose requirements on foreign judicial authorities that we do not impose on our own judicial authorities. We expect that the process will be similar to that in the United Kingdom and that it will be of similar veracity [sic]. After further concern had been expressed that it might be an administrative, rather than a judicial process, the minister responded: It is absolutely correct, that, regardless of the location . , we expect the judicial process to be very similar to ours and as robust as ours. It should be considered in exactly the same way. The debate on this amendment concluded with Lord Wedderburn saying, at cols 38 39, that it must be a judicial authority and urging the government to think again. On 22 October 2003 Lord Bassam moved an amendment to introduce into the first line of clause 2(2) a requirement that a Part 1 warrant is an arrest warrant which is issued by a judicial authority . (Hansard (HL Debates), col 1657). He thereby accepted Baroness Anelays first proposed amendment and the second and third amendments of 9 June 2003 became otiose. The minister explained that the governments change of stance arose from strongly put points raised in Grand Committee (ie on 9 June 2003) by Lord Stoddart and Lord Wedderburn and by the principal spokespersons from the Liberal Democrats and Conservatives. It seems clear from the number and identity of the speakers he named that he was referring compendiously to the debate on all three associated amendments on 9 June 2003. Clauses 2(7) and (8) were thereafter consequentially amended to delete the previously introduced requirements of belief and a certificate on the part of the designated authority that the issuing authority was a judicial authority. That point was now covered more directly by the amendment to the first line of clause 2(2). Meanwhile on 10 September 2003 the minister had introduced a new clause, which became section 212 of the Act. The reason for it, he explained, was that while requests on the SIS (Schengen information system) require there to be a previous judicially issued domestic warrant, they may, on rare occasions, be placed on the SIS at the instigation of police officers (Hansard (HL Debates) (GC), col 34. His purpose in introducing section 212 was thus, he said, to forestall any argument that any such requests might not be regarded as coming from a judicial source. In consequence, in the Act as finally passed, section 2(2) was qualified by section 212 as regards Schengen alerts issued before 1 January 2004, so that the reference in section 2(2) to an arrest warrant issued by a judicial authority was to be read in that context as if it were a reference to the alert issued at the request of the authority. Section 212 was a temporary measure. It was clearly understood that the police officer would only be acting at the request of a true judicial source and that, under Part 1 of the Bill, any European arrest warrant would in future have itself to come from such a source. Conclusions What if any admissible guidance does one gain from this parliamentary history? I have already concluded that the concept of judicial authority in the Framework Decision should be seen as having autonomous limits in European law. It would follow, on any view, that the concept in section 2(2) must also have objective limits, rather than depend for example upon the grant of a certificate by SOCA. But even if the Framework Decision were not to be understood in this sense, I regard the clear language of section 2(2) of the Act, read with the limited requirement of certification in section 2(7) and (8), as pointing towards an objective domestic conception of judicial authority in section 2(2). At the very least, the position under the Act would be ambiguous. If that is so, then consideration of the parliamentary history makes it inconceivable that the 2003 Act can or should be construed domestically as leaving it to each state to define what is a judicial authority. The only sensible interpretation of section 2(2) in its final form and in the light of the parliamentary history is that it constitutes a self standing independent requirement, which British courts have to be satisfied is met. It would be circular and undermine the parliamentary process and clear intention if all that it meant was that British courts had to be satisfied that the issuing authority had the function of issuing a European arrest warrant under its domestic law and that the relevant state had notified the issuing authority to the Council as having that function. That might have been the effect of clauses 2(2) and (7) to (9) before they were amended as a result of the proceedings on 9 June and 22 October 2003. It cannot have been their effect after such amendment, or the amendment would achieve nothing. The second question is whether there is any sufficiently clear ministerial statement, read in context, to determine whether or not a public prosecutor can under the 2003 Act constitute a judicial authority. This question is relevant on the assumption that a public prosecutor can under European law constitute a judicial authority for the purposes of the Framework Decision. If a public prosecutor cannot be a judicial authority under European law, then she or he certainly cannot be under the 2003 Act. The direct answer to the second question is, in the light of the material which I have set out extensively, that ministers repeatedly gave assurances or endorsed assumptions that an issuing judicial authority would have to be a court, judge or magistrate. They did so moreover in contexts where a judicial authority was being contrasted by other speakers with the police and prosecutors: see the course of events set out and the passages quoted in paras 248 to 259 above, especially those relating to the parliamentary proceedings on 10 December 2001, 9 January 2002, 9 January, 9 June, 10 September and 22 October 2003. It is true that ministers also gave these assurances with the understanding that the implementation of the Framework Decision by the 2003 Act would not in this respect lead to any change by comparison with previous practice. But, even though it be the case that bodies and persons other than courts, judges or magistrates were involved in decisions by states to request extradition under the arrangements in place prior to the Framework Decision, this cannot, in my view, undermine the force of the assurances given in relation to the new and more radical procedures being introduced by the Extradition Act 2003, to the effect that the new Act would require the intervention of an issuing judicial authority in the sense of a court, judge or magistrate. Third, I do not consider that the answer given to the second question can be diluted by reference to subsequent state practice. I accept the potential relevance of subsequent state practice to the interpretation of the Framework Decision (paras 242 and 244 above and see Lord Phillipss judgment, para 67, Lord Dysons judgment, paras 127 to 140 and 152 and Lord Walkers judgment). But this cannot affect the guidance as to Parliaments actual intention in 2003 which is to be gained from the course of the parliamentary debates and amendments in 2003. To treat Parliament as having intended that the words issuing judicial authority should bear whatever meaning subsequent state practice might attach to them, would undervalue the significance of the parliamentary process and the seriousness of the concerns expressed, the assurances delivered and the amendments made during that process. Fourth, I consider that the force and quality of the assurances given must outweigh any conclusion as to what may or would be likely to be the European legal position, if that could or were to be established now with any certainty. The Bill was seen, rightly, as affecting liberty and freedom to reside or remain within the jurisdiction of persons who might very well be citizens of the United Kingdom, although Mr Assange is not. It was controversial, and ministers assurances as to the scope of the phrase judicial authority should control its meaning in circumstances where the power of the state is now sought to be deployed to extradite a person at the instance of a public prosecutor. The assurances were in that respect and should bind the executive interest, including that of the respondent which is seeking the assistance of the British state to extradite Mr Assange. Lord Brown takes a contrary view, because, in effect, there cannot be found in the parliamentary exchanges any ministerial statement that the assurances were only given so long as they complied with whatever was (or might prove to be) the European legal position. But that puts the cart before the horse. First, such clarity as now exists about the likely European position only really results from subsequent state practice. But secondly and more importantly, Lord Browns approach reads into clear parliamentary assurances about the meaning of the Act an unstated qualification that such assurances should not bind if the minister should prove mistaken (Lord Browns word) about the true scope of the Framework Decision. Both Parliament and the courts can and should, in my opinion, take ministers at their word as to the meaning of the Act they were promoting, and not question unqualified assurances which they have given. Finally, if this means that there can now be seen to be a possible or likely discrepancy between the United Kingdoms international obligations and the domestic legal system or between the meaning of the phrase judicial authority in the framework decision and in the Extradition Act 2003, that is in no way impossible: see per Lord Hoffmann in R v Lyons, cited in para 206 above. It is the consequence of the United Kingdoms dualist system, of parliamentary sovereignty and of the clear limitations on the domestic implementation of European law which Parliament intended, for the time being, by the European Communities Act 1972 and the European Union (Amendment) Act 2008, read with Protocol No 36 of the Treaty of Lisbon. As a domestic court, and in the absence of any European Treaty or instrument falling within section 2 of the European Communities Act 1972, our loyalty must be to Parliaments intention in enacting the Extradition Act 2003. The implications of this in the present context are in my view clear. the effect of the Extradition Act 2003 was to restrict the recognition by British courts of incoming European arrest warrants to those issued by a judicial authority in the strict sense of a court, judge or magistrate. It would follow from my conclusions that the arrest warrant issued by the Swedish Prosecution Authority is incapable of recognition in the United Kingdom under section 2(2) of the 2003 Act. Parliament could change the law in this respect and provide for wider recognition if it wished, but that would of course be for it to debate and decide. I would therefore allow this appeal, and set aside the order for Mr Assanges extradition to Sweden. Annex to judgment of Lord Mance (para 199) Relevant text of Protocol No 36 to the Treaty of Lisbon TRANSITIONAL PROVISIONS CONCERNING ACTS ADOPTED ON THE BASIS OF TITLES V AND VI OF THE TREATY ON EUROPEAN UNION PRIOR TO THE ENTRY INTO FORCE OF THE TREATY OF LISBON Article 9 The legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties. The same shall apply to agreements concluded between Member States on the basis of the Treaty on European Union. Article 10 1. As a transitional measure, and with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the following at the date of entry into force of that Treaty: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said Treaty on European Union. 2. The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply. 3. In any case, the transitional measure mentioned in paragraph 1 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon. 4. At the latest six months before the expiry of the transitional period referred to in paragraph 3, the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in paragraph 1, the powers of the institutions referred to in paragraph 1 as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in paragraph 1 shall cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 3. This subparagraph shall not apply with respect to the amended acts which are applicable to the United Kingdom as referred to in paragraph 2. The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision. A qualified majority of the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union. The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts. 5. The United Kingdom may, at any time afterwards, notify the Council of its wish to participate in acts which have ceased to apply to it pursuant to paragraph 4, first subparagraph. In that case, the relevant provisions of the Protocol on the Schengen acquis integrated into the framework of the European Union or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as the case may be, shall apply. The powers of the institutions with regard to those acts shall be those set out in the Treaties. When acting under the relevant Protocols, the Union institutions and the United Kingdom shall seek to re establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence. NOTE The appellants application to reopen this judgment was refused for the following reasons: Mr Assange applies to set aside the judgment that has been given against 1. him and to re open the appeal. The grounds of the application are that the majority of the Court decided the appeal on a ground that Miss Rose QC, Mr Assanges counsel, had not been given a fair opportunity to address. That ground was that article 31(3)(b) of the Vienna Convention on the Law of Treaties (the Convention) and the principle of public international law expressed in that article rendered admissible State practice as an aid to the interpretation of the Framework Decision. At the outset of her address to the Court Miss Rose gave five headings 2. for the submissions that she proposed to make. The third of these was the relevance of subsequent events, other EU Instruments and the practice of EU States. A considerable volume of documentary material that had been placed before the Court related to these matters. In the course of her submissions under her third heading, as she has 3. accepted, Lord Brown expressly put to her that the Convention applied to the interpretation of the Framework Decision. That Convention, as Miss Rose has recognised, sets out rules of customary international law. Had Miss Rose been minded to challenge the applicability of the Convention, or the applicability of State practice as an aid to the construction of the Framework Decision, or the relevance and admissibility of the material relating to State practice, she had the opportunity to do so. She made no such challenge. Her submissions were to the effect that caution should be exercised when considering the effect of State practice. 4. merit and it is dismissed. For these reasons the Court considers that this application is without In the result, I conclude that, whatever may be the meaning of the Framework Decision as a matter of European law, the intention of Parliament and	The appellant, Mr Assange, is the subject of a request for extradition by the Swedish Prosecuting Authority for the purposes of an investigation into alleged offences of sexual molestation and rape. Mr Assange is in England. A domestic detention order was made by the Stockholm District Court in Mr Assanges absence, and was upheld by the Svea Court of Appeal. A prosecutor in Sweden thereafter issued a European Arrest Warrant (EAW) on 2 December 2010 pursuant to the arrangements put in place by the Council of the European Union in the Framework Decision of 13 June 2002 on the EAW and the surrender procedures between Member States (2002/584/JHA)(the Framework Decision), which were given effect in the United Kingdom in Part 1 of the Extradition Act 2003 (the 2003 Act). Mr Assange challenged the validity of the EAW on the ground (amongst others) that it had been issued by a public prosecutor who was not a judicial authority as required by article 6 of the Framework Decision and by sections 2(2) and 66 of the 2003 Act. Sweden had designated prosecutors as the sole competent authority authorised to issue EAWs in accordance with article 6(3) of the Framework Decision. Mr Assange contended that a judicial authority must be impartial and independent both of the executive and of the parties. Prosecutors were parties in the criminal process and could not therefore fall within the meaning of the term. If, contrary to this argument, prosecutors could issue EAWs under the Framework Decision, then he still submitted that they fell outside the definition in the 2003 Act, as it was clear that Parliament had intended to restrict the power to issue EAWs to a judge or court. His challenge failed before the Senior District Judge at the extradition hearing and on appeal before the Divisional Court. The Supreme Court granted permission to bring an appeal on this ground as the issue was one of general public importance. The Supreme Court by a majority of 5 to 2 (Lady Hale and Lord Mance dissenting) dismisses the appeal and holds that an EAW issued by a public prosecutor is a valid Part 1 warrant issued by a judicial authority within the meaning of section 2(2) and 66 of the 2003 Act. Article 34 (2)(b) of the Treaty on European Union provides that framework decisions are binding on member states as to the result to be achieved but that national authorities may choose the form and method of achieving this. For the reasons given by Lord Mance in his judgment [208 217] the Supreme Court is not bound as a matter of European law to interpret Part 1 of the 2003 Act in a manner which accords with the Framework Decision, but the majority held that the court should do so in this case. The immediate objective of the Framework Decision was to create a single system for achieving the surrender of those accused or convicted of serious criminal offences and this required a uniform interpretation of the phrase judicial authority [10][113]. There was a strong domestic presumption in favour of interpreting a statute in a way which did not place the United Kingdom in breach of its international obligations [122] An earlier draft of the Framework Decision would have put the question in this appeal beyond doubt, because it stated expressly that a prosecutor was a judicial authority. That statement had been removed in the final version. In considering the background to this change, the majority concluded that the intention had not been to restrict the meaning of judicial authority to a judge. They relied, as an aid to interpretation, on the subsequent practice in the application of the treaty which established the agreement of the parties. Some 11 member states had designated public prosecutors as the competent judicial authority authorised to issue EAWs. Subsequent reviews of the working of the EAW submitted to the European Council reported on the issue of the EAWs by prosecutors without adverse comment and on occasion with express approval [70] [92][95][114 119][160 170]. Lord Phillips felt that this conclusion was supported by a number of additional reasons: (1) that the intention to make a radical change to restrict the power to issue EAWs to a judge would have been made express [61], (2) that the significant safeguard against the improper use of EAWs lay in the preceding process of the issue of the domestic warrant which formed the basis for the EAW [62], (3) that the reason for the change was rather to widen the scope to cover some existing procedures in member states which did not involve judges or prosecutors [65] and that the draft referred to competent judicial authority which envisaged different types of judicial authority involved in the process of executing the warrant [66]. Lord Dyson preferred not to infer the reasons for the change [128] and did not find the additional reasons persuasive [155 159]. Lord Walker and Lord Brown also found these reasons less compelling [92][95]. Lord Kerr relied on the fact that public prosecutors in many of the member states had traditionally issued arrest warrants to secure extradition and a substantial adjustment to administrative practices would have been required [104]. Parliamentary material relating to the debates before the enactment of the 2003 Act were held by the majority to be inadmissible as an aid to construction under the rule in Pepper v Hart [1993] AC 593, given the need to ensure that the phrase judicial authority had the same meaning as it had in the Framework Decision [12] [92][98]. Lord Kerr remarked that that it would be astonishing if Parliament had intended radically to limit the new arrangements (thereby debarring extradition from a number of member states) by use of precisely the same term as that employed in the Framework Decision [115][161]. Lord Mance, dissenting, held that the common law presumption that Parliament intends to give effect to the UKs international obligations was always subject to the will of Parliament as expressed in the language of the statute [217]. In this case, the correct interpretation of judicial authority in the Framework Decision, a question of EU law, was far from certain [244]. Thus if Parliament had intended to restrict the power to issue EAWs to judges or courts, that would not have required a deliberate intention to legislate inconsistently with the Framework Decision. As the words in the statute were ambiguous, it was appropriate to have regard to ministerial statements, and those statements showed that repeated assurances were given that an issuing judicial authority would have to be a court, judge or magistrate [261]. Lady Hale agreed with Lord Mance that the meaning of the Framework Decision was unclear and that the Supreme Court should not construe a UK statute contrary both to its natural meaning and to the evidence of what Parliament thought it was doing at the time [191].
Modern litigation rarely raises truly fundamental issues in the law of contract. This appeal is exceptional. It raises two of them. The first is whether a contractual term prescribing that an agreement may not be amended save in writing signed on behalf of the parties (commonly called a No Oral Modification clause) is legally effective. The second is whether an agreement whose sole effect is to vary a contract to pay money by substituting an obligation to pay less money or the same money later, is supported by consideration. MWB Business Exchange Centres Ltd operates serviced offices in central London. On 12 August 2011, Rock Advertising Ltd entered into a contractual licence with MWB to occupy office space at Marble Arch Tower in Bryanston Street, London W1, for a fixed term of 12 months commencing on 1 November 2011. The licence fee was 3,500 per month for the first three months and 4,333.34 per month for the rest of the term. Clause 7.6 of the agreement provided: This Licence sets out all of the terms as agreed between MWB and Licensee. No other representations or terms shall apply or form part of this Licence. All variations to this Licence must be agreed, set out in writing and signed on behalf of both parties before they take effect. On 27 February 2012, Rock Advertising had accumulated arrears of licence fees amounting to more than 12,000. Mr Idehen, the companys sole director, proposed a revised schedule of payments to Natasha Evans, a credit controller employed by MWB. The effect of the revised schedule was to defer part of the February and March payments, and to spread the accumulated arrears over the remainder of the licence term. Account being taken of the implicit interest cost of the deferral, Rocks covenant to pay would be worth slightly less to MWB under Mr Idehens proposal. There was then a discussion between them on the telephone, in the course of which Mr Idehen contended that Ms Evans had agreed to vary the licence agreement in accordance with the revised schedule. Ms Evans denied this. She proceeded to treat the revised schedule as a proposal in a continuing negotiation, and took it to her boss. He rejected it. On 30 March 2012, MWB locked Rock Advertising out of the premises on account of its failure to pay the arrears, and terminated the licence with effect from 4 May 2012. They then sued for the arrears. Rock Advertising counterclaimed damages for wrongful exclusion from the premises. The fate of the counterclaim, and therefore of the claim, turned on whether the variation agreement was effective in law. The case came before Judge Moloney QC, in the Central London County Court, who decided it in favour of MWB. He found that an oral agreement had been made with Ms Evans to vary the licence in accordance with the revised schedule, and that she had ostensible authority to make such an agreement. He held (i) that the variation agreement was supported by consideration, because it brought practical advantages to MWB, in that the prospect of being paid eventually was enhanced; but (ii) that the variation was ineffective because it was not recorded in writing signed on behalf of both parties, as required by clause 7.6. MWB were therefore entitled to claim the arrears without regard to it. The Court of Appeal (Arden, Kitchin and McCombe LJJ) overturned him: [2017] QB 604. They agreed that the variation was supported by consideration, but they considered that the oral agreement to revise the schedule of payments also amounted to an agreement to dispense with clause 7.6. It followed that MWB were bound by the variation and were not entitled to claim the arrears at the time when they did. disagreed, namely the legal effect of clause 7.6. At common law there are no formal requirements for the validity of a simple contract. The only exception was the rule that a corporation could bind itself only under seal, and what remained of that rule was abolished by the Corporate Bodies Contracts Act 1960. The other exceptions are all statutory, and none of them applies to the variation in issue here. The reasons which are almost invariably given for treating No Oral Modification clauses as ineffective are (i) that a variation of an existing contract is itself a contract; (ii) that precisely because the common law imposes no requirements of form on the making of contracts, the parties may agree informally to dispense with an existing clause which imposes requirements of form; and (iii) they must be taken to have intended to do this by the mere act of agreeing a variation informally when the principal agreement required writing. All of these points were made by Cardozo J in a well known passage from his judgment in the New York Court of Appeals in Beatty v Guggenheim Exploration Co (1919) 225 NY 380, 387 388: It is convenient to start with the question on which the courts below Those who make a contract, may unmake it. The clause which forbids a change, may be changed like any other. The prohibition of oral waiver, may itself be waived. Every such agreement is ended by the new one which contradicts it (Westchester F Ins Co v Earle 33 Mich 143, 153). What is excluded by one act, is restored by another. You may put it out by the door; it is back through the window. Whenever two men contract, no limitation self imposed can destroy their power to contract again . Part 2 of the United States Uniform Commercial Code introduced a general requirement of writing for contracts of sale above a specified value, coupled with a conditional provision giving effect to No Oral Modification clauses: see sections 2 201, 2 209. But before that there was long standing authority in support of the rule stated by Cardozo J in New York and other jurisdictions of the United States. It has also been applied in Australia: Liebe v Molloy (1906) 4 CLR 347 (High Court); Commonwealth v Crothall Hospital Services (Aust) Ltd (1981) 54 FLR 439, 447 et seq; GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1. And in Canada: Shelanu Inc v Print Three Franchising Corpn (2003) 226 DLR (4th) 577, para 54 per Weiler JA, citing Colautti Construction Ltd v City of Ottawa (1984) 9 DLR (4th) 265 (CA) per Cory JA. A corresponding principle is applied in Germany: A Mller, Protecting the Integrity of a Written Agreement (2013), 300 305. The English cases are more recent, and more equivocal. In United Bank Ltd v Asif (CA, unreported, 11 Feb 2000), Sedley LJ refused leave to appeal from a summary judgment on the ground that it was incontestably right that in the face of a No Oral Modification clause no oral variation of the written terms could have any legal effect. The Court of Appeal at an inter partes hearing cited his view and endorsed it. Two years later, in World Online Telecom Ltd v I Way Ltd [2002] EWCA Civ 413, Sedley LJs view had softened. He held (para 12) that it was a sufficient reason for refusing summary judgment that the law on the topic is not settled. In Energy Venture Partners Ltd v Malabu Oil and Gas Ltd [2013] EWHC 2118 (Comm), para 273 Gloster LJ declined to decide the point but incline[d] to the view that such clauses were ineffective. The same view was expressed, more firmly, but obiter, by Beatson LJ in Globe Motors Inc v TRW Lucas Varity Electric Steering Ltd [2016] 1 CLC 712, paras 101 107, with the support of Moore Bick and Underhill LJJ. On the other side of this debate, there is a substantial body of recent academic writing in support of a rule which would give effect to No Oral Modification clauses according to their terms: see Jonathan Morgan, Contracting for self denial: on enforcing No oral modification clauses (2017) 76 CLJ 589; E McKendrick, The legal effect of an Anti oral Variation Clause, (2017) 32 Journal of International Banking Law and Regulation, 439; Janet OSullivan, Unconsidered Modifications (2017) 133 LQR 191. requiring specified formalities to be observed for a variation. In my opinion the law should and does give effect to a contractual provision The starting point is that the effect of the rule applied by the Court of Appeal in the present case is to override the parties intentions. They cannot validly bind themselves as to the manner in which future changes in their legal relations are to be achieved, however clearly they express their intention to do so. In the Court of Appeal, Kitchin LJ observed that the most powerful consideration in favour of this view is party autonomy: para 34. I think that this is a fallacy. Party autonomy operates up to the point when the contract is made, but thereafter only to the extent that the contract allows. Nearly all contracts bind the parties to some course of action, and to that extent restrict their autonomy. The real offence against party autonomy is the suggestion that they cannot bind themselves as to the form of any variation, even if that is what they have agreed. There are many cases in which a particular form of agreement is prescribed by statute: contracts for the sale of land, certain regulated consumer contracts, and so on. There is no principled reason why the parties should not adopt the same principle by agreement. The advantages of the common laws flexibility about formal validity are that it enables agreements to be made quickly, informally and without the intervention of lawyers or legally drafted documents. Nevertheless, No Oral Modification clauses like clause 7.6 are very commonly included in written agreements. This suggests that the common laws flexibility has been found a mixed blessing by businessmen and is not always welcome. There are at least three reasons for including such clauses. The first is that it prevents attempts to undermine written agreements by informal means, a possibility which is open to abuse, for example in raising defences to summary judgment. Secondly, in circumstances where oral discussions can easily give rise to misunderstandings and crossed purposes, it avoids disputes not just about whether a variation was intended but also about its exact terms. Thirdly, a measure of formality in recording variations makes it easier for corporations to police internal rules restricting the authority to agree them. These are all legitimate commercial reasons for agreeing a clause like clause 7.6. I make these points because the law of contract does not normally obstruct the legitimate intentions of businessmen, except for overriding reasons of public policy. Yet there is no mischief in No Oral Modification clauses, nor do they frustrate or contravene any policy of the law. The reasons advanced in the case law for disregarding them are entirely conceptual. The argument is that it is conceptually impossible for the parties to agree not to vary their contract by word of mouth because any such agreement would automatically be destroyed upon their doing so. The difficulty about this is that if it is conceptually impossible, then it cannot be done, short of an overriding rule of law (presumably statutory) requiring writing as a condition of formal validity. Yet it is plain that it can. There are legal systems which have squared this particular circle. They impose no formal requirements for the validity of a commercial contract, and yet give effect to No Oral Modification clauses. The Vienna Convention on Contracts for the International Sale of Goods (1980) has been ratified by 89 states, not including the United Kingdom. It provides by article 11 that a contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. Nonetheless, article 29(2) provides: A contract in writing which contains a provision requiring any modification or termination by agreement to be in writing may not be otherwise modified or terminated by agreement. However, a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct. Similarly, article 1.2 of the UNIDROIT Principles of International Commercial Contracts, 4th ed (2016), provides that nothing in these Principles requires a contract, statement or any other act to be made in or evidenced by a particular form. Yet article 2.1.18 provides that A contract in writing which contains a clause requiring any modification or termination by agreement to be in a particular form may not be otherwise modified or terminated. However, a party may be precluded by its conduct from asserting such a clause to the extent that the other party has reasonably acted in reliance on that conduct. These widely used codes suggest that there is no conceptual inconsistency between a general rule allowing contracts to be made informally and a specific rule that effect will be given to a contract requiring writing for a variation. The same point may be made in a purely English context by reference to the treatment of entire agreement clauses, which give rise to very similar issues. Entire agreement clauses generally provide that they set out the entire agreement between the parties and supersede all proposals and prior agreements, arrangements and understandings between the parties. An abbreviated form of the clause is contained in the first two sentences of clause 7.6 of the agreement in issue in this case. Such clauses are commonly coupled (as they are here) with No Oral Modification clauses addressing the position after the contract is made. Both are intended to achieve contractual certainty about the terms agreed, in the case of entire agreement clauses by nullifying prior collateral agreements relating to the same subject matter. As Lightman J put it in Inntrepreneur Pub Co (GL) v East Crown Ltd [2000] 2 Lloyds Rep 611, para 7: The purpose of an entire agreement clause is to preclude a party to a written agreement from threshing through the undergrowth and finding in the course of negotiations some (chance) remark or statement (often long forgotten or difficult to recall or explain) on which to found a claim such as the present to the existence of a collateral warranty. The entire agreement clause obviates the occasion for any such search and the peril to the contracting parties posed by the need which may arise in its absence to conduct such a search. For such a clause constitutes a binding agreement between the parties that the full contractual terms are to be found in the document containing the clause and not elsewhere, and that accordingly any promises or assurances made in the course of the negotiations (which in the absence of such a clause might have effect as a collateral warranty) shall have no contractual force, save insofar as they are reflected and given effect in that document. The operation of the clause is not to render evidence of the collateral warranty inadmissible in evidence as is suggested in Chitty on Contract 28th ed Vol 1 para 12 102: it is to denude what would otherwise constitute a collateral warranty of legal effect. But what if the parties make a collateral agreement anyway, and it would otherwise have bound them? In Brikom Investments Ltd v Carr [1979] QB 467, 480, Lord Denning MR brushed aside an entire agreement clause, observing that the cases are legion in which such a clause is of no effect in the face of an express promise or representation on which the other side has relied. In fact there were at that time no cases in which the courts had declined to give effect to such clauses, and the one case which Lord Denning cited (J Evans & Son (Portsmouth) Ltd v Andrea Merzario Ltd [1976] 1 WLR 1078) was really a case of estoppel and concerned a different sort of clause altogether. In Ryanair Ltd v SR Technics Ireland Ltd [2007] EWHC 3089 (QB), at paras 137 143, Gray J treated Lord Dennings dictum as a general statement of the law. But in my view it cannot be supported save possibly in relation to estoppel. The true position is that if the collateral agreement is capable of operating as an independent agreement, and is supported by its own consideration, then most standard forms of entire agreement clause will not prevent its enforcement: see Business Environment Bow Lane Ltd v Deanwater Estates Ltd [2007] L & TR 26 (CA), at para 43, and North Eastern Properties Ltd v Coleman [2010] 1 WLR 2715 at paras 57 (Briggs J), 82 83 (Longmore LJ). But if the clause is relied upon as modifying what would otherwise be the effect of the agreement which contains it, the courts will apply it according to its terms and decline to give effect to the collateral agreement. As Longmore LJ observed in the North Eastern Properties Ltd case, at para 82: if the parties agree that the written contract is to be the entire contract, it is no business of the courts to tell them that they do not mean what they have said. Thus in McGrath v Shah (1989) 57 P & CR 452, 459, John Chadwick QC (sitting as a Deputy Judge of the Chancery Division) applied an entire agreement clause in a contract for the sale of land, where the clause served the important function of ensuring that the contract was not avoided under section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 on the ground that the terms were not all contained on one document. Outside the domain, in some ways rather special, of contracts for the sale of land, in Deepak Fertilisers and Petrochemical Corpn v ICI Chemicals & Polymers Ltd [1998] 2 Lloyds Rep 139, 168 (Rix J) and (1999) 1 Lloyds Rep 387, para 34 (CA), both Rix J and the Court of Appeal treated the question as one of construction and gave effect to the clause according to its terms. Lightman J did the same in the Inntrepreneur case. Since then, entire agreement clauses have been routinely applied: see Matchbet Ltd v Openbet Retail Ltd [2013] EWHC 3067 (Ch), para 112; Mileform Ltd v Interserve Security Ltd [2013] EWHC 3386 (QB), paras 93 101; Moran Yacht & Ship Inc v Pisarev [2016] 1 Lloyds Rep 625 (CA), para 18; First Tower Trustees Ltd v CDS (Superstores International) Ltd [2017] 4 WLR 73, paras 17, 26; Adibe v National Westminster Bank Plc [2017] EWHC 1655 (Ch), para 29; Triple Point Technology Inc v PTT Public Co Ltd [2017] EWHC 2178 (TCC), para 68; ZCCM Investments Holdings Plc v Konkola Copper Mines Plc [2017] EWHC 3288 (Comm), para 21. If, as I conclude, there is no conceptual inconsistency between a general rule allowing contracts to be made informally and a specific rule that effect will be given to a contract requiring writing for a variation, then what of the theory that parties who agree an oral variation in spite of a No Oral Modification clause must have intended to dispense with the clause? This does not seem to me to follow. What the parties to such a clause have agreed is not that oral variations are forbidden, but that they will be invalid. The mere fact of agreeing to an oral variation is not therefore a contravention of the clause. It is simply the situation to which the clause applies. It is not difficult to record a variation in writing, except perhaps in cases where the variation is so complex that no sensible businessman would do anything else. The natural inference from the parties failure to observe the formal requirements of a No Oral Modification clause is not that they intended to dispense with it but that they overlooked it. If, on the other hand, they had it in mind, then they were courting invalidity with their eyes open. The enforcement of No Oral Modification clauses carries with it the risk that a party may act on the contract as varied, for example by performing it, and then find itself unable to enforce it. It will be recalled that both the Vienna Convention and the UNIDROIT model code qualify the principle that effect is given to No Oral Modification clauses, by stating that a party may be precluded by his conduct from relying on such a provision to the extent that the other party has relied (or reasonably relied) on that conduct. In some legal systems this result would follow from the concepts of contractual good faith or abuse of rights. In England, the safeguard against injustice lies in the various doctrines of estoppel. This is not the place to explore the circumstances in which a person can be estopped from relying on a contractual provision laying down conditions for the formal validity of a variation. The courts below rightly held that the minimal steps taken by Rock Advertising were not enough to support any estoppel defences. I would merely point out that the scope of estoppel cannot be so broad as to destroy the whole advantage of certainty for which the parties stipulated when they agreed upon terms including the No Oral Modification clause. At the very least, (i) there would have to be some words or conduct unequivocally representing that the variation was valid notwithstanding its informality; and (ii) something more would be required for this purpose than the informal promise itself: see Actionstrength Ltd v International Glass Engineering In Gl En SpA [2003] 2 AC 541, paras 9 (Lord Bingham), 51 (Lord Walker). I conclude that the oral variation which Judge Moloney found to have been agreed in the present case was invalid for the reason that he gave, namely want of the writing and signatures prescribed by clause 7.6 of the licence agreement. That makes it unnecessary to deal with consideration. It is also, I think, undesirable to do so. The issue is a difficult one. The only consideration which MWB can be said to have been given for accepting a less advantageous schedule of payments was (i) the prospect that the payments were more likely to be made if they were loaded onto the back end of the contract term, and (ii) the fact that MWB would be less likely to have the premises left vacant on its hands while it sought a new licensee. These were both expectations of practical value, but neither was a contractual entitlement. In Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1, the Court of Appeal held that an expectation of commercial advantage was good consideration. The problem about this was that practical expectation of benefit was the very thing which the House of Lords held not to be adequate consideration in Foakes v Beer (1884) 9 App Cas 605: see in particular p 622 per Lord Blackburn. There are arguable points of distinction, although the arguments are somewhat forced. A differently constituted Court of Appeal made these points in In re Selectmove Ltd [1995] 1 WLR 474, and declined to follow Williams v Roffey. The reality is that any decision on this point is likely to involve a re examination of the decision in Foakes v Beer. It is probably ripe for re examination. But if it is to be overruled or its effect substantially modified, it should be before an enlarged panel of the court and in a case where the decision would be more than obiter dictum. I would allow the present appeal and restore the order of Judge Moloney. LORD BRIGGS: I agree with Lord Sumption that this appeal should be allowed, on the ground that the No Oral Modification (NOM) provision in clause 7.6 of the Licence Agreement deprived the alleged oral agreement asserted by Rock Advertising of any binding force as a contractual variation. I also agree that, in those circumstances, it would not be desirable for this court to address the issue of consideration, for the reasons which he gives. I have however reached my conclusion about the NOM issue on different and rather narrower grounds than his, although I do not think that our differences in reasoning would have any significant consequences for the application of the common law, save perhaps on very unlikely facts. The starting point, as Lord Sumption says, is that NOM clauses are a frequently encountered, sensible provision in business agreements, which are recognised as effective in many legal codes around the world, such that the common law should give effect to them if it can. I need say nothing more than he does about their advantages. I also agree that the obstacle which has thus far stood in the way of their recognition in this and many other common law jurisdictions is mainly conceptual. Two (or more) persons may of course bind themselves contractually as to their future conduct, and that will prevail for as long as one of them desires that this regime should remain in place. But if they both (or all) agree, in some form recognised by the law, that they should no longer be bound, why should their previous agreement to the contrary stand in their way? While statute may, in the public interest, require certain formalities for the making of certain types of contract, the common law leaves the parties to choose their own, so long as the essential elements of offer, acceptance and consideration are observed. These matters are as applicable to the variation of an existing contract as they are to the making of a contract in the first place. This basic concept, that parties to a contract have complete freedom by further agreement to unbind themselves as to their future conduct, is in principle applicable not merely to their substantive mutual obligations, but also to any procedural restraints upon which they may agree, including restraints as to how they may vary their existing contractual relationship. It is therefore fully applicable to the constraint upon their future conduct imposed by a NOM clause. No one doubts that parties to a contract containing a NOM clause are at liberty thereafter to remove it from their bargain, temporarily or permanently, by a compliant written variation, following which it will not inhibit them from agreeing further variations purely orally. The critical questions for present purposes are, first: whether the parties can agree to remove a NOM clause from their bargain orally and, second: whether, if so, such an agreement will be implied where they agree orally upon a variation of the substance of their relationship (which the NOM clause would require to be in writing) without saying anything at all about the NOM clause. Must they be taken so to have agreed by the very fact that they have made the substantive variation orally? Lord Sumption would answer the first question in the negative, so that, for him, the second question would not arise. For the reasons which follow, I would answer the first question in the affirmative, but not (generally at least) the second. The outcome on the present facts is the same. In this case the alleged oral agreement to vary the Licence said nothing whatsoever about the NOM clause (of which both Mr Idehen and Ms Evans were probably entirely unaware), and I would not treat it as having been done away with by necessary implication. The result is that their alleged agreement as to the terms of a variation had no immediately binding force, any more than an agreement made subject to contract. This will probably be the outcome on any comparable or likely fact set since, leaving aside emergencies, once the parties focus on the obstacle presented by the NOM clause, they would almost certainly remove it by a simple written variation, or indeed make the whole of the substantive variation itself in writing. I must start by explaining why I have not been persuaded by Lord Sumptions analysis that I can surmount the conceptual problem that has thus far proved insuperable in most common law jurisdictions, as enunciated in the celebrated dictum of Cardozo J in Beatty v Guggenheim which Lord Sumption cites at para 7. His starting point is that to refuse to recognise the effect of a NOM clause is to override the parties intentions, so as to make it impossible for them validly to bind themselves as to the manner in which a change in their legal relations is to be achieved in the future. I respectfully disagree. For as long as either (or any) party to a contract containing a NOM clause wishes the NOM clause to remain in force, that party may so insist, and nothing less than a written variation of the substance will suffice to vary the rest of the contract (leaving aside estoppel). The NOM clause will remain in force until they both (or all) agree to do away with it. In particular it will deprive any oral terms for a variation of the substance of their obligations of any immediately binding force, unless and until they are reduced to writing, or the NOM clause is itself removed or suspended by agreement. That fully reflects the autonomy of parties to bind themselves as to their future conduct, while preserving their autonomy to agree to release themselves from that inhibition. There are of course statutes which require particular formalities for the making of certain types of contract, but they are binding because they are imposed by the legislature as part of the law of the land, and may only be released by the legislature. Of course private parties may agree upon a scheme of local law by which they (and even their successors in title) are in future to be bound, as in the case of certain types of covenants affecting the use of land, but that scheme of local law may be varied or abandoned by the same parties, by agreement. What is to my mind conceptually impossible is for the parties to a contract to impose upon themselves such a scheme, but not to be free, by unanimous further agreement, to vary or abandon it by any method, whether writing, spoken words or conduct, permitted by the general law. I recognise that there are a number of widely used codes of law, by which parties may be, or agree to be, bound, that do recognise NOM clauses as effective to deny any legal effect from subsequent oral variations of the contract incorporating such a code. If they form part of a national law, then they bind parties to a contract governed by that law in the same way as would an English statute. If they are simply part of a code chosen by the parties to govern their contractual relationship, they do not prevent the parties from expressly agreeing to depart from those codal restrictions, either generally or for a specific purpose. But such an agreed departure will not lightly be inferred, where the parties merely conduct themselves in a non compliant manner, for example by discussing and even reaching a consensus about a variation of the substance of their obligations purely orally, without express reference to the NOM clause. The effect of contracting in terms which incorporate such a code, where the code includes or recognises the effect of a NOM clause, is at least at the conceptual level no more or less effective than simply including a NOM clause in the contract. Nor have I found the entire agreement clause a useful analogy. It may well serve the same objective of promoting legal certainty as to what the agreement is but, as Lord Sumption explains, these clauses do not purport to bind the parties as to their future conduct. They leave the scope and the procedure for subsequent variation entirely unaffected. They therefore give rise to no conceptual difficulty of the type which affects a NOM clause. By contrast I fully agree with Lord Sumptions proposition that parties who orally agree the terms of a variation of the substance of their contractual relationship do not thereby (and without more) impliedly agree to dispense with the NOM clause. There is to my mind a powerful analogy with the way in which the law treats negotiations subject to contract. Where parties agree to negotiate (or declare that they are negotiating) under the subject to contract umbrella and, at the end of those negotiations, reach consensus ad idem supported by consideration sufficient (but for the umbrella) to give rise to a contract, no binding obligations thereby ensue unless or until they have made a formal written contract, or expressly agreed to dispense with that umbrella. Its abandonment will not be implied merely because they have reached full agreement, unless such an implication was necessary. Cumming Bruce LJ provides a concise summary of this principle in Cohen v Nessdale Ltd [1982] 2 All ER 97, 103 104 by reference (via a citation from Sherbrooke v Dipple (1980) 41 P & CR 173) to embedded dicta of Brightman J in Tevanon v Norman Brett (Builders) Ltd (1972) 223 EG 1945, 1947 in the following terms: Brightman J said that parties could get rid of the qualification of subject to contract only if they both expressly agreed that it should be expunged or if such an agreement was to be necessarily implied. [W]hen parties started their negotiations under the umbrella of the subject to contract formula, or some similar expression of intention, it was really hopeless for one side or the other to say that a contract came into existence because the parties became of one mind notwithstanding that no formal contracts had been exchanged. Where formal contracts were exchanged, it was true that the parties were inevitably of one mind at the moment before the exchange was made. But they were only of one mind on the footing that all the terms and conditions of the sale and purchase had been settled between them, and even then the original intention still remained intact that there should be no formal contract in existence until the written contracts had been exchanged. Cumming Bruce LJ then quoted Templeman LJ in Sherbrooke as saying: Brightman J thought parties could get rid of the qualification of subject to contract only if they both expressly agreed that it should be expunged or if such an agreement was to be necessarily implied. Necessity is in this context a strict test. It will, perhaps unfortunately, commonly be the case that the persons charged with the day to day performance of a business contract will, with full authority to do so, agree some variation in the manner in which it is to be performed, blissfully unaware that the governing contract has, buried away in the small print of standard terms, a NOM clause inserted by diligent lawyers anxious to minimise the risk of litigation about its terms. That will be arid ground for an implied term that the NOM clause, of which they were unaware, was agreed to be treated as done away with. Where however the orally agreed variation called for immediately different performance from that originally contracted for, before any written record of the variation could be made and signed, then necessity may lead to the implication of an agreed departure from the NOM clause, but the same facts would be equally likely to give rise to an estoppel, even if not. But that is far from the facts of this case, where there was no such urgency. In my view this more cautious recognition of the effect of a NOM clause, namely that it continues to bind until the parties have expressly (or by strictly necessary implication) agreed to do away with it, would give the parties most of the commercial benefits of certainty and the avoidance of abusive litigation about alleged oral variation for which its proponents contend. It would certainly do so in the present case. It would probably leave only those cases where the subject matter of the variation was to be, and was, immediately implemented, where estoppel and release of the NOM clause by necessary implication are likely to go hand in hand. While it might in theory also leave open the case where it is alleged that the parties did have the NOM clause in mind, and then agreed to do away with it orally, that seems to me to be so unlikely a story that a judge would usually have little difficulty in treating it as incredible (if denied), and therefore as presenting no obstacle to summary judgment on the contract in its unvaried form. In proposing this perhaps cautious solution to the problem thrown up by this case I am comforted by the perception that it represents an incremental development of the common law which accords more closely with the conceptual analysis adopted in most other common law jurisdictions, as Lord Sumption has described. By contrast the more radical solution which he proposes would involve a clean break with something approaching an international common law consensus, unsupported by any societal or other considerations peculiar to England and Wales. There may be cases where a pressing need to modernise the common law justifies such a break, perhaps in the expectation that other common law jurisdictions will in due course follow, but this case is not, in my opinion, one of them.	MWB Business Exchanges Centres Ltd (MWB) operates offices in London. Rock Advertising (Rock) entered into a licence agreement with MWB to occupy office space for a fixed term of 12 months. Clause 7.6 of the agreement provided: This Licence sets out all the terms as agreed between MWB and [Rock]. No other representations or terms shall apply or form part of this Licence. All variations to this Licence must be agreed, set out in writing and signed on behalf of both parties before they take effect. Rock accumulated licence fee arrears. Rocks director, Mr Idehen, proposed a revised schedule of payments to Ms Evans, a credit controller employed by MWB. Under his proposal, certain payments would be deferred and the accumulated arrears would be spread over the remainder of the licence term. This revised schedule was worth slightly less to MWB than the original terms, because of the interest cost of deferral. A dispute arose as to whether Ms Evans had accepted Mr Idehens proposal orally. MWB subsequently locked Rock out of the premises, terminated the licence and sued for the arrears. Rock counterclaimed, seeking damages for wrongful exclusion from the premises. In the County Court the judge found that the parties had agreed orally to Mr Idehens revised schedule; but the judge held that MWB could claim the arrears without regard to that oral variation, because the oral variation did not satisfy the formal requirements of Clause 7.6. Rock appealed successfully to the Court of Appeal, which held that the oral variation had also amounted to an agreement to dispense with Clause 7.6. It followed that MWB was bound by the oral variation. MWB appealed to the Supreme Court. The issues were: (i) whether a contractual term precluding amendment of an agreement other than in writing (a No Oral Modification or NOM clause) is legally effective; (ii) whether the variation of an agreement to pay money, by substituting an obligation to pay either less money or the same money later, is supported by the necessary consideration. The Supreme Court unanimously allows the appeal. Lord Sumption gives the lead judgment, with which Lady Hale, Lord Wilson and Lord Lloyd Jones agree. Lord Briggs gives a concurring judgment. NOM clauses are common, for at least three reasons: (i) they prevent attempts, including abusive attempts, to undermine written agreements by informal means; (ii) they avoid disputes not just about whether a variation was intended but also about its exact terms; (iii) they make it easier for corporations to police their own internal rules restricting the authority to agree variations. The law of contract does not normally obstruct the legitimate intentions of businessmen, except for overriding reasons of public policy. NOM clauses do not frustrate or contravene any policy of the law [12]. The argument for disregarding NOM clauses is that parties cannot agree not to vary a contract orally, because such an agreement would be destroyed automatically upon oral variation. However, there are legal systems, including widely used international codes, which impose no formal requirements for the validity of contracts and which yet give effect to NOM clauses. That suggests that there is no conceptual inconsistency between a general rule permitting informally created contracts and a specific rule requiring variation to be agreed in writing. The same point may be made by reference to the treatment of entire agreement clauses, which nullify prior collateral agreements relating to the same subject matter. Where such a clause is relied on to modify what would otherwise be the effect of the agreement which contains it, the courts will routinely apply the clause according to its terms and will decline to give effect to the collateral agreement [13 14]. Parties who agree an oral variation in spite of a NOM clause do not necessarily intend to dispense with that clause. What the parties agreed was that oral variations will be invalid, not that they are forbidden. The natural inference from a failure to observe a NOM clause is not that the parties intended to dispense with it, but that they overlooked it. On the other hand, if they had it in mind, then they were courting invalidity with their eyes open [15]. The approach of the Court of Appeal overrides the parties intentions to bind themselves as to the manner in which future changes in their legal relations are to be achieved. In many cases, statute prescribes a particular form of agreement. There is no principled reason why contracting parties should not adopt the same prescriptions by agreement [9 11]. The enforcement of NOM clauses involves the risk that a party may act on the varied contract but then find itself unable to enforce it. The safeguard against injustice lies in the various doctrines of estoppel. Reliance on an estoppel would require, at the very least: (i) some words or conduct unequivocally representing that the variation was valid notwithstanding its informality and (ii) for this purpose, something more than the informal promise itself [16]. The oral variation in the present case was invalid for want of the writing and signatures required by Clause 7.6. That makes it unnecessary to deal with the issue of consideration. That area of law is probably ripe for re examination. The order of the County Court is restored [17 18]. Lord Briggs agrees that the appeal should be allowed, but his reasons differ to those of Lord Sumption. To give effect to a NOM is not to override the parties intentions; the NOM clause will remain in force until both or all parties agree to do away with it. It is conceptually impossible for the contracting parties to impose upon themselves a particular scheme, but not to be free by further agreement to vary or abandon it by any method permitted by the general law. Although various international law codes give effect to NOMs, these either (i) form part of a national law, in which case they bind parties as would an English statute, or (ii) have been chosen by the parties, in which case the parties may agree to depart from those principles. Entire agreement clauses are not a useful analogy: they do not purport to bind the parties future conduct, so do not involve the same conceptual difficulties as NOM clauses. There is a powerful analogy with negotiations subject to contract, where the parties may abandon the requirement of a formal written agreement only expressly or by necessary implication. In Lord Briggs view, a NOM clause binds the parties until they expressly (or by necessary implication) agree to do away with it. This accords with the analysis adopted in most other common law jurisdictions [25 32]. In this case, the oral variation said nothing about the NOM clause, which has not been done away with by necessary implication [24].
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. The provisions are contained in section 133 of the Criminal Justice Act 1988 (the 1988 Act) as amended by section 175 of the Anti social Behaviour, Crime and Policing Act 2014 (the 2014 Act). The central issue is whether they are compatible with the presumption of innocence as guaranteed by article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) (the Convention). The factual background (1) Mr Hallams case Mr Hallam was convicted of murder, conspiracy to commit grievous bodily harm and violent disorder, following a gang fight in which another young man was killed. The case against him at his trial rested on identification evidence provided by two witnesses. The weaknesses in their evidence were such that independent supporting evidence was, in practice, essential. The only support was evidence from a Mr Harrington, denying that he had seen Mr Hallam either on the day of the murder or on the days surrounding it. That evidence was said to suggest that Mr Hallam had concocted a false alibi, since he had stated that he was with Mr Harrington at the time of the murder. Several years after the trial, the case was referred to the Court of Appeal Criminal Division (the CACD) by the Criminal Cases Review Commission on the basis that fresh evidence had been discovered. That evidence included photographs found on Mr Hallams mobile phone, showing him with Mr Harrington on the day after the murder. The phone had been seized from Mr Hallam at the time of his arrest but had not been examined. Hallett LJ, giving the judgment of the CACD, observed that this evidence changed the situation dramatically, in that the evidence relied upon by the prosecution to support the identifying witnesses, namely the evidence as to false alibi, had been significantly undermined ([2012] EWCA Crim 1158, para 75). She went on (para 76): we are now satisfied that any confidence that the appellant had lied and/or asked Harrington to concoct a false alibi was misplaced. Summarising the position (in para 77), the court noted that neither identifying witness had been particularly satisfactory, with their various accounts [containing] numerous inconsistencies and contradictions; and that there was other fresh evidence comprising information provided to the police by a witness named Gary Rees, which had not been disclosed to the defence at the time of the trial, to the effect that another man with the same first name as Mr Hallam was rumoured to be responsible for the murder. The CACD stated (para 77): The new information in relation to the messages from Gary Rees raises the possibility of greater collusion (in the sense of discussion) between the [identification] witnesses than the defence team knew at the time. It also potentially puts paid to [one of those witnesses] assertion that from the outset there were rumours that Sam Hallam was involved. Returning to the alibi, the court noted (para 78) that: We now know there is a real possibility that the appellants failed alibi was consistent with faulty recollection and a dysfunctional lifestyle, and that it was not a deliberate lie. The proper support for the Crowns case has fallen away. The CACD also held (para 79) that, given the terms of the judges direction, there was a possibility that the jury might not have realised that it was entitled to treat the evidence of another witness as potentially exculpatory of Hallam. In paras 80 and 83 it stated the conclusion that it drew from all the factors as follows: 80. In our judgment, the cumulative effect of these factors is enough to undermine the safety of these convictions. 83. Accordingly, the result is that the conviction is unsafe and it must be quashed. Earlier in its judgment, the CACD recorded at para 49 that counsel appearing for Mr Hallam had invited it to state that he was innocent of the offences. The court cited a passage in the judgment of Lord Judge CJ in R (Adams) v Secretary of State for Justice (JUSTICE intervening) [2011] UKSC 18; [2012] 1 AC 48, para 251, as setting out what Hallett LJ described as the courts powers in this respect. The court declined to make such a statement, observing that we were not satisfied it would be appropriate to use that power on the facts of this case. Mr Hallam spent seven years and seven months in prison prior to the quashing of his conviction. He applied for compensation under section 133 as amended. By letter dated 14 August 2014 the Secretary of State refused the application. The letter began by explaining the statutory test: Following the coming into force of section 175 of the Anti social Behaviour, Crime and Policing Act 2014, compensation under section 133 of the Act is only payable where a persons conviction has been reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence. The letter continued: the Secretary of State does not consider that the new evidence before the court shows beyond reasonable doubt that Mr Hallam did not commit the offence. The Secretary of State explained: The CA [Court of Appeal] view was that the cumulative effect of [the fresh evidence] was enough to undermine the safety of your clients convictions which were quashed on that basis. However, the fresh evidence does not establish positively that your client was not at the murder scene We further note in this regard that, whilst the Court of Appeal quashed Mr Hallams convictions on the basis that they were unsafe, it expressly declined the invitation of Mr Hallams counsel to exercise its discretionary power (as identified by Lord Judge in Adams [2011] UKSC 18) to state that the new evidence demonstrated the factual innocence of the appellant. Two factors were therefore of particular importance: first, that as the CACD had found, the fresh evidence did not establish positively that Mr Hallam was not at the murder scene on the night in question, and secondly, that the CACD had declined to exercise what was described as its discretionary power to state that Mr Hallam was factually innocent. The letter concluded: It is important to emphasise that nothing in this letter is intended to undermine, qualify or cast doubt on the decision of the [Court of Appeal] to quash your clients convictions. Mr Hallam is presumed to be and remains innocent of the charges. His application has been rejected as it does not meet the statutory test for compensation under section 133 of the 1988 Act. (2) Mr Nealons case Mr Nealon was convicted of an attempted rape committed in August 1996. There was identification and description evidence from several witnesses which if accepted placed him in a club where the victim had previously been on the night of the offence, and near the scene of the attack. He denied that he had ever been to the club and gave evidence of an alibi. The victim gave evidence that the man who attacked her mauled her, tried to kiss her and put his hand inside her blouse over her bra. He was pulling at her tights and underwear. No DNA examination of her clothing was then carried out. The case was subsequently referred to the CACD by the Criminal Cases Review Commission on the basis of evidence of DNA found on an examination of her clothing carried out in 2010, nearly 14 years after the offence. A sample taken from the front of her blouse revealed a full male DNA profile from what was probably a saliva stain. It was not from Mr Nealon, but had been deposited by a man who was designated as the unknown male. Further probable saliva stains were detected on both cups of her bra. They too had not been deposited by Mr Nealon, but were consistent with the DNA of the unknown male. An examination of her skirt and tights disclosed a complex mixture of DNA, including DNA from an unknown woman, and was inconclusive. Evidence was adduced on behalf of the Crown that the attacker might not have transferred any DNA to the victims clothing. The victim was re interviewed in connection with the new investigation. She said that she had bought the blouse and bra either on the day of the attack or a day or two before. This was the first time she had worn either garment in public. She had been in a relationship with a male partner at the time, and could not recall any consensual contact with any other man since she bought the blouse and bra. DNA tests excluded the possibility that her partner, any of the officers involved in the investigation, any of the men who arrived at the scene of the attack shortly after it occurred, or any of the scientists involved in the original investigation, was the unknown male. It was argued by the Crown that the DNA might have been deposited on the blouse and bra at the time of their purchase or as a result of re distribution from other items, and might have nothing to do with the attack, particularly in the light of the victims evidence that she had hugged and kissed other men on that date, when she was celebrating her birthday. The CACD (Fulford LJ, Kenneth Parker J and Sir David Calvert Smith) concluded that the effect of the fresh evidence was to render the conviction unsafe, and that it should therefore be quashed: [2014] EWCA Crim 574. The central reasoning of the court is found in para 35 of the judgment delivered by Fulford LJ: the fresh evidence has not demolished the prosecution case. But its effect on the safety of this conviction is substantial. We are clear in our view that if the jury had heard that in addition to the weaknesses in the identification evidence, it was a real possibility that DNA from a single unknown male had been found in some of the key places where the attacker had mauled the victim (in particular, the probable saliva stain on the lower right front of Ms Es blouse and probable saliva stains on the right and left cups of Ms Es brassiere as well as other DNA material ) this could well have led to the appellants acquittal. No application was made for a retrial. Mr Nealon spent 17 years in prison prior to the quashing of his conviction. He applied for compensation under section 133 as amended. By letter dated 12 June 2014 the Secretary of State refused the application. After explaining the statutory test in the same terms as the letter sent to Mr Hallam, the letter continued: Although the new evidence shows that the DNA was from an unknown male, this does not mean that it undoubtedly belonged to the attacker. Expert evidence for the prosecution at the appeal stated it was plausible that the attacker transferred little or no DNA to the victims clothing during the commission of the offence, and that the DNA from the unknown male may not have been crime related. The Court of Appeal said that these arguments required serious consideration. It also found that the original jury had been entitled to convict your client on the basis of the existing identification evidence (which was not at issue in the appeal). Whilst the Court of Appeal decided, ultimately, that the jury may reasonably have reached the conclusion, based on the DNA evidence, that it was a real possibility that the unknown male and not the applicant was the attacker, the court was explicit that the fresh evidence did not demolish the prosecution evidence. In Mr Nealons case, as in Mr Hallams, the decision letter focused on the reasoning of the CACD: that it said that the argument that the DNA material might not have been crime related required serious consideration, that it found that the original jury had been entitled to convict on the basis of the existing identification evidence, and that it said that the fresh evidence did not demolish the prosecution evidence. On that basis, the Secretary of State stated: Having considered the judgment in the Court of Appeal, and your clients own submission, the Justice Secretary is not satisfied that your clients conviction was quashed on the ground that a new or newly discovered fact shows beyond reasonable doubt that your client did not commit the offence. The letter concluded in similar terms to that sent to Mr Hallam: Finally, it is important to emphasise that nothing in this letter is intended to undermine, qualify or cast doubt upon the decision to quash your clients conviction. You client (sic) is presumed to be and remains innocent of the charge brought against him. His application has been rejected because his case does not in the Justice Secretarys view meet the statutory test for compensation under section 133 of the Criminal Justice Act 1988. The statutory provisions Section 133(1) of the 1988 Act provides: (1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non disclosure of the unknown fact was wholly or partly attributable to the person convicted. Section 133(2) requires an application for compensation under the section to be made within two years of the date on which the persons conviction is reversed or he is pardoned. Section 133(3) provides: (3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State. Under section 133(5), the term reversed is to be construed as referring to a conviction having been quashed, inter alia, on an appeal out of time, or following a reference to the CACD by the Criminal Cases Review Commission. Section 133 was enacted to give effect to the United Kingdoms international obligations under article 14(6) of the International Covenant on Civil and Political Rights 1966 (the ICCPR), ratified by the United Kingdom in 1976. Article 14(6), in its English version, provides: When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non disclosure of the unknown fact in time is wholly or partly attributable to him. There is a very similar provision in article 3 of Protocol No 7 to the Convention (A3P7), which the United Kingdom has not ratified. Section 133(1) restricts compensation to cases where a persons conviction has been reversed (or he has been pardoned: for the sake of brevity, I will focus from this point onwards on cases where convictions are reversed) on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. Convictions are not quashed in England and Wales on the ground that there has been a miscarriage of justice, but on the ground that they are unsafe: see further paras 25 et seq below. It was said in Adams, para 36, that the words on the ground that must, if they are to make sense, be read as in circumstances where, and that the Secretary of State must therefore determine whether a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. In deciding that question, the Secretary of State would have regard to the judgment of the CACD, but ultimately had to form his own conclusion. The term miscarriage of justice was not defined when section 133 was originally enacted. This resulted in a series of cases in which the courts sought to interpret the term, culminating in the decision of this court in Adams delivered on 11 May 2011. In that case, the court adopted four categories of case, of progressively wider scope, as a framework for discussion. They were: cases where the fresh evidence shows clearly that the defendant is cases where the fresh evidence so undermines the evidence against the 1) innocent of the crime of which he was convicted; 2) defendant that no conviction could possibly be based upon it; 3) cases where the fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant; and 4) cases where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted. By a majority, the court held that the term miscarriage of justice covered all cases falling within category (2). It therefore included, but was not limited to, cases falling within category (1). The minority view was that the term was confined to category (1) cases. Section 133 was then amended, with effect from 13 March 2014, by section 175 of the 2014 Act, so as to confine the term miscarriage of justice to category (1) cases. Section 133(1) remained unaltered: it continued to be necessary for the conviction to be reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. However, section 175 of the 2014 Act inserted section 133(1ZA) into the 1988 Act, providing a statutory definition of the term miscarriage of justice: (1ZA) For the purposes of subsection (1), there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales or, in a case where subsection (6H) applies, Northern Ireland, if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence (and references in the rest of this Part to a miscarriage of justice are to be construed accordingly). The words did not commit the offence can be read as synonymous in this context with the words is innocent used by this court in category (1) in Adams. The effect of section 133(1ZA) is therefore that there is a miscarriage of justice, for the purposes of section 133(1), only where the new or newly discovered fact shows beyond reasonable doubt that the case falls into category (1) recognised in Adams. As stated already however (para 17 above, and see paras 25 et seq below), the ground on which a conviction is quashed by the CACD is that it is unsafe. Section 133 has therefore to be understood as requiring compensation to be paid only where the Secretary of State determines that the CACD quashed the conviction in circumstances where fresh evidence shows beyond reasonable doubt that the person did not commit the offence. It was under section 133 as so amended that Mr Hallams and Mr Nealons applications for compensation were considered and refused by the Secretary of State. The present proceedings Mr Hallam and Mr Nealon contend that section 133(1ZA) is incompatible with article 6(2) of the Convention, which provides: Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. They seek a declaration of incompatibility under section 4 of the Human Rights Act 1998. Their applications were rejected by the Divisional Court, comprising Burnett LJ and Thirlwall J: [2015] EWHC 1565 (Admin). The Divisional Court held that it was bound by Adams, and by the decision of the Court of Appeal in R (Allen) (formerly Harris) v Secretary of State for Justice [2008] EWCA Civ 808; [2009] 1 Cr App R 2, to hold that article 6(2) had no application to section 133, notwithstanding the more recent decision to the contrary by the Grand Chamber of the European Court of Human Rights in Allen v United Kingdom (2013) 63 EHRR 10. It further held that section 133 was in any event compatible with article 6(2), taking the view that the requirement that the Secretary of State be satisfied that the new or newly discovered fact showed beyond reasonable doubt that the person did not commit the offence could be distinguished from a requirement that the Secretary of State be satisfied of the persons innocence in a wider or general sense. On appeal, the Court of Appeal (Lord Dyson MR, Sir Brian Leveson P and Hamblen LJ) considered that it was bound by the decision in Adams to hold that article 6(2) was not applicable to section 133: [2016] EWCA Civ 355; [2017] QB 571. On the other hand, it also considered that the line of Strasbourg jurisprudence including and following the judgment in Allen v United Kingdom (2013) 63 EHRR 10 was so clear and constant that, if not bound by Adams, it would have followed it. The court also agreed with the Divisional Court, for the reasons which it had given, that section 133 was in any event compatible with article 6(2). The issues arising The central issue on this appeal can be split into two broad questions: 1) The first concerns the scope under English law of article 6(2) scheduled to the Human Rights Act 1998: in particular whether and how far it applies at all to decisions on, or the criteria for, the award of compensation under section 133 of the Criminal Justice Act 1988; this question requires us to consider inter alia whether this court should depart from its decision in Adams. 2) The second question, arising if and so far as article 6(2) is applicable in respect to such decisions or criteria, is whether the definition of miscarriage of justice in section 133(1ZA), introduced by section 175 of the Anti Social Behaviour, Crime and Policing Act 2014 is incompatible with article 6(2). Innocence in criminal proceedings Before addressing these questions directly, it is appropriate to discuss an underlying question, namely the place of innocence in criminal proceedings. In English law, as in many other legal systems, it is not the function of criminal proceedings to determine innocence. As Lady Hale stated in Adams, para 116: Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty. A person is only guilty if the state can prove his guilt beyond reasonable doubt. It is equally not the function of the CACD on an appeal (or on a reference by the Criminal Cases Review Commission, which is by statute treated as an appeal) to determine whether the appellant did or did not commit the offence. The question for the CACD is whether the conviction is unsafe. Section 2(1) of the Criminal Appeal Act 1968 provides that the CACD shall allow an appeal if they think that the conviction is unsafe. The court is then required by section 2(2) to quash the conviction. Section 2(3) provides that an order quashing a conviction shall, except where a retrial is ordered operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal. A successful appellant is therefore in the same position for all purposes as if he had actually been acquitted: R v Barron [1914] 2 KB 570, 574. That it is not the function of the CACD to make findings of innocence was emphasised by Lord Phillips in Adams. In his judgment, he expressed agreement with the position as put in the Canadian case of R v Mullins Johnson (2007) 87 OR (3d) 425, where the Court of Appeal of Ontario said: 23. There are not in Canadian law two kinds of acquittals: those based on the Crown having failed to prove its case beyond a reasonable doubt and those where the accused has been shown to be factually innocent. We adopt the comments of the former Chief Justice of Canada in The Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons, Randy Druken, Annex 3, p 341: [A] criminal trial does not address factual innocence. The criminal trial is to determine whether the Crown has proven its case beyond a reasonable doubt. If so, the accused is guilty. If not, the accused is found not guilty. There is no finding of factual innocence since it would not fall within the ambit or purpose of criminal law. 24. Just as the criminal trial is not a vehicle for declarations of factual innocence, so an appeal court, which obtains its jurisdiction from statute, has no jurisdiction to make a formal legal declaration of factual innocence. The fact that we are hearing this case as a Reference under section 696.3(3)(a)(ii) of the Criminal Code does not expand that jurisdiction. The terms of the Reference to this court are clear: we are hearing this case as if it were an appeal. While we are entitled to express our reasons for the result in clear and strong terms, as we have done, we cannot make a formal legal declaration of the appellants factual innocence. In addition to the jurisdictional issue, there are important 25. policy reasons for not, in effect, recognising a third verdict, other than guilty or not guilty, of factually innocent. The most compelling, and, in our view, conclusive reason is the impact it would have on other persons found not guilty by criminal courts. As Professor Kent Roach observed in a report he prepared for the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell, there is a genuine concern that determinations and declarations of wrongful convictions could degrade the meaning of the not guilty verdict: see p 39. To recognise a third verdict in the criminal trial process would, in effect, create two classes of people: those found to be factually innocent and those who benefited from the presumption of innocence and the high standard of proof beyond a reasonable doubt. Lord Hope and Lord Kerr spoke to similar effect in paras 95 and 172, while acknowledging that the CACD may in practice occasionally observe that the effect of the material considered in the course of the appeal is demonstrative of innocence, or make an observation to like effect: see per Lord Kerr, para 172. Lord Judge, in a dissenting judgment, agreed (para 250) that innocence is a concept to which the criminal process is not directed. Hence, he also accepted, the word innocent could have no place in section 133. But he went on in para 251 to say that a CACD was entitled to state that a defendant was innocent and that, if the evidence unmistakeably demonstrated that the appellant was in truth innocent the terms of the judgment should conscientiously reflect the true reasons for its decision that the conviction should indeed be quashed as unsafe. In relation to Mr Hallam, the CACD spoke of that passage in Lord Judges judgment as setting out the courts powers, and decided that it would not be appropriate to use that power in Mr Hallams case (see para 5 above). The Secretary of State referred to these statements in his own remarks (para 6 above). It should be made clear that the CACD does not possess any power to make formal findings or declarations of innocence. Nothing in the Lord Chief Justices judgment in Adams suggested that it did. It is not the CACDs role to determine whether the appellant is factually innocent. The question which it determines is whether the conviction is unsafe. When giving its decision on that question, the court will necessarily explain the reasons for its decision. What it is appropriate to say in that regard will depend to a large extent on the circumstances of the case. In practice, it is often necessary to carry out an assessment of the strength of the evidence as a whole, both inculpatory and exculpatory. If the court considers that the evidence plainly exonerates the appellant, then it is entitled to say so when giving its reasons for allowing the appeal. Sometimes the Crown will have accepted that this is so, and in that event the judgment will normally record that stance. In other cases the significance of the fresh evidence is contested, and in that event the court generally confines itself to the issue of safety. It follows that, although there are some cases in which the court may state in its judgment that the appellant has been exonerated, it is not the purpose of the appeal proceedings to determine whether that is the position, and in the great majority of cases the court does not enter into the fact finding exercise which would be necessary before such a statement might be made. The absence of any statement that the appellant has been exonerated does not therefore carry any implication concerning the appellants innocence. It is, therefore, highly undesirable that whether the CACD should say that the appellant is innocent of the crime of which he was convicted should become an issue in an appeal, as it became in Mr Hallams case. This is not only because the issue does not properly arise. As the Canadian court explained in the case of Mullins Johnson, it is also important that the significance of acquittals should not be degraded by the introduction of a practice of distinguishing in a criminal context between those who are factually innocent and those who merely benefit from the legal presumption of innocence: a distinction which section 133, in its amended form, can have the understandable but unfortunate effect of encouraging successful appellants to ask the CACD to draw. Cases in which the CACD expresses the view that an appellant was innocent should remain, as Lord Bingham and others have said, very rare. No adverse inference should be drawn from the courts unwillingness to express such a view. The application of section 133 is for the Secretary of State, not for the CACD quashing the conviction. The scope of article 6(2)? Article 6 is headed right to a fair trial and article 6(2) reads: Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. In construing article 6(2), we must under section 2(1)(a) of the Human Rights Act take into account any relevant case law of the European Court of Human Rights (ECtHR). This sharpens what would anyway be our natural approach when construing provisions designed to incorporate domestically the provisions of a Convention binding on the United Kingdom internationally in senses fixed internationally by the decisions of a supra national court. But on any ordinary reading, whether by reference to the principles in the Vienna Convention on the Law of Treaties 1969 (Cmnd 4140) or domestic principles, article 6(2) is limited to the pre trial phases of any criminal accusation or proceedings. What constitutes a criminal charge or proceeding has, not surprisingly, been given an autonomous meaning by the ECtHR, so as to include for example military disciplinary or administrative motor traffic violations: see Engel v The Netherlands (No 1) (1976) 1 EHRR 647, paras 80 81 and zturk v Germany (1983) 6 EHRR 409, paras 46 54. But once any criminal charge or proceeding, read in that sense, has terminated in acquittal or discontinuance, there is, as Lord Wilson points out (para 86(c)), no basis for any mere presumption of innocence. The European Court of Human Rights (the ECtHR) has however taken the view that article 6(2) has a continuing relevance after acquittal or discontinuance. In this connection, it recently stated as its starting point these propositions: Without protection to ensure respect for the acquittal or the discontinuation decision in any other proceedings, the fair trial guarantees of article 6(2) could risk becoming theoretical and illusory. What is also at stake once the criminal proceedings have concluded is the persons reputation and the way in which that person is perceived by the public. See Allen v United Kingdom (2013) 63 EHRR 10, para 94. Nevertheless, analysing the Strasbourg case law up to 2011 in the course of giving the majority judgment in Serious Organised Crime Agency v Gale [2011] UKSC 49; [2011] 1 WLR 2760 on 26 October 2011, Lord Phillips was inclined to the view that all that the cases establish is that article 6(2) prohibits a public authority from suggesting that an acquitted defendant should have been convicted on the application of the criminal standard of proof and that to infringe article 6(2) in this way entitles an applicant to compensation for damage to reputation or injury to feelings. He was of this view, although, he noted, it involves a remarkable extension of a provision that on the face of it is concerned with the fairness of the criminal trial: Gale, para 34, and see also para 58 of his judgment in Adams delivered earlier in 2011. The ECtHR, without referring to the discussion in Gale, indicated in Allen v United Kingdom on 12 July 2013 that it does not view article 6(2) in so clear cut or limited a sense as Lord Phillips suggested. First, it has developed, as an initial test of the application of article 6(2), the theory of a link between, on the one hand, an acquittal or discontinuation of criminal proceedings and, on the other, certain other types of proceedings or claims not involving the pursuit of any criminal charge. A range of cases in which a link has or has not been detected is listed in the ECtHRs judgment in Allen, para 98. The original concept of a link was, presumably, to set some limit on the expansion of article 6(2) beyond its natural sphere. The ECtHR has however gone on to say that the link may exist either because of the perceived closeness of the subject matter or simply because of a choice of words used by a court in the other proceedings. So, ultimately, the question whether article 6(2) applies can simply depend on the words used. Second, where the link is held to exist, the ECtHR has drawn distinctions between (a) claims by a defendant for eg costs or compensation arising out of the termination in his or her favour of the criminal proceedings, and (b) claims by third party victims against a defendant who has been acquitted in criminal proceedings or against whom criminal proceedings have been discontinued. (For the purpose of any such distinction, at least some issues raised by the state would presumably need to be treated as being, in reality, claims by or in the interest of a third party, eg child care proceedings brought by the state.) In the former case, (a), the ECtHR has held that, where there has been an acquittal on the merits in a true sense (rather than a discontinuance or an outcome sharing features associated by the ECtHR with a discontinuance) any voicing of suspicion of guilt by the public authority against whom such a claim is made constitutes a violation of article 6(2): Sekanina v Austria (1994) 17 EHRR 221 and Allen v United Kingdom, paras 122 123. Even in a case of or similar to discontinuance, it appears, however, from para 128 of the ECtHRs judgment in Allen, as Lord Reed notes, that nothing must be said in a civil context which calls into question the innocence of the defendant in the criminal context. The rationale of any distinction between (true) acquittals and discontinuance is not easy to understand. If the presumption of innocence is the key, one would have thought it equally applicable in both situations, or possibly even more so in a situation where the state has not felt able to pursue any criminal charges at all and has therefore discontinued. Be that as it may be, the application of any such distinction is itself fraught with difficulties as is evident by a comparison of Sekanina itself with Allen. In Sekanina, the defendant was acquitted by the jury. The Code of Criminal Procedure required acquittal where the court finds that the alleged offence was not made out or that it has not been established that the accused committed the act of which [she] is accused. In contrast, the statutory condition for awarding costs and compensation in each case depended, in summary, on the absence of suspicion generated by the defendants conduct. The Austrian courts made a careful analysis of the circumstances, including the criminal court file, and concluded that this condition was not satisfied. The Austrian Court of Appeal said: In order to establish whether or not such suspicion subsists, it might be more useful to refer to the record of the jurys deliberations. The content of this record suggests rather that in the jurys opinion all suspicion had not been removed. However, as the court called upon to rule under the [1969] Act is not bound, in its assessment of the position as regards suspicion, by the verdict (of acquittal) at the trial, not even the record of the jurys deliberations is of decisive importance. After setting out a whole range of suspicious circumstances, the Court of Appeal concluded: Having had regard to all these circumstances, the majority of which were not disproved at the trial, the jury took the view that the suspicion was not sufficient to reach a guilty verdict; there was, however, no question of that suspicion being dispelled. The Austrian courts therefore distinguished between the acquittal and any entitlement to compensation. Nevertheless, the ECtHR said that it was of the opinion that Austrian legislation and practice nevertheless link the two questions the criminal responsibility of the accused and the right to compensation to such a degree that the decision on the latter issue can be regarded as a consequence and, to some extent, the concomitant of the decision on the former (para 22). Bearing in mind the distinction drawn by the Austrian courts, the suggested consequence and concomitance are both elusive. However, they were only invoked to establish that article 6(2) was engaged, in the sense that it was open to the complainant to assert that it was potentially infringed at all. What was critical is whether it was actually infringed. Here, the ECtHR, after referring to that courts comprehensive list of items of evidence against Mr Sekanina and to the care with which that court had examined the witness statements, and reciting the passage from the Court of Appeals judgment, last set out, went on in the critical part of its judgment (para 30): Such affirmations not corroborated by the judgment acquitting the applicant or by the record of the jurys deliberations left open a doubt both as to the applicants innocence and as to the correctness of the Assize Courts verdict. Despite the fact that there had been a final decision acquitting Mr Sekanina, the courts which had to rule on the claim for compensation undertook an assessment of the applicants guilt on the basis of the contents of the Assize Court file. The voicing of suspicions regarding an accuseds innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However, it is no longer admissible to rely on such suspicions once an acquittal has become final. It appears that the ECtHR not only disagreed with the Austrian Court of Appeals analysis of the trial and jury record, but also held it to be illegitimate, in terms of the Convention and in the context of compensation, for the Austrian courts to embark in the first place on any consideration whether suspicions remained in the light of the acquittal. Contrast the ECtHRs recent judgment in Allen, where the ECtHR upheld the decision of the Secretary of State and of the courts judicially reviewing his decision that it was legitimate to refuse compensation on the ground that the CACDs setting aside of Ms Allens conviction merely established was that the new evidence might have led the jury to a different result meaning that the conviction was unsafe. The jurys acquittal in Sekanina was evidently analysed as a true acquittal or exoneration, whereas the CACDs was not. But what then would be the position if a criminal judge or court were (as can happen) to acquit a defendant on the basis that the prosecution had not established its case to the requisite criminal standard and/or that the defendant was entitled to the benefit of the doubt? Why should such an outcome at first instance be treated any differently from the outcome before the CACD on appeal in Allen? And, if the two situations are alike, then the potential applicability of Sekanina must, in the light of Allen, be understood as severely limited in scope. Turning to claims by third party victims against a defendant after acquittal or discontinuance (case (b) referred in para 39 above), the ECtHRs position is that: regardless of whether the criminal proceedings ended in discontinuation or acquittal, the court has emphasised that while exoneration from criminal liability ought to be respected in the civil compensation proceedings, it should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof. However, if the national decision on compensation were to contain a statement imputing criminal liability to the respondent party, this would raise an issue falling within the ambit of article 6(2) of the Convention (see Ringvold, cited above, para 38; Y, cited above paras 41 42; Orr, cited above, paras 409 and 51 ). See Allen v United Kingdom (2013) 63 EHRR 10, para 123. So at first sight claims by third party victims fall outside the scope of the approach the ECtHR has developed for issues arising between the state and a defendant against whom the state has unsuccessfully pursued a criminal charge, leading to acquittal or discontinuance. The qualification, contained in the second quoted sentence, may, according to its text, be read as corresponding with the view taken by Lord Phillips and others including myself in Gale, that is to say that a later civil court must not undermine an acquittal by suggesting that a person ought to have been convicted on the criminal onus: see para 37 above. But, if this is the direction in which the ECtHR is, as one would hope, moving, it is unfortunate that it was accompanied by the citation of problematic authorities discussed further in paras 49 53 below. Further, the current upshot, in the ECtHRs own words in Allen, is that: 125. It emerges from the above examination of the courts case law under article 6(2) that there is no single approach to ascertaining the circumstances in which that article will be violated in the context of proceedings which follow the conclusion of criminal proceedings. As illustrated by the courts existing case law, much will depend on the nature and context of the proceedings in which the impugned decision was adopted. 126. In all cases and no matter what the approach applied, the language used by the decision maker will be of critical importance in assessing the compatibility of the decision and its reasoning with article 6(2) . Although context is all in the law, this degree of vagueness about general principles is indicative of the uncertain and shifting ground onto which the ECtHRs expansion of the meaning and application of article 6(2) has led. Like Lord Phillips, with whose judgment in Serious Organised Crime Agency v Gale I concurred, I can however accept that, once criminal proceedings have concluded with acquittal, or, indeed, a discontinuance, no court should in civil or other proceedings express itself in terms which takes issue with the correctness of the criminal acquittal or discontinuance. Such an extension, achieving a degree of harmony with the approach in Strasbourg, seems at least workable and, of course, reflects what one would hope was anyway proper practice. But courts have often in contexts not involving the pursuit of a criminal charge and using tools and language appropriate to such contexts to engage with identical facts to those which have led to a criminal acquittal or discontinuance of criminal proceedings. In such circumstances, it is very commonly the case that the standard of proof will differ in the different contexts of criminal and other proceedings. It is, thus, entirely possible that a court may, in a context not involving the pursuit of any criminal charge, find on the balance of probabilities facts which could not be established beyond reasonable doubt in criminal proceedings. The question whether a link exists between the criminal and, say, civil proceedings then appears as a diversion from the real question. The ECtHR may itself be seen to accept that the concept of a link is not critical, because its statement that the words used may themselves create a sufficient link effectively collapses that concept into a consideration of the nature of the words. However, the question remains what nature of words is it permissible to use? The real test is, or should be, whether the court in addressing the civil claim has suggested that the criminal proceedings should have been determined differently. If it has, it has exceeded its role. If on the other hand, a court has, on the same facts as were in issue in criminal proceedings leading to an acquittal or discontinuance, determined a civil issue (or any issue other than a criminal charge) against the defendant, and has been confined itself to reasoning relevant to that issue, that means, as I see it, that it has applied the law, rather than infringed article 6(2). I do not believe that either the press or the public is wholly ignorant that the criminal standard of proof may on occasions lead to acquittal or discontinuance, in circumstances where the commission of the offence could be established on the balance of probabilities. There have been very well publicised cases both here and across the Atlantic. There is also a legitimate public interest in such cases being publicly decided and clearly, rather than obscurely, reasoned. Unfortunately, as it seems to me, the ECtHR has in a number of judgments condemned courts determining a civil issue for accurate descriptions of the elements of an offence constituting a tort simply because such elements also featured in past criminal proceedings. To require a civil court to tergiversate, by using words designed to obscure the fact that the law may find facts proved on a balance of probabilities which were not proved to the standard necessary for criminal conviction, does not assist either the law or the public or the defendant. Y v Norway (2003) 41 EHRR 87 is an example of a civil court being apparently expected, in the name of article 6(2), to adopt circumlocutions which do no service to transparency. Ringvold v Norway (Application No 34964/97), a judgment issued by the same section in the same constitution on the same day as Orr v Norway (Application No 31283/04), shows to what fine and unsatisfactory distinctions the past case law may lead. Lord Hughes sets out in his para 118 the circumstances in Orr v Norway. The ECtHRs reasoning there was that: although the concept of violence may not have been exclusively criminal in nature, the use made of it by the High Court in the particular context did confer criminal law features on its reasoning overstepping the bonds of the civil forum [sic]. A reading of the reasoning of the High Court, set out very fully, at para 9 in the report of Orr v Norway, shows the care actually taken by the High Court to explain the difference between the criminal proceedings and the civil claim. I will not set it out in full, but will take it as read and quote only the first and the last two paragraphs, where the High Court said: Despite the fact that [the applicant] has been acquitted of having, with intent or gross negligence, raped [Ms C], under Norwegian law, she has not thereby lost her possibility to claim compensation under the civil law on tort for the harmful act that she claims has taken place. Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act, an award of compensation for pecuniary/non pecuniary damage would not in itself amount to setting aside the acquittal. The majority [. ] finds on the evidence that on the balance of probabilities it was clearly probable that [the applicant] understood that [Ms C] did not want sexual relations with him, but nonetheless forced coitus upon her by exercising such a level of violence [vold] that the act could be accomplished. There was no question of serious use of violence [alvorlig voldsbruk], only of overpowering by holding [Ms C]s arms. Even though the victim had different alternatives for escaping the situation, which she for different reasons did not find that she could use, this does not alter the basic character of the act which was wilful violation by the use of violence [vold]. Against the background of the majoritys finding that it has been established that on the balance of probabilities it was clearly probable that [the applicant], by the use of violence [vold] has gained [tiltvunget seg] sexual intercourse with [Ms C], the conditions for making an award of compensation have been fulfilled. [. ] I am unable to discern what the Norwegian High Court should, while fulfilling its civil role, have said in order to avoid conferring criminal law features on its reasoning and violating article 6(2). The High Court went to great pains to differentiate and so reconcile its treatment of the criminal and civil issues, and the element of violence, although common to both issues, was a critical element in any adjudication of the civil claim, both as to liability and quantum of compensation. The dissenting opinions of Judges Jebens, Nicolaou and Vaji appear unanswerable on these points. Many of the points I have so far made are also encapsulated in Judge De Gaetanos separate opinion in the case of Ashendon and Jones v United Kingdom (Application Nos 35730/07 and 4285/08) and his forceful and pragmatic remarks in his separate judgment in Allen v United Kingdom. I note also that in two more recent cases subsequent to Allen, in which the ECtHR recited the principles in Allen and concluded that a sufficient link existed for article 6(2) to be engaged, the ECtHR went on to accept the reasoning and language of the domestic courts as consistent with that article, although it had examined and relied on the same facts as had led to criminal acquittals. In the first case, Vella v Malta (Application No 69122/10) (11 February 2014) following acquittals on charges of theft and receiving, civil issues had arisen from third party claims to the relevant objects. In the second case, Mller v Germany (Application No 54963/08) (27 March 2014), the issue of the applicants safety for probationary release had led the court to form a view on facts occurring during a prior period of probation in respect of which the applicant had been charged and acquitted. Both these cases suggest that the ECtHR may be moving towards a limited view of any application of article 6(2) after acquittal, broadly consistent with that suggested by Lord Phillips in Gale: see paras 37 and 47 above. For my part, I would refuse to depart from Adams and Gale, or to follow the case law of the ECtHR, if and insofar as the ECtHR may in the past have gone further ie further than to preclude reasoning that suggests that the defendant in criminal proceedings leading to an acquittal or discontinuance should have been convicted of the criminal offence with which he was charged. On that basis alone, in my view, these appeals should be dismissed, since nothing in section 133(1ZA) or in the Secretary of States rejections of the appellants claims to compensation involves any such suggestion. Compatibility of section 133(1A) with article 6(2)? Assuming that I am wrong about that, and article 6(2) can have some wider application to claims not involving the pursuit of any criminal charge, the question still arises whether section 133(1ZA) is incompatible with article 6(2). The ECtHR in Allen v United Kingdom, para 128, identified the criteria for compensation stated in the original section 133 as being: put concisely, that the claimant had previously been convicted; that she had suffered punishment as a result; that an appeal had been allowed out of time; and that the ground for allowing the appeal was that a new fact showed beyond reasonable doubt that there had been a miscarriage of justice. It went on: The criteria reflect, with only minor linguistic changes, the provisions of article 3 of Protocol No 7 to the Convention, which must be capable of being read in a manner which is compatible with article 6(2). The court is accordingly satisfied that there is nothing in these criteria themselves which calls into question the innocence of an acquitted person, and that the legislation itself did not require any assessment of the applicants criminal guilt. The words beyond reasonable doubt appearing in the original section 133 were thus treated as an acceptable equivalent of the word conclusively appearing in A3P7. The Supreme Court in R (Adams) v Secretary of State for Justice [2011] UKSC 18; [2012] 1 AC 48 identified for domestic purposes the four categories of case which might be suggested to fall within section 133 in its original form, and which I have set out in para 18 above. The Supreme Court held in R (Adams) that section 133, as originally enacted, enabled compensation to be claimed in categories (1) and (2), but not categories (3) and (4). Allen v United Kingdom concerned what was, in the English domestic terms used in Adams, a category (3) case, ie a case where the fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant. The ECtHR also treated the case as having some features more akin to discontinuance than to acquittal on the merits (see para 39 above). However, that seems to have been so simply because the CACD confined itself to the basic test (whether the conviction was safe) which it was required by statute to apply, and because the Administrative Court and Court of Appeal, in the judicial review proceedings relating to the Secretary of States refusal of compensation, proceeded accordingly: see in particular para 134 in Allen, where the ECtHR said: The court does not consider that the language used by the domestic courts [ie the courts considering the judicial review of the Secretary of States refusal to pay compensation], when considered in the context of the exercise which they were required to undertake, can be said to have undermined the applicants acquittal or to have treated her in a manner inconsistent with her innocence. The courts directed themselves, as they were required to do under section 133 [of the 1988 Act], to the need to establish whether there was a miscarriage of justice. In assessing whether a miscarriage of justice had arisen, the courts did not comment on whether, on the basis of the evidence as it stood at the appeal, the applicant should be, or would likely be, acquitted or convicted. Equally, they did not comment on whether the evidence was indicative of the applicants guilt or innocence. They merely acknowledged the conclusions of the CACD, which itself was addressing the historical question whether, had the new evidence been available prior to or during the trial, there would nonetheless have been a case for the applicant to answer. They consistently repeated that it would have been for a jury to assess the new evidence had a retrial been ordered The ECtHR held in Allen that there had in these circumstances been nothing in the English courts treatment of the defendant under section 133 to undermine her acquittal or demonstrate a lack of respect for the presumption of innocence which she enjoyed, and so no violation. The ECtHR approached Allen on the basis of the language used by the English courts, rather than an examination of the meaning of section 133. Thus, it said (para 129), that: It was for the domestic courts to interpret the legislation in order to give effect to the will of the legislature and in doing so they were entitled to conclude that more than an acquittal was required in order for a miscarriage of justice to be established, provided always that they did not call into question the applicants innocence. The court is not therefore concerned with the differing interpretations given to that term by the judges in the House of Lords in R (Mullen) and, after the judgment of the Court of Appeal in the present case, by the judges in the Supreme Court in R (Adams). What the court has to assess is whether, having regard to the nature of the task that the domestic courts were required to carry out, and in the context of the judgment quashing the applicants conviction, the language they employed was compatible with the presumption of innocence guaranteed by article 6(2). Differing views had been expressed in R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18; [2005] 1 AC 1 as to whether section 133 as originally enacted confined the right to compensation to category (1) cases, ie cases where the fresh evidence shows clearly that the defendant is innocent of the crime of which he was convicted. That was Lord Steyns view, with which Lord Bingham did not associate himself. The ECtHRs focus in Allen on the language used by the English courts was possible because it was not suggested in Allen that Ms Allens case fell into any category other than category (3): see further paras 67 69 below. The ECtHR did however give a strong clue as to its thinking on the potential consequences under article 6(2) of Lord Steyns construction of section 133, had the English courts relied on and applied that, when in para 133 it said: But what is important above all is that the judgments of the High Court and the Court of Appeal did not require the applicant to satisfy Lord Steyns test of demonstrating her innocence. The High Court in particular emphasised that the facts of R (Mullen) were far removed from those of the applicants case and that the ratio decidendi of the decision in R (Mullen) did not assist in the resolution of her case. The new section 133(1ZA) confines compensation to circumstances where a conviction is reversed by the CACD (or a pardon granted) on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice in the sense that it shows beyond reasonable doubt that the defendant did not commit the offence. It therefore confines compensation to cases within category (1), matching Lord Steyns view of its original meaning. Does this mean that we should declare it to be incompatible with article 6(2)? I readily acknowledge that this might at first sight appear to be the implication of the ECtHRs thinking in the passage cited above from para 133 of the ECtHRs judgment in Allen. But the point has never been directly before or decided by the ECtHR, and I am far from confident that its implications have been worked through in a manner which makes it acceptable, or that the ECtHR would conclude that section 133(1ZA) is incompatible if the question were argued out before it. The first matter that I would address is the clear understanding of the drafters of A3P7, which (although the United Kingdom has not ratified that Protocol) is clearly the origin of section 133: see para 16 above. That understanding appears in the Explanatory Memorandum which was prepared along with the draft Protocol by the Steering Committee for Human Rights, which submitted both documents together to the Council of Ministers on 22 November 1984, the date on which the Protocol was adopted. The Explanatory Memorandum makes clear that A3P7 contemplated just such a provision as now exists under English law in section 133(1ZA). It says: The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent. The article is not intended to give a right of compensation where all the preconditions are not satisfied, for example, where an appellate, court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge. The ECtHR in Allen addressed this by saying in para 133: However, the Explanatory Report itself provides that, although intended to facilitate the understanding of the provisions contained in the Protocol, it does not constitute an authoritative interpretation of the text (see para 71 above). Its references to the need to demonstrate innocence must now be considered to have been overtaken by the courts intervening case law on article 6(2). As para 71 sets out, the full text of the Explanatory Memorandum was to the effect that it . does not constitute an instrument providing an authoritative interpretation of the text of the Protocol, although it might be of such a nature as to facilitate the understanding of the provisions contained therein. As a statement of what the drafters actually intended by A3P7, one would have thought that the Explanatory Memorandum could not have been clearer. On what basis subsequent case law could silently overtake this clear original intention is not obvious. In what follows, however, I shall approach the construction of section 133 independently of the Explanatory Memorandum. It might have been thought that, both in its original and in its current form, section 133 (as also A3P7) makes any right to compensation entirely dependent on the ground on which the criminal court (here the CACD) reverses the conviction (or on which a pardon is granted). That would, if correct, have had two consequences. First, it would have marked another distinction from Sekanina, where the award of compensation depended on its face on an independent evaluation of the position by a civil court. Since compensation would then simply have depended on how the criminal court expressed itself, the principle that neither the state nor a later court dealing with a civil claim should say anything different from the criminal court acquitting the defendant could not apply at all. Second, it would have meant that the present appellants had no claim, since a reading of the grounds on which the CACD allowed their appeals indicates that in each case it did so simply because the newly discovered facts made their convictions unsafe. In other words, the CACDs actual decision was, as in Allen, simply that their cases fell domestically within category (3). correct. First, I note that section 133(3) provides that: I am not, however, prepared to accept such a construction of section 133 as The question whether there is a right to compensation under this section shall be determined by the Secretary of State. Second, Lord Phillips in R (Adams) proceeded on an opposite basis, without any contrary reservation being made by any of his fellow judges. On this basis, the Secretary of State is given an adjudicative role (subject of course, where necessary, to judicial review by the ordinary courts) in relation to the question whether a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. It is clear from Allen v United Kingdom that there is nothing wrong with a criminal court, when setting aside a conviction, confining itself (in accordance with its role explained in paras 26 to 34 above) to indicating that the new evidence, when taken with the evidence given at trial, created the possibility that a jury might properly acquit the defendant; or explaining that the evidence which was now available might, if it had been heard by the jury, have led to a different result; or expressing itself in terms which did not begin to carry the implication that there was no case for the applicant to answer; or indicating that there was no basis for saying on the new evidence that there was no case to go to a jury: see paras 131 132 in Allen. All these are ways of expressing a conclusion that a case falls within category (3). They amount to saying that some ground for suspicion remains. Yet it is clear from Allen that they are acceptable and that Sekanina does not have contrary effect. A central plank of the ECtHRs judgment in Allen is that there is nothing wrong with a refusal of compensation on the ground that the case falls within category (3). That is, as I read both the CACDs judgments, also the ground on which the CACD allowed both the present appellants appeals in the criminal proceedings, as well as the ground on which the Secretary of State disallowed their claims for compensation. It follows, as the other side of the coin from what I have already said, that the right to compensation can legitimately be expressed to depend upon whether (adopting the terminology in Adams) the conviction was set aside on a ground falling within category (1) or (2). Logically, a defendant wishing not merely to have a conviction set aside, but also wishing to recover compensation, must, unless the case is one of the rare cases (see paras 32 to 34 above) in which the CACD expresses its judgment setting aside the conviction in terms going further than a conclusion that the conviction is unsafe, persuade the Secretary of State to go further. In the rare case where the CACD does express itself in terms stating that the defendant is innocent, that will in practice be conclusive. The Secretary of State could not realistically go behind such a statement. But in other cases, where the CACD has merely determined that the conviction is unsafe, it must be open to the state to resist a defendants suggestion that the case falls within a different category that would entitle him to compensation, and for the Secretary of State to reach a conclusion on that basis. Otherwise, as soon as a defendant argues that the Secretary of State should go further than the CACD has gone and should view the circumstances as falling within a category for which the legislature has prescribed compensation, the state would have to accept this, and concede liability to pay compensation. This situation did not of course arise in Allen, because there was no attempt there by Ms Allen to bring her circumstances into any category other than that of category (3) within which the CACD had seen it as falling. A defendant seeking compensation after the setting aside of his or her conviction by the CACD may therefore be required to show that the circumstances were not merely such that his conviction was unsafe. Using the terminology in Adams, the circumstances must be shown to fall within a higher category, which must, necessarily (and using the terminology in Adams), be either category (1) or category (2), or, since the enactment of section 133(1ZA), category (1) alone. Is there, in terms of compliance with the Convention, any sensible distinction between categories (1) and (2)? Category (1) is no more than a subset of category (2). If it is legitimate for the state to require a defendant to show at least that his or her case falls within category (2), on what basis could it be illegitimate for the state to require a defendant to show that it falls within category (1)? Putting the matter the other way around, the ECtHR has in para 133 in Allen implied that there would be an objection to requiring a defendant to show that the case fell within category (1). But it has not (at least in terms) addressed category (2). It may be that the ECtHRs passing reference in para 133 to the inappropriateness of Lord Steyns test should be understood as embracing both categories (1) and (2). If so, then, as the preceding paragraph of this judgment shows, the effect would be largely to undermine the outcome of Allen itself. All that an applicant for compensation would need to do was assert this his or her claim fell into a higher category than category (3), and the state would be precluded from asserting the contrary, because to do so would be to infringe the presumption of innocence. A way out of this impasse might exist if a sensible distinction could in the context of the Convention be drawn between categories (1) and (2). The legislation, or the language of the courts, could then be amended to speak not of proof of innocence, but of proof that the new or newly discovered fact so undermined the case against the applicant that no conviction could possibly be based on it. But could reference to a case as falling within category (2) sensibly be distinguished from whatever may be thought to be the ambit of the ECtHRs implied objection to language bringing a case within category (1)? If, to use the ECtHRs further words in Allen, para 136, it demonstrates a lack of respect for the presumption of innocence which [a defendant] enjoys in respect of the criminal charge of which she has been acquitted to refuse compensation on the ground that the defendant has not shown innocence, it would presumably also demonstrate a lack of respect for the presumption of innocence to refuse it on the ground that the defendant had not shown that she was not only acquitted, but also that there was no evidence upon the basis of which she could possibly have been convicted. The two situations are distinct as a matter of domestic criminal law, and the legislature has distinguished between them for the purposes of compensation. But to distinguish between them in terms of the Convention and in relation to the question of infringement of the presumption of innocence, would seem to do no more than add another fine and unconvincing distinction, in an area where the application of the Convention already appears too full of unsatisfactory and unsatisfying distinctions and uncertainties. I cannot therefore see any logical basis on which section 133(1ZA) can or should be seen as incompatible in terms of article 6(2) of the Convention. As to the relationship between this court and the European Court of Human Rights jurisprudence, I am of course very conscious of what has been said by Lord Neuberger and myself in the passages cited by Lord Reed in his para 172. Like Lord Wilson, I would, however, draw attention to the further words of Lord Hughes and myself in R (Haney, Kaiyam and Massey) v Secretary of State for Justice [2014] UKSC 66; [2015] AC 1344, para 21, where we said that: The degree of constraint imposed or freedom allowed by the phrase must take into account is context specific, and it would be unwise to treat Lord Neuberger MRs reference to decisions whose reasoning does not appear to overlook or misunderstand some argument or point of principle or Lord Mance JSCs reference to some egregious oversight or misunderstanding as more than attempts at general guidelines, or to attach too much weight to his choice of the word egregious, compared with Lord Neuberger MRs omission of such a qualification. Conclusion Speaking for myself, I cannot regard the current state of European Court of Human Rights case law as coherent or settled on the points critical to this appeal. The second point has never been directly addressed; it is at most addressed indirectly by a passing dictum, uttered in a context in Allen where no detailed analysis was necessary because the point did not directly arise. I do not share Lord Wilsons view, in para 94(c) of his judgment, that it is over optimistic to suppose that the ECtHR will not think again in relation to article 6(2), generally or, at the least and critically, in relation to its dictum regarding Lord Steyns approach quoted in para 49 above. But, however that may be, I question whether the area of law currently under discussion is one where uniformity of approach is critical, even if the precise implications of the ECtHR case law were clear. In summary, I am, for the reasons given, persuaded that it would be inappropriate to introduce into English law an interpretation of article 6(2) going beyond that identified by Lord Phillips, as set out in paras 37 and 47 above. But, in any event and even if article 6(2) does have a wider application in respect of claims not involving any criminal charge, I am not persuaded that section 133(1ZA) can or should be regarded as incompatible with article 6(2). For all these reasons a declaration of incompatibility is in my opinion inappropriate. LADY HALE: In general, where it is clear that the European Court of Human Rights would find that the United Kingdom has violated the Convention in respect of an individual, it is wise for this court also to find that his rights have been breached. The object of the Human Rights Act 1998 was to bring rights home so that people whose rights had been violated would no longer have to go to the Strasbourg court to have them vindicated. I was initially disposed to think, for the reasons explained by Lord Reed, that the Strasbourg court would indeed find a violation in this case. However, I am persuaded that this is not as clear as once I thought it was, for several reasons. There are, of course, all the objections in principle to applying the presumption of innocence to any proceedings taking place after the criminal charge has been determined, either by acquittal or discontinuance, so eloquently voiced by Lord Wilson and Lord Hughes. But it is surely too late in the day for the Strasbourg court to revisit that whole question. Furthermore, as Lord Reed has demonstrated, all the arguments deployed by the majority in Adams in holding that article 6(2) was simply not engaged in section 133 cases have been comprehensively rejected by the Strasbourg court. I would therefore agree with him that article 6(2) is engaged in this case. However, it does not follow that the Strasbourg court would automatically find that it has been breached in this case. As Lord Mance explains (para 39), the Strasbourg court has drawn a distinction between (a) claims by a defendant for such things as costs or compensation arising out of the termination of a criminal case against him in his favour, either by acquittal or discontinuance, and (b) civil claims by or on behalf of third party victims against a former defendant in criminal proceedings which have been determined in his favour. In category (b) cases, where the parties are different, the standard of proof is different, the admissible evidence may also be different, and liability is not dependent upon criminal proceedings having been brought at all, the Strasbourg court has clearly accepted that the civil claim may be determined differently from the criminal proceedings without violating article 6(2). The important thing is the language adopted by the court when deciding the civil claim, as illustrated in the contrasting decisions in Ringvold v Norway (Application No 34964/97), and Y v Norway (2003) 41 EHRR 87. Lord Mance suggests that the real test is, or should be, whether the court in addressing the civil claim has suggested that the criminal proceedings should have been determined differently (para 47). I agree, and I share his regret that, in Orr v Norway (Application No 31283/04), judgment of 15 May 2008, the Chamber, by a narrow majority, appear to have asked more of the civil court than this. While accepting that an acquittal in criminal proceedings is no bar to a civil claim for compensation based on the same facts, they appear to have demanded that the court hearing the civil claim phrase its decisions in less than fully transparent language. This is contrary to the rule of law: courts must always be able to explain their decisions fully, clearly and honestly. The one thing they must avoid is suggesting, in civil proceedings, that the defendant should have been convicted of the criminal offence. But I take comfort from the fact that this was the decision of a Chamber of the court, and by the narrow margin of four to three. This is not a category (b) case, but Lord Mance detects signs that the Strasbourg court might also be prepared, despite the breadth of its language in Allen v United Kingdom (2013) 63 EHRR 10, to adopt an approach to category (a) cases which in practice requires merely that the court determining the defendants claim for costs or compensation refrain from any suggestion that he should have been convicted of the offence. There is enough in the evolution of the courts jurisprudence to suggest that, for the most part and with some limited exceptions, that is in fact what they are doing. If that were indeed to be the approach of the Strasbourg court to these cases, it might still be that the insistence on showing beyond reasonable doubt that the claimant did not commit the crime in section 133(1ZA) of the Criminal Justice Act 1988 will lead to a violation of article 6(2) in some cases where compensation is denied. But I am not convinced that it would always do so. An indication is the strong clue in para 133 of Allen in relation to Lord Steyns test (later adopted in section 133(1ZA)), quoted by Lord Mance at para 63. But, as he points out, the court was not addressing such a case in Allen, which was acknowledged to be a case in Adams category (3), where the conviction was quashed because it was unsafe in the sense that the fresh evidence meant that a jury might or might not have convicted. Provided that this is explained without suggesting that the defendant should have been convicted, there is no breach of article 6(2). The cases before us are also cases, like Allen, in which the fresh evidence rendered the conviction unsafe, in the sense that, had it been available at trial, a reasonable jury might or might not have convicted the defendant. The Grand Chamber found no violation in the case of Allen. In my view, the issue of incompatibility would be better addressed in a case which fell clearly within category (2), where it might be difficult to explain the difference between that and a category (1) case without casting doubt on the acquittal. But if it be right that the true question is whether the Secretary of State, or a court in judicial review proceedings, has suggested that the defendant ought to have been convicted, then it does not seem impossible to explain a refusal of compensation without doing this. Furthermore, where a particular statutory provision may or may not lead to a violation, it is not appropriate, in my view, to make a declaration of incompatibility in proceedings brought by an individual in respect of whom the Strasbourg court is unlikely to find a violation, as I believe these to be. I should add that my view of the appropriateness of making a declaration of incompatibility in this case has nothing to do with my view of the merits of the amendment to section 133. LORD WILSON: My view is that the present appeals place the court in a deeply uncomfortable position. We afford profound respect to the decisions of the ECtHR and recognise its unparallelled achievements in raising the standards according to which member states of the Council of Europe, undoubtedly including the UK, must treat their people. I am, however, persuaded that, in its rulings upon the extent of the operation of article 6(2) of the Convention, the ECtHR has, step by step, allowed its analysis to be swept into hopeless and probably irretrievable confusion. An analogy is to a boat which, once severed from its moorings, floats out to sea and is tossed helplessly this way and that. In what follows I seek to summarise my reasons for this grave conclusion: (a) The meaning of an article is to be collected from its terms in their context and in the light of its object and purpose: article 31(1)(c) of the Vienna Convention on the Law of Treaties, 1969 Cmnd 4140. (b) Paragraph 1 of article 6 distinguishes between civil rights and obligations and a criminal charge; and the language of para 3 of the article makes clear that it addresses the rights only of those subject to the latter, namely of [e]veryone charged with a criminal offence. Such is the context of para 2 of the article, which, like para 3, confers a right only on [e]veryone charged with a criminal offence. (c) When article 6(2) provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty, its meaning, if collected in accordance with the Vienna Convention, can only be that everyone shall be presumed to be innocent for the purpose of the criminal law until proved to be so. Following an acquittal, the presumption has no further role. The acquitted defendant has no need for a mere presumption, potentially rebuttable, that he is innocent. For, subject to the remote possibility of a second criminal trial, it has become an irrebuttable fact that he is innocent for the purpose of the criminal law. The apparatus for punishment within the criminal law cannot be applied to him. (d) The trouble is that the ECtHR has divorced the word innocent from its context and, in the words of Judge De Gaetano in para 3 of his separate opinion in the Ashendon case, cited by Lord Mance in para 53 above, has launched article 6(2) into an orbit separate from that of the article. He there proceeded to call for a thorough re examination of its proper place in the article. (e) The entitlement of the ECtHR, referred to by Lord Mance in para 35 above, to give an autonomous meaning to the articles of the Convention is intended to override any distorted meaning ascribed to them contrary to the Vienna Convention by individual states, not to license the ECtHR to ascribe a distorted meaning to them: see paras 80 and 81 of its judgment in the Engel case, to which Lord Mance there refers. (f) As Judge Power said in para 7 of her strong separate opinion in the Bok case, cited by Lord Hughes in para 120 below, a reference to a violation of the presumption of innocence when a person is not or is no longer facing a criminal charge divorces the principle from its purpose. (g) The ECtHR has blurred the crucial distinction between guilt for the purposes of the criminal law and guilt for other purposes, determined on a different basis. (h) Following its removal of the presumption out of the orbit of article 6, the ECtHR has been required to explain its application in two main areas. (i) The first main area is that of civil claims, whether brought against acquitted defendants by their alleged victims or by the state in aid of protecting children or brought against unsuccessful prosecutors by acquitted defendants. A fair hearing of these civil claims, to which the claimants and the defendants (including the former prosecutors) are all entitled under article 6(1), will usually require a determination, by reference to probabilities, of facts not established beyond reasonable doubt in the criminal proceedings. (j) In the Y case, cited by Lord Mance in para 50 above, the applicant had been acquitted on appeal of homicide and sexual assault. The deceaseds parents sued him for compensation. Under Norwegian law they had to show that it was clear on the balance of probabilities that he had killed and sexually assaulted their daughter. In awarding compensation to them the Norwegian court, upheld on appeal, found it clearly probable that [the applicant] has committed the offences. The ECtHR held that the court had cast doubt on the correctness of his acquittal and had therefore violated article 6(2). (k) In the Orr case, also cited by Lord Mance in para 50 above, the ECtHR followed the decision in the Y case. It applied the presumption to a civil judgment in Norway that a man whom a jury had acquitted of raping a woman had nevertheless, on the balance of probabilities, when using a degree of violence, had sex with her without her consent and had thereby committed a tort against her for which he should pay damages. The ECtHR held that the judgment had violated the presumption of innocence because the use made in it of the concept of violence had conferred criminal law features on its reasoning: see the passage there quoted by Lord Mance. So the Norwegian court had apparently violated the presumption by fully explaining its factual findings: it should apparently have diluted its findings by omitting the finding that the man had used a degree of violence. There was a powerful dissenting opinion by Judge Jebens, who disputed that article 6(2) was even applicable to the civil judgment, let alone that it had been violated. (l) Are the conclusions of the ECtHR in the Y case and in the Orr case tenable? (m) The other main area is that of claims for compensation against the state by defendants for their detention in prison, whether on remand or otherwise, prior to their acquittal at trial or on appeal. (n) The Sekanina case, cited by Lord Mance in para 39 above, concerned the Austrian provision for payment of compensation to an acquitted defendant referable to his period in custody on remand if suspicion that he committed the offence was dispelled. The Austrian courts decision that the suspicion was not dispelled was held to be incompatible with the presumption. The problem for the ECtHR was that in the Englert and Nlkenbockhoff cases, cited by Lord Hughes in para 106 below, it had held that refusals of compensation based on suspicions of guilt were not incompatible with the presumption. In the event the court distinguished them on the basis that there the criminal proceedings had ended prior to their final determination on the merits. But why was this distinction relevant to the reach of the presumption? (o) Is the conclusion of the ECtHR in the Sekanina case tenable? (p) The decision in the Sekanina case was followed in the Hammern case, cited by Lord Reed in para 151 below. The significance of the latter lies in the striking assertion, at paras 41 and 42 of the judgment, that, although not even the courts autonomous concept of a criminal charge extended to the compensation proceedings, article 6(2) nevertheless applied to them. (q) The decision of the Grand Chamber in the Allen case, cited by Lord Mance in para 22 above, concerned, as do the present appeals, a different and more circumscribed provision in the UK in section 133(1) of the Criminal Justice Act 1988 for compensation to be paid to certain defendants ultimately acquitted on appeals out of time. As Lord Mance explains in para 16 above, the section was enacted to give effect to the UKs international obligations under article 14(6) of the International Covenant on Civil and Political Rights 1966 (the Covenant). The compensation is for punishment as a result of [a] conviction and the obligation to pay it arises upon the reversal of a conviction on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice. (r) It is noteworthy that article 14(2) of the Covenant provides for what it calls a right to be presumed innocent but is otherwise in precisely the same terms as article 6(2) of the Convention. Evidently the drafters of article 14 did not regard it as inconsistent to provide within it both for a presumption of innocence on the one hand and for an inquiry into whether an ultimately acquitted defendant had or had not been the victim of a miscarriage of justice on the other. Indeed in the WJH case, cited by Lord Hughes in para 121(vi) below, (s) the Human Rights Committee, established under the Covenant to monitor its implementation, decided that the presumption of innocence in article 14(2) applies only to criminal proceedings and not to proceedings for compensation. (t) In 1984 the Council of Europe decided to bring the Convention into line with article 14(6) of the Covenant by providing in article 3 of Protocol 7 a right to compensation for certain ultimately acquitted defendants in almost precisely the same terms. In para 25 of its explanatory report upon the protocol, which it said did not constitute an authoritative interpretation of its articles, the Steering Committee for Human Rights, appointed by the Council, suggested that the intention behind article 3 was to require compensation only in clear cases of miscarriage of justice, in the sense that there would be acknowledgment that the person was clearly innocent. The committees suggestion was inconsistent with any idea that a finding that an acquitted defendant was not clearly innocent would be incompatible with the presumption of innocence. (u) In the Allen case the applicant had ultimately been acquitted on appeal on the basis that fresh evidence might reasonably have affected the jurys decision. She complained that the UK courts had acted incompatibly with the presumption of her innocence by refusing to quash a decision that she had not established a miscarriage of justice and was therefore not entitled to compensation under section 133(1), then unamended, of the 1988 Act. The court at first instance had, for example, observed that there remained powerful evidence against her. The Grand Chamber sought to undertake an exhaustive review of the courts case law on the role of article 6(2) in various types of proceedings which take place after an acquittal; and by implication it approved all of the courts previous decisions. (v) First the Grand Chamber addressed the circumstances in which, after acquittal, article 6(2) applied. It reiterated in para 96 that the article might apply even when its words, given their autonomous meaning, did not apply. It suggested in para 94 that, after acquittal, the articles aim was two fold: to protect an acquitted defendant from being treated by a public authority as in fact guilty of the offence charged and, perhaps overlapping with his rights under article 8, to protect his public reputation. It held in para 103 that the article therefore required that he be treated as someone innocent in the eyes of the law, not just (so I interpolate) in the eyes of the criminal law. It concluded at para 105 that the article applied whenever the applicant demonstrated a link between the criminal proceedings and the subsequent proceedings. It exemplified the necessary link when in para 107 it turned to the facts of the Allen case: the link existed there because the resolution of the criminal proceedings in the appellate court had triggered the right to apply for compensation and because the requirements of section 133 required reference to the judgment of that court. (w) Then the Grand Chamber addressed the circumstances in which, if after an acquittal it applied to a later decision, article 6(2) had been violated. In para 122 it approved the decision in the Sekanina case that the voicing of suspicions of guilt in compensation proceedings would violate the article if the conclusion of the criminal proceedings had been a final determination on the merits, as opposed to their discontinuation; but in para 123 it held, without explanation, that the distinction did not apply to civil claims brought against acquitted defendants by alleged victims. Its conclusion at paras 125 and 126 was that there was no single approach to ascertainment of a violation; that much will depend on the nature and context of the subsequent proceedings; but that in every case the language used by the decision maker will be of critical importance. It proceeded to hold at para 136 that the terms in which the UK courts had rejected the applicants claim had not violated article 6(2). But at para 127 it had observed, without explanation, that the setting aside of her conviction in the appeal court had been more like a discontinuance than an acquittal on the merits, with the result (presumably) that the suspicions of guilt articulated by both domestic courts in the compensation proceedings did not constitute a violation. In the Allen case Judge De Gaetano again entered a separate opinion. (x) In para 3 he described the courts conclusion as being that it all depends on what you say and how you say it and in para 5 he reiterated his belief that article 6(2) had no application to compensation proceedings following acquittal. (y) With acute professional discomfort I ask: in relation to the circumstances in which article 6(2) applies and in which it is violated, are the conclusions of the Grand Chamber in the Allen case tenable? I turn to this courts duty under section 2(1)(a) of the Human Rights Act 1998 [the 1998 Act] to take into account any relevant judgment of the ECtHR. Inevitably there have been a number of observations in this court, and in the appellate committee which preceded it, that the duty to take account of such a judgment should almost always lead our domestic courts to adopt it. Particularly in the early years of the life of the 1998 Act, the UK courts were strikingly loyal to the judgments of the ECtHR notwithstanding the open texture of section 2(1)(a): see Krisch, The Open Architecture of Human Rights Law [2008] 71 MLR 183, 203. In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, the appellate committee perceived no need to confront, as problematic, the jurisprudence of the ECtHR in relation to the relevant article of the Convention, which was article 6(1). It applied it without apparent difficulty. But Lord Slynn of Hadley observed at para 26: In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence. What he there said was, of course, no part of the decision of the committee. It was, as he made clear, a purely personal observation, made in passing. No doubt, so far as it went, it was also a helpful observation. But Lord Slynn would no doubt have been surprised to learn that, partly as a result of remarks made by Lord Bingham of Cornhill at para 20 of his judgment in the Ullah case, cited by Lord Hughes in para 125 below, his observation has at times been regarded as part of what the committee had held; and no doubt surprised to learn that his adjectives have at times been treated as if found in a statute. Is the jurisprudence clear? Is the jurisprudence constant? In the present case one might well express doubt, as does Lord Hughes in para 126 below, about whether the jurisprudence is clear; but my view is that such an exercise would be inappropriate. The words with which Lord Slynn chose to describe a reasonable approach in that particular case should not, with respect to him, be subjected to so intimate an examination. On other occasions this court has expressed the proper approach to the jurisprudence of the ECtHR in different terms. In para 173 below Lord Reed quotes in particular from para 48 of the judgment of the court delivered by Lord Neuberger of Abbotsbury MR in the Manchester City Council case and from para 27 of the judgment of Lord Mance in the Chester case. In my view however the weight to be given to both quotations was correctly described by Lord Mance and Lord Hughes in their joint judgment in the Kaiyam case, cited by Lord Mance in para 72 above, as follows: 21. The degree of constraint imposed or freedom allowed by the phrase must take into account is context specific, and it would be unwise to treat Lord Neuberger MRs reference to decisions whose reasoning does not appear to overlook or misunderstand some argument or point of principle or Lord Mance JSCs reference to some egregious oversight or misunderstanding as more than attempts at general guidelines The context of the present appeals, to which the nature of this courts duty under section 2 is therefore specific, is a line of jurisprudence in the ECtHR which in my respectful view is not just wrong but incoherent. Our courts have not, to the best of my knowledge, previously been called upon to address a context of that sort. In In re McKerr [2004] UKHL 12, [2004] 1 WLR 807, Lord Hoffmann said: 63. Although people sometimes speak of the Convention having been incorporated into domestic law, that is a misleading metaphor. What the [1998] Act has done is to create domestic rights expressed in the same terms as those contained in the Convention. But they are domestic rights, not international rights. Their source is the statute, not the Convention. They are available against specific public authorities, not the United Kingdom as a state. And their meaning and application is a matter for domestic courts, not the court in Strasbourg. 64. This last point is demonstrated by the provision in section 2(1) that a court determining a question which has arisen in connection with a Convention right must take into account any judgment of the Strasbourg court. Under the Convention, the United Kingdom is bound to accept a judgment of the Strasbourg court as binding: article 46(1). But a court adjudicating in litigation in the United Kingdom about a domestic Convention right is not bound by a decision of the Strasbourg court. It must take it into account. I reluctantly agree with Lord Reed, for the reasons he gives in paras 183 to 191 below, that, if article 6(2) has the meaning ascribed to it by the ECtHR, in particular in the Allen case, section 133(1ZA) of the 1988 Act is incompatible with it. It follows that I am at present not persuaded by the ingenious suggestions to the contrary made by Lord Mance in paras 61 to 71 above and by Lord Hughes in paras 128 and 129 below. But I have come to the conclusion that this court should not adopt the meaning ascribed to article 6(2) by the ECtHR. I have been driven to the view that it should today dismiss the appeals. I hold in high professional regard our fellow judges in the ECtHR. I appreciate the desirability of a uniform interpretation of article 6(2) (a) (b) throughout the states of the Council of Europe. I regard as over optimistic the suggestion of the Secretary of State that (c) there is room for further constructive dialogue between this court and the ECtHR about the extent of the application of article 6(2). (d) to the ECtHR for a ruling that section 133(1ZA) violates article 6(2). I recognise the likelihood that the appellants could successfully apply (e) But I regard myself as conscientiously unable to subscribe to the ECtHRs analysis of the extent of the operation of article 6(2) and thus to declare to Parliament that its legislation is incompatible with it. LORD HUGHES: Narrowly stated, the question raised by the present appeals is whether the new section 133(1ZA) Criminal Justice Act 1988 is incompatible with article 6(2) of the European Convention on Human Rights (the presumption of innocence). That question can, however, only be answered in the context of the true scope of the presumption of innocence, which arises also in many other legal scenarios. This is a matter with which the Strasbourg court has been obliged to grapple over the past 30 years. The presumption of innocence is also central to the approach of all three UK jurisdictions to the criminal law, as it is to a great many other legal systems. Article 6(2) provides: Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. There is no doubt that this governs the investigation of, and the trial of, criminal charges. Centrally, it means that the burden of proof in a criminal trial lies upon the prosecution to show that the accused is guilty rather than upon the accused to show that he is not. In most if not all European systems that rule is associated with a requirement that proof of a criminal offence must achieve a high standard before a defendant can be convicted usually described as proof beyond reasonable doubt. There is no occasion to examine this central core of article 6(2), which is not in issue in the present case. What is in issue arises, not for the first time, not from the plain meaning of a Convention right, but from the manner in which it has been extended, by way of judicial gloss, beyond the investigation and trial of criminal offences to legal situations where no charge remains pending and no trial is in contemplation. This gloss is referred to in the Strasbourg jurisprudence as the second aspect of article 6(2). Like other judicial glosses, this one has developed piecemeal. That is often the result of iterative consideration of individual cases, but that process needs also to provide the opportunity to stand back and to examine the logical and jurisprudential basis for the steps which have been taken. The second aspect of article 6(2) in the Strasbourg jurisprudence It appears from the Grand Chambers recent formulation of this second aspect of article 6(2) in Allen v United Kingdom (2013) 63 EHRR 10, that it has the features here set out. (a) By the time there is any occasion for this second aspect to arise, no one is, by definition, facing any criminal charge. It follows that although it is well understood that the concept of a criminal charge is, as used in the Convention, an autonomous one, its autonomous meaning has no relevance to the second aspect (para 96). (b) The general aim of the second aspect is to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty of the offence charged. It is a protection of the reputation of the former accused. This is said to be necessary if the right guaranteed by article 6(2) is not to become theoretical and illusory (para 94). In summary: the presumption of innocence means that where there has been a criminal charge and criminal proceedings have ended in an acquittal, the person who was the subject of the criminal proceedings is innocent in the eyes of the law and must be treated in a manner consistent with that innocence. To this extent, therefore, the presumption of innocence will remain after the conclusion of criminal proceedings in order to ensure that, as regards any charge which was not proven, the innocence of the person in question is respected. (para 103) (c) Article 6(2), in its second aspect, applies and thus governs subsequent proceedings when there is a link between them and the previously concluded criminal proceedings. That link is likely to exist when the subsequent proceedings require examination of the prior criminal proceedings. This in turn is likely to be the case if any of four situations applies: (i) the court is obliged to analyse the criminal judgment; (ii) it has to engage in a review or evaluation of the evidence in the criminal file; (iii) it has to assess the applicants participation in some or all of the events leading to the criminal charge; or (iv) it has to comment on the subsisting indications of the applicants possible guilt (para 104). (d) Where the second aspect of article 6(2) thus applies, there is no single test for whether it has been infringed in the subsequent proceedings (para 125). But the language used by the decision maker will be of critical importance in assessing the compatibility of the decision and its reasoning with article 6(2) (para 126). Issues common to different legal questions The central reality which has to be addressed by any legal test for the scope of article 6(2) is that the same factual issues which have to be decided in a criminal trial or investigation in order to reach a verdict of guilty or not guilty, or a decision as to prosecution, may also have to be decided for other legal purposes. Those other legal purposes may well involve the person who was the accused in the criminal trial or investigation. The other legal purposes may be sequential to the criminal trial or investigation (for example an application for costs) or they may be separately constituted (for example professional disciplinary proceedings against the accused or child care proceedings concerning his children). Some legal systems may adjudicate upon those other legal purposes in combined criminal and civil proceedings, by permitting the complainant in the criminal trial also to make a claim for compensation as a civil party; other systems may adjudicate upon them separately. It is an axiomatic feature of some legal systems that the law recognises that the enhanced standard of proof required to justify conviction of a criminal offence and punishment by the state does not apply except to the verdict of guilty or not guilty. Elsewhere, the standard of proof is lower, often on the balance of probabilities. There is a well understood principled basis for this difference. In criminal proceedings the chief object is the punishment of the guilty. Where the state seeks against an individual a conviction and punishment the individual is entitled to the benefit of a reasonable doubt: thus acquittal may well be in dubio pro reo, rather than involve a positive finding that the act alleged was not performed. That this should be so is a proper reflection of the gravity of a criminal conviction. Where, on the other hand, the issue arises between citizens of equal standing before the law, the object is not punishment but compensation or vindication and it unfairly constrains the rights of the claimant if he can succeed only if all reasonable doubt is eliminated. Likewise, the object of professional disciplinary proceedings differs from that of criminal proceedings; where the objective is the protection of the public from unsuitable practitioners it is legitimate and principled to give that protection where it is demonstrated to be more likely than not that it ought to be provided. A fortiori, where the object of proceedings is the protection of the vulnerable, typically but not only children, the criterion for decision is the best interests of the vulnerable and to limit protective orders to cases where maltreatment has been proved beyond reasonable doubt would be inconsistent with that ruling principle. The three legal systems operating in the United Kingdom all depend upon this marked and principled difference between proof beyond reasonable doubt as a minimum for conviction and punishment and proof on the balance of probabilities in most other areas of adjudication. So do some other European systems, for example Norway: see Reeves v Norway (Application No 4248/02), 8 July 2004 and Orr v Norway (Application No 31283/04), 1 December 2008. The distinction between the two standards of proof may not be as clearly acknowledged in some other European systems (see for example the discussion by Kaplow (2012) 121 Yale Law Journal 738) but it is of course well understood and explained by the Strasbourg court in, for example, Orr v Norway at para 26. Once the difference in standard of proof is recognised, it is plain that those proceedings to which the civil standard apply simply cannot be governed also by the criminal standard, nor thus by the verdict of the criminal court, even if the same factual issues arise, and even if the evidence is the same. Discussions about the scope of article 6(2) must necessarily accommodate this fact. The Strasbourg jurisprudence in more detail The summary of the Strasbourg jurisprudence helpfully set out in Allen v United Kingdom (see para 99 above) might suggest an established and consistent two stage approach. First, that the concept of link is the test for the applicability of article 6(2) to proceedings. Second, that whilst there is no single test for whether, if applicable, that article is infringed, the critical question is whether the unconvicted accused is treated by a court or public body as if guilty and the language used will generally be of critical importance. The history shows that this is not quite how the cases have proceeded. It demonstrates that the court has grappled frequently with the inevitable tension between the desire to protect an unconvicted accused from having his acquittal undermined and the reality that the outcome of the criminal trial cannot govern all adjudication upon the same factual issues. The concept of link was not articulated in the early cases, and certainly not in the detailed terms now enunciated in Allen. That is perhaps because the early cases concerned claims for costs and/or compensation for detention on remand in systems such as Germany and Austria where those claims fell to be determined by the criminal courts, indeed sometimes by the same constitution which returned a verdict of guilty or not guilty. Minelli v Switzerland (1983) (Application No 8660/79) is an example, where the criminal court, in acquitting the accused, on the grounds of expiry of the relevant limitation period, also in the same judgment apportioned costs as between the private prosecutor and the accused. It took the view that both were partially at fault. As to the accused, it expressed the view that although he had a limited justified complaint against the prosecutor, the terms in which he had expressed it would have left him in all probability guilty of the criminal libel alleged, but for the limitation period. It was enough for the Strasbourg court to say that at the time when these conclusions were expressed the accused was still charged with a criminal offence (para 32). The next stage was a trio of German cases, all decided on the same day in 1987: Ltz v Germany (1988) 10 EHRR 182, Nlkenbockhoff v Germany (1988) 10 EHRR 163 and Englert v Germany (1991) 13 EHRR 392. All were cases in which the criminal proceedings had been discontinued, in Ltz because a limitation period had expired, in Nlkenbockhoff because the accused had died whilst appeal against conviction was pending, and in Englert because the much convicted accused was not likely to receive a significant addition to a sentence he was already serving. In each case, the local court, exercising a discretion plainly given to it by domestic legal rules, had declined either in whole or in part to make orders for costs and/or compensation for detention on remand. In each case the court had ruled in making that decision either that the accused would almost certainly have been convicted but for the technical bar which led to discontinuance (Ltz and Nlkenbockhoff) or was clearly more likely to have been convicted and had brought suspicion on himself (Englert). As in Minelli, the Strasbourg court referred to the fact that the decision on discontinuance accompanied that on costs etc, which it described as a consequence and necessary concomitant of the former (eg Ltz para 56). It then held as to infringement that such costs or compensation issues might raise an issue under article 6(2) if supportive reasoning, which cannot be dissociated from the operative provisions, amounts in substance to a determination of the accuseds guilt: Ltz para 60, repeated in the other cases. In all these cases, nevertheless, the court held that the language used had not infringed article 6(2) because it amounted to no more than voicing outstanding suspicion that the accused had committed the offences, rather than amounting to a finding of guilt (Ltz para 62, echoed in the other cases). That would appear to have been a plain recognition of the fact that to say of an accused that he might have committed the offence, or even that he probably did, is not to undermine his acquittal, and does not amount to attributing guilt to him. That is even more clearly the case in systems such as the English where an acquittal means no more than that guilt has not been proved to the high criminal standard, may well leave open the possibility that the accused might have committed the act, but establishes once and for all that he is unconvicted and cannot be punished. The origins of the concept of link, as adumbrated in due course many years later in Allen, may be the two cases of Sekanina v Austria (1993) 17 EHRR 221 and Rushiti v Austria (2001) 33 EHRR 56. Both concerned applications by accused who had been acquitted at trial for compensation for detention on remand. The domestic law provided that compensation was payable if the accused was acquitted and the suspicion that he committed the offence is dispelled. The local courts had held that despite acquittal, suspicion had not been dispelled; there had been a strong case, but the evidence had not been enough to convict. The Strasbourg court held both that article 6(2) applied and that it had been infringed. It held that although the court determining the compensation issue had done so some months after the acquittal, nevertheless Austrian legislation and practice link the two questions to such a degree that the decision on the latter issue can be regarded as a consequence, and to some extent the concomitant of the decision on the former. (Sekanina para 22, repeated in Rushiti). Although, as has been seen, the word concomitant had also appeared in the three German cases, there is nowhere any analysis of why it is appropriate. It may well be that the decision upon those issues could properly be described as sequential to the verdict, in the sense that a verdict of acquittal was a sine qua non of it, but it does not follow that it was a concomitant or had to run with the verdict; on the contrary the fact that the legal test was different surely meant that it did not run with the verdict. To say that article 6(2) made it run with the verdict would be to assume what was sought to be shown. Sekanina and Rushiti also broke new ground on the question of infringement. At paras 27 and 30 of Sekanina the court distinguished the three German cases, where the language used had been rather more forthright than in the instant case; it had spoken of it being nearly certain that the accused would have been convicted, rather than of suspicion not having been dispelled. The court held that the approach of the German cases to what had there been regarded as a recording of suspicion only applied to discontinuance cases and not to acquittals. At para 30 it said this: The voicing of suspicions regarding an accuseds innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However it is no longer admissible to rely on such suspicions once an acquittal has become final. It is not immediately obvious why this should be so. There no doubt is a difference between discontinuance and acquittal, especially in systems (such as the English) where the first may sometimes be no bar to resumption of prosecution whereas the second virtually always is. But if the governing principle is the presumption of innocence in article 6(2) there seems no reason why that presumption should apply any the less to a person against whom a prosecution has been discontinued than to one who has been acquitted after trial. Both are equally entitled to claim that they cannot be convicted until proved guilty according to law. The reasoning in Sekanina and Rushiti is thus perhaps rather more pragmatic than dependent on the principle of the presumption of innocence. At all events, it is completely unexplained, either in these cases or later, and accordingly its frequent repetition since adds nothing to it. Since then the link proposition has indeed been oft repeated, generally in identical language, up to and including in Allen. But at no stage has the court gone back to principle to examine what the true scope of article 6(2) is, given the differing legal contexts in which the same facts may be adjudicated upon according to different tests and subject to different standards of proof. Nor are the cases consistent. In Moullet v France (Application No 27521/04), 13 September 2007, the court held that article 6(2) did not apply to disciplinary proceedings taken against a public official for bribery, although he had been acquitted (on limitation grounds) of that offence by the criminal court. It also held that in any event there was no breach, although the act of bribery in question in each set of proceedings was identical and his dismissal was explicitly grounded upon it. But in Vanjak v Croatia (Application No 29889/04), 13 January 2010 and iki v Croatia (Application No 9143/08), 15 July 2010 disciplinary proceedings against policemen were held to be linked to criminal prosecutions which had been abandoned, so that article 6(2) did apply; there is no sign that Moullet was referred to. The test for applicability appears, if anything, to have widened, since as the court recorded in Allen at para 102, these two cases of Vanjak and iki contain the opinion that following discontinuation of criminal proceedings (as well as following acquittal) the presumption of innocence requires that the lack of a persons criminal conviction be preserved in any other proceedings of whatever nature. These very wide words are not further reasoned, nor is the apparent departure from the German and Austrian cases explained, and in neither case was the statement necessary to the decision since the applicant failed in both cases on the grounds that the constituent elements of the disciplinary or employment complaints differed from the legal ingredients of the criminal charges which had been discontinued. There is no doubt that there are relatively recent decisions in the Strasbourg court which, if their approach to article 6(2) were applied to the present case, would result in a finding that section 133(1ZA) is incompatible with that provision. An example is Capeau v Belgium (2008) 46 EHRR 25. The accused had been investigated for suspected arson but discharged by the court on the grounds that there was insufficient evidence to commit him for trial. He claimed compensation for pre trial detention on remand. Under the local law, there was a right to such compensation either if the accused was exculpated by the criminal court (which he had not been) or if he established his innocence. The local law illustrates the variation across Europe of entitlement to compensation for pre trial detention on remand. The Belgian court refused the application for compensation on the grounds that the accused had not established his innocence. The Strasbourg court held that to refuse compensation could not by itself amount to a breach of article 6(2) but that the requirement that the accused prove his innocence did so. It concluded that this provision allowed doubt to attach itself to the correctness of the courts decision. But that last statement is surely not accurate. To say that someone has not proved himself eligible within the rules for compensation for detention is not, in any meaningful sense, the same as doubting the correctness of a decision that there was insufficient evidence to commit him for trial. Like some other general statements appearing in the article 6(2) cases, it demonstrates a reluctance to address the meaning of acquittal. It may be that in some legal systems an acquittal, and a fortiori a decision not to commit for trial, is a finding of positive exoneration, but in most it is not. It is especially unlikely to be so where the verdict is that of a jury which returns a binary verdict but does not deliver a judgment making individual findings of fact. In Mller v Germany (Application No 54963/08), 27 March 2014 the claimant was a life sentence prisoner after shooting his wife. He had sought early conditional release. He had recently been charged with assaulting and injuring another woman with an electric truncheon whilst on home leave, but the local criminal court had dismissed the charge without giving reasons. The execution of sentence court, fulfilling a role similar to that of the Parole Board in England, refused his application for conditional release on the grounds that he remained a serious risk to the public and particularly to women. He had become obsessed both with his wife and with the recently injured woman, and injuries had followed disappointment. The execution of sentence court had additional psychiatric evidence, but it specifically addressed the recent allegation of assault against the second woman, and explicitly disagreed with the criminal court, which it held had not adequately examined the evidence against the accused. It said in terms that the criminal offence which the applicant had committed towards the recent complainant woman, demonstrated the risk of violence. The Strasbourg court faithfully applied the general statement made in Allen and found in consequence that there was a sufficient link between the acquittal and the decision on conditional release. But it held that there was no breach of article 6(2): the execution of sentence court had not, it held, stated that the accused was guilty of a fresh offence. Rather it had based its conclusion on the prognosis of risk for the future. It must be said that this obviously correct outcome was reached in the teeth of the words used by the execution of sentence court. Certainly it had based its conclusion, correctly, on the prognosis of risk for the future, but it had arrived at that prognosis in large part because it expressed itself satisfied that the accused had committed the recent offence of which he had been acquitted. A set of principles which requires such specialised reasoning in order to justify an obviously correct conclusion that the assessment of risk involved no breach of article 6(2) puts in issue the basis of the principles. This case is a remarkable illustration of the consequences of the wide propositions which have developed in the courts jurisprudence as to article 6(2). It might be thought axiomatic that the assessment of the future risk posed by a convicted murderer whose conditional release is under consideration ought to be informed by all relevant information, and that to exclude material because it reveals the possibility of a criminal offence simply because there is not sufficient evidence to prove it beyond reasonable doubt is to court danger to the public. The much more logical basis for the outcome of the case is surely that a presumption of innocence has no place in such risk assessment. Article 6(2) has no application, for conviction and punishment are not in question. This is so even if on a different legal test and applying a different standard of proof, a conclusion is reached which includes a finding that acts amounting to an offence are relevant to that assessment. The accused in this case was not treated by the legal system as convicted of the alleged recent offence, nor was he punished for it. He was simply assessed as to the risk which he presented. The legal scenario which perhaps most plainly exposes the debate about the scope of article 6(2) is the civil claim for compensation made by a person who is or was a complainant in a criminal trial against the person who is or was the accused. It will of course sometimes be true that the legal constituents of the tort alleged are less exacting than those of the criminal offence (compare the disciplinary cases of Vanjak and iki mentioned in para 109 above). In other cases the issue in the criminal trial may be different because a defence is raised, such as mental disorder, which does not apply to a tort claim. But often the issues will be identical, and frequently the evidence relied upon will also be the same. A classic example is the claim by someone who says that she was raped by the accused. His case is either that the intercourse alleged did not take place or, more often, that it was consensual and/or that consent was to be implied from the complainants behaviour. He has been acquitted by the jury so it is known that the criminal standard of proof has not been achieved, but in the civil proceedings the standard is the balance of probabilities. Such cases are by no means unusual. Equally common, if not more so, are cases where a care order is sought by the Local Authority in relation to children (section 31 Children Act 1989). The test for such an order is that the child is at risk of significant harm attributable to inadequate parental care. There may be many different parental inadequacies relied upon, but a very common instance is the case which depends on an alleged risk of abuse, physical or sexual, by a parent or an associate of a parent, and where the risk is said to be proved by past abuse of this or another child. Such an alleged abuser may well also be prosecuted. If he is acquitted, on the criminal standard of proof, it is nevertheless incumbent on the family judge to investigate the allegation of past abuse in order to reach a conclusion about the level of future risk. All experienced care judges are familiar with such cases, and with the duty to find, one way or the other, on the balance of probabilities, whether the past abuse is made out despite acquittal in the criminal court. The treatment of such cases by the Strasbourg court cannot be described as consistent. OL v Finland (Application No 61110/00), 5 July 2005 is indeed a decision that article 6(2) did not apply to child care proceedings in which one of the strands of evidence advanced concerned an allegation against the father of sexual abuse, although the prosecutor had decided not to prosecute, taking the view that the evidence was insufficient. It is perfectly true that this decision contains the proposition that article 6(2) was not applicable and that there was no link between the two sets of proceedings because the care case was not a direct sequel to the criminal decision. But in that case, although the psychiatrists report had concluded that in all likelihood the father had abused his daughter, all that the care court had said was that it is unclear whether [the child] has been subjected to sexual abuse. This possibility cannot be excluded. It had then gone on to record other bases for making the care order, including the disturbed behaviour of the child and the mental illness of her mother which impeded her care. If the decision as to applicability meant that the Strasbourg court took a consistent line that article 6(2) had no application to claims for civil compensation, or to care proceedings, that would be one thing. But it is clear that it does not. In Ringvold v Norway (Application No 34964/97), 11 May 2003, the court held that article 6(2) was not applicable to the civil claim for compensation made by a victim alleging sexual abuse by an erstwhile accused who had been acquitted by the jury. It based that applicability decision in part on an absence of link (para 41) but held that this was because the outcome of the criminal proceedings was not decisive for the civil claim. This was to use link in an entirely different sense from the way in which it is explained in Allen at para 104. The court also based its applicability decision upon the language used in determining the civil claim (para 38). Yet it concluded that there was no applicability notwithstanding that the court had held that on the balance of probabilities it was clear that [the erstwhile accused] was the abuser (para 19). Then a year later in Reeves v Norway (Application No 4248/02), 8 July 2004, the accused had been tried in the criminal courts for arson and the insurers who had paid out after the fire had been joined as civil parties to claim compensation from her. The standard of proof differed between the two decisions required, just as it would in separate proceedings in England. She was convicted at trial but on appeal her conviction for arson was quashed, on the grounds that there was not the specific majority of appeal judges which was required by local law before it could be upheld. The award of damages to the insurers was however upheld, since enough of the judges agreed that arson had been proved against her on the balance of probabilities. The Strasbourg court held that there was no infringement of article 6(2). But this time it made the assumption that article 6(2) applied to the insurers claim. It also found that the judgment of one judge who acquitted the appellant of the crime but found that on the balance of probabilities there was a clear probability that the defendant is guilty of setting the fire as described in the indictment was at risk of infringing article 6(2) and could be saved from doing so only by treating the choice of words as an unfortunate slip rather than as an affirmation imputing criminal liability for arson. So this decision depended not on applicability, as in Ringvold, but on whether there was infringement. The decision appears to be a good example of the unsatisfactory manner in which the language used may be determinative of whether there is a breach of article 6(2), as propounded in Allen. Those decisions can conveniently be considered alongside Orr v Norway (Application No 31283/04), 15 May 2008, where the opposite result ensued. The accused was tried for rape of a work colleague. Her civil claim for compensation for the same rape was heard alongside the criminal trial. The jury acquitted of the crime. Next day the judges gave judgment for the complainant upon her civil claim. The applicable standards of proof differed, as they would in England, and the civil claim demanded a significantly less exacting standard, even if perhaps not a simple balance of probabilities. Giving judgment on the civil claim, the court held that on the relevant standard it was clearly probable that the accused had intercourse with the complainant, that it was without her consent, that he knew that it was, and that he had used sufficient force to overcome her lack of consent. The Strasbourg court did not treat a link between the criminal and civil proceedings as the test of whether article 6(2) applied or not; indeed it held that the fact that the two issues were tried together did not bring the civil part within the article. But it held that the language used did render article 6(2) applicable, and that it involved an infringement. At para 51 it held: 51. However, the court notes that, in its reasoning on compensation, the High Court majority based its finding that the applicant was liable to pay compensation to Ms C on a description of the facts giving details of such matters as the nature of the sexual contact, the applicants awareness of the absence of consent by Ms C, the degree of violence (vold) used by him to accomplish the act and his intent in this respect. In other words, it covered practically all those constitutive elements, objective as well as subjective, that would normally amount to the criminal offence of rape under article 192 of the Penal Code. It is true that, as stated in the case law quoted above, an acquittal from criminal liability does not bar a national court from finding, on the basis of a less strict burden of proof, civil liability to pay compensation in relation to the same facts. However, the court considers that, although the concept of violence may not have been exclusively criminal in nature, the use made of it by the High Court in the particular context did confer criminal law features on its reasoning overstepping the bonds of the civil forum (see Y, cited above, para 46). This is another good indication of the semantic examination which appears to be the basis of Strasbourgs decisions on the ambit of article 6(2). If, now, scenarios of this kind are tested against the Grand Chambers statements of principle in Allen at para 104 for which see para 99(c) above it would seem likely if not inevitable that article 6(2) would now be held to apply to such a civil claim for damages by a rape complainant, whether heard alongside the criminal trial or separately as it would be and is in any of the UK jurisdictions. The same would apply to care proceedings in which the issue was an allegation of abuse made against an acquitted accused. The judge trying such a civil claim, or such a care case, may well have to examine the evidence on the criminal file. He will certainly have to assess the accuseds participation in the events leading to the criminal charge. However, if article 6(2) really does apply to such a claim it is simply impossible for the judge in either kind of proceeding to give judgment after the accused has been acquitted. Semantic adjustment of his judgment is not an option. He has to make findings about the conflicting evidence on what occurred. He has to do so both for civil liability and to assess the level of damages. And the care judge must make findings of fact in order to justify his conclusion as to the risk of significant harm which the child faces. Neither can do other than make findings about whether the rape, or the abuse, took place. It matters not an ounce whether the judge calls it rape, or forced sexual intercourse, or abuse, and he cannot call it something which it is not. In a tort claim the tort about which he must make a finding is co terminous in most cases with the crime; even any plea of implied consent will correlate essentially with the criminal defence of reasonable belief in consent. In a care case, it is facts constituting criminal offences which justifies the making of the care order. If article 6(2) does indeed apply to such proceedings, complainants, or public care authorities, might well consider themselves better served by not making a complaint to the police. Such allegations are notoriously difficult for juries to decide, unless there is some independent evidence beyond the word of the only two people typically present. If article 6(2) applies, an acquittal, always a possibility, will bar a finding of rape in a subsequent civil case, and thus bar the claim for compensation, and similarly with a care decision. In the absence of a prosecution, article 6(2) would presumably become irrelevant. But the public interest is unequivocally in cases of this kind being properly investigated by the police, and, if the evidence offers a reasonable prospect of conviction, in their being brought to trial. The present case is not of course one of a civil claim for damages coming after a criminal prosecution. But consideration of such a case, together with the plain difficulties which have attended the Strasbourg courts conscientious efforts to extend the applicability of article 6(2), demonstrates that article cannot sensibly apply beyond the criminal trial and the investigation which precedes it. The objective of not undermining an acquittal which underlies the suggested gloss on article 6(2) see para 99(b) above can and should properly be maintained but it means that the acquitted accused must be recognised as unconvicted, immune from punishment by the state and from characterisation as a criminal, but not that he escapes all consequences of the ordinary application of his countrys rules as to evidence and the standard of proof outside criminal trials. Powerful pleas to that effect by Judge De Gaetano in both Ashendon and Jones v United Kingdom (2012) 54 EHRR 13 and Allen, and by Judge Power in Bok v The Netherlands (Application No 45482/06), 18 January 2011, properly reflect the correct analysis of article 6(2). This analysis of the scope of article 6(2) is, moreover, consistent with: (i) the wording of the article, which applies it to persons charged with a criminal offence; it is irrelevant that that expression has an autonomous meaning under the Convention since everyone agrees that the suggested second aspect of, or gloss upon, article 6(2) applies it to those who are not charged in any sense with a criminal offence; (ii) the marked and plainly deliberate difference made by the drafters of the Convention between article 6(1) (the determination of civil rights and obligations) on the one hand and articles 6(2) and (3) (rights of those charged with criminal offences); (iii) the co existence in article 14(2) ICCPR of a right in the same terms as article 6(2) of the ECHR with article 14(6) which gives a plainly more restricted right to compensation for certain kinds of miscarriage of justice; (iv) the similar co existence of article 6(2) with the provisions of article 3 Protocol 7, which mirrors article 14(6) ICCPR; (v) the fact that at the time article 6(2) was drafted alternative versions which would have applied it to everyone or would have provided that no one shall be held guilty were rejected in favour of the present formulation; (vi) the considered view of the UNHRC in WJH v The Netherlands (Communication 408/1990 [1992] UNHRC 25) that the presumption (at article 14(2) of the ICCPR) applies only to criminal proceedings and not to proceedings for compensation; the court in Allen referred to this conclusion but did not address it in its reasoning. Compensation for miscarriage of justice These same principles ought properly to govern instances where the erstwhile accused bears, under the local law, an onus of proof in proceedings which are separate from the criminal investigation and trial and in which he is at no risk of conviction or punishment. A simple example is the accused who, following acquittal which may well be in dubio pro reo brings an action for malicious prosecution against the police or other accuser. Of course it may be theoretically possible for a prosecution to be malicious even if the accused is guilty, but in most such cases it is an integral part of the claimants case that he was prosecuted when not guilty and that the defendant knew it. Such a claimant former accused necessarily bears the onus of proving his case, on the balance of probabilities, including his asserted innocence. No breach of article 6(2) is or could be involved, even if a link of the kind contemplated by Allen could be said to exist. Schemes for public compensation for those who are prosecuted but acquitted vary widely from legal system to legal system. Some systems provide for compensation for detention on remand; others, including the English, have no such regime. Where there is provision for compensation, the cases show that it is not unusual for there to be some qualification to universal availability. Sometimes the system gives the court a residual discretion to withhold compensation, as for example did the Dutch scheme considered in Baars v The Netherlands (2004) 39 EHRR 25. Others state the grounds on which it may be refused, as did the German scheme considered in Nlkenbockhoff. The Strasbourg court has been at pains to say in case after case that neither article 6(2) nor any other international rule gives an unqualified right to such compensation. The limited right which is recognised internationally is that stated, in more or less identical terms, in article 3 Protocol 7 to the ECHR, for those states which have acceded to it, and in article 14(6) of the International Covenant on Civil and Political Rights. This right is limited to those whose conviction is reversed or who is pardoned, and of those only where the reversal or pardon is on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice. So there is no right to compensation for those who are acquitted at trial. Nor does the right extend to the common case of a conviction quashed for error of law or of emphasis in the summing up, or for error of law, for example as to the admissibility of evidence, during the trial. Since the right to compensation is thus restricted, the test is plainly entirely different from the test of guilt or innocence at trial, and from the test of safety of the conviction on appeal. It follows, firstly, that proceedings seeking such compensation, although they are predicated upon there having been a conviction which has been quashed, so that a criminal prosecution with that outcome is a sine qua non for an award, are not part of the criminal process but rather are in aid of a distinct and limited civil right. For this reason, even if there existed a workable concept of link as a test for application of article 6(2), such a link would not exist between the quashing (reversal) of the conviction and the claim for compensation under section 133. The latter can only be said to be based on the former in the sense that the first condition of eligibility for compensation is that the conviction has been quashed. But to say that compensation is based on the quashing is to ignore the several other conditions of eligibility which must also be satisfied. Secondly it follows that it is for the claimant to show that he is within the statutory test; to that extent at least it must be common ground that he bears the onus of proof. Thirdly, it should be clear that the presumption of innocence has simply no place in such proceedings, for the simple reason that conviction and punishment are not in issue. It is easy to understand why section 133(1ZA) can at first sight be seen as a reversal of the criminal onus of proof, and thus as inconsistent with article 6(2). In reality, however, it is no such thing. By the time section 133(1ZA) comes into consideration the erstwhile accused is by definition no longer facing any criminal charge in any sense, whether the autonomous one applied in the Strasbourg jurisprudence or any other. His conviction has been quashed. He is in no danger of conviction or punishment. Nor is he in any danger of any official body treating him as if he were still convicted or liable to punishment. All that is happening is that he is seeking to bring himself within the (legitimately) restricted eligibility requirements for compensation. That does not put his guilt or innocence in issue; he remains unconvicted and unpunished whether eligible or not, and no one will be entitled to say, if he cannot prove on the balance of probabilities that he is eligible, that he is guilty; at most all anyone could say is that his exoneration has not conclusively been proved. The terms of article 14(6) of the ICCPR, which section 133 seeks to implement in English law, make plain that eligibility depends on it being conclusively shown that a miscarriage of justice has occurred. A decision that this has not conclusively been shown is not at all the same as a finding of guilt, nor does it in any sense undermine the quashing of the conviction. As the facts of Allen show, a conviction may well be quashed on the grounds that it is not safe, without any implicit or explicit finding as to guilt or innocence: see Allen at paras 127, 131 132 and 134 135. An English lawyer might baulk at the assertion in para 127 that the appellant in that case had not been acquitted on the merits since he or she would say that a decision that the conviction is unsafe is indeed a judgment on the merits, but the sense of the courts judgment is clear: those adjudicating on the question of compensation did not comment on whether, on the basis of the evidence as it stood at the appeal, the applicant should be, or would likely be, acquitted or convicted. Equally, they did not comment on whether the evidence was indicative of the applicants guilt or innocence. (para 134). This will be equally true whenever a claimant, seeking compensation after the enactment by Parliament of section 133(1ZA) fails the eligibility test which it creates. Taking account of the Strasbourg jurisprudence This courts obligation under section 2(1)(a) of the Human Rights Act 1998 is to take into account any judgment, decision, declaration or advisory opinion of the Strasbourg court. Its ultimate responsibility is to arrive at its own decision on those Convention rights which are given domestic legal effect by being incorporated into that statute. The history of the English courts rightly demonstrates a desire if at all possible to maintain consistency of approach with the Strasbourg court. That desire is reflected in the general proposition that an English court should in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, para 20. I respectfully share that desire and the present judgment sets out to take account of the Strasbourg jurisprudence in some detail. In accordance with its usual practice, the Strasbourg court has often repeated, usually in identical language, the key propositions which are once again propounded in Allen and which are summarised at para 99 above. To the extent that they are oft repeated, they are no doubt constant. To say that they are clear is, on inspection, much more difficult. As appears from the brief survey above they create considerable difficulties in application, frequently leading either to inconsistent outcomes or to over sophisticated semantic analysis in an effort to achieve the right result. It seems to me incumbent on this court to stand back and re assess the a priori assumption that has been made that the presumption of innocence, and the critical requirement to respect acquittals or reversals of convictions, extends to preventing any comment by any court in any other proceedings of whatever nature (Vanjak) which assesses conduct which was in question also in the criminal proceedings. Proper respect for acquittal does not require this. It requires that the erstwhile accused is treated as acquitted, not that his conduct cannot fall for examination in other proceedings where the test is quite different from the criminal standard of proof. Outcome For these reasons, which substantially although not exactly overlap with those of Lords Mance and Wilson, I would dismiss these appeals. The correct analysis is that article 6(2) does not apply to section 133 claims for compensation. It certainly requires that in such claims, as in any other proceedings, the reversal of the conviction is treated as unquestioned. But it does not inject into the quite different section 133 test a presumption that the erstwhile accused did not commit the crime; it holds that he has not been proved to the strict criminal standard to be guilty. Nor therefore does article 6(2) apply so as to strike down the provision in section 133(1ZA) which makes clear that a claimant for compensation must accept the onus of bringing himself within the eligibility criteria laid down by Parliament. If, contrary to that clear view, it be held that this court is duty bound by the Strasbourg jurisprudence to hold that article 6(2) does apply to a section 133 claim, I would conclude with the Court of Appeal and Divisional Court below that to require a claimant to prove his case of eligibility is not a breach of it. That is because what article 6(2) (if it applies) preserves is the presumption of innocence in the sense of being a person who is acquitted, unconvicted and unpunishable. Innocence, in the context of the criminal law and of article 6(2), does not mean exonerated on the facts; it means unconvicted, not proved according to the governing standard of proof, accordingly not liable to punishment, and entitled to be treated as such. The new section 133(1ZA) does not require the claimant to prove that he has this status. This status (which appears to be what the courts below meant by innocence in a general sense) is already a given, once the conviction has been quashed by the Court of Appeal (Criminal Division). What the new section requires is that the claimant prove something different and additional, viz the condition of eligibility for compensation under the scheme established in England and Wales. I agree that the mere fact that the section requires exoneration as a result of a new or newly discovered fact would not prevent it from calling for proof of innocence, or from conflicting with the presumption of innocence, if innocence in the context of the presumption meant exonerated on the facts. But for the reasons explained, it does not and cannot. The difference is clearly stated by Sir Thomas Bingham MR in R v Secretary of State for the Home Department, Ex p Bateman (1994) 7 Admin LR 175, cited by Lord Dyson MR in the Court of Appeal below at para 49. This critical distinction between innocence as used in article 6(2) and exoneration on the facts might in one sense be said to be a semantic one, but if so the Strasbourg court has emphasised time and again that language (ie semantics) is for it the critical test of breach of article 6(2). In reality it is not a mere semantic distinction but reflects a fundamental principle of the criminal law, namely the strict enhanced standard of proof. It is not possible for the law simultaneously to erect a differential and enhanced standard of proof for criminal prosecutions, and then effectively to apply that standard not just to criminal trials but to other (indeed maybe to all) other adjudications upon the facts which led to the prosecution. Neither the suggested test of link nor the suggested test of language will work to determine the scope of article 6(2) in the face of this difficulty. Postscript: judgments in the Court of Appeal (Criminal Division) The form of judgments in the Court of Appeal when dealing with appeals against conviction is not the issue in the present case. It is, however, important that that court is not constrained in giving its reasons either for dismissing an appeal or for allowing it. I do not disagree with what Lord Mance says at paras 25 34. In summary: the test on an appeal against conviction is whether the conviction is (i) safe, not whether the appellant is demonstrated not to have committed the offence; (ii) for this reason, it is not appropriate for the court to regard itself as having a discretionary power to make a legally binding declaration of innocence, nor for argument before it to proceed, as it seems to have done in Hallam on the basis that it ought to consider whether to add such a declaration to its judgment; (iii) but as Lord Judge observed in Adams at para 251 (cited by Lord Mance at para 30), there can be few stronger reasons for concluding that a conviction is unsafe than that fresh evidence demonstrates plainly that the appellant did not commit the offence; such cases are not common but they may occur, as for example where new DNA evidence is agreed to exonerate the appellant; (iv) if such cases do occur, the court ought not to be constrained in giving its reasons for its conclusion in terms which make clear what the new evidence shows; this will on occasions be common ground between prosecution and defence; it would be unfair to the appellant, if this conclusion is clear, not to state it; (v) counsel for an appellant may sometimes submit to the court that not only is the conviction shown to be unsafe, but that indeed fresh evidence shows plainly that the appellant did not commit the offence; if that submission is made, it is for the court to decide what are the true reasons for its conclusion on the safety of the conviction and how to express them; argument geared to a contemplated later application for compensation is not, however, appropriate since that issue is not before the court. LORD LLOYD JONES: I agree with the judgment of Lord Mance and therefore limit myself to some brief observations on the position which has been reached in the Strasbourg jurisprudence in relation to the scope of application of article 6(2) ECHR after acquittal or discontinuance of criminal proceedings. I agree with Lord Mances analysis of the case law of the ECtHR. For the reasons he gives, I too would decline to follow that case law if and to the extent that it may have gone beyond precluding reasoning that suggests that a defendant in criminal proceedings leading to an acquittal or discontinuance should have been convicted of the criminal offence with which he was charged. In any event, I consider that the incompatibility of section 133(1ZA) with article 6(2) is not made out. The objection to the section as amended is, as I understand it, that it requires the Secretary of State to assess whether persons whose convictions are quashed because of fresh evidence have established by that evidence that they are innocent. The Strasbourg case law makes clear that there is nothing objectionable in resisting or refusing compensation on the ground that the case falls within category (3) ie where fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant. See ALF v United Kingdom (Application No 5908/12), 12 November 2013. That is also apparent from Allen, a category (3) case where it was not suggested that the case fell into a higher category. It must also follow from Allen that there is nothing objectionable in requiring a claimant seeking compensation to bring himself or herself within category (2) ie where the fresh evidence so undermines the evidence against the defendant that no conviction could possibly have been based upon it. This is the whole thrust of the decision in Allen. By the same token, there can be nothing objectionable in the state contending against such an outcome in the circumstances of a particular case. Yet it seems that the line is drawn in the Strasbourg case law at requiring a claimant to demonstrate his or her innocence ie to bring himself or herself within category (1), where the fresh evidence shows clearly that he or she is innocent of the crime. This is apparent from the observation in Allen (at para 133) that what is important above all is that the judgments of the High Court and the Court of Appeal did not require the applicant to satisfy Lord Steyns test [in Mullen] of demonstrating her innocence. The difficulty with this approach, as Lord Mance points out, is that category (2) subsumes category (1). It is, no doubt, possible to draw a distinction between category (1) and category (2) but I am, at present, unable to see why this should be significant in the present context. I can see no sensible basis on which it is held objectionable to require evidence which establishes innocence but not objectionable to require evidence which establishes that the claimant could not reasonably have been convicted. Moreover and to this I attach particular importance this specific issue has not yet been directly addressed or decided by the ECtHR. Having regard to the present unsettled state of ECtHR case law, therefore, I am not persuaded that section 133(1ZA) is incompatible with article 6(2). It seems to me that these are matters which require consideration by the ECtHR and which that court will be anxious to address. For these reasons I would refuse declarations of incompatibility and would dismiss the appeals. LORD REED: (dissenting) I am grateful to Lord Mance for setting out the background to these appeals and the issues arising. Issue 1: Is article 6(2) of the Convention applicable to decisions under section 133 of the Criminal Justice Act 1988? The terms of article 6(2) of the European Convention on Human Rights are set out in para 35 above. Read literally, the words charged with a criminal offence might suggest that the guarantee only applies in the context of pending criminal proceedings. But it has never been interpreted so narrowly. In the first place, the European court long ago adopted the position that the character of a procedure under domestic law cannot be decisive of the question whether article 6 is applicable, since the guarantees contained in that provision could otherwise be avoided by the classification of proceedings. The case law on article 6(1) has therefore made it clear that the concept of a criminal charge has an autonomous meaning, with the consequence that article 6(2) is applicable to proceedings which may not be classified as criminal under domestic law, provided that they satisfy the criteria developed in cases such as Engel v The Netherlands (No 1) (1976) 1 EHRR 647 and ztrk v Germany (1984) 6 EHRR 409. Secondly, it has also long been clear from the case law of the European court that the scope of article 6(2) is not limited to pending criminal proceedings as so defined, but extends in some circumstances to decisions taken by the state after a prosecution has been discontinued or after an acquittal. R (Adams) v Secretary of State for Justice The case law of the European court concerning the scope of article 6(2), prior to the judgment of the Grand Chamber in Allen v United Kingdom (2013) 63 EHRR 10, was considered by this court in the case of R (Adams) v Secretary of State for Justice (JUSTICE intervening) [2011] UKSC 18; [2012] 1 AC 48. The implication of the courts decision in that case is that article 6(2) has no application to section 133 of the Criminal Justice Act 1988 (the 1988 Act). The first question which arises in this appeal is whether this court should follow that decision, as the Secretary of State submitted, or should depart from it, as the appellants invited us to do, in the light of the decision in Allen v United Kingdom that article 6(2) applies to decisions taken under section 133. The judgments in Adams did not differentiate clearly between the question whether article 6(2) is applicable and the question whether it has been infringed. As a consequence, it is difficult to be certain which of the arguments accepted by the court were thought to bear on the former question, and which were concerned with the latter. The fullest analysis was carried out by Lord Hope, who based his conclusion at para 111 that article 6(2) had no impact on section 133 on three arguments, which were also advanced on behalf of the Secretary of State in the present proceedings. They can be discussed under the headings (a) lex specialis, (b) separate proceedings, and (c) not undermining the acquittal. It is necessary to consider each of these in turn. (a) Lex specialis Lord Hope considered that article 6(2) and article 3 of Protocol No 7 (A3P7) stood in the relation of lex generalis and lex specialis respectively, so that the maxim lex specialis derogat legi generali applied: that is to say, that where a legal issue falls within the ambit of a provision framed in general terms, but is also specifically addressed by another provision, the specific provision overrides the more general one. This was, with respect, a questionable conclusion, since article 6(2) and A3P7 are concerned with different issues: article 6(2) is concerned with the presumption of innocence, whereas A3P7 is concerned with the payment of compensation to persons whose convictions have been quashed, and is silent about the presumption of innocence. Since they concern different issues, they are capable of applying cumulatively, rather than it being necessary to apply one to the exclusion of the other. Lord Hope found support for the view that the maxim applied in the speech of Lord Steyn in R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18; [2005] 1 AC 1. Referring to article 14(6) of the ICCPR, set out in para 16 above, and to article 14(2) (Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law), Lord Steyn cited the report of the UN Human Rights Committee in WJH v The Netherlands (Communication No 408/1990) [1992] UNHRC 25, where the Committee said at para 6.2: With respect to the authors allegation of a violation of the principle of presumption of innocence enshrined in article 14(2), of the Covenant, the Committee observes that this provision applies only to criminal proceedings and not to proceedings for compensation; it accordingly finds that this provision does not apply to the facts as submitted. Lord Steyn took from this that article 14(6) is a lex specialis [which] creates an independent fundamental right governed by its own express limits (para 38). Whatever the merits of that view may be in relation to the ICCPR, it might be doubted whether it is of assistance in deciding the scope of article 6(2) of the Convention, since it depends on the Human Rights Committees statement that article 14(2) of the ICCPR applies only to criminal proceedings and not to proceedings for compensation. Whether that is true of article 6(2) is the very question in issue. In relation to that question, although Lord Steyn cited a number of European cases, such as Sekanina v Austria (1993) 17 EHRR 221, which demonstrated that article 6(2) could apply to proceedings for compensation, he concluded at para 44 that the European jurisprudence cited throws no light on the question, and that article 14(6) of the ICCPR (and therefore section 133 of the 1988 Act), are in the category of lex specialis and the general provision for a presumption of innocence does not have any impact on it. This analysis might be contrasted with that of Lord Bingham, who pointed out at para 10 that the fact that article 6(2) was not confined to criminal proceedings, as illustrated by Sekanina, indicated that the European court took a different approach from that taken by the Human Rights Committee in relation to article 14(2) of the ICCPR. In support of his conclusion, Lord Steyn also referred to the Explanatory Report to Protocol No 7, prepared by the Steering Committee for Human Rights appointed by the Council of Europe. In relation to A3P7, the report stated at para 25: The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent. Lord Bingham, on the other hand, observed at para 9(4) and (5) that the Explanatory Report was prefaced with a statement that it did not constitute an instrument providing an authoritative interpretation of the text of the Protocol; that para 25 did not appear to be consistent with para 23, which suggested that a miscarriage of justice occurred where there was some serious failure in the judicial process involving grave prejudice to the convicted person; that the reference to innocent in para 25 was to be contrasted with the absence of any such word in A3P7; that the expressions used in the French and Spanish versions of A3P7 were not obviously apt to denote proof of innocence; and that a standard textbook on the Convention considered the interpretation of A3P7 put forward in para 25 to be too strict. The question whether section 133 of the 1988 Act fell within the ambit of article 6(2) of the Convention did not, however, have to be decided in Mullen. Lord Hope returned to it in Adams. He accepted Lord Binghams reasons for doubting whether Lord Steyn was right to find support for his view in the French text and in para 25 of the Explanatory Report, and therefore took a fresh look at the issue. His conclusion that section 133 fell outside the ambit of article 6(2) was based, as explained above, on the view that article 6(2) was excluded from applying within the scope of A3P7, since the latter was lex specialis relative to the lex generalis contained in the former. In forming that view, he relied on a passage in the courts judgment in Sekanina, in the section dealing not with applicability but with compliance. After explaining that article 6(2) does not guarantee a person charged with a criminal offence a right to compensation for detention on remand, the European court added at para 25: In addition, despite certain similarities, the situation in the present case is not comparable to that governed by article 3 of Protocol No 7, which applies solely to a person who has suffered punishment as a result of a conviction stemming from a miscarriage of justice. As explained above, A3P7 requires the payment of compensation to a person who has suffered punishment as a result of a conviction which is subsequently reversed on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice. As the court stated in para 25 of Sekanina, the situation of the applicant in that case was not comparable to that governed by A3P7: he was seeking compensation for having been remanded in custody pending a trial at which he was acquitted, whereas A3P7 applies to persons who have suffered punishment as a result of a conviction. That is all that the court said in the relevant passage. Lord Hope, however, read more into it, stating at para 111: the fact that the court was careful to emphasise in Sekanina v Austria, para 25 that the situation in that case was not comparable to that governed by article 3 of the Seventh Protocol is an important pointer to the conclusion that, as Lord Steyn put it in Mullen, para 44, article 14(6) and section 133 of the 1988 Act are in the category of lex specialis and that the general provision for a presumption of innocence does not have any impact on them. That conclusion (with which Lord Clarke disagreed: para 230) did not follow from Sekanina or from any other judgment of the European court, and the subsequent judgment of that court in Allen v United Kingdom has in my opinion demonstrated that it is incorrect. (b) Separate proceedings The second strand in Lord Hopes reasoning concerned the relationship between the determination of a claim under section 133 of the 1988 Act and the antecedent criminal proceedings. He stated at para 109 that the Strasbourg cases show that its jurisprudence is designed to protect the criminal acquittal in proceedings that are closely linked to the criminal process itself, and went on at para 111 to distinguish comments on the underlying facts of the case in subsequent proceedings of a different kind, such as a civil claim for damages. He illustrated the point by reference to Sekanina, noting that in its judgment the court said at para 22 that the Austrian legislation and practice linked the criminal responsibility of the accused and the right to compensation to such a degree that the decision on the latter issue can be regarded as a consequence and, to some extent, the concomitant, of the decision on the former. Lord Hope concluded that the system laid down by article 14(6) of the ICCPR, and implemented by section 133, did not cross the forbidden boundary, stating at para 111: The procedure laid down in section 133 provides for a decision to be taken by the executive on the question of entitlement to compensation which is entirely separate from the proceedings in the criminal courts. This reasoning is also questionable. Although procedurally separate, compensation proceedings under section 133 are nevertheless based on the quashing of a conviction by the criminal courts, and are directed towards obtaining compensation for harm inflicted by the state as a direct consequence of that conviction. But for the outcome of the criminal proceedings, there could be no compensation proceedings. In the language used by the European court, the outcome of the criminal proceedings is therefore decisive for the compensation proceedings, since it is a prerequisite of a compensation claim that the conviction has been quashed. The time limit for bringing a claim is also directly linked to the conclusion of the criminal proceedings: a factor which was regarded as relevant in a series of cases concerned with compensation proceedings under Norwegian law, such as Hammern v Norway (Application No 30287/96) (unreported) given 11 February 2003, para 43. Furthermore, the decision whether to award compensation, even before the amendment of section 133, depended on an assessment of the circumstances in which the conviction was quashed, based on an examination and evaluation of the judgment of the Court of Appeal. In these circumstances, even prior to Allen v United Kingdom, the Strasbourg case law clearly indicated that the compensation proceedings were likely to be regarded as a sequel or, as it was put in Sekanina, a consequence and concomitant, of the criminal proceedings, and therefore within the ambit of article 6(2). (c) Not undermining the acquittal Finally, Lord Hope considered that a refusal of compensation under section 133, prior to its amendment, did not have the effect of undermining the acquittal in the criminal proceedings. That conclusion is consistent with that of the European court in Allen v United Kingdom and later cases. However, it goes to the question whether article 6(2) has been violated, not to the question whether it is applicable. Lord Phillips and Lord Kerr agreed with Lord Hope on this topic. Lord Judge CJ, with whom Lord Brown, Lord Rodger and Lord Walker agreed on this topic, also treated A3P7 as a lex specialis which ousted the application of article 6(2) to proceedings under section 133. In the present case, the courts below were therefore correct to take the view that they were bound by Adams to hold that article 6(2) was inapplicable. (2) Serious Organised Crime Agency v Gale Before turning to the more recent Strasbourg jurisprudence, it is also relevant to note the case of Serious Organised Crime Agency v Gale (Secretary of State for the Home Department intervening) [2011] UKSC 49; [2011] 1 WLR 2760, decided by this court a few months after Adams. The case concerned the question whether civil recovery proceedings under the Proceeds of Crime Act 2002, undertaken following the appellants acquittal of criminal charges, were compatible with article 6(2). In the course of his judgment, with which a majority of the court agreed, Lord Phillips was critical of the distinction which he perceived in the case law of the European court between claims for compensation brought by an acquitted defendant against the state under public law, and claims for compensation brought by an alleged victim against an acquitted defendant under the law of tort, commenting at para 32 that this confusing area of Strasbourg law would benefit from consideration by the Grand Chamber. Lord Dyson was less critical of the Strasbourg jurisprudence, and provided an illuminating analysis. As he noted, cases in which article 6(2) was held to apply to proceedings instituted after the discontinuation of criminal proceedings or following an acquittal included, first, cases in which there was a sufficiently close link between the criminal proceedings and the other proceedings to engage article 6(2), even if on an application of the usual Engel criteria the latter proceedings would be characterised as civil. Those cases were described in Ringvold v Norway Reports of Judgments and Decisions 2003 II, p 117, para 36 as concerning proceedings relating to such matters as an accuseds obligation to bear court costs and prosecution expenses, a claim for reimbursement of his (or his heirs) necessary costs, or compensation for detention on remand, matters which were found to constitute a consequence and the concomitant of the criminal proceedings. The focus of the inquiry was on whether the proceedings were the direct sequel or a consequence and the concomitant of the criminal proceedings: ibid, at para 41. As Lord Dyson stated at para 125: Claims by an accused person following a discontinuation or acquittal for costs incurred as a result of the criminal proceedings and claims for compensation for detention are paradigm examples of such proceedings. The link between such claims and the criminal proceedings is so close that article 6(2) applies to both of them. The claims for compensation flow from the criminal proceedings. But for these proceedings, there would be no claims. As Lord Dyson explained, civil claims for compensation, brought against the defendant under the law of tort, are not linked in that way to criminal proceedings. The victim of a civil wrong has a right to claim damages, in order to obtain a remedy for the harm which he or she has suffered, regardless of whether the defendant has been convicted or acquitted of a criminal offence arising out of the same facts. The victims claim is not dependent on the defendant being prosecuted at all. Furthermore, as the court pointed out in Ringvold, para 38, if civil compensation proceedings automatically fell within the ambit of article 6(2), that would have: the undesirable effect of pre empting the victims possibilities of claiming compensation under the civil law of tort, entailing an arbitrary and disproportionate limitation on his or her right of access to a court under article 6(1) of the Convention. A separate basis on which article 6(2) had been held to apply to proceedings instituted after the discontinuation of criminal proceedings or following an acquittal was that a sufficient link with the criminal proceedings was created by the language used by the court in the civil proceedings. An example was the case of Y v Norway (2003) 41 EHRR 87, where the civil court stated in its judgment that it found it clearly probable that the defendant had committed the offences against the claimant with which he was charged. The European court found that there had been a violation of article 6(2). Lord Dyson contrasted that case with Moullet v France (Application No 27521/04) (unreported) given 13 September 2007, where the applicant was a public official who had been charged with accepting bribes. The criminal proceedings were discontinued on the ground that they were time barred. The official was then dismissed on the basis that the evidence showed that he had taken bribes. That decision was challenged under administrative law, but was upheld by the Conseil dEtat on the ground that it had been based on accurate facts and on reasons which were not materially or factually incorrect. A complaint to the European court was unsuccessful. The court considered whether the Conseil dEtat used such language in its reasoning as to create a clear link between the criminal case and the ensuing administrative proceedings and thus to justify extending the scope of article 6(2) to cover the latter. It noted that the applicant was not formally declared guilty of the criminal offence of accepting bribes. The Conseil dEtat had confined itself to determining the facts without suggesting any criminal characterisation whatsoever In other words, the domestic authorities managed in the instant case to keep their decision within a purely administrative sphere, where the presumption of innocence the applicant relied on did not obtain. Similarly in Ringvold v Norway the court found that a domestic decision awarding compensation to a victim of sexual abuse, following the defendants acquittal, did not fall within the scope of article 6(2). Although the domestic court had found that there was evidence establishing that sexual abuse had occurred, and that, on the balance of probabilities, it was clear that the applicant was the abuser (para 19), it did not state, either expressly or in substance, that all the conditions were fulfilled for holding the applicant criminally liable with respect to the charges of which he had been acquitted (para 38). Lord Dyson commented at para 138 that the rationale of cases such as Y v Norway must be that if the domestic court chooses to treat civil proceedings as if the issue of criminal liability falls to be determined, then the fair trial protections afforded by article 6(2) should be respected. But if the decision in the civil proceedings is based on reasoning and language which go no further than is necessary for the purpose of determining the issue before that court and without making imputations of criminal liability, then the necessary link will not have been created. (3) Allen v United Kingdom An opportunity for the Grand Chamber to consider this area of the law arose soon after Gale, in the case of Allen v United Kingdom. The applicant had been convicted of manslaughter. Her conviction was later quashed on the basis that, although the Crown case against her remained strong, a jury which had heard the fresh evidence might have come to a different conclusion. In terms of the categories subsequently adopted in Adams, it was a category 3 case. Her application for compensation under section 133 as originally enacted was unsuccessful, and her application for judicial review of that decision was dismissed. On appeal, the Court of Appeal held that there had been no violation of article 6(2): R (Allen) (formerly Harris) v Secretary of State for Justice [2008] EWCA Civ 808; [2009] 1 Cr App R 2. As was pointed out, article 6(2) could not possibly mean that compensation necessarily followed the quashing of a conviction on the basis of fresh evidence, otherwise A3P7 could not be in the terms it was. More controversially, Hughes LJ, giving the judgment of the court, expressed the view, applying dicta of Lord Steyn in the case of Mullen, that the phrase miscarriage of justice in section 133 of the 1988 Act was restricted to cases where the defendant was demonstrably innocent of the crimes of which he had been convicted: a view which was subsequently disapproved by the majority of this court in Adams. When Allen reached the Grand Chamber of the European court, on a complaint directed not against the Secretary of States decision to refuse the applicants claim for compensation, but against the reasons given by the High Court and the Court of Appeal for dismissing her challenge to that decision, the European court was therefore considering section 133 in its unamended form. The Government contended that the complaint was inadmissible because article 6(2) had no application to decisions taken under section 133, as this court had held in Adams. The question whether section 133 fell within the scope of article 6(2) was therefore directly in issue. In deciding that question, the Grand Chamber court undertook a careful review of the courts case law, and considered the relationship between article 6(2) and A3P7. The Grand Chamber began its assessment by explaining the justification, in accordance with the most fundamental principles of the Convention case law, for giving article 6(2) a wider application than a literal reading of the text would suggest. As it explained at para 92: The object and purpose of the Convention, as an instrument for the protection of human beings, requires that its provisions be interpreted and applied so as to make its safeguards practical and effective. The need to ensure that the right guaranteed by article 6(2) is practical and effective entails that it cannot be viewed solely as a procedural guarantee in the context of a criminal trial, but has a second aspect (para 94): Its general aim, in this second aspect, is to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty of the offence charged. In these cases, the presumption of innocence has already operated, through the application at trial of the various requirements inherent in the procedural guarantee it affords, to prevent an unfair criminal conviction being imposed. Without protection to ensure respect for the acquittal or the discontinuation decision in any other proceedings, the fair trial guarantees of article 6(2) could risk becoming theoretical and illusory. What is also at stake once the criminal proceedings have concluded is the persons reputation and the way in which that person is perceived by the public. The Grand Chamber reviewed how the courts jurisprudence in relation to the second aspect of article 6(2) had developed over time. In doing so, it did not attempt to justify or reconcile all of the decisions on their particular facts: a task which, in relation to some of the case law, might have been challenging. Instead, it sought to derive from the cases the underlying principles, and to explain how they had evolved. In some early cases in which the court had found article 6(2) to be applicable, despite the absence of a pending criminal charge, it had said that the judicial decisions taken following criminal proceedings, for example with regard to an obligation to bear court and prosecution costs, or compensation for pre trial detention or other adverse consequences, were consequences and necessary concomitants of, or a direct sequel to, the conclusion of the criminal proceedings. Similarly, in a later series of cases, such as Sekanina v Austria, it had concluded that Austrian legislation and practice link[ed] the two questions the criminal responsibility of the accused and the right to compensation to such a degree that the decision on the latter issue could be regarded as a consequence and, to some extent, the concomitant of the decision on the former, so that article 6(2) applied to the compensation proceedings. Developing this idea in subsequent cases, such as Hammern v Norway, the court had found that the applicants compensation claim not only followed the criminal proceedings in time, but was also tied to those proceedings in legislation and practice, with regard to both jurisdiction and subject matter, creating a link between the two sets of proceedings with the result that article 6(2) was applicable. In cases such as Ringvold v Norway and Y v Norway, concerning the victims right to compensation from the applicant, who had previously been found not guilty of the criminal charge, the court had held that where the decision on civil compensation contained a statement imputing criminal liability, this would create a link between the two proceedings such as to engage article 6(2) in respect of the judgment on the compensation claim. The Grand Chamber also cited its decision in OL v Finland (Application No 61110/00) (unreported) given 5 July 2005, in which an appeal was brought against a child care order, made on the basis of a psychiatric report stating that it was highly probable that the child had been sexually abused by her father, after the public prosecutor decided not to bring charges. In dismissing the appeal, the domestic court stated: The public care order was based on the expert opinion resulting from the psychiatric examinations. However, it is unclear whether A has been subjected to sexual abuse. This possibility cannot be excluded, either. According to the examinations it is undisputed that A has become predisposed to sexuality, not suitable for a child of her age. It is also clear that living with a mentally ill mother has had negative effects on As psychical development . The European court dismissed the fathers complaint of a violation of article 6(2) as manifestly ill founded, observing: In this particular case, although the prosecutor did not prefer charges against the applicant, the decision to place A into public care was legally and factually distinct. Regardless of the conclusion reached in the criminal investigation against the applicant, the public care case was thus not a direct sequel to the former. Nor was a sufficient link between the two proceedings created by the language used by the domestic court: the impugned ruling of the Supreme Administrative Court in no way stated that the applicant was criminally liable with regard to the charges which the prosecutor had dropped. More recently, the court had expressed the view that following the discontinuation of criminal proceedings, the presumption of innocence required that the lack of a persons criminal conviction should be preserved in any other proceedings of whatever nature. It had also indicated that the operative part of an acquittal judgment must be respected by any authority referring directly or indirectly to the criminal responsibility of the person in question. The Grand Chamber then considered the specific context of judicial proceedings following the quashing of a conviction, giving rise to an acquittal, and stated at para 104: Whenever the question of the applicability of article 6(2) arises in the context of subsequent proceedings, the applicant must demonstrate the existence of a link, as referred to above [ie in the discussion of the previous case law], between the concluded criminal proceedings and the subsequent proceedings. Such a link is likely to be present, for example, where the subsequent proceedings require examination of the outcome of the prior criminal proceedings and, in particular, where they oblige the court to analyse the criminal judgment; to engage in a review or evaluation of the evidence in the criminal file; to assess the applicants participation in some or all of the events leading to the criminal charge; or to comment on the subsisting indications of the applicants possible guilt. The Grand Chamber next addressed the argument that article 6(2) did not apply to section 133 of the 1988 Act because the latter fell within the scope of A3P7, which was argued to be lex specialis: the argument accepted by a majority of this court in Adams. The Grand Chamber had earlier mentioned the UN Human Rights Committees communication in WJH v The Netherlands, which, as it noted, proceeded on the basis that article 14(2) of the ICCPR applied only to criminal proceedings. It also cited the Explanatory Report on Protocol No 7, including the passages to which Lord Bingham had referred in Mullen, observing at para 133 that the report itself provided that it did not constitute an authoritative interpretation of the text, and adding that the reports reference to the need to demonstrate innocence must now be considered to have been overtaken by the courts intervening case law on article 6(2). It concluded at para 105: Having regard to the nature of the article 6(2) guarantee outlined above, the fact that section 133 of the 1988 Act was enacted to comply with the respondent states obligations under article 14(6) ICCPR, and that it is expressed in terms almost identical to that article and to article 3 of Protocol No 7, does not have the consequence of taking the impugned compensation proceedings outside the scope of applicability of article 6(2), as argued by the Government. The two articles are concerned with entirely different aspects of the criminal process; there is no suggestion that article 3 of Protocol No 7 was intended to extend to a specific situation general guarantees similar to those contained in article 6(2). Indeed, article 7 of Protocol No 7 clarifies that the provisions of the substantive articles of the Protocol are to be regarded as additional articles to the Convention, and that all the provisions of the Convention shall apply accordingly. Article 3 of Protocol No 7 cannot therefore be said to constitute a form of lex specialis excluding the application of article 6(2). The lex specialis argument was therefore roundly rejected. The Grand Chamber then applied the general principles set out earlier in its judgment to the facts of Allen. It identified the relevant question as being whether there was a link between the concluded criminal proceedings and the compensation proceedings, having regard to the relevant considerations set out in para 104 of the judgment. In that regard, it stated at paras 107 108: 107. In this respect, the court observes that proceedings under section 133 of the 1988 Act require that there has been a reversal of a prior conviction. It is the subsequent reversal of the conviction which triggers the right to apply for compensation for a miscarriage of justice. Further, in order to examine whether the cumulative criteria in section 133 are met, the Secretary of State and the courts in judicial review proceedings are required to have regard to the judgment handed down by the CACD [the Court of Appeal Criminal Division]. It is only by examining this judgment that they can identify whether the reversal of the conviction, which resulted in an acquittal in the present applicants case, was based on new evidence and whether it gave rise to a miscarriage of justice. 108. The court is therefore satisfied that the applicant has demonstrated the existence of the necessary link between the criminal proceedings and the subsequent compensation proceedings. As a result, article 6(2) applied in the context of the proceedings under section 133 of the 1988 Act to ensure that the applicant was treated in the latter proceedings in a manner consistent with her innocence. The critical factors in establishing the necessary link between the decision of the Court of Appeal in the criminal proceedings, and the subsequent proceedings under section 133, were therefore that the quashing of the conviction was a prerequisite of proceedings under section 133, and that in order to arrive at a decision on the claim it was necessary for the Secretary of State to examine the judgment of the Court of Appeal so as to determine whether the criteria in section 133 were satisfied. That reasoning applies equally, if not a fortiori, to section 133 in its amended form. The only remaining question, therefore, in relation to the applicability of article 6(2) to decisions taken under section 133 as amended, is whether, as counsel for the Secretary of State submitted, this court should decline to follow the decision of the Grand Chamber. In counsels submission, our doing so would encourage, or stimulate, further dialogue where the issue could be reviewed and addressed in full. This courts approach to judgments of the European Court of Human Rights is well established. Section 2 of the Human Rights Act requires the courts to take into account decisions of the European court, not necessarily to follow them. In taking them into account, this court recognises their particular significance. As Lord Bingham observed in Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465, para 44: The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. Nevertheless, it can sometimes be inappropriate to follow Strasbourg judgments, as to do so may prevent this court from engaging in the constructive dialogue or collaboration between the European court and national courts on which the effective implementation of the Convention depends. In particular, dialogue has proved valuable on some occasions in relation to chamber decisions of the European court, where this court can be confident that the European court will respond to the reasoned and courteous expression of a diverging national viewpoint by reviewing its position. The circumstances in which constructive dialogue is realistically in prospect are not, however, unlimited. As Lord Neuberger of Abbotsbury MR explained in Manchester City Council v Pinnock (Secretary of State for Communities and Local Government intervening) [2010] UKSC 45; [2011] 2 AC 104, para 48: 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. There is also unlikely to be scope for dialogue where an issue has been authoritatively considered by the Grand Chamber, as Lord Mance indicated in R (Chester) v Secretary of State for Justice [2013] UKSC 63; [2014] AC 271, para 27: 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. No circumstances of the kind contemplated in those dicta exist in the present case. The Grand Chambers conclusion was carefully considered, and was based on a detailed analysis of the relevant Strasbourg case law. It was consistent with a line of authorities going back decades. It was intended to provide authoritative guidance, and has been followed in numerous subsequent judgments, such as Cleve v Germany (Application No 48144/09) (unreported) given 15 January 2015, Kapetanios v Greece (Application Nos 3453/12, 42941/12 and 9028/13) (unreported) given 30 April 2015 and Dicle and Sadak v Turkey (Application No 48621/07) (unreported) given 16 June 2015. It did not involve any principle of English law, or any oversight or misunderstanding. On the contrary, it is the reasons given in Adams to support the conclusion that article 6(2) has no application to section 133 of the 1988 Act which, with respect, are less than compelling. The lex specialis argument is unpersuasive, for the reasons explained at paras 144 149 above, and those set out by the Grand Chamber at para 105 of its judgment. The separate proceedings argument is equally unpersuasive, as explained at para 151 above, and at para 107 of the Grand Chambers judgment. That is also the implication of Lord Dysons analysis in Gale, where he explained at para 125 (quoted in para 155 above) why claims by a defendant for compensation for detention are a paradigm example of proceedings which are sufficiently closely linked to criminal proceedings for article 6(2) to apply. The not undermining the acquittal argument bears on compliance with article 6(2), not on whether it is applicable. I recognise that the dicta which I have cited from Pinnock and Chester are not to be treated as if they had statutory force. Nevertheless, they are in my view persuasive. I find it difficult to accept that this court should deliberately adopt a construction of the Convention which it knows to be out of step with the approach of the European Court of Human Rights, established by numerous Chamber judgments over the course of decades, and confirmed at the level of the Grand Chamber, in the absence of some compelling justification for taking such an exceptional step. For my part, I can see no such justification. Conclusion on issue 1 For the reasons I have explained, I would hold that decisions taken under section 133 fall within the ambit of article 6(2). I would therefore depart from the decision in Adams in so far as it adopted the contrary view. Issue 2: Is section 133(1ZA) incompatible with article 6(2)? Once it has been established that there is a sufficient link between proceedings under section 133 and the antecedent criminal proceedings, the court must determine whether the presumption of innocence has been respected. The approach to be adopted to this question was the second area of the law which was reviewed by the Grand Chamber in Allen v United Kingdom. As the court observed, there is no single approach to ascertaining the circumstances in which article 6(2) will be violated in the context of proceedings which follow the conclusion of criminal proceedings. In particular, the court explained in para 121 that in cases concerning applications by a former accused for compensation or costs, where the criminal proceedings were discontinued, it had been held that a refusal of compensation or costs might raise an issue under article 6(2) if supporting reasoning which could not be dissociated from the operative provisions amounted in substance to a determination of the accuseds guilt, but that no violation had been found where domestic courts had described a state of suspicion without making any finding of guilt. In Sekanina, however, the court drew a distinction between cases where the criminal proceedings had been discontinued and those where a final acquittal judgment had been handed down clarifying that the voicing of suspicions regarding an accuseds innocence was conceivable as long as the conclusion of criminal proceedings had not resulted in a decision on the merits of the accusation, but that it was no longer admissible to rely on such suspicions once an acquittal had become final. In Sekanina, the domestic court rejected the applicants claim for compensation for detention, saying that, in acquitting him, the jury took the view that the suspicion was not sufficient to reach a guilty verdict, but there was, however, no question of that suspicions being dispelled (para 29). The European court said that this left open a doubt as to the correctness of the acquittal and was incompatible with the presumption of innocence. To give one other example, in cases involving civil compensation claims lodged by victims, regardless of whether the criminal proceedings ended in discontinuation or acquittal, the court had emphasised that while exoneration from criminal liability ought to be respected in the civil compensation proceedings, it should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof. However, if the national decision on compensation were to contain a statement imputing criminal liability to the respondent party, this would raise an issue falling within the ambit of article 6(2). Turning to consider the circumstances in Allen itself, the court observed that the applicants conviction was quashed on the ground that it was unsafe, because new evidence might have affected the jurys decision had it been available at trial. The Court of Appeal did not itself assess all the evidence in order to decide whether guilt had been established beyond reasonable doubt. Nor had it ordered a retrial, since the applicant had already served her sentence. In these circumstances, although the quashing of the conviction resulted in a verdict of acquittal being entered, it was not an acquittal on the merits in a true sense. In that respect, the court contrasted the case with Sekanina and the similar case of Rushiti v Austria (2001) 33 EHRR 56, where the acquittal was based on the principle that any reasonable doubt should be considered in favour of the accused. The court observed, at para 127, that in this sense, although formally an acquittal, the termination of the criminal proceedings against the applicant might be considered to share more of the features present in cases where criminal proceedings have been discontinued. The court next considered whether the criteria laid down by section 133 as originally enacted were themselves incompatible with article 6(2). As it observed, there was nothing in the criteria which called into question the innocence of an acquitted person, and the legislation did not require any assessment of the applicants criminal guilt. The court next considered the approach adopted by the domestic courts in the case before it. They had been entitled under the Convention to conclude that more than an acquittal was required in order to establish a miscarriage of justice, provided always that they did not call into question the applicants innocence. In that regard, the court referred to the view expressed by Lord Steyn in Mullen (subsequently adopted by the minority in Adams) that a miscarriage of justice, within the meaning of section 133(1), would only arise where the person concerned was innocent, and that section 133 therefore required that the new or newly discovered fact must demonstrate the applicants innocence beyond reasonable doubt. The court observed that what is important above all is that the judgments of the High Court and the Court of Appeal did not require the applicant to satisfy Lord Steyns test of demonstrating her innocence. The difference in the present case is that the insertion of section 133(1ZA) into the 1988 Act has had the effect of introducing a test that the fresh evidence has to establish beyond reasonable doubt that the applicant did not commit the offence. In the present proceedings, the Divisional Court and the Court of Appeal considered this test to be compatible with article 6(2), since it did not require the applicant to establish his innocence, but imposed a narrower requirement, namely that he demonstrate that his innocence had been established by a new or newly discovered fact and nothing else, as the Court of Appeal stated at para 48. The refusal of an application under section 133 did not, therefore, in their view cast doubt on the persons innocence generally. The Court of Appeal observed that a focus on the new or newly discovered fact and nothing else was central to limiting eligibility for compensation to a narrower category of cases than the entire corpus of cases where a conviction was quashed. It also considered that the European courts observations about Lord Steyns test in Mullen were directed to the dangers of imposing a general requirement of having to demonstrate innocence, which was not what was required by section 133. I do not find this an easy question, but I have respectfully come to a different conclusion from the courts below. In the context of decisions made under the amended section 133, the distinction between a requirement that innocence be established, and a requirement that innocence be established by a new or newly discovered fact and nothing else, appears to me to be unrealistic. A person who can make a valid application under section 133 is, of necessity, someone whose conviction has been quashed because of the impact of a new or newly discovered fact: that follows from the terms of section 133(1). In most cases which satisfy that criterion, there will not be any other reason for the quashing of the conviction. A decision by the Secretary of State that the new or newly discovered fact does not establish the persons innocence does not, therefore, usually leave open a realistic possibility that he or she has been acquitted for some other reason, which that decision leaves unaffected. On the contrary, the implication of the decision is likely to be that, although the new or newly discovered fact has led to the quashing of the conviction, the persons innocence has not been established. The decision therefore casts doubt on the innocence of the person in question and undermines the acquittal. The idea that there is a meaningful distinction between assessing whether innocence has been established by a new or newly discovered fact, and assessing whether innocence has been established in a more general sense, also appears to me to be unrealistic for another reason. Normally, at least, the significance of a new piece of evidence can only be assessed in the context of the evidence as a whole. That is illustrated by the present cases. The photograph of Mr Hallam in Mr Harringtons company does not in itself tell one anything about his guilt or innocence of the murder. It is only when considered in the context of the alibi evidence that its significance becomes apparent. In Mr Nealons case, the presence of an unknown males DNA on the victims underwear tells one nothing in itself about Mr Nealons guilt or innocence of an attempted rape. It is only in the context of her evidence about the behaviour of her attacker and her contact with other males on the day in question, and the evidence of other witnesses eliminating the most likely alternative explanations of the presence of the DNA, that its significance can be assessed. There is no material difference, in these situations, between asking whether the applicants innocence has been established by the new or newly discovered fact, and asking whether his innocence has been established. The majority of this court have reached the same conclusion as the courts below, but for somewhat different reasons. As I understand their reasoning, they emphasise that, in Allen v United Kingdom, the Grand Chamber found no violation of article 6(2) in the judgment of the Court of Appeal upholding the refusal of compensation under section 133 in its original form to an applicant who, in terms of the domestic categories subsequently adopted in Adams, fell into category 3, and failed to fall into category 2. They consider that it must, or at least may, be equally compatible with article 6(2) to require the applicant to demonstrate that he falls into category 1. I accept that the implication of the decision in Allen v United Kingdom is that it is not necessarily incompatible with article 6(2) to refuse compensation under section 133 in cases falling within the category later described in Adams as category 3: that is to say, cases where the fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant. The effect of the decision of this court in Adams, confining compensation to cases in category 2 (where the fresh evidence so undermines the evidence against the defendant that no conviction could possibly be based upon it), has been held in later cases before the European court to be compatible with article 6(2): see, for example, ALF v United Kingdom (Application No 5908/12) (unreported) given 12 November 2013. It is not a violation of the presumption of innocence to say that a case falling within category 3 (or category 4: cases where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted) does not constitute a miscarriage of justice. Nor is there any objection under article 6(2) to other criteria for the award of compensation that do not require the applicant to establish his or her innocence: for example, criteria precluding compensation where successful appeals are brought within time, or where convictions are quashed because of misdirections. The problem which arises under article 6(2) when compensation is confined to persons in category 1 cases where the fresh evidence shows clearly that the defendant is innocent of the crime of which he was convicted as under section 133 as amended, is quite specific. It is that it effectively requires the Secretary of State to decide whether persons whose convictions are quashed because of fresh evidence have established that they are innocent. In Allen, the Grand Chamber found at para 128 that there was nothing in the criteria set out in section 133 as it then stood which called into question the innocence of an acquitted person, and that the legislation itself did not require any assessment of the applicants criminal guilt. I doubt whether the same could be said of section 133 in its amended form. In cases falling within category 2, the person has received an acquittal on the merits, in the language used by the European court: the Court of Appeal has assessed all the evidence and has concluded that, allowing the defendant the benefit of any reasonable doubt, only a verdict of acquittal could reasonably be arrived at. The principle in Sekanina therefore applies, and it is no longer permissible to rely on suspicions regarding the defendants innocence, as the Secretary of State must do when refusing an application for compensation under the amended section 133 on the ground that the fresh evidence does not demonstrate the applicants innocence. Furthermore, the implication of para 128 of the European courts judgment in Allen a category 3 case is that even in cases where there has not been an acquittal on the merits in that sense, as may be the position in the present cases, it is nevertheless impermissible for the criteria for awarding compensation to [call] into question the innocence of an acquitted person or to require any assessment of the applicants criminal guilt. If the appellants criminal guilt is to be assessed, they are entitled under the Convention to the protections afforded in criminal proceedings, including the benefit of the presumption of innocence. So far as the European courts comments about Lord Steyns speech are concerned, the court appears to me to have understood that Lord Steyn required the applicants innocence to be established by a new or newly discovered fact. Its comments seem to me to provide some support for my conclusion. The critical question does not however turn on how the courts references to Lord Steyns speech are to be construed, but on how the approach to article 6(2) laid down by the court applies to section 133 in its amended form. For the reasons I have explained, the criterion laid down in section 133(1ZA) is in my opinion incompatible with article 6(2). Counsel for the Secretary of State submitted, however, that a violation of article 6(2) was avoided by means of the Secretary of States statement, in each of the decision letters, that nothing in the letter was intended to undermine, qualify or cast doubt upon the decision to quash the conviction, and that the applicant was presumed to be and remained innocent of the charge brought against him. I am unable to agree that this statement ensures that article 6(2) is respected. The application of a test which in substance infringes the presumption of innocence is not rendered acceptable by the addition of words intended to avoid a conflict with article 6(2), if the overall effect is nevertheless to undermine a previous acquittal. The point is illustrated by the case of Hammern v Norway, where the operation of a statutory test which required the applicant to prove that he did not perpetrate the acts forming the basis of the charges was incompatible with article 6(2), notwithstanding a statement in the decision that I should like to stress that the refusal of a compensation claim does not entail that the previous acquittal is undermined or that the acquittal is open to doubt. The European court commented at para 48 that it was not convinced that, even if presented together with such a cautionary statement, the impugned affirmations were not capable of calling into doubt the correctness of the applicants acquittal, in a manner incompatible with the presumption of innocence. That comment is equally apposite in the present case. Finally on this issue, counsel for the Secretary of State submitted that, in order for this court to find that section 133(1ZA) was incompatible with article 6(2), it would have to go significantly further than did the European court in Allen, contrary to the principle expressed in R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, para 23. That argument cannot be accepted. The conclusion which I have reached is based on principles which were already well established before the case of Allen, and which received the approval of the Grand Chamber in that judgment. Conclusion on Issue 2 For these reasons, I conclude that the definition of a miscarriage of justice introduced by section 133(1ZA) of the 1988 Act is incompatible with article 6(2) of the Convention, and would have made a declaration to that effect. LORD KERR: (dissenting) Introduction I agree with Lord Reed that the appeals in these cases should be allowed and that the declaration of incompatibility which he proposes should be made. It is important to keep clearly in mind that the focus of the case is on the compatibility of section 133(1ZA) of the 1988 Act with article 6(2) of ECHR. The starting point for any discussion of this question must be whether the article is engaged by decisions taken under section 133. For the reasons so compellingly given by Lord Reed, such decisions do fall within the ambit of article 6(2). Inasmuch as the decision in Adams suggested otherwise, it should not be followed. In any event, as Lord Reed has demonstrated, the decision in that case conflated the questions whether article 6(2) was engaged and whether it had been breached. Lady Hale agrees that article 6(2) is engaged see para 77 of her judgment. Lord Mance in paras 35 53 of his judgment discusses whether article 6(2) should be applied to decisions taken under section 133. As he has pointed out, recent case law from the Strasbourg court has focused on the question whether there is a sufficient link between the impugned decision and the second aspect of the article 6(2) obligation. But, on Lord Mances analysis, the focus is not concerned with the question whether the article was engaged but rather on whether it has been violated. I do not construe his judgment, therefore, as suggesting that this species of decision lies outside the ambit of article 6(2). Lord Wilson agrees (albeit with reluctance) with Lord Reed, that, if article 6(2) has the meaning ascribed to it by the ECtHR, in particular in the Allen case, section 133(1ZA) of the 1988 Act is incompatible with it. Although he declines to follow the case law of Strasbourg on the question of the meaning of article 6(2), I detect nothing in his judgment which suggests that he would find that decisions made under section 133 did not fall within its ambit, if interpreted in accordance with that case law. Lord Hughes has said that article 6(2), in its second aspect, applies and thus governs subsequent proceedings when there is a link between them and the previously concluded criminal proceedings. In contrast to Lord Mance, it would appear that Lord Hughes considers that the existence of a link was prerequisite to the engagement of article 6(2). But, Lord Hughes judgment does not appear to me to be inconsistent with acceptance that the link is present where a decision under section 133 requires to be taken. At para 99(c) of his judgment Lord Hughes sets out four considerations said to be indicative of the likelihood of the existence of a link, all of which, apart possibly from the final one, seem to be present in this case. They are present where: (i) an analysis of the criminal judgment must be undertaken; (ii) where a review or evaluation of the evidence in the criminal file must take place; (iii) where there has to be an assessment of the applicants participation in some or all of the events leading to the criminal charge; and (iv) where comment must be made on the subsisting indications of the applicants possible guilt. Plainly, scrutiny of the criminal judgment must underpin any decision under section 133; likewise, a review of the evidence against an applicant is indispensable; and this must include an assessment of his participation in the events which led to the criminal charge. The only possible debate is as to whether comment on subsisting indications of the applicants possible guilt requires that a statement be made by the decision maker or merely that a judgment be reached by him on these questions: does contemporaneous information lead to the conclusion that the applicant has been fully exonerated; or that he could never have been properly convicted; or whether sufficient new material has been adduced which rendered the conviction unsafe on the basis that a jury might or might not have convicted him had such material been produced at his trial. It seems to me that the decision under section 133 will inevitably require a judgment to be made on those issues and, if that is what is required to meet Lord Hughes final criterion, the decision plainly comes within the ambit of article 6(2). Lord Lloyd Jones does not directly address the question of the engagement of article 6(2) as opposed to its possible violation but, as with Lord Wilsons judgment, I detect nothing in his judgment which is counter indicative of acceptance that article 6(2) is at least engaged by decisions made under section 133. In light of all this, it appears to me that there is general agreement among the members of the court or, at least, no overt dissent, that decisions made under section 133 fall within the ambit of article 6(2). The question to be concentrated upon, therefore, is whether the context set by section 133(1ZA) involves an inevitable conflict with the article. Put more simply, if a decision as to whether a person whose conviction has been quashed is to receive compensation only if he shows that he was innocent, is such a requirement compatible with article 6(2)? Innocence There has been much erudite discussion in the judgments of other members of the court about the nature of innocence and the inaptness of the criminal trial to investigate and pronounce upon the question whether a defendant is innocent, as opposed to not being proved to be guilty. I do not propose to add to that discussion beyond observing that, inevitably, there will be many who are charged with or tried on criminal offences who are truly innocent but are unable to establish their innocence as a positive fact. That undeniable circumstance must form part of the backdrop to the proper approach to the application of article 6(2) of ECHR. It seems to me that much of the jurisprudence on the second aspect of the sub article has been influenced, albeit perhaps not explicitly, by the dilemma that this presents. The opportunity to proclaim ones innocence and the right to benefit from the recognition and acceptance of that condition lies at the heart of much of the dispute in this case and much of the case law of the Strasbourg court on the subject. But an inevitable sub text is that establishing innocence as a positive fact can be an impossible task. This is especially so if conventional court proceedings do not provide the occasion to address, much less resolve, the issue. On the other hand, those who have been acquitted simply because the properly high standard for criminal conviction has not been met, but against whom real suspicions as to guilt remain, should not be able to shelter behind the shield of innocence that article 6(2) establishes. In particular, they should not be immune from civil suit from their victims when a less onerous burden of proof as to their involvement in the activity alleged in the criminal proceedings is involved. The Strasbourg jurisprudence It would be idle for me to recapitulate on the extensive examination of the case law of ECtHR that has been undertaken by the other members of the court. I consider that Lord Reed has convincingly demonstrated (in paras 161 175 of his judgment) that there is a clear and constant line of jurisprudence from that court which establishes that the relevant question is whether there was a link between the concluded criminal proceedings and the compensation proceedings, having regard to the relevant considerations set out in para 104 of the judgment in Allen. For the reasons that Lord Reed has given, I consider that such a link is clearly established. The relevant considerations in this context will, of course, include the circumstances of the applicants ultimate acquittal of the charge against him. If this is on the basis of a doubt as to whether he should have been acquitted, he will not be able to avail of the article 6(2) protection; if, on the other hand, he can show that he ought never to have been charged or convicted, he will. I do not agree with Lord Mances proposition that the real test is, or should be, whether the court in addressing the civil claim has suggested that the criminal proceedings should have been determined differently (para 47 of his judgment). There are two fundamental objections to that formulation of the test. The first is that it would cut out a swathe of deserving applicants when they have not been able to prove that they are innocent when they are in fact. The second is that their fate is determined on the phraseology which happened to be chosen by the court. Conclusion For these reasons and those much more fully expressed by Lord Reed, I would make the declaration of incompatibility which the appellants seek.	The appeals concern the entitlement to compensation of persons whose criminal convictions were subsequently quashed for being unsafe. The Appellants, Mr Hallam and Mr Nealon, spent, respectively, about seven years and 17 years in prison before their convictions were eventually quashed for being unsafe in light of newly discovered evidence. They subsequently applied for compensation under section 133 of the Criminal Justice Act 1988 (as amended by section 175 of the Anti social Behaviour, Crime and Policing Act 2014). The Secretary of State for Justice refused their applications on the ground that the new evidence did not show beyond reasonable doubt that they had not committed the offences. The Appellants argue that the requirement contained in section 133(1ZA) that a new or newly discovered fact must show beyond reasonable doubt that the person did not commit the offence, in the absence of which they are unable to claim compensation, is incompatible with the presumption of innocence contained in Article 6(2) of the European Convention on Human Rights (ECHR). Both the Divisional Court (Burnett LJ and Thirlwall J) and the Court of Appeal (Lord Dyson MR, Sir Brian Leveson P and Hamblen LJ) refused to make the declarations of incompatibility sought. By a majority of five to two, the Supreme Court dismisses the appeals. Lord Mance delivers the leading judgment. Lady Hale, Lord Wilson, Lord Hughes and Lord Lloyd Jones deliver concurring judgments. Lord Reed and Lord Kerr dissent. In the previous case of R (Adams) v Secretary of State for Justice [2011] UKSC 18, the Supreme Court identified four categories of case, of progressively wider scope, as a framework for discussing the meaning of miscarriage of justice for which an applicant could be compensated in accordance with section 133: (i) where the fresh evidence shows clearly that the defendant is innocent of the crime of which he had been convicted; (ii) where the fresh evidence so undermines the evidence against the defendant that no conviction could possibly be based upon it; (iii) where the conviction rendered the conviction unsafe because, had it been available at the time of trial, a reasonable jury might or might not have convicted; (iv) where something had gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of somebody who should not have been convicted. The Court held that categories (i) and (ii) fell within the meaning of the phrase miscarriage of justice, and that section 133 was compatible with Article 6(2), which provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The appeal thus obliges the Supreme Court to consider whether it should depart from its previous decision in Adams in the light of the decision in Allen v United Kingdom, where the European Court of Human Rights (ECtHR) held that an applicants Article 6(2) right was not violated in a category (iii) case, and in the light of the introduction of section 133(1ZA), which defined miscarriage of justice so as to limit the entitlement to compensation to category (i) cases. Lord Mance holds that whether there exists a link between the criminal charge and, for instance, civil proceedings arising from the same facts is a diversion from the real question, namely whether the court in addressing the other, civil claim has suggested that the criminal proceedings should have been determined differently. If it has, it has exceeded its role. [47] Lord Mance would refuse to depart from Adams or follow the case law of the ECtHR if and insofar as the ECtHR may have, in the past, gone further than this. [48] Even if that is wrong and article 6(2) is in fact engaged, a separate question arises of whether section 133(1ZA) is nevertheless compatible with the Convention because it confines compensation to cases where the newly discovered evidence shows beyond doubt that the defendant did not commit the offence. This question has never been directly before the ECtHR or decided by it, and Lord Mance is far from confident that the Court would conclude that section 133(1ZA) is incompatible if the question were argued before it. [61] Although it is in general wise for the Supreme Court to find that an applicants rights have been breached where it is clear that the ECtHR would find a violation of the Convention, Lady Hale is persuaded that it is not so clear in this case. [76] Her Ladyship agrees with Lord Reed that article 6(2) is engaged, but it does not follow that the ECtHR would automatically find a violation. She also agrees with Lord Mances formulation of the test. [78] Lady Hale also considers the ECtHRs jurisprudence in this area to be evolving [79] and it is not appropriate for the court to make a declaration of incompatibility in proceedings brought by an individual in respect of whom the ECtHR would be unlikely to find a violation (the facts of these cases being equivalent to those in Allen where no violation was found). [81] [82] Lord Wilson would dismiss the appeal on the basis that the ECtHRs case law on article 6(2) has become hopelessly confused. [85] Lord Wilson cannot subscribe to the ECtHRs analysis in this area, despite the high professional regard in which he holds its judges, the desirability of a uniform interpretation of article 6(2) throughout the states of the Council of Europe, his belief that there is no room left for further constructive dialogue between this court and the ECtHR, and his recognition that the appellants are likely to prevail before the ECtHR in establishing a violation of their Convention rights. [94] Lord Hughes would dismiss the appeals for reasons which substantially, although not explicitly, overlap with those of both Lord Mance and Lord Wilson. [127] Different legal systems adopt different compensation schemes for those wrongfully convicted and, in some jurisdictions, even for those who were detained pending their trial. The ECtHR has been at pains to say that neither article 6(2) nor any other rule provides an unqualified right to be compensated in such circumstances. A person who seeks compensation after their conviction has been quashed is merely seeking to bring himself within the legitimate restrictive eligibility requirements for such compensation. Thus, even if there existed a workable test for finding the requisite link between an earlier (eventually quashed) conviction and the later compensation proceedings, such a link would not exist in this case, because the latter can only be said to be based on the former to the extent that the first condition for eligibility for compensation is that a conviction has been quashed. [123] [124] Lord Lloyd Jones agrees with Lord Mance and attaches particular importance to the fact that the ECtHR has not yet directly addressed the issue of why it is objectionable to require evidence establishing innocence but it is not objectionable to require evidence establishing that the claimant could not reasonably have been convicted. Having regard to the unsettled state of the ECtHRs case law, Lord Lloyd Jones is not persuaded that section 133 is incompatible with the Convention. These matters require consideration by the ECtHR. [137] [138] Lord Reed would have allowed the appeal. The critical factors (identified by the ECtHR in Allen) in establishing the necessary link are that the quashing of the conviction is a prerequisite of proceedings under section 133 and that in order to arrive at a decision on the claim it is necessary for the Secretary of State to examine the judgment of the Court of Appeal to determine whether the criteria of section 133 were satisfied. [170] Whilst it may be appropriate for this Court to decline to follow the ECtHR in certain circumstances, no circumstances of that kind exist here: the Grand Chambers judgment in Allen was carefully considered, is based on a detailed analysis of the relevant case law, is consistent with a line of authority going back decades, and has been followed by the ECtHR subsequently. [174] In the absence of some compelling justification, Lord Reed finds it difficult to accept that this court should deliberately adopt a construction of the Convention which it knows to be out of step with the ECtHRs approach, established by numerous judgments, and confirmed at the level of the Grand Chamber. [175] Lord Reed accepts that the implication of the decision in Allen is that it is not necessarily incompatible with article 6(2) to refuse compensation under section 133 in in category (iii) cases, but holds that section 133(1ZA) is not compatible with article 6(2), because it effectively requires the Secretary of State to decide whether persons whose convictions are quashed have established that they are innocent. [187] Lord Kerr agrees with Lord Reed. For the reasons given by Lord Reed, Lord Kerr considers that there exists the requisite link between the concluded criminal proceedings and the compensation proceedings, which is the test articulated in a clear and constant line of Strasbourg jurisprudence. [205] His Lordship also rejects Lord Mances formulation of the relevant test because it would cut out a swathe of deserving applicants who are unable to prove their innocence even though they are, in fact, innocent and the fate of applicants would be determined by the phraseology that happened to be chosen by the court. [206]
The interface between health and social care is a difficult and controversial policy area. In general, health care is provided or arranged by the National Health Service, and is free for all patients irrespective of means, while social care is provided or arranged by local authorities with means tested contributions from those clients who are deemed able to pay for some or all of it themselves. This case is not about the rights or wrongs of that general policy. This case is about who is legally responsible for paying for the work done by registered nurses in social rather than health care settings. Is the National Health Service responsible for all the work they do or are the social care funders responsible for at least some of it? The issue happens to arise in relation to Wales, where the legislation has since changed, as has the legislation in England, but very similar issues arise under the legislation now in force. The issue is the correct interpretation and application of section 49 of the Health and Social Care Act 2001, which is headed Exclusion of nursing care from community care services: (1) Nothing in the enactments relating to the provision of community care services shall authorise or require a local authority, in or in connection with the provision of any such services, to (a) provide for any person, or (b) arrange for any person to be provided with, nursing care by a registered nurse. (2) In this section nursing care by a registered nurse means any services provided by a registered nurse and involving (a) the provision of care, or the planning, supervision or delegation of the (b) provision of care, other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse. (emphasis supplied) The social care funders contend that this means that the NHS, in the shape of the Local Health Boards, is required to fund the full cost of a registered nurses presence in a care home. This is in the context of regulation 18(3) of the Care Homes (Wales) Regulations 2002 (SI 2002/324), which requires that: Where the care home (a) provides nursing to service users; and (b) provides, whether or not in connection with nursing, medicines or medical treatment to service users, the registered person shall ensure that at all times a suitably qualified registered nurse is working at the care home. (emphasis supplied) The Local Health Boards, on the other hand, contend that the nurses time can be divided into a series of discrete tasks or functions, some of which do not need to be provided by a registered nurse, so that they are responsible for only a proportion of her time working in the home. How the dispute arose In practice, Local Health Boards pay for nurses time in social care homes by a weekly flat rate payment for each care home resident who qualifies for some nursing care. Between September and November 2013, every Local Health Board in Wales decided to set the rate at 128.61 per resident per week. This was an increase on what they had previously been paying. Their decisions took account of a report by healthcare consultants Laing & Buisson. Laing & Buisson conducted a survey which asked nurses to record and categorise the time they spent during a particular shift into: (a) direct nursing care time, (b) indirect nursing care time (eg management of medicines, overall care planning, and hygiene standards), (c) non nursing care time (eg social care including dressing and washing), and (d) other time (including stand by time, paid breaks and time spent receiving supervision). They commented that splitting nurses time and costs in such detail was always likely to prove challenging. If social care were excluded, homes might be inclined to minimise nurses participation in providing holistic and integrated nursing and social care support for residents. Would it not be a lot simpler, they asked, just for the NHS to pay for the full direct salary cost of registered nurses, rather than argue about the split between nursing and non nursing care? (NHS Wales Funded Nursing Care Review 2013, Laing & Buisson FNC Survey Report, pp 23, 26). The Health Boards decided that time in categories (c) and (d) did not fall within the definition of nursing care by a registered nurse in section 49(2) and therefore they would not fund it. This resulted in a weekly payment which was 27.33 lower than it would have been had that time been included. It has been estimated that the overall cost to the Health Boards in Wales if it were included would be between 7 and 13m a year. The decisions of the seven Local Health Boards, covering the whole of Wales, to set the flat rate at 128.61 (subsequently increased in accordance with an inflationary uplift mechanism which is not now disputed) were originally challenged by 11 owners and operators of care homes in Wales. All the local authorities in Wales were joined as interested parties. They (with the exception of the County Council of the City and County of Cardiff, which has taken no part in these proceedings) have effectively taken over the conduct of the case from the care home owners. The Welsh Ministers were also joined as interested parties but have taken no part in this appeal. The Secretary of State for Health, who is responsible for the NHS in England, has intervened in the appeal in support of the Local Health Boards. The care homes challenge, on the ground that too restrictive an interpretation of nursing care by a registered nurse had been adopted, succeeded before Hickinbottom J: [2015] EWHC 601 (Admin); [2015] PTSR 945. He rejected the Health Boards argument that it covered care which could only be provided by a registered nurse and accepted the challengers argument that it covered all the services in fact provided by a registered nurse. Hence he quashed the Health Boards decision. On appeal, the Health Boards conceded, as they had done below, that they had been wrong to exclude the nurses stand by time (part of (d) in para 6 above) from their calculations. Subject to that, the Court of Appeal, by a majority, allowed their appeal: [2016] EWCA Civ 26; [2016] PTSR 908. Laws LJ gave the leading judgment. He held that the Judges construction gave insufficient weight to the excepting words at the end of section 49(2). These clearly distinguished between different services provided by a nurse at a care home. It did not follow from the fact that a nurse needed to be on call at all times that everything she did while on duty was a service which needed to be provided by a registered nurse. Whether what she did fell within the definition was a factual rather than a legal question. Elias LJ agreed that section 49(2) envisaged that there would be some services provided by a registered nurse which would not fall within the concept of nursing care by a registered nurse. But it followed from the requirement to have a nurse or nurses in attendance at all times that the Health Boards had to pay for all the arrangements necessary to secure this, so not only stand by time, but also meal breaks, supervision and administrative tasks associated with it. But if the costs were increased because she also provided social care that was not a service for which the Health Boards should pay. Lloyd Jones LJ agreed with Laws LJ. Distinguishing between the services provided by the nurse inevitably involved what had been referred to as a task based approach apportioning her time according to how she spent it. He also agreed that it did not follow from the fact that a nurse had to be there at all times that everything she did while there was the responsibility of the Health Boards. The approach adopted by Elias LJ was inconsistent with the agreed requirement to distinguish between different categories of services. The local authorities now appeal to this Court. The statutory context The powers and duties of local authorities in relation to what is now called social care were contained in a series of enactments which have now been replaced, in Wales, by the Social Services and Well being (Wales) Act 2014 and, in England, by the Care Act 2014. At the relevant time, section 47 of the National Health Service and Community Care Act 1990 required a local authority, where it appeared that a person for whom they were responsible might be in need of community care services, to carry out an assessment of his need for those services and decide whether his needs called for them to provide such services. Community care services were defined in section 46 of the 1990 Act as services which a local authority might provide or arrange under a number of enactments, including Part III of the National Assistance Act 1948. Part III of the 1948 Act included section 21(1)(a), under which local authorities could provide or arrange residential accommodation for adults who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them, in other words care homes. This was a duty owed to people ordinarily resident in their area and other persons in urgent need (Local Authority Circular LAC (93)10). By section 21(5), accommodation included board and other services, amenities and requisites provided in connection with the accommodation. However, section 21(8) provided that: Nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 2006 or the National Health Service (Wales) Act 2006. By section 3(1) of the National Health Service (Wales) 2006 Act (which is in substantially the same terms as its predecessors in the National Health Service Acts of 1946 and 1977): The Welsh Ministers must provide throughout Wales, to such extent as they consider necessary to meet all reasonable requirements (a) hospital accommodation, (b) other accommodation for the purpose of any service provided under this Act, (c) medical, dental, ophthalmic, nursing and ambulance services, such other services or facilities for the prevention (e) of illness, the care of persons suffering from illness and the after care of persons who have suffered from illness as they consider are appropriate as part of the health service, such other services or facilities as are required for (f) the diagnosis and treatment of illness. Under section 12, the Welsh Ministers may direct the Local Health Boards established under section 11 to exercise these functions. The effect of the directions current at the relevant time (the National Health Service (Nursing Care in Residential Accommodation) (Wales) Directions 2004) was that Local Health Boards were obliged to provide nursing care for those who required it, including those accommodated in care homes by local authorities. In practice, there are three categories of resident in care homes: (1) A resident who has a primary need for health care. Local Health Boards fund the whole of her care, both nursing and non nursing, and her accommodation. This is known as Continuing Health Care. (2) A resident who requires some health care but for whom this is not a primary need. Local Health Boards fund the nursing care which she needs, known as Funded Nursing Care, while the resident herself, or the local authority, or both, fund the rest of her care and accommodation. (3) A resident who requires no nursing care. The whole of her care and accommodation will be funded by the resident, or by the local authority, or by both. This case is concerned with the funding of nursing care for residents in category (2). The extent to which a local authority is neither allowed nor required to fund such care is governed by section 49 of the 2001 Act (subsequently replaced by section 47 of the 2014 Act, section 47(10) of which defines nursing care by a registered nurse in almost identical terms to section 49(2)). The case has been argued throughout on the basis that, if a local authority is not permitted to fund such care, then the Local Health Boards are required, under section 3(1) of the 2006 Act, to do so: there will be no funding gap. Part of the background to the enactment of section 49 is the decision of the Court of Appeal in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 (upholding the decision of the first instance Judge). The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were in need of only general rather than specialist nursing services and that these should be purchased by the local authority rather than provided by the NHS. So the health authority decided to close the home and transfer their long term care to the local authority. The case is generally known for holding that to close the home would be an unjustified breach of the legitimate expectations engendered by the health authoritys promise and thus an abuse of power. But it is also important for its discussion of when nursing care could, and could not, be provided by local authorities in residential accommodation which they provided or arranged under section 21 of the 1948 Act. On the one hand, section 21(5) included in the provision of accommodation board and other services, amenities and requisites provided in connection with the accommodation. This could obviously include nursing care for those residents who needed it. On the other hand, section 21(8) excluded anything authorised or required to be provided under the National Health Service Act 1977. The court held that this was limited to those health services which, in fact, have been authorised or required to be provided under the 1977 Act. It did not include services which the Secretary of State [had] legitimately decided under section 3(1) of the 1977 Act it was not necessary for the NHS to provide (per Lord Woolf MR, at para 29). There was no precise dividing line between those nursing services which are and those which are not capable of being treated as included in the package of care provided by the local authority (para 30(d)). But it could not be based solely on whether the nursing care was general or specialist. The distinction was one of degree which would depend upon the facts of the individual case: However, as a very general indication as to where the line is to be drawn, it can be said that if the nursing services are (i) merely incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide, then they can be provided under section 21. (para 30(e)) The court acknowledged Mr Gordons submission, on behalf of the claimant, that this was unfair: if a person received comparable nursing services in a hospital or at home, they would be free of charge. But that unfairness was part of the statutory scheme (para 30(c)). However, the NHS eligibility criteria could not place responsibility on a local authority which went beyond what section 21 permitted. These patients health care needs went far beyond that. Hence the closure decision was unlawful. But the matter did not rest there. The other part of the background to section 49 of the 2001 Act is the Report of the Royal Commission on Long Term Care (chaired by Sir Stewart Sutherland), With Respect to Old Age: Long Term Care Rights and Responsibilities (Cm 4192 I), published in March 1999 between the first instance and Court of Appeal judgments in the Coughlan case. This made two main recommendations. The first was that all nursing care, wherever it was delivered, should be free and funded by the NHS (recommendation 6.3 (para 6.26)). The current situation was not justified or defensible. By nursing care was meant care which involves the knowledge or skills of a qualified nurse (para 6.22). The second was that all personal care should also be free of charge and funded from general taxation (recommendation 6.4 (para 6.37)). By personal care was meant care which involves touching a persons body. It falls within the internationally recognised definition of nursing but may be delivered by many people who are not nurses (para 6.43). A long list of such tasks was provided (para 6.44). There was a Note of Dissent by Joel Joffe and David Lipsey. They agreed that the position on nursing care was a glaring anomaly and that it should be free and funded by the NHS wherever it was provided. But they defined it strictly as that care which requires the specific knowledge and skills which only a registered nurse can provide and then gave examples (para 65). Further, the dissenters could not go along with the central recommendation of the majority that personal care should be provided free of charge (para 1). This would cost a great deal of money while doing nothing to increase the funds actually devoted to personal care or to improve the quality of services provided. The Government published its response in July 2000, The NHS Plan: The Governments response to the Royal Commission on Long Term Care (Cm 4818 II). This rejected the recommendation on personal care, believing it not to be the best use of resources. But it accepted the recommendation on nursing care (para 2.5). This would require primary legislation, which would be introduced as soon as possible, with a view to introducing free NHS nursing care in all nursing homes by October 2001 (para 2.8). Crucially: 2.9 In the future, the NHS will meet the costs of registered nurse time spent on providing, delegating or supervising care in any setting. This is a wider definition of nursing care than proposed in the Note of Dissent to the Royal Commission report, which suggested it should include those tasks that only a registered nurse could undertake. 2.10 Therefore people identified as needing nursing home care will no longer have to meet any of the costs for the registered nurses involved in their care, or for the specialist equipment used by those nurses. Instead the NHS will meet these costs. (emphasis supplied). Section 49 was enacted as a result. The Explanatory Notes to the 2001 Act confirm this: 240. Section 49 removes local authorities functions to purchase nursing care by a registered nurse. 241. Subsection (1) removes the right of a local authority to provide or arrange nursing care by a registered nurse. It is intended that the NHS in pursuance of its powers and duties under the 1977 Act will provide or arrange nursing care by a registered nurse and such care will (in accordance with the 1977 Act) be free of charge. 242. Subsection (2) defines nursing care by a registered nurse as services provided by a registered nurse and involving either the provision of care or the planning, supervision or delegation of the provision of care, other than services which do not need to be provided by a registered nurse. In deciding whether services need to be provided by a registered nurse, it is necessary to have regard to the nature of those services and the circumstances in which they are provided. We have been referred to various ministerial statements made during the Parliamentary debates on the 2001 Bill, but I do not regard those statements as sufficiently clear and unequivocal to meet the stringent tests of admissibility laid down in Pepper v Hart [1993] AC 593 and R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349. It is one thing for the Minister to say that a nurse is not defined by the tasks that he or she performs (Hansard, Standing Committee E, 6 February 2001, col 442); it is quite another thing to say that there is no limit to the work done by a registered nurse in a care home for which the NHS must pay. We are, however, entitled to take into account the preceding reports and explanatory notes to identify the mischief at which the legislation was aimed and the proposed solution to it. The issue and the arguments There is no doubt that the mischief at which section 49 was aimed was the glaring anomaly that nursing care was either provided free by the NHS or bought in by the local authority or residents depending on where it was provided. It was clearly intended to shift the boundary established by the Coughlan decision further in the direction of NHS funding. But the question remains whether nursing care by a registered nurse covers everything that is done by a registered nurse in a care home, as it would in a hospital or other health service setting or (probably) in the patients own home, as the appellant local authorities contend, or whether it covers only some of what she does, as the Health Boards contend. This turns on the meaning and purpose of the concluding words in section 49(2): other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse. Had those words not been there, there is no doubt that the local authorities interpretation would be correct and the NHS would have to pay for all the time spent by a registered nurse in a care home providing, planning, supervising or delegating care of any sort, at least for those residents whose needs were the reason for her presence. So the question is: why are those words there and what do they mean? There are no other decided cases which have discussed this question, perhaps surprisingly, given how important it is, not only to the Health Boards and local authorities in Wales, but also to thousands of care home residents who fund or contribute to the funding of their own care, as well as to those in England where the legislation is in similar terms. Section 49 is referred to in two cases, R (Grogan) v Bexley NHS Care Trust [2006] EWHC 44 (Admin); [2006] LGR 491) and R (St Helens Borough Council v Manchester Primary Care Trust [2008] EWCA Civ 931; [2009] PTSR 105, but in both cases the issue was the criteria for deciding whether an individual qualified for continuing NHS care (category (1) residents in para 17 earlier), with the consequence that the NHS was responsible for all their care costs, or whether they fell within the scheme under discussion here, in which case those costs might be shared. There was no detailed discussion of how those costs are to be shared, which is the issue in this case. Much of the oral argument in this court focussed upon the consequences of the requirement in regulation 18(3) of the Care Homes (Wales) Regulations 2002, that if a home (a) provides nursing to service users; and (b) provides whether or not in connection with nursing, medicines or medical treatment to service users a suitably qualified registered nurse must be working there at all times. This means that in such homes there must always be a registered nurse on duty, even if she is doing nothing. This would in practice be the case even without regulation 18(3), because, as was the evidence at first instance, if a home has residents who need nursing care they [will] need to be cared for in an environment where a registered nurse is available on a 24 hour basis. This will usually be because of the complexity, intensity or unpredictability of their needs (First Witness Statement of Victoria Warner, para 8). The Local Health Boards therefore accepted before the judge that time spent on stand by should have been included in the time for which they should pay. Mr Gordon, for the local authorities, argues that this means that they should pay for all the time that the nurse is there. She has to be there all the time and therefore all the services which she is providing while she is there need to be provided by her. Thus, the argument goes, even if the Health Boards are in principle correct to divide up the nurses time according to what she is doing, in practice whatever she is doing needs to be done by her because she has to be there. This approach, it is argued, does not ignore the closing words of section 49(2) for two reasons. First, the NHS does not have to pay for roles which happen to be done by a registered nurse but could just as well be done by someone else. In many homes, for example, the manager is a registered nurse, but the managers role does not need to be performed by a registered nurse. This argument does accept that nursing care by a registered nurse is defined by the sort of work the nurse is doing rather than by her formal qualifications. But defining her role is different from parcelling up her time in the manner put forward by the Health Boards. Against this, the Health Boards argue that the NHS is already protected by section 49 from having to pay for registered nurses doing something other than providing, arranging or supervising care. But it cannot have been intended that it should have to pay the full costs of employing a manager if she is also fulfilling the on call requirement. The second reason for suggesting that the local authorities approach does not ignore the closing words is that the NHS does not have to pay for over staffing. If the home only needs there to be one nurse on duty at all times, then the services provided by other nurses do not need to be provided by a registered nurse. Against this, the Health Boards argue that even if there are more nurses than required, the NHS still has to pay for that part of their work which does need to be done by a registered nurse. Overall, the Health Boards and the Secretary of State argue that the Governments policy decision was that personal care should be provided or arranged by local authorities and subject to means tested charges. It would be contrary to that policy to oblige the NHS to pay the costs of personal care which happened to be provided by a registered nurse and absurd to make it pay the cost of a registered nurse on stand by fulfilling some completely different role. Their interpretation encourages efficiency: homes should arrange their business so that nurses spend as much time as possible on nursing care, but when they are not, their time should be used productively on personal care rather than standing idle. Dividing up the nurses time between nursing and non nursing tasks is the only way to make sense of section 49 as a whole, including the closing words. Discussion The parties in this appeal have adopted diametrically opposed positions. The Health Boards and Secretary of State argue that the consistent view of the case law has been to respect the decisions of the NHS as to what services are necessary to meet all reasonable requirements, under section 3(1) of the 2006 Act, subject only to challenge on the usual judicial review grounds. Thus, it is said, there is nothing unusual in the NHS defining the limits of its responsibilities for itself. The proper construction of section 49(2) depends upon what the NHS decides is reasonably required. Against this, it is true that the courts have normally respected those decisions, subject only to challenges on conventional judicial review grounds; but in this case the NHS is arguing that it should be free to define the extent of the responsibilities of others, the local authorities or residents, by deciding for itself what is and what is not a nursing task, because all are agreed that there should be no funding gap between what is funded by the NHS and what is funded by local authorities with means tested contributions from the clients. The limits of the local authorities responsibilities are defined by Parliament in section 49. If Parliament had wanted to leave the division of responsibility in the hands of the NHS, it could and would have left the Coughlan decision undisturbed. On the other hand, the local authorities primary argument before this Court was that the court should focus on the application rather than the interpretation of section 49. If it is accepted that the NHS must fund the presence of a nurse who is there to fulfil the legal or practical requirement that a nurse must be on duty at all times, then it follows that the NHS must fund everything that that nurse does while on call in this way. This cannot be correct. The task of this court is to interpret the meaning of the words used by Parliament to impose a restriction on what local authorities may provide or arrange and thus indirectly to impose an obligation on the NHS to fund what the local authorities cannot provide or arrange. Interpretation must come before application. Once interpreted, it is for those on the ground to put that interpretation into practice. Before turning to that task, it is worth bearing in mind that the current practice does not in fact reflect the logic of the Health Boards interpretation. Their task based approach would logically require an individualised assessment of what is in fact done by each registered nurse working in a care home and dividing it into nursing and non nursing tasks. Instead, the Health Boards have relied on a survey to produce an average result and thus a flat rate contribution across the board. Furthermore, it appears that this is only done in relation to nurses time in care homes. Section 49 applies to all kinds of community care services, including services in the clients own homes, but we have no evidence of a similar apportionment being made in relation to home nursing services. Nor, of course, does it take place in hospital, where nurses may well spend time doing other tasks than those which the NHS argues are covered by section 49. The courts below accepted that this was the only practical solution to the problem but it is not necessarily logical. I start from the proposition that, in passing the 2001 Act, Parliament did not intend to leave the division of responsibility in the hands of the NHS. It clearly intended to provide a test, but a different test from that in section 21(8) of the 1948 Act (para 15 above). It must also have intended to depart from the position established in Coughlan, which depended upon the test in section 21(8). In construing the test in section 49(2), I bear in mind that, if Parliament had wanted to restrict the definition of nursing care by a registered nurse to tasks which can only be performed by a registered nurse, it both could and would have said so. It did not. The Governments response to the Royal Commission report clearly envisaged a wider test than that put forward by the dissenters to that report. On the other hand, if Parliament had wanted to prohibit local authorities from paying for anything done by a registered nurse in a care home, it both could and would have said so. It did not. It began with the broad concept of any services provided by a registered nurse but then limited those services in two ways. First, they must be services involving the provision, planning, supervision or delegation of care. So they are limited to services which have to do with the care of residents, that is, with looking after them. However, they are not limited to nursing services or nursing care. They could involve any form of care, nursing, personal or social. Secondly, however, services which having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse are excluded. This clearly envisages that there will be circumstances in which some personal or non nursing care will need to be provided by a registered nurse. Care which is associated with or ancillary to the nursing care which she is providing obviously needs to be provided by her. When a registered nurse is engaged in providing nursing care, it makes no sense to say that she does not need to do the other things that the resident needs to have done while she is providing the nursing care. For example, there may be a reason why a nurse needs to take a patient to the lavatory. The tasks associated with taking a resident to the lavatory cannot be parcelled up between two carers in this way. Whoever is doing them needs to do them all. That applies to all sorts of caring tasks which a nurse needs to do for some reason and which cannot sensibly be parcelled up between nursing and non nursing tasks. One service which a nurse undoubtedly has to do is to provide, as the Laing and Buisson report puts it, an overall, holistic, person centred plan for each resident who needs some nursing care (p 6). In the course of doing this, she may very well have to engage in social and personal care tasks in order to understand the overall needs of the resident and provide an appropriate care plan to meet them. We are, by definition, looking at the funding of the care of residents who, although health care is not a primary need do have a need for some nursing care. That has to be provided by a registered nurse. Other kinds of care which are ancillary to or associated with the nursing care which these residents need does also have to be provided by a registered nurse. Any other approach is contrary to the holistic view which is now taken of looking after the whole person. It is a matter of fact what part of the care provided by registered nurses to residents who have a need for some nursing will fall within this definition; it may or may not be a substantial part of their care; but that is a matter for the decision makers and not for us. I would also accept the view that time spent on paid breaks falls within the definition of nursing care by a registered nurse. Part of providing their caring services is taking the breaks necessary to be able to provide those services properly. The same applies to time spent receiving supervision, which is also a necessary part of providing the caring services they are there to provide. This construction is close, but not identical, to the third argument put forward in the local authorities case. Their first and second arguments, as we have seen, were that the NHS should pay for everything done by a registered nurse whose presence was required in a care home and her time should not be atomised into different tasks. Their third argument was that time spent providing personal or social care, on paid breaks, or receiving supervision, should be included. The respondents argue that they should not be allowed to advance it. However, having rejected both parties primary arguments, it is our task to try to discern the true meaning of the legislation. As the legislation quite clearly envisages that there will be some circumstances in which care does need to be provided by a registered nurse, even though it is not care which only a registered nurse can provide, in my view it is our duty to say so. In my view, therefore, nursing care by a registered nurse covers (a) time spent on nursing care, in the sense of care which can only be provided by a registered nurse, including both direct and indirect nursing time as defined by the Laing and Buisson study; (b) paid breaks; (c) time receiving supervision; (d) stand by time; and (e) time spent on providing, planning, supervising or delegating the provision of other types of care which in all the circumstances ought to be provided by a registered nurse because they are ancillary to or closely connected with or part and parcel of the nursing care which she has to provide. In other words, the concentration in this case on the division between nursing and personal care has been a distraction. There is some personal care which, in all the circumstances, does need to be performed by a registered nurse, but there is some which does not. I agree with Laws LJ that this is a question of fact, although the only practical solution is to make a rough and ready calculation based on the generality of what takes place. Hence I also agree with Laws LJ and Lloyd Jones LJ that some differentiation between the care services provided is required. But I would draw the dividing line in a different place from them. It seems to me plain that Parliament envisaged that some care services would be included beyond those which could only be provided by a registered nurse: hence the addition of category (e) above to the list. Decision It follows from this, and from the earlier concession that stand by time should have been included, that the Health Boards decisions were based on a misinterpretation of section 49(2) and must be quashed and re taken in the light of the guidance given in para 44 of this judgment. Ideally, this should be a matter for negotiation between all the parties who are governed by the legislation and have an interest in the outcome.	The issue in this appeal is whether the National Health Service or local authorities (with means tested contributions from clients) are responsible for paying for the work done by registered nurses in social rather than health care settings. Section 49 of the Health and Social Care Act 2001 provides that a local authority is not required to fund nursing care by a registered nurse, defined in subsection (2) as services involving (a) the provision of care, or (b) the planning, supervision or delegation of the provision of care, other than any services which having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse. The owner of a care home providing nursing services to residents is obliged by regulation to ensure that a registered nurse is working at the care home at all times. This appeal concerns the funding of nursing care for residents who require some nursing care but for whom healthcare is not a primary need. Local Health Boards in Wales (the Boards) decided to pay a flat weekly rate, following a survey which asked nurses to record and categorise the time they spent of different tasks: direct and indirect nursing care time, non nursing care time and other time (which included stand by time, paid breaks and time receiving supervision). The weekly rate excluded payment for time in the last two categories on the basis that these services fell within the exception in s 49(2). The decision of the Boards to interpret s 49(2) in this way was challenged by eleven owners and operators of care homes in Wales, and all (save one) of the Welsh local authorities were joined as interested parties. The High Court quashed the decision, holding that the Boards should fund all the services in fact provided by a registered nurse. The Boards conceded that they should have covered nurses stand by time but appealed the finding in respect of services which need not have been performed by a registered nurse. The Court of Appeal by a majority allowed the Boards appeal. The local authorities appealed to the Supreme Court. The Supreme Court unanimously allows the local authorities appeal. It holds that the Boards have misinterpreted s 49(2) and that their decision must be quashed and re taken in the light of the guidance given in the judgment. Lady Hale gives the only substantive judgment. The background to the introduction of section 49 was the anomaly that nursing care was either provided free by the NHS or bought in by the local authority or residents depending on where it was provided. It was intended to shift the boundary further in the direction of NHS funding, but the words at the end of s 49(2) could not be ignored [26]. If Parliament had wanted to restrict the definition of nursing care by a registered nurse to tasks which could only be performed by a registered nurse then it could and would have said so [36]. Equally, if it had wanted to prohibit local authorities from paying for anything done by a registered nurse in a care home, it also could and would have said this [37]. Instead s 49 began with the broad concept of any services provided by a registered nurse and then limited those services in two ways. The first was to services which involve the care of residents ie looking after them, including personal and social care. The second was to exclude services which having regard to their nature and the circumstances in which they are provided do not need to be provided by a registered nurse. This latter category envisages that there will also be circumstances in which some personal or non nursing care will need to be provided by a registered nurse, care which is associated with or ancillary to the nursing care she is providing [38]. The provision of an overall, holistic, person centred plan for each resident who needs some nursing care requires the nurse to engage in social and personal tasks as part of that care. Some caring tasks cannot sensibly be parcelled up between nursing and non nursing care. It is a matter of fact, and one for the decision makers, what part of the care provided by registered nurses will fall within this definition [39 41]. Time spent on paid breaks and on receiving supervision is, however, a necessary part of providing the services registered nurses are there to provide [42]. Accordingly, the correct interpretation of s 49 is that nursing care by a registered nurse covers (a) time spent directly or indirectly on nursing care, in the sense of care which can only be provided by a registered nurse; (b) paid breaks; (c) time receiving supervision; (d) stand by time; and (e) time spent on providing, planning, supervising or delegating the provision of other types of care which in all the circumstances ought to be provided by a registered nurse because they are ancillary to or closely connected with or part and parcel of the nursing care which she has to provide [44]. The Boards decision was therefore based on a misinterpretation of s 49(2) and must be quashed and retaken in the light of this guidance, ideally after negotiation with all the parties governed by the legislation and with an interest in the outcome [46].
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	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].
The court is asked to decide whether the services provided by a specialised air handling system, used in connection with refrigerated merchandise in the appellants retail store, are manufacturing operations or trade processes for rating purposes. This turns on the construction of the Valuation for Rating (Plant and Machinery) (England) Regulations 2000 (SI 2000/540) (the 2000 Regulations). If they are, then the air handling system falls to be ignored in calculating the rateable value of the premises. The Valuation Tribunal decided this issue in favour of the appellants. That finding was reversed by the Upper Tribunal ([2015] UKUT 0014 (LC)), whose decision was upheld by the Court of Appeal ([2016] EWCA Civ 1150; [2017] Bus LR 766). Facts The facts (as found by the Upper Tribunal) were set out in full in the judgment of the Chancellor (with whom Gloster and Sharp LJJ agreed) in the Court of Appeal. It is sufficient here to note the main points. Iceland is a well-known supermarket operator specialising in the sale of refrigerated foods, with more than 800 stores in the UK and Ireland. The appeal property, at 4 Penketh Drive, Liverpool, is typical. It is a small retail warehouse forming part of a larger retail development known as the Speke Centre. Iceland took occupation in May 2007. The property was let in a shell condition, and the air-handling system was installed by Iceland. Its business is mainly focused on the sale of refrigerated products, which represent roughly 80% of its sales by value, divided evenly between chilled and frozen lines. At the Penketh store, frozen and chilled products are stored and displayed in about 80 refrigerated cabinets, arranged around the perimeter of the sales floor and in four aisles running from front to rear. All but one of the cabinets at the Penketh store are integral rather than remote units. The Upper Tribunal explained the difference: 18. The object of any refrigerator is to maintain the internal temperature (and thus that of the goods stored in it) at the desired level by absorbing heat from within the cabinet and expelling it outside the cabinet by means of a condenser. Integral cabinets achieve this using refrigeration equipment and condensers installed within the body of the cabinet itself, and by expelling heat to the environment immediately surrounding the cabinet. Remote cabinets, in contrast, employ refrigeration equipment at a distance from the cabinets; heat is absorbed by a liquid refrigerant which is conveyed to the cabinet through pipes permanently installed in the store and is expelled remotely through condensers located outside the building. 20. As integral cabinets are designed to operate below a particular ambient temperature (25C in the case of Icelands cabinets) the heat generated by the cabinets themselves must be controlled to ensure that they perform as intended and do not malfunction. Where a large number of integral cabinets is present in a confined space, it is necessary to provide an air handling system with a correspondingly large cooling capacity. If the design parameters of the cabinets are exceeded the permitted product storage temperature within the cabinets may be breached causing a deterioration in the quality of the products stored or displayed in them. The advantages for Iceland of integral cabinets include flexibility, independence of operation, and lower capital cost. It is common ground that the value of the cabinets themselves is to be left out of account for rating purposes. The air handling system was described by the Upper Tribunal as follows: 12. The air handling system provides a ventilating, heating and cooling service to the appeal property, and comprises three main elements. A large air handling unit with a mechanical cooling capacity of approximately 85 kW is located outside and to the rear of the building; this unit serves a network of ducts by which warm or cold air is supplied to and extracted from the retail area through an array of ceiling mounted diffusers and grilles. On our inspection we were able to observe the air handling unit and to contrast it with the very much smaller units on the rear walls of adjoining stores - one of which is considerably larger than the [premises]. Icelands equipment occupies its own fenced compound and in size and shape resembles a very large refuse skip (4.5 metres by 2.35 metres in area) from which rise two vertical supply and return air ducts, each a metre square, which enter the rear wall of the building 4 metres above the ground. A separate but linked mechanical extract system is located at the rear of the retail area, furthest from the entrance, to deal with the removal of excess heat in that area. Finally, the whole system is controlled by means of a computerised control unit located adjacent to the air handling unit. The air handling system functions at all times, day and night. It is designed and programmed to maintain the store temperature during trading hours at an acceptable level for both the functioning of the refrigerated cabinets and the comfort of staff and customers. To achieve the acceptable temperature range during trading periods, Icelands control strategy targets a temperature within the store of 21C which is in the middle of the recommended range of comfortable temperatures for staff and customers. For the majority of the time an acceptable temperature is maintained on the sales floor without the use of mechanical cooling, but at 21C mechanical cooling commences. The aim is to ensure that the maximum temperature at which the cabinets are designed to function is not exceeded. Although a substantial proportion of the heat load is generated by other sources, the cabinets are by far the largest single contributor. Without the integral cabinets, the heavy-duty air handling system installed in the store would not be required and a very much smaller system would be sufficient. The statutory provisions Schedule 6 to the Local Government Finance Act 1988 is headed Non- Domestic rating: Valuation. Paragraph 2(1) provides that the rateable value of a non-domestic hereditament is taken to be an amount equal to the rent at which it is estimated the hereditament might reasonably be expected to let from year to year on certain specified assumptions (none of which is now in issue). By paragraph 2(8), the Secretary of State is authorised to make regulations providing that in applying the preceding paragraphs, in relation to a hereditament of a prescribed class, prescribed assumptions (as to the hereditament or otherwise) are to be made. The 2000 Regulations were made under that provision. The present form and content of the regulations are derived from a report by an Expert Advisory Committee under the chairmanship of Mr Derek Wood QC, Rating of Plant and Machinery (Cm 2170) (the Wood Report), published in March 1993. The committee was established to review the law and practice relating to the rating of plant and machinery, with a view to updating and harmonising it throughout the United Kingdom. The report was followed by the Valuation for Rating (Plant and Machinery) Regulations 1994 (SI 1994/2680), which replaced the previous law. They were in turn replaced by the 2000 Regulations (applying to England only, following devolution), but without any change to the provisions material to this appeal. As indicated in the explanatory notes to both sets of regulations, they reflected the recommendations of the Wood Report. (Equivalent Regulations, also said to reflect the Wood recommendations, have been made by the relevant legislatures in Scotland, Wales, and Northern Ireland.) It will be necessary to refer in more detail later to parts of the Wood Report, which is clearly an appropriate aid to construction of the Regulations (see Bennion on Statutory Interpretation 7th ed (2017), para 24.9). plant and machinery. It provides: Paragraph 2 of the 2000 Regulations is headed Prescribed assumptions as to 2. For the purpose of determining the rateable value of a hereditament for any day on or after 1 April 2000, in applying the provisions of sub-paragraphs (1) to (7) of paragraph 2 of Schedule 6 to the Local Government Finance Act 1988 - (a) in relation to a hereditament in or on which there is plant or machinery which belongs to any of the classes set out in the Schedule to these Regulations, the prescribed assumptions are that: any such plant or machinery is part of the (i) hereditament; and (ii) the value of any other plant and machinery has no effect on the rent to be estimated as required by paragraph 2(1); and (b) in relation to any other hereditament, the prescribed assumption is that the value of any plant or machinery has no effect on the rent to be so estimated. It is important to emphasise the significance in the valuation of the Classes set out in the Schedule. Those Classes are the only categories of plant and machinery which are brought into account for valuation purposes. They are in effect exceptions to the general rule (embodied in sub-paragraphs (a)(ii) and (b)) that the value of plant and machinery has no effect on the estimation of value of the hereditament for rating purposes. The Schedule sets out the classes of plant to be assumed to be part of the hereditament (in the words of the title). In broad terms, Class 1 covers plant and machinery used for generation, storage or transmission of power on the hereditament. Class 2 (relevant in this case) covers plant and machinery used in connection with heating, cooling and other services to the hereditament. Class 3 covers such items as railway lines, lifts, cables and other items used for transmission of electricity or communications, pipe-lines and drain or sewers. Class 4 covers a number of bulky items of plant and machinery (listed in Tables 3 and 4) such as blast furnaces, fixed cranes, and turbines and generators, but excludes smaller movable items (not exceeding 400 cubic metres) and those that are not in the nature of a building or structure. Class 2 provides: Plant and machinery specified in Table 2 below which is used or intended to be used in connection with services to the hereditament or part of it, other than any such plant or machinery which is in or on the hereditament and is used or intended to be used in connection with services mainly or exclusively as part of manufacturing operations or trade processes. (emphasis added) Services are defined as meaning - heating, cooling, ventilating, lighting, draining or supplying of water and protection from trespass, criminal damage, theft, fire or other hazard. The plant and machinery specified in Table 2 includes (under the heading Heating, Cooling and Ventilating) ten items of equipment (such as water heaters, and refrigerating machines) and associated accessories. It is not in issue that the disputed air handling system is covered by the Table, nor that it is used in connection with services to the hereditament within the meaning of Class 2. The only issue is whether it is excluded by the italicised words quoted above. For simplicity in this judgment (following earlier usage - see below), I shall refer to those words as the Class 2 proviso or the proviso. References in the judgment to the word plant should be read (where appropriate) as including reference also to machinery. Legislative history In this court, as in the Court of Appeal, both parties sought to draw assistance from the background history of these provisions, dating back to the latter part of the 19th century, and including reports by a number of expert committees. The history is of some value in explaining the genesis of Class 2, and more particularly the background of the law and practice as understood at the time that the Wood Committee made its recommendations. The main problem has been to draw a defensible line between, on the one hand, plant properly treated as part of the hereditament for the purpose of assessing its hypothetical letting value, and plant more fairly attributable to the tenants business within it (the tools of the trade), having regard also to the need to keep up with changes in technology. The search for a coherent legislative solution can be traced back to the much-criticised decision of the House of Lords in Kirby v Hunslet Union Assessment Committee [1906] AC 43. The House there disapproved a distinction based on whether the plant was a fixture, in the traditional land law sense, but failed (so it was said) to put in place a workable alternative. The resulting uncertainty led in due course to the establishment of an inter- departmental committee (the Shortt Committee), to inquire into the law and practice regarding the rating of plant in both England and Scotland. The committee reported in February 1925: Report of the Inter-Departmental Committee on the Rating of Machinery and Plant in England and Wales (Cmd 2340). Its recommendations led in turn to the enactment of the Rating and Valuation Act 1925. Section 24 of that Act, taken with the Third Schedule, can be seen as setting the pattern, albeit in simpler form, for subsequent enactments including the 2000 Regulations. It established the general principle that value of plant on the hereditament was to be left out of account for rating purposes, save for the classes specified in the Schedule, which were deemed to be a part of the hereditament. There is a helpful description of the general effect of the Third Schedule in the judgment of Lord Hewart CJ in Townley Mill Co (1919) Ltd v Oldham Assessment Committee [1936] 1 KB 585 (DC), although the facts (relating to plant in a disused mill) are too different from the present to make it of any direct assistance. In particular he drew a distinction (as had the Shortt Committee, para 15) between motive and process plant, only the former being taken into account for rating purposes. He said: When one turns to the Third Schedule of the Act, it is apparent that it enumerates that type of machinery and plant which is conveniently described in the case as motive machinery; it is the machinery without which the mill could not begin to work, as, for example, the generation of power, heating and cooling, lifts and elevators, railways, tramlines and tracks, and other things, the foundation of that which was to become the work of the mill. When the machinery and plant referred to in the Third Schedule are eliminated, what is left is the kind of machinery which is concisely described in this case as process plant and machinery, operative plant and machinery, working and manufacturing plant and machinery. By section 24(1)(b), no account is to be taken of the value of any plant or machinery of that kind (p 598) He noted that under the previous law the value of plant in a mill, though not rated as such, was taken into account as enhancing the value of the hereditament to be rated (p 599). The effect of the Act, intended as beneficial to those interested in the carrying on of industry, was to get rid of all the doctrine of enhanced value, and to lay it down that process plant must henceforth be disregarded when ascertaining the rateable value of the hereditament (pp 602-603). The decision was upheld by the House of Lords, where can be found statements to similar effect (see [1937] AC 419, pp 428-429 per Lord Russell of Killowen). Turning to the detail of the Third Schedule, Class 1(b) can be seen as the precursor of Class 2 of the current regulations. It covered plant used - mainly or exclusively in connection with - (a) (b) the heating, cooling, ventilating, lighting, draining, or supplying of water to the land or buildings of which the hereditament consists, or the protecting of the hereditament from fire: Provided that, in the case of machinery or plant which is in or on the hereditament for the purpose of manufacturing operations or trade processes, the fact that it is used in connection with those operations or processes for the purpose of heating, cooling, ventilating, lighting, supplying water, or protecting from fire shall not cause it to be treated as falling within the classes of machinery or plant specified in this Schedule. (emphasis added) The other classes were (in very broad terms) similar in scope to what became the classes in the 2000 Regulations (see para 9 above). The italicised words in the proviso to Class 1 seem to have been the first appearance in this context of the expression manufacturing operations or trade processes. The circumstances in which the proviso came to be included are of some historical curiosity, since it was proposed by Mr Neville Chamberlain MP, as the responsible Minister (Hansard Standing Committee A, 4 August 1925, col 1093). He explained the purpose as being to exclude such processes as really belong to the precise work which is being carried on in the shops rather than the general heating or ventilating of the plant. He gave an example: where, for instance, a man is polishing at a buff, and there is a fan drawing off the dust so that it shall not go down his throat, that is to be treated as part of the machinery, and not as part of the heating or ventilating plant which is run. It is unnecessary to decide whether those observations are admissible under the principle in Pepper v Hart [1993] AC 593 (see Bennion op cit para 24.11). The general purpose is clear enough from the wording of the proviso itself, and the example is so far from the present facts as to be of no practical assistance in this appeal. Returning to the 1925 Act itself, section 24(3)-(6) enacted a procedure to provide more precise information about the contents of the specified classes. A special committee was to be established to prepare a statement setting out in detail all the machinery and plant [appearing] to fall within any of the classes specified in the Schedule. The statement (modified if necessary following consultation) was to be embodied in a Ministerial order having effect as though substituted for the Third Schedule. Provision was also made for its subsequent revision at intervals as directed by the Minister. The first such order was made in 1927 (The Plant and Machinery (Valuation for Rating) Order 1927 (SR & O 1927/480)). No further change was made until the setting up of the Ritson Committee, which reported in 1959: Report of the Committee on the Rating of Plant and Machinery. Its report included a revised statement under section 24(4), leading to the Plant and Machinery (Rating) Order 1960 (SI 1960/122). Between 1987 and 1990, section 24 was replaced in similar terms by section 21 of the General Rate Act 1967, which preserved the 1960 regulations (section 117(3)). The first regulations made under the 1988 Act (The Valuation for Rating (Plant and Machinery) Regulations 1989 (SI 1989/441)) were in similar form. There was no material change to the substance of Class 1(b) (or 1B as it became) over this period. Meanwhile, as explained by the Wood Report (chapter 4), the law in Scotland had developed separately. The general rule was established by section 42 of the Lands Valuation Act (Scotland) Act 1854 (17 & 18 Vict, c 91), which included within the definition of lands and heritages subject to rates all machinery fixed or attached to any lands or heritages. The perceived burden was partially relieved by the Lands Valuation (Scotland) Amendment Act 1902 section 1, which added a proviso to section 42, limited to any building occupied for any trade, business or manufacturing process. More recently, in response in part to unfavourable comparisons with the position in England, the Local Government and Planning (Scotland) Act 1982 section 4 gave the Secretary of State power to amend the proviso to section 42. That was done by the Valuation (Plant and Machinery) (Scotland) Order 1983 (SI 1983/120). It included (inter alia) an exception for certain categories of plant used in an industrial or trade process, if located wholly or mainly outwith any building (regulation 3(2)). The Wood Report As already noted, the 2000 Regulations were designed to reflect the recommendations of the Wood Report. The committee included representatives of the professions, and the private sector, and of the Valuation Offices of the three jurisdictions The report itself contains a valuable survey of the development of the law, in the different parts of the United Kingdom, and discussion of its difficulties and inconsistencies. Chapter 8, headed The new scheme - competing principles, outlined the committees general approach. In particular they accepted the validity up to a point of a tools of the trade exemption, but considered that it must be subject to qualification in the interests of fairness as between ratepayers (paras 8.6-7). They commented on the problems of dealing with plant used to provide services to a building but also having a trade purpose. Since this passage is relied on by Mr Morshead QC for the respondent, it is right to quote it in full: 8.8 What we have said so far relates to plant and machinery which is used for the purpose of a trade or industrial process. There is also the problem of plant and machinery which is introduced for the purpose of providing services for the premises, or which forms part of its infrastructure. This type of equipment has never given rise to any difficulty as a matter of principle. In the letting market landlords typically provide the services and infrastructure, and it has been taken for granted that such items should always be deemed to form part of the hereditament, even in the case of property which is not normally found in that market. 8.9 The difficulty arises in the practical application of the principle, again as our predecessors have found, because it is extremely unusual, in the case of large-scale industrial property, to find plant and machinery which is installed exclusively for the purpose of providing general services, such as light, heat and ventilation, and is not also closely bound up with the trade process. In the existing regulations in each of the countries of the United Kingdom it has therefore proved necessary to draw some fairly arbitrary line in order to indicate the point up to which such plant and equipment can fairly be rated, by analogy with commercial hereditaments generally, and beyond which rateability should cease, because at that stage it is impossible in practical terms to disentangle the service from the process function. We have looked at the boundaries which have been drawn in the past, and have re- drawn them in order to simplify the task of valuers, assessors and agents and to reflect some of the technical changes which have taken place in industry since they were last reviewed. The committee concluded, at para 8.10, that the underlying conceptual approach of the existing regulations in each part of the UK was soundly based. They then summarised the principles on which future regulations should be based: Rateability should continue, in our opinion, to be determined in accordance with the following rules: (1) that the land and everything which forms part of it and is attached to it should be assessed; (2) that process plant and machinery which can fairly be described as tools of the trade should be exempt within certain limits; (3) that process plant or machinery (in certain cases exceeding a stated size) which is or is in the nature of a building or structure or performs the function of a building or structure should, however, be deemed to be part of the hereditament or subject; (4) that service plant and machinery, and items forming part of the infrastructure of the property should be rated; and (5) that, in the case of plant and machinery which performs both a service and a process function sensible lines have to be drawn which will indicate exactly how much falls to be rated and how much does not. In chapter 9, the committee commented specifically on Class 1B of the English regulations (paras 9.11-12). They noted the distinction between plant and machinery which services property, and that provided for use in connection with the trade process being undertaken, adding: But many services in non-domestic property, which might be found whatever the use of the property, are also used incidentally for manufacturing operations in some instances. The definition in Class 1B was not free from ambiguity and had given rise to disputes as to when plant should be treated as falling within it. As an example of the problem, they referred to the treatment of an air-conditioning plant, which may have been installed to facilitate a particular process - for instance computer suites or clean rooms, or to enhance the working conditions of employees, but it was impossible to distinguish between the two purposes. They concluded: 9.14 We have considered whether the current definition should be amended or dropped altogether. For example, we discussed whether it might be preferable to exclude from rateability only that service plant which solely supports a process function. However to treat plant as process plant only if it was wholly for process purposes would increase the rateability of this type of plant and machinery. Such plant is rarely met in practice. As an alternative, we considered whether it would be possible to apportion the value of the plant between Classes 1B and 4 reflecting the relative use for service and process activity. But this would run contrary to our desire for cost-effectiveness of valuation effort and could create new opportunities for dispute. 9.15 We therefore conclude that notwithstanding the difficulties which have been encountered in deciding the degree to which plant is used for process purposes the law as we understand it in both England and Scotland should remain unaltered but that the draftsmanship should be improved to eliminate the difficulties inherent in the English Regulations. Although the committee did not include their own draft, these paragraphs can be taken as a useful indication of the thinking behind the Class 2 proviso in its current form. Annex L to the report contained a Summary of worked examples with Wood Committee recommendations. This listed some typical items of plant and machinery, for different categories of Industry, with an indication of their rateability respectively in England (including Wales, and Northern Ireland), Scotland, and under the Wood recommendations. One category, headed Industry - (e) Retail distribution, included the example of refrigeration plant, and gave the answers as no, yes, no; so indicating that, at least in the perception of the Committee, such refrigeration plant was currently exempted from rateability and should continue to be so under their recommendations. It is also of interest that the Committee received written evidence from the Cold Storage and Distribution Federation, and the National Association of Warehousekeepers, and paid a visit to the Safeway Main Distribution Centre. Finally, in anticipation of a submission of Mr Morshead, I should note one feature of the Scottish system on which the Wood Committee commented unfavourably. This was the distinction drawn by the 1902 Act between, on the one hand, premises occupied for any trade, business or manufacturing process, and other types of premises, for example, institutional premises such as hospitals, schools, colleges and universities . They recommended against the perpetuation of this distinction in the harmonised system (paras 5.2(1), 8.21, 13.19). The decisions below and the submissions in the appeal The decisions The Upper Tribunal (paras 64-66) found difficulty in finding a satisfactory line to distinguish between uses which amount to trade processes and those which do not. They thought that the conjunction of the expression with manufacturing operations, and the fact that it was an exception to a general rule, pointed to a less expansive approach to the scope of trade processes. They saw force in Mr Morsheads submission that - the common defining characteristic of manufacturing operations and trade processes is activity bringing about a transition from one state or condition to another, including by the creation, completion, repair or improvement of the subject matter of that activity. They did not think that the display or storage of goods in itself, nor the creation of an environment conducive to the display or storage of goods, could properly be regarded as involving a trade process. The requirement of a particular retailer for more substantial or powerful equipment than is normally found in retail premises did not create a relevant distinction. They added: 66. All retail warehouses require heating, cooling and ventilation to a greater or lesser extent. We do not consider that the plant and machinery installed to provide those services can properly be regarded as being used or intended to be used as part of manufacturing operations or trade processes. We appreciate that the scale of Icelands particular air handling system is dictated by the presence in its store of substantial numbers of integral cabinets, each of which creates heat, and which collectively are essential to Icelands preferred style of trading. A serious malfunction of the air handling system would therefore put its stock at risk. That feature distinguishes Icelands air handling needs from those of other retailers, but we do not regard that difference as critical. Although the particular needs of Iceland create a greater need for those services than the norm, we do not agree that they make its air handling system an exception to the general rule that such plant and machinery is to be assumed to be part of the hereditament and therefore to be rateable. The tribunal went on to consider whether, assuming the air handling system was used as part of a trade process, it was mainly so used. They would have answered this question in favour of Iceland. They accepted Icelands evidence that the main technical and operational reason for Icelands selection of this air handling system is its suitability for the maintenance of an environment in which integral cabinets can operate successfully (para 78). This part of their decision has not been challenged. In the Court of Appeal, the Chancellor (paras 40-46), having found little help in the authorities cited or the legislative history, relied on the usual principles of construction. He agreed substantially with the reasoning of the Upper Tribunal. He thought that, normally at least, manufacturing operations and trade processes would be activities that bring about a transition from one state or condition to another, and would include the creation, completion, repair or improvement of the subject matter of that activity (para 41). He noted also that the relevant sub-clause was an exception, not a proviso, and should be construed quite narrowly (para 42). He thought the display of goods for retail sale was the antithesis of a trade process. He accepted that the process of freezing chickens would probably be a trade process, but not just keeping them frozen to be offered for sale. He also agreed with the tribunal that the fact that the environment appropriate for the methods of a particular retailer requires more substantial and complex equipment than normal does not mean that it is used for a trade process (para 45). The submissions In this court, Mr Kolinsky QC for Iceland submitted that the Court of Appeal misunderstood the underlying purpose of the legislation, as disclosed by a study of the legislative history, and adopted an unduly restrictive reading of the provision. He identified Icelands trade process as the continuous freezing or refrigeration of goods to preserve them in an artificial condition without which they would be worthless. Neither the ordinary use of language nor the case law justified the view that a transition was required from one state to another. He relied (as he did in the Court of Appeal) on three authorities which supported a wider approach: i) Union Cold Storage Co Ltd v Southwark Assessment Committee (1932) 16 R & IT 160, relating to the application of the precursor of Class 4 of the 2000 Regulations to cooling chambers in a warehouse used for storing food. The case proceeded on the basis (recorded at p 164) that the chambers were admittedly plant on the hereditament for the purpose of manufacturing operations or trade processes. ii) Union Cold Storage Co Ltd v Bancroft [1931] AC 446, where the issue was whether, for the purposes of industrial derating, certain refrigeration equipment was for storage purposes or for the purposes of altering or adapting goods for sale. Viscount Dunedin described the plant as used as part of an elaborate process involving the use of machinery for the preservation of goods during storage (pp 492-493). iii) Assessor for Lothian Region v BP Oil Grangemouth Refinery Ltd (1985) SLT 453, where the Lands Valuation Appeal Court proceeded on the basis that a marine terminal at a petrochemical works, used solely for the purpose of loading refined oil, was premises used in an industrial or trade process (p 459, per Lord Ross). As a further illustration of the practice of the Valuation Office at the time of the Wood Report, he referred to Hays Business Services Ltd v Raley (Valuation Officer) [1986] 1 EGLR 226 (LT) (Emlyn Jones FRICS). That concerned a warehouse used for the storage of archival materials including documents, films and audio-magnetic tapes. For some items of a sensitive nature, there had been installed specialist items of plant, including heating plant, humidifiers, and fire-protection equipment which utilised Halon gas so as to extinguish fires without damaging the stored items. The tribunal recorded that the Solicitor for the Inland Revenue, for the Valuation Officer, had conceded that the specialist heating and humidification equipment were non-rateable (p 227J). The tribunal reached the same conclusion in respect of the fire protection plant, which was not rateable because it was on the hereditament primarily to protect the material that is stored there. It added: Even if it were to be found that this could only be done by the protection of the building and therefore that that was the main use of the equipment, it would nevertheless not be included within the schedule because it was there expressly for the purpose of the trade process being carried on. (p 228E) To similar effect, Mr Kolinsky relied also on the Wood Report, which proceeded on the assumption that an air-conditioning plant installed to facilitate a particular process such as a computer suite, was excepted from rating (see the passage quoted at para 23 above). He found more recent support for the same broad approach in Leda Properties Ltd v Howells (Valuation Officer) [2009] RA 165 (LT George Bartlett QC President). Although no issue arose under the proviso as such, it was common ground that the sophisticated air handling system of a computer hall, described in the decision (para 3) as provid[ing] the temperature and humidity control necessary for process purposes, was to be left out of account under the regulations (paras 3, 34). Mr Kolinsky (who coincidentally appeared on that occasion for the respondent Valuation Officer) asked us to note that the Valuation Officer, Mr Howells, was described as having had since 1996 a lead role in the valuation of specialist classes of property, including computer centres (para 32). We were asked to infer that the common ground reflected the Valuation Offices considered and established position at the time. For the Valuation Officer, Mr Morshead supported the reasoning of the Upper Tribunal and the Court of Appeal. Like them he submitted that the Class 2 proviso constitutes an exception to the general principle of rateability, and should be narrowly construed. The composite phrase manufacturing operations or trade processes must be read as a whole. It was not enough that the ratepayers activity could be labelled as a trade and that one or more of its activities could be labelled as a process. This was the error made by the tribunal in the Hays case, the reasoning of which was plainly misconceived. The Union Cold Storage cases, to the extent that the statutory context was the same, were not necessarily comparable on the facts. In so far as they involved the application of a reduction in temperature to turn fresh goods into frozen or chilled ones, it would be uncontentious to describe that activity as a manufacturing operation or trade process. He referred also by way of analogy to the Capital Allowances Act 1968 section 7, which defines industrial building as including (inter alia) a building in use for the purposes of a trade which consists in the subjection of goods to any process (section 7(1)(e)). In Bestway (Holdings) Ltd v Luff [1998] STC 357, 381, Lightman J had summarised, under heads (1) to (7), the effect of the authorities on the meaning of the expression subjection to process (notably Kilmarnock Equitable Co-operative Society Ltd v Inland Revenue Comrs (1966) 42 TC 675, 1966 SLT 224): (3) Subjection to a process means a treatment (or course of operations) involving the application of a method of manufacture or adaptation of goods or materials towards a particular use, purpose or end This showed that process implied some form of adaptation of the goods, not simply their storage in a constant state as in this case. Mr Morshead also went further than the Court of Appeal. He submitted that Icelands retail activities were wholly outside the scope of the Class 2 proviso, which was directed towards plant serving productive activities in industry, rather than commercial activities more generally. He supported that submission by reference to the history, including the reports summarised above, and specifically to the Wood Report (in particular paras 8.8-9 quoted above). He read the report as recognising a wide-ranging general rule applicable to commercial hereditaments generally, distinguished from the activities of industry; and as proposing for the latter (in his words) an exemption only in the narrow case of plant which serves a process function in industry. Discussion It is appropriate to begin by addressing Mr Morsheads broader submission, not in terms adopted by the Upper Tribunal or the Court of Appeal: that is, that the Class 2 proviso was concerned with productive activities in industry and not with other forms of commercial activity, such as the retail activities of Iceland. With respect to him, and to those instructing, I find this an impossible contention, both on the wording of the Regulations and against the background of the Wood Report. As to the first, if the draftsman had wished to limit the proviso to industrial activities, it would have been easy to say so. The inclusion of trade processes, as an alternative to manufacturing operations can only be read as designed to widen the scope of the proviso to include other forms of trade and their processes. Trade is a familiar word which naturally extends to Icelands retail activities. Subject to the interpretation of the word process, there is nothing in the proviso or in its context to justify a narrower approach. Further, far from gaining support from the Wood Report, the submission seems to me wholly inconsistent with it. It is true that there were some references in chapter 8 to particular issues affecting industry, but I cannot read those as intended to limit the scope of the recommendations more generally. On the contrary, the emphasis was on the principle of fairness between ratepayers, which was regarded as of paramount importance for the political credibility of the business rating system (para 8.6). Nor was there any such limitation in the general rules proposed at paragraph 8.10, or the specific discussion of Class 2 (paras 9.14-15) (see above). Rule (2) proposed exemption for plant and machinery that can fairly described as the tools of the trade, without any limitation of the nature of the trade. Similarly rule (5) which dealt with the need to draw lines between the service and process functions was expressed in general terms. The submission is even less easy to reconcile with the Scottish legislation, which referred to any trade, business or manufacturing process. As noted above, the report criticised that, not for extending its scope too far, but for not going far enough. Finally, Mr Morshead was unable to explain why, if his submission were correct, the worked examples extended to retail distribution; nor why from 1986 until as recently as 2009 the practice of the Valuation Office had apparently taken a wider view, so as for example to treat air conditioning plant for a computer centre as within the scope of the proviso. The Hays case (1986) is of course not binding on this court, nor indeed on the Valuation Office. It is unnecessary to decide whether on its facts it was correctly decided. However, if it had been thought in any way controversial at the time of the Wood Report, it would be very surprising for it not to have been addressed. Turning to the reasoning below, the Court of Appeal and the Upper Tribunal both saw the proviso as an exception to a general rule, to be construed narrowly; and as naturally referring to a process designed to bring about a transition from one state to another. The Court of Appeal even saw some significance in the change (between 1925 and 1994) from a proviso to an exception: para 42. In my view this approach pays insufficient regard to the place of the proviso in the scheme of the Regulations as a whole. Whatever word has been used at different times, it is and always was an exception to an exception. As already explained, the classes are themselves exceptions to the general rule of non-rateability; the relevant proviso (or exception) brings items of plant back into the scope of the general rule. The rationale is that, although they may provide a service to the building, they also provide a service to the activities of the trader within it, and the latter is their main or exclusive function. They are therefore more fairly considered for rating purposes as tools of the trade (in the words of the Wood Report) within the general rule of non- rateability. There is certainly nothing in the Wood Report to suggest that the use of the word except or the other changes of language were intended to signal a substantive change. On the contrary, the passages quoted above show that the intention was to retain the law substantially without alteration, while improving the draftsmanship. How this was done (reflecting the language of Wood Report paras 9.11-12) is apparent from a comparison of the wording of the 2000 Regulations with that of its predecessors. An important change was the introduction of the expression services to distinguish the functions of different categories of plant. Thus, it is recognised that plant which is used in connection with services to the hereditament may also be used in connection with services as part of manufacturing operations or trade processes . Viewed in this way, the key distinction lies in the main use to which the services are put: in connection with the hereditament, or with the processes within it. In my view, there is nothing in the word process itself which implies a transition or change. The cases under the Capital Allowances Act 1968 were no doubt coloured by the context, related to industrial buildings, and the need for goods to be subjected to a process. This is apparent in particular from the opinion of Lord Guthrie in the Kilmarnock case (42 TC 675, 681, 1966 SLT 224, 228). He recognised process as a word with various meanings some wider than others, including the widest significance of anything done to the goods or materials; but in conjunction with the word subjection a narrower reading was appropriate. I agree respectfully with that view of the wider meaning of the word process, which is also consistent with the standard dictionary definitions. A trade process is simply a process (in that wide sense) carried on for the purposes of a trade. Mr Kolinsky submits that, in the context of Icelands trade, the word is apt to cover the continuous freezing or refrigeration of goods to preserve them in an artificial condition. I agree. Since the services provided by the relevant plant have been held to be used mainly or exclusively as part of that trade process, they should be left out of account for rating purposes. For these reasons, I would allow the appeal, and, on this issue, restore the decision of the Valuation Tribunal.	The appellant (Iceland) is a well known supermarket operator, specialising in refrigerated goods. Its premises include a retail warehouse at Penketh Drive, Liverpool (the Property). The issue in the appeal is whether the services provided by an air handling system (AHS), used in connection with refrigerated goods at the Property, are manufacturing operations or trade processes under the Valuation for Rating (Plant and Machinery) (England) Regulations 2000 (the 2000 Regulations). If they are, then the AHS is to be ignored in calculating the rateable value of the Property. The issue arises because Iceland unsuccessfully applied to the Valuation Officer in 2010 to reduce the rateable value of the Property on that basis. Iceland then appealed to Valuation Tribunal, which decided the issue in Icelands favour. That finding was reversed by the Upper Tribunal, whose decision was upheld by the Court of Appeal. Iceland appealed to the Supreme Court on the issue. The Supreme Court unanimously allows the appeal. Lord Carnwath gives the judgment, with which Lord Kerr, Lord Reed, Lord Hughes and Lady Black agree. Under paragraph 2(1) of Schedule 6 to the Local Government Finance Act 1988, the rateable value of a non domestic hereditament is taken to be an amount equal to the rent at which it is estimated the hereditament might reasonably be expected to let from year to year on the basis of certain prescribed assumptions. Prescribed assumptions are set out in the 2000 Regulations [6]. The 2000 Regulations are derived from the recommendations of a report by an Expert Advisory Committee under the chairmanship of Mr Derek Wood QC (the Wood Report) published in 1993. The Committee reviewed the law and practice relating to the rating of plant and machinery, with a view to updating and harmonising it throughout the United Kingdom [7]. The prescribed assumptions under paragraph 2 of the 2000 Regulations include the assumption that any plant or machinery, if it belongs to any class listed in the Schedule to the 2000 Regulations, is assumed to be part of the hereditament in or on which it is situated. The classes in the Schedule are in effect exceptions to the general rule that the value of plant and machinery cannot affect the estimated value of the hereditament for rating purposes. [8]. Class 2 in the Schedule consists of: Plant and machinery specified in Table 2 below which is used or intended to be used in connection with services to the hereditament or part of it, other than any such plant or machinery which is in or on the hereditament and is used or intended to be used in connection with services mainly or exclusively as part of manufacturing operations or trade processes. (Emphasis added.) It is common ground that the AHS is covered by Table 2 and that it is used in connection with services to the hereditament. The only issue is whether the AHS is excluded from Class 2 by the wording italicised above (the Proviso) [9 10]. The history of the legislation provides useful background to the law as it stood at the time of the Wood Report. Historically, it has been difficult to draw a defensible line between, on the one hand, plant and machinery properly treated as part of the hereditament when assessing its hypothetical letting value, and plant and machinery more fairly attributable to the tenants business within it (the tools of the trade). Lord Carnwath traces the development of the law on the issue in England and in Scotland, where the law developed differently, up to the time of the review by the Wood Committee [12 19]. The Wood Report accepted the validity up to a point of a tools of the trade exemption, subject to qualification in the interests of fairness between ratepayers. The Committee accepted the underlying conceptual approach of the regulations in each part of the UK as soundly based. It recommended, amongst other things, that future regulations be based on the principle that process plant and machinery which can fairly be described as tools of the trade should be exempt within certain limits [20 22]. The Committee commented specifically on the predecessor in the English regulations to Class 2, describing it as not free from ambiguity. They concluded that, despite such difficulties, the law as we understand it in both England and Scotland should remain unaltered but that the draftsmanship should be improved to eliminate the difficulties inherent in the English Regulations. Annex L to the Report also contained various examples, including that of refrigeration plant. The Committee concluded that this was exempted and should remain so under their recommendations [23 24]. In the Supreme Court the respondent advanced a broader case than that adopted by the lower courts. This broader argument was that the Proviso concerned productive activities in industry only and not other commercial activities, such as Icelands retail activities. This contention was impossible in view of (i) the wording of the 2000 Regulations and (ii) the background of the Wood Report. As to the first, the draftsman could have easily restricted the Proviso to industrial activities, but the inclusion of trade processes, as an alternative to manufacturing operations, instead widens it. The word trade naturally extends to Icelands retail activities. Subject to the meaning of the word process, nothing in the Proviso or its context justifies a narrower approach [34]. As to the second, the respondents broad contention was inconsistent with the Wood Report, which emphasised the principle of fairness between ratepayers. No such limitation was proposed in the discussion of what became Class 2. Its proposed rules included a the tools of the trade exemption, without limiting the nature of that trade. Its proposed rule dealing with the need to draw lines between service and process functions was expressed in general terms [35]. The respondents contention was even harder to reconcile with the Scottish legislation, which referred to any trade, business or manufacturing process and which the Wood Report criticised for not going far enough [36]. Turning to the reasoning of the Court of Appeal and the Upper Tribunal, both saw the Proviso as an exception to be construed narrowly; and as referring to a process designed to bring about a transition from one state to another. That pays insufficient regard to the place of the Proviso within the scheme of the regulations as a whole: it is and always was an exception to an exception. It brings items of plant back into the scope of the general rule. The rationale is that, although they may provide a service to the building, their main or exclusive function is to provide a service to the activities of the trader within it. They are therefore more fairly considered as tools of the trade [37]. Nothing in the Wood Report suggests that changes of language in the relevant provisions over time were intended to signal any substantive change. On the contrary, the intention was to retain the law substantially without alteration, while improving its draftsmanship [38]. There is nothing in the word process itself implying a transition or change. It has various meanings. In its widest sense, it includes anything done to goods and materials. A trade process is simply a process (in that wide sense) carried on for the purposes of a trade [39]. In the context of Icelands trade, the word is apt to cover the continuous freezing or refrigeration of goods to preserve them artificially. Since the services provided by the relevant plant have been held to be used mainly or exclusively as part of that trade process, they should be left out of account for rating purposes [40].
From 1922 successive items of legislation authorised the detention without trial of persons in Northern Ireland, a regime commonly known as internment. Internment was last introduced in that province on 9 August 1971. On that date and for some time following it, a large number of persons were detained. The way in which internment operated then was that initially an interim custody order (ICO) was made where the Secretary of State considered that an individual was involved in terrorism. On foot of the ICO that person was taken into custody. The person detained had to be released within 28 days unless the Chief Constable referred the matter to a commissioner. The detention continued while the commissioner considered the matter. If satisfied that the person was involved in terrorism, the commissioner would make a detention order. If not so satisfied, the release of the person detained would be ordered. An ICO was made in respect of the appellant on 21 July 1973. The order was signed by a Minister of State in the Northern Ireland Office. The matter was referred to a commissioner by an Assistant Chief Constable on 10 August 1973 and the commissioner decided that the appellant should continue to be detained. The appellant tried to escape from the place where he was detained on 24 December 1973. He was convicted of the offence of attempting to escape from lawful custody on 20 March 1975 and sentenced to 18 months imprisonment. He tried to escape again on 27 July 1974 and was convicted of a like offence on 18 April 1975 when a sentence of three years was passed, to be served consecutively to that imposed a month earlier. The issue At stake on this appeal is the validity of the ICO made on 21 July 1973. Although an ICO could be signed by a Secretary of State, a Minister of State or an Under Secretary of State, the relevant legislation provided that the statutory power to make the ICO arose where it appears to the Secretary of State that a person was suspected of being involved in terrorism. There is no evidence that the Secretary of State personally considered whether the appellant was involved in terrorism. On the assumption (which is common to the parties to the appeal) that he did not, the question arises whether the ICO was validly made. The reason that this matter has come to light so many years after the appellants convictions is that under the 30 year rule an opinion of JBE Hutton QC (later Lord Hutton of Bresagh) was uncovered. The 30 year rule is the informal name given to laws in the United Kingdom and other countries which provide that certain government documents will be released publicly 30 years after they were created. Mr Hutton was the legal adviser to the Attorney General when he gave his opinion. It was dated 4 July 1974 and responded to a request for directions in relation to a proposed prosecution of the appellant and three others involved in the attempted escape on 24 December 1973. Mr Hutton concluded that a court would probably hold that it would be a condition precedent to the making of an ICO that the Secretary of State should have considered the matter personally. The proceedings The appellant became aware of Mr Huttons opinion in October 2009. He had not appealed his convictions before then. Some time after learning of the opinion, he applied for an extension of time in which to appeal his convictions. That application was granted by Gillen LJ on 20 April 2017. The appellants appeal was heard by the Northern Ireland Court of Appeal (Morgan LCJ, Sir Ronald Weatherup and Sir Reginald Weir) on 16 January 2018. On 14 February 2018, the Court of Appeal unanimously dismissed the appeal, the judgment of the court being delivered by Sir Ronald Weatherup: [2018] NICA 8. An application for permission to appeal to this court was dismissed by the Court of Appeal on 16 April 2018 but the court certified the following question as one constituting a point of law of public general importance: Whether the making of an interim custody Order under article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 [SI 1972/1632 (NI 15)] required the personal consideration by the Secretary of State of the case of the person subject to the order or whether the Carltona principle operated to permit the making of such an Order by a Minister of State. The reference to the Carltona principle here relates to the decision of the Court of Appeal in Carltona Ltd v Comrs of Works [1943] 2 All ER 560. In that case it had been argued that an order for the requisition of a factory under the Defence (General) Regulations 1939, which was to be made by the Commissioners of Works, should have been made by a commissioner personally. The First Commissioner of Works was the Minister of Works and Planning and the decision was made by the Assistant Secretary in that Ministry on behalf of the Commissioners of Works. The Court of Appeal rejected the argument, Lord Greene MR observing, 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 ministers. 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. Sir Ronald Weatherup considered that the Carltona principle had been amplified and reinforced in cases which were decided after Mr Hutton had given his opinion. That opinion had been strongly influenced by the consideration that deprivation of liberty was a matter of the utmost gravity and that scrupulous compliance with the precise enjoinder in article 4 of the 1972 Order was required. Sir Ronald noted that subsequent case law suggested that the seriousness of the subject matter was not to be regarded as determinative. It was a factor relevant to whether Parliament had intended to disapply the Carltona principle but was not decisive of that issue. The court relied for that conclusion on In re Golden Chemicals Products Ltd [1976] Ch 300 and R v Secretary of State for the Home Department, Ex p Oladehinde [1991] 1 AC 254. In the Golden case, what was in issue was the provision in the Companies Act 1967 which stated that, if it appeared to the Secretary of State that it was expedient in the public interest that a corporate body should be wound up, he could present a petition for its winding up. That power had been exercised by the Inspector of Companies in the Department of Trade acting for the Secretary of State. It was held that there was no obligation on the Secretary of State to exercise the power personally. It had been argued that the exercise of the power involved a serious invasion of the freedom or property rights of the subject and that it should be exercised only by the Secretary of State in whom it had been invested. Brightman J accepted that the power given to the Secretary of State was of a most formidable nature which may cause serious damage to the reputation or financial stability of the company (p 310). But he rejected the notion that a true distinction required to be drawn as a matter of law between powers which the minister must exercise personally and those which can be exercised by an officer of his department, if that distinction was based on the seriousness of the subject matter. It is important to recognise that Brightman Js judgment was based on his rejection of the claim that a distinction should be drawn as a matter of law between those cases in which the exercise of the power would have serious and grave consequences for those affected by it and cases where such consequences were not expected. Sir Ronald Weatherup said this about Brightman Js judgment at para 30: This court is satisfied that the seriousness of the subject matter is a consideration in determining whether a power must be exercised by the Minister personally, although as Brightman J found, it is not a determining consideration. (Emphasis added) It appears to me that Brightman J did not find that the seriousness of the subject matter was a consideration to which regard must be had in deciding whether a power must be exercised by a Minister personally. To the contrary, he held that that was not a consideration which was relevant at all in deciding whether the power should be exercised by the Minister or by an officer in his department. This, I believe, is clear from the following passage at p 310 of Brightman Js judgment: If there is a true distinction which must be drawn as a matter of law between powers which the Minister must exercise personally and those which can be exercised by an officer of his department, I might well come to the view that the power given by section 35 is so potentially damaging that it falls into the former category, however burdensome that may be to a Secretary of State personally. But is such a distinction to be drawn? I find no warrant for it in the authorities. In fact, the reverse. The accuracy of the breath test equipment with which R v Skinner [1968] 2 QB 700 was concerned was of vital importance to every motorist as indeed the judgment of the Court of Appeal recognised If a motorist fails the breath test he is arrested. So if the equipment over registers, an innocent subject is placed under arrest; if it under registers, a potentially lethal motorist is let loose on the highway. Yet the Court of Appeal decided that although such a vitally important matter might well have occupied the Ministers personal attention there is in principle no obligation upon the Minister to give it his personal attention: p 709. As Mr Chadwick pointed out, there are important cases in which the Minister will exercise a statutory discretion personally, not because it is a legal necessity but because it is a political necessity. Now, as it happens, I consider that the Court of Appeal in this case was right to hold that the seriousness of the consequences is a consideration to be taken into account in deciding whether a power must be exercised by the Minister personally and, to the extent that he suggested otherwise, Brightman J was wrong. I shall return to that debate later in this judgment. But, for reasons that will appear, there are other considerations beyond this issue which are of greater significance in the resolution of this appeal. The next case referred to by Sir Ronald Weatherup was Oladehinde. In that case the Home Secretary authorised certain officials in the immigration department of the Home Office to act on his behalf to decide whether to issue a notice of intention to deport persons under the Immigration Act 1971. It was argued that the structure of the Immigration Act, which differentiates between the powers of immigration officers permanently concerned with entry control and subsequent policing of illegal immigrants and the powers of the Secretary of State in relation to deportation, carried the clear statutory implication that the powers of the Secretary of State were not to be exercised by immigration officers. That argument was rejected. At p 303, Lord Griffiths said: It is well recognised that when a statute places a duty on a minister it may generally be exercised by a member of his department for whom he accepts responsibility: this is the Carltona principle. Parliament can of course limit the ministers power to devolve or delegate the decision and require him to exercise it in person. Three instances in the Immigration Act where the power to delegate was limited were identified. In each case the conferring of the power on the Secretary of State was accompanied by words such as not [to be exercised] by a person acting under his authority. The absence of such a formula in relation to the issue of a notice of intention to deport was considered to be conclusive. Not only was there no express limitation but the presence of express exclusion of delegation in other sections was a clear indication that the implication of such an exclusion in relation to the issue of an intention to deport was inapt. It is clear that the decision in Oladehinde did not address the question whether the exercise of the power had serious consequences for those affected by it. What mattered was the interpretation of the statute. By contrast, in Doody v Secretary of State for the Home Department [1993] QB 157, the issue of the seriousness of the consequences was certainly in play. In that case section 61(1) of the Criminal Justice Act 1967 conferred power on the Secretary of State to release a life prisoner. In effect, this empowered the Home Secretary to fix a tariff period which had to be served before release could be considered. In at least some instances in the Doody case the tariff had been fixed by a minister of state or a Parliamentary under secretary of state. It was argued that the tariff period had to be decided upon by the Secretary of State personally. That argument was rejected by Staughton LJ (whose judgment on this point was subsequently endorsed by the Appellate Committee of the House of Lords [1994] 1 AC 531). At p 196, after discussing the substantial number of mandatory life sentence cases that required to be considered each year, Staughton LJ said this: Every such case demands serious consideration and the burden of considering them all must be substantial. I can see nothing irrational in the Secretary of State devolving the task upon junior ministers. They too are appointed by the Crown to hold office in the department, they have the same advice and assistance from departmental officials as the Secretary of State would have, and they too are answerable to Parliament. Sir Ronald Weatherup quoted this passage at para 34 of his judgment without comment. It appears to me that two observations about the passage may be made. First, it was firmly established in evidence that a considerable burden would fall on the Secretary of State if he was required to consider every tariff case. (In 1990 no fewer than 274 mandatory life sentence cases were considered.) Secondly, as Staughton LJ stated (at 196B), there was no express or implied requirement in the 1967 Act that a decision fixing the tariff period, or for that matter a decision to release a prisoner on licence, must be taken by the Secretary of State personally. On that account, it was not irrational for him to devolve the task to junior ministers. Neither consideration obtains in the present case. On the first point (a possibly excessive burden on the Secretary of State), there was no evidence that at the time of the making of the ICO, it would have been unduly onerous for the Secretary of State, then the Rt Hon William Whitelaw MP, personally to consider each application for an ICO. Indeed, the Rt Hon Merlyn Rees MP (who was Secretary of State in the Labour government which came to power in March 1974) considered all ICOs personally. Sir Ronald Weatherup suggested that this practice was born out of caution based on legal advice para 19 of his judgment. That may be so but the fact that Mr Rees was able to carry out this task himself from March 1974 onwards is a clear indication that it should not have been impossibly difficult for Mr Whitelaw to do the same in July 1973, some eight months earlier. On the second question (whether there was an express or implied requirement in the legislation that the Secretary of State must personally consider if an order should be made) the position under the 1972 Order is quite different from that of the 1967 Act. I will discuss that difference when I come to consider the relevant legislative provisions. There is a further point to be made about Doody. An argument had been made that, in the days of capital punishment, it was the practice for the Home Secretary personally to decide whether to recommend a reprieve and it was pointed out that political memoirs had recorded how seriously that responsibility was regarded. It was suggested that the fixing of a tariff period for life prisoners was likewise of great importance to the individuals affected. That submission was accepted by Staughton LJ but he considered that Parliament must have been well aware of the great burden that would be imposed on senior ministers if they were required to review each case personally see p 196C D. The significance of this is the implicit acknowledgment, contrary to the view of Brightman J in Golden, that the seriousness of the consequences is a consideration to be taken into account. It seems to me, however, that this, in the estimation of Staughton LJ, was as a contribution to the insight that it would provide as to Parliaments intention, rather than ranking as an autonomous factor. After dealing with Doody, Sir Ronald went on to consider a number of authorities from Northern Ireland. The first of these was R v Harper [1990] NI 28. In that case the appellant had been convicted of a number of serious offences, largely as a result of admissions made by him during interviews by the police. Among the grounds of appeal was a claim that extension of the appellants detention had wrongly been authorised by a Parliamentary under secretary of state where the relevant statutory provision (section 12(4) of the Prevention of Terrorism (Temporary Provisions) Act 1984) provided that a person arrested under section 12(1) should not be detained for more than 48 hours but that the Secretary of State may, in a particular case, extend that period. The document extending the period in the appellants case had not been signed by the Secretary of State. The argument was rejected by the Court of Appeal on the basis that there was no reason to conclude that this was a power that could not be devolved to a junior minister. The Court of Appeal in Harper relied on Brightman Js judgment in Golden. For the reasons given earlier, I do not believe that to have been correct, but this does not bear on the decision in Harper. In that case there was nothing in the legislation which gave rise to the possibility of implying any restriction on the power of the Secretary of State to devolve the function of signing the extension order to the under secretary. And there was certainly no express restriction. The decision in Harper therefore involved the straightforward application of the Carltona principle. I consider that it does not assist in the resolution of the present appeal, where, as I shall discuss below, there are substantial reasons for implying a restriction on the power of the Secretary of State to devolve the making of ICOs to a junior minister. Sir Ronald Weatherup also referred to the decision of the Court of Appeal in Northern Ireland in the case of McCaffertys Application [2009] NICA 59. That case involved a prisoner who had been released on licence while serving a sentence for possession of an explosive substance. His licence was revoked, and he was arrested a month after his release. The revocation of the licence was authorised by the minister of state for security in the Northern Ireland Office. He purported to act under section 1(3) of the Northern Ireland (Remission of Sentences) Act 1995 which provided that the Secretary of State could revoke a persons licence if it appeared to him that that individuals continued liberty would present a risk to the safety of others or that he was likely to commit further offences. The prisoner applied for a writ of habeas corpus. Among other arguments presented on his behalf was the claim that his detention was unlawful because it had not been authorised by the Secretary of State but by a junior minister. This argument was rejected. Coghlin LJ, delivering the judgment of the court, observed at para 17: In general, it is to be implied that the intention of Parliament is to permit the Carltona principle to apply rather than to require a personal decision by the named decision maker. For the purpose of deciding whether the power is to be implied factors to be considered include the framework of the relevant legislation and, in particular, whether any specific contrary indications appear in the language, and the importance of the subject matter. a decision taken with regard to the liberty of the subject may attract the Carltona principle. In our view there is nothing in either the framework or the language of the 1995 Act that indicates a contrary Parliamentary intention. It is unnecessary for the purposes of the present appeal to reach a firm conclusion on the question whether it is now established that there is a presumption that Parliament should be taken to have intended that the Carltona principle should apply. It is true that in Oladehinde Lord Griffiths said that a statutory duty placed on a minister may generally be exercised by a member of his department, but I believe that he was not there proposing that there was a legal presumption to that effect. I am not persuaded that the authorities, apart from McCafferty and the decision of the Court of Appeal in the present case, have espoused that position. It is, of course, the case that Parliament legislates against the background that the Carltona principle is well established. And it is also relevant that Parliament has shown itself on occasions willing to register the displacement of the principle in explicit terms. These considerations must influence the judgment as to whether, properly construed, a particular item of legislation is in keeping with the principle or not. But that does not amount, in my opinion, to the creation of a presumption in law that the principle must be taken to apply unless it has been removed by express statutory language. My provisional view is that the matter should be approached as a matter of textual analysis, unencumbered by the application of a presumption, but with the enjoinder of Lord Griffiths well in mind. In this way, whether the Carltona principle should be considered to arise in a particular case depends on an open ended examination of the factors identified by Coghlin LJ in McCafferty, namely, the framework of the legislation, the language of pertinent provisions in the legislation and the importance of the subject matter, in other words, the gravity of the consequences flowing from the exercise of the power, rather than the application of a presumption. But, as I have said, it is not necessary in this case to reach a final view on whether there is such a presumption, not least because, if there is indeed a presumption, the statutory language in this instance is unmistakably clear, and has the effect of displacing it. Coghlin LJ decided that there was nothing in the framework of the legislation or the statutory language that expressly contraindicated the application of the Carltona principle in the McCafferty case. With that conclusion I have no quarrel. But, again, this does not provide an answer in the present case because of what I consider to be the significant difference between the wording of the 1972 Order and the 1995 Act. Unlike the 1972 Order, the 1995 Act does not stipulate one role for the Secretary of State alone and a quite separate role that can be discharged by the Secretary of State or junior ministers. (I shall discuss this further below.) I am of the view, therefore, that, as in Harper, the McCafferty decision does not assist in resolving the central issue in this appeal. The relevant legislation Article 4(1) of the 1972 Order provides: Where it appears to the Secretary of State that a person is suspected of having been concerned in the commission or attempted commission of any act of terrorism or in the direction, organisation or training of persons for the purpose of terrorism the Secretary of State may make an order (hereafter in this Order referred to as an interim custody order) for the temporary detention of that person. The language in this paragraph is clear and precise. Its apparent effect is unambiguous. It is the Secretary of State who must consider whether the person concerned is suspected of being involved in terrorism etc. Absent the possible invocation of the Carltona principle, there could be no doubt that resort to the power to make an ICO was reserved to the Secretary of State alone. Article 4(2) provides: An interim custody order of the Secretary of State shall be signed by a Secretary of State, Minister of State or Under Secretary of State. Considered together, paragraphs 1 and 2 of article 4 have two noteworthy features. First there is the distinct segregation of roles. In paragraph 1 the making of the Order is provided for; in paragraph 2, the quite separate function of signing the ICO is set out. If it had been intended that the Carltona principle should apply, there is no obvious reason that these roles should be given discrete treatment. It would have been a simple matter to provide in paragraph 1 that the Secretary of State may make [and sign] an ICO. The question therefore arises, why was provision made for the different roles in two separate paragraphs of the article. The answer appears to me to be self evident: it was intended that the two functions called for quite distinct treatment. The second noteworthy feature of article 4(2), when read together with 4(1), is that the ICO to be signed is that of the Secretary of State. Why would this stipulation be required if an ICO could be made by a minister of state? Why not simply state that, An interim custody order shall be signed by a Secretary of State, Minister of State or Under Secretary of State? The use of the words, of the Secretary of State surely denotes that the ICO is one which is personal to him or her, not a generic order which could be made by any one of the persons named in paragraph 2. If a minister of state made the ICO and then signed it, could he be said to sign the order of the Secretary of State? Surely not. Pepper v Hart The rule in Pepper v Hart [1993] AC 593 can be succinctly stated. As Lord Browne Wilkinson said (at p 640), reference to Parliamentary materials is permitted where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear. In this case, the Court of Appeal considered that the conditions prerequisite on the invocation of the rule were not satisfied, Sir Ronald Weatherup pithily saying at para 22 of his judgment that the language of the 1972 Order was not ambiguous or obscure nor did its literal meaning lead to absurdity and that, in any event, the statements made in Parliament on which the appellant sought to rely were contradictory. I agree, although I suspect for rather different reasons from those of the Court of Appeal, that the language of the enactment is neither ambiguous nor obscure. Although Sir Ronald did not expressly say so, it seems likely that the Court of Appeal considered that the language of the 1972 Order clearly indicated that the intention of Parliament was that the Carltona principle should be in play in relation to article 4(1) of the 1972 Order. I, on the other hand, for the reasons that I have given, am firmly of the view that, properly construed, article 4(1) unmistakably points to the conclusion that the power that was invested in the Secretary of State by that provision was one which should be exercised by him or her personally. But, in any case, I fully agree that the statements made in Parliament about whether the power in article 4(1) was invested in the Secretary of State alone or whether recourse could be had to that power by a junior minister do not partake of the quality of certainty required to meet the third criterion of the Pepper v Hart test. On that account, I consider that the Parliamentary statements are not admissible. Discussion The Court of Appeal approached the central issue in this case on the basis that there was a presumption that the Carltona principle would apply to article 4(1) of the 1972 Order. In para 25 above, I have questioned whether such a presumption exists. Even if it does, I am satisfied that it is clearly displaced by the proper interpretation of article 4(1) and (2), read together. The segregation of the two functions (the making and the signing of ICOs) cannot have been other than deliberate. When one allies this to the consideration that the power invested in the Secretary of State by article 4(1) was a momentous one, the answer is, I believe, clear. The provision did nothing less than give the Secretary of State the task of deciding whether an individual should remain at liberty or be kept in custody, quite possibly for an indefinite period. In agreement with Staughton LJs view in Doody (see para 21 above), I consider that this provides an insight into Parliaments intention and that the intention was that such a crucial decision should be made by the Secretary of State. This was, after all, a power to detain without trial and potentially for a limitless period. This contrasts with Doody where, at least, the prisoner whose tariff period was to be determined had been convicted after due process. A further factor that militates towards the conclusion that it was intended that the Secretary of State should personally decide on the fate of a person whose detention was sought was that there was no reason to apprehend (at the time of the enactment of the 1972 Order) that this would place an impossible burden on the Secretary of State. Indeed, the subsequent experience with Mr Merlyn Rees scotches any notion that this should be so. This again presents a stark contrast with Doody. For these reasons, I have concluded that it was Parliaments intention that the power under article 4(1) of the 1972 Order should be exercised by the Secretary of State personally. Conclusion The making of the ICO in respect of the appellant was invalid. It follows that he was not detained lawfully. It further follows that he was wrongfully convicted of the offences of attempting to escape from lawful custody and his convictions for those offences must be quashed.	From 1922 successive items of legislation authorised the detention without trial of persons in Northern Ireland, a regime commonly known as internment. The way in which internment operated then was that initially an interim custody order (ICO) was made, under article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 (the 1972 Order), where the Secretary of State considered that an individual was involved in terrorism. On foot of the ICO that person was taken into custody. The person detained had to be released within 28 days unless the Chief Constable referred the matter to the Commissioner, who had the power to make a detention order if satisfied that the person was involved in terrorism. If not so satisfied, the release of the person detained would be ordered. An ICO was made in respect of the appellant on 21 July 1973. He was detained on foot of that ICO, attempted to escape from detention twice and was twice convicted of attempting to escape from lawful custody on 20 March 1975 and 18 April 1975. Following the disclosure of an opinion of JBE Hutton QC dated 4 July 1974, published in line with the 30 years rule, and which suggested that it was a condition precedent to the making of an ICO that the Secretary of State should have considered the matter personally, the appellant challenged the validity of the ICO dated July 1973. He argued that the ICO was invalid because the Secretary of State did not personally consider whether the appellant was involved in terrorism, and consequently argues that his following detention and convictions were also unlawful. The Court of Appeal in Northern Ireland dismissed his appeal. The appellant appeals to this court against the Court of Appeals judgment. The Supreme Court unanimously allows the appeal. It holds that the power under article 4 of the 1972 Order should be exercised by the Secretary of State personally, and, therefore, that the making of the ICO in respect of the appellant was invalid, and that his consequent detention and convictions were unlawful. Lord Kerr gives the judgment with which the other members of the court agree. The question for the court was whether the making of an ICO under article 4 of the 1972 Order required personal consideration by the Secretary of State of the case of the person subject to the order or whether the Carltona principle operated to permit the making of such an Order by a Minister of State [8]. The Carltona principle relates to the decision of the Court of Appeal in Carltona Ltd v Comrs of Works [1943] 2 All ER 560, which accepted as a principle of law that 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 [9]. Lord Kerr considered the case law relied upon by the Court of Appeal to determine whether Parliament in the present case had intended to disapply the Carltona principle in the present case at [10 27]. He disagreed with the Court of Appeals understanding of the judgment of Brightman J in In re Golden Chemicals Products Ltd [1976] Ch 300, finding that Brightman J held that the seriousness of the subject matter was not a consideration which was relevant at all in deciding whether the power should be exercised by the Minister or by an officer in his department. He considered that the Court of Appeal in this case was right to hold that the seriousness of the consequences is a consideration to be taken into account and, to the extent he suggested otherwise, Brightman J was wrong [13 14]. Next, Lord Kerr considered Oladehinde v Secretary of State for the Home Department [1991] 1 AC 254. There, the Court concluded that the statutory wording relating to the power under challenge was not, unlike complementary provisions in the relevant Act, expressly limited by way of words such as not [to be exercised] by a person acting under his authority. The absence of such express limitation of the power in question was a clear indication that Carltona there was not disapplied in that case [15 16]. Oladehinde did not consider whether the seriousness of the consequences was a relevant consideration [17]. Lord Kerr then considered Doody v Secretary of State for the Home Department [1992] 3 WLR 956. There, Carltona was held not to have been disapplied because (1) it was established in evidence that a considerable burden would fall on the Secretary of State if he was to exercise the power personally and (2) there was no express or implied requirement in the Act in question that the Secretary of State exercise the power personally [18 19]. Neither consideration obtained on the facts of this case; Doody was therefore distinguishable [19 20]. However, Lord Kerr observed that in Doody there had been implicit acknowledgement that the seriousness of the consequences is a consideration to be taken into account [21]. Lord Kerr did not consider that R v Harper [1990] NI 28 assisted in the resolution of the present appeal [23]. He then analysed McCaffertys Application [2009] NICA 59, where it was suggested that there is a presumption in law that Parliament intends Carltona to apply generally. Lord Kerr did not consider it necessary to determine whether such presumption indeed exists, given that he considered the statutory language on the facts unmistakably clear. However, he expressed an obiter view that there is no such presumption at law, and that cases should instead proceed on a textual analysis of the framework of the legislation in question, the language of pertinent provisions in the legislation and the importance of the subject matter, rather than the application of a presumption [25 26]. Lord Kerr then turned to the relevant legislation. He observed that paragraphs 1 and 2 of article 4 have two noteworthy features. First, there is the distinct segregation of roles. In paragraph 1 the making of the Order is provided for; in paragraph 2, the quite separate function of signing the ICO is set out. He concluded that, if it had been intended that the Carltona principle should apply, there is no obvious reason that these roles should be given discrete treatment [31]. The second noteworthy feature of article 4(2), when read with 4(1), is that the ICO to be signed is that of the Secretary of State. The use of the words, of the Secretary of State indicates that the ICO is one which is personal to him or her, not a generic order which could be made by any one of the persons named in paragraph 2 [32]. Lord Kerr thus reached the following overall conclusions. First, even if a presumption exists that Parliament intends Carltona to apply, it is clearly displaced on the facts by the proper interpretation of article 4(1) and 4(2) read together [37]. Second, the consideration that the power invested in the Secretary of State by article 4(1) a power to detain without trial and potentially for a limitless period was a momentous one provides insight into Parliaments intention and that the intention was that such a crucial decision should be made by the Secretary of State personally [38]. Third, there was no evidence that this would place an impossible burden on the Secretary of State [39]. In conclusion, Parliaments intention was that the power under article 4(1) of the 1972 Order should be exercised by the Secretary of State personally. The making of the ICO in respect of the appellant was invalid. It follows that he was not detained lawfully and was wrongfully convicted of the offences of attempting to escape from lawful custody. His convictions for those offences must be quashed [40 41].
A school minibus draws up on a country road on a winters evening. Two children get off. One of the children tries to cross the road. She steps out from behind the minibus, into the path of an oncoming car. The driver is driving too fast: he has seen the bus, but has made no allowance for the possibility that a child might attempt to cross in front of him. He is not keeping a proper look out, and does not see her, but he is going too fast to have stopped in time even if he had seen her. His car hits the child, causing her to sustain severe injuries. If he had been driving at a reasonable speed, and had been keeping a proper look out, he would not have hit her. The trial judge finds that the accident was caused by the drivers negligence, but that the child was also contributorily negligent. He assesses her contributory negligence at 90%, and reduces the award of damages accordingly. On appeal, the court reduces that assessment to 70%. On a further appeal, this court is invited to reduce the assessment further. How should responsibility be apportioned in a case of this kind? What principles should govern the review of an apportionment by an appellate court? These are the central questions posed by this appeal. The facts of the case The facts of the case, as found by the Lord Ordinary, Lord Tyre, are not in dispute. It should be said at the outset that he faced considerable difficulties in establishing the facts, and he exercised notable care in doing so. The accident occurred on 12 January 2004 on the A98 road between Banff and Fraserburgh, near its junction with a private road leading to the farm where the pursuer lived with her parents and her twin sister. At that point, the A98 is 7.6 metres wide. Traffic is subject to a 60 mph speed limit. There is no street lighting. The pursuer was then 13 years old. She and her sister travelled to and from school every day by school minibus. On the way home, the minibus dropped off the various children at or near their homes. In particular, it dropped off the pursuer and her sister on the opposite side of the road from the entrance to the farm road. They would then cross the road to the farm road. On the day of the accident, the bus arrived at the farm road end at about 4.30 pm. It was then about 40 minutes after sunset, and the light was fading. Vehicles had their lights on. The bus stopped, with its headlights on, and signs to the front and rear indicating that it was a school bus. The driver put on the buss hazard lights. A number of vehicles following the bus stopped behind it. The defender was driving home in the opposite direction. His lights were switched on. As he approached the scene, he saw the stationary bus on the other carriageway. He had a view of the stationary bus for at least 200 metres. He had seen the school bus on this road before. He was travelling at about 50 mph. He did not slow down. His position in evidence was that he could not remember whether he had thought at the time that the bus might have stopped to drop children off. He regarded the risk of children running out unexpectedly as irrelevant: such a risk was not his fault, as he put it. Partly in view of the defenders evidence about the irrelevance, to his responsibilities as a driver, of the possibility that children might unexpectedly attempt to cross the road, the Lord Ordinary inferred that he did not address his mind to the risk that a person might emerge from behind the stationary bus and attempt to cross the road in front of his car. The pursuer and her sister got off the bus on its nearside. The pursuer passed between the rear of the bus, which was still stationary, and the car behind it. She paused briefly at the offside rear of the bus and then took one or two steps into the road, before breaking into a run. She was struck by the defenders car, still travelling at about 50 mph. She was projected into the air by the force of the impact, and the car passed beneath her. She landed on the road surface. At the point of impact, she was running across the road. The defender was unaware of her presence until the moment of impact. Since she must have been within his line of vision for approximately 1.5 seconds between emerging from behind the bus and the moment of impact, the Lord Ordinary inferred that he was not keeping a look out for the possibility of such an event occurring. If he had had in mind the possibility that someone might emerge, he would have seen her earlier than he did. The negligence of the defender The Lord Ordinary found that the defender had failed to drive with reasonable care. He ought in the first place to have kept a proper look out. In the exercise of that duty, he ought to have identified the bus as being a school bus, or at least as a bus from which children were likely to alight. He ought then to have foreseen that there was a risk that a person might, however foolishly, attempt to cross the road. The defender had not done so. Either he did not identify the bus as a school bus, or he did not regard that as relevant to the manner in which he ought to drive towards it and past it. Secondly, the defender had failed to modify his driving. He did not reduce his speed from 50 mph as he approached the stationary bus. That was too high a speed at which to approach the hazard which it potentially presented. A reasonable speed in the circumstances would have been somewhere between 30 and 40 mph. He ought to have been travelling at no more than 40 mph for at least 100 metres before reaching the bus. Thirdly, the defender had failed to be vigilant for any child stepping out or running into the road. These findings are not now in dispute. Causation The Lord Ordinary found that the defender could not have reacted in the time available to him, after the pursuer emerged from behind the bus, so as to avoid hitting her. If, however, he had been travelling at a reasonable speed, the pursuer would have made it safely past the line of the cars travel before the car arrived at the point of impact, and the accident would not have occurred. Contributory negligence The Lord Ordinary considered that the principal cause of the accident was the recklessness of the pursuer in attempting to cross the road without taking proper care to check that the road was clear to allow her to do so. At the age of 13, she was fully aware of the danger of crossing a major road without taking reasonable care to check that no cars were approaching. The pursuers own account of the critical events was unreliable, and there was a paucity of other reliable evidence. Her decision to cross could not however have been the result of a justifiable misjudgement: at the time when she emerged from behind the minibus, the defenders car could only have been about 30 40 metres away. The Lord Ordinary concluded: 46. Either she did not look to the left before proceeding across the road or, having done so, she failed to identify and react sensibly to the presence of the defender's car in close proximity. On either scenario, the overwhelmingly greater cause of this unhappy accident was the movement of the pursuer into the path of the defender's car at a time when it was impossible for him to avoid a collision. 47. One has, therefore, in my opinion, a situation in which the pursuer bears responsibility for having committed an act of reckless folly, and the defender bears responsibility for having failed to take reasonable care for the safety of a person such as the pursuer who might commit an act of reckless folly. In that situation, I consider that a very large proportion of the overall responsibility rests upon the perpetrator of the act. On that basis, the Lord Ordinary assessed contributory negligence at 90%. An appeal against that finding was allowed by an Extra Division of the Inner House (Lord Clarke, Lord Drummond Young and Lord Wheatley), for reasons explained in an opinion delivered by Lord Drummond Young. His Lordship noted that it had been said in Porter v Strathclyde Regional Council 1991 SLT 446, 449 that the Inner House would not interfere with the Lord Ordinarys apportionment of negligence except in exceptional circumstances which must demonstrate that he has manifestly and to a substantial degree gone wrong. The Extra Division considered that the Lord Ordinary had clearly been entitled to hold that contributory negligence existed in this case. At the age of 13, the pursuer must have been fully aware of the danger of crossing a major road from behind a bus without taking reasonable care to check for approaching cars. She was familiar with the location and accepted that she was aware of the potential dangers of crossing this particular road. She was aware of the risk of traffic on what was a relatively major road. In those circumstances it was difficult to imagine any reason that she might have for not checking properly for approaching cars and, if a car was approaching, not crossing the road. On that basis, the obvious course for her to take was to remain on the verge or at least to remain behind the bus until it moved off and she had a clear view of other traffic and drivers had a clear view of her. At the very most she could have stopped between the bus and the centre line of the road. The argument that these points should have been put to the pursuer in cross examination, and had not been put, was rejected: they were too obvious for cross examination on these points to be necessary. In relation to apportionment, the Extra Division considered that the Lord Ordinarys apportionment of 90% of the responsibility for the accident to the pursuer was too high. The court reduced this to 70%. It gave four reasons for its decision, at paras 27 28: (1) In the first place, we are of opinion that insufficient regard was had to the circumstances of the pursuer. The pursuer was only 13 at the time of the accident. While at 13 she was old enough to understand the dangers of traffic, a 13 year old will not necessarily have the same level of judgment and self control as an adult. Moreover, in assessing whether it was safe to cross, she was required to take account of the defender's car approaching at a fair speed, 50 mph, in very poor light conditions with its headlights on. The assessment of speed in those circumstances is far from easy even for an adult, and even more so for a 13 year old. (2) In the second place, we are of opinion that greater stress should have been placed on the actings of the defender. He was found to have been driving at excessive speed and not to have modified his speed to take account of the potential danger presented by the minibus. The danger was obvious because the minibus had its hazard lights on. The Lord Ordinary inferred that as he approached the minibus the defender did not address his mind to the risk that a person might emerge from behind it and attempt to cross the road. In all the circumstances we consider that the defender's behaviour was culpable to a substantial degree, and that that is a factor which should be taken into account. (3) In the third place, we are of opinion that the Lord Ordinary was wrong to describe the actings of the pursuer as an act of reckless folly. Those actings were clearly negligent, but recklessness implies that the pursuer acted without caring about the consequences. We do not think that such a description of the pursuer's conduct is justified on the facts found by the Lord Ordinary. (4) In the fourth place, the causative potency of the parties' actings must be taken into account. Two factors are relevant in this connection. First, in apportioning responsibility account must be taken not only of the relative blameworthiness of the parties but also the causative potency of their acts. As is pointed out in Eagle [v Chambers [2003] EWCA Civ 1107; [2004] RTR 115] and Smith [v Chief Constable Nottinghamshire 18. Police [2012] EWCA Civ 161; [2012] RTR 294], a car is potentially a dangerous weapon, and accordingly the attribution of causative potency to the driver must be greater than that to the pedestrian. Secondly, the Lord Ordinary held that the pursuer would have escaped the accident had she had an additional 1.12 seconds available. That suggests that the defender's excessive speed was causally significant. The court concluded, at para 28: When all of these factors are taken together, we are of opinion that they clearly support an apportionment that is more favourable to the pursuer than the Lord Ordinary's apportionment. We nevertheless recognize that the major share of responsibility must be attributed to the pursuer, because her negligence was both seriously blameworthy and of major causative significance. Was there contributory negligence? It is contended on the pursuers behalf that, on the findings of fact made by the Lord Ordinary, there was no basis for a finding of contributory negligence. It had been assumed that the pursuer ought to have looked to her left very shortly before emerging from behind the bus, and that if she had done so, the defenders car would have been so close that she ought to have realised that it was unsafe for her to cross the road. The pursuer had however also to bear in mind the possibility of traffic emerging from her right, or from the farm track across the road. She could reasonably have looked to her left at a time when the defenders car was far enough away for her to think that it was safe to cross the road, unaware of the excessive speed at which the car was being driven. I am unable to accept this contention. Counsel for the pursuer neither challenges the findings in fact made by the Lord Ordinary nor proposes that any additional findings should be made. On the findings made, either she did not look to the left before proceeding across the road or, having done so, she failed to identify and react sensibly to the presence of the defender's car in close proximity. The contention now advanced is inconsistent with either of those scenarios. I should add, in relation to the latter scenario, that the Lord Ordinary calculated that a vehicle travelling at 50 mph covers a distance of 100 metres in 4.47 seconds. He also concluded that the defenders car was only 30 40 metres away when the pursuer stepped out. He was entitled to conclude that, if the pursuer had looked to her left within a reasonable time before stepping out into the road, the defenders car would have been within such proximity that she ought to have realised that it was unsafe to cross. Apportionment 19. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides: Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage. 20. Section 1(1) does not specify how responsibility is to be apportioned, beyond requiring the damages to be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage (not, it is to be noted, responsibility for the accident). Further guidance can however be found in the decided cases. In particular, in Stapley v Gypsum Mines Ltd [1953] AC 663, 682, Lord Reid stated: A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but the claimants share in the responsibility for the damage cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness. 21. That approach is illustrated by its application to the facts of that case, where the deceased and a co worker had been instructed by their employer to bring down a dangerous roof, and not to work beneath it in the meantime. In disobedience of the instruction, they had given up their attempts to bring down the roof, and the deceased had then proceeded to work beneath it. It collapsed and killed him. Although there was held to have been negligence on the part of the co worker, for which the employer was responsible, the deceaseds conduct had contributed much more immediately to the accident than anything that the co worker did or failed to do: both men were at fault up to the stage when the deceased entered the area in question, but he alone was at fault in working beneath the dangerous roof. The House of Lords therefore assessed the contributory negligence of the deceased at 80%, altering the 50% apportionment made by the trial judge. 22. A further illustration is provided by Baker v Willoughby [1970] AC 467. The case was one in which the plaintiff was a pedestrian who had been struck by the defendants car while crossing the road. The plaintiff had negligently failed to see the defendants car approaching. The defendant had a clear view of the plaintiff prior to the collision, but was driving at an excessive speed or failing to keep a proper look out or both. The judge found that the plaintiff was 25% to blame. On appeal, the Court of Appeal increased that apportionment to 50%. The House of Lords restored the judges assessment. 23. Lord Reid, with the agreement of the other members of the House, made some general observations about apportionment in cases of this kind at p 490: The Court of Appeal recognised that the trial judge's assessment ought not to be varied unless some error in the judge's approach is clearly discernible. But they appear to have thought it impossible to differentiate when both parties had a clear view of each other for 200 yards prior to impact and neither did anything about it. I am unable to agree. There are two elements in an assessment of liability, causation and blameworthiness. I need not consider whether in such circumstances the causative factors must necessarily be equal, because in my view there is not even a presumption to that effect as regards blameworthiness. A pedestrian has to look to both sides as well as forwards. He is going at perhaps three miles an hour and at that speed he is rarely a danger to anyone else. The motorist has not got to look sideways though he may have to observe over a wide angle ahead: and if he is going at a considerable speed he must not relax his observation, for the consequences may be disastrous . In my opinion it is quite possible that the motorist may be very much more to blame than the pedestrian. 24. That dictum was applied by the Second Division in McCluskey v Wallace 1998 SC 711, a case in which a child aged 10 had crossed the road without taking reasonable care to check whether traffic was coming. She was struck by a driver who was driving at an appropriate speed but had failed to notice 28. her, and could have avoided her if he had been paying proper attention. An assessment of the childs contributory negligence at 20% was upheld. 25. A similar approach to the assessment of blameworthiness, in cases concerning motorists who drive negligently and hit careless pedestrians, can be seen in the judgment of the Court of Appeal, delivered by Hale LJ, in Eagle v Chambers [2003] EWCA Civ 1107; [2004] RTR 115. The claimant had been walking down the middle of a well lit road, late at night, while in an emotional state. The defendant motorist would have seen and avoided her if he had been driving with reasonable care. He had however failed to see her. His ability to drive safely was impaired by alcohol. The trial judge reduced the claimants damages by 60%. On appeal, that apportionment was reduced to 40%. 26. Hale LJ noted that there were two aspects to apportioning liability between claimant and defendant, namely the respective causative potency of what they had done, and their respective blameworthiness. In relation to the former, it was accepted that the defendants causative potency was much greater than the claimants on the facts of the case. In relation to blameworthiness, the defendant was equally if not more blameworthy. In that regard, Hale LJ noted that a car could do much more damage to a person than a person could usually do to a car, and that the potential destructive disparity between the parties could be taken into account as an aspect of blameworthiness. The court had consistently imposed a high burden upon the drivers of cars, to reflect the potentially dangerous nature of driving. In the circumstances of the case, the judges apportionment had been plainly wrong. Review of apportionment 27. It is not possible for a court to arrive at an apportionment which is demonstrably correct. The problem is not merely that the factors which the court is required to consider are incapable of precise measurement. More fundamentally, the blameworthiness of the pursuer and the defender are incommensurable. The defender has acted in breach of a duty (not necessarily a duty of care) which was owed to the pursuer; the pursuer, on the other hand, has acted with a want of regard for her own interests. The word fault in section 1(1), as applied to the person suffering the damage on the one hand, and the other person or persons on the other hand, is therefore being used in two different senses. The court is not comparing like with like. It follows that the apportionment of responsibility is inevitably a somewhat rough and ready exercise (a feature reflected in the judicial preference for round figures), and that a variety of possible answers can legitimately be given. That is consistent with the requirement under section 1(1) to arrive at a result which the court considers just and equitable. Since different judges may legitimately take different views of what would be just and equitable in particular circumstances, it follows that those differing views should be respected, within the limits of reasonable disagreement. In Kerry v Carter [1969] 1 WLR 1372, the Court of Appeal reviewed some earlier authorities concerned with appellate review of apportionments under the 1945 Act. Lord Denning MR said, with the agreement of the other members of the court: 29. We have been referred to cases on this subject, particularly the recent case of Brown v Thompson [1968] 1 WLR 1003. Since that case it seems to have been assumed in some quarters that this court will rarely, if ever, alter an apportionment made by the judge. Such is a misreading of that case. I think that the attitude of this court was correctly stated in that case, at p 1012, by Edmund Davies LJ when he quoted from the judgment of Sellers LJ in Quintas v National Smelting Board [1961] 1 WLR 401, 409. This court adopts in regard to apportionment the same attitude as it does to damages. We will interfere if the judge has gone wrong in principle or is shown to have misapprehended the facts: but, even if neither of these is shown, we will interfere if we are of opinion that the judge was clearly wrong. After all, the function of this court is to be a Court of Appeal. We are here to put right that which has gone wrong. If we think that the judge below was wrong, then we ought to say so, and alter the apportionment accordingly. (p 1376) In that case, the court altered an apportionment which placed 80% of the responsibility on the defendant to one which placed two thirds of the responsibility on the plaintiff. The dictum of the Master of the Rolls has been applied in subsequent cases: see, for example, Pride Valley Foods v Hall and Partners [2001] 76 Con LR 1. 30. The same approach is in principle appropriate in the event that a question of apportionment comes before this court. In practice, such a question would not ordinarily raise an arguable point of law of general public importance, and therefore would not ordinarily meet the criteria for the granting of permission to appeal. Where, however, permission has been granted (as, for example, in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366, where there was a question concerning apportionment under the Civil Liability (Contribution) Act 1978), or is not required (as in the present case), then this court also approaches the matter as a court of appeal. 31. Given the broad nature of the judgment which has to be made, and the consequent impossibility of determining a right answer to the question of apportionment, one can say in this context, as Lord Fraser of Tullybelton said in relation to an exercise of judgment of a different kind in G v G (Minors: Custody Appeal) [1985] 1 WLR 647, 651: It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judge's decision was wrong, and unless it can say so, it will leave his decision undisturbed. 32. As one would expect, given that section 1(1) applies throughout the United Kingdom, the same approach has been followed in Scotland. In McCusker v Saveheat Cavity Wall Insulation Ltd 1987 SLT 24, 29, Lord Justice Clerk Ross cited the dictum of Lord Justice Clerk Wheatley in the unreported case of Beattie v Halliday, 4 February 1982: An appeal court will not lightly interfere with an apportionment fixed by the judge of first instance. It will only do so if it appears that he has manifestly and to a substantial degree gone wrong. The case of Beattie concerned contribution between joint wrongdoers, where the court is concerned with the comparative responsibility of persons who are both liable for the damage. The dictum would apply a fortiori to apportionment under the 1945 Act, where the difficulties are more acute, for the reasons I have explained. 33. Applying the dictum in Beattie v Halliday, Lord Justice Clerk Ross said in McCusker that although he would have made a different apportionment from the Lord Ordinary, he was not satisfied that the Lord Ordinary had gone so far wrong that the court would be warranted in interfering with his apportionment. The same approach was followed in MacIntosh v National Coal Board 1988 SLT 348 and Porter v Strathclyde Regional Council 1991 SLT 446. In McFarlane v Scottish Borders Council 2005 SLT 359, and in the present case, the court confirmed the general approach while overturning the assessment of contributory negligence made at first instance. 34. It should be noted that words such as manifestly and to a substantial degree merely add emphasis, and do not modify the substance of the test. As Lord Fraser said in G v G, 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. 35. The question, therefore, is whether the court below went wrong. In the absence of an identifiable error, such as an error of law, or the taking into account of an irrelevant matter, or the failure to take account of a relevant matter, it is only a difference of view as to the apportionment of responsibility which exceeds the ambit of reasonable disagreement that warrants the conclusion that the court below has gone wrong. In other words, in the absence of an identifiable error, the appellate court must be satisfied that the apportionment made by the court below was not one which was reasonably open to it. 36. There may be cases of apportionment under the 1945 Act where the appellate court can identify an error on the part of the court below. In the case of Stapley, for example, although Lord Reid observed at p 682 that normally one would not disturb such an award, the trial judge appeared to have left out of account a material fact, namely that the deceased deliberately and culpably entered the area of danger. Similarly, in the present case, the Extra Division identified an error on the part of the Lord Ordinary in categorising the pursuers conduct as reckless. 37. Even in the absence of an identifiable error, a wide difference of view as to the apportionment which is just and equitable, going beyond what Lord Fraser described as the generous ambit within which a reasonable disagreement is possible, can in itself justify the conclusion that the court below has gone wrong. The point is illustrated by the case of National Coal Board v England [1954] AC 403, in which the trial judge considered a 50% apportionment to be appropriate, on the basis that the plaintiff and the defendants employee were equally to blame. The House of Lords held that the damages should be reduced by only 25%. Lord Reid observed at p 427 that it was not right to disturb the trial judges apportionment lightly, but that the difference between holding the parties equally to blame and holding the ones share of responsibility to be three times that of the other is so substantial that we should give effect to it. Lord Porter, with whom Lord Oaksey agreed, similarly considered that, as in Stapley, the wide difference between [the Houses] view and that held in the court of first instance warranted a variation in the proportional amount awarded (p 420). 38. The need for the appellate court to be satisfied, in the absence of an identifiable error, that the apportionment made by the court below was outside the range of reasonable determinations is reflected in the fact that apportionments are not altered by appellate courts merely on the basis of a disagreement as to the precise figure. In Kerry v Carter, as I have explained, the appellate court disagreed with the trial judge as to which party bore the greater share of responsibility. In Quintas v National Smelting Co Ltd [1961] 1 WLR 401, Brannan v Airtours Plc, The Times, February 1, 1999 and McFarlane v Scottish Borders Council, as in Stapley v Gypsum Mines Ltd, National Coal Board v England and Baker v Willoughby, the appellate court intervened on the basis of a difference of view as to whether the parties bore equal responsibility or one party bore much greater responsibility than the other. The same is true of Eagle v Chambers, where Hale LJ observed that a finding as to which of the parties, if either, was the more responsible for the damage was different from a finding as to the precise extent of a less than 50% contribution. There was a qualitative difference between a finding of 60% contribution and a finding of 40% which was not so apparent in the quantitative difference between 40% and 20%. The present case 39. Having explained the reasons for their conclusion that the Lord Ordinarys apportionment of 90% of the responsibility for the accident to the pursuer was too high, the Extra Division provided only a very brief explanation of their own apportionment of 70% of the responsibility to the pursuer, at para 28: We nevertheless recognize that the major share of responsibility must be attributed to the pursuer, because her negligence was both seriously blameworthy and of major causative significance. The Extra Division had however already stated, at para 27, that the defenders behaviour was culpable to a substantial degree. They had also stated, at para 28, that the defenders excessive speed was causally significant and that the attribution of causative potency to the driver must be greater than that to the pedestrian. It would appear to follow that it could be said of the defender, as well as the pursuer, that his negligence was both seriously blameworthy and of major causative significance. Why then did the Extra Division conclude that the major share of responsibility must be attributed to the pursuer? 40. As the Extra Division recognised, it is necessary when applying section 1(1) of the 1945 Act to take account both of the blameworthiness of the parties and the causative potency of their acts. In relation to causation, the Extra Division based its view that the attribution of causative potency to the driver must be greater than that to the pedestrian on the fact that a car is potentially a dangerous weapon. Like the Court of Appeal in Eagle v Chambers, I would take the potentially dangerous nature of a car being driven at speed into account when assessing blameworthiness; but the overall assessment of responsibility should not be affected by the heading under which that factor is taken into account. Even leaving out of account the potentially dangerous nature of a car being driven at speed, I would not have assessed the causative potency of the conduct of the defender as being any less than that of the pursuer. This is not a case, such as Ehrari v Curry [2007] EWCA Civ 120; [2007] RTR 521 (where contributory negligence was assessed at 70%), in which a pedestrian steps directly into the path of a car which is travelling at a reasonable speed, and the driver fails to take avoiding action as promptly as he ought to have done. In such a case, the more direct and immediate cause of the damage can be said to be the conduct of the pedestrian, which interrupted a situation in which an accident would not otherwise have occurred. Nor is it a case, such as Eagle v Chambers (in which contributory negligence was assessed at 40%) or McCluskey v Wallace (where the contributory negligence of a child was assessed at 20%), in which a driver ploughs into a pedestrian who has been careless of her own safety but has been in his line of vision for long enough for him easily to have avoided her. In the present case, the causation of the injury depended upon the combination of the pursuers attempting to cross the road when she did, and the defenders driving at an excessive speed and without keeping a proper look out. If the pursuer had waited until the defender had passed, he would not have collided with her. Equally, if he had slowed to a reasonable speed in the circumstances and had kept a proper look out, he would have avoided her. 41. Given the Extra Divisions conclusion that the causative potency of the defenders conduct was greater than that of the pursuers, their conclusion that the major share of the responsibility must be attributed to the pursuer, to the extent of 70%, can only be explained on the basis that the pursuer was considered to be far more blameworthy than the defender. I find that difficult to understand, given the factors which their Lordships identified. As I have explained, they rightly considered that the pursuer did not take reasonable care for her own safety: either she did not look to her left within a reasonable time before stepping out, or she failed to make a reasonable judgment as to the risk posed by the defenders car. On the other hand, as the Extra Division recognised, regard has to be had to the circumstances of the pursuer. As they pointed out, she was only 13 at the time, and a 13 year old will not necessarily have the same level of judgment and self control as an adult. As they also pointed out, she had to take account of the defenders car approaching at speed, in very poor light conditions, with its headlights on. As they recognised, the assessment of speed in those circumstances is far from easy, even for an adult, and even more so for a 13 year old. It is also necessary to bear in mind that the situation of a pedestrian attempting to cross a relatively major road with a 60 mph speed limit, after dusk and without street lighting, is not straightforward, even for an adult. 42. On the other hand, the Extra Division considered that the defenders behaviour was culpable to a substantial agree. I would agree with that assessment. He had to observe the road ahead and keep a proper look out, adjusting his speed in the event that a potential hazard presented itself. As the Extra Division noted, he was found to have been driving at an excessive speed and not to have modified his speed to take account of the potential danger presented by the minibus. The danger was obvious, because the minibus had its hazard lights on. Notwithstanding that danger, he continued driving at 50 mph. As the Lord Ordinary noted, the Highway Code advises drivers that at 40 mph your vehicle will probably kill any pedestrians it hits. As in Baker v Willoughby and McCluskey v Wallace, that level of danger points to a very considerable degree of blameworthiness on the part of a driver who fails to take reasonable care while driving at speed. In these circumstances, I cannot discern in the reasoning of the Extra Division any satisfactory explanation of their conclusion that the major share of the responsibility must be attributed to the pursuer: a conclusion which, as I have explained, appears to depend on the view that the pursuers conduct was far more blameworthy than that of the defender. As it appears to me, the defenders conduct played at least an equal role to that of the pursuer in causing the damage and was at least equally blameworthy. 43. 44. The view that parties are equally responsible for the damage suffered by the pursuer is substantially different from the view that one party is much more responsible than the other. Such a wide difference of view exceeds the ambit of reasonable disagreement, and warrants the conclusion that the court below has gone wrong. I would accordingly allow the appeal and award 50% of the agreed damages to the pursuer. LORD HODGE: (with whom Lord Wilson agrees) 45. 46. I am grateful to Lord Reed for setting out the facts of the case (in paras 4 9 and 12 of his judgment) and also the legal principles that govern the apportionment of responsibility under section 1(1) of the Law Reform (Contributory Negligence) Act 1945. I agree with his presentation of those legal principles and consider it unfortunate that I find myself having to dissent in an appeal which does not raise a disputed issue of legal principle. I agree that no court can arrive at an apportionment that is demonstrably correct. The exercise is one of broad judgment and different views must be respected for the reasons which Lord Reed gives. The ground on which this court or any appellate court can overturn the assessment of responsibility which another court has made is that the court below has manifestly and to a substantial degree gone wrong. In Stapley v Gypsum Mines Ltd [1953] AC 663 Lord Reid observed (at p 682) that normally an appellate court would not disturb an award following an assessment of responsibility. An appellate court can intervene only if it is satisfied that the court, whose judgment is under appeal, has gone wrong in the sense that its determination is outside the generous limits of reasonable agreement. On that I agree with the majority view in this case. My disagreement is in the application of the test in the circumstances of this case. 47. The Lord Ordinary assessed the pursuers contributory negligence at 90%. In reaching that view he appears to have been influenced by the evidence of the eyewitnesses of their impressions about what had occurred. The bus driver, Mr Fraser, stated that the defenders car was not travelling at an excessive speed. Mr Scroggie, an experienced driver who was in a stationary Land Rover two vehicles behind the bus, had told the police of his impression that the pursuer was 100% responsible for the accident. Mrs Corbett, a passenger in another car immediately behind the bus, said that the defenders car was not going fast and denied that the pursuer had stopped and looked before attempting to cross the carriageway. The late Mr Corbett, the driver of that car, had told the police that the pursuer had run into the westbound carriageway and that he had known that she was going to get knocked down. 48. But the Lord Ordinary also preferred the defenders recollection of his speed to the eye witnesses estimates. He held that the defender in the exercise of reasonable care should have reduced his speed from approximately 50 mph to somewhere between 30 and 40 mph before he approached the bus, and also inferred that he had not addressed his mind to the possibility of someone coming from behind the stationary bus to cross the road in front of his car. While the defender could have done nothing to avoid the accident in the circumstances that existed at the moment when the pursuer suddenly appeared from behind the bus, his prior failure to reduce his speed on approaching the bus was a potent cause of the accident. This assessment put a different perspective on the matter from that of the eye witnesses who appear to have focused on the immediate circumstances of the accident. In my view, the Extra Division were entitled to conclude that in finding the pursuer responsible to the extent of 90% the Lord Ordinary had gone wrong to the requisite degree. 49. Where I differ from the majority in this appeal is that I am not persuaded that the Extra Divisions assessment is open to the same criticism. It is true that the Extra Division did more to explain why they were reducing the percentage to be attributed to the pursuers contributory negligence than they did to justify their acceptance of the Lord Ordinarys view that the major share of responsibility rested with her. But there were findings of fact in the Lord Ordinarys opinion which are the background to their assessment and are capable of supporting their judgment. In my view the Extra Division were entitled to share the Lord Ordinarys view that the pursuer was more responsible for the accident than the defender. 50. Each case must depend upon its particular facts and a court gets little assistance from detailed comparisons of outcomes in other cases. But case law points up general principles. One such principle, which favours the pursuer, is the recognition of the moral blameworthiness or, alternatively, the causative potency of driving a motor vehicle without exercising reasonable care, because a vehicle can be a dangerous weapon. The trend of the case law is to attribute more responsibility to the driver than to a pedestrian. Hale LJ stated in Eagle v Chambers (at para 16): It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle. The reason for that is not hard to find: it is the vehicles potential to injure. The Highway Code states that a vehicle driven at 40 mph is likely to kill a pedestrian if it hits her. The Extra Division recognised this and attributed greater causative potency to the defender than to the pursuer. In reaching their apportionment the Extra Division clearly thought that the pursuers behaviour was significantly more blameworthy than the defenders. The question therefore is: do the Lord Ordinarys findings of fact give sufficient support to that conclusion?. 52. 51. Neither counsel sought to persuade this court to depart from the Lord Ordinarys findings of fact. But there is a danger of an appellate court attaching significance to findings which they do not carry and reinterpreting them and what may have lain behind them in a way which the judge, who heard the evidence, did not intend. I deal first with the fault of the defender. Counsel for the pursuer in both the Inner House and this court put emphasis in his submissions on what he called the defenders failure to respond to the buss hazard lights. But there is nothing in the Lord Ordinarys findings that treats the hazard lights as doing more than alerting the traffic to the stationary bus because it was holding up the traffic. As Mr Hooghiemstra explained in his evidence, the principal use of hazard lights in the Highway Code (Rule 116) is when a vehicle is stationary to warn that it is temporarily obstructing traffic. It was possible, as the defender conceded, that the hazard lights might have been used to alert of another risk. But there was no evidence that they were used on this occasion, and would reasonably have been understood to be used, to warn of children crossing the opposite carriageway and no finding of fact to that effect. The significance of the hazard lights was that they drew attention to the stationary bus and a careful driver could foresee the possibility that passengers, including children, might alight from the bus. 53. The bus had its headlights on and the sign on the windscreen which identified it as a school bus was not illuminated. The sign may not have been visible at dusk to a driver approaching the bus on the opposite carriageway. The Lord Ordinarys conclusion was not that the defender should have identified the bus as a school bus. He stated alternatives: if not, the defender should at least have identified the bus as a bus from which children were likely to alight. 54. Counsel for the defender did not dispute that the defender was culpable to the extent that the Extra Division had found. But the defenders negligence amounted to this. While he was driving well within the statutory speed limit in a rural location, he failed to anticipate a foreseeable risk. He approached the bus which was stationary in the opposite carriageway at what might have been a bus stop. He was negligent in not reducing his speed by at least 10 mph and not keeping a proper lookout because there was a danger, which he ought to have foreseen, that a passenger, who might be a child, might emerge from behind the bus and attempt to cross the road without exercising care. 55. Turning to the Lord Ordinarys findings concerning the pursuers responsibility, the Extra Division did not accept his characterisation of reckless folly because they thought it could not be said that she had acted without caring about the consequences. But they treated her behaviour as being at the serious end of the spectrum of carelessness, rejecting her counsels submission that she had not darted out from behind the bus. There was no challenge to the Lord Ordinarys finding that she was fully aware of the danger of crossing the road. Such a challenge would have been difficult to mount having regard to her age and experience and as the bus driver, Mr Fraser, had given evidence that he had warned the pursuer and her sister in the past when they had run across the road. 56. Counsel for the pursuer was not justified in suggesting that she faced significant risks from traffic approaching from several directions. The predominant risk which the pursuer faced from traffic was from vehicles approaching on the westbound carriageway, as the defender did. Vehicles on the eastbound carriageway were forbidden to overtake by a solid white line on the road; vehicles had to stop behind the stationary bus, as they did. Traffic from the farm road was not a problem on this occasion. The pursuers mothers car was in the bellmouth of the farm road opposite as she waited to pick her up in accordance with her normal practice and her fathers tractor had entered the farm road. In short, faced with a clear and predominant risk from traffic approaching on the westbound carriageway of a major road, the pursuer ran out in front of the defenders vehicle when it was only 30 40 metres away. 57. On the Lord Ordinarys unchallenged findings, there was no reason for the pursuer not to have seen the approaching car. Either she did not look or (as he said, at para 46) she failed to identify and react sensibly to the presence of the defenders car in close proximity. I construe the latter possibility as meaning that she saw the car and took the risk of running in front of it. Not to look or knowingly to run into the path of the car displayed a very high degree of carelessness. The Extra Division were entitled to view her behaviour as both very seriously blameworthy and of major causative significance and also, because of the extent of her blameworthiness, to attribute to her the major share of responsibility. 58. As I have said, the opinion of the Extra Division must be read with the Lord Ordinarys findings of fact. On those findings I might have concluded that the defender was one third responsible and the pursuer two thirds. But that is not the role of an appellate court, which cannot substitute its judgment for that of a court below unless that court is plainly wrong. Nobody has submitted that the Extra Division failed to take into account any material fact or misunderstood the evidence. Thus their assessment is one of broad judgment in which there is ample room for reasonable disagreement. 59. As I am not persuaded that the Extra Divisions determination was outside the generous limits of reasonable disagreement, I would have dismissed the appeal.	When she was 13 Ms Jackson, the pursuer, was hit by a car driven by the defender. She appeals to the Supreme Court from the Inner House of Sessions assessment of her contributory negligence at 70%. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 states: Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage. The collision took place on 12 January 2004 on the A98 road between Banff and Fraserburgh, near its junction with a private road leading to the farm where the pursuer lived with her family. There was a 60mph speed limit, and no street lighting. The pursuer alighted from her school bus, which had just parked on the opposite side of the road from the entrance to the farm road. It was about 40 minutes after sunset and light was fading. The respondent was driving home in the opposite direction, travelling at about 50mph. His lights were on. The pursuer passed between the rear of the bus, which was still stationary, and the car behind it. She paused briefly at the offside rear of the bus, took one or two steps into the road into the path of the defenders oncoming car, before breaking into a run. While running she was struck by the defenders car, still travelling at about 50mph. She was projected into the air, the car passed beneath her and she landed on the road. The pursuer sustained serious injuries. The Lord Ordinary found that the defender had failed to drive with reasonable care and was negligent. If he had been travelling at a reasonable speed the pursuer would have made it safely past him, so the accident would not have occurred. The Lord Ordinary also considered that the principal cause of the accident was the reckless folly of the pursuer: either she did not look to the left before crossing or, having looked, she failed to identify and react sensibly to the presence of the car in close proximity. On either scenario the greater cause of the accident was her movement into the path of the defenders car at a time when it was impossible for him to avoid a collision. The Lord Ordinary assessed the pursuers contributory negligence at 90%. On appeal the Extra Division of the Inner House allowed the pursuers appeal and assessed her contributory negligence instead at 70%. The Supreme Court allows Ms Jacksons appeal by a majority of 3 2 (Lord Hodge and Lord Wilson dissenting) and awards her 50% of the agreed damages. Lord Reed (with whom Lady Hale and Lord Carnwath agree) gives the lead judgment allowing the appeal. Lord Hodge (with whom Lord Wilson agrees) would have dismissed the appeal. Lord Reed did not accept the appellants contention that there was no basis for a finding of contributory negligence at all on the findings made by the Lord Ordinary. [17 18] Section 1(1) of the 1945 Act does not specify how responsibility is to be apportioned. Decided cases show two aspects to apportionment: the respective causative potency of the parties acts and their respective blameworthiness. The court consistently imposed a high burden on drivers to reflect the potentially dangerous nature of driving. [20 26] There is no demonstrably correct apportionment. Since different judges may legitimately take different views of what is just and equitable in particular circumstances, those differing views should be respected, within the limits of reasonable disagreement. [27 28] The lower court must have gone wrong: in the absence of an identifiable error, only a difference of view as to apportionment that exceeds the ambit of reasonable disagreement will warrant that conclusion. [35] Apportionments are not altered because of disagreement as to the precise figure. However, appellate courts have intervened on the basis of disagreement as to whether one party bore much greater responsibility than the other: there is a qualitative difference between a finding of 60% contribution and a finding of 40%. [38] The Extra Division provided only a very brief explanation of their apportionment of 70%. Given their conclusion that the causative potency of the defenders conduct was greater than that of the pursuer, the result can only be explained on the basis that they considered the pursuer far more blameworthy. They rightly considered that she did not take reasonable care for her own safety, but regard has to be had to her circumstances. She was only 13. An assessment of the defenders speed in the circumstances was far from easy. Attempting to cross a relatively major road with a 60mph speed limit, after dusk and without street lighting, is not straightforward, even for an adult. The Extra Division considered that the defenders behaviour was culpable to a substantial degree, with which Lord Reed agrees. Overall the Extra Divisions reasoning does not provide a satisfactory explanation of their conclusion that the pursuer bore the major share of responsibility. Lord Reed considered the defenders conduct played at least an equal role to that of the pursuer in causing the damage and was at least equally blameworthy. He therefore allows the appeal and awards 50% of the agreed damages to the pursuer. [39 44] Lord Hodge would have dismissed the appeal. He agrees on the facts and the legal principles set out in Lord Reeds judgment. [45] The Lord Ordinarys assessment of 90% appears to have been influenced by eyewitnesses impressions, however the defenders prior failure to reduce his speed was a potent cause of the accident, which put a different perspective on the matter. The Extra Division was entitled to conclude the Lord Ordinary had gone wrong. The Extra Divisions assessment is not open to the same criticism, given the Lord Ordinarys findings. [47 49] Not to look or to knowingly run into the path of the car displayed a very high degree of carelessness. The Extra Division were entitled, because of the extent of her blameworthiness, to attribute to the pursuer the major share of responsibility. [57]
Traders who wish to appeal against assessments to Value Added Tax (VAT) in the United Kingdom are required, by section 84 of the Value Added Tax Act 1994, first to pay or deposit the tax notified by the assessment with HMRC, unless they can demonstrate that to do so would cause them to suffer hardship. Otherwise, their appeal will not be entertained. This pay first requirement is a feature of the procedural regime for appealing assessments to a number of other types of tax, including Insurance Premium Tax, Landfill Tax, Climate Change Levy and Aggregates Levy. But it is not a condition for appealing assessments to Income Tax, Capital Gains Tax (CGT), Corporation Tax or Stamp Duty Land Tax (SDLT). VAT is, in the UK and elsewhere in the European Union, regulated by the provisions of EU Directives, currently of VAT Directive 2006/112. An appeal against an assessment to VAT is therefore a claim based on EU law. All the other taxes and levies referred to above are regulated by domestic law, so that appeals against assessments to any of them are based on domestic law. The appellant Totel Ltd (Totel) seeks to appeal a number of assessments to VAT but has been unable to demonstrate that a requirement to pay or deposit the tax in dispute would cause it hardship. But Totel claims that the requirement to pay or deposit the disputed tax as a condition for its appeals being entertained offends against the EU law principle of equivalence. In outline, this principle requires that the procedural rules of member states applicable to claims based on EU law are not less favourable than those governing similar domestic claims. It is submitted that appeals against assessment to Income Tax, CGT and SDLT are claims which are similar to appeals against assessment to VAT and that, because a VAT appeal is subjected to the pay first requirement whereas those other appeals are not, then the UKs procedural rules for VAT appeals are less favourable than those governing similar domestic claims. In the course of a convoluted but irrelevant procedural history Totel first raised its challenge based upon the principle of equivalence when (successfully) seeking permission to appeal from the Upper Tribunal (Tax and Chancery Chamber) to the Court of Appeal. In December 2016 the Court of Appeal rejected that challenge on two grounds. Logically the first (although the second to be dealt with in the leading judgment of Arden LJ) was that none of the domestic taxes (Income Tax, CGT and SDLT) relied upon by Totel were true comparators with VAT for the purpose of the application of the principle of equivalence. The second ground was that, even if they were, there were other domestic taxes (namely those described in para 1 above) which subjected appeals against assessments to the same pay first requirement, so that it could not be said that EU derived VAT appeals had been picked out for the worst procedural treatment. Accordingly, what is commonly called the no most favourable treatment proviso (the Proviso) applied so as to prevent infringement of the principle of equivalence. In this court Totel challenges both those conclusions of the Court of Appeal. For their part, HMRC challenge (for the first time) the underlying assumption that, when viewed in the round, the procedure for appeals against tax assessments is rendered less favourable to the taxpayer by the imposition of the pay first requirement in relation to only some of them. The principle of equivalence and its qualifying Proviso are creatures of the jurisprudence of the CJEU (and its predecessors), and take effect within the general context that it is for each member state to establish its own national procedures for the vindication of rights conferred by EU law: see EDIS v Ministero delle Finanze (Case C 231/96) at paras 19 and 34 of the judgment. Further, it has been repeatedly stated by the CJEU that it is for the courts of each member state to determine whether its national procedures for claims based on EU law fall foul of the principle of equivalence, both by identifying what if any procedures for domestic law claims are true comparators for that purpose, and in order to decide whether the procedure for the EU law claim is less favourable than that available in relation to a truly comparable domestic claim. This is because the national court is best placed, from its experience and supervision of those national procedures, to carry out the requisite analysis: see Palmisani v Istituto Nazionale della Previdenza Sociale (Case C 261/95) at para 38, and Levez v TH Jennings (Harlow Pools) Ltd (Case C 326/96) [1999] ICR 521, para 43. The search for a true comparator The principle of equivalence works hand in hand with the principle of effectiveness. That principle imposes a purely qualitative test, which invalidates a national procedure if it renders the enforcement of a right conferred by EU law either virtually impossible or excessively difficult. By contrast, the principle of equivalence is essentially comparative. The identification of one or more similar procedures for the enforcement of claims arising in domestic law is an essential pre requisite for its operation. If there is no true comparator, then the principle of equivalence can have no operation at all: see the Palmisani case, at para 39. The identification of one or more true comparators is therefore the essential first step in any examination of an assertion that the principle of equivalence has been infringed. Plainly, the question whether any, and if so which, procedures for the pursuit of domestic law claims are to be regarded as true comparators with a procedure relating to an EU law claim will depend critically upon the level of generality at which the process of comparison is conducted. Is it sufficient that both claims are tax appeals, or (as Totel submits) appeals against the assessment of tax, or that they must both be made to the same tribunal? Or is it necessary to conduct some more granular analysis of the different claims, and the economic structures in which they arise? Or is there some simple yardstick which would prevent claims from being truly comparable, such as, in the present case, the difference between claims arising out of the assessment of liability to direct and indirect taxes, (as HMRC submits)? Decisions of the CJEU provide considerable assistance in identifying the correct approach to this task, although the guidance to be gained from some of them is not always that which springs from an over simplistic analysis of particular phraseology. First, the question whether any proposed domestic claim is a true comparator with an EU law claim is context specific. As Lord Neuberger put it in Revenue and Customs Comrs v Stringer [2009] UKHL 31; [2009] ICR 985 at para 88: It seems to me that the question of similarity, in the context of the principle of equivalence, has to be considered by reference to the context in which the principle is being invoked. This proposition was not in dispute between counsel, and it is therefore unnecessary to cite decisions of the CJEU in support of it, although most of those to which reference is made below illustrate or mandate the conduct of a context specific enquiry. The domestic court must focus on the purpose and essential characteristics of allegedly similar claims: see the Levez case, at para 43 of the judgment: In order to determine whether the principle of equivalence has been complied with in the present case the national court which alone has direct knowledge of the procedural rules governing actions in the field of employment law must consider both the purpose and essential characteristics of allegedly similar domestic actions. To the same effect is para 35 of the judgment of the Grand Chamber in Transportes Urbanos y Servicios Generales SAL v Administracin del Estado (Case C 118/08). In Littlewoods Retail Ltd v Revenue and Customs Comrs (Case C 591/10) [2012] STC 1714, the Court at para 31 used the phrase similar purpose and cause of action, without in my view thereby intending to change the underlying meaning from that described in the earlier cases. Of particular importance within the relevant context is the specific procedural provision which is alleged to constitute less favourable treatment of the EU law claim. This is really a matter of common sense. Differences in the procedural rules applicable to different types of civil claim are legion, and are frequently attributable to, or at least connected with, differences in the underlying claim. A common example is to be found in different limitation periods. Thus, in England and Wales, the primary limitation period for personal injury claims is three years, whereas the primary limitation period for most other claims is six years. There is a 20 year prescription period for property claims in Scotland. To treat personal injury and, for example, property claims as true comparators for the purpose of deciding whether the shorter limitation period for personal injury claims constituted less favourable treatment would make no sense. This is because it is no part of the purpose of the principle of equivalence to prevent member states from applying different procedural requirements to different types of claim, where the differences in those procedural requirements are attributable to, or connected with, differences in the underlying claims. Mr Michael Firth for Totel drew the courts attention to some passages in European authorities which, he submitted, justified addressing the similarity question at a very high level of generality, in support of his broad submission that all UK appeals against tax assessments are true comparators with an appeal against a VAT assessment. He relied, for example, on the following passage in the courts judgment in the Transportes Urbanos case, at para 36: As regards the purpose of the two actions for damages referred to in the previous paragraph, the Court notes that they have exactly the same purpose, namely compensation for the loss suffered by a person harmed as a result of an act or omission of the State. Accordingly, he submitted, all claims against the state for compensation for loss were, at least in principle, capably of being truly comparable for the purposes of the principle of equivalence. Taken out of context, that citation might appear at first sight to support Mr Firths submission, but a closer analysis of that case shows that it does nothing of the kind. The claimant complained that it had been over charged to VAT, and its consequential loss could be remedied if either the charge in question was contrary to European law, or if it was contrary to the Spanish Constitution. In the former case Spanish procedural law imposed a condition requiring prior exhaustion of remedies, whereas it did not for the latter. The alternative claims were held to be true comparables for the purposes of the principle of equivalence not because they were both, viewed in the abstract, claims against the state for compensation for loss, but because they were alternative legal bases for claiming compensation for precisely the same loss. This is, in particular, apparent from para 43 of the Courts judgment. Alternative types of claim for compensation for exactly the same loss are a common example of true comparators: see eg Preston v Wolverhampton Healthcare NHS Trust (No 2) [2001] 2 AC 455. For his part, Mr Jonathan Swift QC for HMRC submitted that dicta in European and domestic authority justified a conclusion that there could never be a true comparator with an appeal against a VAT assessment, apart from some other assessment to VAT. In short, he submitted that VAT, and all claims relating to it, were sui generis, with no true comparator arising from any other type of tax. He began with the following dictum of Moses J in Marks & Spencer plc v Comrs of Customs and Excise [1999] 1 CMLR 1152, a case in which a limitation period for the recovery of overpaid VAT was alleged to offend the principle of equivalence. At paras 61 62 he said: In my judgment no comparison can be made with other types of tax such as income tax payable in respect of an individuals profits or the tax on a document imposed by stamp duty. Other forms of indirect taxation, such as excise duty, are wholly different types of tax. It seems to me that the jurisprudence of the European Court of Justice, exemplified in EDILIZIA, requires a comparison between the approach of a member state to the recovery of tax charged in breach of Community rules and the recovery of the same tax in breach of domestic rules. Any wider enquiry would invite unnecessary argument as to whether there is a true comparison. (My emphasis) Referring to the principle of equivalence, he concluded: The principle is designed to protect Community law rights: adequate protection is afforded by focusing upon the way a member state deals with the same tax in a domestic as opposed to Community context. The difficulty with this analysis, as Mr Firth pointed out, is that (as Mr Swift agreed) all claims to recover overpaid VAT are necessarily based on EU law, because VAT is a tax regulated by EU law. Moses Js analysis was approved by the Court of Appeal in Littlewoods Ltd v Revenue & Customs Comrs (CA) [2015] EWCA Civ 515; [2016] Ch 373, paras 133 134 in the judgment of Arden LJ. But it appears that her analysis was based on the same concession, namely that there could be purely domestic claims for recovery of overpaid VAT. Mr Swift obtained more persuasive assistance from Reemtsma Cigarettenfabriken GmbH v Ministero delle Finanze (Case C 35/05) [2007] ECR I 2452. It was alleged in that case that a provision limiting the identity of those who could claim a VAT repayment offended against the principle of equivalence because there was no comparable restriction in relation to the recovery of overpaid direct tax. At paras 94 and 95 of her opinion, Advocate General Sharpston agreed with the following submission of the Commission: In general a situation in that (direct tax) field is unlikely to be comparable to that in the field of VAT. In the latter it is in principle only the supplier who is in a direct legal relationship with the tax authority. Indeed, the whole system of direct taxation is unrelated to that of VAT. Since the principle of non discrimination concerns only comparable situations, it is thus not relevant here. In its judgment, the Court adopted the more general part of the Commissions argument at para 45: In the present case, the system of direct taxation, as a whole, is not related to the VAT system. Accordingly, the Court concluded that none of the EU anti discriminatory principles, including the principle of equivalence, were engaged by the comparison between VAT and direct taxation. Compass Contract Services Ltd v Comrs for Her Majestys Revenue and Customs (Case C 38/16) EU:C:2017:454 involved a comparison between different limitation periods applicable to claims to recover overpaid VAT, and claims to deduct input tax from VAT otherwise due, for the purposes of the equal treatment principle. The Fourth Chamber of the CJEU concluded that, even within the confines of the VAT regime, the two claims were not truly comparable: see paras 36 39 of the judgment. Taken together, these authorities certainly justify the exercise of very considerable caution by a national court when faced with the assertion that a VAT claim should be treated as truly comparable, for the purposes of the principle of equivalence, with a claim relating to some domestic tax, and in particular with any direct tax. But I do not consider it necessary or appropriate to go so far as to conclude that, for all purposes connected with the principle of equivalence, VAT claims must be treated as sui generis, with no possibility of there being a true comparator in a claim arising out of some other tax. My reasons follow. First, the identification of any such general rule would run counter to the context specific basis upon which it is clear that the examination of comparators for the purposes of the principle of equivalence must be conducted. It would, in particular, rule out any analysis of the question whether the particular procedural provision alleged to amount to less favourable treatment had any connection with underlying differences between VAT and some different domestic tax. Secondly, although the courts ruling in the Reemtsma case appears to come quite close to such a general conclusion, the principle of equivalence lay only at the fringe of the issues there being considered by the CJEU, with the result that, unsurprisingly, the point was addressed with what may fairly be described as extreme brevity. The case was mainly about the related principles of neutrality, effectiveness and non discrimination. Thirdly, if the Reemtsma case had established such a general rule in 2007, namely that VAT is for this purpose sui generis, with no true comparators, it is difficult to understand why this did not constitute a simple solution to the question referred to the CJEU in the Littlewoods case (Case C 591/10) [2012] STC 1714, which included the question whether the restriction of a successful claimant to a VAT repayment to simple interest offended the principle of equivalence, when compared with interest payable on other types of claim for repayment of tax under domestic law. It is evident from paras 42 to 48 of the opinion of Advocate General Trstenjak that there was a wide range of submissions as to potential comparators, including a concession from the UK government that, in principle, repayment claims under domestic indirect taxation were comparable for the purposes of the principle of equivalence, in the context of different entitlement to interest. In accordance with the Advocate Generals advice, the Court of Justice referred the comparability question to the UK courts. This must have been on the basis either that there was no rule of general application for all purposes that VAT claims could in no circumstances be treated as truly comparable with claims for repayment of domestic tax, or that the CJEU regarded claims for restitution against the state as falling within a separate category. Nevertheless, applying the context specific analysis called for by the European jurisprudence which I have described, the Court of Appeal was in my judgment correct to conclude that none of the domestic taxes (namely Income Tax, CGT and SDLT) proposed by Totel constituted true comparators with VAT for the purpose of deciding whether the imposition in the VAT context of a pay first requirement constituted less favourable treatment contrary to the principle of equivalence. This is because a trader seeking to appeal a VAT assessment is typically in a significantly different position from a taxpayer seeking to appeal an assessment to any of those other taxes, and in a manner which is properly to be regarded as sufficiently connected with the imposition of a pay first requirement. In that respect my reasoning is closely aligned with that of the Court of Appeal, as explained in para 54 of Arden LJs judgment. Subject to certain exceptions to which I refer below, VAT is a tax of which the economic burden falls upon the ultimate consumer, but which is collected by the trader from the consumer, and accounted for by the trader to HMRC. By contrast, taxpayers seeking to appeal an assessment to Income Tax, CGT and SDLT are being required to pay, from their own resources, something of which the economic burden falls on them, and which they have not collected, for the benefit of the Revenue, from anyone else. It is therefore no less than appropriate that traders assessed to VAT should be required (in the absence of proof of hardship) to pay or deposit the tax in dispute, which they have, or should have, collected, while no similar requirement is imposed upon the taxpayers in those other, and different, contexts. I do not by reference to this connection between the pay first requirement and the traders paradigm status as a tax collector rather than a taxpayer mean to suggest that it is a condition of the recognition of this important difference separating VAT from other taxes that the pay first requirement was devised for that specific reason. The evidence before the court did not show what, in fact, the reason was. The existence of a logical rather than causal connection is sufficient to justify the conclusion that VAT is different from those other taxes in this context, rather than a true comparator, regardless of the reason for the imposition of the pay first requirement. Mr Firth sought to challenge this distinction between VAT and those other taxes. First, he submitted that the portrayal of the VAT registered trader as a collector rather than a payer of tax was true only for one of the three types of liability for VAT, the other two being acquisition from other member states and imports from outside the EU. That is, I agree, true of those heads of liability, but they arise only in a cross border context, and for the purpose of making the VAT scheme work as a whole. The paradigm remains that of the trader who collects VAT from his customers and accounts for it to the Revenue. Secondly, Mr Firth submitted that by no means in every case would a trader seeking to appeal a VAT assessment already have collected the relevant tax from his customer. The appeal might be about whether his supply was subject to VAT, in circumstances where he had not charged VAT at all. That is, again, true as far as it goes, but it does not significantly impact on the paradigm. More typical are those appeals where the underlying dispute is whether the trader is entitled to deduct from tax collected on his supplies the VAT paid by him on his inputs. Thirdly, Mr Firth submitted that even if the VAT trader could generally be regarded as a collector rather than payer of tax, the same was equally true of an employer deducting and accounting for employees Income Tax under the PAYE scheme so that Income Tax was, nonetheless, a true comparator with VAT. I would, again, acknowledge that there is an element of similarity between the two, but there are important differences. First, in circumstances of wilful failure to deduct by the employer the employee remains liable to the Revenue for Income Tax whereas, in the VAT context, the only recourse of HMRC is to the trader rather than the consumer. This distinction is closely connected with the existence of a pay first condition for a VAT appeal but not in a PAYE context. Secondly, the employer has not charged and received a payment from employees creating a fund for which the employer is accountable. Thirdly, the PAYE scheme is only a sub set of the Income Tax scheme viewed as a whole, and lies nowhere near so close to the essential nature of the relevant tax structure as does the quasi collector status of the VAT trader. Finally, it was no part of Totels case that, for the purposes of the principle of equivalence, the PAYE part of the Income Tax scheme was the sole true comparator with VAT for the purpose of testing whether the pay first requirement represented less favourable treatment. Rather, Totels case was that, simply because all appeals against assessments to tax are made for the same general purpose, and to the same tribunal, they could all properly be regarded as true comparators with appeals of assessments to VAT. That requires the similarity question to be addressed at a level of generality which is so high as to place it outside the entirety of the relevant jurisprudence about the principle of equivalence. It must therefore be rejected. My conclusion on this issue is sufficient to dispose of this appeal. The issue as to the meaning and application of the Proviso has content only against the hypothetical assumption that appeals against assessment to all kinds of direct and indirect domestic tax are true comparators with VAT appeals, and the unreality of that hypothesis makes it difficult to conduct a reliable analysis of the second issue. But it has been fully argued, and it was the first plank upon which the Court of Appeal dealt with the case. I shall therefore make some limited observations about it although, had it been necessary to decide this issue for the resolution of this appeal, I might have regarded it as deserving of a reference to the CJEU. But first it is convenient to deal with the new submission of HMRC that the imposition of the pay first requirement does not in any event amount to less favourable treatment. Does the pay first requirement amount to less favourable treatment? This issue would arise if, contrary to my conclusion, there had been a truly comparable domestic tax in relation to which an appeal against an assessment was not subjected to the pay first requirement which affects VAT appeals. It is an issue which would therefore arise if any of Income Tax, CGT or SDLT had been a true comparator for the purposes of the principle of equivalence. Less favourable treatment is not, of course, established merely because the procedure for one type of claim contains a restriction or condition which is absent from the procedure for another type of claim. It is common to find that different claims are subjected to a package of procedural requirements, such that some of those affecting claim A are less favourable, but others more favourable, than those affecting claim B. A good example is to be found in Preston v Wolverhampton NHS Trust (No 2) [2001] 2 AC 455, illustrated in paras 29 to 31 in the speech of Lord Slynn. In the present case, for the first time in this court, HMRC point out that appeals against assessment to Income Tax, CGT and SDLT are subject to a procedural regime such that the tax in dispute may still be collected pending the outcome of the appeal, by processes of enforcement which may include the presentation of a winding up petition against the taxpaying company, unless the taxpayer can obtain postponement of payment, by demonstrating that there are reasonable grounds for believing that the tax in dispute has been overcharged: see, in relation to Income Tax, section 55 of the Taxes Management Act 1970 and, in relation to SDLT: paragraph 39 of Schedule 10 to the Finance Act 2003. If the taxpayer faces a winding up petition on the basis of the tax in dispute, then it may defend that petition by showing that the amount in dispute is bona fide disputed on substantial grounds. HMRC concedes that the same principles about postponement, and the defence of a winding up petition, apply also to the collection of VAT pending an appeal: see Revenue and Customs Comrs v Changtel Solutions UK Ltd [2015] EWCA Civ 29; [2015] 1 WLR 3911. Nonetheless Mr Swift submits that, in practice, a trader who has obtained disapplication of the pay first requirement by demonstrating hardship would not thereafter be subjected to any process of enforced collection of the disputed tax, pending the outcome of the appeal. Mr Swifts point is not so much that the pay first requirement in relation to VAT is balanced out by the provisions about collection and postponement pending appeal in relation to Income Tax, CGT and SDLT. Rather, he submits that, looked at in the round, the two regimes have broadly the same effect, so that the VAT regime cannot be described as less favourable. Viewed from the perspective of a trader with a good case for proving hardship, together with a reasonable prospect of success on appeal, that might in practice be so, although I would not accept that in no circumstances could a tax demand be enforced against a VAT trader who had established hardship. The two statutory tests are not the same. Nonetheless, from the perspective of a trader who cannot demonstrate hardship, the position seems to me to be rather different. Such a trader would have to raise and lodge the tax in dispute up front, before commencing an appeal. By contrast a taxpayer under Income Tax, CGT or SDLT is at liberty to initiate an appeal against an assessment, and may or may not be faced with an application for collection by HMRC. More generally, there is in my view no escape from the fact that the pay first requirement is additional to, rather than a substitute for, the regime for collection and postponement so that, in principle, it constitutes less favourable treatment for VAT appellants even if, in certain types of supposedly comparable cases, it may make no difference to the outcome, in terms of the ability to prosecute an appeal without paying the tax in dispute. The no most favourable treatment Proviso This issue arises if the search for true comparators with the EU claim discloses more than one comparable domestic claim with, viewed in the round, different levels of favourableness in procedural treatment. On almost every occasion when it has referred to the principle of equivalence the CJEU has added the proviso that the principle does not require the EU claim to be treated as favourably as the most favourably treated comparable domestic claim. In the earliest of the cases cited to this court, the EDIS case, the proviso is explained thus, at para 36: That principle (the principle of equivalence) cannot, however, be interpreted as obliging a member state to extend its most favourable rules governing recovery under national law to all actions for repayment of charges or dues levied in breach of Community law. Similar statements appear in the Levez case at para 45, in Pontin v T Comalux SA (Case C 63/08) [2009] ECR I 10467, at para 45, in the Transportes Urbanos case, at para 34 and in the Littlewoods case, at para 31. But none of these cases provide any more comprehensive explanation of how the Proviso is to be applied in practice. This may be because its detailed operation is a matter for national courts, and the CJEU considers that the Proviso as described above is sufficiently self explanatory for that purpose. The issue of interpretation of the Proviso arises in the present case on the assumption that truly comparable domestic tax claims may include appeals against assessment not only to domestic taxes like Income Tax, where the procedure does not include a pay first requirement, but also to other taxes like Insurance Premium Tax and Landfill Tax, which do. Thus VAT claims are treated less favourably than one or more true comparators, but equally favourably with others. There are only two levels of differently favourable treatment on this particular domestic spectrum of supposedly comparable claims, but it is easy to imagine a spectrum with several levels, with treatment of the comparable EU claim lying at the top, in the middle, or at (or below) the bottom of that spectrum. In Revenue and Customs Comrs v Stringer [2009] ICR 985, probably thinking of a spectrum of the latter kind, Lord Neuberger said this (obiter) about the Proviso: This is therefore not a case where it could be said that the appellants are seeking to benefit from the most favourable rules of limitation, which I understand to mean exceptional or unusually beneficial rules (as mentioned by the Court of Justice in Levez v TH Jennings (Harlow Pools) Ltd, at para 42). In para 42 of the Levez case the CJEU merely repeated the Proviso as enunciated in the EDIS case and set out above, slightly adjusting the language to suit the facts, but without any underlying change in meaning. In the present case Mr Swift submitted that the Proviso should be treated as a reflection of the underlying purpose of the principle of equivalence, namely that national procedural rules should not single out EU claims for worse treatment, and specifically not discriminate against them by reason of their EU, rather than national, origin. If therefore the procedure for any true domestic comparator gave treatment to its claimant no more favourable than given to the EU claim, then the principle of equivalence was satisfied. If in the present case Insurance Premium Tax and Landfill Tax are true comparators, then the treatment of VAT appeals does not infringe the principle of equivalence. By contrast Mr Firth submitted that once any true comparator was identified the procedure for which treated its claimants better than did the procedure for the EU claim, then the principle of equivalence was infringed, unless the better domestic treatment fell into that exceptional category identified by Lord Neuberger in the Stringer case as excluded by the Proviso. Income Tax, CGT and SDLT could not be excluded as conferring exceptionally favourable treatment, and the fact that there were other domestic tax appeals treated equally favourably with VAT was neither here or there. The fact that domestic appellants in Insurance Premium Tax cases also received less favourable treatment than Income Tax appellants did not mean that the EU based claims by VAT registered traders were not less favourably treated. One example of discrimination does not, so it is said, justify another. Both sides sought to squeeze out of the language of the CJEU decisions some titbits favourable to their sharply opposing cases on this point. For example, in the paragraph of the judgment in the EDIS case following the statement of the Proviso (para 37) is it stated: Thus, Community law does not preclude the legislation of a member state from laying down, alongside a limitation period applicable under the ordinary law to actions between private individuals for the recovery of sums paid but not due, special detailed rules, which are less favourable, governing claims and legal proceedings to challenge the imposition of charges and other levies. The position would be different only if those detailed rules applied solely to actions based on Community law for the repayment of such charges or levies. That last sentence, said Mr Swift, clearly allowed a member state to resist an allegation of breach of the principle of equivalence if any similar domestic procedure included a pay first requirement. follows: In the present case the Court of Appeal applied that dictum, at para 47, as The jurisprudence of the CJEU shows that it is open to a member state to apply any available set of rules, which are already applied to similar claims, to an EU derived claim, provided that an EU derived claim is not selected for the worst treatment. No one suggests that that is the position here. Mr Firth relied by contrast first upon dicta from the Levez case, at paras 39 to 45 of the judgment. In my view, taken in context, they are neutral on the point. The high water mark of his citations was this passage from the Pontin case, at para 56 of the judgment: If it emerges that one or more of the actions referred to in the order for reference, or even other national remedies that have not been put before the Court, are similar to an action for nullity and reinstatement, it would also be for the referring court to consider whether such actions involve more favourable procedural rules. The implication was, he said, that the discovery of any comparable domestic claim with more favourable treatment that the EU claim would offend the principle of equivalence. I do not consider that any reliable answer to this question can be found by the minute textual analysis of the CJEU authorities. Nor was Lord Neubergers instinctive conclusion about the limited meaning of the Proviso in the Stringer case intended to be a fully reasoned or comprehensive explanation of its full purpose and effect. I need reach no final conclusion in this case, but would tentatively suggest the following analysis. First, the Proviso should not be regarded as some free standing rule, separate from the principle of equivalence. Rather it is part of the Court of Justices expression of the principle of equivalence itself, directed to explaining the standard of treatment which that principle imposes upon member states when providing procedures for the vindication of rights based in EU law. What is required is that the procedure should be broadly as favourable as that available for truly comparable domestic claims, rather than the very best available. Secondly, the Proviso is, like the principle of equivalence of which it forms part, best understood in the light of its purpose. Although nowhere expressly stated, I consider that HMRC were correct to submit that it is to prevent member states from discriminating against claims based upon EU law by affording them inferior procedural treatment from that afforded to comparable domestic claims. On that basis I consider that the conclusion of the Court of Appeal on this issue, set out in the passage quoted above from the judgment of Arden LJ, is broadly correct. I would only add that this would not justify the choice of some exceptionally tough set of procedural rules already applied to some domestic claim for reasons particular to that type of claim. But such a claim would be most unlikely to be a true comparator in any event. Conclusion I would therefore dismiss this appeal, on the ground that there has not been shown to be any true comparator among domestic claims sufficient to engage the principle of equivalence in relation to the imposition of a pay first requirement upon traders seeking to appeal assessments to VAT.	Traders who wish to appeal against assessments to Value Added Tax (VAT) in the United Kingdom are required, by section 84 of the Value Added Tax Act 1994, first to pay or deposit the tax notified by the assessment with HMRC, unless they can demonstrate that to do so would cause them to suffer hardship. This pay first requirement is a feature of the procedural regime for appealing assessments to a number of other types of tax including Insurance Premium Tax and Landfill Tax. It is not a condition for appealing assessments to Income Tax, Capital Gains Tax, Corporation Tax or Stamp Duty Land Tax. VAT is regulated by the EU VAT Directive 2016/112. An appeal against a VAT assessment is therefore a claim based on EU law. The appellant, Totel Ltd (Totel), seeks to appeal a number of assessments to VAT but has been unable to demonstrate that a requirement to pay or deposit the tax in dispute would cause the company hardship. Totel claims the requirement to pay or deposit the disputed tax, as a pre condition for an appeal, offends against the EU law principle of equivalence. Totel first raised its challenge based upon the principle of equivalence when it successfully sought permission to appeal to the Court of Appeal. The Court of Appeal dismissed Totels appeal. The Supreme Court unanimously dismisses the appeal. Lord Briggs gives the lead judgment with which the other Justices agree. The principle of equivalence requires that the procedural rules of member states applicable to claims based on EU law are no less favourable than those governing similar domestic claims [3]. The principle of equivalence and its qualifying no most favourable treatment proviso (the Proviso) are creations of the Court of Justice of the European Union (CJEU) jurisprudence and take effect within the general context that it is for each member state to establish its own national procedures for the vindication of rights conferred by EU law [6]. The principle of equivalence requires a true comparator for it to be able to operate at all. Identification of one or more true comparators is therefore the essential first step [7]. Whether any proposed domestic claim is a true comparator with an EU law claim is context specific [9]. The domestic court must focus on the purpose and essential characteristics of allegedly similar claims [10]. Of particular importance is the specific procedural provision that is alleged to constitute less favourable treatment of the EU law claim. Differences in procedural rules are frequently attributable to differences in the underlying claim [11]. It is not necessary or appropriate to treat VAT claims as unique with no possibility of having a true comparator. Such a general rule would run counter to the context specific basis which underpins the principle of equivalence. In Reemsta Cigarettenfabriken GmbH v Ministero delle Finanze (Case C 35/05) [2007] ECR1 2452, the CJEU considered equivalence as a mere fringe issue and, had Reemsta actually established such a rule, this would have provided a simple solution for the question before the CJEU in the Littlewoods Retail Ltd v Revenue & Customs Comrs (Case C 591/10) [2012] STC 1714 [18 21]. Applying the context specific analysis, the Court of Appeal was correct to conclude that none of the domestic taxes constituted true comparators with VAT. A trader seeking to appeal a VAT assessment is typically in a significantly different position from a taxpayer seeking to appeal an assessment to any of those other taxes [22]. VATs economic burden falls upon the consumer, but it is collected by the trader from the consumer and accounted for by the trader to HMRC. Taxpayers appealing Income Tax, for example, are being required to pay something of which the economic burden falls on them and which they have not collected from anyone else. Therefore, it is no less than appropriate that traders assessed to VAT should be required to pay or deposit the tax in dispute, which they have or should have collected [23]. This logical connection is sufficient to justify the conclusion that VAT is different to those other taxes in this context regardless of the actual legislative reason for the imposition of the pay first requirement [24]. Lord Briggs considered what the position would have been had any of Income Tax, Capital Gains Tax or Stamp Duty Land Tax been a true comparator for the purposes of the principle of equivalence. The Proviso is not a free standing rule but part of the expression of the principle of equivalence and is directed to the standard of treatment which that principle imposes. Procedures should be broadly as favourable as that available for truly comparable domestic claims, rather than the very best available [45]. The Provisos purpose is to prevent member states from discriminating against claims based upon EU law by affording them inferior procedural treatment than comparable domestic claims [46]. While reaching no final decision on this point, Lord Briggs concluded that the Court of Appeals conclusion on this issue is therefore broadly correct [47].
These three appeals raise questions as to the circumstances in which the Parole Board (the board) is required to hold an oral hearing. One of the appeals (that of the appellant Osborn) concerns a determinate sentence prisoner who was released on licence but then recalled to custody. The other appeals (those of the appellants Booth and Reilly) concern indeterminate sentence prisoners who have served their minimum terms. reached. In order to comply with common law standards of procedural i) fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged. It is impossible to define exhaustively the circumstances in which an ii) oral hearing will be necessary, but such circumstances will often include the following: a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation. b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories. c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a paper decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoners future management in prison or on future reviews. In order to act fairly, the board should consider whether its iii) independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision making, but also to reflect the prisoners legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood. vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff. vii) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner. viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense. ix) The boards decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoners release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoners treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews. Paper decisions made by single member panels of the board are x) provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate. xi) oral hearing if it is in doubt whether to do so or not. xii) The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness. xiii) A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty. In applying this guidance, it will be prudent for the board to allow an The legislative framework Section 239(2) of the Criminal Justice Act 2003 (the 2003 Act) provides that it is the duty of the board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners. This includes advising on licence conditions: R (Brooke) v Parole Board [2008] EWCA Civ 29; [2008] 1 WLR 1950, para 47. Section 239(5) permits the Secretary of State to make rules with respect to the proceedings of the board. Section 239(6) permits the Secretary of State to give the board directions as to the matters to be taken into account by it in discharging its functions under Chapter 6 of Part 12 of the 2003 Act, which concerns the release, licences and recall of determinate sentence prisoners, or under Chapter II of Part II of the Crime (Sentences) Act 1997 as amended (the 1997 Act), which concerns the release, licences and recall of indeterminate sentence prisoners. It will be necessary to return to the rules and directions which were in force at the material time. Determinate sentence prisoners who are serving a sentence of 12 months or more are automatically entitled to be released on licence at the halfway point in their sentence: section 244 of the 2003 Act. Section 254 confers on the Secretary of State the power to revoke the licence and to recall the prisoner to prison. There is no obligation on the Secretary of State to consult the board before doing so, and any direct challenge to the Secretary of States decision to revoke a licence can only be made by way of an application for judicial review. At the material time, section 255C(4) of the 2003 Act (as inserted by the Criminal Justice and Immigration Act 2008) imposed a duty upon the Secretary of State to refer the recalled prisoners case to the board. Section 255C(5) provided that, where on such a reference the board recommended the prisoners immediate release, the Secretary of State must give effect to that recommendation. In relation to indeterminate sentence prisoners, section 28(5) of the 1997 Act imposes a duty on the Secretary of State to release the prisoner as soon as he has served the tariff part of his sentence and the board has directed his release. Section 28(6) prohibits the board from giving such a direction unless it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The Rules The rules in force at the material time were the Parole Board Rules 2004 as amended by the Parole Board (Amendment) Rules 2009 (the rules): those currently in force, the Parole Board Rules 2011 (SI 2011/2947), contain analogous provisions. The rules applied where an indeterminate sentence prisoners case was referred to the board for a decision as to whether he should be released. It is common ground between the parties that they had no application where a determinate sentence prisoners case was referred, following his recall, for a decision as to whether he should be re released. The rules therefore applied in the cases of the appellants Booth and Reilly, but not in the case of the appellant Osborn. The rules made provision for the listing of the prisoners case, following which the Secretary of State was required to serve on the board, and on the prisoner or his representative, specified information and reports. The prisoner was then required to serve on the board and on the Secretary of State any representations about his case that he wished to make. Rule 11 provided for the initial consideration of a prisoners case by a single member of the board, without a hearing. It provided: 11. (1) Within 14 weeks of the case being listed, a single member panel shall consider the prisoners case (sic) without a hearing. 11. (2) The single member panel must either (a) decide that the case should receive further consideration by an oral panel, or (b) make a provisional decision that the prisoner is unsuitable. 11. (3) The decision of the single member panel shall be recorded in writing with reasons, and shall be provided to the parties within a week of the date of the decision. It was implicit in rule 11(2) that an oral hearing would always be held before an indeterminate sentence prisoner was released. Rule 12 was headed Provisional decision against release, and applied where a decision was taken under rule 11(2)(b). It provided: 12. (1) In any case where the single member panel has made a provisional decision under rule 11(2)(b) that the prisoner is unsuitable for release, the prisoner may request an oral panel to give consideration to his case with a hearing. 12. (2) Where the prisoner does so request consideration of his case with a hearing, he must serve notice to that effect, giving full reasons for the request on the board and the Secretary of State within 19 weeks of the case being listed. 12. (3) If no notice has been served in accordance with paragraph (2) after the expiry of the period permitted by that paragraph, the provisional decision shall become final and shall be provided to the parties within 20 weeks of the case being listed. The rules were silent as to how requests for an oral hearing were to be decided and by whom. Where a decision was made under rule 11(2)(a) or a hearing was ordered pursuant to a request under rule 12(2), Part 4 of the rules applied. Provision was made for such matters as the prisoners attendance at the hearing, the submission of documentary evidence and the calling of witnesses. In relation to the procedure to be followed at the hearing, rule 19 provided that the panel was required so far as possible to make its own enquiries in order to satisfy itself of the level of risk of the prisoner. The parties were entitled to appear and be heard and to take such part in the proceedings as the panel thought fit. They were permitted to hear each others evidence, put questions to each other, call any witnesses whom the board had authorised to give evidence, and put questions to any witness or other person appearing before the panel. After all the evidence had been given, the prisoner was to be given a further opportunity to address the panel. Under the rules as introduced in 2004, an indeterminate sentence prisoner was entitled under rule 12(1), in any case where a single member panel had made a provisional decision under rule 11(2)(b), to require a three member oral panel to give consideration to his case with a hearing. This right was taken away by the Parole Board (Amendment) Rules 2009 (SI 2009/408), which came into effect on 1 April 2009. There is a difference between the position in England and Wales following that amendment and the position in the rest of the United Kingdom, where indeterminate sentence prisoners (and some other categories of prisoner) remain entitled to an oral hearing: see the Parole Board (Scotland) Rules 2001 (SSI 2001/1315) rule 20, and the Parole Commissioners Rules (Northern Ireland) 2009 (SR 2009 No 82), rule 17(2). The directions At the time when the appellants cases were considered by the board, the directions given by the Secretary of State in relation to determinate sentence prisoners recalled to prison, such as the appellant Osborn, stated that the assumption is that the board will seek to re release the prisoner or set a future re release date in all cases where it is satisfied that the risk be safely managed in the community (sic). The board was required to consider a number of matters, including the likelihood of the offender complying with the requirements of probation supervision. In assessing that likelihood, the board was required to consider the offenders conduct during the licence period to date. In relation to indeterminate sentence prisoners such as the appellants Booth and Reilly, the board was required by the relevant directions to consider a number of matters, including whether the prisoner had made positive and successful efforts to address the attitudes and behavioural problems which led to the commission of the index offence, the nature of any offences against prison discipline which he had committed, his attitude and behaviour to other prisoners and staff, any medical, psychiatric or psychological conditions, particularly if there was a history of mental instability, and any indication of predicted risk as determined by a validated actuarial risk predictor model, or any other structured assessments of risk and treatment needs. Other directions assumed that the board had the power to recommend the transfer of indeterminate sentence prisoners to open conditions, and to give directions relating to the exercise of that power. Practice determinate sentence prisoners recalled to custody In relation to determinate sentence prisoners recalled to custody, such as the appellant Osborn, the practice of the board, following the decision of the House of Lords in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350, was to grant an oral hearing to any prisoner who requested one following a provisional decision. That practice changed in February 2007, when the board published a notice stating that it would require reasons from the prisoner when applying for an oral hearing, and would grant such applications only where it appeared to the board that a hearing was necessary and fell within the ambit of the House of Lords ruling. The practice followed by the board in relation to such prisoners is set out in unpublished guidance to panels. That guidance states: All recalled prisoners are initially considered by a paper panel. That panel can decide whether to send the case to an oral hearing. An oral hearing will normally be granted in three sets of circumstances: 1. where the prisoner disputes the circumstances of the recall and the facts of the recall are central to the question of risk and re release; or 2. where the prisoner argues that the recall incident was not justified for some reason, or was not as serious as alleged and this affects the assessment of risk; 3. any case where the assessment of risk requires live evidence from the prisoner and/or witnesses. Where the prisoner asks for an oral hearing, the panel should: Consider whether it is possible to decide the issues and release on the papers; Otherwise, send the case for an oral hearing Where a prisoner submits representations challenging his or her recall the panel should: Consider whether it is possible to decide the issues and release on the papers; or Refuse the representations . or Send the case to an oral hearing. This should only be done when the panel is unable to decide the issues on the papers and concludes that they can only be determined after hearing oral evidence. (emphasis in original) Practice indeterminate sentence prisoners Historically, as I have explained, indeterminate sentence prisoners were entitled to an oral hearing. Following the amendment of the rules in 2009, guidance was issued which was in force at the material time. It stated: Decisions on oral hearings will be taken by the ICM [Intensive Case Management] member. The member will consider this in all cases, regardless of whether the prisoner has requested one. An oral hearing will normally be granted in two sets of circumstances: 1. Where the ICM member considers there is a realistic prospect of release or a move to open conditions; or 2. In any case where the assessment of risk requires live evidence from the prisoner and/or witnesses. This would include a case where a progressive move is not a realistic outcome, but where live evidence is needed to determine the risk factors. It is envisaged that this will be a rare step to take and would normally only be necessary where experts disagreed about a risk factor; for example, whether or not there was a sexual element to an offence that needed exploring. It is only intended to apply this principle where there is a dispute about whether an issue is a risk factor at all, not necessarily whether it has been addressed or not. An oral hearing will not be granted where there is no realistic prospect of release or open conditions, but where such outcomes are requested by the prisoner, detailed reasons will be given for refusing, in particular where the prisoner is already in category C or D. This guidance is thoroughly illogical. First, if an oral hearing will normally be granted in two sets of circumstances, the first being that there is a realistic prospect of release or a move to open conditions, it cannot be correct to say that an oral hearing will not be granted where there is no prospect of release or open conditions: if that were true, the second alternative would not exist. Secondly, if, applying the guidance, the board has been able to conclude that there is no realistic prospect of release or a move to open conditions, then it is difficult to see how it can nevertheless consider that the assessment of risk requires live evidence. The facts Michael Osborn The appellant Osborn was convicted in 2006 of putting people in fear of violence by harassment, and possession of an imitation firearm, during an incident when he was said to have brandished the imitation firearm at the home of his estranged wife. He received a sentence of six years imprisonment, the custodial element of which expired on 20 February 2009, when he was released on licence. He was assessed as presenting a very high risk of harm, and was placed under surveillance from the point of his leaving prison. He was recalled to custody the same day, after arriving at the hostel where he was to live 20 minutes after the time when he was required by his licence conditions to be there, having visited an address at a village in Staffordshire en route. His licence was revoked the same day. He was informed by the Ministry of Justice that he had been recalled to prison because it had been reported by the probation service that he had breached a condition of his licence by failing to confine himself to an address approved by his supervising officer during the hours of a curfew. He was informed that his licence had been revoked by the Secretary of State for Justice because in view of the offences for which he was originally sentenced, the risk suggested by his offending history and his behaviour as described in the breach report completed by the probation service, the Home Secretary (sic) was no longer satisfied that it was right for him to remain on licence. The appellants case was then listed before the board, which was provided with a request for recall report or recall pack, written with a view to justifying the recall, and a report for review of re release. These documents, prepared by the Ministry of Justice or its agencies, contained accounts of events prior to and after his release by his offender manager, a line manager and a senior manager, all of whom agreed that he could not be safely released. In particular, the offender manager raised concerns about the appellants willingness to comply with licence conditions. He reported that the appellant had stated to him, before being released, his refusal to comply with the requirements of his licence, initially challenging whether he should be required to reside at approved premises, and also challenging the extent of an exclusion zone. The offender manager had also received information that on the day of his release, when reminded that he could not have access to firearms, the appellant had said not for another two hours. He was reported to have said that he would be back in prison shortly after he had done what he needed to do. It was also reported that shortly before the appellant had left the address which he had visited en route to the hostel he had telephoned the hostel manager to tell her that he would be late, saying falsely that he was on the A38. On returning to his car he had removed and rearranged items in the boot. This gave rise to concern in view of his comment about access to firearms. He was also reported to have told the hostel manager earlier that week that he could not share a room as he had a multi personality disorder. In view of this reported statement, the offender manager considered it crucial that the prisoner should undergo a full psychiatric assessment before being considered for release. In a letter dated 6 April 2009, the appellants solicitors made representations to the board in support of his release, attaching a handwritten statement in which the appellant provided a detailed account of the events of the day on which he had been released and recalled to custody. He maintained that there had been a delay in his release while the prison waited for the surveillance team to arrive, and that the hostel manager had in consequence agreed to a 30 minute extension of the deadline for his getting there. He had arrived at the hostel before that deadline expired. He had stopped in the village in order to drop off his sister in law, who was one of the passengers in the car in which he had been collected from prison. The solicitors accepted that the appellant had expressed initial concerns about the licence conditions, but said that he had now been advised of the proper channels for challenging such conditions and understood that they were binding. They stated that he had demonstrated in custody that he could behave well, and that he could be expected to comply with his licence. They maintained that any risk could be safely managed within the community, as probation reports indicated. His previous offending, before the index offence, had taken place when he was 16 or 17 years of age. He was now 37. His record within prison had been good: he held trusted employment and was adjudication free. His risk level had been altered to very high on the day before his release, by his recently appointed offender manager, without a proper review or assessment, so as to enable the surveillance and emergency recall to be arranged. The solicitors also said that the offender managers report had only been received that day, and that they had not been able to obtain the appellant's comments on the allegations made against him. They noted that the offender manager had stated that the appellant was devoid of any victim sympathy/awareness, but commented that he had had very little contact with their client. They confirmed that the appellant suffered from mental health problems, but said that the probation service was fully aware of them. It was understood that the prison service had also been aware of them throughout the appellants incarceration, and that he had remained in contact with the psychiatric nurse at his current prison until being signed off. On 22 April 2009 the appellants case was considered by a paper panel comprising an anonymous member of the board, who decided to make no recommendation that he should be released. In its written decision, the panel noted the nature of the index offence and the previous record. It summarised the offender managers account of the appellants attitude towards the licence conditions and of events on the date of release. The removal and rearrangement of items in the car boot were again linked to the alleged comment about access to firearms. The panel stated that it had considered representations dated 2 March 2009 submitted by the appellants legal advisers. It was noted that those representations provided no explanation for the appellants detour to the village. The risk assessments were noted, including the assessment of a lack of victim empathy. It was noted that the hostel was unwilling to accommodate the appellant, and that report writers considered that other approved premises were unlikely to offer him accommodation until his motivation to comply improved. The panel referred to the appellants apparent unwillingness to comply with the requirements of licence supervision: an important finding based on the account of events provided by the offender manager. It was concluded that the assessment of risk was such that it could not be safely managed within the community. The panel does not appear to have considered the letter from the appellants solicitors dated 6 April 2009 or the appellants statement, enclosed with that letter. The appellant was notified of the decision by a standard form letter from the Ministry of Justice (not the board) dated 24 April 2009. The letter informed him that he was entitled to request an oral hearing within 14 days. His solicitors did so, by letter dated 28 April 2009. In the letter, they pointed out that the appellants statement did not appear to have been taken into account. They commented that the panel had relied on information which had not been disclosed to them and which they had not had an opportunity to consider, such as the information about the availability of hostel accommodation. They requested directions that specified witnesses and written documentation should be available at the oral hearing. The proposed witnesses included the hostel manager, who could confirm the appellants account of the telephone calls and could give evidence about the availability of a hostel place; the prison officer who was the source of the allegations about the appellants statements on the day of his release; the minutes of the body responsible for altering the appellants risk level the day before his release; the appellants sister in law, whom he claimed to have dropped off in the village; the offender manager; and a psychologist, in case his evidence should be necessary. In a further letter dated 13 May 2009 the solicitors reiterated that the appellant disputed the allegations made against him by the offender manager. By a decision dated 5 June 2009 the request for an oral hearing was refused by another anonymous single member panel. The decision stated that the panel had seen the oral hearing request from the prisoner/solicitor, together with the paper recall panel decision dated 22.4.09 and the dossier they reviewed. The decision then stated that the request for an oral hearing had been refused for the following reasons: Michael Osborn's solicitor's representations dated 27/5/09 and 28/4/09 dispute parts of the behaviour on the day of release which led to recall (eg Mr Osborn's detour) as well as brandishing a firearm in the index offences. This panel has carefully considered the full dossier and concludes that the disputed facts are not central either to the recall decision or the panel's risk assessment of the panel (sic) on 22/4/09; Mr Osborn's denial of the index offences was known to the panel already. So far as appears from the decision, this panel proceeded on the basis of the same material as had been before the earlier panel, with the addition of two subsequent letters from the appellants solicitors. There is no indication that the letter dated 6 April, or the appellants statement, were taken into account. The appellants claim that the time when he was due to arrive at the hostel had been extended does not appear to have been considered. The fact that the appellant disputed many of the allegations made against him, and the potential bearing of that dispute upon the assessment of risk, do not appear to have been taken into account. Langstaff J dismissed the appellants application for judicial review ([2010] EWHC 580 (Admin)). The judge considered that the facts in the appellants case were only minimally in contention, that the focus of the letter dated 28 April 2009 had been on matters which were peripheral to the decision made, and that the bulk of the letter indicated a desire to ask questions about matters of fact which were not in dispute and did not have any relevance to the risk to the public on re release. On appeal to the Court of Appeal ([2010] EWCA Civ 1409, [2011] UKHRR 35), where the case was considered together with that of the appellant Booth, Carnwath LJ (with whom Sedley and Moses LJJ agreed) accepted that there was some force in the submission that, contrary to the understanding of the judge, there were significant factual disputes on matters relevant to the decision (para 45). He considered however that the judge was right to consider that the boards decision on release did not ultimately depend on resolution of these issues (para 47). The lack of information about the appellants current mental health status and the recommendation that a full psychiatric assessment should be carried out, combined with the very high risk of harm should he re offend, provided ample reason for not allowing release (ibid). The appellant was eventually allowed an oral hearing in November 2010. His application for release was refused. The facts John Booth The appellant Booth received a discretionary life sentence in 1981 for attempted murder, with a minimum term of six and a half years. The conviction concerned the attempted murder by strangulation of an elderly woman in a train compartment. He has remained in custody ever since, save for a short period in 1993, when he was released but recalled after three months. Psychiatric treatment has continued throughout his sentence. Although he has progressed to open conditions on various occasions, he has failed on each occasion in that setting, most recently in 2003. In July 2009 the appellants case was referred to the board by the Secretary of State under section 28 of the 1997 Act, to consider whether or not it would be appropriate to direct the appellants release. If the board did not consider it appropriate to direct release, it was invited to advise the Secretary of State whether the appellant should be transferred to open conditions. If the board made such a recommendation, it was invited to comment on the degree of risk involved. It was also invited to advise the Secretary of State on the continuing areas of risk that needed to be addressed. The dossier provided to the board included reports from the deputy lifer manager, the appellants offender supervisor, and a psychologist in training. The appellant was described in the dossier as a very institutionalised man who, if not encouraged, would be satisfied to remain in custody for the remainder of his life. The referral letter, following the standard form, requested the board to give full reasons for its decision or recommendation, but also stated that the board was not being asked to comment on or make any recommendation about any specific treatment needs or offending behaviour work required. Notwithstanding that statement, it is apparent from the papers concerning the appellants Booth and Reilly that in practice the board may comment on treatment needs and on the offending behaviour work required. It is indeed difficult for it to avoid doing so, if it is to give reasons for its decisions and recommendations which address the matters that it is required by the Secretary of States directions to consider, and if it is to comply with the request for advice about areas of risk that need to be addressed. It also appears that such comments may have an impact on the prisoners management in prison and on the courses offered to him, as one would expect. The appellant subsequently received from the board a letter in a standard tick box form, dated 21 October 2009. It stated: The Parole Board has decided not to direct your release (or recommend your transfer to open conditions if applicable). This is a decision taken on the papers and the full decision is attached. The letter continued: You can appeal the decision and ask for a full oral hearing before a panel of the Parole Board if you believe that there are significant and compelling reasons for this. You have four weeks (28 days) from the date of this letter to decide if you wish to lodge an appeal. This letter mischaracterises the nature of the single member decision, the rights of the prisoner following the making of such a decision, and the function of the board at that stage under rules 11 and 12. The implication of the letter is that the board has decided that the prisoner should not be released or recommended for transfer to open conditions, subject to a right of appeal. The prisoner is requested by the form either to signify his acceptance of that decision or to put forward reasons why he does not accept it: in other words, his grounds of appeal. The reference to compelling reasons implies that there is a significant onus on the prisoner. As I have explained, however, the decision made by the single member under rule 11(2)(b) is merely provisional. Where a provisional decision is made, the prisoners entitlement under rule 12(1) is not to appeal against that decision, but to request an oral panel to give consideration to his case with a hearing. The board then has to consider that request. If it grants the request, the matter is then considered by an oral panel de novo, as I have explained. Enclosed with the letter was the decision taken by an anonymous intensive case management (ICM) member. It stated: A single Parole Board member reviewed your case on the papers on the 14th October 2009. The Parole Board is empowered to direct your release if it is satisfied that it is no longer necessary for the protection of the public that you continue to be detained. The member was not so satisfied and does not direct release; nor recommend transfer to open conditions. There was nothing in the decision to indicate its provisional nature. The decision summarised the appellants history as set out in the dossier, and stated: In order to improve your ability to cope the thinking skills programme (TSP) has been recommended for you and this was considered a good starting point in order to start addressing your risk and to deal with your long term problems of dealing with stress The report by the psychologist reports that you have made progress with your coping skills as evidenced by your current behaviour as compared to the severe difficulties you have had in the past. The concern, however, is that you have little awareness of what may unsettle you in the future and that your relapse prevention strategies rely solely on professional support. The report states you do not see it as your responsibility to change but for others to look after you. The psychologist recommends the TSP for you In order to fully benefit from this programme it is suggested that some 1:1 work with the treatment team would be needed before you started the programme No report writers are in a position to recommend release or a progressive move to open conditions for you. You feel you may benefit from a direct release to Box Tree Cottage which offers a high level of supportive accommodation for offenders but it is felt that such plans are somewhat premature for you although the offender manager and the psychologist have not ruled out this type of progression in the longer term. In response to the letter, the appellants solicitors requested an oral hearing by letter dated 17 November 2009. They stated that the appellants was a complex case. Since his last review, he had been working on a one to one basis with a psychiatrist in the prison on cognitive skills, and was currently covering some of the elements of the thinking skills programme. He had completed work to reduce his risk since his last review. He had not had any adjudications. He had had successful releases on temporary licence. His application for release might therefore be successful. He would require psychiatric intervention when released. This needed to be considered at an oral hearing. His probation officer was currently arranging for him to visit Box Tree Cottage, which provided accommodation with psychiatric support on hand. It was likely that he would request direct release to that accommodation. By letter dated 19 November 2009, headed Appeal against Paper Decision, the board informed the appellant that the appeal has been refused. The letter stated: The ICM assessor's duty is to consider whether the grounds of the appeal are justified and if an oral hearing would make any material difference to the paper hearing decision. The implication of that statement is that a decision which was taken before any representations were received from the prisoner should be reconsidered only if representations subsequently made demonstrated that an oral hearing would result in a different decision. The letter continued: The criteria for granting an oral hearing is (sic) where the member considers there is a realistic chance of release or open conditions and where the assessment of risk requires live evidence to determine the risk factors. In Mr. Booth's case the offender manager, the offender supervisor and the prison psychologist all agree on the current risk factors which are thinking skills deficits and anger management issues and that interventions need to be completed to address these risk factors. They all conclude that Mr. Booth is unsuitable for release or open conditions. There is no evidence or argument put forward in the representations which persuades the ICM assessor that an oral hearing is justified. The paper decision is therefore final. The decision does not explain why the points made on behalf of the appellant in the letter dated 17 November 2009 had been discounted by the anonymous ICM assessor, beyond reiterating the contrary opinions of the offender manager, the offender manager and the prison psychologist. Langstaff J refused permission to apply for judicial review ([2010] EWHC 1335 (Admin)). He held that the board had been entitled to take the view that there was no realistic likelihood of immediate release or transfer to open conditions. On appeal ([2010] EWCA Civ 1409), Carnwath LJ agreed with the judge, holding that although the points raised on Mr Booths behalf might be relevant to his future handling in custody, there was (it was said) no dispute about the need for him to remain in custody for the time being. Since (it was said) that was the question for the board, they could properly form the view that there was no practical possibility of an oral hearing changing that position for the time being (para 50). The facts James Reilly The appellant Reilly was convicted in 2002 of offences of robbery, attempted robbery and possession of an imitation firearm, relating to the attempted robbery of a post office and the robbery of another post office. He had 19 previous convictions, two of which were for robbery. He received an automatic life sentence with a minimum term of six years and eight months, which expired in September 2009. During the course of his sentence he was transferred to Northern Ireland, but remained subject to the jurisdiction of the board under section 28 of the 1997 Act. By letter dated 3 March 2009 the board notified the appellant that he was being considered for release. He was told that he would receive a copy of his dossier and would have 28 days to submit written representations. The board would consider his case and notify him of its decision whether to grant an oral hearing. He would then have 28 days to decide whether he accepted the decision or whether he wished to appeal the decision. On 19 March 2009 the appellants solicitors replied, requesting an oral hearing and indicating that the appellant would be legally represented. On 29 April 2009 they wrote to the board, drawing to its attention that they had not yet received the dossier. On 8 May 2009 the solicitors were informed by the board that the appellant had a target month for oral hearing of September 2009, and that it had not yet received the dossier. On 21 May 2009 the solicitors wrote to the prison authorities requesting confirmation that the dossier had been submitted to the board. On 3 June they learned that a copy of the dossier had been provided to the appellant, but not to them. At some point in about June 2009 the appellant received an undated letter from the board, in the standard form described in para 33. Like the similar letter addressed to the appellant Booth, it informed the appellant that the board had decided not to direct his release or to recommend his transfer to open conditions, and that he could appeal the decision and ask for a full oral hearing. Enclosed with the letter was an undated and anonymous decision. It took as its starting point a pre tariff review carried out by the board in 2006, which stated that the appellant needed to show a sustained period of good behaviour, and that he was working on drug relapse prevention and undertaking specified courses. In relation to the first of these, the panel noted that since 2007 the appellant had been adjudicated upon for matters including possession of unauthorised articles, attempted assault on staff, damaging prison property, possession of a knife, disobeying orders and abusive behaviour. He had failed a number of drug tests. He had undertaken one of the relevant courses with apparent success, but the drug tests indicated that he had been unable to translate this work into positive action. Given the drug test results, he was unsuitable for the other recommended course. The panel concluded that there was more work to be done, particularly in relation to the use of violence, and that the appellant would need to demonstrate that he could maintain his behaviour and motivation before less secure conditions could be considered. By letter dated 10 July 2009 the appellants solicitors requested an oral hearing. They pointed out, first, that the panel had not had before it any representations from the appellant. Secondly, they noted that the major reservations in the panels decision reflected the comments in the dossier about the appellants prison record and failed drug tests. They submitted that the appellants adjudication record did not on examination indicate an unacceptable risk. The charge of possession of unauthorised articles related to items from the tuck shop. The charge of attempted assault concerned his flicking a sock in the direction of a prison officer. The charge of damaging prison property concerned a torn bed sheet. Possession of a knife concerned a knife which the appellant had removed from another prisoner in order to avoid an incident. In relation to disobeying orders, the appellant had objected to being in the vicinity of heavy machinery in the prison workshop as he was epileptic. Following the adjudication he worked instead in another part of the prison. The charge of abusive behaviour had been dismissed. In relation to the drugs tests, during the relevant periods the appellant had been prescribed medications which might account for the results. It was submitted that the appellant had progressed sufficiently to be seriously considered for open conditions. It was believed that the necessary remaining courses could be accessed by prisoners in such conditions. Not all the report writers had commented on the appropriateness of open conditions. By letter dated 20 July 2009, headed Appeal Against Paper Decision, the appellant was notified that his appeal had been refused. The letter, whose author was unidentified, stated: The appeal has been refused on the grounds that while individual adjudications may have explanations there still remains significant offending behaviour work for you to carry out, particularly with regard to instrumental violence. Until such work is successfully completed, the risk of reconviction or of causing serious harm cannot be regarded as reduced. No report writers recommend a move to open or release at this review. This panel endorses the view that no recommendation can be made at this time and the appeal is refused. The paper decision is therefore final. The letter did not address the possibility that the recommendations of the report writers had been influenced by the appellants history of adjudications and failed drug tests, to which they had referred, or the possibility that the boards independent assessment might be affected if the appellants explanations were accepted. Nor did it address the possibility, raised in the appeal, that any further courses might be undertaken in open conditions. There is no indication that the explanation put forward for the failed drug tests was taken into account. By letter dated 23 July 2009 the appellant was informed that the Secretary of State agreed with the panels recommendation for the reasons which it gave, and considered that a number of risk factors were outstanding and required further work. In particular, the appellant needed to address his behaviour and drug use in prison over a sustained period. It appears from the latter conclusion, which did not form part of the appeal decision, that the Secretary of State may have been proceeding on the basis of the paper decision, which had become final. On an application for judicial review, Treacy J held that the board had acted in breach of its common law duty to act fairly, and incompatibly with the appellants Convention rights under article 5(4), in failing to provide him with an oral hearing ([2010] NIQB 46). In a subsequent judgment ([2010] NIQB 56), Treacy J decided that the appropriate remedy was the award of certiorari to quash the boards decision. He declined to make an award of damages under section 8 of the Human Rights Act, noting that it was agreed that the appellant could not establish that he had been deprived of liberty as a result of the decision, and concluding that any frustration or distress which he might have suffered was not of such intensity as to justify an award of damages. An appeal against the first of these decisions was allowed by the Court of Appeal in Northern Ireland ([2011] NICA 6). The court followed the approach which had been adopted by the Court of Appeal of England and Wales in the cases of the appellants Osborn and Booth, and concluded that, since the factual issues highlighted by the appellants solicitors were not of critical importance, it followed that the board could fairly conclude that an oral hearing would not assist it in its determination of the relevant issue. The appellant was eventually allowed an oral hearing in May 2011. His application for release was refused. Domestic law and Convention rights The submissions on behalf of the appellants focused on article 5(4), and paid comparatively little attention to domestic administrative law. As I shall explain, that approach does not properly reflect the relationship between domestic law (considered apart from the Human Rights Act) and Convention rights. The guarantees set out in the substantive articles of the Convention, like other guarantees of human rights in international law, are mostly expressed at a very high level of generality. They have to be fulfilled at national level through a substantial body of much more specific domestic law. That is true in the United Kingdom as in other contracting states. For example, the guarantee of a fair trial, under article 6, is fulfilled primarily through detailed rules and principles to be found in several areas of domestic law, including the law of evidence and procedure, administrative law, and the law relating to legal aid. The guarantee of a right to respect for private and family life, under article 8, is fulfilled primarily through rules and principles found in such areas of domestic law as the law of tort, family law and constitutional law. Many other examples could be given. Article 5, in particular, is implemented through several areas of the law, including criminal procedure, the law relating to sentencing, mental health law and administrative law: indeed, article 5(4) is said to have been inspired by the English law of habeas corpus (Sanchez Reisse v Switzerland (1986) 9 EHRR 71, 88). As these examples indicate, the protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human Rights, but permeates our legal system. The values underlying both the Convention and our own constitution require that Convention rights should be protected primarily by a detailed body of domestic law. The Convention taken by itself is too inspecific to provide the guidance which is necessary in a state governed by the rule of law. As the European court has said, a norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct (Sunday Times v United Kingdom (1979) 2 EHRR 245, 271). The Convention cannot therefore be treated as if it were Moses and the prophets. On the contrary, the European court has often referred to the fundamentally subsidiary role of the Convention (see eg Hatton v United Kingdom (2003) 37 EHRR 611, para 97). In relation to article 5(4) in particular, the court has made it clear that in order for there to be compliance with that guarantee, there must in the first place be compliance with the relevant substantive and procedural rules of domestic law (Koendjbiharie v The Netherlands (1990) 13 EHRR 820, para 27). Domestic law may however fail to reflect fully the requirements of the Convention. In that situation, it has always been open to Parliament to legislate in order to fulfil the United Kingdoms international obligations; as it has done, for example, in response to judgments of the European court concerning the application of article 5(4). The courts have also been able to take account of those obligations in the development of the common law and in the interpretation of legislation. The Human Rights Act has however given domestic effect, for the purposes of the Act, to the guarantees described as Convention rights. It requires public authorities generally to act compatibly with those guarantees, and provides remedies to persons affected by their failure to do so. The Act also provides a number of additional tools enabling the courts and government to develop the law when necessary to fulfil those guarantees, and requires the courts to take account of the judgments of the European court. The importance of the Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate. That approach is now well established. A few examples may be given. In R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 a policy that prisoners should be absent from their cells while they were being searched for contraband, as applied to a prisoner who had correspondence with his solicitor in his cell, was held to be unlawful on the ground that it infringed the prisoners common law right that the confidentiality of privileged legal correspondence be maintained. Lord Bingham of Cornhill noted in the final paragraph of his speech that that result was compatible with article 8 of the Convention. In that regard he adopted the observations of Lord Cooke of Thorndon, who said (para 30): It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them. When the House of Lords considered in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350 the circumstances in which determinate sentence prisoners recalled to prison were entitled to an oral hearing before the board, it took the common law as its starting point, and considered judgments of the European court, together with judgments from a number of common law jurisdictions, in deciding what the common law required. It went on to hold that the boards review of the prisoners case would satisfy the requirements of article 5(4) provided it was conducted in a manner that met the common law requirements of procedural fairness. That decision is of obvious relevance to the present appeals. Similarly, when the House of Lords rejected the admission of evidence obtained by torture, it did so on the basis of the common law: A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221. Lord Bingham observed at para 51 that English common law had regarded torture and its fruits with abhorrence for over 500 years, and concluded at para 52 that the principles of the common law, standing alone, compelled the exclusion of third party torture evidence. He noted that that was consistent with the Convention. More recently, the importance of the continuing development of the common law, in areas falling within the scope of the Convention guarantees, was emphasised by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court (Article 19 intervening) [2012] EWCA Civ 420; [2013] QB 618. The case concerned access by the Press to documents referred to in court, and was decided on the basis of the common law, including authorities from other jurisdictions, rather than on the basis of article 10 of the Convention. Toulson LJ, with whose reasoning the other members of the court agreed, stated at para 88: The development of the common law did not come to an end on the passing of the Human Rights Act 1998 . It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere. Finally, in this connection, in R (Faulkner) v Secretary of State for Justice [2013] UKSC 23; [2013] 2 WLR 1157, para 29, the ordinary approach to the relationship between domestic law and the Convention was described as being that 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 the international court. Against the background of those authorities, the error in the approach adopted on behalf of the appellants in the present case is to suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with the Strasbourg case law. Properly understood, Convention rights do not form a discrete body of domestic law derived from the judgments of the European court. As Lord Justice General Rodger once observed, it would be wrong to see the rights under the European Convention as somehow forming a wholly separate stream in our law; in truth they soak through and permeate the areas of our law in which they apply (HM Advocate v Montgomery 2000 JC 111, 117). Procedural fairness at common law three preliminary matters Following the approach I have described, it is necessary to begin by considering the practice followed by the board in the light of domestic principles of procedural fairness. In doing so, it may be helpful to clarify three matters at the outset. The first matter concerns the role of the court when considering whether a fair procedure was followed by a decision making body such as the board. In the case of the appellant Osborn, Langstaff J refused the application for judicial review on the ground that the reasons given for refusal [to hold an oral hearing] are not irrational, unlawful nor wholly unreasonable (para 38). In the case of the appellant Reilly, the Court of Appeal in Northern Ireland stated at para 42: Ultimately the question whether procedural fairness requires their deliberations to include an oral hearing must be a matter of judgment for the Parole Board. These dicta might be read as suggesting that the question whether procedural fairness requires an oral hearing is a matter of judgment for the board, reviewable by the court only on Wednesbury grounds. That is not correct. The court must determine for itself whether a fair procedure was followed (Gillies v Secretary of State for Work and Pensions [2006] UKHL 2; 2006 SC (HL) 71; [2006] 1 WLR 781, para 6 per Lord Hope of Craighead). Its function is not merely to review the reasonableness of the decision makers judgment of what fairness required. The second matter to be clarified concerns the purpose of procedural fairness. In the case of the appellant Osborn, Langstaff J stated at para 6 that in determining whether an oral hearing was necessary, what fell to be considered was the extent to which an oral hearing would guarantee better decision making in terms of the uncovering of facts, the resolution of issues and the concerns of the decision maker, due consideration being given to the interests at stake. In the Court of Appeal, Carnwath LJ interpreted Lord Binghams speech in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350 as implying that the underlying rationale of procedural fairness at common law was one in which the emphasis is on the utility of the oral procedure in assisting in the resolution of the issues before the decision maker (para 38). There is no doubt that one of the virtues of procedurally fair decision making is that it is liable to result in better decisions, by ensuring that the decision maker receives all relevant information and that it is properly tested. As Lord Hoffmann observed however in Secretary of State for the Home Department v (AF (No 3) [2009] UKHL 28; [2010] 2 AC 269, para 72, the purpose of a fair hearing is not merely to improve the chances of the tribunal reaching the right decision. At least two other important values are also engaged. The first was described by Lord Hoffmann (ibid) as the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel. I would prefer to consider first the reason for that sense of injustice, namely that justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken. As Jeremy Waldron has written (How Law Protects Dignity [2012] CLJ 200, 210): Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view and respecting the personality of the entity one is dealing with. As such it embodies a crucial dignitarian idea respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves. This point can be illustrated by Byles Js citation in Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, 195 of a dictum of Fortescue J in Dr Bentleys Case (R v Chancellor of Cambridge, Ex p Bentley (1748) 2 Ld Raym 1334): The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. The point of the dictum, as Lord Hoffmann explained in AF (No 3) at para 72, is that Adam was allowed a hearing notwithstanding that God, being omniscient, did not require to hear him in order to improve the quality of His decision making. As Byles J observed (ibid), the language used by Fortescue J is somewhat quaint, but has been the law from that time to the present. This aspect of fairness in decision making has practical consequences of the kind to which Lord Hoffmann referred. Courts have recognised what Lord Phillips of Worth Matravers described as the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269, para 63). In the present context, research has established the importance attached by prisoners to a process of risk assessment which provides for their contribution to the process (see Attrill and Liell, Offenders Views on Risk Assessment, in Who to Release? Parole, Fairness and Criminal Justice (2007), ed Padfield). Other research reveals the frustration, anger and despair felt by prisoners who perceive the boards procedures as unfair, and the impact of those feelings upon their motivation and respect for authority (see Padfield, Understanding Recall 2011, University of Cambridge Faculty of Law Research Paper No 2/2013 (2013)). The potential implications for the prospects of rehabilitation, and ultimately for public safety, are evident. The second value is the rule of law. Procedural requirements that decision makers should listen to persons who have something relevant to say promote congruence between the actions of decision makers and the law which should govern their actions (see eg Fuller, The Morality of Law, revised ed (1969), p 81, and Bingham, The Rule of Law (2010), chapter 6). The third matter to be clarified concerns the cost of oral hearings: a consideration which appears to have underlain some of the changes to the rules and practice of the board which have given rise to the present appeals, and which is reflected in the boards annual reports, where figures are given for the savings achieved by the refusal of oral hearings in recall cases. The easy assumption that it is cheaper to decide matters without having to spend time listening to what the persons affected may have to say begs a number of questions. In the context of parole, where the costs of an inaccurate risk assessment may be high (whether the consequence is the continued imprisonment of a prisoner who could safely have been released, or re offending in the community by a prisoner who could not), procedures which involve an immediate cost but contribute to better decision making are in reality less costly than they may appear. In the present cases, counsel for the board accepted that cost was not a conclusive argument against the holding of oral hearings. R (West) v Parole Board The circumstances in which the board should afford an oral hearing to determinate sentence prisoners who have been released on licence and then returned to prison were considered by the House of Lords in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350. The case was decided at a time when such prisoners were entitled to challenge the revocation of their licence before the board (whereas now, as explained earlier, the board cannot adjudicate directly upon the appropriateness of the revocation of the licence, but must determine whether the prisoner should be re released, having regard to his conduct during the licence period, amongst other matters). The case was also decided at a time when indeterminate sentence prisoners in England and Wales were entitled to an oral hearing. The House considered the requirements of procedural fairness in the light of a wide ranging review of authorities from a number of common law jurisdictions, and also a number of judgments of the European court, including Waite v United Kingdom (2002) 36 EHRR 1001, to which it will be necessary to return. Lord Bingham, with whose speech the majority of the committee expressed agreement, stated (para 31): While an oral hearing is most obviously necessary to achieve a just decision in a case where facts are in issue which may affect the outcome, there are other cases in which an oral hearing may well contribute to achieving a just decision. The duty to afford an oral hearing therefore exists where there are facts in dispute which may affect the outcome, but it is not confined to such circumstances. Lord Bingham did not attempt to define exhaustively the other circumstances in which an oral hearing was required, but gave some examples, and some general guidance (para 35): Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society. Lord Hope added two observations about the approach then followed by the board in relation to cases of the type in question, according to which it professed its willingness to hold oral hearings where the decision turned on disputed issues of fact, but in practice rarely held such hearings. First, there appeared to be a long standing institutional reluctance on the part of the board to deal with cases orally: It would not be surprising if a consequence of that reluctance was an approach, albeit unconscious and unintended, which undervalued the importance of any issues of fact that the prisoner wished to dispute (para 66). As Lord Hope pointed out, this approach was liable to lead to reliance upon assumptions based on general knowledge and experience, and to a lack of focus on the prisoner as an individual. The institutional reluctance of the board to hold oral hearings in determinate recall cases appears to have continued during the period with which these appeals are concerned. The boards annual report for 2009 2010 records, in relation to determinate recall cases considered under the Criminal Justice and Immigration Act 2008, that of a total of 12,388 cases considered that year, only 145 were sent to an oral hearing: in other words, 1%. The proportion the following year was the same. That reluctance can also be detected in the tone of the internal guidance discussed earlier. The statistics also indicate a low rate of success in applications for oral hearings by indeterminate sentence prisoners: of 1054 negative paper decisions considered by ICM assessors in 2009 2010, 174 were sent to an oral hearing on appeal: in other words, 83% of appeals were refused. Lord Hopes second observation concerned the allowance of oral hearings where there were disputed issues of fact: The question is not whether the case ultimately turns on a disputed issue of fact when the decision is taken. It is whether, when the papers are first looked at, it is likely to do so (para 67). In other words, one cannot decide whether a disputed issue of fact will prove to be determinative at the stage of considering whether an oral hearing is appropriate. The most one can do at that stage is to identify the issues which appear to be important, and then decide in the light of that assessment (and other relevant factors) whether an oral hearing should be held. Finally, in relation to West, it is useful to note how the House dealt with the cases before it. The appellant West had breached his licence conditions in a number of ways. He had an explanation for some but not all of the breaches. He was refused an oral hearing. The House concluded that his explanations could not properly be rejected without hearing him. In so far as he had no explanation, the question whether the breach had an unacceptable impact on the risk posed to the public could not fairly be resolved without an oral hearing. The appellant Smith had repeatedly used class A drugs after his release on licence, while living in designated hostels. He maintained that he had succeeded in freeing himself from drugs while in prison, but had relapsed in the hostels because of the prevailing drug culture. He did not request an oral hearing, but it was nevertheless held that such a hearing should have been offered: the board might have been assisted by evidence from his psychiatrist, and should have allowed the appellant an opportunity to persuade it that the community would be better protected by allowing him to remain on licence under supervision than by returning him to prison with the prospect of eventual unsupervised release. The circumstances in which fairness requires an oral hearing What fairness requires of the board depends on the circumstances. As these can vary greatly from one case to another, it is impossible to lay down rules of universal application. The court can however give some general guidance. Generally, the board should hold an oral hearing whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and, as was said in West, the importance of what is at stake. The board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. It is presumably because of the possibility of such assistance that the board must hold an oral hearing under rule 11(2)(a) in any case where an indeterminate sentence prisoner appears to the single member panel to be potentially suitable for release or for a transfer to open conditions. The assumption must be that an oral hearing has the potential to make a difference. But that potential may also exist in other cases. The boards annual report for 2005 2006 contains a statement by a psychiatrist member of the board which demonstrates how valuable oral hearings can be: I find the oral hearings particularly rewarding in that the evidence on the day can sometimes illuminate a situation sufficiently to turn around my preliminary view of the case. There is no substitute for being able to hear from, and ask questions of the prisoner. The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision making, but also to reflect the prisoners legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. An oral hearing should therefore be allowed where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional: a factor upon which Lord Bingham placed emphasis in West. In relation to cases concerning post tariff indeterminate sentence prisoners, it has been said more than once that the board should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff (R v Parole Board, Ex p Bradley [1991] 1 WLR 134, 146; R v Parole Board, Ex p Wilson [1992] QB 740, 747). It also has to be borne in mind that the issues which are considered by the board are not in practice confined to the question whether the prisoner should or should not be released or transferred. As I have explained, the statutory directions given to the board require it to consider numerous matters. The boards findings in relation to these matters may in practice affect the prisoners future progress in prison, for example in relation to the courses which he is required to undertake and his future reviews. The board may also be asked specifically to advise the Secretary of State on matters affecting the prisoner. For example, when post tariff indeterminate sentence prisoners are referred to the board, it is generally asked to advise on the continuing areas of risk that need to be addressed. In such cases, the fair disposal of issues of that kind may require an oral hearing even if the question whether the prisoner should be released or transferred does not. In accordance with the guidance provided in West, an oral hearing is required when facts which appear to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally if it is to be accepted. An oral hearing is also necessary when for other reasons the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. As is illustrated by the judgments of the European Court of Human Rights in Hussain v United Kingdom (1996) 22 EHRR 1, Singh v United Kingdom 21 February 1996, Reports of Decisions and Judgments, 1996 I, p 280 and Waite v United Kingdom (2002) 36 EHRR 1001, cases concerning prisoners who have spent lengthy periods in custody are likely to fall into the first of these categories, since an independent assessment of their continuing dangerousness will require a judgment to be made of the extent to which they have developed over the period since their conviction: a matter which cannot normally be independently and fairly assessed without seeing the person concerned. Whether a prisoners right to a fair hearing requires the holding of an oral hearing does not depend on his establishing that his application for release or transfer stands any particular chance of success: that approach would not allow for the possibility that an oral hearing may be necessary in order for the prisoner to have a fair opportunity of establishing his prospects of success, and thus involves circular reasoning. The point can be illustrated by the example of a prisoner who is unable to participate effectively in a written procedure due to learning difficulties. To decide whether he should be allowed an oral hearing on the basis of his prospects of success as they appeared on the basis of the official dossier and his written representations, if any, would plainly be unfair. The problem with reliance on the prospects of success, as they appear from the written material, as the touchstone of what fairness requires is not however confined to prisoners who are manifestly disadvantaged by a written procedure. In so far as the boards practice is to require that a realistic prospect of success be demonstrated, as a precondition of the grant of an oral hearing, that practice should therefore cease. It is in addition fundamental to procedural fairness that the board must be, and appear to be, independent and impartial. The dossier provided to the board by the Ministry of Justice is plainly important to the boards discharge of its functions: it records the prisoners progress in the prison system and the rehabilitation courses which he has undertaken, and it includes expert views on the likelihood of his re offending. Nevertheless, as was said in R (Brooke) v Parole Board [2008] EWCA Civ 29; [2008] 1 WLR 1950 at para 96, the board has to evaluate the material placed before it by the Ministry and reach its own objective judicial decision. The board should therefore have no predisposition to favour the official version of events, or the official risk assessment, over the case advanced by the prisoner. In that regard, the court was referred to a study of the recall of determinate sentence prisoners which concluded that the single member panels were little more than a rubber stamp (Padfield, Understanding Recall 2011, University of Cambridge Faculty of Law Research Paper No 2/2013 (2013) p 40). That conclusion is supported, in relation to the period when the appellant Osborns case was considered, by the statistics which I have mentioned. It is equally important that the board should not give way to the temptation, identified in West by Lord Hope, to discount the significance of matters which are disputed by the prisoner in order to avoid the trouble and expense of an oral hearing. It is also important that the administrative procedure adopted by the board should be well adapted to ensuring that an oral hearing is held when such a hearing is necessary. In that regard, it has to be said that the procedural rules in force at the material time, and the analogous rules currently in force, are liable to give rise to a number of problems, as the present appeals demonstrate (problems which might be avoided if the board took a decision about the appropriate form of hearing, and nothing else, only after any representations on behalf of the prisoner had been received). First, the rule requiring a single member panel either to decide that the case should receive further consideration by an oral panel, or to make a provisional decision that the prisoner is unsuitable for release or for a transfer to open conditions, should not be understood as meaning that an oral hearing is appropriate only if the single member panel forms the provisional view that the prisoner is suitable for release or transfer. Secondly, it is important to understand the provisional nature of a decision made by the single member panel that the prisoner is unsuitable for release. The right conferred on the prisoner, following that decision, to request an oral hearing is not a right of appeal. The prisoner does not have to demonstrate that the decision was (or may have been) wrong: what he has to persuade the board is simply that an oral hearing is appropriate. The unfairness which results from the boards treatment of the request for an oral hearing as an appeal is illustrated by the case of the appellant Booth, in which the ICM assessor identified the critical question as being whether the grounds of the appeal are justified and if an oral hearing would make any material difference to the paper decision. The request for an oral hearing was thus decided on the basis that the earlier decision was presumptively correct. This is to put the cart before the horse. If fairness requires an oral hearing, then a decision arrived at without such a hearing is unfair and cannot stand. The question whether an oral hearing is required cannot therefore be decided on the basis of a presumption that a decision taken without such a hearing is correct. Thirdly, since the effect of the refusal of an oral hearing is that the provisional decision becomes final, it follows that an oral hearing should be granted in any case where it would be unfair to the prisoner for that to happen. For example, if the representations made in support of the prisoners request for an oral hearing raise issues which place in question anything in the provisional decision which may in practice have a significant impact on the prisoners future management in prison or on his future reviews, such as reports of poor behaviour or recommendations that particular courses should be undertaken to reduce risk, it will usually follow that an oral hearing should be allowed for that reason alone, even if there is no doubt that the prisoner should remain in custody or in closed conditions (see eg Roose v Parole Board [2010] EWHC 1780 (Admin)). The present appeals The requirements of procedural fairness at common law were not met in the cases of the appellants. In the case of the appellant Osborn, there were several facts which the paper recall panel treated as important and which were in dispute, or for which a significant explanation or mitigation was advanced: the appellants attitude to the licence conditions; the basis of the official assessment of the risk which he presented; the events on the date of his release, including his alleged statement about firearms; his claim that the hostel manager had agreed to put back the time when he was due to arrive; and his explanation for the detour to the village. An oral hearing should therefore have been held. In the case of the appellant Booth, the approach adopted by the board to the application of rule 12(1) was mistaken, as explained in paras 94 and 95. The points put forward in support of his so called appeal raised significant issues on which the input of his psychiatrist might have been helpful and which merited the depth of consideration which only an oral hearing could provide. In that regard, it is relevant that the appellant had spent so long in custody post tariff and that the board had been asked to advise on continuing areas of risk that needed to be addressed. In the case of the appellant Reilly, the history of adjudications and failed drugs tests was treated as important by the paper panel, and must have influenced the risk assessments which were before it; but that history was disputed in some significant respects, and in other respects was open to explanation or mitigation, according to the representations made on the appellants behalf. An oral hearing should therefore have been held. The unfairness resulting from the failure to hold such a hearing was compounded, in the manner explained in para 96, when his appeal was refused and the paper panel decision became final. The Secretary of State then expressed agreement with the decision and required the appellant to undertake work aimed at addressing misbehaviour and drug use in prison: matters which the ICM assessor had left out of account because they were not considered critical to the question whether to recommend release or transfer, but which remained part of a decision which had become final. Furthermore, the approach adopted by the board to the application of rule 12(1) was also mistaken, as explained in para 94. Convention rights It is unnecessary to consider Convention rights in order to determine the validity of the decisions in question. It is however appropriate to do so in order to consider whether compliance with common law requirements will satisfy the requirements of article 5(4) of the Convention, or whether that article imposes more far reaching obligations in respect of the holding of oral hearings. It is also necessary to consider article 5(4) for the purpose of determining the claim advanced on behalf of the appellant Reilly for an award of damages under section 8 of the Human Rights Act. Article 5(4) and the present appeals Article 5(4) of the Convention 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. As was explained in A v United Kingdom (2009) 49 EHRR 625, paras 202 203, prisoners are entitled under article 5(4) to a review of the lawfulness of their detention in the light of the requirements of domestic law and of the Convention. The review must be carried out in accordance with a procedure which has a judicial character and provides guarantees appropriate to the type of deprivation of liberty in question. As explained earlier, prisoners who have been recalled to prison following release on licence are entitled to a review by the board of whether they should be re released, the test under the relevant directions being whether the risk posed by the prisoner can be safely managed in the community. Indeterminate sentence prisoners whose tariff period has expired are entitled to a review by the board of whether their continued detention is necessary for the protection of the public. It is not in issue in these appeals that the board possesses the essential features of a court within the meaning of article 5(4). On that basis, the boards discharge of its functions should satisfy the requirements of article 5(4), provided its reviews are conducted speedily and in accordance with a procedure which meets Convention standards of fairness. In R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350, Lord Bingham cited a number of judgments of the European Court of Human Rights, including the case of Waite v United Kingdom, in his discussion of the common law, in accordance with the long established understanding that the Convention is relevant to the development of the common law. Having provided the guidance as to the requirements of common law fairness which I have discussed, Lord Bingham concluded, in agreement with the other members of the appellate committee, that review by the board would satisfy the requirements of article 5(4) provided it was conducted in a manner that met the requirements of the common law (para 37). Lord Hope also referred to the case of Hussain v United Kingdom (1996) 22 EHRR 1. The case of Hussain concerned an applicant who had been convicted of murder at the age of 16 and sentenced to detention during Her Majestys pleasure, with a tariff of 15 years. Following the expiry of the tariff, he was reviewed by the board on several occasions, but had no opportunity to take part in the proceedings in any way, and did not see the reports before the board. Its recommendations were not binding upon the Secretary of State, and were not followed. By the time his case was considered by the European court, he had been detained for over 17 years. In its judgment, the court observed that an indeterminate term of detention for a young person, which might be as long as that person's life, could only be justified by considerations based on the need to protect the public. Those considerations, centred on an assessment of the young offender's character and mental state and of his or her resulting dangerousness to society, must of necessity take into account any developments in the young offender's personality and attitude as he or she grew older (para 53). Following the expiry of the tariff, the applicant was entitled under article 5(4) to take proceedings to have the justification for his continuing detention decided by a court at reasonable intervals (para 54). The board could not be regarded as a court for the purposes of article 5(4), given that it could not order the release of a prisoner, and the proceedings before it were not of an adversarial nature (para 58). The court continued: 59. The court recalls in this context that, in matters of such crucial importance as the deprivation of liberty and where questions arise which involve, for example, an assessment of the applicant's character or mental state, it has held that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing. 60. The court is of the view that, in a situation such as that of the applicant, where a substantial term of imprisonment may be at stake and where characteristics pertaining to his personality and level of maturity are of importance in deciding on his dangerousness, article 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses. As I understand this passage, para 59 contains general observations reflecting the previous case law, whereas para 60 expresses a principle applicable specifically to cases such as that of the applicant, where (1) a substantial term of imprisonment may be at stake and (2) characteristics pertaining to his personality and level of maturity are of importance in deciding on his dangerousness. The court repeated paras 59 60 of its Hussain judgment in the case of Singh v United Kingdom 21 February 1996, Reports of Decisions and Judgments, 1996 I, p 280, issued on the same day as Hussain. That case also concerned a young offender sentenced to detention during Her Majestys pleasure, who had been released on licence and then had his licence revoked in the light of concerns as to his conduct. The case of Waite v United Kingdom also concerned a young offender who had been sentenced to detention during Her Majestys pleasure, released on licence, and then had his licence revoked in the light of concerns as to his conduct, which included misuse of drugs, a sexual relationship with a minor, attempted suicide and failure to maintain contact with his supervising officer. The board upheld the decision to revoke his licence without holding an oral hearing. The court held that there had been a breach of article 5(4), and rejected the contention that, since the applicant had admitted the facts leading to his recall, the board was bound to conclude that public protection required that he should be confined: Art 5(4) is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention an applicant is not required, as a precondition to enjoying that protection, to show that on the facts of his case he stands any particular chance of success in obtaining his release (para 59). That passage is consistent with, and supports, the approach which I have concluded applies at common law. The court continued (ibid): In matters of such crucial importance as the deprivation of liberty and where questions arise involving, for example, an assessment of the applicant's character or mental state, the court's case law indicates that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing. In such a case as the present, where characteristics pertaining to the applicant's personality and level of maturity and reliability are of importance in deciding on his dangerousness, art 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses. The first sentence in that passage repeats the summary of the earlier case law in para 59 of the Hussain judgment. The second sentence repeats the principle stated in para 60 of that judgment. Although Waite, like Hussain and Singh, concerned a person who had committed the index offence as a young offender, the language of the second sentence is not confined to young offenders. The conditions mentioned by the European court are likely to apply to most indeterminate sentence prisoners who have served their minimum terms. That is not to say that they will necessarily apply on every occasion when such a prisoners case is considered by the board: a prisoners case may be considered in different circumstances and at different intervals of time. Bearing in mind however that the continued detention of a post tariff prisoner must be justified by his continuing dangerousness as independently assessed by the board, and taking account of the importance of what is at stake, it will in most cases be necessary as a matter of fairness that he should have an opportunity to appear in person before the board. That is consistent with the common law, as explained earlier. Since the board failed in its duty of procedural fairness to the appellants at common law, it follows that it also failed to act compatibly with article 5(4). Damages The appellant Reilly sought to have his case remitted to the High Court for consideration of an award of damages as just satisfaction under section 8 of the Human Rights Act. The circumstances in which such an award is appropriate in respect of a breach of article 5(4) were considered in R (Faulkner) v Secretary of State for Justice [2013] UKSC 23; [2013] 2 WLR 1157. Although that case was principally concerned with breaches of the requirement that a review of the lawfulness of detention must be held speedily, the court also considered violations of the requirement that reviews must follow a fair procedure. At paras 55 61, the court considered in particular the judgment of the Grand Chamber in Nikolova v Bulgaria (1999) 31 EHRR 64 and the later judgment in HL v United Kingdom (2004) 40 EHRR 761. In the latter case, Nikolova was described as having endorsed the principle that, where a 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 which would not otherwise have occurred. Although, as was noted in Faulkner at para 61, there have been cases since Nikolova, not concerned with delay, in which modest awards of damages have been made as compensation for frustration and anxiety, none of those cases is comparable with that of the appellant. In particular, the cases mentioned there which concerned post tariff indeterminate sentence prisoners, such as Curley v United Kingdom (2000) 31 EHRR 401 and Von Blow v United Kingdom (2003) 39 EHRR 366, date from the period when there was no review of the continued lawfulness of detention by a body with the power to order release or with a procedure containing judicial safeguards. It is not argued that the appellant Reilly has suffered any deprivation of liberty as a result of the breach of article 5(4): damages are sought in respect of feelings of frustration and distress which the court is invited to assume he experienced. In the circumstances, taking into account the principles applied by the European court as required by section 8(4) of the Human Rights Act, the finding of a violation constitutes sufficient just satisfaction. Conclusion oral hearing, and was accordingly in breach of article 5(4) of the Convention. I would in each case allow the appeal, and make a declaration that the board breached its duty of procedural fairness to the appellant by failing to offer him an	Three prisoners brought appeals concerning the circumstances in which the Parole Board is required to hold an oral hearing. Osborn was convicted in 2006 following an incident in which he was said to have brandished an imitation firearm at the home of his estranged wife. He was given a six year prison sentence and was released on licence in February 2009, the halfway point. He was recalled to prison later that day for breach of his licence conditions [18 29]. Booth and Reilly are indeterminate sentence prisoners who have served their minimum terms. In 1981, Booth [30 42] received a discretionary life sentence for attempted murder, with a minimum term of six and a half years. Reilly [43 53] was convicted in 2002 of robbery, attempted robbery and possession of an imitation firearm. He received an automatic life sentence with a minimum term of six years and eight months, which expired in September 2009. Both remain in custody. Each case was considered on paper by the boards single member panel. It decided not to direct the prisoners release or recommend their transfer to open prison conditions. Their solicitors made written representations to the board, disputing its findings and requesting an oral hearing in each case, but those requests were refused. All three sought judicial reviews of the decisions not to offer oral hearings. Only Reilly succeeded in the High Court, which found that the board had breached its common law duty of fairness, and had acted incompatibly with the appellants rights under article 5(4) of the European Convention on Human Rights1 by failing to offer him an oral hearing. This was overturned by the Northern Ireland Court of Appeal. The Supreme Court unanimously allows the appeals and declares that the board breached its common law duty of procedural fairness to the appellants, and article 5(4) of the European Convention, by failing to offer them oral hearings [116]. 1 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. The judgment, delivered by Lord Reed, emphasises that human rights protection is not a distinct area of the law based on the case law of the European Court, but permeates our legal system. Compliance with article 5(4) requires compliance with the relevant rules of domestic law [54 56]. The legal analysis of the problem does not begin and end with the Strasbourg case law [63]. Lord Reed sets out guidance (summarised at [2]) on complying with common law standards in this context. The board should hold an oral hearing whenever fairness to the prisoner requires one in the light of the facts of the case and the importance of what is at stake [81]. By doing so, it will act compatibly with article 5(4) [103]. It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but these will often include: (a) where important facts are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility [73 78; 85]; (b) where the board cannot otherwise properly or fairly make an independent assessment of risk, or of how it should be managed and addressed [79; 81; 86]; (c) where it is tenably maintained that a face to face encounter, or questioning of those who have dealt with the prisoner, is necessary to enable his case to be put effectively or to test the views of those who have dealt with him [82]; and (d) where, in the light of the prisoners representations, it would be unfair for a paper decision taken by a single member panel to become final without an oral hearing [96]. The purpose of the oral hearing is not only to assist in the boards decision making, but also to reflect the prisoners legitimate interest in being able to participate in a procedure with important implications for him, where he has something useful to contribute [82]. The likelihood of release or transfer is separate from the question of whether fairness requires an oral hearing [88 89]. When dealing with recalled prisoners cases, the board should bear in mind that they have been deprived of their freedom [83]. For indeterminate sentence prisoners, increased scrutiny should be afforded by the board in assessing whether the risk they present is unacceptable the longer they have spent in prison post tariff [83]. The board must be, and appear to be, independent and impartial [90 91] and guard against any temptation to refuse an oral hearing to save time, trouble and expense [91]. Lord Reed stresses that paper decisions are provisional; the right to request an oral hearing is not an appeal, and the prisoner need only persuade the board that an oral hearing is appropriate [94 95]. The common law duty to act fairly is influenced by the requirements of article 5(4); compliance with the former should ensure compliance with the latter [101 113]. Breach of article 5(4) will not normally result in an award of damages under the Human Rights Act unless the breach has resulted in the prisoner suffering a deprivation of liberty [114 115]. An oral hearing ought to have been offered to the appellants. Osborn and Reilly had advanced various explanations and mitigations [98] and their requests for an oral hearing were mistakenly characterised as appeals [99 100]. In Booths case, input from his psychiatrist at an oral hearing would have been helpful and it was relevant that he had spent so long in custody post tariff [99]. Reillys claim for damages failed it had not been argued that he had suffered any deprivation of liberty as a result of the article 5(4) breach [115].
These three conjoined appeals concern section 242 of the Insolvency Act 1986, as amended. Where section 242(1) applies, and a company enters administration, an alienation by the company is challengeable by the administrator. In terms of section 242(2), section 242(1) applies where by the alienation, any part of the companys property is transferred or any claim or right of the company is discharged or renounced, and the alienation takes place on a relevant day as defined by section 242(3) (that is to say, within a specified time before the date when the company enters into administration). In terms of section 242(4), on a challenge being brought under subsection (1), the court shall grant decree of reduction or for such restoration of property to the companys assets or other redress as may be appropriate, but the court shall not grant such a decree if the person seeking to uphold the alienation establishes that it was made for adequate consideration. These proceedings were brought under section 242(1) by the joint administrators of Oceancrown Ltd, Loanwell Ltd and Questway Ltd, in respect of alienations made by each of those companies of four properties in Glasgow during November 2010, nine months before the companies went into administration. The alienations took place on relevant days as defined. The administrators are the respondents to the present appeals. The facts The facts, as found by the Lord Ordinary, are as follows. Oceancrown and the other companies in administration were part of a group of companies controlled by Ralph Norman Pelosi (Mr Pelosi senior). He was the beneficial owner of their shares, the sole director of Oceancrown and Loanwell, and a shadow director of Questway. He was also the 99% owner (subsequently 100%) of another company, Strathcroft Ltd. The nominal director of that company was John Anderson. Norman Ralph Pelosi (Mr Pelosi junior) was the sole shareholder and director of a further company, Stonegale Ltd. He is the appellant in one of the appeals, and Stonegale is the appellant in the others. A secured facility in the region of 17.3m had been made available to Oceancrown by Anglo Irish Bank. The other companies in the group had cross guaranteed the debt. Oceancrown owned a commercial property at 278 Glasgow Road, Rutherglen. It also owned properties at 110 and 260 Glasgow Road. Loanwell owned a property at 210 Glasgow Road. Questway owned a property at 64 Roslea Drive, Glasgow. The bank held standard securities over each of these five properties. Mr Pelosi senior had concluded an agreement with Clyde Gateway Development Ltd for the sale of 278 Glasgow Road for 2,467,500 inclusive of VAT: a sum far in excess of an earlier valuation of the property at the sum of 762,000. Subsequent events were, in the Lord Ordinarys words, machinations designed to protect the profit on the sale of number 278 (para 44), by keeping it out of the hands of the bank. On 19 August 2010 Robert Frame, a solicitor of Miller Becket and Jackson (MBJ), a Glasgow firm of solicitors, wrote to the banks solicitor, Mr Gillespie of McClure Naismith, in relation to the release of the properties from the banks securities, giving details of the properties and the relevant sale price. According to the details stated, the sale price of 278 Glasgow Road was 762,000; the sale price of 110 Glasgow Road was 200,000; the sale price of 210 Glasgow Road was 934,000; and the sale price of 260 Glasgow Road was 450,000. Mr Gillespie was subsequently informed that 64 Roslea Drive was also to be sold, at a price of 68,000. The total sale price of the five properties, as stated, was 2,414,000. Mr Gillespie passed this information on to the bank, and prepared discharges of the standard securities. These were duly executed by the bank, and Mr Gillespie was authorised to deliver them to MBJ in exchange for the free proceeds of sale. In reality, as explained earlier, the actual sale price of 278 Glasgow Road was 2,467,500, and no sales had been agreed in respect of the other properties. On 10 November 2010 Oceancrown disponed 278 Glasgow Road to Strathcroft. The consideration was recorded in the deed as being 762,000. On the same day, Strathcroft disponed the same property to Clyde Gateway for 2,467,500. Mr Frame witnessed the execution of both dispositions. The Lord Ordinary found that Strathcroft was involved in the whole matter only in order to provide a short lived intermediary between Oceancrown and Clyde Gateway. It was a cog in Mr Pelosis machine (para 47). On 16 November 2010 Mr Frame received a letter signed by Mr Anderson on behalf of Strathcroft, authorising MBJ to send the bank the sum of 2,414,000 in respect of purchases of [the five properties]. Mr Frame transmitted the money as instructed. Once the bank received the funds, the executed discharges were delivered. The Lord Ordinary found that the money was paid to MBJ then to the bank on the instructions of Mr Pelosi senior. Strathcroft had no real involvement in that (para 47). He also found that the bank was misled in relation to the funds it received (para 39). The bank, acting on the information from MBJ, treated the funds as the sale price of all the subjects, but that was not an accurate understanding (para 41). Everyone, apart from the bank and the banks solicitor, knew that the funds were the sale price of only 278 Glasgow Road. Had the bank known the true facts, namely that 278 was sold for almost 2.5m, the same overall reduction in bank indebtedness would have occurred, but only the standard security over 278 would have been discharged (paras 39 40). Everything depended upon the bank and the banks solicitor being unaware of the truth. No doubt they assumed that they could trust the information provided by MBJ (para 42). As a consequence of the fact that the bank was misled into using part of the sale price of 278 Glasgow Road to discharge all the standard securities (para 40), the four remaining properties, with an agreed value of 1.525m, were now free of the banks standard securities. It only remained to place them entirely beyond the banks reach. On 24 November 2010, 110, 210 and 260 Glasgow Road were disponed to Stonegale, and 64 Roslea Drive was disponed to Mr Pelosi junior. It is those dispositions which are challenged in the present proceedings. The dispositions, witnessed by Mr Frame, contained a date of entry of 16 November 2010, and recorded the consideration given as being in accordance with the figures given to Mr Gillespie. In reality, nothing was paid. The following year, Mr Pelosi junior disponed 64 Roslea Drive to a third party for 125,000. In the proceedings before the Lord Ordinary, a document was produced which purported to be a loan agreement in the sum of 1,584,000, signed by Mr Pelosi junior and dated 16 November 2010. It narrated that it had been entered into between Strathcroft and Stonegale to enable the latter to finance the purchase of the properties at 110, 210 and 260 Glasgow Road. In evidence, Mr Pelosi junior confirmed that he had signed the loan agreement on 16 November 2010. The Lord Ordinary found that the document was a sham (para 44), concocted purely for the purpose of the defence of these proceedings (para 46). The proceedings below Before the Lord Ordinary, it was argued that the four dispositions under challenge were made by the companies for adequate consideration, namely the reduction in their contingent liabilities (under their cross guarantees of Oceancrowns obligations) which resulted from the payment made by Strathcroft to the bank. That reduction in indebtedness, of 2,414,000, was in excess of the open market values of all five properties, and therefore constituted adequate consideration. That argument assumes that the open market value of 278 Glasgow Road was the 762,000 at which it had been valued by a surveyor: an assumption which is contradicted by the fact that Clyde Gateway paid almost 2.5m for it in an arms length transaction whose bona fides is not disputed. More fundamentally, the argument disregards the fact that the four other properties were all disponed gratuitously in subsequent transactions. In rejecting the argument, the Lord Ordinary focused on the latter point: No one paid anything for 110, 210, 260 Glasgow Road and 64 Roslea Drive. The sellers, namely Oceancrown, Loanwell and Questway, did not receive anything in return for the dispositions under challenge. They gifted the properties to the dispones. That the bank was prepared to discharge the standard securities over all five properties in return for the monies forwarded to it does not create a consideration given in return for the subsequent dispositions to Stonegale. No party gave the sellers anything in return for the conveyances under challenge. Any value received was the value paid in respect of number 278. That is what was transferred to McClure Naismith. In my view nothing else alters that basic fact. All that happened was that Strathcroft, on the direction of Mr Pelosi senior, paid the bank monies which were designed to, and did persuade the bank to discharge the standard securities over the five properties, all in order to facilitate the subsequent gratuitous sales. Neither that payment, nor any consequential reduction in indebtedness, was in consideration for the subsequent transactions. It was a mechanism for allowing the inter company transfers which it was hoped would achieve the retention of the profit on 278 within the group (and regarding Roslea Drive, Mr Pelosi junior) and free of the banks securities. (paras 40 and 42) The Lord Ordinary added: The dispositions under challenge were gratuitous alienations. Were it otherwise the bank would have received in excess of 4m, and the overall indebtedness would have been reduced by that amount. The price obtained for 278 was used to allow the other Glasgow Road properties to be transferred without consideration to another company which, nominally at least, was owned and controlled by Mr Pelosi junior, and, in the case of 64 Roslea Drive, to him personally. (para 43) Accordingly, the Lord Ordinary decided that he should reduce (ie set aside) the three dispositions to Stonegale, order the defenders to execute dispositions of those subjects to the administrators, and order Mr Pelosi junior to repay the 125,000 which he had received for the sale of the fourth property. Before granting decree, he decided to have the proceedings put out By Order for appropriate disposal. That decision was upheld by an Extra Division of the Inner House (Lord Menzies, Lord Brodie and Lord McGhie). No issue was taken with the facts found by the Lord Ordinary. The same argument was repeated, and again rejected, for the same reasons. The present appeal In the absence, at the relevant time, of any requirement to obtain permission to appeal to this court, the appellants took the opportunity to challenge the approach adopted by the courts below. They submitted that the administrators could have pursued a number of alternative remedies. They could have challenged the alienation of 278 Glasgow Road by Oceancrown to Strathcroft. They could have proceeded against Mr Pelosi senior as director of Oceancrown for breach of his fiduciary duty, and recovered the proceeds of his breach from the ultimate beneficiaries. If the bank was the victim of a fraudulent misrepresentation, it could have recovered damages in respect of its loss. The wrong remedy, it was argued, had been selected. The failure to challenge the transfer by Oceancrown to Strathcroft meant that the transfer by Strathcroft to Clyde Gateway could not be impeached. In any event, the 762,000 paid by Strathcroft reflected a professional valuation of the property, and therefore constituted the propertys market value. There are no doubt a variety of remedies which the administrators might have pursued, but the issue for this court is whether they are entitled to the remedy which they have sought. That remedy does not involve a challenge to the disposal of 278 Glasgow Road (or depend on whether the disposal of that property by Oceancrown was at an undervalue, although it plainly was), but a challenge to the other four dispositions as gratuitous alienations. The gratuitous nature of the alienations was clearly explained by the Lord Ordinary in the passages cited at para 13 above. Before the various conveyances, the companies owned five properties. A bargain was in place for the sale of one of those properties, 278 Glasgow Road, for the sum of 2.4m. After the sale was completed, 2.4m was transferred to the bank in reduction of borrowings, and the companies retained the other four properties, valued at 1.525m. Those properties were then conveyed to the appellants. The companies received nothing whatsoever in return. There was no reciprocity between those disposals and the earlier payment made to the bank. The purpose and effect of those transactions was to divert assets away from the companies creditors: exactly what section 242 is intended to prevent. That they were gratuitous alienations is plain and obvious. The appeal is therefore dismissed.	Oceancrown Ltd, Loanwell Ltd and Questway Ltd were part of a group of companies controlled by Ralph Norman Pelosi (Mr Pelosi senior). Norman Ralph Pelosi (Mr Pelosi junior) was the sole shareholder and director of Stonegale Ltd. The three companies controlled by Mr Pelosi senior went into administration in 2011. In November 2010, nine months prior to the companies entering administration, three properties were transferred to Stonegale Ltd and one property was transferred to Mr Pelosi junior directly. Conjoined proceedings were brought by the joint administrators of the three companies in respect of these alienations under section 242 of the Insolvency Act 1986, on the basis that these were gratuitous alienations (in lay terms, a gift by the insolvent party challengeable by liquidators or administrators). Stonegale Ltd and Mr Pelosi junior argued that the four dispositions under challenge were made by the companies for adequate consideration (a reasonable price). The Lord Ordinary held that the dispositions were gratuitous alienations, setting aside three of the dispositions and ordering Mr Pelosi junior to repay the 125,000 he had received for the sale of the fourth property. This decision was upheld by the Extra Division of the Inner House. Stonegale Ltd and Mr Pelosi junior appeal the decision to the Supreme Court. The Supreme Court unanimously dismisses Stonegale and Mr Pelosi juniors appeal. Lord Reed gives the judgment, with which the other Justices agree. Lord Reed finds that the Appellants submission that the administrators could have pursued a number of alternative remedies is not relevant to the issue which this court must determine, which is whether the Respondents are entitled to the remedy they have sought on the basis that the four dispositions are gratuitous alienations [17]. Lord Reed holds that the gratuitous nature of the alienations was clearly explained by the Lord Ordinary and is plain and obvious. Prior to the conveyances, the companies owned five properties: 110, 210, 260 and 278 Glasgow Road, and 64 Roslea Drive. The Anglo Irish Bank (the bank) held standard securities over each of these five properties, having made available to Oceancrown a secured facility in the region of 17.3 million, which was cross guaranteed by the other two companies [4]. In August 2010 the banks solicitors were informed by Mr Robert Frame, a solicitor of Miller Becket and Jackson (MBJ), of the details of the properties and the relevant sale price in relation to the release of the five properties from the banks securities. The banks solicitors were informed that the sale prices were as follows: 762,000 for 278 Glasgow Road; 200,000 for 110 Glasgow Road; 934,000 for 210 Glasgow Road; 450,000 for 260 Glasgow Road. They were also informed that 64 Roslea Drive was to be sold for 68,000, bringing the total sale price of the five properties to 2,414,000. This information was passed to the bank [6]. On 10 November 2010 the property at 278 Glasgow Road was disponed by Oceancrown for 762,000 to a company called Strathcroft Ltd, which was also owned by Mr Pelosi senior. On the same day, Strathcroft disponed the same property to Clyde Gateway for 2,467,500, a sum far in excess of an earlier valuation of 762,000. The Lord Ordinary found that Strathcrofts involvement was to provide a short lived intermediary between Oceancrown and Clyde Gateway, describing it as a cog in Mr Pelosis machine [7]. No sales had been agreed in respect of the other four properties [6]. Strathcroft, on the instructions of Mr Pelosi senior, authorised MBJ to send the bank the sum of 2,414,000 in respect of purchases of [the five properties] on 16 November 2010, and Mr Frame transmitted the money to the bank. The bank then executed discharges of the standard securities over all five properties. The Lord Ordinary found that the bank was misled in relation to the funds it received and that had it known that only 278 Glasgow Road was sold, whilst the overall reduction in bank indebtedness would have occurred, the bank would only have discharged the standard security over that property [8]. As a consequence of misleading the bank, Mr Pelosi seniors companies retained the other four properties valued at 1.525 million, free of the banks standard securities [9]. On 24 November 2010, 110, 210 and 260 Glasgow Road were disponed to Stonegale Ltd and 64 Roslea Drive was disponed to Mr Pelosi junior. Nothing was paid for these properties [10]. A loan agreement between Strathcroft Ltd and Stonegale Ltd signed by Mr Pelosi junior and dated 16 November 2010 which purported to enable the latter to finance the purchase of the properties at 110, 210 and 260 Glasgow Road was found by the Lord Ordinary to be a sham, concocted purely for the purpose of the defence of these proceedings [11]. Lord Reed finds that there was no reciprocity between the disposal of the four properties, which were gifted to Stonegale Ltd and Mr Pelosi junior, and the earlier payment to the bank. The transactions had the purpose and effect of diverting assets from the companies creditors, which was exactly what section 242 of the Insolvency Act 1986 is intended to prevent [17].
The transactions with which this appeal is concerned arose during a period when sale and rent back transactions were common. They were what was described by the Office of Fair Trading in 2008 (Sale and rent back: An OFT market study) as a relatively new type of property transaction whereby firms bought homes from individuals, usually at a discount, and allowed the former home owners to stay on in the property as tenants. The deals were often sold to home owners in financial difficulties and the firms selling them often told the home owners that they would be able to stay in their homes for years, when in fact the tenancies were rarely granted for more than six or twelve months. Many firms financed the purchase of the properties through secured borrowing, and former owners were being evicted following proceedings for possession by mortgage lenders after the purchasers defaulted on their loans. The home owners did not fully understand the risks involved, and the OFTs research found that solicitors provided by the sale and rent back companies to provide advice to the seller were sometimes suspected to be acting for the companies as well. By the time of the study the OFT estimated that there were 1,000 firms involved in selling the schemes and about 50,000 transactions. In 2009 the Financial Services Authority recommended that consumer detriment occurring in this market warranted a fast regulatory response, and in the same year sale and rent back transactions became a regulated activity under section 19 of the Financial Services and Markets Act 2000. As a result, in February 2012 the FSA reported that most sale and rent back transactions were unaffordable or unsuitable and should never have been sold, but that in practice the entire market had shut down. They are now very rare. This is an appeal in one of what were originally ten test cases in which the defendant home owners were persuaded to sell their properties to purchasers who promised the vendors the right to remain in their homes after the sale. The purchasers bought the homes with the assistance of mortgages from lenders, who were not given notice of the promises to the home owners. Criminal charges are pending and the original owners and the lenders may have been the victims of a fraud. Some of the solicitors involved in the transactions were subsequently the subject of disciplinary proceedings. Ultimately this appeal will determine which of the innocent parties will bear the consequences. The purchasers/mortgagors were nominees for an entity called North East Property Buyers (NEPB). In each case the purchaser/mortgagor has taken no part in the proceedings. There are another 90 or so cases in the Newcastle area involving NEPB and some 20 different lenders, but also many other cases in other parts of England involving similar schemes. In each case the purchaser applied for a loan from one of the lenders. The application form disclosed that the property was being purchased on a "buy to let" basis and that the tenancies granted would be assured shorthold tenancies of six months' duration. The mortgage terms generally permitted only assured shorthold tenancies for a fixed term of not more than 12 months. As a result the purchasers were able to obtain loans on the basis that they were purchasing properties at full value with vacant possession. Exchange of contracts between the relevant vendor and the purchaser, and the completion of the contract by the execution of the transfer, and the execution of the mortgage, all took place on the same day. Neither the rights of occupation promised by the purchasers to the vendors nor the tenancies granted by the purchasers were permitted by the lenders mortgages. The purchasers defaulted on the loans, and the lenders sought possession of the homes in proceedings, which the original owners resisted, without success, before Judge Behrens sitting as a High Court judge in the Chancery Division at Leeds District Registry (sub nom Various Mortgagors v Various Mortgagees [2010] EWHC 2991 (Ch)) and on appeal before Lord Neuberger MR, and Rix and Etherton LJJ, with Etherton LJ giving the only reasoned judgment: sub nom Cook v Mortgage Business [2012] EWCA Civ 17, [2012] 1 WLR 1521. The essence of the issue before this court is whether the home owners had interests whose priority was protected by virtue of section 29(2)(a)(ii) of, and Schedule 3, paragraph 2, to the Land Registration Act 2002 (the 2002 Act). There are two main questions on this appeal which divide the parties, and each of them concerns the effect of the contract of sale and purchase. One question is whether the purchasers were in a position at the date of exchange of contracts to confer equitable proprietary rights on the vendors, as opposed to personal rights only. The second question is whether, even if the equitable rights of the vendors were more than merely personal rights, the rationale of the decision of the House of Lords on the Land Registration Act 1925 (the 1925 Act) in Abbey National Building Society v Cann [1991] 1 AC 56 applies in this case. At the risk of oversimplification, that case decided that where a purchaser relies on a bank or building society loan for the completion of a purchase, the transactions of acquiring the legal estate and granting the charge are one indivisible transaction, and an occupier cannot assert against the mortgagee an equitable interest arising only on completion. Mrs Scott's case The only appeal before this court is that by Mrs Scott, but because this is a test case I shall for convenience refer to the arguments on her behalf as those of the vendors. In order to put some flesh on the scheme, I propose to illustrate it by reference to some of the facts of Mrs Scotts case, although it should be emphasised that there have been no findings of fact and that the lenders have not agreed the statement of facts from which this account is taken. Mrs Scott and her former husband Mr Scott were originally secure tenants of a house in Longbenton, Newcastle upon Tyne. They bought the house from North Tyneside Borough Council in 1999 on a mortgage from Cheltenham and Gloucester, and became the registered proprietors with absolute title. Five years later Mr Scott left Mrs Scott and she fell into financial difficulties. In 2005 she decided to put the house on the market at 156,000 but only received an offer significantly below the asking price. Mrs Scott was subsequently approached by a man who told Mrs Scott that he had heard she was trying to sell her house, and said that a friend of his worked for a Mr Michael Foster who was looking to buy properties in the area and that Mr Foster would pay the asking price and rent it back to Mrs Scott. Mr Foster, who was in some way connected with NEPB, then met Mrs Scott and told her that he would purchase the property for 135,000 and that she could stay as a tenant at a discounted rent of 250 a calendar month. If she stayed for ten years she would receive a lump sum of 15,000, which would make up some of the deficit in the sale price, and she would receive 24,000 from the net proceeds of sale. The outstanding mortgage to Cheltenham and Gloucester was in the region of 70,000, and so the equity would have been about 65,000. A deduction of 40,000 would be paid to NEPB. Mrs Scott told Mr Foster that she wished to live in the property indefinitely and he assured her that she could stay as long as she liked, and that if she were to die the tenancy would be automatically transferred into her sons name and he would receive the lump sum at the end of the ten year period. Mr Foster said that he would arrange solicitors for her and be responsible for the legal fees so long as those solicitors were used. Those solicitors were Hall & Co, who also acted for the vendors in most of the other cases. The solicitors for the purchaser were Adamsons, who, in the usual way, also acted for the lenders (and also acted in other transactions of this type). Ms Amee Wilkinson was the nominee purchaser for NEPB. Ms Wilkinson was made a buy to let interest only mortgage offer by Southern Pacific Mortgages Ltd on June 15, 2005. The loan amount was 114,750 and 1,751.50 fees. The mortgage offer stated that the purchaser was not bound by the terms of the offer until the purchaser had executed the legal charge, the funds had been released, and the legal transaction had been completed. In the course of the conveyancing process, the answers to the requisitions on title in respect of vacant possession were that arrangements might be made direct with the seller as to both the handover of keys and the time that vacant possession would be given. The agreement for sale, dated August 12, 2005, was expressed to be with Full Title Guarantee and subject to the Standard Conditions of Sale (4th Edition). The Special Conditions attached at Clause 4 were left by both firms of solicitors without either of the alternatives being deleted so that it read, The property is sold with vacant possession (or) The property is sold subject to the following Leases or Tenancies. No leases or tenancies were listed. Completion of the transfer (TR1) from Mrs Scott and Mr Scott to Ms Wilkinson and the legal charge by Ms Wilkinson to SPML also took place on August 12, 2005. The transfer and the charge were registered on September 16, 2005. Four days later, on August 16, 2005 UK Property Buyers acting as agents for Ms Wilkinson, contrary to the terms of Ms Wilkinsons mortgage, granted Mrs Scott a two year assured shorthold tenancy at the reduced rent. On expiry of the fixed term, the tenancy was stated to become a monthly periodic tenancy terminable on not less than two months notice in writing. Mrs Scott also received, dated August 16, 2005, a document promising that she could remain in the property as the tenant and that a loyalty payment of 15,000 would be paid after ten years. Three years later, in August 2008, Mrs Scott became aware that there might be a mortgage on the property. A letter was sent to Mrs Scott by North East Property Lettings suggesting that there had been teething problems following an office move and that some tenants had been receiving letters from mortgage companies stating that the account was in arrears, which, the letter assured Mrs Scott, was incorrect. A few months later, Mrs Scott discovered, through accidentally opening a letter addressed to Ms Wilkinson at the house, that a possession order had been made on March 17, 2009 without her knowledge, pursuant to proceedings commenced in February 2009. Subsequently, she received a warrant of possession due to be executed on May 20, 2009. 24. But there is also an important public interest in the security of registered transactions. There are more than 23 million registered titles in England and Wales, and each month the Land Registry may handle up to 75,000 house sales, of which the vast majority will be financed by secured loans. The judgments of Judge Behrens and the Court of Appeal 26. Ultimately, Mrs Scotts case was selected as one of the ten test cases to be tried before Judge Behrens. At a case management conference, he ordered that three preliminary issues should be tried, of which only the first remains live, namely: With reference to section 29 of the [2002 Act] are any of the interests alleged by the defendants capable of being interests affecting the estates immediately before and/or at the time of the disposition, namely the transfer and/or charge of the property in question, sufficient to be an overriding interest under paragraph 1 and/or 2 of Schedule 3 to the 2002 Act? 27. The vendors argument throughout these proceedings has been, with some variations, that they had rights which took priority to the lenders' charges essentially because: (1) from the moment of exchange of contracts the vendors each had, by virtue of the assurances by the purchasers as to the vendors right of occupation after completion, an equity in their property beyond and in addition to their registered freehold interest; (2) the equity was a proprietary right and not a mere personal equity, because the purchasers had proprietary rights as from exchange of contracts, out of which they could carve the obligation to lease back the properties to the vendors, and it did not matter that the contract of sale did not reflect that obligation; (3) there was a sale subject to a reservation of the leaseback to the vendors (and not a separate sale and leaseback or one indivisible transaction of contract, transfer and mortgage), and the purchasers never had more than a title to the property subject to the vendors rights; (4) the vendors rights had effect from the time they arose: the 2002 Act, section 116; and (5) the equity took priority under Schedule 3, paragraph 2, to the 2002 Act and was therefore binding on the lenders by virtue of section 29(2)(a)(ii). 28. Although there was some suggestion in the appeal to this court that the property was held on resulting trust (on the basis that the sale was in reality a sale of the reversionary interest), Mrs Scotts primary case is that, because of the representations made to her by or on behalf of the purchaser, the purchaser is a constructive trustee or bound by a proprietary estoppel. In Bannister v Bannister [1948] 2 All ER 133, a claim that the owner had agreed to let the occupier live in a cottage rent free for as long as she wished was treated as a claim based on constructive trust, on the basis that the purchaser fraudulently set up the absolute character of the conveyance for the purpose of defeating the beneficial interest (at p 136). The relationship between constructive trust and proprietary estoppel has been the subject of much discussion: see especially Yaxley v Gotts [2000] Ch 162, 176 177. It is likely that the difference would only be crucial in terms of remedies, but nothing turns on the distinction in this appeal. 29. The essence of Judge Behrens judgment was as follows: (1) even if the promises to the vendors gave rise to a proprietary right on completion, there was no moment in time in which such an interest could bind the lender: Abbey National Building Society v Cann [1991] 1 AC 56; (2) the vendors did not obtain an interest on exchange of contracts, because contract, conveyance and mortgage were one indivisible transaction: Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381; (3) in any event, prior to completion the vendors equitable rights were at best personal rights and not proprietary rights; (4) the transfers executed by the vendors on completion would have transferred any interest which they had in the properties to the purchaser under the Law of Property Act 1925, section 63. 30. The Court of Appeal decided that: (1) there was a separate sale of the freehold and a leaseback to the vendor on completion, and not a sale subject to a reservation; (2) the clear impression created by the contracts was that the vendors would be selling without reserving any beneficial interest or other rights in the property; (3) a mortgagee lending money to finance the purchase would be entitled to view the matter in the same way; (4) in those circumstances no equitable interest or equivalent equity could have arisen in favour of the vendors prior to completion; (5) even if an equity arose in favour of the vendors on exchange of contracts in consequence of the assurances given by the purchasers, there was no moment of time when the freehold acquired by the purchaser was free from the mortgage but subject to the equity, and it was unrealistic to separate out the contract, on the one hand, and the transfer and mortgage, on the other hand, as separate transactions: Abbey National Building Society v Cann [1991] 1 AC 56, as applied in Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381; (5) if the equitable interest arose on completion, then Abbey National Building Society v Cann [1991] 1 AC 56 was not distinguishable and the equitable interest could not take priority. Land Registration legislation 31. Because the earlier authorities are concerned with the predecessor of the provisions in the 2002 Act relating to priority of unregistered interests which are the subject of this appeal, it is necessary to start with the relevant provisions of the 1925 Act. 32. Section 20(1)(b) of the 1925 Act provided: In the case of a freehold estate registered with an absolute title, a disposition of the registered land or of a legal estate therein shall, when registered, confer on the transferee or grantee an estate in fee simple or other legal estate expressed to be created in the land dealt with subject (b) to the overriding interests, if any, affecting the estate transferred or created . 33. Section 70(1) contained a list of miscellaneous overriding interests to which registered land was subject, and section 70(1)(g) provided: All registered land shall, unless under the provisions of this Act the contrary is expressed on the register, be deemed to be subject to such of the following overriding interests as may be for the time being subsisting in reference thereto, and such interests shall not be treated as incumbrances within the meaning of this Act, (that is to say) . (g) The rights of every person in actual occupation of the land or in receipt of the rents and profits thereof, save where inquiry is made of such person and the rights are not disclosed; . 34. The object of section 70(1)(g) was to protect a person in actual occupation of land from having his rights lost in the welter of registration No one can buy the land over his head and thereby take away or diminish his rights: Lord Denning MR in Strand Securities Ltd v Caswell [1965] Ch 958, 979. 35. The rights which were overriding rights related primarily to rights which in unregistered conveyancing were not normally included in title deeds or revealed in abstracts of title. Overriding interests in general were an impediment to one of the main objectives of land registration, that the land register should be as complete a record of title as it could be: see, eg Gray and Gray, Elements of Land Law (5th ed. 2008), para 8.2.44. Reform of the law of land registration was on the agenda of the Law Commission from its inception. Overriding interests were considered in the Third Report on Land Registration (Law Com No 158, paras 2.54 2.70, 1987) and the Fourth Report (Law Com No 173, 1988), and in a joint consultation by the Law Commission and HM Land Registry in 1998. The Law Commission ultimately produced a draft Bill which led to the 2002 Act: Land Registration for the 21st Century: A Conveyancing Revolution (2001), Law Com No 271, in which it referred to section 70(1)(g) of the 1925 Act as notorious and much litigated (para 8.15). 36. One of the principal objectives of what became the 2002 Act was to create a simplified conveyancing system, electronically based, under which it would be possible to investigate title to land almost entirely on line with the bare minimum of additional inquiries: Law Com No 271, paras 8.1 et seq. A major obstacle to that goal was the existence of overriding interests. Although the 2002 Act was intended to minimise the circumstances in which new overriding interests arose, the Law Commission recommended the retention of the overriding status of occupiers' rights. 37. The reason which had been given in the joint consultation was that: it is unreasonable to expect all encumbrancers to register their rights, particularly where those rights arise informally, under (say) a constructive trust or by estoppel. The law pragmatically recognises that some rights can be created informally, and to require their registration would defeat the sound policy that underlies their recognition. Furthermore, when people occupy land they are often unlikely to appreciate the need to take the formal step of registering any rights that they have in it. They will probably regard their occupation as the only necessary protection. The retention of this category of overriding interest is justifiedbecause this is a very clear case where protection against purchasers is needed but where it is not reasonable to expect or not sensible to require any entry on the register. (Law Com No 254, para 5.61). 38. The expression overriding interests is not found in the 2002 Act, except in relation to transitional matters. The heading to Schedule 3 is Unregistered interests which override registered dispositions. 39. So far as is relevant the scheme of the 2002 Act (leaving aside the special provisions for leases of seven years or less, which do not now arise on this appeal) is as follows: (1) a registered owner has the power to make a disposition of any kind permitted by the general law in relation to an interest of that description: section 23(1)(a); (2) a person is entitled to exercise owner's powers in relation to a registered estate or charge if he is (a) the registered proprietor, or (b) entitled to be registered as the proprietor: section 24; (3) by section 27 certain dispositions, including transfers of land and legal mortgages, are required to be registered and do not operate at law until the relevant registration requirements are met; (4) the basic rule is that the priority of an interest affecting a registered estate or charge is not affected by a disposition of the estate or charge: section 28; (5) section 29 deals with the effect of registered dispositions and provides: (1) If a registrable disposition of a registered estate is made for valuable consideration, completion of the disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration. (2) For the purposes of subsection (1), the priority of an interest is protected (a) in any case, if the interest (i) is a registered charge or the subject of a notice in the register, (ii) falls within any of the paragraphs of Schedule 3 ; (6) Schedule 3 is headed UNREGISTERED INTERESTS WHICH OVERRIDE REGISTERED DISPOSITIONS, and paragraph 2 includes: An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for (b) an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so; (c) an interest (i) which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and (ii) of which the person to whom the disposition is made does not have actual knowledge at that time . ; (7) section 72 grants priority protection to those who apply for an entry in the register during the priority period; (8) section 116 is headed Proprietary estoppel and mere equities and provides: It is hereby declared for the avoidance of doubt that, in relation to registered land, each of the following (a) an equity by estoppel, and (b) a mere equity, has effect from the time the equity arises as an interest capable of binding successors in title (subject to the rules about the effect of dispositions on priority); (9) section 132 is an interpretation section and provides (i) in section 132(1) that (a) legal estate has the same meaning as in the Law of Property Act 1925 and (b) registered estate means a legal estate the title to which is entered in the register, other than a registered charge; and (ii) in section 132(3)(b) that references to an interest affecting an estate or charge are to an adverse right affecting the title to the estate or charge ; (10) the effect of section 1 of the Law of Property Act 1925 for present purposes is: (a) that legal estates means [t]he estates and charges which under this section are authorised to subsist or to be conveyed or created at law (when subsisting or conveyed or created at law) (section 1(4)); (b) The only estates in land which are capable of subsisting or of being conveyed or created at law are (a) An estate in fee simple absolute in possession; (b) A term of years absolute (section 1(1)); (c) The only charges in or over land which are capable of subsisting or of being conveyed or created at law are .(c) A charge by way of legal mortgage (section 1(2)); (d) All other estates, interests, and charges in or over land take effect as equitable interests (section 1(3)). 40. The effect of sections 27 and 29 of the 2002 Act is that, although a registrable disposition takes place when it is executed, neither a conveyance nor a charge takes effect at law until registration, and the consequence is that a purchaser and a mortgagee acquire equitable interests on completion: Megarry and Wade, The Law of Real Property, 8th ed, 2012, para 7 053; Mortgage Corpn Ltd v Nationwide Credit Corpn Ltd [1994] Ch 49, 54, per Dillon LJ (a case on the 1925 Act). Abbey National Building Society v Cann [1991] 1 AC 56 41. The principal issue in the courts below was whether the decision in Abbey National Building Society v Cann [1991] 1 AC 56 (Cann) is controlling (as the lenders say) or distinguishable (as the vendors say), and the decision also has some bearing on the other issue on this appeal, namely whether proprietary rights can be granted to a third party by a purchaser prior to completion. Consequently it is necessary to go beyond summarising the principles for which it stands by setting out the essential facts (particularly those facts which the vendors say distinguish the present case) and some of the reasoning. The decision in Cann predates the reform of land registration law in the 2002 Act, and the relevant sections of the 1925 Act have been set out above. The facts 42. Three properties in Mitcham, Surrey, were involved in Cann: 48 Warren Road, Mitcham (48 Warren Road); 30 Island Road, Mitcham (30 Island Road), and 7 Hillview, Mitcham (7 Hillview). Mrs Cann lived with her first husband in a house at 48 Warren Road. Her husband, who was the tenant of the property under a protected tenancy, died in 1962 and Mrs Cann succeeded to the tenancy as his widow and was entitled to the protection afforded by the Rent Acts. In 1977 the landlord's agents approached Mrs Cann as the sitting tenant with an offer to sell the freehold of 48 Warren Road to her for 5,000. Because neither she, nor her late husband's brother, Abraham Cann, who was by then living with her, could afford to purchase the property, her son George Cann (George) offered to raise a mortgage and purchase it; and in 1977 it was conveyed into the joint names of Mrs Cann and George with the aid of an endowment mortgage covering the whole of the price. George assured his mother that she would not need to pay any rent and that she would always have a roof over her head. Later they came across a more attractive house, 30 Island Road. 48 Warren Road was sold for 20,500, and 30 Island Road was purchased in the name of George alone for 26,500 of which 15,000 was, with Mrs Cann's knowledge and acquiescence, raised on mortgage from the Nationwide Building Society. 43. By 1984 George was in financial difficulties and told Mrs Cann that he could no longer afford to pay for two homes. He arranged to sell 30 Island Road for 45,000 and to purchase instead a smaller leasehold property, 7 Hillview, at a price of 34,000. George applied to Abbey National for a loan of 25,000 to be secured on a mortgage of 7 Hillview stating that that property was being purchased for his own sole occupation. Abbey National inspected and approved the property, and made a formal offer of an advance, which was accepted. Contracts for the sale of 30 Island Road, and the purchase of 7 Hillview, were exchanged in July 1984 with the completion date for both transactions fixed for August 13, 1984. Prior to the completion date, in the normal way Georges solicitors received a cheque from Abbey National and George executed a legal charge on the property in favour of Abbey National to secure the sum advanced. The solicitors were in a position to complete the purchase on the completion date subject only to completion of the sale of 30 Island Road, from which the balance of the purchase price was to come. 44. The sale of 30 Island Road and purchase of 7 Hillview by George were completed on August 13, 1984. George subsequently defaulted in his payments to Abbey National, and Abbey National commenced proceedings for possession against George, Mrs Cann and Abraham Cann. George took no part in the proceedings. The decision 45. The defence of Mrs Cann and Abraham Cann was that, because of a contribution made by Mrs Cann to the purchase of 48 Warren Road (represented by her status as a sitting tenant) and by reason of the assurance given by George that she would always have a roof over her head, she had an equitable interest in 7 Hillview, which, by virtue of her actual occupation, had taken priority over Abbey Nationals charge as an overriding interest. 46. The first two main holdings of the House of Lords present no difficulty on the present appeal. First, it was held that the relevant date for determining the existence of overriding interests affecting the estate transferred or created was the date of registration of the estate rather than the date of completion: at pp 87, 106. The 2002 Act lays down the general principle in section 29(1) that completion of a disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration (including overriding interests: section 29(2)(a)(ii)). 47. Second, it was held that to substantiate a claim to an overriding interest against a transferee or chargee by virtue of section 70(1)(g) of the 1925 Act, as a person in actual occupation of the land, the person claiming the overriding interest had to have been in actual occupation at the time of completion: at pp 88, 106. Schedule 3, paragraph 2 of the 2002 Act now expressly confirms that the relevant interest must belong at the time of the disposition to a person in actual occupation. 48. The other holdings are the crucial ones on this appeal, which are these: (1) where a purchaser relies on a bank or building society loan for the completion of a purchase, the transactions of acquiring the legal estate and granting the charge are one indivisible transaction; (2) George never acquired anything but an equity of redemption and there was no scintilla temporis during which the legal estate vested in him free of the charge and an estoppel affecting him could be fed by the acquisition of the legal estate so as to become binding on, and take priority over the interest of, the chargee; and (3) consequently Mrs Cann could have no overriding interest arising from actual occupation on the day of completion. The vendor remained the proprietor until registration, but the charge was created on its execution: at p 80. 49. On the facts it was held in any event that Mrs Cann was not in actual occupation at the time of completion (since all that happened prior to completion was that removers were unloading her carpets and furniture for about 35 minutes) and that she was precluded from relying on any interest as prevailing over Abbey National because she had impliedly authorised George to obtain the mortgage. 50. Lord Oliver gave the leading opinion, with which Lords Bridge, Griffiths and Ackner expressly agreed. Lord Jauncey concurred in a full opinion, but there is no substantial difference between his reasoning and that of Lord Oliver. The following points emerge from Lord Olivers opinion. First, prior to completion Mrs Cann had no interest in 7 Hillview, because she was not a party to the contract for the purchase of that property and if she had been led to believe that she would have an interest in and the right to occupy that property when George acquired it, at the stage prior to its acquisition she had no more than a personal right against him. Second, Abbey National, as an equitable chargee for money actually advanced prior to completion, had an interest ranking in priority to what was merely Mrs Cann's expectation of an interest under a trust for sale to be created if and when the new property was acquired. Third, there was no notional point of time at which the estate vested in George free from the charge and in which the estoppel affecting him could be fed by the acquisition of the legal estate so as to become binding on and take priority over the interest of the mortgagee, approving the analysis of Mustill LJ in Lloyds Bank plc v Rosset [1989] Ch 350, 388 393, and disapproving Church of England Building Society v Piskor [1954] Ch 553. 51. Lord Oliver said (at pp 92 93): The reality is that, in the vast majority of cases, the 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. Indeed, in many, if not most, cases of building society mortgages, there will have been, as there was in this case, a formal offer and acceptance of an advance which will ripen into a specifically enforceable agreement immediately the funds are advanced which will normally be a day or more before completion. In many, if not most, cases, the charge itself will have been executed before the execution, let alone the exchange, of the conveyance or transfer of the property. This is given particular point in the case of registered land where the vesting of the estate is made to depend upon registration, for it may well be that the transfer and the charge will be lodged for registration on different days so that the charge, when registered, may actually take effect from a date prior in time to the date from which the registration of the transfer takes effect 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. The scintilla temporis is no more than a legal artifice 52. Lord Jauncey said that, on completion of the purchase of 7 Hillview, Mrs Cann acquired an equitable interest in that house. Since that interest derived from George it followed that she could acquire no equitable interest in the house prior to his acquisition of an interest therein on completion, nor could she acquire an interest greater than he acquired. He went on (at pp 101 103): It is of course correct as a matter of strict legal analysis that a purchaser of property cannot grant a mortgage over it until the legal estate has vested in him. The question however is whether having borrowed money in order to complete the purchase against an undertaking to grant security for the loan over the property the purchaser is, for a moment of time, in a position to deal with the legal estate as though the mortgagee had no interest therein. In my view a purchaser who can only complete the transaction by borrowing money for the security of which he is contractually bound to grant a mortgage to the lender eo instante with the execution of the conveyance in his favour cannot in reality ever be said to have acquired even for a scintilla temporis the unencumbered fee simple or leasehold interest in land whereby he could grant interests having priority over the mortgage or the estoppel in favour of prior grantees could be fed with similar results. Since no one can grant what he does not have it follows that such a purchaser could never grant an interest which was not subject to the limitations on his own interest. In the present case George Cann borrowed money from the society in order to complete the purchase of 7 Hillview and in return granted to them a mortgage. The mortgage was executed by George Cann prior to 13 August 1984 when the purchase was completed. It follows that as a matter of reality George Cann was never vested in the unencumbered leasehold and was therefore never in a position to grant to Mrs Cann an interest in 7 Hillview which prevailed over that of the society. The interests that Mrs Cann took in 7 Hillview could only be carved out of George Cann's equity of redemption. In reaching this conclusion it is unnecessary to consider whether or not Mrs Cann was aware that George Cann would require to borrow money in order to finance the purchase of 7 Hillview. Contract/conveyance 53. Logically the first question on this appeal is whether the purchasers were in a position at the date of exchange of contracts to confer equitable proprietary rights on the vendors, as opposed to personal rights only. The question whether the analysis in Cann applies where the equitable interest of the occupier arises on exchange of contracts only comes into play if the vendors acquired proprietary rights at that time. It was the second question which exercised the courts below, and they decided that the analysis in Cann did apply where the equitable interest of the occupier arises on exchange of contracts. 54. Effect of contract 55. But I propose to deal with the logically prior question first, namely whether the vendors acquired proprietary rights on exchange of contracts. The lenders argued that, even if the decision in Cann did not have the result that the contract was part of the indivisible transaction, the vendors claims against the purchasers were purely personal, and not proprietary, until the purchasers obtained the legal estate on completion and the estoppel was then fed which, on the basis of Cann, would have been too late to give the vendors priority over the charges. 56. The vendors relied on the 2002 Act, section 116, which is headed Proprietary estoppel and mere equities and declares for the avoidance of doubt that, in relation to registered land, an equity by estoppel has effect from the time the equity arises as an interest capable of binding successors in title (subject to the rules about the effect of dispositions on priority). Their argument was that the 2002 Act expressly provided that their proprietary estoppel claims gave them proprietary rights, and that it is not necessary that the person who is estopped has a legal title. 57. They also supported their claim to proprietary rights by reliance on the long line of authority that following exchange of contracts the seller holds the property on trust for the purchaser. The argument was that (a) a person who has contracted to purchase has a proprietary interest and not a mere contractual right: Lysaght v Edwards (1876) 2 Ch D 499; (b) consequently, on exchange of contracts, the vendors became trustees for the purchasers; and (c) the purchasers were as a result able to confer on the vendors equitable interests in the properties carved out of their rights as purchasers. 59. 58. The purpose of section 116 of the 2002 Act was to make it clear that the rights which arose after detrimental reliance were proprietary even before they were given effect by the court: Explanatory Notes, paras 183 185; Law Com No 271 (2001), paras 5.29 5.31. Cf. Birmingham Midshires Mortgage Services Ltd v Sabherwal (1999) 80 P & CR 256, paras 24 31 per Robert Walker LJ. But section 116 is expressly subject to the priority rules in the 2002 Act, and takes the matter no further. It also begs the question as to when the equity arises as an interest capable of binding successors in title and probably assumes that it first arises (as it usually does) as against the legal owner who is estopped or who is bound by the equity. I accept the argument for the lenders that the unregistered interests which override registered dispositions under the 2002 Act, Schedule 3, paragraph 2, by virtue of section 29(2) of the 2002 Act, must be proprietary in nature, because: (1) the interest which is postponed to a registered disposition of a registered estate under section 29(1) is any interest affecting the estate; (2) by section 132(1) legal estate has the same meaning as in the Law of Property Act 1925, and a registered estate means a legal estate the title to which is entered in the register, other than a registered charge; (3) the effect of the Law of Property Act 1925, section 1 is that the only estates which can exist at law are an estate in fee simple and a term of years absolute and a limited range of other interests including a charge by way of legal mortgage; (4) by section 132(3)(b) references to an interest affecting an estate or charge are to an adverse right affecting the title to the estate or charge; (5) the effect of sections 23 and 24 is that only someone with owners powers, i.e. the registered proprietor or a person entitled to be registered as proprietor, can make a disposition, such as granting a lease. Consequently, the combined effect of sections 116 and 132 is that section 116 rights require a proprietary element to have any effect. 60. The question therefore arises whether a purchaser, prior to acquisition of the legal estate, can grant equitable rights of a proprietary character, as opposed to personal rights against the purchaser. Many of the cases on the nature of the purchasers interest after exchange of contracts, but before completion, were cited on this appeal, and I endeavoured at first instance in Englewood Properties Ltd v Patel [2005] 1 WLR 1961, paras 40 43 to deal with their effect. See also Turner, Understanding the Constructive Trust between Vendor and Purchaser (2012) 128 LQR 582. 62. 61. The position of the vendor as trustee has been variously described as: (1) something between what has been called a naked or bare trustee, or a mere trustee (that is, a person without beneficial interest), and a mortgagee who is not, in equity (any more than a vendor), the owner of the estate, but is, in certain events, entitled to what the unpaid vendor is, viz, possession of the estate and a constructive trustee: Lysaght v Edwards 2 Ch D 499, 506, 510, Sir George Jessel MR; or (2) constructively a trustee: Shaw v Foster (1872) LR 5 HL 321, 349, per Lord O'Hagan; (3) a trustee with peculiar duties and liabilities: Earl of Egmont v Smith (1877) 6 Ch D 469, 475, per Sir George Jessel MR; (4) a trustee in a qualified sense only: Rayner v Preston (1881) 18 Ch D 1, 6, per Cotton LJ; and (5) a quasi trustee: Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264, 269, per Lord Greene MR. It has frequently been said that a purchaser of land obtains rights which are akin to ownership: by Lord Cairns in Shaw v Foster (1872) LR 5 HL 321, 338, the purchaser was the real beneficial owner in the eye of a court of equity of the property; by Lord OHagan in the same case (at p 349), the ownership is transferred in equity to the purchaser, and the vendor is in progress towards being a trustee. In more modern times it has been recognised that the purchasers interest is a proprietary interest of a sort: Oughtred v IRC [1960] AC 206, 240, per Lord Jenkins. In Jerome v Kelly [2004] UKHL 25, [2004] 1 WLR 1409, para 32, Lord Walker made the point that beneficial ownership of the land is in a sense split between the seller and buyer on the provisional assumptions that specific performance is available and that the contract will in due course be completed In Shaw v Foster (at p 338) Lord Cairns said that a purchaser had not only the right to devise the property (under the equitable doctrine of conversion) but also the right to alienate it or charge it, and Lord OHagan said (at p 350) that the purchasers interest could be the subject of a charge or assignment, and that the sub assignee or encumbrancer could enforce his rights against the original vendor. 63. 64. But in the same case Lord Hatherley LC referred (at p 357) to the fiction of Equity which supposes the money to be paid away with one hand and the estate to be conveyed away with the other, and in the High Court of Australia Deane J said: it is both inaccurate and misleading to speak of the unpaid vendor under an uncompleted contract as a trustee for the purchaser . the ordinary unpaid vendor of land is not a trustee of the land for the purchaser. Nor is it accurate to refer to such a vendor as a trustee sub modo unless the disarming mystique of the added Latin is treated as a warrant for essential misdescription: Kern Corpn Ltd v Walter Reid Trading Pty Ltd (1987) 163 CLR 164, 192. The High Court of Australia has said that the description of the vendor as a trustee tends to conceal the essentially contractual relationship which, rather than the relationship of trustee and beneficiary, governs the rights and duties of the parties: Chang v Registrar of Titles (1976) 137 CLR 177, 190; Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57, (2003) 217 CLR 315, para 53. 66. 65. But these are not cases dealing with the question whether a contract of sale can have a proprietary effect on parties other than the parties to the contract. It is true that the purchaser is given statutory rights to enforce the interests against third parties under a contract of sale by registration: the 2002 Act, sections 15(1)(b), 32, 34(1); Land Charges Act 1972, section 2(1), (4). But it does not follow that the purchaser has proprietary rights for all purposes. Thus in Inland Revenue Commissioners v G Angus & Co (1889) 23 QBD 579, 595, Lindley LJ quoted Lord Cottenham LC in Tasker v Small (1837) 3 My & C 63, 70, who said that the rule by which a purchaser becomes in equity the owner of the property sold applies only as between the parties to the contract, and cannot be extended so as to affect the interests of others. In Berkley v Poulett [1976] EWCA Civ 1, [1977] 1 EGLR 86, 93 Stamp LJ said (at para 36) that the vendor is said to be a trustee because of the duties which he has, and the duties do not arise because he is a trustee but because he has agreed to sell the land to the purchaser and the purchaser on tendering the price is entitled to have the contract specifically performed according to its terms. Nor does the relationship in the meantime have all the incidents of the relationship of trustee and cestui que trust. In that case Lord Poulett sold the Hinton St George Estate to X, and X sub sold the house and grounds to Y. Both transactions were subsequently completed. In an action by Y against the executors of Lord Poulett, the main question which subsequently arose was whether certain objets dart were fixtures or chattels. It was held that none of them was a fixture, but also by a majority (Goff LJ dissenting) that, even though Lord Poulett had notice of the sub contract between X and Y, Lord Poulett was not under a duty to Y to take reasonable care of the house because Lord Poulett did not hold the house as trustee for the sub purchaser Y. In my view it is implicit in this analysis, which I consider to be correct, that X did not obtain proprietary rights against Lord Poulett which he could pass to Y. 67. There are some cases in the Court of Appeal and at first instance (all decided in the early 1950s) which considered the effect on a mortgagee of a grant of tenancies by a purchaser after exchange of contracts but before completion of the sale and a mortgage of the property. Coventry Permanent Economic Building Society v Jones [1951] 1 All ER 901 was a pre cursor of Cann, and was approved in that decision. Harman J decided that the conveyance and mortgage were one transaction, and there was no scintilla temporis between the time of the conveyance and the mortgage during which the purchaser had acquired sufficient estate to be able to perfect the purported grant of the tenancies. Prior to the conveyance, the purchaser only had an equitable interest in the property and the tenants only had personal rights against the purchaser: at p 903. 68. That decision was distinguished by the Court of Appeal in Universal Permanent Building Society v Cooke [1952] Ch 95 on the ground that the building societys charge in that case was executed a day later than the conveyance and there was nothing in the building societys short statement that the conveyance and the mortgage were part of a single transaction (at p 101). That is a surprising (and very formalistic) ground of distinction, since it is apparent from the statement of the facts (at p 96) that the mortgagor had applied for the mortgage two weeks before the contract of sale. But it was recognised that prior to completion the purchaser was only able to make a contract, a promise to the intended tenant: at p 103. In Woolwich Equitable Building Society v Marshall [1952] Ch 1 Danckwerts J distinguished Coventry Permanent Economic Building Society v Jones on the equally surprising ground that the charge to the Woolwich Building Society recited that the mortgagor was the estate owner in respect of the property. In Church of England Building Society v Piskor [1954] Ch 553 purchasers of leasehold premises were given possession before completion and purported to grant tenancies of part of the premises. The purchase was completed on the same day as the purchasers granted a legal charge to the building society. The Court of Appeal disapproved Coventry Permanent Economic Building Society v Jones and held that the assignment of the lease to the purchasers and the legal charge to the building society could not be regarded as one indivisible transaction. Consequently the tenancies by estoppel were fed on the acquisition of the legal estate by the purchasers and prior to the grant of the charge: at p 558, per Sir Raymond Evershed MR, and p 566, per Romer LJ. 69. 70. In Cann the decision in Church of England Building Society v Piskor was disapproved and, as I have said, Coventry Permanent Economic Building Society v Jones was approved: at p 93, per Lord Oliver and p 102, per Lord Jauncey. The decision in the Woolwich Equitable case was doubted by Lord Jauncey in Cann (at p 102), and I do not think that it or Universal Permanent Building Society v Cooke can stand with Cann. 71. But in each of these cases it was decided, or assumed, that, even if the tenant had equitable rights as against the purchaser, those rights would only become proprietary and capable of taking priority over a mortgage when they were fed by the purchasers acquisition of the legal estate. That is because where the proprietary right is claimed to be derived from the rights of a person who does not have the legal estate, then the right needs to be fed by the acquisition of the legal estate before it can be asserted otherwise than personally. In Cuthbertson v Irving (1859) 4 H & N 742 Martin B said, at pp 754 755: There are some points in the law relating to estoppels which seem clear. First, when a lessor without any legal estate or title demises to another, the parties themselves are estopped from disputing the validity of the lease on that ground; in other words a tenant cannot deny his landlords title, nor can the lessor dispute the validity of the lease. Secondly, where a lessor by deed grants a lease without title and subsequently acquires one, the estoppel is said to be fed, and the lease and reversion then take effect in interest and not by estoppel . 72. In Bell v General Accident Fire and Life Assurance Corp Ltd [1998] L & TR 1, Mummery LJ said (at p 12): the juristic basis and the legal effect of the estoppel doctrine were authoritatively expounded in the Court of Exchequer by Martin B in Cuthbertson v Irving in terms applicable to this case. The result is also consistent with the legal effect of the satellite doctrine of feeding the estoppel which applies when an interest in the land is acquired by the person deficient in title at the time of the grant from which the estoppel arose: so that, as Hale put it, by purchase of the land, that is turned into a lease in interest, which before was purely an estoppel: see Holdsworth's History of English Law, vol VII, p 246. 73. Thus in Watson v Goldsbrough [1986] 1 EGLR 265 licensees of land owned by the wifes parents agreed that an angling club could have fishing rights if they improved the ponds: the estoppel was fed when the licensees acquired the legal estate. It is true that in Lloyds Bank plc v Rosset [1989] Ch 350, 386, Nicholls LJ said (in the case of a common intention constructive trust) that prior to completion of the purchase the wife had some equitable interest in the property before completion, carved out of the husband's interest. But the decision of the Court of Appeal was reversed on the facts ([1991] 1 AC 107), although Lord Bridge seems to have contemplated (at p 134) that Mrs Rosset might have had a beneficial interest before completion. But the question whether a purchaser could grant proprietary equitable rights was not argued or decided. 74. The decision in Cann did not directly deal with this point but the conclusion that a purchaser of property cannot grant a proprietary right is strongly supported by the approach of Lord Oliver and Lord Jauncey. Lord Oliver said (at p 89) that prior to completion Mrs Cann had no interest in 7 Hillview, because she was not a party to the contract for the purchase of that property and if she had been led to believe that she would have an interest in and the right to occupy that property when George acquired it, at the stage prior to its acquisition she had no more than a personal right against him. Lord Jauncey said (at p 95) that Mrs Cann could not have acquired an equitable interest in 7 Hillview prior to completion because her rights derived from George and she was not a party to the contract of sale. 76. 75. Nor are the vendors assisted by two further arguments. First, they say that they can justify the existence of an equitable right in the property of which they were legal owners by analogy to the position of an unpaid vendor, who has a proprietary right in property of which he is the legal owner, namely a lien for the unpaid purchase price. In the rare case in which the legal estate is transferred before the purchase price is paid, it was accepted or assumed that the vendors lien could be an overriding interest for the purposes of section 70(1)(g) of the 1925 Act: London and Cheshire Insurance Co Ltd v Laplagrene Property Co Ltd [1971] Ch 499; UCB Bank plc v Beasley [1995] NPC 144; Barclays Bank plc v Estates and Commercial Ltd [1997] 1 WLR 415; Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381. It is not necessary to address the point on this appeal, but the position is probably the same under the 2002 Act; cf Law Com No 271, para 5.10. But I accept the lenders answer that there is no analogy in the present case with the vendors lien, which arises by operation of law and is the corollary of the purchasers equitable interest in the property: Capital Finance Co Ltd v Stokes [1969] 1 Ch 261, 279; Barclays Bank plc v Estates & Commercial Ltd [1997] 1 WLR 415, 420. 77. Secondly, the vendors say that the substance of the matter is that they did not sell their homes outright to the purchasers, but simply sold them subject to the rights to the leases which they had been promised, and that Cann should be distinguished on the basis that in a sale and leaseback transaction the purchaser in reality has no more than a reversionary interest subject to that leaseback. They rely on a decision of Megarry J at first instance, Sargaison v Roberts [1969] 1 WLR 951, in which the question was whether, for the purposes of the tax legislation then in force, a transfer by the taxpayer into a settlement of a farm and the simultaneous grant by the trustees to him of a lease resulted in the whole of the taxpayer's interest in the land being transferred to another person (which would have disentitled him to a tax allowance) or operated to reduce his interest from ownership of a freehold to ownership of a lease. Megarry J held that the effect of the transaction was that the taxpayers interest had been reduced from ownership of the freehold to ownership of a lease. I agree with Etherton LJ that the true nature of the transaction was that of a sale and lease back. Sargaison v Roberts is of no assistance since Megarry J made it clear (at p 958) that he was considering the interpretation of a United Kingdom taxing statute and not the technicalities of English conveyancing and land law. In the case of Mrs Scott, for example, the contract provided that the property was to be transferred with full title guarantee and vacant possession and a transfer in the normal form was executed. 78. 79. Consequently, in my judgment, the appeal should be dismissed on the principal ground that the vendors acquired no more than personal rights against the purchasers when they agreed to sell their properties on the basis of the purchasers promises that they would be entitled to remain in occupation. Those rights would only become proprietary and capable of taking priority over a mortgage when they were fed by the purchasers acquisition of the legal estate on completion, and then Cann would apply, with the effect that the acquisition of the legal estate and the grant of the charge would be one indivisible transaction, and the vendors would not be able to assert against the lenders their interests arising only on completion. An indivisible transaction? 80. It follows that the question whether the decision in Cann that conveyance and mortgage are one transaction also extends to include a case where the equitable interest is said to arise at the time of the contract of sale does not arise. If I am right on the main point, it is not easy to see how this question could arise in any future case, but I propose to express my view on it because it was the main question canvassed in the courts below and on this appeal. 81. The vendors say that Cann did not decide whether the indivisible transaction analysis applies where the equitable interest of the occupier arises on exchange of contracts, and that the answer is that the analysis does not apply. The lenders say that, even if an equitable interest arose on exchange of contracts, in any event the House of Lords has already decided that not only were the conveyance and the charge part of one indivisible transaction, but also that the contract (which had been exchanged some weeks before), conveyance and charge were indivisible. It is therefore necessary to consider whether (and if so, how) this point was dealt with in Cann. 82. The argument for Mrs Cann was that she had an interest from the time of exchange of contracts for the acquisition of 7 Hillview: her equitable interest must have commenced not later than 20 July 1984, when a specifically enforceable contract for the purchase of 7 Hillview was entered into (at p 66). Lord Oliver assumed (at p 89) that prior to completion George was estopped by his promise to keep a roof over her head from denying her right as against him to terminate her occupation of the property without her consent, but that is a reference to the estoppel which arose on the acquisition of 30 Island Road (as the reference to it not binding the Nationwide Building Society shows). He then goes on to say that Mrs Cann had acquired no rights in 7 Hillview prior to completion because she had not been a party to the contract for its purchase, and at the stage prior to its acquisition she had no more than a personal right against him. Later on he gives a hypothetical example which may suggest that he thought that the relevant reliance by Mrs Cann would have been vacating 30 Island Road rather than merely agreeing that it be sold. It is possible that Lord Jauncey (at p 95) looked at the matter in the same way. 83. There are two inter linked questions involved in this analysis. The first question was whether Mrs Cann had any rights at all against George in relation to 7 Hillview (as distinct from her rights in 30 Island Road) at the time of the contract. The second question was whether the contract, conveyance and legal charge were one indivisible transaction. I have already said that Lord Oliver and Lord Jauncey expressed the view that if Mrs Cann had rights against George in relation to 7 Hillview from the time of the contract, they were only personal rights. On the facts of that case it seems to me that the relevant reliance would have been agreement to the sale of 30 Island Road rather than ceasing occupation of the house on completion of the purchase of 7 Hillview. In Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381 A agreed to purchase a business, including some premises in Bradford, from B for 160,000. B was to retain the use of the property until the whole of the principal money and interest due under the agreement had been paid. A raised 84. 80,000 by way of a secured loan from Nationwide and this was paid to B. The balance of 80,000 was left outstanding and secured by a second charge in favour of B against the property. The agreement, the transfer of the property, and the charges were all executed on the same day. A failed to pay B the balance of the purchase price and fell into arrears on the mortgage repayments. In possession proceedings by Nationwide, B sought to defend on the basis that he had an overriding interest in priority to Nationwides charge, namely (1) his vendors lien; and/or (2) the right to occupy given by the purchase agreement until payment of the price in full. The Court of Appeal decided that there was no vendors lien, primarily because it was given up in consideration of the rights to a second charge and occupation of the property until payment. It also decided that the right to occupy was purely contractual and gave rise to no interest in the land. But it was also decided that B did not have an overriding interest in any event, because, applying Cann (per Aldous LJ at p 389): the charges, the agreement and the transfer were all signed on the same day Thus, [Bs] right to occupation under clause 6, did not accrue prior to the creation of [Nationwides] charge. In Abbey National Building Society v Cann the House of Lords concluded that when a purchaser relied on a building society, such as [Nationwide], to enable completion, the transactions involved were one indivisible transaction and, therefore, there was no scintilla temporis during which the right to occupation vested free of [the] charge. The same reasoning is applicable to the facts of this case. On June 1, the contract, the transfer and the legal charges were completed. They formed an indivisible transaction and there was no scintilla temporis during which any right to occupation under clause 6 of the agreement vested in [B] which was free of [Nationwides] charge. Thus, the right given by clause 6 did not provide an overriding interest under section 70(1)(g) of the 1925 Act, even if the right was a proprietary right. [Counsel for B] submitted that that conclusion ignored the reality of the position and that at all times [B] was in occupation. However that submission ignores the reality of the legal position. [B] gave up his right to occupy as an unpaid vendor by signing the agreement and thereby obtained permission to occupy, which permission did not take effect prior to [Nationwides] charge. 85. In my judgment the decision of the Court of Appeal in Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381 was correct. As a matter of principle, Aldous LJ was right to take the view that it is implicit in Cann that contract, conveyance and mortgage are indivisible. In the present case, as in Nationwide Anglia Building Society v Ahmed, the contract and conveyance were executed on the same day, but the analysis is not dependant on that. 86. There are some 900,000 domestic conveyancing transactions per year in England and Wales. In almost every case, the Law Societys Conveyancing Protocol is used. The current version is the 2011 edition, but it is not different in substance from that current (5th ed, 2005) when the transactions in this appeal were carried out. The current edition sets out all the steps from instructions (Stage A) (which include the provision of the sellers Property Information Form which will give details of who is occupying the property and indicate whether vacant possession will be given), submission of contract (Stage B), steps prior to exchange, including confirmation of completion date and ensuring the seller is aware of the obligation to give vacant possession (Stage C), exchange of contracts (Stage D), completion (Stage E), and post completion matters, including registration (Stage F). Prior to contract the buyers solicitor should check whether the buyer requires a mortgage, whether an application has been made and whether a mortgage offer has been made, and whether any mortgage conditions remain to be performed. On exchange of contracts the buyers solicitor sends the certificate of title and/or requisition of funds to the lender so that funds are available for completion. Prior to exchange of contracts the sellers solicitor submits to the buyers solicitor a contract bundle, including (inter alia) the draft contract incorporating the latest edition of the Standard Conditions of Sale, official copies of the Register and title plan, replies to inquiries with supporting documentation, searches and inquiries, and (for consideration) a draft transfer. 87. The contract of sale does, of course, have separate legal effects, but it would be wholly unrealistic to treat the contract for present purposes as a divisible element in this process. That is why in R v Waya [2012] UKSC 51, [2013] 1 AC 294 this court adopted the reasoning in Cann to hold that where the same solicitor acts for a borrower and a mortgage lender, and the mortgage advance is paid to the solicitor to be held in the solicitor's client account, until completion, to the order of the mortgage lender; and on completion the solicitor transfers the advance to the vendor's solicitor against an executed transfer: In the eyes of the law all these events occurred simultaneously (per Lord Walker and Hughes LJ, at para 50). The purchaser never acquired more than an equity of redemption (at para 53) and under the tripartite contractual arrangements between vendor, purchaser and mortgage lender, [the purchaser] obtained property in the form of a thing in action which was an indivisible bundle of rights and liabilities (at para 54). 88. On this appeal the court was provided with notes from the parties on the effect on conveyancing practice, and particularly on the inquiries which mortgage 89. lenders would have to undertake and on the increased risk from fraud, should the appeal succeed. I agree with the point made by Lady Hale in the course of argument that the courts duty is to apply the law irrespective of an unexpected impact on conveyancing practice and an adverse effect on the risks of secured lending. It is also important to emphasise that the scheme in the present case could not have worked if the solicitors for the vendors and the solicitors for the purchasers/lenders had complied with their professional obligations and proper and normal conveyancing practice. It is also to be noted that where a person, who might otherwise have rights which could be asserted against a mortgagee, agrees to funds being raised on the property by way of mortgage, the mortgagee will have priority: Cann (at p 94); Bristol & West Building Society v Henning [1985] 1 WLR 778; Paddington Building Society v Mendelsohn (1985) 50 P & CR 244. It would follow that, even if (contrary to my view) the vendors had had equitable rights of a proprietary nature against the purchasers arising on exchange of contracts, the mortgages would have taken priority. 90. Accordingly I would dismiss the appeal on the preliminary issue. Possession order 91. The final question is whether the remainder of Mrs Scotts undated Re Amended Defence and Counterclaim should have been struck out without it being tried on the facts. The point arises because it is said on behalf of Mrs Scott that her pleadings raise specifically the point that, by virtue of the lenders actual, constructive or imputed notice of the leases granted or intended to be granted to the purchasers, the lenders are estopped from denying that Mrs Scott was promised a lease and from relying on the provisions of the mortgage restricting the grant of leases. For the purposes of this appeal, Mrs Scott relies particularly on a letter (which was also written in some of the other cases) written by her solicitors to the solicitors for the purchaser/lenders, requiring them to inform the lenders that a sum of 40,000.00 was to be paid to UK Property Buyers (rather than NEPB) upon completion of the transaction from the proceeds of sale of the property, which is said to show that the sale was not an outright sale. 92. But Judge Behrens decided the third preliminary question against the vendors, namely, whether it was possible for the lenders priority to be adversely affected by notice of such promises as were made and the circumstances of the transaction by virtue of their agents knowledge: (a) if passed on, or (b) if not passed on to the lenders. 93. 94. 97. I agree with the Court of Appeal that the judge was entitled to take the view that any argument about the relevance of the lenders knowledge of the promises made by the purchasers as to the right of the vendors to remain in occupation after completion fell within the third preliminary issue, on which there has been no appeal. I would therefore dismiss the appeal. I would only add that I express the hope that the lenders will, before finally enforcing their security, consider whether they are able to mitigate any hardship which may be caused to the vendors. LADY HALE 95. I am reluctantly driven to agree that this appeal must fail for the reason given by Lord Collins: the purchaser was not in a position either at the date of exchange of contracts or at any time up until completion of the purchase to confer equitable proprietary, as opposed to merely personal, rights on the vendor. But this produces such a harsh result that I would like to add a few additional words of explanation. Given that conclusion, the second question discussed by Lord Collins, which is whether the contract should be seen as an indivisible transaction with the conveyance and the mortgage, does not arise and is unlikely ever to arise. However, I must also explain why, with great respect, I take a different view from Lord Collins on that question. Overriding interests: some preliminary remarks 96. It is important to bear in mind that the system of land registration is merely conveyancing machinery. The underlying law relating to the creation of estates and interests in land remains the same. It is therefore logical to start with what proprietary interests are recognised by the law and then to ask whether the conveyancing machinery has given effect to them and what the consequences are if it has not. Otherwise we are in danger of letting the land registration tail wag the land ownership dog. It is also important to bear in mind that we are here concerned with events which took place before title to the land was registered in the name of the nominee purchaser. There is, of course, as Lord Collins says at para 25, an important public policy interest in the security of registered transactions. But that does not mean that the fact that a transaction is registered should automatically give it priority over all other interests. The land registration scheme accepts, as did the system of unregistered conveyancing, that there are some interests in land which deserve protection from later dispositions even if they are not protected by registration. There is also an important public policy interest in the accuracy of the register, so as to justify the reliance which later purchasers and mortgagees place upon it. 98. Thus the basic rule in section 28(1) of the Land Registration Act 2002 is that Except as provided by sections 29 and 30, the priority of an interest affecting a registered estate or charge is not affected by a disposition of the estate or charge. By section 28(2), it makes no difference whether either the interest or the disposition is registered. Section 29(1) goes on to state: If a registrable disposition of a registered estate is made for valuable consideration, completion of the disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration. Section 29(2)(a)(ii) provides that among the interests protected for the purpose of subsection (1) is an interest which falls within any of the paragraphs of Schedule 3. Falling within paragraph 2 of Schedule 3 is An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation. This is subject to a number of exceptions; the only relevant one for our purpose is (b) an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so. It has never been in dispute that Mrs Scott was in actual occupation of the property at the time of the disposition to the nominee purchaser (and the contemporaneous mortgage to the lenders). Nor is it disputed that no inquiries were made of her personally before the disposition. So the only question in this case is, and has always been, whether she had an interest which belonged to her at the time of the disposition. 99. 100. Of course, the whole idea of overriding interests is unpopular with those who would like the register to be a complete record of everything which will affect the estate or charge that they are acquiring. But it has always been recognised that the register cannot be a complete record and that there are some unregistered interests which require and deserve protection. The 2002 Act did reduce the list of overriding interests from that contained in section 70(1) of the Land Registration Act 1925. But the rights of those in actual occupation of the land remained on the list. Pejorative adjectives such as notorious and much litigated do not assist the argument in this case. 101. Perhaps the most notorious example of litigation about the rights of those in actual occupation was Williams and Glyns Bank v Boland [1981] AC 487. In that case it was held that the beneficial interest of a wife who had contributed to the purchase of the matrimonial home in which she lived when her husband mortgaged it to the bank was an overriding interest within the meaning of section 70(1)(g) of the 1925 Act. As Lord Wilberforce (with whom Viscount Dilhorne, Lord Salmon and Lord Roskill agreed) pointed out, in registered conveyancing, the fact of occupation takes the place which actual or constructive notice occupied in unregistered conveyancing: In the case of registered land, it is the fact of occupation that matters. If there is actual occupation, and the occupier has rights, the purchaser takes subject to them (p 504E F). Later on, he repeated that the doctrine of notice has no application to registered conveyancing (p 508E). 102. It follows from that, and is clear from the wording of paragraph 2(b) of Schedule 3 to the 2002 Act (para 98 above), that the question of whether or not it was reasonable to expect the purchaser or lender to make inquiries of the person in actual occupation is irrelevant. The only question is whether they did so and what the answer was. It is worth emphasising this point, because it is to be expected that the vendor of residential property will be in occupation of it at the time of the disposition, and so there is nothing to give the purchaser or lender constructive notice of any other interest that she might have. But that is not the point. If the vendor does have an interest in the land, other than the one of which she is disposing, and a tenancy by estoppel could be an example, then the fact of her occupation at that time makes it an overriding interest. 103. Williams and Glyns Bank v Boland did cause some consternation in some quarters at the time. The Law Commission devoted a whole report to the implications (1982, Law Com No 115), but their recommendations were not enacted. It was discussed in their third report on Land Registration (1987, Law Com No 158), where a constructive way of balancing the competing interests involved was proposed. That solution too did not find favour with the legislators. Nevertheless, the overriding interests of those in actual occupation survived into the 2002 Act. The lending world had meanwhile learned to live with Boland, mainly by insisting that matrimonial homes were conveyed into the joint names of husband and wife. There is no warrant at all for seeking to cut down the scope of overriding interests by giving them a narrower interpretation than they would otherwise have under the underlying law of property. Can a prospective purchaser grant proprietary rights before completion? 104. The question, therefore, is whether a promise of the kind said to have been made here, made to the vendor by or on behalf of a prospective purchaser of land, is capable of giving the vendor a proprietary interest in the land, as opposed to a merely personal right against the purchaser, before the purchase is completed. On the face of it, the promises which were made here and on which Mrs Scott acted in giving up the ownership of her home, bore all the hallmarks of a proprietary estoppel. But is such an estoppel capable of being an interest in land before the person making the promise has become its owner? 105. The best case which can be cited in favour of the vendors argument that it is so capable is the decision of the Court of Appeal in Lloyds Bank v Rosset [1989] Ch 350. Mrs Rosset had done work on the house before it was conveyed to her husband and contemporaneously charged to the Bank. Nicholls LJ was unable to accept that the wife had no beneficial interest in the property before completion (p 385F). The husband had a specifically enforceable contract to purchase the property and hence he had an equitable interest in it. The wife had some equitable interest in the property before completion, carved out of the husbands interest just described (p 386A). Both Mustill and Purchas LJJ agreed with him on this point. 106. When Rosset reached the House of Lords, it was held that the judges factual findings did not justify a finding that she had any beneficial interest in the property. Lord Bridge remarked that, had she become entitled to a beneficial interest prior to completion it might have been necessary to examine a variant of the question regarding priorities which your Lordships have just considered in Abbey National Building Society v Cann: see [1991] 1 AC 107, 134B. Thus it can well be said that their Lordships did not allow the appeal on the basis that the Court of Appeal were wrong on this point; they seem to have proceeded on the basis that the Court of Appeal were right, because otherwise no question of priorities would have arisen. 107. But that would indeed be odd, as the same appellate committee gave judgment in Abbey National Building Society v Cann on the very same day on which they gave judgment in Rosset. And in Cann they were well aware of the series of cases, beginning with Coventry Permanent Economic Building Society v Jones [1951] 1 All ER 951 (Coventry), Woolwich Equitable Building Society v Marshall [1952] Ch 1 (Woolwich), Universal Permanent Building Society v Cooke [1952] Ch 95 (Cooke), and ending with Church of England Building Society v Piskor [1954] Ch 553 (Piskor). These were all cases in which a person who had contracted to buy residential property granted a tenancy of all or part of the premises to another person who moved in before the contract was completed. The purchasers having mortgaged the property at or shortly after completion, the question was whether the mortgagees were bound by the tenancies. 108. All of them depended upon what Harman J in Coventry, at p 903, described as an old doctrine (none the worse for being old) that if A purports to create a lease in Bs favour, A having no estate sufficient to support the lease, then, if A afterwards acquires a sufficient estate, he will be bound not to deny that he always had a good right to create the tenancy and the lease is said to take effect by estoppel. This is the doctrine described as among the clear points about estoppel at first instance in Cuthbertson v Irving (1859) 4 Hurl & N 742, 157 ER 1034 (affirmed on appeal at (1860) 6 Hurl & N 135, 158 ER 56): neither the lessee nor the lessor can dispute one anothers title and if the lessor without a legal estate later acquires one, the estoppel is fed. 109. In each of these four cases, the interest of the purchaser between contract and completion was considered not sufficient to support the lease. Hence the question was whether there was a moment in time between the completion of the purchase and the grant of the mortgage the so called scintilla temporis in which the purchaser acquired the unencumbered legal estate and so the estoppel was fed before the purchaser disposed of it by way of mortgage. In Coventry, Harman J held that there was no such scintilla, the conveyance and the mortgage being (for this purpose at least) indivisible. In Woolwich, Dankwerts J held that there was such a scintilla and hence the tenancy took priority over the mortgage. In Cooke and Piskor, the Court of Appeal, led by Evershed MR, adopted the Woolwich approach. In Cann, of course, the House of Lords held that Piskor was wrongly decided and that Harman J had adopted the correct approach in Coventry. It follows that Woolwich was also wrongly decided as in all these three cases the conveyance and the mortgage were virtually contemporaneous and the mortgage loan was required to complete the transaction. 110. It does not necessarily follow that Cooke was wrongly decided. As Lord Oliver explained in Cann, at p 92: Of course, as a matter of legal theory, a person cannot charge a legal estate that he does not have, so that there is an attractive legal logic in the ratio in Piskors case. Nevertheless, I cannot help feeling that it flies in the face of reality. The reality is that, in the vast majority of cases, the 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. In Cooke, the mortgage was the day after the conveyance and there was no evidence that they were one and the same transaction, or that the advance had been handed over to the vendor rather than the purchase being initially funded in some other way, although the mortgage was applied for before completion. It may be that the conveyance and the mortgage were in fact indivisible. It may be that they were not. Cooke was not cited to their Lordships in Cann, but it must have been known to them, because it features prominently in Piskor, and it was not overruled or even mentioned in their opinions. 111. But that is by the way. None of this scintilla temporis debate would have been necessary if the purchaser of land had been capable of creating a proprietary interest in that land before completion, which would be binding upon a lender whose mortgage could only be granted on or after completion. And if a tenancy cannot be carved out of the equitable interest which the purchaser has before completion, it is hard to see how the sort of beneficial interest which Mrs Rosset was claiming could be so carved out. So it is odd, to say the least, that the House of Lords appears to have assumed that it could. In any event, we are here dealing with a promise which is much closer to a tenancy by estoppel than to the sort of beneficial interest claimed by Mrs Rosset. My provisional conclusion, therefore, is that under the ordinary law of property the nominee purchaser in this case could not give Mrs Scott a tenancy which would bind the lenders in this case before her purchase of the land was completed. 112. How does this provisional conclusion sit with the scheme of the Land Registration Act 2002? Sections 28 and 29, dealing with priority, refer to interests affecting the estate (see para 98 above). The interests which are protected for the purpose of section 29(1) are interests affecting the estate immediately before the disposition in question, in this case the mortgage. Section 132(3)(b) makes it clear that references to an interest affecting an estate are to an adverse right affecting the title to the estate . In other words, there has to be an estate before there can be an interest which affects it. The 2002 Act does not define estate but legal estate has the same meaning as in the Law of Property Act 1925, section 1(1) of which contains the most basic rule of English land law: The only estates in land which are capable of subsisting or of being conveyed or created at law are (a) An estate in fee simple absolute in possession; (b) A term of years absolute. The interest of the purchaser before completion, however it may be characterised, is not a legal estate. Hence the nominee purchaser could not create an interest which was capable of being a protected interest for the purpose of the 2002 Act until she had acquired the legal estate. This is entirely consistent with and confirms the provisional conclusion reached earlier. 113. There is a further complication. There is a gap between any transaction and its registration. The 2002 Act, confirming Cann on this point, makes it clear that the relevant date, when the person must be in actual occupation and have a proprietary interest in the land, is the time of the disposition over which priority is claimed: see Schedule 3, paragraph 2. Any unprotected interest affecting the estate immediately before the disposition is postponed to the interest under the disposition: see section 29(1). The relevant disposition for this purpose is the mortgage. But neither the mortgage nor the transfer to the purchaser can operate at law until they are registered: see section 27(1). Until registration, the purchaser (and indeed the mortgagee) have only equitable interests. This might suggest that rights granted by the purchaser to an occupier could not be fed until registration. However, this is machinery, not substance. Assuming that all relevant registration requirements are met, the purchaser has now acquired an absolute right to the legal estate (and the mortgagee an absolute right to the charge). Her interest is of a different order from that of a purchaser before completion, who has the contractual right to have the property conveyed to her but may never in fact get it. 114. Were there to be a scintilla temporis between the conveyance and the grant of the mortgage, the vendors tenancy by estoppel would indeed become an overriding interest. But it has not been argued in this case that Abbey National Building Society v Cann was wrongly decided. It has been accepted that, at least in the standard case where completion and mortgage take place virtually simultaneously and the mortgage is granted to secure borrowings without which the purchase would not have taken place, completion and mortgage are one indivisible transaction and there is no scintilla temporis between them. We have been invited to distinguish Cann but not to bury it. Are contract, transfer and mortgage indivisible? 115. That simple analysis is sufficient to determine this case, without any resort to the much more controversial proposition that, not only are the conveyance and the mortgage one indivisible transaction for this purpose, but they are now to be joined by the contract as well. Whatever ones view of the decision in Cann (and Lord Oliver acknowledged, at p 92, that the contrary view had an attractive logic to it) it does make sense. The conveyance vests the legal estate in the purchaser who instantly mortgages it to the lender. All the purchaser ever acquires is the equity of redemption. But that may not be true if the mortgage takes place sometime after the conveyance: there may be a period during which the purchaser owns the land without encumbrances. Not all conveyances and mortgages are indivisible: it depends upon the facts, which is why Cooke may not have been wrongly decided. 116. The lender is not a party to the contract to sell the land to the purchaser. This is an entirely separate matter between vendor and purchaser in which the lender is not involved. These days it may well take place on the same day as the conveyance and mortgage but it often takes place days, weeks or even months beforehand. In the olden days, it was common for vendor and purchaser to instruct the same solicitor. But that is no longer permitted, as it is recognised that they may well have a conflict of interest. The vendor may not know, and certainly has no right to know, how the purchaser proposes to fund the purchase and whether or not it is planned to mortgage the property immediately on completion. Indeed, the purchaser, perhaps particularly a corporate purchaser, may not know precisely where the money is coming from at the time when the contract is made. There may be a variety of options available and the choice between them not yet made. 117. Under the Law Societys Conveyancing Protocol (the current edition was published in 2011), the purchasers solicitor should check whether the purchaser requires a mortgage, whether a mortgage application and offer have been made and whether any conditions remain to be performed. It is only sensible to do so before the purchaser client is legally committed to the purchase. The vendor obviously also has an interest in knowing whether the purchaser will be good for the money. The Protocol advises the vendors solicitor to request details of the purchasers funding arrangements before exchange of contracts, but the purchasers solicitor cannot disclose the information without the clients consent. The Protocol simply advises him to consider recommending disclosure. Even if the vendor does know that the purchaser proposes to borrow money to fund the purchase, she will not know the precise terms of any proposed mortgage. Indeed the purchaser may not know them at the time of the contract. Mrs Scott did not know that the nominee purchaser proposed to mortgage her home to the Bank, nor did she know that the mortgage would prohibit the granting of the tenancy which she had been promised. 118. Nor will the mortgagee necessarily know the precise terms of the contract of sale. The seller will of course do so. Nowadays it is common for purchaser and lender to be represented by the same solicitor or conveyancer, but it is not obligatory, and there is obviously a potential conflict in a situation such as this. The Council of Mortgage Lenders Handbook provides that Unless otherwise stated in your instructions, it is a term of the loan that vacant possession is obtained. The contract must provide for this. If you doubt that vacant possession will be given, you must not part with the advance and should report the position to us (para 6.5.1). Existing and proposed lettings should be disclosed to the lender (paras 6.6.1 and 6.6.2). Under the Protocol, on exchange of contracts the purchasers solicitor sends the certificate of title and/or requisition of funds to the lender, or to the lenders solicitor if they are separately represented, in order that the funds will be available to complete the purchase. The certificate of title set out in Appendix F to the 2011 Protocol confirms that the contract of sale provides for vacant possession on completion. It also undertakes not to part with the funds if it comes to the conveyancers notice that the property will be occupied at completion otherwise than in accordance with the lenders instructions. All of this would not be necessary if the lender were a party to the contract of sale or otherwise automatically aware of its terms. 119. Thus in no sense is this a tripartite transaction, to which vendor, purchaser and lender are all party. Lord Walker and Hughes LJ cannot have meant that it was when they referred to the tripartite contractual arrangements between vendor, purchaser and mortgage lender in R v Waya [2012] UKSC 51, [2013] 1 AC 294, para 53. Waya was in any event concerned with the true construction of the arrangements between the purchasing borrower and the lender for the purpose of defining the benefit which the borrower had obtained from the lender having made a false statement in his mortgage application form. The contract between vendor and purchaser did not come into it. 120. I am afraid that I cannot see how it is implicit in the rejection of Piskor by the House of Lords in Cann that the contract of sale was part of the indivisible transaction. I understand, of course, that the ratio of Cann is limited to those cases where the purchaser requires the loan in order to complete his purchase. In that sense, the contract of sale is a necessary pre cursor to the conveyance and mortgage. But that does not explain why they are indivisible, nor does it explain what is meant by indivisibility in this context. If what is meant is that the purchaser only ever acquires an equity of redemption, out of which she is not able at completion to carve proprietary interests which are inconsistent with the terms of the mortgage, then to talk of the indivisibility of the contract adds nothing to the Cann analysis. It is still necessary to decide whether the purchaser can confer proprietary rights before completion. If what is meant is that the purchaser cannot do so, then it adds nothing to the analysis of the first question rehearsed earlier. The risk is that to talk of an indivisible transaction will not only fly in the face of the facts but also create confusion. Will it be taken, for example, to prevent a vendor from creating overriding interests between contract and conveyance? 121. In Nationwide Anglia Building Society v Ahmed and Balakrishnan (1995) 70 P & CR 381, the vendor agreed to sell his business, including its freehold premises, machinery, fixtures, fittings and vehicles, to the purchaser for 160,000. The vendor was prepared to leave up to 80,000 of the purchase price unpaid on completion. Hence the contract of sale provided that the vendor should have a first charge over the machinery, fixtures, fittings and vehicles and a second charge over the premises after the creation of a first charge to secure the intended mortgage loan. The contract also provided that the vendor should have a full set of keys and the use of an office at the property. All this duly happened. The Building Society provided a loan of 80,000 and was granted a first charge over the property. 80,000 remained owing to the vendor, who was granted a second charge over the property and a first charge over the chattels. He was also given the keys and allowed to use the office and therefore remained in actual occupation of the premises. The purchaser defaulted on the loan and the Building Society sought possession. The vendor argued, first, that his unpaid vendors lien was an overriding interest; the Court of Appeal held that the lien had been given up in return for the rights obtained under the agreement. The vendor argued, second, that the licence to occupy the room was an overriding interest; the Court of Appeal held that this was a mere contractual right and not a proprietary interest. The Court of Appeal did go on to say that, because the contract, the transfer and the legal charges were all completed on the same day, they formed an indivisible transaction and there was no scintilla temporis during which any right to occupation vested in the [vendor] which was free of the [lenders] charge (p 389). That observation was clearly not necessary for the decision, because the Court had already rejected the claimed overriding interests. It may have made factual sense in that particular case, as the transactions all took place on the same day and each of the participants knew what the terms of the arrangement were. It cannot, in my view, be extrapolated into a general proposition applicable to all ordinary domestic conveyancing transactions. Conclusion 122. This case has been decided on the simple basis that the purchaser of land cannot create a proprietary interest in the land, which is capable of being an overriding interest, until his contract has been completed. If all the purchaser ever acquires is an equity of redemption, he cannot create an interest which is inconsistent with the terms of his mortgage. I confess to some uneasiness about even that conclusion, for two reasons. First, Cann was not a case in which the vendor had been deceived in any way or been made promises which the purchaser could not keep. Should there not come a point when a vendor who has been tricked out of her property can assert her rights even against a subsequent purchaser or mortgagee? Second, Cann was not a case in which the lenders could be accused of acting irresponsibly in any way. Should there not come a point when the claims of lenders who have failed to heed the obvious warning signs that would have told them that this borrower was not a good risk are postponed to those of vendors who have been made promises that the borrowers cannot keep? Innocence is a comparative concept. There ought to be some middle way between the all or nothing approach of the present law. I am glad, therefore, that the Law Commission have included a wide ranging review of the 2002 Act in their recently announced Twelfth Programme of Law Reform (2014, Law Com No 354), which is to include the impact of fraud. LORD WILSON AND LORD REED 123. We agree that this appeal should be dismissed for the reasons given by Lord Collins and Lady Hale. On the point on which they disagree, the indivisibility of the contract from the conveyance and the mortgage, which is not part of the reasons for the decision, we agree with Lady Hale. The warrant of possession was suspended and Mrs Scott was joined as a defendant in the possession proceedings so that she could argue that she had an overriding interest under the 2002 Act. It is impossible not to feel great sympathy with Mrs Scott and the former home owners in her position, who may have been not only the victims of a fraud which tricked them out of their homes, but also of unprofessional and dishonest behaviour by the solicitors appointed to act for them. They may have claims against the Solicitors Compensation Fund, but the fact remains that they may lose their homes if they do not succeed on this appeal.	This is an appeal in a test case arising from sale and rent back transactions in the north east of England. Home owners like the appellant, Mrs Scott, were persuaded to sell their properties to purchasers who promised them the right to remain in their homes for years as tenants after the sale. The purchasers bought the homes with the assistance of mortgages from lenders such as the respondents, who were unaware of the promises made to the home owners. When the purchasers defaulted on the mortgages, possession proceedings were brought by the lenders. The issue arising in this appeal is whether the home owners have any rights entitling them to remain in occupation of their homes, in addition to any claims they may have against the purchasers who may have defrauded them and their legal advisers. Mrs Scott agreed in 2005 to sell her house to an agent for North East Property Buyers (NEPB) at a significant undervalue, in return for the right to remain in her home indefinitely as a tenant at a discounted rent, with the prospect of further capital sums after ten years. The nominee purchaser for NEPB, Ms Wilkinson, obtained a buy to let interest only mortgage from the respondent (Southern Pacific) on condition that only assured shorthold tenancies of up to one year could be granted and on the basis that there were no existing tenancies. In breach of the terms of the mortgage a two year tenancy was granted to Mrs Scott four days after completion of the sale. Three years later Mrs Scott discovered that a possession order had been made on 17 March 2009 in favour of Southern Pacific, following defaults by Ms Wilkinson on the mortgage. Mrs Scott was joined as a defendant to the possession proceedings and argued that she had an equitable interest in the property from the moment of exchange of contracts, which amounted to an unregistered interest given priority by section 29(2)(a)(ii) of, and Schedule 3, paragraph 2 to, the Land Registration Act 2002 (the 2002 Act) over the lenders charges. The courts below determined as a preliminary issue that she had not. Two questions arose: (i) whether Ms Wilkinson had been in a position at the exchange of contracts to confer equitable proprietary rights on Mrs Scott, as opposed to personal rights only, and (ii) whether, even if she had, the transaction of acquiring the legal estate and granting the charge was one indivisible transaction so that Mrs Scott could not assert against Southern Pacific an equitable interest which had only arisen on completion, in accordance with the decision of the House of Lords in Abbey National Building Society v Cann [1991] 1 AC 56 (Cann). The Supreme Court unanimously dismisses the appeal. Lord Collins, with whom Lord Sumption agrees, finds against Mrs Scott on both issues. Lady Hale, with whom Lord Wilson and Lord Reed agree, holds that the appeal must fail because Ms Wilkinson could not confer equitable proprietary rights on Mrs Scott at any time before completion of the purchase. On this basis the second issue does not arise, but they would have taken a different view on the indivisibility of the transaction had it done so. One of the main objectives of land registration is to create as complete a record of title as possible. Overriding interests, to which the land is subject but are not apparent from the register, are an obstacle to this, but the interests of occupiers continue to be protected in the 2002 Act [36]. The unregistered interests which override registered dispositions under the 2002 Act must be proprietary in nature [59]. A purchaser under a contract of sale is given statutory rights to enforce his or her interest against third parties by registration, but it does not follow that the purchaser can grant proprietary rights [65]. Mrs Scott acquired no more than a personal right against Ms Wilkinson when she agreed to sell her house on the basis of the promise made to her that she could remain in occupation and this is the principal ground on which her appeal fails. Her rights only became proprietary when Ms Wilkinson acquired the legal estate, at which time the grant of the charge in favour of Southern Pacific also took effect as part of one indivisible transaction. Accordingly, the lenders rights are not subject to Mrs Scotts right to occupation [79]. It is not therefore necessary to decide whether the decision in Cann applies to a proprietary equitable interest arising at the time of a contract of sale and it is difficult to see how this question could arise in any future case [80]. The justices do, however, express their views on this as it was the main question canvassed in the courts below and at the hearing. Lord Collins considers that it was implicit in Cann that not just the conveyance and mortgage, but also the contract, were all indivisible parts of the transaction. This does not depend on execution of all three on the same day [85]. Thus even if Mrs Scott had had equitable rights of a proprietary nature against Ms Wilkinson arising on exchange of contracts, the mortgage would have taken priority [89]. Lady Hale does not agree that the finding of an indivisible transaction in Cann extends to the contract of sale, and to include the contract would create confusion [120]. She acknowledges that the decision on the principal ground in the appeal produces a harsh result [95] and is uneasy with the all or nothing approach of the present law. She is glad that the Law Commission is now subjecting the 2002 Act to a wide ranging review, to include the impact of fraud [122].
Very substantial judgments have been prepared in this case by Lord Walker, Lord Reed and Lord Sumption, to each of which I pay tribute. I wish in this short introduction to do two things. First, I shall say a bit about the background, to assist the reader in understanding at the outset what the issues are and to provide a guide to the passages in those judgments where they are dealt with. Second, I shall indicate briefly what my opinion is on each of them. I will however have to say a bit more about the one issue on which the court is divided: the DMG remedy/section 320 issue: see para 11, below. As it raises a question of EU law and the division of opinion shows that the answer to it is not acte clair, it is plain that it will need to be the subject of a reference to the Court of Justice for a preliminary ruling under article 267 TFEU. The proceedings As Henderson J explained at the outset of his judgment [2008] EWHC 2893 (Ch), [2009] STC 254, para 1, the Franked Investment Income (FII) Group Litigation with which these proceedings are concerned was established by a group litigation order on 8 October 2003. The test claimants are all companies which belong to groups which have UK resident parents and also have foreign subsidiaries, both in the European Union and elsewhere. In the broadest terms, the purpose of the litigation was to determine various questions of law arising from the tax treatment of dividends received by UK resident companies from non resident subsidiaries, as compared with the treatment of dividends paid and received within wholly UK resident groups of companies. The provisions giving rise to these questions related to the system of advance corporation tax (ACT) and to the taxation of dividend income from non resident sources under section 18 (Schedule D, Case V) of the Income and Corporation Taxes Act 1988 (the ICTA) (the DV provisions). The relevant provisions of the ICTA have since been amended, ACT was abolished for distributions made on or after 5 April 1999 and the DV provisions were repealed for dividend income received on or after 1 April 2009. But the problems created by their existence in the past have not gone away. The test claimants case is that the differences between their tax treatment and that of wholly UK resident groups of companies breached article 43 (freedom of establishment) and article 56 (free movement of capital) of the EC Treaty (now articles 49 and 63 of the Treaty on the Functioning of the European Union) and their predecessor articles, and that these breaches have caused them loss dating back, at least in some cases, to the accession of the UK to the European Economic Community signed at Brussels on 22 January 1972 and the introduction of ACT in April 1973. Their arguments are directed in part to issues of domestic law. But they are also directed to the extensive case law resulting from the application by the Court of Justice of the European Communities and, since the coming into force of the Lisbon Treaty, the Court of Justice of the European Union of principles of Community law to domestic tax systems, including an earlier reference in this case: Test Claimants in the FII Group Litigation v Inland Revenue Comrs (Case C 446/04) [2007] STC 326. They raise difficult issues, and very large amounts of money are at stake. Henderson J was told that the maximum amount of the claims advanced in the FII Group Litigation was of the order of 5 billion. The issues with which Henderson J had to deal were grouped by him under four headings: see [2009] STC 254, para 7. These were (1) the lawfulness of the UK rules imposing corporation tax on dividends received by UK parent companies from subsidiaries resident in other EU member states and, in some contexts, from subsidiaries in third countries, (2) the lawfulness of UK rules charging ACT on the onward distribution by UK resident companies of dividend income received from such subsidiaries, (3) the lawfulness of rules applicable to dividends payable out of distributable foreign profits which permitted an election to be made to treat such income as foreign income dividends (FIDs) and (4) a number of fundamental questions relating to remedies. He held that it followed from the judgment of the ECJ under the earlier reference that the UK rules on corporation tax on overseas dividends were not compatible with Community law as regards dividends from subsidiaries resident in other member states, and that the UK legislative scheme as regards FIDs also breached Community law. A further reference was however required in relation to two of the issues relating to liability: paras 138, 197. As for the issues relating to remedies, it was common ground that two types of restitutionary remedies are available in domestic law: a claim for restitution of tax unlawfully demanded under the principle established in Woolwich Equitable Building Society v Inland Revenue Comrs [1993] AC 70 (Woolwich), and the claim for tax wrongly paid under a mistake which was recognised in Deutsche Morgan Grenfell Group plc v Inland Revenue Comrs [2006] UKHL 49, [2007] 1 AC 558 (DMG). Henderson J held that, under the principle laid down in Amministrazione delle Finanze dello Stato v SpA San Giorgio (Case 199/82) [1983] ECR 3595 (San Giorgio), EU law required there to be an effective remedy for monies paid in respect of the tax that was unlawfully charged. The test claims were properly to be classified in English law as claims in restitution based on a mistake of law. The Woolwich cause of action (which is now time barred), for which mistake was not a necessary ingredient, was likely to play a subsidiary role in such cases: para 260. It was not open to the Revenue to rely on section 320 of the Finance Act 2004 (Section 320 FA 2004) or section 107 of the Finance Act 2007 (Section 107 FA 2007) to exclude DMG mistake claims, as these provisions purported to curtail the extended limitation period under section 32(1)(c) of the Limitation Act 1980 without notice and without providing any transitional arrangements to protect the right under Community law. But the test claimants had failed to establish any sufficiently serious breach to entitle them to damages. The case then proceeded to the Court of Appeal (Arden, Stanley Burnton and Etherton LJJ): [2010] EWCA Civ 103, [2010] STC 1251. The various issues were made the subject of an agreed list which the court amended and to which it gave numbers. They were identified in an index at the beginning of the judgment, to which reference may be made. Issues 1 to 10 related to liability. Issues 11 to 23 were concerned with remedy. The Court of Appeal was divided as to the meaning of para 54 of the judgment of the ECJ with respect to one of the test claimants submissions on liability, so it held that a reference should be made on that issue. On all but one of the other issues relating to liability it agreed with the judge. On four issues relating to remedy the appeal by the Revenue was allowed. Differing from the judge, it held that the Woolwich restitution remedy was a sufficient remedy as EU law does not require that there must also be a remedy based on mistake (issue 12); that the Woolwich restitution remedy met the requirements of EU law and was not affected by sections 320 FA 2004 and 107 FA 2007 (issues 20 and 21); and that section 33(2A) of the Taxes Management Act 1970 (TMA) (issue 23), which excludes relief under that section where Case V corporation tax has been paid under a mistake, applied to an assessment based on a provision that infringed Community law as a conforming interpretation could be given to it. Issue 22, as to whether section 32(1)(c) of the Limitation Act 1980 applied to a Woolwich claim, was not argued before the judge. But it was argued before the Court of Appeal, which held that it could not be given that wider meaning. Applications for permission to appeal to the Supreme Court were lodged by both parties. On 8 November 2010 the panel refused permission on the issue as to which the Court of Appeal decided that there should be a reference, and it remitted another issue relating to liability to the management judge to frame a reference on that point also. The time limit for making an application for permission on a number of other issues, including issue 22, was extended until the references had been determined by the ECJ and its rulings applied by the Court of Appeal. But permission to appeal was given on four issues relating to remedy: issues 12, 20, 21 and 23. Shortly before the hearing of the appeal permission was given to the claimants for issue 22 to be argued also. The issues The parties are agreed that the issues in the appeal are best expressed as follows: (1) Could Parliament lawfully curtail without notice the extended limitation period under section 32(1)(c) of the Limitation Act 1980 for the mistake cause of action (section 320 FA 2004) and cancel claims made using that cause of action for the extended period (section 107 FA 2007)? In particular: (a) Would a Woolwich restitution remedy be a sufficient remedy for the repayment claims brought on the basis of EU law (Court of Appeal issue 12)? (b) Whether or not a Woolwich restitution remedy would be a sufficient remedy, does EU law protect the claims which were made in mistake; and, specifically, did the curtailment without notice of the extended limitation period for mistake claims (section 320 FA 2004) and the cancellation of such claims in respect of the extended period (section 107 FA 2007) infringe the EU law principles of effectiveness, legal certainty, legitimate expectations and rule of law (Court of Appeal issues 20 and 21)? (2) Are the restitution and damages remedies sought by the test claimants in respect of corporation tax paid under section 18 (Schedule D, Case V) of the ICTA 1988 excluded by virtue of the statutory provisions for recovery of overpaid tax in section 33 of the Taxes Management Act 1970 (Court of Appeal issue 23)? To that there must be added the following: (3) Does section 32(1)(c) of the Limitation Act 1980 apply to a claim for a Woolwich restitution remedy (Court of Appeal issue 22)? As Lord Walker explains in para 35 below, a further issue became apparent as the parties submissions on issues 12, 20 and 21 have developed which can be expressed as follows: (4) Does the Woolwich restitution remedy apply only to tax that is demanded by the Revenue, and not to tax such as ACT which is payable on a return; and, if so, what amounts to a demand? In the judgments that follow: a. Issue (4), above, the question whether a Woolwich claim arises only where a demand has been made by the Revenue, is dealt with by Lord Walker in paras 64 83 and by Lord Sumption in paras 171 174. b. Issue (3), above (Court of Appeal issue 22), as to whether section 32(1)(c) of the Limitation Act 1980 should be widely construed so as to give a Woolwich restitution remedy the benefit of the extended limitation period, is dealt with by Lord Walker in paras 42 63 and by Lord Sumption in paras 177 185. c. Issue (2), above (Court of Appeal issue 23), as to whether section 33 of the TMA is incompatible with EU law because it excludes the test claimants right of action at common law, is dealt with by Lord Walker in paras 116 119 and by Lord Sumption in paras 204 205. I agree, for all the reasons they give, that each of these three distinct issues should be answered in the negative. I would uphold the judgment of the Court of Appeal on issues (3) and (4) and, because it should not be read as excluding rights of action for the recovery of tax charged contrary to EU law, I would allow the appeal on issue (2) as to the meaning of section 33 of the TMA. The DMG remedy/section 320 issue The remaining issue (issue (1), above) is an issue of EU law. The background is provided by the ruling of the Grand Chamber that it is for the domestic legal systems of each member state to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, and that the national courts and tribunals before which claims are brought are obliged to ensure that individuals should have an effective legal remedy enabling them to obtain reimbursement of the tax unlawfully levied by a member state or withheld by it directly against that tax: Test Claimants in the FII Group Litigation v Inland Revenue Comrs (Case C 446/04) [2007] STC 326, paras 202 203. It follows from the answers given to issues (3) and (4) that this issue must be approached on the basis that a Woolwich claim would have been available had it been brought in time. But it has been excluded by the expiry of the limitation period. The test claimants are left therefore with their DMG mistake claim. It has the benefit of the extended limitation period, but the Revenue say that it has been excluded by section 320 FA 2004 and section 107 FA 2007. As Lord Walker explains in para 38, the question is whether EU law requires only that the member state must make available an adequate remedy which meets the principles of effectiveness and equivalence, or whether it requires every remedy recognised in domestic law to be available so that the taxpayer may obtain the benefit of any special advantages that this may offer on the question of limitation. The position in domestic law is not now in doubt. In DMG it was held that the taxpayer was entitled to take advantage of the remedy which was most advantageous to him. The fact that a Woolwich claim was not available because it was subject to a shorter limitation period did not prevent him from pursuing his mistake claim if his interests were best suited by doing so. This issue can be broken down into three questions: (1) would Woolwich on its own provide a remedy for the test claimants San Giorgio claims which satisfies the requirements of the EU principles of effectiveness and equivalence? (2) were those principles, and the principle which protects legitimate expectations, infringed by section 320 FA 2004, which curtailed without notice the extended limitation period for mistake claims? (3) were these principles infringed by the retrospective cancellation of such claims by section 107 FA 2007 in respect of the extended period? Lord Walker and Lord Sumption are agreed that section 107 FA 2007 was contrary to EU law, although they do not reach that conclusion by the same route. This is because they disagree on the primary issue as to whether Woolwich on its own was sufficient to meet the requirements of effectiveness and equivalence. Having reached the view that it was not, Lord Walker holds that section 320 FA 2004 was not compatible with EU law as it infringed those principles and maybe that it infringed the principle of legitimate expectations too: para 114 115. Lord Sumption disagrees. He holds that the Woolwich remedy on its own with a normal limitation period was an effective way of asserting the test claimants EU right, that there was no obligation on the UK to maintain a concurrent right and that, for this reason and because the test claimants could not have had a legitimate expectation that they would have the benefit of the extended limitation period, section 320 FA 2004 was lawful: paras 198 202. But, because the circumstances had changed and they had acquired a legitimate expectation by 2006, it was contrary to that principle for that expectation to be defeated by section 107 FA 2007. Like Lord Walker (see para 115), I agree with Lord Sumptions reasoning in para 203 as to section 107 FA 2007. On the primary issue however, like Lord Reed, I agree with Lord Walker. I would take as my starting point the fact that in domestic law two types of restitutionary remedies are available and that the taxpayer is entitled to take advantage of the remedy that is most advantageous to him: a claim for restitution of tax unlawfully demanded under the principle established in Woolwich, and the claim for tax paid under a mistake of law which was recognised in DMG. It is, of course, true that DMG had not yet reached the House of Lords when section 320 FA 2004 was enacted. But the common law rule that money which had been paid under a mistake of law was not recoverable had already been rejected. It was rejected in Scotland in Morgan Guaranty Trust Co of New York v Lothian Regional Council 1995 SC 151, for reasons that were special to Scots law, and in South Africa in Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202. But it had also been rejected by the common law in Canada: see the dissenting opinion of Dickson J, with which Laskin CJ agreed, in Hydro Electric Commission of Township of Nepean v Ontario Hydro [1982] 1 SCR 347, 357 370. Dickson Js opinion was adopted by La Forest J, with whom Lamer, Wilson and LHeureux Dub agreed on this point, in Air Canada v British Columbia [1989] SCR 1161. The same result was reached in Australia in David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353. Then in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 the House of Lords held that the rule could no longer be maintained, and that it should be recognised that there was a general right to recover money paid under a mistake, whether of fact or law. It was contended for the Inland Revenue Commissioners in DMG that the general right of recovery did not apply in the case of payments made under a mistake of law to the revenue. But this topic had already been the subject of comment by one of the most distinguished and influential scholars on the law of restitution, the late Professor Peter Birks. He declared that, unless displaced by statute, causes of action good against private citizens are no less good against public bodies: see his essay (in the volume Essays on Restitution (1990), edited by Professor P D Finn) entitled Restitution from the Executive: a Tercentenary Footnote to the Bill of Rights, at p 174. He also made the point that, if in Woolwich the building society had made a mistake of fact, it would undoubtedly have entitled the society to restitution of the money it paid to the revenue in consequence of its mistake, just as it plainly would have been had the transaction been with a private citizen. The decision of Park J at first instance in DMG [2003] 4 All ER 645, [2003] STC 1017, in which he upheld the taxpayers claim for repayment of tax wrongly paid under a mistake of law with an extended limitation period, should be seen against this background. As Henderson J observed in para 406 of his judgment, it was not possible to predict with any confidence what the outcome would be of the appeals in DMG that were to follow. But I think that it would be going too far to say that Park Js judgment was bound ultimately to be set aside. The fact that on 8 September 2003, less than two months after Park Js judgment was delivered on 18 July 2003, the Paymaster General announced the introduction of what was to become section 320 FA 2004, and said that it was to affect proceedings issued on or after that date, suggests that the revenue had at least some expectation that it would not be successful in achieving that result. Like Lord Walker (see para 108), I think that the suggestion that the Court of Appeals decision was just a bump in the road understates the strength of the arguments in support of its appeal. But I cannot agree with Lord Sumption (see paras 200 201) that it was unrealistic for there to have been a reasonable expectation by that date that the right of recovery on the ground of mistake with an extended limitation period would be upheld. My own view lies between these two extremes. I share Lord Walkers view that it would have been helpful to have had the view of the judge on this issue: para 112. But I also think that in para 243 Lord Reed has identified the right way to look at it, which does not require anything more than we already know. One must ask oneself what the test claimants were entitled to expect when they made their claims based on mistake. There was no certainty at that time when section 320 FA 2004 was enacted that their claims based on mistake would succeed. But those claims were undoubtedly arguable, as the subsequent ruling by the House of Lords in DMG [2007] 1 AC 558 made clear. They were entitled to expect that the question whether their claims based on mistake were well founded would be decided by the courts, as there was a real issue to be tried. They were also entitled to expect, according to the principle of legal certainty, that this entitlement would not be removed from them by the state by the introduction without notice of a limitation period that was not fixed in advance: see ACF Chemiefarma v Commission of the European Communities (Case 41/69) [1970] ECR 661, para 19; Marks & Spencer plc v Customs and Excise Comrs (Case C 62/00) [2003] QB 866, para 39. The crucial question, however, is whether the retrospective application of that limitation period to claims based on mistake was in conformity with the principles of equivalence and effectiveness, as explained by the Grand Chamber in its judgment in these proceedings: Case C 446/04 [2007] STC 404, para 203. I accept, of course, that the Woolwich remedy on its own was an effective way of vindicating the San Giorgio right. But what about the principle of equivalence which, as Lord Reed points out in para 218, is a complementary requirement? The Woolwich remedy was not the only remedy in domestic law, as it was held in DMG that a taxpayer who wrongly paid tax under a mistake of law is entitled to a restitutionary remedy against the revenue. The theory is that judicial decisions must be taken to declare the law that applies to the case with retrospective effect, whenever the events that gave rise to the claim occurred. So, in the events that have happened, the DMG remedy must be taken to have been always available. It is not just a mirror image of the remedy that is afforded under Woolwich. Both remedies lead to the same result. But they are different remedies founded upon different principles and they are subject to different limitation periods. There may be other differences, depending on the facts and circumstances of each case. There is no obvious way of deciding which of these two remedies must be adopted if only one can be allowed. Is it to be held the claimant is under an obligation, if both are available, to select the remedy which best suits his opponent? This would be an odd result, as I said in DMG [2007] 1 AC 558, para 51. For the reasons which I gave in that paragraph, I think that domestic law must reject this idea because it has no basis in principle. In fairness, the claimant ought to be free to choose the remedy that best suits his case. The principle of equivalence requires that the rules regulating the right to recover taxes levied in breach of EU law must be no less favourable than those governing similar domestic actions. So it seems to me that it must follow, if the means of recovering of taxes levied contrary to EU law are to match those in domestic law, that both remedies should be available. Conclusion For these reasons, and those given more fully by Lord Reed, I agree with Lord Walkers analysis. I would hold that Parliament could not lawfully curtail without notice the extended limitation period under section 32(1)(c) of the Limitation Act 1980 for the mistake cause of action by section 320 FA 2004. I agree with both Lord Walker and Lord Sumption that it could not cancel claims made using that cause of action for the extended period by section 107 FA 2007. The question whether there was a legitimate expectation of bringing an action of the kind that was excluded by that section does not raise any issue of EU law. So I do not think that there are grounds for seeking a reference on that point. I recognise however that, as there is a division of opinion among us as to whether EU law requires that both remedies should be available to the test claimants so that they can choose the remedy that best suits their case for reimbursement, the answer to that question cannot be regarded as acte clair. I would therefore invite the parties to prepare in draft the question or questions on which they suggest a preliminary ruling should be sought from the CJEU, and a brief note of the submissions that each party would wish to be included in the reference. I would also invite their views as to whether this reference should be combined with the references that are to be made on the other issues, or whether it should be submitted separately. LORD WALKER Introduction This appeal is a further stage, but by no means the last stage, in complex and protracted group litigation, designated as Test Claimants in the FII [franked investment income] group litigation. In this group litigation, and other parallel group litigation proceedings, numerous issues have been raised as to whether features of the UK corporation tax regime infringe EU law, and as to the remedies available to companies which claim to have been financially disadvantaged in various ways by such infringements. These proceedings have already resulted in two references to the Court of Justice. Since the Court of Justices judgment on the first reference ((Case C 446/04) [2007] STC 326), all the issues as to infringement have been considered by Henderson J [2008] EWHC 2893 (Ch), [2009] STC 254 and by the Court of Appeal [2010] EWCA Civ 103, [2010] STC 1251. Some have been decided and are no longer in dispute. In particular, it is now common ground that corporation tax measures relating to advance corporation tax (ACT) and foreign income dividends (FIDs) infringed former article 43 (freedom of establishment) and former article 56 (free movement of capital) of the EC Treaty, now articles 49 and 63 of the Treaty on the Functioning of the European Union. Other points have been made the subject of a second reference to the Court of Justice. On yet further points this court has extended time for an application for permission to appeal. One of these is the concurrent finding of the courts below that the infringements which have been established did not amount to grave and manifest breaches of EU law so as to give rise to a claim for damages on the principles in Brasserie du Pecheur SA v Federal Republic of Germany (Joined Cases C 46/93 and C 48/93) [1996] QB 404. It is now clear that, apart from any possible claim for damages, the claims to be met by HM Revenue and Customs (HMRC, so as to include its predecessors) are restitutionary in nature. Some are straightforward claims for recovery of tax which the claimants paid when it was not due. Other claims are for less direct losses which the claimants say they sustained in consequence of the non compliance of the corporation tax system with EU law. In relation to restitutionary relief for both the direct and the indirect losses there are important differences between the parties as to the characterisation of the remedies available to the claimants as a matter of English law. There are also important differences as to how far EU law requires the full range of domestic remedies to be made available for the recovery of unduly paid tax, despite parliamentary intervention (in the form of section 320 of the Finance Act 2004 and section 107 of the Finance Act 2007) to curtail those remedies drastically and with retroactive effect. Those two provisions (the statutory cut off provisions) are challenged as infringing EU law. That is a brief sketchy overview of the significance of this appeal in the context of the larger campaign of the FII group litigation. Except in relation to the statutory cut off provisions the Supreme Court does not on this appeal have to revisit any issue as to infringement of EU law. But it is appropriate to give a brief explanation of the ACT system, now abolished, that gave rise to the substantive infringements. A much fuller explanation can be found in the first instance judgment of Henderson J [2009] STC 254, paras 12 to 28. This draws on the first order for reference to the Court of Justice made by Park J on 13 October 1994. Since his retirement Sir Andrew Park has himself given an objective account of the progress of several of the associated sets of group litigation in A Judges Tale: Corporation Tax and Community Law [2006] BTR 322. The ACT system Corporation tax was introduced in the UK in 1965. At first the system was a classical system, with full double taxation of company profits and non corporate shareholders dividends. In 1973 the system changed to one of partial imputation. When a UK resident company paid a dividend it was required (by way of self assessment) to pay an amount of ACT equal to the mainstream corporation tax (MCT) payable on the part of its profits distributed as dividend. A non corporate shareholder became entitled to a tax credit equal to the ACT paid in respect of his dividend. A UK resident corporate shareholder receiving a dividend from another UK resident company received it as franked investment income (FII), and if it both received and paid dividends, ACT was payable only on the excess of its outgoing franked payments over its FII. The position was different if a UK resident company received a dividend from a non resident company in which it was a shareholder. That was so whether or not the two companies were part of a group, but this group litigation, and the parallel ACT group litigation, have both been concerned with groups of companies. Most of the test claimants in this litigation are members of the British American Tobacco (BAT) group. In para 2 of his judgment Henderson J gave a concise explanation of this group litigation as compared with the ACT group litigation: Whereas the focus of the ACT Group Litigation was on the UK domestic legislation which prevented UK resident subsidiaries of foreign parents from making group income elections, thereby obliging them to pay ACT when paying dividends to their foreign parents, the focus of the FII Group Litigation has been on UK parented groups with foreign subsidiaries, and on the tax treatment of dividends coming into the UK from abroad. At the simplest level, therefore, the present litigation is concerned with factual situations which are the opposite of those which gave rise to the questions considered in Hoechst [Metallgesellschaft Ltd v Inland Revenue Comrs, (Joined Cases C 397/98 and C 410/98) [2001] Ch 620] and the ACT Group Litigation. Since 1973 the BAT group has gone through various structural changes (summarised in paras 1.8 to 1.21 of an agreed statement of facts set out in para 29 of the judges judgment) but it has always had as its ultimate holding company a UK resident company whose shares are listed and whose thousands of shareholders expect to receive regular dividends. After 1973 the BAT group (in common with many large multinational groups) faced a difficulty in that when it received dividends from overseas subsidiaries it did not receive a tax credit that could be used to eliminate or reduce ACT payable in respect of its dividends to its shareholders. The overseas dividends were not FII. Although the UK resident company was entitled to double taxation relief against MCT (in the form of a credit against foreign taxes paid by the subsidiary), it still had to pay ACT. If relatively little MCT was payable (because of double taxation relief) the ACT became surplus and of little or no utility to the holding company. A UK resident company with overseas subsidiaries (whether resident within or outside the EU) was therefore at a disadvantage, and articles 43 and 56 of the Treaty were infringed. The other test claimants are members of the Aegis group, another multinational group whose holding company is based in the UK. These claimants have been included because they are (and claimants in the BAT group are not) affected by section 320 of the Finance Act 2004. The ACT regime was in force from 1973 to 1999. Its disadvantages for multinational groups were to some extent mitigated by provisions as to foreign income dividends (FIDs) which were in force from 1994 to 1999. A UK resident company receiving dividends from non resident companies could elect that dividends paid to its shareholders should be treated as FIDs. The effect was that ACT was still payable, but would in some circumstances be repaid after an interval, normally of a duration of between eight and a half months and seventeen and a half months. There is a fuller explanation of the law in paras 23 to 25 of the judges judgment, and of the facts as to FID enhancements in paras 277 to 302. The principal statutory provision giving a tax credit on qualifying distributions between UK resident companies was section 231 of the Income and Corporation Taxes Act 1988 (TA 1988). Issue 6 before the Court of Appeal was whether section 231 could be interpreted, under the Marleasing principle (Marleasing SA v La Comercial Internacional de Alimentacin SA (Case C 106/89) [1990] ECR I 4135) so as to be compatible with EU law. The Court of Appeal held that it could be interpreted in that way. That is however an issue on which this court has deferred a decision on permitting a further appeal. The uncertainty as to section 231 is a further complication in clarifying the issues that are before the court on this appeal. The issues The Supreme Court gave permission to appeal on four of the 23 issues identified by the Court of Appeal (and set out in the index to its judgment, [2010] STC 1251). This permission was later extended to cover a fifth issue, numbered 22 in the Court of Appeals judgment, that is the correct construction and scope of section 32(1)(c) of the Limitation Act 1980. The other four issues covered by the formal order granting permission to appeal are wholly or largely questions of EU law, and the impact of EU law on domestic rights and remedies: that is (issue 12) remedies in English law; (issues 20 and 21) the compatibility with EU law of the statutory cut off provisions; and (issue 23) whether section 33 of the Taxes Management Act 1970 (as amended) provides an exclusive code for recovery of tax mistakenly paid under an assessment, and the impact on that section of EU law. However, as the parties written and oral submissions have developed it has become apparent that there is another wholly domestic issue of central importance to the appeal. The Court of Appeal differed from Henderson J as to whether the principle in Woolwich Equitable Building Society v Inland Revenue Comrs [1993] AC 70 (Woolwich) applies only to tax that is demanded by revenue authorities (and if so, what amounts to a demand). For the appellants Mr Aaronson QC took the lead in making submissions on issues of EU law, followed by Mr Rabinowitz QC on issues of English law. This sequence of argument may have been unavoidable, but it produced the result that the court heard submissions about the attitude of EU law towards national procedures and remedieswhich is an important part of this appealbefore hearing submissions about the English remedies themselves. It is more helpful to start with the issues of English law, and then assess the impact that EU law has on them. So this judgment proceeds to consider (i) the scope of section 32(1)(c) of the Limitation Act 1980 and (ii) the scope of the decision in Woolwich, before addressing the effect of EU law. It may not be immediately apparent why these two domestic issues have assumed such significance, so a brief explanation is called for. The reason is certainly not the disinterested and scholarly interest of the parties, or either of them, in the development and clarification of English private law. That is apparent from another of the group litigation proceedings, NEC Semi Conductors Ltd and Other Test Claimants v Inland Revenue Comrs [2006] EWCA Civ 25, [2006] STC 606 (NEC), in which (at paras 140 to 147) the claimant companies and HMRC (through counsel, most of whom have appeared on this appeal) made submissions on the Woolwich issue to the contrary effect, in each case, to those they have made on this appeal. These tactical shifts have occurred because, naturally enough, each side wants to win, by any proper line of argument, because of the very large sums of money at stake. The main issue of EU law to be decided can be put, in a very simplified (but not, it is to be hoped, tendentious) form, as follows. When in any member state tax has been paid which was not due because the national taxing measure infringed the Treaty, must the member state make available to its aggrieved taxpayer (i) an adequate remedy which meets the principles of effectiveness and equivalence; or (ii) every available national remedy, including any that offers the taxpayer special advantages as regards limitation of actions? At first glance the Woolwich principle provides an adequate remedy, subject to a six year limitation period unaffected by the statutory cut off provisions. Similarly at first glance mistake of law, following the decision of the House of Lords in Deutsche Morgan Grenfell Group Plc v Inland Revenue Comrs [2007] 1 AC 558 (DMG), provides a specially advantageous basis of claim because of the possibility of an extended limitation period under section 32(1)(c) of the Limitation Act 1980, but subject to the statutory cut off provisions (if and so far as valid under EU law). But if the test claimants have no Woolwich claim, because as a matter of law such a claim requires an unlawful demand, and there was no such demand, mistake of law would be promoted, as it were, to being the only remedy available under national law, and so to being more surely entitled to protection under EU law. So it is expedient for the test claimants in this appeal to reverse the stance taken by the test claimants in NEC and argue that the Woolwich principle does not extend to self assessed taxes, for which there is no official demand. The issue on section 32(1)(c) of the Limitation Act 1980 is part of an alternative line of argument by which the test claimants seek to promote the mistake of law claim and so ensure its protection under EU law. They submit that section 32(1)(c) should be widely construed, contrary to the authority of Phillips Higgins v Harper [1954] 1 QB 411, a first instance decision which has however stood and been followed for over half a century. They submit that section 32(1)(c) is applicable, regardless of the cause of action, wherever there is a causally relevant mistake. In the words of Mr Rabinowitz (day 2, page 80), The mistake element does not have to be a necessary part of the cause of action, so long as the mistake is materially causal or causally material in producing the circumstances from which relief is sought. So this is an alternative method by which the test claimants seek to saw off the apparent support of the Woolwich branch in order to rely on mistake of law alone. It seems very doubtful, even if their argument on section 32(1)(c) is sound, whether the claimants aim would be achieved. In other, more mainstream parts of their argument they rely heavily on the principle (reasserted in this context by the House of Lords in DMG [2007] 1 AC 558) that English law permits litigants to choose, as between concurrent causes of action, the cause or causes of action most advantageous to their interests. The test claimants have done so. In the amended particulars of claim of the BAT group, paras 15 and 15A, they have clearly and distinctly relied on two separate causes of action in unjust enrichment, that is (para 15) payment of tax unduly levied and (para 15A) payment under a mistake. Section 32(1)(c) is relied on in relation to mistake claims only (paras 18, 18A and 18B). The position is the same on the Aegis groups pleadings. The statutory cut off provisions (the essential text of which is set out at paras 107 and 109 below) do contain (in section 320(6) and section 107(2)) wide language extending the scope of the sections to actions not expressed to be brought on the grounds of mistake. So the apparently self inflicted injury which the test claimants invite would seem to require an amendment to the pleadings, and even then (if the section 32(1)(c) argument succeeds) the Woolwich claim would remain with a six year limitation period, which is what it has always been assumed to have. Nevertheless, the section 32(1)(c) point is an important point of law that has been fully argued, and so it should be addressed. Section 32(1)(c) Section 32(1) of the Limitation Act 1980 provides: Subject to [provisions not now material], where in the case of any action for which a period of limitation is prescribed by this Act, either (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiffs right of action has been deliberately concealed from him by the defendant; or the action is for relief from the consequences of a mistake; (c) the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include references to the defendants agent and to any person through whom the defendant claims and his agent. It replaces (with a minor amendment to section 32(1)(b)) provisions first enacted in section 26 of the Limitation Act 1939, in which section 26(c) was in the same terms as section 32(1)(c). The change in the law made in 1939 was recommended by the Law Review Committee (chaired by Lord Wright MR) in its Fifth Interim Report, (Statutes of Limitation) (1936) (Cmd 5334). Indeed the expression relief from the consequences of a mistake appears three times in para 23 of the report, dealing with this topic. The recommendation was that in such cases the equitable rule (that time should run only from when the mistake was, or could with reasonable diligence have been, discovered) should apply to claims which were formerly within the exclusive jurisdiction of common law courts (as opposed to being within equitable or concurrent jurisdiction). The previous state of the law was established by the decision of Hamilton J (later Lord Sumner) in Baker v Courage & Co [1910] 1 KB 56. The facts were that the plaintiff was the former owner of a public house who had in 1896 been mistakenly overpaid by 1,000 on the sale of his leasehold public house to the defendants, who were brewers. The plaintiff then deposited 9,000 at interest with the defendants. In 1909 he wished to withdraw the last of the deposit (standing, as it happens, at 1,000) but the defendants, on reviewing the position, discovered their mistake and refused to return the money. When sued they pleaded set off and made a counterclaim, both of which were opposed as statute barred. Hamilton J referred (at p 62) to the purely equitable claim made in Brooksbank v Smith (1836) 2 Y & C Ex 58, a decision of Alderson B sitting in the equity side of the Court of Exchequer. Hamilton J said that Brooksbank v Smith was a case to which the Statute of Limitations did not apply; and the rule which was there laid down was one which in my opinion cannot be transferred to cases like the present, to which the statute does directly apply. In dealing with the latter class of cases, Courts of Equity were just as much bound by the statute as were Courts of Common Law. In any event, he went on, the brewers had had the means of knowing the truth throughout, if they had chosen to look at the sale contract and examine their books of account. He also rejected a second contention that time did not start to run until notice of the mistake (that is, the overpayment of 1,000 in 1896) had been given to the plaintiff and a demand had been made. It is common ground that section 26(c) of the Limitation Act 1939 was intended to reverse the first point of principle (though not, on the facts, the result) in Baker v Courage & Co. The issue is how much further the change in the law was meant to go. The leading case on that point is the decision of Pearson J in Phillips Higgins v Harper [1954] 1 QB 411. It was fully argued, and the argument is fully reported. Professor Andrew Burrows has noted that there was an unsuccessful appeal on the facts by the defendant, briefly reported at p 420, but no cross appeal on the limitation point. The decision of Pearson J has been followed by the Court of Appeal, apparently with little or no oral argument on the point, in Malkin v Birmingham City Council (unreported) 12 January 2000, a claim for breach of statutory duty. The judgment of the Court of Appeal in this case recorded [2010] STC 1251, para 242 that Mr Ewart (for HMRC) very generously did not submit that the Court of Appeal was bound by Malkin. In any event the Court of Appeal, after full argument, accepted Phillips Higgins and Malkin as correct. It did so after considering the history and language of section 32(1)(c), and the reasoning in the judgment of Pearson J (a long passage from which is set out at para 240). But for the general importance of the point, it might be sufficient to say that the Court of Appeal was right, and for the right reasons. Phillips Higgins v Harper was an action by a woman solicitor who had been employed as an assistant by a sole practitioner, Mr Harper, between 1938 and 1950, when she became a salaried partner. Her employment was, on her case, at a basic salary supplemented by an annual sum to bring her total remuneration up to one third of the net profits of Mr Harpers practice. Mr Harper contended that (until 1948) the bargain was to supplement her remuneration to one quarter of the net profits as determined by his accountant, and he pleaded the Limitation Act 1939. The judgment is reported verbatim only on this point, but it is recorded (at p 413) that Pearson J found: (1) that the original fraction of the relevant profit figure to which the plaintiff was entitled was one third, and that that fraction had been reduced to one quarter by the defendant by private instructions to his accountant and that the plaintiff did not know and did not consent to the reduction; (2) that the plaintiffs contention as to the relevant profit figure was correct; and (3) that there had been no intention on the part of the plaintiff to agree the accounts over the material period and that therefore they had not been agreed and settled. Mr Harpers position was therefore deeply unattractive. But the plaintiff was not mistaken about the bargain; her mistake was in believing that Mr Harper and his accountant were giving proper effect to it. As the judge hinted at p 418, the plaintiff might possibly have done better to rely on section 26(b), since although at that time it required fraudulent concealment, that expression was interpreted fairly broadly. For present purposes the crucial passage is earlier on p 418. It is part of the passage quoted by the Court of Appeal, but it bears repetition: What, then, is the meaning of provision (c)? The right of action is for relief from the consequences of a mistake. It seems to me that this wording is carefully chosen to indicate a class of actions where a mistake has been made which has had certain consequences and the plaintiff seeks to be relieved from those consequences. Familiar examples are, first, money paid in consequence of a mistake: in such a case the mistake is made, in consequence of the mistake the money is paid, and the action is to recover that money back. Secondly, there may be a contract entered into in consequence of a mistake, and the action is to obtain the rescission or, in some cases, the rectification of such a contract. Thirdly, there may be an account settled in consequence of mistakes; if the mistakes are sufficiently serious there can be a reopening of the account. All these are examples of relief which removes or mitigates the adverse consequences to the claimant of the mistake, while respecting the position of the defendant where justice so requires (for instance by the defence of change of position where money has been paid under a mistake, or the requirement for restitutio in integrum where rescission is granted). It is an important but still relatively narrow category of causes of action, and much narrower than that for which Mr Rabinowitz has contended. Mr Rabinowitz was critical of the decision of the Court of Appeal as having paid insufficient attention to the statutory language and the traditional equitable rules, and too much attention to the report of the Law Revision Committee. In his reply (day 5, page 136) he invited the court to read the first sentence of para 23 of the report as if it had contained a parenthesis, saying: Where mistake is not an essential part of the claim because we know thats what the equitable rule is. In support of this he relied on Brooksbank v Smith (1836) 2 Y & C Ex 58 and Denys v Shuckburgh (1840) 4 Y & C Ex 42, another decision of Alderson B sitting in the equity side of the Court of Exchequer. As to the statutory language, the criticism is in my view misplaced. The Court of Appeal cited and agreed with Pearson Js view that the wording is carefully chosen to indicate a category of actions with particular characteristics. As to the report of the Law Revision Committee, it showed (as would be expected of its distinguished membership) a full awareness of the historical background. The parenthesis suggested as a gloss by Mr Rabinowitz is not borne out by the example that comes at the end of the first sentence of para 23, that is money or property transferred under a mistake, where the mistake is an essential part of the claim, and would have to be pleaded with some particularity. The authorities cited by Mr Rabinowitz do not support the wide equitable jurisdiction for which he contended. Brooksbank v Smith 2 Y & C Ex 58 was about a will trust. The testatrix died in 1818 leaving a fund in trust, subject to a life interest, for her children in equal shares, with substitutional gifts if any child predeceased her leaving issue. Her daughter Elizabeth did predecease her by two months, but on the death of the life tenant in 1827 the trustees were given incorrect information about the date of Elizabeths death and her share (1,000 nominal of stock) was transferred to her widower instead of to her children. When the mistake was discovered in 1833 the trustees claimed 100 stock (which was all that remained unsold) from Elizabeths widower. The bill was issued within six years of discovery of the mistake. Alderson B held that the claim was not statute barred. He treated it as a proprietary claim based on a mistake of fact. Denys v Shuckburgh 4 Y & C Ex 42 was similar, though the facts were more complicated. Under a marriage settlement made in 1793 Earl Pomfret settled two quarter shares in some lead mines in Yorkshire on trusts under which he had both an immediate life interest and an ultimate reversion (with intermediate trusts that in due course failed). In 1813 the Earl (whose marriage was childless and ended in judicial separation) sub settled (but only during his own lifetime) one quarter share on his sister, Lady Caroline, and another on her son William. Lady Caroline owned another quarter share of the mines in her own right. In 1826 the Earl assigned the whole of his reversionary interest to William. On the Earls death in 1830 no one adverted to the fact that the 1813 sub settlement then came to an end, and the right to income from one quarter share of the mines passed from Lady Caroline to her son William. He went abroad in 1832 and Lady Caroline died in 1835. The mistake was not discovered until 1839, when William brought a bill against his mothers estate to recover arrears of income. Alderson B stated the principle at, p 53: The plaintiff contends, that he has established that this receipt has been by mistake of fact, and that this is on the same footing as fraud, and prevents the operation, if made out, of the Statute of Limitations; which in equity is adopted as a guide, but is not at law binding on the court. I agree in that conclusion, if the circumstances of the case warrant it. But here, it seems to me, that the plaintiff had the means, with proper diligence, of removing the misapprehension of fact under which I think he did labour. He had in his power the deed on which the question turns; and, although it is perhaps rather obscurely worded, still I think he has allowed too much time to elapse not to be fairly considered as guilty of some negligence; and a Court of Equity, unless the mistake be clear, and the party be without blame or neglect in not having discovered it earlier, ought, in the exercise of a sound discretion, to adopt the rule given by the statute law as its guide. He also referred, during counsels argument, to the position at common law. As it happened part of the misapplied income was represented by identifiable lead ore stored at Richmond. When counsel for the plaintiff argued that Lady Caroline became liable to an action for money had and received only when she sold the lead, Alderson B commented, at p 48: If she sold the lead and received the produce, you might have waived the tort, and brought an action for money had and received. But then the Statute of Limitations runs from the conversion, and not from the time of receiving the money. These authorities were cited to Warrington J in In Re Robinson [1911] 1 Ch 502. There the mistake was on a fairly arcane point of law, that an entail created by royal grant as a reward for services cannot be barred: Robinson v Giffard [1903] 1 Ch 865. That decision showed that deeds executed over 40 years before and intended to bar an annuity granted in tail by King Charles II were ineffective. The claim was to recover arrears of the annuity. Warrington J identified, at p 513 three types of case where there is no time bar for recovery of mistaken payments by trustees: (1) when an estate is being administered by the court; (2) proprietary claims to recover identifiable trust assets or their traceable proceeds; and (3) claims against third parties in knowing receipt of trust property. By contrast the claim before him: is in substance a mere money demand to which a Court of Equity, acting by analogy to the statute, would apply the same period of limitation. I think, therefore, that the plaintiffs claim is barred by the statute, and that the action fails. The analysis in In Re Robinson was followed by Romer J in In Re Mason [1928] Ch 385 and approved by the Court of Appeal on appeal in that case [1929] 1 Ch 1. That was a claim, brought after a very long lapse of time, to recover an estate that had been taken by the Crown as bona vacantia. In the Court of Appeal Lord Hanworth MR distinguished, at p 9, between the discovery of a mistake which was a cause of action and discovery of the evidence needed to prove the cause of action. He said: It is suggested by Miss Mason that it is only when she found proof of the marriage of Maria LEpines parents that she was entitled to bring this claim. A confusion seems to have arisen between the power to prove a claim and the right to bring it. The cause of action on which this claim is founded arose so far back as one of the three dates I have mentioned, 1798, 1801 or 1831, and the last of these dates is nearly 100 years ago. The fact that the useful evidence did not turn up until 1921 does not affect the date when the cause of action arose. In re Blake [1932] 1 Ch 54 was another bona vacantia case, though the interest had been assigned by the Crown to third parties. Maugham J stated, p 60: An action in the Chancery Division brought by the next of kin against a person to whom the administrator had wrongly paid part of the personal estate of the intestate under a mistake of fact (not joining the administrator and seeking administration) would be in the nature of a common law action for money had and received, and the Court acting on the analogy of the Statute of James I (21 Jac 1, c 16) would hold the claim to be barred after the lapse of six years from the date of payment: see In Re Robinson [1911] 1 Ch 502, where the law is elaborately explained by Warrington J, and In Re Mason [1928] Ch 385; [1929] 1 Ch 1. A common law action of the same character, assuming that such an action would lie, would also be barred by the same statute after the expiration of six years from the date of payment: Baker v Courage & Co [1910] 1 KB 56, 63. On the other hand there is no doubt that in a proper case the next of kin might bring an action in the Chancery Division to follow the trust property if the defendant to whom the administrator had paid it were still in possession of it. The last relevant authority is an obiter passage in the monumental judgment of the Court of Appeal in In Re Diplock [1948] Ch 465. It was concerned with both personal and proprietary claims against numerous charities. The claims arose in consequence of the executors calamitous distribution of the testators valuable residuary estate in the mistaken belief that it was held on a valid charitable trust. The executors had by then compromised claims against them personally. In relation to a point which was not determinative Lord Greene MR, delivering the judgment of the court, observed at pp 515 516: If [the respondent charities] seek to bring the case, for the purposes of the defence of limitation, within section 2 of the [Limitation Act 1939] and to rely upon the reasoning in In Re Blake [1932] 1 Ch 54, they must do so by averring that the cause of action is analogous to the common law action for money had and received. And if they assert the analogy, they must take it with its attributes and consequences. Beyond doubt, it would appear that in the case of an action at common law to recover money paid under a mistake of fact, section 26 would now operate to postpone the running of time. It is true that no such action would lie where the mistake is one of law: but for reasons which we have already given we do not accept the respondents contention that the analogous claim in equity will also lie only where the mistake was one of fact. In our judgment, therefore, assuming the analogy (as it must be assumed if section 2 is to apply at all) the action is one for the recovery of money paid away by mistake albeit by the mistake of other persons and by a mistake of law and in our judgment, on this assumption, is an action for relief from the consequences of mistake no less than would be an action at common law to recover money paid away under a mistake of fact. The analogy with the common law action for money paid under a mistake is a recurring feature of these authorities. Indeed, the analogy goes right back to the great case of Moses v Macferlan (1760) 2 Burr 1005, the fountain head of the English law of unjust enrichment. This has been explained in a recent article by the Hon Justice W M C Gummow of the High Court of Australia, Moses v Macferlan 250 Years On (2010) 84 Austl LJ 756, (2011) 68 Washington and Lee Law Review 881, 882 888, citing Moses v Macferlan at 97 E R 676, 679 680 and Clark v Shee and Johnson (1774) 1 Cowp 197, 199 200 for the proposition that the action for money had and received was a liberal action in the nature of a bill in equity. In the old authorities the matter is sometimes treated simply as a case of mistake, without further analysis. But in the cases where the period was or might have been extended the mistake seems to have been an essential ingredient in the cause of action. Dr James Edelman, in Limitation Periods and the Theory of Unjust Enrichment (2005) 68 MLR 848, reads Denys v Shuckburgh differently. In this he follows Franks, whose monograph on Limitation of Actions (1959) suggests, at p 206 that the decision in Phillips Higgins v Harper was too narrow: In particular it seems clear that a beneficiary under a will or trust who claims directly against a person to whom trust property has been wrongfully transferred can rely upon the mistake of the personal representative or trustee to postpone the running of time; although his cause of action rests upon his own title and the defendants lack of title to the property and the action would be just the same if the property had been transferred purposely, ie, with knowledge that the recipient was not entitled. But Franks goes on to comment that if Pearson Js view is rejected the scope of section 26 might be dangerously expanded. that mistake is not an essential allegation and adds: In a footnote to the passage about title to trust property Franks comments Indeed it may be doubted whether even in a common law action to recover money paid by mistake (ie money had and received to the use of the plaintiff) the mistake is an essential allegation though it would of course in practice be pleaded: see Bullen & Leake, 3rd ed, 45, 50; 10th ed, 227 228. This footnote may be thought to anticipate modern controversies about absence of basis in unjust enrichment. In a case like Denys v Shuckburgh 4 Y & C Ex 42 the claimants cause of action rests both on his antecedent title and on his mistake. If Lady Carolines son had known the true position throughout, but had expressly or impliedly authorised the mine manager to continue paying income to his mother, he would have had difficulty recovering the payments even within the limitation period. Doubts about Phillips Higgins v Harper have been expressed not only by Franks and Edelman but also (in a rather more muted way) in Chitty on Contracts, 30th ed (2008) para 28 088; Goff and Jones, The Law of Restitution, 7th ed (2007) paras 43 004 to 43 006, and (renamed The Law of Unjust Enrichment) 8th ed (2011) paras 31 33 to 33 36; H M McLean, Limitation of Actions in Restitution [1989] CLJ 472, 493 495. Professor Burrows in a note on DMG in the Court of Appeal is generally supportive of Phillips Higgins v Harper: (2005) 121 LQR 540, 544. In DMG in the House of Lords Lord Hoffmann and I expressed some doubts, but Lord Scott of Foscote supported Phillips Higgins v Harper: [2007] 1 AC 558, paras 22, 91, 147. Lord Hoffmann observed (para 22): The Kleinwort Benson case [1999] 2 AC 349 is recent authority for the proposition that an action for restitution of money paid under a void contract can fall within this description [for relief from the consequences of a mistake]. That does not seem to me inconsistent with the existence of the mistake not being essential to the cause of action but merely one example of a case which falls within a more general principle, just as one could have (say, for the purposes of limitation) a category called clinical negligence without implying that it is a cause of action different in nature from other kinds of negligence. That is a reminder (and in view of current debates about absence of basis a timely reminder) that cause of action can bear different meanings, depending on the context. Having considered the matter with the benefit of much fuller argument than in DMG I have reached the clear conclusion that Phillips Higgins v Harper was rightly decided, and that we should not seek to develop the law by broadening the interpretation of an action for relief from the consequences of a mistake. My reasons are essentially the same as the Court of Appeals. In summary, as to the statutory language, I agree with Pearson Js view that the words have been carefully chosen, and are more precise than some formula such as based or founded on a mistake. That is an imprecise formula, and legal scholars seem to take different views as to whether it would provide a wider or a narrower test than the words of the statute. As to history, the authorities are rather short on clear exposition of the relevant principles of equity, but on the whole they provide little support for Mr Rabinowitzs thesis. Their clearest message is the close analogy between the equitable jurisdiction and the common law action to recover money paid under a mistake. As to policy, departure from Pearson Js relatively narrow interpretation would bring a real risk (as Franks put it, at pp 206 207) that the scope of [section 32(1)(c)] might be expanded dangerously close to the basic rule of common law limitation that ignorance of the existence of a cause of action does not prevent time from running. It would be difficult to find any principled stopping place for the expansion. The leading case of Cartledge v E Jopling & Sons Ltd [1963] AC 758 (in which this point was not even faintly argued) would be seen to have missed the point. The limits (and indeed the rationale) of sections 11 and 14A of the Limitation Act 1980 would have to be revisited. Further complications would be introduced into claims for pure economic loss for breaches of professional duties of care. Any such developments are a matter for the Law Commission and for Parliament, not for this court. Must there be a demand? At first instance, Henderson J referred to the Woolwich principle in para 245 of his judgment and directed himself in these terms: Conversely, a Woolwich claim must involve, at least in some sense, the making of a demand by the Revenue, whereas there is no need for a demand in cases of [payment under a mistake]. Later in his discussion of the point he referred to the decision of the Court of Appeal in NEC [2006] STC 606, which was decided in the period between the decisions of the Court of Appeal and the House of Lords in DMG. In NEC the Court of Appeal held that since the companies in question had not made a group income election, ACT was lawfully payable, and there had been no unlawful demand (see especially the judgment of Mummery LJ at paras 152 to 162). In the present case the Court of Appeal addressed this issue at paras 152 to 174 of the judgment of the court delivered by Arden LJ. The court differed from Henderson J. It accorded great respect to the judgment of Mummery LJ in NEC but did not accept that it was a binding precedent. It also pointed out, at para 169, that Mummery LJs conclusion (in para 162 of his judgment) tended to elide two distinct issues, that is whether ACT was lawfully due and whether it was demanded. The Court of Appeal went on to reach a different conclusion. The heart of its reasoning is at paras 157 and 158: In our judgment, the judge was wrong to reject the Revenues submission that Woolwich alone provides a sufficient United Kingdom remedy for the San Giorgio claims of the claimants [Amministrazione delle Finanze dello Stato v SpA San Giorgio (Case 199/82) [1983] ECR 3595 San Giorgio]. He did so because he considered that he was bound by authority to hold that it is an essential ingredient of the Woolwich cause of action that the tax was paid pursuant to a demand. We consider that authority does not require a demand, and that it is sufficient that the state has exacted tax, which was not lawfully due, by voluntary compliance by the taxpayer with the legislative imposition of the tax. 158. As a matter of principle, we do not see why a demand should be a requirement of a Woolwich claim. The underlying principle is that the Revenue should repay tax that has been exacted without legal justification. We can see no reason why the cause of action should be confined to those taxes that are payable on demand as against those, such as VAT, that are payable without a demand. Moreover, it is impossible to see why the citizen who duly accounts for and pays, by way of example, VAT, without waiting for a demand, on the assumption that the applicable legislation is valid, should be disadvantaged as against the taxpayer who refuses to account or to pay until a peremptory demand is received. Mr Rabinowitz criticised the Court of Appeals reasoning and conclusion on the following grounds (in very brief summary): first, that it was contrary to binding authority, that is the decisions of the House of Lords in Woolwich and DMG; second, that it was contrary to what he described as the conventional understanding of Woolwich; third, that it would create uncertainty, both as to the boundaries of any extended Woolwich principle and in the general development of the law of unjust enrichment. Mr Rabinowitz also had a further, separate argument based on the Court of Appeals conforming interpretation of section 231 of TA 1988 (mentioned in para 33 above). This summary does not do justice to Mr Rabinowitzs powerful written and oral submissions but it indicates their general scope. As the matter is now before the Supreme Court, sitting in a constitution of seven, it is unnecessary to embark on a lengthy consideration of the question of precedent. It is clear from paras 108 to 112 of his judgment in NEC [2006] STC 606 that Mummery LJ carefully considered whether it was appropriate for him to express opinions on issues of law that were not necessary to the decision. He reached the conclusion that, in the exceptional circumstances of the group litigation, he should take a course which he would not normally have taken, even though it resulted in judgment being reserved for a longer period. Mummery LJs views (with which Sedley and Lloyd LJJ agreed) do not bind this court, but they are entitled to great respect. Mr Rabinowitzs strongest point is the frequent and consistent use of the expression demand, not only in the speech of Lord Goff in Woolwich, but in the speeches of the other members of the House of Lords majority in that case, and in the speeches of the House of Lords in DMG. Occasional variant uses of exaction carry no weight, since the two words have much the same meaning (indeed, arguably exaction sounds rather more coercive). Mr Rabinowitz is also right in submitting that most legal scholars have understood Woolwich and DMG as laying down that an official demand is an essential prerequisite for the principle to apply. However legal scholars have also been unanimous, or almost unanimous, in expressing the view that an official demand ought not to be a prerequisite for the application of the principle. The Law Commission in its report, Restitution: Mistakes of Law and Ultra Vires Public Authority Receipts and Payments (1994) (Law Com No 227) took the view that a demand was not necessary (paras 6.41 to 6.42): Lord Goffs reasons for the new restitutionary right, described above, also sustain these inferences, as they are based on the special position of the state and other public bodies. They do not focus on the particular requirements of a demand or a tax; but on the manifest injustice of allowing monies unlawfully extracted from the subject by a public authority to be retained by it. 6.42. Therefore, we believe that the principle may well be held to apply to all taxes, levies, assessments, tolls or charges, whether for the provision of services or not, collected by any person or body under a statutory provision which is the sole source of the authority to charge. We do not think that the Woolwich right is limited to payment of tax or to governmental or quasi governmental exactions, or to payments made in accordance with a demand. We believe the crucial element is that the payment is collected by any person or body which is operating outside its statutory authority, that is, it is acting ultra vires. The editors of Goff and Jones, The Law of Unjust Enrichment 8th ed [2011], para 22 15 comment, after referring to the Court of Appeals judgment in NEC: However, provided that a claimants money has been paid as tax ie to discharge a supposed tax liability it should make no difference in principle whether HMRC demanded the payment. After all, the Woolwich case itself was expressly fought and decided on the basis that the building societys payment was not made in response to illegitimate pressure exerted by the Revenue, and as Bastarache J has observed in the Supreme Court of Canada The right of [a claimant] to obtain restitution for taxes paid under ultra vires legislation does not depend on the behaviour of each party but on the objective consideration of whether the tax was exacted without proper legal authority. [Kingstreet Investments Ltd v New Brunswick (Finance) [2007] 1 SCR 3, para 53]. Professor Jack Beatson (as he then was) expressed similar views in an article (written after the Law Commissions Consultation Paper No 120 on Restitution of payments Made Under a Mistake of Law (1991), para 3.90 3.91 but before its Report), Restitution of Taxes, Levies and other Imposts: Defining the Extent of the Woolwich Principle (1993) 109 LQR 401, 405: So, the formulation of the principle indicates that only two of the four features present in the Woolwich case the demand and its ultra vires nature may be necessary prerequisites. In the case of the demand even this is questionable in view of Lord Goff and Lord Slynns view that a payment of tax made under a mistake of law would be recoverable. The Law Commissions Consultation Paper provisionally recommended that nothing should turn on the existence or otherwise of an actual demand for payment. Quite apart from the difficulties of distinguishing payments made in response to an implied demand or an expectation of payment generated by the authority (including its literature), which were mentioned, this requirement is wholly inappropriate and may pose difficulties in the context of a system based on self assessment of tax (and other levies) such as that under consideration by the Revenue at present. Similar views have been expressed by Professor Charles Mitchell (English Private Law, ed Burrows, 2nd ed (2007) para 18 157); Rebecca Williams, Unjust Enrichment in Public Law (2010) pp 40 41; and Professor Burrows, The Law of Restitution 3rd ed (2011) pp 507 508. This is a formidable volume of distinguished academic opinion. One of the main themes in the reasoning is the high constitutional importance of the principle that there should be no taxation without Parliament. As Professor Mitchell put it (English Private Law, 2nd ed para 18.156): One policy justification for the Woolwich entitlement mentioned by Lord Goff is that a general right to recover payments of tax levied without the authority of Parliament is needed to give full effect to the constitutional principle enshrined in article 4 of the Bill of Rights 1689, that the Crown and its ministers may not impose direct or indirect taxes without Parliamentary sanction. Another, latent in their Lordships speeches, is the related but wider public law principle of legality, that bodies invested with power by the state must respect the rule of law, and adhere to the limits of the jurisdictions conferred upon them. An earlier footnote refers to two influential articles on the same theme: Professor W R Cornish, Colour of Office: Restitutionary Redress Against Public Authority (1987) 14 J Mal & Comp L 41, and Professor Peter Birks, Restitution from the Executive: a Tercentenary Footnote to the Bill of Rights in Finn (ed), Essays on Restitution (1990) 164. These were referred to by Lord Goff in Woolwich [1993] AC 70, 166. These high principles should not depend on the details of the procedure adopted for the levying and payment of any particular tax, especially in an age when (for reasons of economy and efficiency) the trend is towards self assessment of as many taxes as possible. ACT was self assessed, as already noted, and so was the tax which HMRC sought to charge under the ultra vires Income Tax (Building Societies) Regulations 1986 in Woolwich. It is helpful to see how the arguments developed as Woolwich proceeded through the courts. The building society was successful in judicial review proceedings decided by Nolan J on 31 July 1987. The building society had anticipated that decision by issuing a writ on 15 July 1987. Nolan J gave judgment in the action on 12 July 1988, [1989] 1 WLR 137. He felt bound by authority to dismiss the action so far as it claimed interest, holding that there was an implied agreement for repayment of any ultra vires exaction, but without interest. In his judgment Nolan J made detailed findings of fact (at pp 141 142), concluding that the requirements of the Regulations as amplified in communications from the revenue amounted on their face to lawful demands from the Crown. The Court of Appeal [1993] AC 70, 76 142 allowed the building societys appeal by a majority. The majority (Glidewell and Butler Sloss LJJ) based their decision on an ultra vires demand and a payment which was not intended to close the transaction. Ralph Gibson LJ, dissenting, held that the payment should be classified as voluntary, with an implied agreement for repayment (without interest) if tax was not due. All three members of the Court of Appeal seem to have accepted, without much discussion, Nolan Js finding that there had been a demand. The differences between them turned on whether the building societys response to the demand should be regarded as a voluntary payment. The matter came before the House of Lords, therefore, on the unchallenged factual basis that there had been a demand. The House was split three two, with Lord Keith of Kinkel and Lord Jauncey of Tullichettle basing their dissents on the absence of any improper pressure or duress: [1993] AC 70, 160 161, 192 194. There was no difference between the majority and the minority as to the significance of a demand. In these circumstances it is in my view open to this court (whether or not it was strictly open to the Court of Appeal) to state clearly that where tax is purportedly charged without lawful parliamentary authority, a claim for repayment arises regardless of any official demand (unless the payment was, on the facts, made in order to close the transaction). The same effect would be produced by saying that the statutory text is itself a sufficient demand, but the simpler and more direct course is to put the matter in terms of a perceived obligation to pay, rather than an implicit demand. That is how it was put by Wilson J in her well known dissent in Air Canada v British Columbia (1989) 59 DLR (4th) 161, 169: It is, however, my view that payments made under unconstitutional legislation are not voluntary in a sense which should prejudice the taxpayer. The taxpayer, assuming the validity of the statute as I believe it is entitled to do, considers itself obligated to pay. Citizens are expected to be law abiding. They are expected to pay their taxes. Pay first and object later is the general rule. The payments are made pursuant to a perceived obligation to pay which results from the combined presumption of constitutional validity of duly enacted legislation and the holding out of such validity by the legislature. In such circumstances I consider it quite unrealistic to expect the taxpayer to make its payments under protest. Any taxpayer paying taxes exigible under a statute which it has no reason to believe or suspect is other than valid should be viewed as having paid pursuant to the statutory obligation to do so. Lord Goff stated in Woolwich that he found this reasoning most attractive. The Supreme Court of Canada has in recent years, in a judgment of the Court delivered by Bastarache J, unanimously approved this passage from her dissenting speech: Kingstreet Investments Ltd v New Brunswick (Finance) [2007] 1 SCR 3, para 55. In my view English law should follow the same course. We should restate the Woolwich principle so as to cover all sums paid to a public authority in response to (and sufficiently causally connected with) an apparent statutory requirement to pay tax which (in fact and in law) is not lawfully due. Mr Rabinowitz argued that to follow that course would introduce uncertainty as to what amounts to a tax. The expression should in my view be generously construed, but there are bound to be borderline cases (the Foreign and Commonwealth Office is said to be engaged in a constant dialogue with foreign embassies in London as to whether the congestion charge is a tax). Borderline cases of that sort will arise whether or not a demand is needed. They would be likely to cause very much less difficulty than deciding, across the whole range of taxes of different sorts, what amounts to an official demand. Mr Rabinowitz suggested that there would also be uncertainty in the general development of the English law of unjust enrichment. There is vigorous debate among legal scholars on this topic at present, and uncertainty as to the outcome. But to decide that an official demand is not a prerequisite to a claim for the recovery of tax paid when not due ought not to add appreciably to the uncertainty. It would not be a decisive step towards a general absence of basis principle in place of the unjust factors approach that has prevailed in the past. It would merely be creating, in Mr Rabinowitzs metaphor, a rather larger island of recovery in respect of undue tax. Finally, under this head, there is the argument based on the Court of Appeals conforming interpretation of section 231 of TA 1998. This was the Court of Appeals issue 6, addressed at paras 97 to 109 of its judgment. The test claimants argument is that section 231, on the interpretation adopted by the Court of Appeal, resulted in dividends from non resident subsidiaries of a UK resident company being treated as FII, so that a credit was available in the same way as for dividends received from UK resident subsidiaries. Therefore, the argument goes, ACT was not unlawfully levied. The appropriate claim was a mistake claim, not a Woolwich claim. This is an ingenious variation on the approach described at para 39 above. The argument looks like another bit of self inflicted harm for the test claimants, but they seek to turn it to their advantage. The tactical argument is ingenious but (even if the Court of Appeal was right in its conforming interpretation, a point which may still be revisited if permission is given for a further appeal to this court) it is in my view unsound. It seeks to rewrite history. HMRC stoutly defended its position before the Court of Justice until the judgment of the Grand Chamber at the end of 2006. Until then it consistently contended that there was nothing unlawful about the ACT/FII/FIDs regime, and it performed its statutory functions on that basis. Any suggestion that section 231 of TA 1988 did not mean what it plainly appeared to mean would have been met with incomprehension and disbelief. In short, it did not administer the taxation of UK resident companies in accordance with any conforming interpretation. The unlawful levying of tax may depend either on the text of the statute (which was on its face discriminatory and contrary to EU law) or on how the tax is administered in practice. In this case HMRC were at fault on at least one, and possibly both of these counts. The central issues revisited For the reasons given in paras 42 to 82 above I consider that the Court of Appeal was correct in its conclusions (i) on section 32(1)(c) of the Limitation Act 1980 and (ii) on an official demand for tax not being a prerequisite of a Woolwich claim. The last 40 paragraphs can therefore be seen as no more than a laborious detour which ultimately leads back to the central issues in the appeal, outlined in paras 38 and 39 above: is a Woolwich claim (on its own) an adequate remedy meeting the principles of effectiveness and equivalence? Or are the test claimants also entitled to regard a claim based on mistake as one which EU law will protect against summary removal by national legislation (with the consequence that the statutory cut off provisions infringe EU law)? The Court of Appeal answered the first of these questions in the affirmative, and the second in the negative. The relevant part of the judgment is paras 217 to 229. The courts reasoning is quite compressed, the heart of it being in para 225: We have held, in respect of issues 11 and 12, that a demand is not an essential ingredient of the Woolwich cause of action, and that that cause of action provides an effective remedy for all the Claimants San Giorgio claims. Thus the cause of action for repayment of monies paid under a mistake is not a cause of action required by Community law. The cause of action for repayment of monies paid under a mistake is a domestic remedy of wide application, which Community law does not require the member states to provide, attended by a limitation period (ie section 32(1)(c) of the Limitation Act 1980) that goes beyond the requirements of Community law: see Marks & Spencer at paragraph [2003] QB 866, para 35, in which the court considered a three year limitation period to be reasonable. Community law restricts the effectiveness of domestic legislation curtailing a limitation period applicable to a domestic cause of action that protects the Community right. That domestic cause of action is the Woolwich claim, and it is unaffected by sections 320 and 107. Mr Aaronson has criticised this reasoning as seriously flawed. The test claimants written case sets out an elaborate framework of five reasons, the first and second of which have been the subject of the detour at paras 42 to 82 above. The third, fourth and fifth reasons are considered in the following sections of this judgment. Reemtsma Mr Aaronson relied on the decision of the Court of Justice in Reemtsma Cigarettenfabriken Gmbh v Ministero delle Finanze (Case 35/05) [2007] ECR I 2425 as authority for the general proposition that EU law requires repayment of tax paid under a mistake (and not unlawfully exacted). In that case an Italian advertising agency had supplied services to a German client and the services were to be treated as supplied in Germany. The Italian supplier erroneously invoiced the client and paid VAT to the Italian tax authorities. Having failed to obtain a refund from the supplier, the German company brought proceedings against the Italian tax authorities. The Court of Justice held that it was not reimbursable under the provisions of the Eighth Directive and should normally be claimed from the supplier. However, (para 42) where reimbursement of the VAT would become impossible or excessively difficult, the member states must provide for the instruments necessary to enable that recipient [of the relevant services] to recover the unduly invoiced tax in order to respect the principle of effectiveness. Mr Aaronson submitted that this principle was of general application, and not limited to VAT (as a specifically EU tax). He submitted that this was a mistaken payment which was within the wide San Giorgio principle but not within the Woolwich principle, however much it might be extended. In support of his submission that it was not limited to VAT Mr Aaronson referred to Danfoss AS v Skattministeriet (Case C 94/10), 20 October 2011. Denmark imposed an indirect tax on lubricants and hydraulic oils which failed to give effect to exemptions required by article 8 of Council Directive 92/81 EEC. Danfoss purchased these products in large quantities and the suppliers passed on to Danfoss the amount of unlawfully exacted tax which they had paid. Following the judgment of the Court of Justice in Braathens Sverige AB v Riksskatteverket (Case C 346/97) [1999] ECR I 3419 Danfoss claimed reimbursement direct from the Danish authorities. The Court of Justice referred to the general San Giorgio principle by which a member state is in principle required to pay charges levied in breach of EU law. This is subject to an exception if the wrongly levied charge has been passed on. Where the tax has been passed on the ultimate consumer should normally be able to recover from his supplier, but if that is impossible or unduly difficult there must be a remedy in the form of a direct claim against the tax authorities. Reemtsma was referred to as an authority for this proposition. Lord Sumption regards this principle as limited to harmonised EU taxes, and I am inclined to agree with that. But in any event it applies to a different and relatively unusual situation, in which it is a third party, and not the original taxpayer, who is seeking to recover tax from the authorities. It does not assist the test claimants in this appeal. EU laws requirements as to national remedies (especially limitation periods) There is no doubt as to the general principles regulating what EU law requires of national remedies for infringements of EU law. The principles were stated by the Grand Chamber in its judgment on the first reference in these proceedings, Case C 446/04, paras 201 to 203, in terms identical, or almost identical, to those which have been stated many times before by the Court of Justice: It must be stated that it is not for the court to assign a legal classification to the actions brought before the national court by the claimants in the main proceedings. In the circumstances, it is for the latter to specify the nature and basis of their actions (whether they are actions for repayment or actions for compensation for damage), subject the national court (see [Metallgesellschaft (Joined Cases C 397/98 and C 410/98) [2001] ECR I 1727], para 18. the supervision of to 202. However, the fact remains that, according to established case law, the right to a refund of charges levied in a member state in breach of rules of Community law is the consequence and complement of the rights conferred on individuals by Community provisions as interpreted by the court (see, inter alia San Giorgio (Case C 199/82) [1983] ECR 3595, para 12, and Metallgesellschaft, para 84). The member state is therefore required in principle to repay charges levied in breach of Community law Comateb (Joined Cases C 192/95 to C 218/95) [1997] ECR I 165, para 20, and Metallgesellschaft, para 84). 203. In the absence of Community rules on the refund of national charges levied though not due, it is for the domestic legal system of each member state to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, secondly, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, inter alia, Rewe (Case C 33/76) [1976] ECR 1989, para 5, and Comet (Case C 45/76) [1976] ECR 2043, paras 13 and 16; and, more recently, Edis (Case C 231/96) [1998] ECR I 4951, paras 19 and 34; Dilexport (Case C 343/96) [1999] ECR I 579, para 25; and Metallgesellschaft, para 85). This brings us to the fourth and fifth reasons in the test claimants written case, which go to the heart of this appeal. They contend that in using the mistake cause of action to vindicate their EU rights they were unquestionably entitled to the protection of EU law. They criticise the Court of Appeal for having asked the wrong question: that is for having asked which domestic remedies give effect to the San Giorgio principle, rather than considering, as they should have done, all national remedies as available for the purpose. It is not necessary to multiply references to the general principles, which are not in dispute. It is however necessary to look more closely at the attitude of EU law towards limitation of actions under the legal systems of different member states, and towards legislative measures taken by member states to curtail limitation periods, so far as they affect national remedies for breaches of EU law. It is well established that EU law has no general objection to limitation periods being provided for in the legal systems of member states. On the contrary, limitation periods are one manifestation of the principle of legal certainty. As long ago as Rewe I (Rewe Zentralfinanz eG v Landwirtschaftskammer fur das Saarland (Case C 33/76) [1976] ECR 1989, para 5, the Court of Justice (after referring to the general principle of national courts acting in accordance with national rules) observed: The position would be different only if the conditions and time limits made it impossible in practice to exercise the rights which the national courts are obliged to protect. This is not the case where reasonable periods of limitation of actions are fixed. The laying down of such time limits with regard to actions of a fiscal nature is an application of the fundamental principle of legal certainty protecting both the taxpayer and the administration concerned. There is a similar statement, again expressly linked to fiscal proceedings, in Comet BV v Produktschap voor Siergewassen (Case C 45/76) [1967] ECR 2043, para 18. Limitation periods must be reasonable, but the Court of Justice recognises that national systems vary a good deal, and accepts different approaches so long as there is no infringement of the principles of effectiveness and equivalence, and no disappointment of legitimate expectations. This is made clear in Amministrazione delle Finanze dello Stato v Sas MIRECO (Case C 826/79) [1980] ECR 2559, paras 11 to 13, and other cases of the same vintage involving the Italian tax authorities, including Amministrazione delle Finanze dello Stato v Denkavit Italiana Srl (Case C 61/79) [1980] ECR 1205, paras 23 and 24, and Amministrazione delle Finanze dello Stato v Ariete SpA (Case C 811/79) [1980] ECR 2545, paras 10 and 11. In line with that approach, in Haahr Petroleum v Abenr Havn (Case C 90/94) [1997] ECR I 4085, a five year period was accepted as reasonable for reimbursement of an unlawful goods duty. Emmott v Minister for Social Welfare (Case C 208/90) [1993] ICR 8 was distinguished ([1997] ECR I 4085, para 52) because in that case the relevant directive had not been properly transposed, and until its proper transposition time was not to start to run. In Edilizia Industriale Siderurgica Srl v Ministero delle Finanze (Case C 23/1996) [1998] ECR I 4951 a three year period was accepted for recovery of company registration charges levied in breach of article 10 of Council Directive 69/335/EEC despite the fact that the normal limitation period for restitution, under article 2946 of the Italian Civil Code, was ten years. The principles of effectiveness, equivalence and legitimate expectation also apply if a national legislature enacts a measure to curtail an existing limitation period, especially if the measure appears to be directed at a particular ruling of the Court of Justice. The leading authority is the first judgment of the Court of Justice in Marks & Spencer Plc v Customs and Excise Comrs (Case C 62/00) [2003] QB 866 (M&S). That litigation was complicated and protracted, involving as it did two distinct claims for repayment of VAT (one concerning gift vouchers, and the other concerning chocolate covered marshmallow teacakes) which were linked together as a matter of case management. There were two references to the Court of Justice, the first of which attracted criticism from the court because of its restricted scope. The final chapter in the saga is reported at [2009] UKHL 8, [2009] STC 452. For present purposes, however, it is sufficient to note that section 47 of the Finance Act 1997 curtailed the period for a claim for repayment of VAT from six to three years, with retrospective effect, and without any period of grace. Some of the claimants claims for VAT on teacakes (which were properly treated as zero rated) went back to 1973. The Advocate General (Geelhoed) referred to a summary ([2003] QB 866, para 54) of the EU jurisprudence in Roquette Frres SA v Direction des Services Fiscaux du Pas de Calais (Case C 88/99) [2000] ECR I 10465, para 20. He also cited at para 57, Dilexport (Case C 343/96) [1999] ECR I 579, para 43: Community law does not preclude the adoption by a Member State, following judgments of the Court declaring duties or charges to be contrary to Community law, of provisions which render the conditions for repayment applicable to those duties and charges less favourable than those which would otherwise have been applied, provided that the duties and charges in question are not specifically targeted by that amendment and the new provisions do not make it impossible or excessively difficult to exercise the right to repayment. The Advocate General pointed out (para 58) that the retrospective alterations to the Value Added Tax Act 1994 affected not only taxable persons who expected under the existing rules to have ample time to make their claims but even taxable persons who before the date on which the announcement of a change in the law was made (18 July 1996) or prior to the date on which it was enacted (19 March 1997) had made claims for repayment of unduly levied tax. The issue of specific targeting was raised at first instance, but in view of the conclusions which he had already reached Henderson J preferred to express no view on it ([2009] STC 254, paras 428 to 431). His reasons included the difficulty of the constitutional issues which would arise in inquiring into the legislative intention behind the amending legislation. The point was not raised in the Court of Appeal or in this court. The Court of Justice reached conclusions similar to those of the Advocate General [2003] QB 866, paras 36 to 38: Moreover, it is clear from Aprile [2001] 1 WLR 126, para 28 and Dilexport [1999] ECR I 579 paras 41 and 42 that national legislation curtailing the period within which recovery may be sought of sums charged in breach of Community law is, subject to certain conditions, compatible with Community law. First, it must not be intended specifically to limit the consequences of a judgment of the Court to the effect that national legislation concerning a specific tax is incompatible with Community law. Secondly, the time set for its application must be sufficient to ensure that the right to repayment is effective. In that connection, the court has held that legislation which is not in fact retrospective in scope complies with that condition. 37. It is plain, however, that that condition is not satisfied by national legislation such as that at issue in the main proceedings which reduces from six to three years the period within which repayment may be sought of VAT wrongly paid, by providing that the new time limit is to apply immediately to all claims made after the date of enactment of that legislation and to claims made between that date and an earlier date, being that of the entry into force of the legislation, as well as to claims for repayment made before the date of entry into force which are still pending on that date. 38. Whilst national legislation reducing the period within which repayment of sums collected in breach of Community law may be sought is not incompatible with the principle of effectiveness, it is subject to the condition not only that the new limitation period is reasonable but also that the new legislation includes transitional arrangements allowing an adequate period after the enactment of the legislation for lodging the claims for repayment which persons were entitled to submit under the original legislation. Such transitional arrangements are necessary where the immediate application to those claims of a limitation period shorter than that which was previously in force would have the effect of retroactively depriving some individuals of their right to repayment, or of allowing them too short a period for asserting that right. The Court of Justice held the amending legislation incompatible with the principle of effectiveness. It also (paras 45 and 46) held that it was precluded by the principle of the protection of legitimate expectations. Legitimate expectations The principle of protection of legitimate expectations is closely linked to the principle of legality. But in the opinion of the Advocate General (Cosmas) in Duff v Minister for Agriculture and Food, Ireland and Attorney General (Case C 63/93) [1996] ECR I 569, para 23, the two are not interchangeable. The Advocate Generals opinion contains (at paras 24 and 25) a passage about timing which is of particular interest (his emphasis): 24. Particularly for the individual the principle of legality would in many ways lose its significance as a guarantee of a sphere of freedom, if the temporal succession of legal provisions concerning him was not governed by an elementary consistency and coherence sufficient to enable him to discern the consequences (legal and financial) of his activities. 25. Thus the principle of legal certainty calls for clarity and accuracy in framing the rules of law, and the individual provisions giving effect to them, which at a given moment in time constitute the legal framework within which the competences of the institutions are exercised and the activities of individuals are carried on. The principle of the protection of legitimate expectations requires the Community legislature and the other Community organs (or the national authorities operating under provisions of Community law) to exercise their powers over a period of time in such a way that situations and relationships lawfully created under Community law are not affected in a manner which could not have been foreseen by a diligent person. This approach was not in terms adopted by the Court of Justice, but para 20 of its judgment appears to be in line with it. I have quoted this passage at some length because it seems to me to touch on what is, if I may respectfully say so, one of the crucial points in Lord Sumptions judgment. Lord Sumption ultimately bases his conclusions, on the central issue, on the principle of protection of legitimate expectations (paras 198 to 202). He observes (para 196) that the right of the test claimants to choose from a range of causes of action is a right derived solely from English procedural law and (echoing the Court of Appeal, para 226) that it exists only to the extent that English law so provides. I have considerable difficulty in reconciling that with the principles stated by the Advocate General and the Court of Justice in M&S [2003] QB 866. But before addressing that difficulty I should recapitulate the sequence of events in which the statutory cut off provisions were announced and enacted. The enactment of the statutory cut off provisions Mr Aaronson provided a useful summary of the key dates. The first two are the decisions of the House of Lords in Woolwich (20 July 1992) and Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 (29 October 1998). After 1998 English lawyers knew that the recovery of money paid under a mistake of law (perhaps including a mistake of tax law, subject to arguments on exclusive remedies) had become a real possibility, although it was by no means a firmly established cause of action. But until the decision of the Court of Justice in Metallgesellschaft (Joined Cases C 397/98 and C 410/98) [2001] Ch 620 on 8 March 2001 there was no general appreciation that the UK corporation tax regime was seriously open to challenge as infringing the Treaty. Henderson J did not make any detailed findings about this, since the principle of legitimate expectations does not seem to have been argued as a separate issue before him. But he did (para 267) make a general finding of fact about mistake: The unlawful payments of ACT made from 1973 to 1999, and the unlawful payments of ACT made under the FID regime from 1994 to 1999, were in my view plainly made under a mistake about the lawfulness of the tax regimes under which they were paid. I am satisfied from the evidence, both written and oral, that this was not obvious to anybody within the BAT group at the time, since everybody proceeded on the footing that the tax in question was lawfully due and payable. After 8 March 2001 a well advised multinational group based in the UK would have had good grounds for supposing that it had a valid claim to recover ACT levied contrary to EU law, with at least a reasonable prospect that the running of time could be postponed until then (but not subsequently) by the operation of section 32(1)(c) of the Limitation Act 1980. During 2002 the opinion of the Advocate General and the judgment of the Court of Justice in M&S, while possibly not adding much to the earlier jurisprudence, spelled out very clearly, for UK companies and lawyers, both the capacity and the limits of national legislation in curtailing limitation periods in proceedings for recovery of tax levied in breach of EU law. The next important date was 18 July 2003, when Park J gave his first instance judgment in DMG. This was the first judicial decision which positively upheld a claim for repayment of unduly levied tax with an extended limitation period under section 32(1)(c). But appeals to the Court of Appeal and the House of Lords were to follow and (as Henderson J observed, para 406), the outcome of those appeals was, at the time, impossible to predict with any confidence. The BAT group started its proceedings on 18 June 2003, a month before Park Js judgment in DMG. On 8 September 2003 the Paymaster General announced the introduction of retrospective legislation affecting proceedings to recover tax on the ground of mistake if the proceedings were issued on or after that day (the scope of the proposed legislation was later extended to include amendment of existing proceedings). The Aegis group issued its proceedings on that very day, 8 September 2003, and so was one of the very first claimants to be affected by the legislation. Section 320 of the Finance Act 2004 was enacted on 24 June 2004. Its essential provisions were set out by Henderson J (para 408): Exclusion of extended limitation period in England, Wales and Northern Ireland (1) Section 32(1)(c) of the Limitation Act 1980 . (extended period for bringing an action in case of mistake) does not apply in relation to a mistake of law relating to a taxation matter under the care and management of the Commissioners of Inland Revenue. This subsection has effect in relation to actions brought on or after 8 September 2003. (2) For the purposes of (a) section 35(5)(a) of the Limitation Act 1980 . (circumstances in which time barred claim may be brought in course of existing action), and (b) rules of court . having effect for the purposes of those provisions, as they apply to claims in respect of mistakes of the kind mentioned in subsection (1), a new claim shall not be regarded as arising out of the same facts, or substantially the same facts, if it is brought in respect of a different payment, transaction period or other matter. This subsection has effect in relation to claims made on or after 20 November 2003. (6) The provisions of this section apply to any action or claim for relief from the consequences of a mistake of law, whether expressed to be brought on the ground of mistake or on some other ground (such as unlawful demand or ultra vires act). (7) This section shall be construed as one with the Limitation Act 1980 . The Court of Appeal gave judgment in DMG, reversing Park J, on 4 February 2005: [2006] Ch 243. Mr Aaronson described the Court of Appeals decision as a bump in the road, suggesting that it was unforeseen and soon forgotten, but that seems an inappropriate description, even with hindsight. Reference to the judgments (running to nearly 300 paragraphs in all) shows that numerous issues were fiercely contested, including the date of the mistakes discovery (which occurred, on HMRCs argument, in 1995). The Court of Appeals decision was reversed by the House of Lords on 25 October 2006: [2007] 1 AC 558. Shortly afterwards the UK government applied to the Court of Justice for the reopening of the hearing of the first reference in these proceedings so that the United Kingdom could argue for a temporal restriction to the judgment of the Court of Justice. That application was rejected on 6 December 2006, and on the same day HMRC announced the introduction of further retrospective legislation. This was enacted on 19 July 2007 as section 107 of the Finance Act 2007. The essential terms of the section were set out by Henderson J (para 412): Limitation period in old actions for mistake of law relating to direct tax (1) Section 32(1)(c) of the Limitation Act 1980 . (extended period for bringing action in case of mistake) does not apply in relation to any action brought before 8 September 2003 for relief from the consequences of a mistake of law relating to a taxation matter under the care and management of the Commissioners of Inland Revenue. (2) Subsection (1) has effect regardless of how the grounds on which the action was brought were expressed and of whether it was also brought otherwise than for such relief. (3) But subsection (1) does not have effect in relation to an action, or so much of an action as relates to a cause of action, if (a) the action, or cause of action, has been the subject of a judgment of the House of Lords given before 6 December 2006 as to the application of section 32(1)(c) in relation to such relief, or (b) the parties to the action are, in accordance with a group litigation order, bound in relation to the action, or cause of action, by a judgment of the House of Lords in another action given before that date as to the application of section 32(1)(c) in relation to such relief. (4) If the judgment of any court was given on or after 6 December 2006 but before the day on which this Act is passed the judgment is to be taken to have been what it would have been had subsections (1) to (3) been in force at all times since the action was brought (and any defence of limitation which would have been available had been raised). (6) In this section group litigation order means an order of a court providing for the case management of actions which give rise to common or related issues of fact or law . On 30 September 2010 the European Commission announced that it had made a formal request to the UK to change section 107 of the Finance Act 2007. On 26 January 2012 there was a further announcement that the European Commission has referred the UK to the Court of Justice because of the absence of proper transitional rules in section 107. Discussion of the statutory cut off provisions These provisions were challenged in the lower courts primarily on the ground that they infringed the principle of effectiveness. There was little discussion of legitimate expectations. Lord Sumption holds (para 199) that reasonable persons in the position of the test claimants would not, until Park Js judgment in DMG on 18 July 2003, have counted on being able to recover tax on the ground of mistake of law; and that even after that decision the existence of such a claim was being challenged on serious grounds. He concludes from that proposition that no one in the position of the test claimants could have had a reasonable and realistic expectation of recovering tax on the ground of mistake. I cannot disagree with that conclusion. The issue of legitimate expectations was not raised before the judge, and he made no findings on it. The issue of reasonable expectations must of course be decided objectively, but it would have been helpful to have had the view of the judge who very carefully considered the whole case. But in any case I do have great difficulty in applying the same reasoning to upholding the validity of section 320 against attack under the principle of effectiveness, in the light of M&S. The judgment of the Court of Justice in that case lays down a clear requirement for transitional provisions, and that requirement is derived at least as much from the principle of effectiveness and the principle of legality as from the more limited principle of protection of legitimate expectations (as Advocate General Cosmas said in Duff (Case C 63/93) [1996] ECR I 569, para 23, they are not interchangeable). If one asks what the test claimants were entitled to, and what they could expect to continue to be entitled to, in the way of national remedies to recover tax levied and paid contrary to EU law, the answer is plainly not that they were entitled to the indefinite continuation of a range of alternative remedies. The passage from Rewe II on which the test claimants rely (Rewe Handelsgellschaft Nord mbH v Haupzollamt Kiel (Case C 158/80) [1981] ECR 1805, para 44) is, as Lord Sumption demonstrates, an example of the operation of the principle of equivalence. It is not applicable in this case because both of the statutory cut off provisions applied to all claims for repayment of direct tax, whether or not the repayment was claimed because of an infringement of EU law. Nor were the test claimants entitled to a remedy arrived at by some precise formula furnished by EU law. That would be contrary to the basic principles laid down in Rewe I (Case C 33/76) [1976] ECR 1989, and repeated in countless cases since then. What they were entitled to was that national law should provide an effective remedy which met the requirements of EU principles of effectiveness and equivalence; and that any curtailment of any relevant limitation period should comply with those principles, as well as with the principle of legitimate expectations. The fact that they could not have complained, in another parallel universe in which section 32 (1)(c) had never existed, is not decisive on the issue of effectiveness. I would therefore hold that section 320 was contrary to EU law as infringing the principle of effectiveness as explained in M&S, and that section 107 was contrary to EU law both on that ground and (in agreement with Lord Sumption) under the principle of protecting legitimate expectations. Examples can be tendentious, but the drastic way in which section 320 could operate can be illustrated by the example of a UK resident holding company, part of a multinational group, which paid ACT from 1973 to 1996, building up an ever increasing surplus of unused ACT, and then (three years before the repeal of ACT) decided that enough was enough, and disposed of its overseas subsidiaries. In 2001 it would have learned of the possibility of a claim for repayment of tax, and taken advice as to the wisdom of incurring costs by making a claim, which was still doubtful, at some time during the next six years. In 2002 M & S (Case C 62/00) [2003] QB 866 seemed to confirm that the law would not be changed retrospectively and without reasonable notice. But if the company did not act before 8 September 2003 it would have been deprived, retrospectively and without any notice, of the entirety of its claims for over 20 years tax. Section 33 of the Taxes Management Act 1970 The last substantive point to be considered is section 33 of the Taxes Management Act 1970, which provided a statutory right to repayment of tax paid by mistake, subject to a number of restrictive conditions. It replaced provisions originally introduced by the Finance Act 1923. It has since been replaced by two different sets of provisions, one applicable to individuals and the other to companies. In the form in which it was in force at the relevant time the conditions were (1) it applied only to excessive tax charged by an assessment (which meant, Lord Goff stated in Woolwich [1993] AC 70, 169, a valid assessment) as a result of an error or mistake in a return; (2) there was a six year time limit; (3) there was to be no repayment if the erroneous or mistaken return was in accordance with practice generally prevailing at the time; and (4) the repayment was to be such as the Board of Inland Revenue (subject to a possible appeal to the Special Commissioners) considered reasonable and just. The flexibility of the last condition was explained by Mr Ewart by the example of a taxpayer who had paid too much tax six years before, but who ought to have paid more tax on the same income seven or more years before. The issue on section 33 is whether it is an obstacle to the test claimants and if so, whether it can be given a conforming interpretation under the Marleasing principle ((Case C 106/89) [1990] ECR I 4135). In terms of the amount of tax at stake, this issue is relatively minor in the context of the litigation as a whole, as it extends only to tax charged under Schedule D, Case V, pursuant to section 18 of TA 1988. But it is still a point of some general importance. Before Henderson J HMRC argued, but only it seems quite briefly, that the decision of the Court of Appeal in Monro v Revenue and Customs Comrs [2009] Ch 69 established that section 33 was an exclusive remedy which left no room for any common law claim in unjust enrichment. The judge [2009] STC 254, paras 438 439 rejected that on two grounds: first that section 33 did not extend to tax levied otherwise than by an assessment; secondly that in any event the national legislation must, in a San Giorgio claim, yield to the principle of effectiveness. It now seems to be common ground that the first of these reasons does not hold good for tax under Schedule D Case V. The Court of Appeal took a different approach. It concluded ([2010] STC 1251, paras 261 and 264) that a conforming interpretation was possible, and did sufficiently go with the grain of the legislation (the expression used in relation to section 3(1) of the Human Rights Act 1998 by Lord Rodger of Earlsferry in Ghaidan v Godin Mendoza [2004] 2 AC 557, para 121, also adopted by Lord Nicholls of Birkenhead at para 33). The conforming interpretation adopted was (para 261) that the restrictive condition about prevailing practice in section 33(2A) is to be read as subject to the limitation that it applies only if and to the extent that the United Kingdom can consistently with its Treaty obligations impose such a restriction. I have grave doubts as to whether that interpretation does not go against the grain of the legislation, since the practice generally prevailing condition is of long standing and has always been regarded as an important safeguard for the public revenue. I am inclined to think that Mr Aaronson was right (Day 2, pp 25 26) to call it a cardinal feature of the legislation. In my view the Marleasing principle can be applied in a simpler and more natural way by not construing section 33 as impliedly setting itself up as an exclusive provision (which it did not do expressly, unlike section 80 of the Value Added Tax Act 1994). The test claimants submit that the application of Marleasing cannot rework section 33 in a way that serves any relevant purpose. But to read it as non exclusive does not go against its grain. It would merely exclude an implication which is itself no more than a process of statutory construction. In practical terms the effect is the same as that which Henderson J reached by the second limb of his reasoning. I would therefore allow the appeal on this point (although it may not, in the end, make much practical difference). In summary, therefore, my provisional view is that we should (1) uphold the Court of Appeal as to (i) the scope of section 32(1)(c) of the Limitation Act 1980 and (ii) the scope of the Woolwich principle; (2) (3) allow the appeal on section 320 and section 107; and allow the appeal on section 33 of the Taxes Management Act 1970. But in view of the difference of opinion in the court I consider (in common with Lord Hope, Lord Dyson and Lord Reed) that it is necessary for the court to make a further reference to the Court of Justice of the European Union in accordance with directions in para 23 of Lord Hopes judgment. LORD BROWN I have had the great advantage of reading in draft the judgments of Lord Walker and Lord Sumption and am in full agreement with them both on the several issues upon which they each agree. What, then, of the single issue upon which they disagree: was section 320 of the Finance Act 2004 contrary to EU law as infringing the principle of effectiveness as explained by the Court of Justice in Marks & Spencer Plc v Customs & Excise Comrs (Case C 62/00) [2003] QB 866? During the hearing I confess to having found difficulty in recognising any principled basis for distinguishing between on the one hand section 47(1) of the Finance Act 1997 which (with effect from when government had earlier announced its intention so to legislate: section 47(2)), besides reducing the basic limitation period for tax repayment claims from six to three years, in addition eliminated the special advantage for claims in mistake previously introduced by section 24(5) of the Finance Act 1989, delaying the commencement of the limitation period for such claims until the claimants had actually or constructively discovered the mistake this being the provision held ineffective by the Court of Justice in Marks & Spencer; and, on the other hand, section 320 with which this court is now concerned which (similarly with effect from when government first announced its intention so to legislate) similarly eliminates with regard to tax repayment claims based on a mistake of law the similar special provision enlarging the limitation period to be found in section 32(1)(c) of the Limitation Act 1980. Now, however, I am inclined to accept Lord Sumptions view that, by the same token that, on the facts of this case, the appellants can establish no legitimate expectation at any time prior to 8 September 2003 (when government announced its intention to introduce section 320) that the limitation period for mistake of law tax repayment claims would not be attenuated by legislation, nor can they make good their argument that section 320 infringes the EU principle of effectiveness. The self same considerations essentially of fairness and legal certainty which underlie the doctrine of legitimate expectation (both domestically and under EU law) to my mind also inform the principle of effectiveness. If, as seems to me plainly to be so, the situation even after Park Js first instance decision in Deutsche Morgan Grenfell Group Plc v Inland Revenue Comrs [2003] 4 All ER 645 (DMG) was one of complete uncertainty as to whether tax could be re claimed on the basis of a mistake of law there being at least as much room for a mistake of law as to this as for the mistake of law which the majority of the House of Lords in DMG [2007] 1 AC 558 held the taxpayers to remain under until the Court of Justices final authoritative decision in the Hoechst case (Metallgesellschaft Ltd v Inland Revenue Comrs (Joined Cases C 397/98 and C 410/98) [2001] Ch 620) there was to my mind neither unfairness nor any denial of a legitimate expectation from Parliament stepping in to legislate with immediate effect to clarify the situation (albeit to the taxpayers obvious disadvantage given that the common law was finally to be developed in their favour). In short, whereas the position as to limitation with regard to tax recovery claims was crystal clear under section 24 of the 1989 Act and could not therefore fairly and legitimately be altered without due notice and appropriate transitional provisions it was entirely unclear under the developing common law when Parliament chose to intervene by the enactment of section 320. And it is that which provides the principled basis for distinguishing this case from Marks & Spencer. Section 107, by contrast, is not merely overtly retrospective (eliminating pre existing claims explicitly preserved by section 320), but was introduced after the House of Lords decision in DMG finally resolved the uncertainty in the law and proclaimed (albeit subject always to lawful legislative change) that mistake of law claims with their extended limitation periods were indeed available to those seeking recoupment of overpaid (or prematurely paid) tax. Small wonder that it is section 107 that the Commission selected for attack. LORD CLARKE In para 9 above Lord Hope has conveniently identified four issues for determination in this appeal. Issues (3) and (4), which raise a question of construction of section 32(1)(c) of the Limitation Act 1980 and the ingredients of the common law Woolwich claim respectively, raise no issue of EC law. I agree with the other members of the court that, for the reasons they give, the decisions of the Court of Appeal on both questions should be upheld and that both questions should be answered no. At the end of the argument I was inclined to the view that section 32(1)(c) should be given the wider meaning contended for by the Test Claimants, but I have been persuaded by the reasoning of Lord Walker and Lord Sumption that it should not. I also agree with the other members of the court that the restitution and damages remedies sought by the Test Claimants are not excluded by section 33 of the Taxes Management Act 1970 and that it follows that question (2) must be answered no and that the Test Claimants appeal on this issue must succeed. This seems to me to be essentially a matter of construction of section 33. In so far as it involves an issue of EU law, I would hold that it is acte clair, and would not refer it to the Court of Justice. By contrast, the questions posed by issue (1) raise difficult questions of EU law. This is evident from the differences of opinion between members of the court. A comparison between the judgments in this case shows that the members of the court are divided, not only as to the question whether EU law protects the mistake claims and, in particular, whether section 320 of the Finance Act 2004 infringes the EU law principles of effectiveness, legal certainty and legitimate expectation, but also as to the correct reasoning for the conclusions reached. I too would refer the section 320 issues to the Court of Justice. If there is to be a reference, any further analysis of the position by me will be largely, if not entirely, redundant, since all will depend upon the conclusions ultimately reached by the Court of Justice. I will therefore only add this. I agree that section 107 infringes EC law for the reasons given by Lord Sumption. As to section 320, in agreement with Lord Hope, Lord Walker, Lord Dyson, and Lord Reed my provisional view is that the appeal should be allowed. The problem (or potential problem) facing the Test Claimants is that English law provides two remedies for their claim that tax has been exacted from them contrary to EU law. If the only available remedy were the mistake claim, the position would be clear. It would fall within the principle in Marks & Spencer Plc v Customs and Excise Comrs (Case C 62/00) [2003] QB 866 (M&S), which is discussed in some detail by Lord Walker at paras 96 to 99. The principle is summarised both by the Advocate General and by the Court of Justice at paras 36 to 38 (quoted at para 99 above). It applies in respect of national legislation curtailing the period within which recovery may be sought of sums charged in breach of EU law and may be summarised as follows: (1) such legislation must not be intended specifically to limit the consequences of a judgment of the Court of Justice to the effect that national legislation concerning a specific tax is incompatible with EU law; (2) the time set for its application must be sufficient to ensure that the right to repayment is effective; and (3) where a new limitation period limits the previously permitted period, the new period must be reasonable and the new legislation must include transitional arrangements allowing an adequate period for lodging claims which were available under the previous legislation. As Lord Walker explains at para 104, after 8 March 2001, when the Court of Justice decided Metallgesellschaft Ltd v Inland Revenue Comrs (Joined Cases C 397/98 and C 410/98) [2001] Ch 620, the Test Claimants would have had good grounds for supposing that they had a good claim to recover ACT levied contrary to EU law, with at least a reasonable prospect that the running of time could be postponed until then by section 32(1)(c) of the Limitation Act 1980. In so far as proceedings had not been issued, their claims were therefore in time as at 8 September 2003 when HMRC announced the introduction of what became section 320 of the Finance Act 2004. The effect of section 320, which is set out at para 107 above and was enacted on 24 June 2004, was to deprive those Test Claimants of rights which were available to them by reason of section 32(1)(c) without any transitional provisions to allow them to issue proceedings within a reasonable time. But for the availability of the Woolwich claim, section 320 would therefore be contrary to the principles clearly set out in M&S. It made it impossible for those Test Claimants to proceed with their mistake claim because of the absence of the introduction of a reasonable period of limitation as from then and because of the complete absence of transitional provisions. The facts are very similar to those relating to the chocolate covered marshmallow teacakes in M&S. Does the existence of the Woolwich remedy make all the difference? I agree with Lord Hope, Lord Walker, Lord Reed and Lord Dyson that it does not. To my mind it would be remarkable if it did. In this regard, I agree in particular with the reasoning of Lord Hope at paras 16 to 19 above. As Lord Hope shows, the Test Claimants had every prospect of success. It is plain from the fact that section 320 was enacted that HMRC shared that view, since (at any rate as it seems to me) the whole point of the section was to ensure that such a claim would not succeed. In any event, in the period before section 320 came into force the Test Claimants were entitled to have their mistake claim adjudicated upon by the English courts. In my opinion they had a legitimate expectation that, as Lord Hope puts it at para 19 and Lord Reed puts it at para 243, that entitlement would not be removed from them by the introduction without notice of a limitation period that was not fixed in advance. Before the decision in Deutsche Morgan Grenfell Group Plc v Inland Revenue Comrs [2007] 1 AC 558 (DMG) the Test Claimants knew that there was a reasonable prospect that they had a good mistake of law claim against the Revenue. I agree with Lord Sumption (at para 201) that it must be relevant to ask on what basis the Test Claimants must be taken to have made their plans and that the issue is whether there is an assumption reasonably to be attributed to them about how long they had to bring their claims, which was then retrospectively falsified by Parliament. It seems to me that they can reasonably be taken to have made their plans on the basis of an expectation that the State would not remove their rights without warning or transitional provisions. That expectation was then retrospectively falsified by section 320. In all these circumstances, I prefer the reasoning of Lord Hope and Lord Reed to that of Lord Sumption. It follows that in my opinion section 320 infringes their rights under EC law on the ground that it infringes the principle of legitimate expectation. In addition I agree with Lord Hope, Lord Walker, Lord Dyson and Lord Reed that an application of the principle of effectiveness also leads to the conclusion that section 320 infringes their rights under EC law. This part of the case has been analysed in some detail by Lord Hope, Lord Walker and Lord Reed. In particular, Lord Reeds analysis is considerably more extensive than that of Lord Walker. As I read Lord Reeds judgment, a critical part of his reasoning is his reliance upon his view of the principles of equivalence, which he then deploys in reaching his conclusion that section 320 infringes the principle of effectiveness. His reasoning is to my mind convincing and, for the reasons he gives, I too would so hold. I have a slight concern that so to hold is to determine the issue on a basis which was not advanced in argument on behalf of the Test Claimants, which (to put it no higher) is surprising given the many years they have been considering these issues. However, if the Court of Justice were to prefer the approach to equivalence adopted by Lord Sumption to that adopted by Lord Reed, I would nevertheless hold that section 320 infringes the principle of effectiveness. Although there is, so far as I am aware, no decision of the Court of Justice which directly addresses the point, this conclusion seems to me to receive some support from the opinion of Advocate General Sharpston in Unibet (London) Ltd v Justitiekanslern (Case C 432/05) [2008] All ER (EC) 453, where she said this at para 32 of her opinion: The starting point to my mind must be the principle, first laid down in Rewe I [(Case 33/76) [1976] ECR 1989, para 5], that it is for the domestic legal system of each member state to determine the procedural conditions governing actions at law intended to ensure the protection of Community law rights, provided that those conditions are not less favourable than those relating to similar actions of a domestic nature (principle of equivalence) and do not make it impossible in practice to exercise those rights (principle of effectiveness). That approach was confirmed in Rewe II [(Case 158/80] [1981] ECR 1805, para 44], where the court stated that the Treaty was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law and that the system of legal protection established by the Treaty implies that it must be possible for every type of action provided for by national law to be available for the purpose of ensuring observance of Community provisions having direct effect. (Original emphasis) I recognise that, as Lord Sumption observes at para 194, Rewe Handelsgellschaft Nord mbH v Haupzollamt Kiel [1981] ECR 1805 was an equivalence case and that the Court of Justice did not expressly comment upon this passage, but it nevertheless seems to me that in her para 32 the Advocate General was putting the point more generally in the context of effectiveness and that, in that context it provides some support for the Test Claimants case. I appreciate that the views that I (and others) have expressed on the section 320 point can only be provisional and that it will ultimately be resolved in the light of the answers to the questions referred to the Court of Justice. I nevertheless hope that these views will be of some assistance in the formulation of those questions. LORD DYSON I too agree with the judgments of Lord Walker and Lord Sumption on all the issues on which they agree. Like Lord Hope and Lord Reed, I agree with Lord Walker on the DMG/section 320 issue. Nevertheless, I acknowledge the force of Lord Sumptions reasoning on this issue. For that reason I have concluded that the question cannot be regarded as acte clair and that a reference to the European Court of Justice is necessary. LORD SUMPTION Introduction It is not in dispute that under EU Law, the United Kingdom is bound to provide an effective means under its national law of recovering tax charged contrary to the EU Treaty. It is common ground that it is open to member states to impose reasonable periods of limitation, even on actions to enforce directly effective EU law rights. It is also common ground that six years is a reasonable period of limitation for an action to recover tax charged contrary to EU law, and that if English law had always provided for the period to run from the date of payment in cases of mistake, then that too would have been reasonable. Broadly stated, the issue on this appeal is whether the United Kingdom was entitled to change the law relating to the running of the limitation period, without notice or transitional provisions for actions which were pending or in the pipeline. The commissioners say that the change related only to actions to recover tax paid under a mistake of law and that there are other causes of action unaffected by the change which satisfy the United Kingdoms obligation to provide an effective means of recovering the tax. The Test Claimants say, in bald summary, (i) that every cause of action available to them for common law restitution is, on analysis, an action for relief against the consequences of a mistake and therefore affected by the change, (ii) that so far as there are other causes of action available to them which are not affected by the change, they are subject to legal limitations which make it impossible to regard them as an effective means of recovery, and (iii) that irrespective of the fate of points (i) and (ii) the United Kingdom was not entitled to curtail, without notice or transitional provisions, the availability of any cause of action which might serve their purpose. In my judgment, the Test Claimants and other companies in their position have an effective means of recovering the overpaid tax under the principle stated by the House of Lords in the landmark decision in Woolwich Equitable Building Society v Inland Revenue Commrs [1993] AC 70. The availability of that cause of action entirely satisfies the obligations of the United Kingdom under the EU Treaty, notwithstanding that it is subject to a limitation period which runs from the date of payment. Neither section 320 of the Finance Act 2004 nor section 107 of the Finance Act 2007 had any impact on a claim made on that basis, because both enactments were concerned only with actions for the recovery of tax paid under a mistake of law. Mistake of law is a more limited cause of action, which is neither necessary nor sufficient to satisfy the obligations of the United Kingdom under the EU Treaty. In those circumstances, I consider that the validity of those enactments depends entirely on whether they defeated the legitimate expectations of taxpayers as that concept is understood in EU law. I do not think that section 320 of the Finance Act 2004 can be criticised on that ground. Its effect was that the limitation period for an action to recover tax paid under a mistake of law was to run from the date of payment in the same way as the limitation period for an action to recover tax on any other ground. It was announced almost as soon as the existence of a right to recover tax paid under a mistake of law had been judicially recognised. It follows that taxpayers in the position of these claimants cannot at the relevant time have had any reasonable expectation that a cause of action to recover tax paid under a mistake of law would be available to them. For that reason, I think that they would suffer no injustice if section 320 of the 2004 Act were to be given effect according to its terms, whereas a significant injustice would be suffered by the general body of taxpayers if it were not. Different considerations apply to section 107 of the 2007 Act, which was retrospective in an altogether more radical and objectionable sense. It does not surprise me that the European Commission has referred the enactment of 2007 to the European Court of Justice, but has taken no comparable step in the case of the enactment of 2004. I propose in this judgment to deal first with the general principles of EU law which are relevant, and on which I believe that there is substantial agreement among the members of the court. I shall then address the argument that a claim to recover overpaid corporation tax on the principle in Woolwich Equitable is not enough to satisfy those principles. I shall then, finally, return to EU law to consider the main question which has divided this court, namely whether, even if English law did not need to make available a right to recover the tax on the footing of mistake, having done so it could lawfully curtail the limitation period for that right retrospectively and without warning or transitional provisions. EU law Unlike Value Added Tax and certain other taxes and duties which are required and directly regulated by EU law, corporation tax is a creature of the domestic law of the United Kingdom. Apart from the limited requirements of Directive 90/435/EEC relating to withholding tax and double taxation relief, it is not subject to any EU scheme of harmonisation. Like other national tax systems, however, corporation tax is affected by EU law because it must be assessed and collected on a basis consistent with the Treaty. In particular, it must comply with the requirements of the single market, including the freedom of establishment and the free movement of capital guaranteed by what are now articles 49 and 63 of the Treaty: Commission v France (Case C 270/83) [1986] ECR 273; Staatssecretaris van Financien v Verkooijen (Case C 35/98) [2000] ECR I 7321. The internal market is a domain in which competence is shared between the institutions of the EU and those of member states under article 4 of the Treaty. It follows that even in cases where EU law confers direct rights on private parties, it is for national courts applying national law to determine what rights of action are available against member states to vindicate those rights, and subject to what v eG conditions. procedural or other Landwirtschaftskammer fur das Saarland Case 33/76 [1976] ECR 1989 (Rewe I), the principle was stated at para. 5 in terms which have been repeated or paraphrased in many cases decided since: In Rewe Zentralfinanz it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law. Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each member state to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature. Where necessary, articles 100 to 102 and 235 of the Treaty enable appropriate measures to be taken to remedy differences between the provisions laid down by law, regulation or administrative action in member states if they are likely to distort or harm the functioning of the Common Market. In the absence of such measures of harmonization the right conferred by Community law must be exercised before the national courts in accordance with the conditions laid down by national rules. The position would be different only if the conditions and time limits made it impossible in practice to exercise the rights which the national courts are obliged to protect. One consequence of this, as the court pointed out in Metallgesellschaft Ltd v Inland Revenue Comrs (Joined Cases C397/98 and C410/98) [2001] Ch 620, para 81, is that the nature, basis and legal classification of rights of action available for this purpose in the national court is a matter for national courts: It must be stressed that it is not for the court to assign a legal classification to the actions brought by the plaintiffs before the national court. In the circumstances, it is for the claimants [Metallgesellschaft Ltd. and others and Hoechst AG] to specify the nature and basis of their actions (whether they are actions for restitution or actions for compensation for damage), subject to the supervision of the national court. This is, however, subject to the overriding requirement derived from the Treaty and referred to in the passage which I have quoted from Rewe I, that national legal systems should provide a minimum standard of protection for EU law rights. In the case law of the Court of Justice, the standard of protection required is embodied in two principles which are restated in almost every decision on the point. First, the substantive and procedural provisions of national law must be effective to protect EU law rights (the principle of effectiveness). Their enforcement in national law must not be subject to onerous collateral conditions or disproportionate procedural requirements. They must not render virtually impossible or excessively difficult the exercise of rights conferred by EU law. Secondly, the relevant provisions of national law must not discriminate between the rules and procedures applying to the enforcement of EU law rights, and those applying to the enforcement of comparable national law rights (the principle of equivalence). There is a third principle which features less prominently in the case law on this subject but is of considerable importance because it informs the approach of the Court of Justice to the first two. This is the principle of legal certainty, which lies at the heart of the EU legal order and entails (among other things) that those subject to EU law should be able clearly to ascertain their rights and obligations. One aspect of that principle is that within limits EU law will protect within its own domain legitimate expectations adversely affected by a change in the law. The leading case on the principle of effectiveness is Amministrazione delle Finanze dello Stato v SpA San Giorgio (Case 199/82) [1983] ECR 3595. This concerned charges levied for frontier health inspections of imported animals or animal products under Italian legislation but contrary to EU law. Italian law provided for the recovery of the charges on conditions that were in themselves perfectly acceptable, but which were in practice almost impossible to satisfy because of the exacting rules of evidence applicable to such claims. The court held (para 12): In that connection it must be pointed out in the first place that entitlement to the repayment of charges levied by a member state contrary to the rules of Community law is a consequence of, and an adjunct to, the rights conferred on individuals by the Community provisions prohibiting charges having an effect equivalent to customs duties or, as the case may be, the discriminatory application of internal taxes. Whilst it is true that repayment may be sought only within the framework of the conditions as to both substance and form, laid down by the various national laws applicable thereto, the fact nevertheless remains, as the court has consistently held, that those conditions may not be less favourable than those relating to similar claims regarding national charges and they may not be so framed as to render virtually impossible the exercise of rights conferred by Community law. These principles were restated in the judgments of the European Court of Justice in Metallgesellschaft [2001] Ch 620, paras 84 86 and in the first reference in this litigation: FII Group Litigation v Inland Revenue Comrs (Case C 446/04) [2007] STC 326, paras 201 208. It follows that a member state is in principle required to repay charges levied in breach of Community law: Socit Comateb v Directeur Gnral des Douanes et Droits Indirects (Joined Cases C 192/95 to 218/95) [1997] ECR I165, para 20. Subsequent case law has emphasized the absolute character of this obligation. The only exception which has been recognized to date is the case where the charge has been passed on by the party who paid it, with the result that he would be unjustly enriched were he to recover it for his own benefit: see Webers Wine World Handels GmbH v Abgabenberufenskommission Wien (Case C 147/01) [2003] ECR I 11365, para 94. So, although national courts and legislatures are the masters of their own law and procedure, in so far as the legal system of a member state fails to give adequate effect to directly effective EU law rights, it is incumbent on national courts to give effect to those rights by filling the gap between existing causes of action or if necessary to create a new one: see Unibet (London) Ltd v Justitiekanslern (Case C432/05) [2008] All ER (EC) 453, paras 40 1. The combined effect of (i) the requirement of EU law that there must be an effective right of recovery of tax charged contrary to that law and (ii) the primacy of national law as the source of that right, is that EU law does not, indeed cannot, require that national law should recognise or create any particular cause of action or any particular remedy. It simply requires that whatever causes of action or remedies exist in national law must, taken as a whole, be effective and non discriminatory. The implications of these principles for the operation of rules of limitation in national systems of law is the subject of a considerable body of case law in the Court of Justice. Not only is limitation a feature of every national legal system of the EU, but the recognition of national rules of limitation as both necessary and desirable is treated as part of the principle of legal certainty in EU law. In Rewe I [1976] ECR 1989, one of the first cases to come before the Court of Justice about the application of limitation periods to claims to enforce directly effective rights in the area of tax, the court observed (para 5) that the laying down of such time limits with regard to actions of a fiscal nature is an application of the fundamental principle of legal certainty protecting both the tax payer and the administration concerned. This is so, notwithstanding that the effect of that rule is to prevent in whole or in part the repayment of those charges: Haahr Petroleum Ltd v benr Havn (Case C 90/94) [1997] ECR I 4085, para 45. Subject to the overriding principles of effectiveness and equivalence, EU law recognizes the public interest in orderly national budgeting and equity between generations of taxpayers, which will generally require rules for establishing clear limits beyond which tax accounts may not be reopened. In the present appeals it has not been argued that section 320 of the Finance Act 2004 or section 107 of the Finance Act 2007 are inconsistent with the principle of equivalence. I do not find that surprising. The two enactments with which we are concerned apply in precisely the same way to claims to recover taxes charged contrary to domestic and EU law. So far as they create practical limitations on a claimants choice of legal route to recovery, they have precisely the same effect whether the charging of the tax was contrary to EU or domestic law. It is not suggested in these appeals that either enactment offended against the principle in Deville v Administration des Impts (Case 240/87) [1988] ECR 3513 on the ground that they were specifically targeted at the assertion of rights under EU law. We are therefore concerned on these appeals only with the principle of effectiveness and the principle of the protection of legitimate expectations. The fundamental requirement of the principle of effectiveness is that limitation periods should be reasonable, ie not so short as to make recovery by action impossible or excessively difficult: see Rewe I, [1976] ECR 1989, and Comet v Produktschap voor Siergewassen (Case 45/76) [1976] ECR 2043, paras 16 18. But the assessment of what is reasonable allows for considerable variation between different national systems. There is abundant case law concerning limitation periods much shorter than six years, which have been held to be reasonable. Moreover, it is not inconsistent with the principle of effectiveness that under national law the limitation period for the recovery of unlawful charges should run from the time of payment: see Edilizia Industriale Siderurgica Srl (Edis) v Ministero delle Finanze (Case C 231/96) [1998] ECR I 4951, para 35, Ministero delle Finanze v SPAC (Case C 260/96) [1998] ECR I 4997, para 32. Nor is there any rule of EU law requiring the running of a limitation period to be deferred until the existence of a right to recover the payment has been judicially established. It is not uncommon for a claim to repayment to have become time barred in national law while proceedings are still in progress to determine whether the member state was in breach of EU law. This was, for example, the position in Rewe I. It was also the position in many of the decisions about the retrospective curtailment of limitation periods, which I shall consider next. The curtailment of an existing limitation period gives rise to special considerations. There are two objections that might in principle be taken to it. First, even if the change applies only to future claims, it is likely to operate retrospectively to some extent. It will usually extinguish the possibility of enforcing existing rights to recover sums which have already been paid and could in due course have been reclaimed and recovered under the previous law, but are time barred under the new one. This necessarily engages the principle of effectiveness. Of course, the legislation may also be retrospective in the more radical sense of abrogating claims that have already been properly made under the old law. The second potential objection is that to the extent that the change is retrospective, it may offend against the principle of legal certainty. People must be taken to appreciate that the law may be changed. But until it is, they are entitled to organise their affairs on the basis of the law as it stands and to assume a sufficient measure of predictability in its future development to enable them to exercise their EU law rights. This means that if they have already paid money which is in principle recoverable, they are entitled to be guided by the existing law when deciding how long they have left in which to claim. This objection is commonly analysed as depending on the principle of the protection of legitimate expectations. But this is not really a distinct principle. It has been described as the corollary of the principle of legal certainty, which requires that legal rules be clear and precise, and aims to ensure that situations and legal relationships governed by Community law remain foreseeable: Duff v Minister of Agriculture, Ireland (Case C 63/93) [1996] ECR I 569, para 20. It is one manifestation of the broader principle that those subject to the law should be able to ascertain their rights and obligations at the time that they are called on to decide what to do about them. EU law might have taken an absolute line on national legislation retrospectively extinguishing the possibility of enforcing existing rights to recover money charged contrary to EU law. In fact, it has taken a more flexible and nuanced position. It follows from the liberty given to member states to devise their own domestic law means of giving effect to EU rights, that national legislatures are in principle entitled to change their laws. Because they are not obliged to provide more than the minimum level of protection for EU rights necessary to make them effective, the changes may adversely affect claims to assert EU rights, provided that the new law still provides an effective means of doing so. The compromise which EU law has adopted between these conflicting considerations is to allow the retrospective curtailment of limitation periods within limits set by the principle of the protection of legitimate expectations. Legislation curtailing limitation periods is in principle consistent with the principle of effectiveness provided that a period of grace, which may be quite short, is allowed, either by giving sufficient advance notice of the change or by including transitional provisions in the legislation. These propositions are derived from the four leading decisions of the Court of Justice on this question, namely Aprile Srl v Amministrazione delle Finanze dello Stato (Case C 228/96) [2000] 1 WLR 126 (Aprile II), Dilexport Srl v Amministrazione delle Finanze dello Stato (Case C 343/96) [1999] ECR I 579, [2000] All ER (EC) 600, Grundig Italiana SpA v Ministero delle Finanze (Case C 255/00) [2003] All ER (EC) 176, and Marks & Spencer v Customs & Excise Comrs (Case C 62/00) [2003] QB 866. The first two cases had a similar legal background. Italy had unlawfully levied charges equivalent to customs duties, which the claimant sought to recover under Italian law. Italian law conferred a general right to recover payments made without legal basis (pagamento non dovuto) under article 2033 of the Civil Code, which was subject to the general limitation period of ten years provided for by the article 2946 of the Code. In addition, there was a specific right to a refund under the Consolidated Customs Code in cases of calculation errors in the assessment or the application of a duty other than that laid down in the tariff, which was subject to its own limitation period of five years. The latter right had no application to a claim for a refund of tax charged contrary to Community law. These provisions were amended by legislation so that the limitation period in the Customs Code applied to actions under article 2033 whenever the claim was for a refund of sums paid in connection with customs operations. In other words, the limitation period for the only relevant right of recovery, under article 2033, was reduced from ten years to five. It is clear that the decisive considerations which led the Court of Justice to conclude that the amendment was consistent with the EU law were (i) that the reduced limitation period was still long enough to satisfy the principle of effectiveness and (ii) that the Italian courts had treated the amending legislation as allowing claimants a period of grace of three years from the time the amending legislation came into force, which meant that the legislation cannot be regarded as having retrospective effect; see Aprile II, para 28 and Dilexport, para 42. This was not enough to help the claimants, for the period of grace had already expired by the time that they succeeded in obtaining a judicial decision that the charges were unlawful. But it was held to be enough to satisfy the principle of effectiveness. In Grundig Italiana [2003] All ER (EC) 176, the Court of Justice had to consider the minimum transitional period which would enable a retrospective curtailment of the limitation period to satisfy EU law. The case concerned the same amending legislation which had featured in Aprile II and Dilexport, but a different aspect of it, namely the reduction of the special limitation period from five years to three, which took effect ninety days after the legislation came into force. This transitional period was held to be too short. The court considered that a period of grace must be sufficient to allow taxpayers who initially thought that the old period for bringing proceedings was available to them a reasonable period of time to assert their right of recovery in the event that under the new rules they would already be out of time (para 38). In the context of an original limitation period of five years, six months was the least that should have been allowed (para 42). It is accordingly clear that a reasonable period of grace may be considerably shorter than the amount by which the limitation period has been abridged. It is a period long enough to allow potential claimants to consider their position, not a period long enough to save every existing right of recovery. In none of the Italian cases was separate consideration given by the Court of Justice to the principle of the protection of legitimate expectations. But that principle must necessarily have informed the courts analysis of what was required by the principle of effectiveness. The point was made in terms by Advocate General Ruiz Jarabo in his opinion in Grundig Italiana, where he observed that a retrospective reduction in the limitation period without a period of grace would be contrary to the principle of effectiveness on the grounds that the reduction is unexpected and contrary to the principle of the protection of legitimate expectations and to the principle of legal certainty (para 30). The court must have agreed with that. It was critical to its view that legislation retrospectively curtailing an existing limitation period so as to bar some existing rights, would nevertheless be consistent with the principle of effectiveness if it allowed a sufficient period of grace for taxpayers to adjust their plans to the new order of things. In Marks & Spencer [2003] QB 866, the facts were more complex. It was a reference from the Court of Appeal in England about a claim to recover VAT unlawfully charged by the Commissioners of Customs and Excise. By statute, the only right to obtain a refund from the Commissioners was by way of a claim under section 24 of the Finance Act 1989 (subsequently section 80 of the Value Added Tax Act 1994). Subsections (4) and (5) of section 24 provided for a six year limitation period, which was to run from the date of payment save in cases of mistake, when it was to run from the time when the mistake was or could with reasonable diligence have been discovered. On 18 July 1996, the government announced its intention of introducing what later became section 47(1) of the Finance Act 1997. The effect of this enactment was to reduce the limitation period for the statutory claim from six years to three, and to provide that it was to run in all cases from the time of payment. Section 47(2) provided that subsection (1) should be deemed to have come into effect on 18 July 1996 and should apply to all claims unsatisfied at that date whether made before or afterwards. There were no relevant transitional provisions. The reference was concerned with a claim to recover VAT overpaid on sales of gift vouchers. This claim was affected by the reduction of the limitation period to three years. It was not affected by the removal of the extended period of limitation in cases of mistake, because the relevant payments had all occurred within six years before the claim was made. But the facts are complicated by the existence of another claim, to recover VAT paid in respect of sales of teacakes going back to 1973, which was significantly affected by the removal of the extended limitation period. The teacakes claim was not part of the reference: see the Advocate General at para 27. But before us a submission was based on it by Mr Aaronson QC (for the Test Claimants) because of the analogy with the removal of the extended period of limitation in the present case. It is therefore right to point out that it arose only in the context of a preliminary observation of the Advocate General about the way in which the Court of Appeal had framed the reference. The Court of Appeal had limited it to (i) the gift vouchers claim, (ii) the reduction of the limitation period from six years to three, and (iii) the period before August 1996 when the Sixth VAT Directive 77/388/EEC had been in force but not properly transposed into the law of the United Kingdom. The Advocate General, while acknowledging that the court was bound by the terms of the reference, pointed out that it had been framed on the assumption that the Directive had no further relevance as a source of rights once it had been properly transposed into English law in August 1996. This assumption was in his opinion wrong: paras 32 34. He thought that the Court of Appeals error about the period in which the Directive was relevant had led it to treat the whole of the teacakes claim and the later part of the gift vouchers claim as depending only on national law: see paras 30 and 44, and his citations from the judgments of the High Court and the Court of Appeal at para 32. None of this had anything to do with the compatibility of section 47 of the Finance Act 1997 with EU law. The Court of Justice, in its judgment, agreed that the Court of Appeals assumption about the Directive was mistaken (paras 22 28), but dealt only with the application of the 1997 Act to the gift vouchers claim: see para 13. The Court of Justice had no difficulty in concluding that section 47 was contrary to the principle of effectiveness. There was only one means allowed by English law of recovering overpaid VAT, and the effect of the amendment was to extinguish without notice any possibility of using that method to recover overpayments between three and six years old. Indeed, it extinguished it even when there was already a pending claim at the date of the announcement. The court took the opportunity to restate the effect of previous case law in the following terms: 35. As regards the latter principle, the court has held that in the interests of legal certainty, which protects both the taxpayer and the administration, it is compatible with Community law to lay down reasonable time limits for bringing proceedings: Aprile, paragraph 19, and the case law cited therein). Such time limits are not liable to render virtually impossible or excessively difficult the exercise of the rights conferred by Community law. In that context, a national limitation period of three years which runs from the date of the contested payment appears to be reasonable (see, in particular, Aprile, paragraph 19, and Dilexport, paragraph 26). 36. Moreover, it is clear from the judgments in Aprile [2000] 1 WLR 126, para 28, and Dilexport [1999] ECR I 579, paras 41 and 42, that national legislation curtailing the period within which recovery may be sought of sums charged in breach of Community law is, subject to certain conditions, compatible with Community law. First, it must not be intended specifically to limit the consequences of a judgment of the court to the effect that national legislation concerning a specific tax is incompatible with Community law. Secondly, the time set for its application must be sufficient to ensure that the right to repayment is effective. In that connection, the court has held that legislation which is not in fact retrospective in scope complies with that condition. 37. It is plain, however, that that condition is not satisfied by national legislation such as that at issue in the main proceedings which reduces from six to three years the period within which repayment may be sought of VAT wrongly paid, by providing that the new time limit is to apply immediately to all claims made after the date of enactment of that legislation and to claims made between that date and an earlier date, being that of the entry into force of the legislation, as well as to claims for repayment made before the date of entry into force which are still pending on that date. 38. Whilst national legislation reducing the period within which repayment of sums collected in breach of Community law may be sought is not incompatible with the principle of effectiveness, it is subject to the condition not only that the new limitation period is reasonable but also that the new legislation includes transitional arrangements allowing an adequate period after the enactment of the legislation for lodging the claims for repayment which persons were entitled to submit under the original legislation. Such transitional arrangements are necessary where the immediate application to those claims of a limitation period shorter than that which was previously in force would have the effect of retroactively depriving some individuals of their right to repayment, or of allowing them too short a period for asserting that right. The decision is also notable as being the one case in this area in which the court has given separate and explicit consideration to the principle of the protection of legitimate expectations. It did so because it was expressly invited to deal with both effectiveness and legitimate expectations by the terms of the Court of Appeals reference. But it dealt with the point under both heads. In dealing with the principle of effectiveness, it observed (para 38) that the principle of effectiveness required that potential claimants should be given time to assert existing rights under the old law. This was because (para 39) the right of member states to impose reasonable limitation periods was an exception to the rule that member states must repay taxes charged in breach of Community law, and that exception was founded on the principle of legal certainty. However, in order to serve their purpose in ensuring legal certainty, limitation periods must be fixed in advance. In other words, the curtailment of limitation periods is consistent with the principle of effectiveness if it is subject to provisions protecting legitimate expectations. As the Advocate General had pointed out in his opinion (para 68), the principle of protecting legitimate expectations is based on the need for legal certainty. Addressing the same point, the court held: 44. In that connection, the court has consistently held that the principle of the protection of legitimate expectations forms part of the Community legal order and must be observed by the member states when they exercise the powers conferred on them by Community directives: see, to that effect, Krcken (Case 316/86) [1988] ECR 2213, para 22, Alois Lageder SpA v Amministrazione delle Finanze dello Stato (Joined Cases C 31 to C 44/91) [1993] ECR I 1761, para 33, Belgocodex v Belgian State (Case C 381/97) [1998] ECR I 8153, para 26, and Grundstckgemeinschaft Schlossstrasse GbR v Finanzamt Paderborn (Case C 396/98) [2000] ECR I 4279, para 44). 45. The court has held, in particular, that a legislative amendment retroactively depriving a taxable person of a right to deduction he has derived from the Sixth Directive is incompatible with the principle of the protection of legitimate expectations (Schlossstrasse, cited above, paragraph 47). 46. Likewise, in a situation such as that in the main proceedings, the principle of the protection of legitimate expectations applies so as to preclude a national legislative amendment which retroactively deprives a taxable person of the right enjoyed prior to that amendment to obtain repayment of taxes collected in breach of provisions of the Sixth Directive with direct effect. Whether it is put on the basis of the principle of effectiveness or the protection of legitimate expectations or on a combination of the two, the rule of EU law which requires a reasonable period of grace before a retrospective curtailment of the limitation period can be lawful, assumes that claimants generally can legitimately count on having the whole of the old limitation period in which to bring whatever claims may be available to them as a matter of domestic law, unless they have a reasonable warning that the position is about to change. Thus far, I do not think that there is any fundamental difference in principle between my views and those of other members of the court. The assumption that a claimant can legitimately count on having the whole of the old limitation period in which to bring whatever claims are available to him is one which would normally be made as a matter of course. But this is not an ordinary case. The position is complicated by the highly unusual way in which the right to recover unlawfully charged tax has developed in England over the last two decades. It is a problem which could only have arisen in a common law country such as England, where the law of restitution has been the piecemeal creation of judges while limitation is exclusively the creature of statute. To these peculiarly English developments, I now turn. Rights of recovery in English law Until surprisingly recently, English law afforded only very limited possibilities of recovering overpaid tax. As Lord Goff of Chieveley observed in Woolwich Equitable Building Society v Inland Revenue Comrs [1993] AC 70, 172, English law had not recognised a condictio indebiti allowing an action for the recovery of payments on the simple ground that they were not due. It has still not done so. It is necessary, as the law presently stands, to bring the facts within one of the categories of case in which the law recognises that the recipients retention of the money would be unjust. The relevant categories as they had stood for a considerable time up to 1992 were described by Lord Goff in his speech in Woolwich Equitable at pp 164 166. Money was recoverable if it was paid under a mistake of fact, but not if it was paid under a mistake of law (as it generally would be if taxes were paid which were not duly authorised by law). It was recoverable if it was exacted by actual or threatened duress to the person or to the persons goods, but not on a mere threat to assert a claim by a method provided for by law (for example, by legal proceedings). It was recoverable if it was demanded by a public official or a person charged with a statutory duty as a condition of his performing his duty. None of these situations was likely to cover the case where a taxpayer paid money which was not in fact due under the relevant legislation, because it had been misconstrued or was contrary to EU law, or because (being secondary legislation) it was ultra vires the enabling Act. A limited statutory right to claim repayment from the Commissioners had been introduced in 1923 by section 24 of the Finance Act of that year. Substantially the same provision has remained in force in successive statutory iterations ever since. It is currently to be found in section 33 of the Taxes Management Act 1970. In that form, its effect is that overpaid tax may be reclaimed if (i) it was charged by an assessment, (ii) the assessment was excessive because of a mistake in the taxpayers return, (iii) in the case of a mistake about the basis on which the taxpayers liability should be computed, the return was not in the relevant respect made in accordance with the practice generally prevailing at the time, and (iv) having examined all the relevant circumstances of the case, the Board of Inland Revenue or the Special Commissioners on appeal from them considered that repayment would be reasonable and just. It will be apparent that if tax was paid under invalid or unlawful legislation the claim will almost inevitably fail on the ground that the return having been made in accordance with the statute it accorded with the practice generally prevailing at the time. Even if the taxpayer can demonstrate that his return was not in accordance with that practice, the fate of his claim will depend on the exercise of a discretion by the Commissioners. His only right is to have his claim fairly considered in the light of all relevant circumstances. As Lord Goff pointed out in Woolwich Equitable (at p 170B), historically this provision presupposed that there was no right of recovery at common law. The first major change in this state of affairs occurred with the judgment of the House of Lords in the Woolwich Equitable case, which was delivered on 20 July 1992. The Woolwich Equitable Building Society paid the composite rate tax charged on building societies under statutory regulations which it considered to be ultra vires the enabling primary legislation, and which it then successfully challenged in proceedings for judicial review. It took this course because it was concerned about the reputational damage that it might suffer if it was seen to withhold tax which other building societies were paying, at a time when there had been no definitive decision on the status of the regulations. The Commissioners, having failed to justify the charge in the judicial review proceedings, repaid the tax, but declined to recognise that they were bound to do so and therefore felt entitled to reject a claim to interest. The question at issue was whether the Commissioners had been bound to repay the principal and were therefore amenable to an order for the payment of interest as well. Woolwich was unable to bring itself within any of the established categories of restitution. In particular, it could not claim repayment on the ground of mistake, because it had not been mistaken. It had always believed that the regulations were void. Nor could it claim under section 33 of the Taxes Management Act 1970, because there had been no assessment. It had pre empted an assessment by paying. It followed that under the law as it had previously stood, the claim for interest was bound to fail. The question, as Lord Goff put it at p 171, was whether the House in its judicial capacity should reformulate the law so as to establish that the subject who makes a payment in response to an unlawful demand of tax acquires forthwith a prima facie right in restitution to the repayment of the money. The claim failed in the High Court, but it succeeded, by a majority, first in the Court of Appeal and then, on somewhat different grounds, in the House of Lords. In summary, the House of Lords fashioned a cause of action which was (i) acknowledged to be new, (ii) specific to the case of money charged by a public authority in the absence of a valid statutory power to do so, and (iii) available irrespective of whether the payer was mistaken or whether, if he was mistaken, his mistake was one of fact or law. It was not necessary in Woolwich Equitable to consider the rule that money paid under a mistake of law was irrecoverable. That question came before the House of Lords in 1998 in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, one of the last cases to be decided in the great tide of litigation arising out of ultra vires interest rate swap agreements with local authorities. Kleinwort Benson had made net payments to the local authorities under the terms of these agreements, which they claimed had been made under a mistake of law, namely that they were valid. In the High Court, Langley J dismissed the claims on the ground that the law did not recognise a right to recover in these circumstances. The case was leapfrogged to the House of Lords on the ground that the Court of Appeal would be bound by authority to reach the same conclusion. In the House of Lords, the bank acknowledged that the existing law did not allow the recovery of money paid under a mistake of law. For their part, the local authorities made no attempt to defend that state of the law in principle, in the face of sustained criticism by academic writers and the Law Commission, its total or partial abandonment in many common law jurisdictions, and the recognition of a wider basis of recovery, independent of mistake, in major civil law systems, notably those of Germany, France and Italy. The fundamental issue before the appellate committee was whether the law should be changed by judicial decision, or the task left to Parliament. The House allowed the appeal and recognised a right in principle to recover money paid under a mistake of law, while acknowledging that this represented a departure, even a major departure, from what has previously been considered to be established principle: see Lord Goff at p 378. For a number of years it remained uncertain whether the new cause of action to recover money paid under a mistake of law extended to mistaken payments of tax. Kleinwort Benson was a case about private law transactions. In his speech Lord Goff (with whom on this point the rest of the appellate committee agreed) expressed the view at pp 381 382 that there was a distinction between claims to recover payments made in private law transactions and claims to recover payments of taxes and other charges levied by public authorities. In the latter category, payments were recoverable as of right under the principle laid down in Woolwich Equitable without the need to invoke a mistake of law, or under section 33 of the Taxes Management Act in cases of mistake to which that provision applied. Lord Goff continued at p. 382: Two observations may be made about the present situation The first observation is that, in our law of restitution, we now find two separate and distinct regimes in respect of the repayment of money paid under a mistake of law. These are (1) cases concerned with repayment of taxes and other similar charges which, when exacted ultra vires, are recoverable as of right at common law on the principle in Woolwich, and otherwise are the subject of statutory regimes regulating recovery; and (2) other cases, which may broadly be described as concerned with repayment of money paid under private transactions, and which are governed by the common law. The second observation is that in cases concerned with overpaid taxes, a case can be made in favour of a principle that payments made in accordance with a prevailing practice, or indeed under a settled understanding of the law, should be irrecoverable. If such a situation should arise with regard to overpayment of tax, it is possible that a large number of taxpayers may be affected; there is an element of public interest which may militate against repayment of tax paid in such circumstances; and, since ex hypothesi all citizens will have been treated alike, exclusion of recovery on public policy grounds may be more readily justifiable. The Commissioners, relying mainly on this passage, subsequently contended that tax was subject to a special legal regime, and that the only cause of action at common law for the recovery of overpaid tax was a cause of action on the principle stated in Woolwich Equitable. The recognition of this basis of claim, it was said, impliedly excluded all other bases of claim apart from the statutory procedure under section 33 of the Taxes Management Act 1970. This proposition was tested in Deutsche Morgan Grenfell Group Plc v Inland Revenue Comrs [2007] 1 AC 558. The case foreshadowed some of the issues on the present appeals, and was the genesis of section 320 of the Finance Act 2004. It concerned claims for the recovery of interest on corporation tax which the European Court of Justice had held to have been prematurely charged in Hoechst/Metallgesellschaft. The taxpayer company wanted to claim interest for the period when it was out of pocket, on the footing that the tax itself had been paid under a mistake of law. It took this course because a claim on that basis would benefit from the extended limitation period under section 32(1)(c) of the Limitation Act 1980, whereas claims based on Woolwich Equitable or section 33 of the Taxes Management Act ran from the time of payment and would have been time barred. There were three main issues: (i) whether, in a case covered by the principle in Woolwich Equitable, a common law claim based on mistake was also available to the taxpayer; (ii) if so, what was the mistake, bearing in mind that the tax had been paid in accordance with the correct construction of the taxing Acts, which was only later shown to be inconsistent with EU law by the decision of the Court of Justice in Metallgesellschaft Ltd v Inland Revenue Comrs (Joined Cases C 397/98 and 410/98) [2001] Ch 620; and (iii) at what stage, for the purpose of section 32(1)(c) of the Limitation Act 1980, could it be said that the taxpayer discovered or could with reasonable diligence have discovered that mistake, so as to start the limitation period running. Park J gave judgment on 18 July 2003. He decided all three questions in favour of the taxpayer, and held that accordingly a claim on the basis of mistake was available to it. In February 2005, the Court of Appeal unanimously overruled him and held that it was not. The House of Lords restored the judgment of Park J on 25 October 2006. On the first issue, the House held that the claimant could choose between concurrent causes of action on the principle in Woolwich Equitable and on the basis of mistake of law. On the second issue, there were some differences of reasoning within the majority of the appellate committee, but all of them agreed that by virtue of the theory that judicial decisions are deemed to declare the existing law, the taxpayer company had made a retrospective or deemed mistake. The mistake consisted in its failing to appreciate that it was entitled to make a group income election and defer the payment of tax, notwithstanding that the statute said that it did not have this right. On the third issue, the House of Lords held that under section 32(1)(c) of the Limitation Act 1980 the limitation period for a claim in respect of that mistake did not start to run simply because the claimant was aware of a worthwhile claim or of doubts about the lawfulness of the legislation. It started to run only when the Court of Justice definitively held that the relevant features of the United Kingdom corporation tax regime were contrary to EU law. The combined effect of the decisions on these three points was in one respect extremely remarkable. If tax was overpaid under a mistake of law, then provided that a claim to recover it was brought before six years had elapsed from the judgment establishing the correct legal position, there was no limit upon how far back the claim could go. In the present cases, it goes back to the accession of the United Kingdom to the Common Market in 1973. If it had arisen from a mistake of purely domestic law, it might have gone back to the inception of corporation tax in 1965. In other cases where the unlawfulness of the charge depended wholly on English law, it could in principle go back indefinitely. It has been suggested in argument before us that once the House of Lords in Kleinwort Benson [1999] 2 AC 349 had accepted the right to recover money paid under a mistake of law, the Commissioners case in Deutsche Morgan Grenfell was never likely to be accepted. Its acceptance by the Court of Appeal was an aberration, a bump in the road to borrow Mr Aaronsons arresting phrase. Such arguments often sound plausible in hindsight, after the highest court has laid down the law, and ultimately of course the Commissioners argument was not accepted. But it was nevertheless a formidable argument, to which the observations of Lord Goff appeared to lend substantial support. In Kingstreet Investments v New Brunswick (Finance) [2007] 1 SCR 3, considerations rather similar to those raised by Lord Goff had led the Supreme Court of Canada to treat claims to recover unlawfully charged tax as governed by a distinct body of constitutional principle relating to tax charged without legislative authority, and not by the general law of unjust enrichment. At least part of the Canadian courts reasoning was that the concurrent availability of both causes of action was liable to have unacceptable collateral consequences: see paras 32 42 (Bastarache J). Indeed, the decision of the House of Lords in Deutsche Morgan Grenfell is even now not beyond academic controversy. The decision on issue (ii) is criticised by the current editors of Goff & Jones, The Law of Unjust Enrichment, 8th ed (2011), paras 22.29 22.31 on grounds closely related to the observations which I have quoted from Lord Goff in Kleinwort Benson. I do not intend by making these points to reopen a debate which has been settled for more than five years. My point is more straightforward: no reasonable and well advised person could have counted on the decision in Deutsche Morgan Grenfell going the way it did on all three points, until the House of Lords delivered its judgment. Section 320 of the Finance Act 2004 was a direct response to the decision of Park J in Deutsche Morgan Grenfell. It altered not the limitation period itself but the statutory rule postponing its commencement in cases of mistake until the taxpayer had discovered or could with reasonable diligence have discovered the mistake. It had the effect of barring older claims for repayment of tax paid under a mistake which might otherwise have succeeded. But the mischief to which section 320 was addressed was not the existence of a right to repayment, whether arising from EU or domestic law, but the problem created by Park Js decision that section 32(1)(c) of the Limitation Act 1980 might now enable past tax accounts to be reopened without limit of time. Is the right to bring a claim based on Woolwich Equitable an effective remedy? Logically, the first question to be decided is whether a cause of action based on the Woolwich Equitable principle is an effective means of asserting the right to repayment required by EU law. The Test Claimants say that it is not. Therefore, the argument runs, their only effective means of recovery was by way of an action to recover on the ground of mistake, and their right to bring such an action has been unlawfully curtailed by section 320 of the Finance Act 2004. They make three points. First, they say that a claim based on Woolwich Equitable requires an unlawful demand by a public authority and is not therefore available to recover taxes such as advance corporation tax which are paid with the return, not upon an assessment or other demand by the Commissioners. Second, the Court of Appeal has held, applying the principle in Marleasing SA v La Comercial Internacional de Alimentacin SA (Case C106/89) [1990] ECR I 4135 that section 231 of the Income and Corporation Taxes Act 1988 (which provides for a tax credit in respect of distributions paid by UK resident companies) can be given a construction which, however strained, applies it to distributions by companies resident anywhere in the EU. It follows, they say, that there is nothing unlawful about section 231 which can engage the principle in Woolwich Equitable. If either of these points is right, then a claim based on Woolwich Equitable is not an effective remedy in this case. Third, the Test Claimants submit that section 320 of the Finance Act 2004 and section 107 of the Finance Act 2007 curtail the limitation period for a claim based on Woolwich Equitable, because although such a claim does not legally depend on mistake, they were in fact mistaken. Their action is therefore an action for relief from the consequences of a mistake for the purposes of section 32(1)(c) of the Limitation Act 1980. If this point is right, then Parliament has without warning curtailed the limitation period for all available methods of obtaining restitution, apart from a claim under section 33 of the Taxes Management Act for a small part of the overpayment and a somewhat problematical claim for damages founded on the principle of state liability stated by the European Court of Justice in Francovich v Italian Republic (Joined Cases C 6/90 and 9/90) [1999] ICR 722, [1991] ECR I 5357. The Test Claimants need only be right on one of these three points, but in my view they are wrong on all of them. The demand point In spite of the importance attached to this point in argument, it can I think be dealt with quite shortly. The speeches of the majority in Woolwich Equitable [1993] AC 70 are full of expressions which, read literally and out of their analytical context, might support the suggestion that the cause of action recognised in that case was dependent on the making of an unlawful demand: see Lord Goff at 171F G, 172B C, 174C D, 177F, Lord Browne Wilkinson at 196G H, 197C H, 198B C, G H, and Lord Slynn of Hadley at 199B D, 200B C, 201D E, 202G 203A, 204F H, 205A B. None of the majority in Woolwich Equitable discusses what they meant by a demand. But both the facts of the case and the reasoning of the majority show that they cannot have had in mind a formal demand by the Inland Revenue triggering a payment or an apparent obligation to pay. The facts, which are succinctly set out by Ralph Gibson LJ in the Court of Appeal (pp 104 105) show that Woolwich Equitable did not pay the composite rate tax in response to a formal demand. The inspector had simply invited it to agree figures and the collector had sent it a return form. The society sent in a return computed according to the Regulations, under cover of a letter informing them that they proposed to challenge their validity in legal proceedings. They then paid without prejudice to the outcome. As Lord Goff pointed out (at p 169) no assessment was ever made, because Woolwich pre empted it by paying. It is fair to look for the reasoning of the House of Lords mainly in the classic analysis of Lord Goff, although similar points were made by Lord Browne Wilkinson, who agreed with Lord Goff in terms and by Lord Slynn, who agreed with him in substance. It is apparent that the mischief which justified in Lord Goffs eyes a special rule for unlawful charges by public authorities was (i) that no tax should be collected without Parliamentary authority, and (ii) that citizens did not deal on equal terms with the state, and could not be expected to withhold payment when faced with the coercive powers of the Revenue, whether those powers were actually exercised or merely held in reserve: see pp. 172. At pp. 175 176, Lord Goff adopted the dissenting judgment of Wilson J in the Supreme Court of Canada in Air Canada v British Columbia (1989) 59 DLR (4th) 161. In her judgment, Wilson J had expressed the view that there was a general right to recover money paid under unconstitutional legislation, and deprecated any suggestion that it must have been paid under protest. The reason, as she pointed out at p 169, was that the legislature holds out its legislation as valid and that any loss resulting from payment under it should not fall on the totally innocent taxpayer whose only fault is that it paid what the legislature improperly said was due. The emphasis in this reasoning was on the unlawful character of the legislation, with which in practice the citizen was bound to comply even if it might subsequently be shown to be void. This approach has subsequently been adopted by the Supreme Court of Canada in Kingstreet Investments Ltd v New Brunswick (Finance) [2007] 1 SCR 3, to which I have already referred in another context. Lord Goff not only found the reasoning of Wilson J most attractive (p 176D), but expressed his own conclusions in very similar terms. In the end, he said (p 173), logic appears to demand that the right of recovery should require neither mistake nor compulsion, and that the simple fact that the tax was exacted unlawfully should prima facie be enough to require its repayment. The exaction of which he is speaking here is not confined to demands by any particular administrative agency of the state. It includes exaction by the state by enacting void legislation, which taxpayers are likely to pay because they know that the state will act on the footing that it is valid. It is not a condition of the taxpayers right of recovery that it should have put the matter to the test by waiting until the Inland Revenue insisted. In a passage at p 177 which strikingly foreshadows some of the issues in the present appeals, Lord Goff assimilated the rule of English law as he had formulated it to the absolute right of recovery recognized by the European Court of Justice in San Giorgio (Case 199/82) [1983] ECR 3595 in cases where tax was charged contrary to EU law. Although the majority of the appellate committee stopped well short of adopting a concept of absence of legal basis as a general ground of recovery even in cases of taxation without lawful authority, Lord Browne Wilkinsons analysis of the legal basis of recovery in such cases was also very similar to that of the case law of the Court of Justice. Money unlawfully demanded was recoverable because it was paid for no consideration: see p 198. The word demand as it was used in the speeches in Woolwich Equitable referred in my view simply to a situation in which payment was being required of the taxpayer without lawful authority. Nothing in the principle underlying the decision turned on the mechanism by which that requirement was communicated to the taxpayer. It is therefore a matter of supreme indifference whether it was communicated by assessment, or by some other formal mode of demand, or by proceedings for enforcement, or by the terms of the legislation itself coupled with the knowledge that the Inland Revenue would be likely to enforce it in accordance with those terms. The Marleasing point The Court of Appeal [2010] STC 1251, para 107 held that on the principle of conforming construction stated in Marleasing, section 231 of the Income and Corporation Taxes Act 1988 should be construed so as to remove the discriminatory features of the United Kingdoms advance corporation tax regime. For present purposes we must assume that they were right about this. An appeal on that issue is not before us. The right to apply for permission to appeal on it has been deferred pending the outcome of the second reference to the Court of Justice and its application by the courts below. The argument of the Test Claimants is that on the assumption that the Court of Appeals construction is correct the legislation conformed to EU law. Therefore, it is said, the principle in Woolwich Equitable is not engaged. Marleasing (Case C 106/89) [1990] ECR I 4135, at any rate as it has been applied in England, is authority for a highly muscular approach to the construction of national legislation so as to bring it into conformity with the directly effective Treaty obligations of the United Kingdom. It is no doubt correct that, however strained a conforming construction may be, and however unlikely it is to have occurred to a reasonable person reading the statute at the time, a later judicial decision to adopt a conforming construction will be deemed to declare the law retrospectively in the same way as any other judicial decision. But it does not follow that there was not, at the time, an unlawful requirement to pay the tax. It simply means that the unlawfulness consists in the exaction of the tax by the Inland Revenue, in accordance with a non conforming interpretation of what must (on this hypothesis) be deemed to be a conforming statute. This is so, notwithstanding that the tax may have been paid without anything in the nature of a formal demand by the Inland Revenue. The rule as the House of Lords formulated it in Woolwich Equitable is in large measure a response to realities of the relationship between the state and the citizen in the area of tax. The fact that as a matter of strict legal doctrine a statute turns out always to have meant something different from what it appeared to say is irrelevant to the realities of power if it was plain at the relevant time that the tax authorities would enforce the law as it then appeared to be. Strictly speaking, in Woolwich Equitable itself there were no unlawful regulations, because, being ultra vires the enabling Act, they were and always had been a nullity. But that did not stop the Woolwich from recovering. The section 32(1)(c) point Section 32(1) is (so far as relevant) in the following terms: Postponement of limitation period in case of fraud, concealment or mistake (1) where in the case of any action for which a period of limitation is prescribed by this Act, either (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. The argument for the Test Claimants on these appeals is that in section 32(1)(c) actions for relief from the consequences of a mistake are not confined to actions where the mistake is part of the legal foundation of the claim. They extend to at least some actions where it was merely part of the history. Mr Rabinowitz QC (who argued this point for the Test Claimants) accepted some limitations of the range of relevant mistakes. He said that there had to be a sufficient causal nexus between the mistake and the claim, in the sense that the facts constituting the cause of action have come to pass because of the mistake. It followed that although the Woolwich Equitable cause of action was available to claimants in the position of his clients regardless of whether they were mistaken or not, those who were in fact mistaken in some historically relevant respect would have benefitted from the extended limitation period until the law was changed by section 320 of the Finance Act 2004. They have been deprived without notice of that right. Section 320(6) removes any doubt about this by providing that it applies to any action or c1aim for relief from the consequences of a mistake of law, whether expressed to be brought on the ground of mistake or on some other ground (such as unlawful demand or ultra vires act). Section 32(1) of the Limitation Act 1980 substantially re enacts section 26 of the Limitation Act 1939, with one minor change to paragraph (b) (from concealment by fraud to deliberate concealment). The Act of 1939 was a notable monument of law reform, replacing an incoherent series of statutes and equitable rules by a coherent statutory scheme. It was enacted on the recommendation of the Law Revision Committee in its Fifth Interim Report (Cmd 5334), which was prepared in 1936 under the auspices of Lord Wright, then Master of the Rolls. Section 26 substantially followed the language of the report. It is clear from paragraphs 22 and 23 of the Committees report that the intention was to replicate certain features of the rules applied by courts of equity in the absence of any statutory limitation period. The equitable rules on this subject had originally been developed in the context of cases involving fraud. The doctrine of laches was applied by analogy with statutory limitation at law, save that in cases of fraud time ran from the point when the fraud was discovered or could with reasonable diligence have been discovered, and not from the accrual of the right as it did at law. It is clear that fraud was relevant in equity in two circumstances, (i) that the right to equitable relief was itself based on fraud, in the sense that fraud was a legally essential element of it, and (ii) that whether or not the right to relief was based on fraud, its existence had been concealed from the plaintiff by the fraud of the defendant. The Law Revision Committee summarised the position at paragraph 22 of their report as follows: Either the cause of action may spring from the fraud of the defendant or else the existence of a cause of action untainted in its origin by fraud may have been concealed from the plaintiff by the fraudulent conduct of the defendant. In 1936, when the Committee was considering these matters, there was inconsistent authority on the question whether since the fusion of law and equity the equitable rule about the running of time in cases of fraud applied to causes of action at law. They recommended that it should. The result was section 26(a) and (b) of the 1939 Act, corresponding to section 32(1)(a) and (b) of the 1980 Act. These two paragraphs dealt with the two circumstances in which fraud was relevant to postpone the running of time in equity, as summarised in the Committees report. As applied to fraud neither paragraph admits of the construction now proposed by the Test Claimants. Paragraph (a) is concerned with cases where the action is based upon fraud, ie where it is part of the legal foundation of the claim. Paragraph (b) is concerned with cases where fraud by the defendant is not necessarily part of the legal basis of the claim, but it has concealed the relevant facts from the claimant and thereby delayed his taking action to enforce his right. The fact that fraud, although no part of the legal basis of the claim, may have brought about the factual situation which is the legal basis of the claim, does not engage either paragraph. The reason for enacting section 26(c) of the Limitation Act 1939 (now section 32(1)(c) of the Act of 1980) was that courts of equity had previously applied the equitable rule relating to fraud by analogy to cases of mistake. As Baron Alderson put it in Brooksbank v Smith (1836) 2 Y & C Ex 58, mistake is within the same rule as fraud. The Law Revision Committee considered that in this respect the rule for mistake should be the same at law, and at paragraph 23 of their report they recommended the statutory reversal of the decision in Baker v Courage [1910] 1 KB 56, which had held that it was not. Section 26(c) of the 1939 Act was the result. On the face of it, therefore, the intention behind paragraph (c) was to replicate the rule of equity by providing that mistake should give rise to an extended limitation period in the same circumstances in which fraud had that effect under paragraph (a), namely where it was the legal basis of the claim. The use of a different phraseology in (a) and (c) (an action for relief from. instead of based upon) simply reflects the phraseology used in the Committees discussion, which was lifted verbatim from the report by the Parliamentary draftsman. There is no indication in the report itself that the difference was thought to be significant. It is fair to say that there are cases decided in equity before the Limitation Act 1939 where the court does not seem to have asked itself whether the mistake was the foundation of the cause of action. Brooksbank v Smith itself was one of them. Denys v Shuckburgh (1840) 4 Y& CEx 42, also decided by Baron Alderson, was another. In both cases, the reason for this appears to have been that Baron Alderson was trying to apply the equitable rule about fraudulent concealment (corresponding to section 31(1)(b)) by analogy to cases of mistake, by holding that a mistake on the part of the plaintiff which concealed from him his right was equivalent to the dishonest or deliberate concealment of his right by the defendant. If so, the idea was still born. Lord Wrights committee may well have had these cases in mind when it went out of its way in paragraph 23 of its report to say that they desire[d] to make it clear, however, that the mere fact that a plaintiff is ignorant of his rights is not to be a ground for the extension of time. Our recommendation only extends to cases when there is a right to relief from the consequences, of a mistake. This reservation was adopted by the draftsman of section 26 of the Limitation Act 1939 and the corresponding provision of the 1980 Act, both of which exclude from the ambit of paragraph (b) cases where the claimant was mistaken about the existence of his right. There are clearly obscurities about how the old rule in equity operated before statute intervened, attributable at least in part to the absence of analysis in the few reported cases. But there is, as it seems to me, no difficulty in ascertaining what rule the Law Revision Committee thought that it was proposing to Parliament. Nor, in my view, is there any real difficulty in understanding what Parliament must have intended by accepting that proposal when it enacted section 26(c) of the 1939 Act. The point has been directly considered only once, by Pearson J in Phillips Higgins v Harper [1954] 1 QB 411. That was an action by an assistant solicitor to enforce a term of her contract of employment which entitled her to a share of the profits of the firm for which she worked. She claimed to have been underpaid under the profits agreement for the whole 13 years of her employment. In response to a plea of limitation in respect of the early years, she contended that she had been mistaken in failing to realise that she was being underpaid, and relied on section 26(c) of the Limitation Act 1939. Pearson J rejected her argument. In his view the wording of the provision was carefully chosen to indicate a class of actions where a mistake has been made which has had certain consequences, and the plaintiff seeks to be relieved from those consequences (p 418). He gave as examples an action for the restitution of money paid in consequence of a mistake; or for the rescission or rectification of a contract on the grounds of mistake; or an action to reopen accounts settled in consequence of a mistake. Mrs. Phillips Higginss alleged mistake had no consequences relevant to her cause of action. Its only consequence was that because she was unaware that she had a cause of action she missed the limitation period. But that is not sufficient, said Pearson J; Probably provision (c) applies only where the mistake is an essential ingredient of the cause of action, so that the statement of claim sets out, or should set out the mistake and its consequences and pray for relief from those consequences (p 419). It is fair to say about this reasoning that Mrs. Phillips Higgins would have failed even on Mr Rabinowitzs construction of the Act, because the mistake that she alleged was not the cause of the factual situation which she relied on for her claim. It only explained why she had allowed so long to pass before bringing her action. But what matters for present purposes is that her argument failed because her action was an action for relief from a breach of contract, to which the fact that she was mistaken was legally irrelevant. As Pearson J went on to point out, No doubt it was intended to be a narrow provision, because any wider provision would have opened too wide a door of escape from the general principle of limitation. I think that it is difficult to fault Pearson Js succinct and principled analysis of the point. Section 32(1)(c) refers to a type of action and a type of relief. They are assumed to be organically related to the relevant mistake. But if the Test Claimants are right, there is no organic connection, but only an adventitious one. The result would be a state of the law that would operate quite arbitrarily. Some Woolwich Equitable claims would benefit from the extended limitation period while others would not, depending on whether the underlying facts arose from a mistake. I can see no principled ground for making such a distinction in a context where the mistake has no bearing on the nature of the action or the relief claimed. It has been suggested by academic commentators that this result may be anomalous, in that the extended period of limitation applies to a claim to recover a mistaken overpayment of a debt but not to a claim to recover a mistaken underpayment. Pearson J himself drew attention to this in his judgment in Phillips Higgins at p 419. But for my part, I do not see the anomaly. The difference simply arises from the fact that if the claimant is underpaid and sues for the balance, he is enforcing the obligation that gave rise to the debt, whereas if he is overpaid then that obligation will have been discharged, so that he needs some other legal basis for getting it back. By comparison, there are far graver anomalies associated with the wider construction proposed by the Test Claimants. Once one departs from a construction of the subsection which requires the cause of action to be founded on the mistake, it is difficult to discern any principled limit to the reach of this provision. Mr Rabinovitz distinguishes between cases where the mistake, albeit legally irrelevant, was an effective cause of the facts giving rise to the claim and cases where it was merely a background fact. I find this distinction conceptually difficult to grasp and almost impossible to apply. Questions of causation are notoriously difficult and highly sensitive to the legal context in which they fall to be answered. Where parties have fallen out, there is very likely to be mistake on the part of the claimant somewhere in the chain of events that led to his losing money or property. If at some stage he could have done something to save himself from loss, in what circumstances is that to be a sufficient causal nexus between the legally irrelevant mistake and the legally relevant facts which give rise to the claim? The question will often be incapable of a clear answer. Moreover, if the test is not to depend on whether the claimant is asserting one of the established grounds of relief from the consequences of his mistake, and depends on the mere fact that a mistake has brought about the situation in which he has a claim, then there is nothing in the language or purpose of the provision which would limit it to his own mistakes. It could be the defendants mistake against whose consequences the plaintiff is seeking to be relieved, for example by an action for damages. This would mean that section 26(c) of the Limitation Act 1939 unwittingly covered at least part of the ground which Parliament later covered by providing an extended limitation period for actions for damages for negligence or in respect of personal injuries and certain categories of property damage: see sections 11 to 14B of the Limitation Act 1980. Mr Rabinowitz disclaimed any suggestion that the extended limitation period would apply to a claim for damages, with the possible exception of damages for misrepresentation or negligent mis statement. This was no doubt tactically wise. But it is hard to see how such a restriction can be justified if his basic submission is accepted. The difficulties associated with the claimants construction of section 32(1)(c) persuade me that Lord Wright is unlikely to have proposed such an indefinite rule without any discussion of these problems, and that Parliament is unlikely to have intended to enact it. In an ideal world, all rules of law would be clear, but there are few areas where clarity is as important as it is in the law of limitation, whose whole object is to foreclose argument on what ought to be well defined categories of ancient dispute. Mistake It follows that the principle in Woolwich Equitable applies generally in all cases where tax has been charged unlawfully, whether by the legislature or by the tax authorities, whether by overt threats or demands or simply by the taxpayers appreciation of the consequences of not paying, and whether the taxpayer was mistaken or not. By comparison, an action for restitution on the ground of mistake is a more limited remedy, for the obvious reason that it is necessary to prove the mistake. That will not always be easy, as the facts of Woolwich Equitable itself demonstrate. On the face of it, the only case where the Woolwich Equitable cause of action is probably not available and where a claimant may therefore need a right of restitution for mistake, is the case where there is no unlawful exaction of tax but the taxpayer has simply paid in error: e.g. he has miscalculated his liability under a self assessed tax or accidentally paid twice. But that has no bearing on the position of the present claimants. Does this mean that that the existence of the Woolwich Equitable cause of action in English law is enough to satisfy the obligations of the United Kingdom in EU law? The Test Claimants submit that it does not. Their case is that notwithstanding the sufficiency of a Woolwich Equitable claim as a means of recovering unlawfully charged tax, at least in the circumstances of the present case, EU law requires that English law should also maintain a fully effective cause of action to recover tax paid by mistake. Two quite different arguments are advanced in support of this proposition. The first is that EU law specifically requires that national legal systems should provide for the recovery of overpaid taxes in all cases where they were not due, including the one case where the principle in Woolwich Equitable probably has no application, viz where there is no breach of EU law by the state but the taxpayer has simply overpaid by mistake. I shall call this the absence of basis point. The second argument is that even if EU law does not specifically require national law to confer a right to recover taxes overpaid on the ground of mistake, if national law allows a choice between two causes of action to recover the tax, each of them must be independently effective. I shall call this the choice of remedies point. The absence of basis point The Test Claimants argument is that the obligation of a member state to provide an effective means of recovering overpaid taxes is not limited to cases where the state was in breach of EU law. It also applies in cases where the national law entirely conformed with EU law but the claimant paid more than the law required of him. This, they submitted, reflected the principle of restitution applied in EU law and in most civil law jurisdictions (but not England) that a payment is recoverable merely on account of the absence of a legal basis for making it: see Masdar (UK) Ltd v Commission of the European Communities (Case C 47/07) [2008] ECR I 9761, paras 44 46, 49. In Reemtsma Cigarettenfabriken GmbH v Ministero delle Finanze (Case C35/05) [2007] ECR I 2425 a German company purchased services from an Italian advertising agency and paid VAT to them which was not due. There was nothing wrong with the relevant provisions of Italian law for charging and collecting the tax, which in the relevant respects entirely conformed with the Directives. The Italian tax authorities had charged no tax unlawfully. All that happened was that the German purchaser received an invoice from the Italian supplier for the VAT and paid it, not appreciating that the relevant services were by law deemed to have been supplied in Germany. The supplier then accounted for the tax to the Italian tax administration. There was no provision of the two relevant VAT Directives requiring a refund to be made in these circumstances, but it was held that the principle of effectiveness required Italy to make available an effective means of recovering sums paid but not due, either from the Italian supplier or from the state. Mr Aaronson QC argued that the juridical basis for the obligation to repay overpaid tax in these circumstances was the mere absence of a legal basis for the original payment. I think that he may well be right about that. But the reason for the decision was that VAT is an EU tax whose incidence and administration is governed by mandatory requirements of EU law. The purpose of the VAT Directives is to produce a harmonized system operating according to uniform rules across the EU. The payment of VAT otherwise than in accordance with that scheme distorts its uniform operation. The point was made in Danfoss AS and Sauer Danfoss ApS v Skatteministeriet (Case C 94/10), 20 October 2011, where a similar result was arrived at in the context of the common EU scheme for taxing mineral oils. In its judgment in that case, the court observed (para 23) that the purpose of a right of recovery in a harmonized tax scheme is not only compensatory but economic. The right to the recovery of sums unduly paid helps to offset the consequences of the duty's incompatibility with EU law by neutralising the economic burden which that duty has unduly imposed on the operator who, in the final analysis, has actually borne it. In those circumstances, a right of action to recover money paid but not due is required so that the economic burden of the duty unduly paid can be neutralised (para 25). If this issue were to arise in England in the context of an EU tax, the case would be classified in English law as one of mistake and recovery could probably be had on no other basis. But where the relevant tax is wholly a creature of national law, and no tax has been charged in breach of EU law, EU law is not engaged at all. The choice of remedies point This point is at the heart of the division of opinion within this court. The Test Claimants argue, and the majority agrees, that the principle of effectiveness in EU law requires that all remedies which are available to recover the tax should be independently effective for that purpose. Therefore, so the argument goes, it was not open to the United Kingdom to compromise the effectiveness of the right to recover on the ground of mistake by curtailing the limitation period for that right without a period of grace. In argument, this point was founded mainly on the decision of the European Court of Justice in Rewe Handelsgesellschaft Nord mbH v Hauptzollamt Kiel (Case 158/80) [1982] 1 CMLR 449 (Rewe II). This was another case about VAT and excise duty chargeable under the terms of a Directive. It concerned not an unlawful charging of tax, but an unlawful exemption from tax. The claimants were companies operating supermarkets in German coastal towns, who were adversely affected by tax free sales made in international waters during shopping cruises in the Baltic which began and ended in Germany. Under the terms of the Directives, a limited exemption was allowed for goods coming from member states in the personal luggage of travellers, but German law allowed an exemption of its own which was in some respects wider. The Court of Justice held that the exemption in the Directive was not available for sales made on shopping cruises beginning and ending in the same member state, that the tax ought to have been charged, that the incidence of VAT and excise duty was an occupied field governed exclusively by Community law, and that Germany had accordingly had no power to grant further exemptions of its own. The relevant question for present purposes concerned the remedies available to rival traders against the cruise operators. German law allowed a right of action to those adversely affected by breaches of national laws regulating economic activity. At para 40 of its judgment, the Court of Justice referred to this German right of action and then summarised the question at issue as follows: Placed in that context, the questions raised by the national court are intended in substance to establish whether that right of action may be exercised in similar conditions within the framework of the Community legal system in particular in the sense that if the economic interests of a person to whom Community law applies are adversely affected by the non application of a Community provision to a third party, either through the action of a member state or of the Community authorities, that person may institute proceedings before the courts of a member state in order to compel the national authorities to apply the provisions in question or to refrain from infringing them. The courts answer to that question appears at para 44 of the judgment: it must be remarked first of all that, although the Treaty has made it possible in a number of instances for private persons to bring a direct action, where appropriate, before the Court of Justice, it was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law. On the other hand, the system of legal protection established by the Treaty, as set out in article 177 in particular, implies that it must be possible for every type of action provided for by national law to be available for the purpose of ensuring observance of Community provisions having direct effect, on the same conditions concerning the admissibility and procedure as would apply were it a question of ensuring observance of national law. In their printed case (paragraph 67) the Test Claimants rely on this statement of principle, and in particular the passage which I have italicised, as authority for the proposition that EU law requires a right to choose from the range of national remedies. Of course the Test Claimants do have a right to choose either or both of a Woolwich Equitable claim or a claim based on mistake. Neither of the Acts of 2004 and 2007 took it away from them. Their real complaint is not that the right to claim on the basis of mistake of law has been withdrawn, but that the law has been changed to make it subject to a period of limitation running from the date of payment in the same way as the limitation period for a Woolwich Equitable claim. The argument, as it was developed at the hearing, was that even on the footing that a Woolwich Equitable cause of action was enough and that the United Kingdom was not obliged to confer an additional right to recover tax paid by mistake subject to an extended limitation period, since it has chosen to do so, the principle of effectiveness requires that that right with its extended limitation period should remain available for the purpose of recovering tax charged contrary to EU law. This submission is accepted by the majority on the present appeal. I regret that I am unable to accept it for three reasons. First, the argument is not supported by either the decision or the reasoning in Rewe II, nor by the many subsequent cases in which the relevant statement has been cited. Rewe II was concerned with the principle of equivalence, as the language and the legal context show. The issue was whether Germany was bound to make a right of action derived from economic regulation under its national law available to litigants who wanted to enforce comparable rights derived from economic regulation under Community law. What the court was saying was that any cause of action available to enforce a national law right must be equally available to enforce a corresponding Community law right. Provided that there remains an effective remedy, it does not follow from this that national law is bound to maintain that cause of action subject to unchanged incidents or conditions. Nothing was said in Rewe II about protecting the choice of litigants between concurrent national law rights or remedies. The question did not arise because the Court of Justice was considering the only German law remedy which appeared to exist. Second, the Test Claimants submission is inconsistent with the established case law of the Court of Justice. In Edilizia Industriale Siderurgica Srl v Ministero delle Finanze (Case C 231/96) [1998] ECR I 4951 and Ministero delle Finanze v SPAC (Case C 260/96) [1998] ECR I 4997, para 32, the facts were that in breach of a Directive which prohibited taxes on the raising of capital, Italy had charged fees for registering companies. The general limitation period under the Civil Code was ten years, but the decree law authorizing the registration fees provided (and always had provided) for their repayment within three years if they had been wrongly charged. The Italian courts had held that as a matter of domestic law, the effect of the creation of a specific right to repayment within three years under the decree law was to displace the general right conferred by the Civil Code to claim restitution on the ground of absence of basis within ten years. One of the questions referred was whether Italy was bound to make available the cause of action with the more generous limitation period for the purpose of giving effect to EU law rights. The court held that it was not. Provided that the right of action carrying the more restrictive limitation period was effective and applied without discrimination whether the claim to repayment was based on EU or national law, there was no obligation to provide in addition a right of action under the Civil Code with a more generous limitation period. In Edilizia Industriale Siderurgica Srl v Ministero delle Finanze, the court said: 36. Observance of the principle of equivalence implies, for its part, that the procedural rule at issue applies without distinction to actions alleging infringements of Community law and to those alleging infringements of national law, with respect to the same kind of charges or dues (see, to that effect, Amministrazione delle Finanze dello Stato v Salumi (Joined Cases 66/79, 127/79 and 128/79) [1980] ECR 1237, para 21. That principle cannot, however, be interpreted as obliging a member state to extend its most favourable rules governing recovery under national law to all actions for repayment of charges or dues levied in breach of Community law. 37. Thus, Community law does not preclude the legislation of a member state from laying down, alongside a limitation period applicable under the ordinary law to actions between private individuals for the recovery of sums paid but not due, special detailed rules, which are less favourable, governing claims and legal proceedings to challenge the imposition of charges and other levies. The position would be different only if those detailed rules applied solely to actions based on Community law for the repayment of such charges or levies. The same observations were made in Ministero delle Finanze v SPAC SpA, at paras 20 and 21. They were later repeated and applied in Aprile II and Dilexport, where the facts were very similar (see paras 151 152 above) but the question arose from a change in the law. Third, the Test Claimants argument is contrary to principle. The starting point for any analysis of the law in this area is that, subject to the principles of effectiveness and equivalence, it is for national law to determine what remedies are available to enforce a directly effective EU right and on what procedural or other conditions. I have made this point already: see paragraph 145 above. The right of the claimants to choose from the range of causes of action recognised by English law is a right derived solely from English procedural law and it exists only to the extent that English law so provides. So long as the principles of effectiveness and equivalence are respected, a choice between concurrent national law remedies need not exist, and in some member states does not exist, at any rate to the same extent. Thus English law allows a claimant to choose between concurrent rights of action in contract and tort, a principle which was applied by analogy in Deutsche Morgan Grenfell [2007] 1 AC 558 to allow a choice between concurrent rights to recover under the Woolwich Equitable principle and on the ground of mistake. French law, by comparison, is more prescriptive. The principle of non cumul des responsabilits, which excludes delictual claims which fall naturally within the scope of a contract is generally thought to reflect a more general juristic preference for keeping legal categories distinct and allowing claims to be brought in the category to which their subject matter is appropriate. The same approach appears to lie behind the restriction of claims under the general doctrine of unjust enrichment (enrichissmement sans cause lgitime) to cases where no other action is available: Flour, Aubert et Savaux, Droit civil, Les obligations, 2 Le fait juridique, 11th ed. (2011), 57 64. I can see no principled reason why EU law should wish to control these divergent features of national legal systems, provided that the choice which the relevant law mandates and the conditions on which it does so are non discriminatory and effective to vindicate EU rights. The protection of legitimate expectations: Finance Act 2004, section 320 I have already analysed the case law of the Court of Justice on the retrospective curtailment of limitation periods for the exercise of directly effective EU law rights. It establishes, first, that the retrospective curtailment of a limitation period is not necessarily inconsistent with the principle of effectiveness; and, secondly, that the combined effect of the principle of effectiveness and the principle of the protection of legitimate expectations is to preclude national legislatures from retrospectively curtailing the limitation period applicable to the recovery of overcharged tax, unless there is a sufficient period of grace to enable actual and potential claimants to safeguard their existing rights. However, it is important to note that in every case in which these principles have been considered by the Court of Justice, the amending legislation curtailed the limitation period for the only right available in national law for recovering the tax. In none of them was there an effective right of recovery on another legal basis, unaffected by the amendment. The observations of the Advocate General and the court, especially those made in Marks & Spencer must be read in that light. The primary case put forward on behalf of the Commissioners is that because (i) English law would be compatible with EU law if the only means of recovering the overpaid tax was a claim on a Woolwich Equitable basis, and (ii) the Finance Act 2004 did not affect a claim on that basis, it follows that the principles of effectiveness and the protection of legitimate expectations are not engaged at all. In common with every other member of the court, I reject that submission. The reason is that if, as I have sought to demonstrate (i) a right to claim on the principle in Woolwich Equitable with a normal limitation period is an effective means of asserting the Test Claimants EU law right, and (ii) there is no obligation on the United Kingdom in EU law to maintain a concurrent right to claim on the basis of mistake with an extended limitation period, then logically there still remains one complaint that might arguably be made about section 320 of the Finance Act 2004. That complaint is that before the intention to legislate was announced potential claimants were entitled to make their plans on the assumption that they could recover the overpaid tax on the ground of mistake with the benefit of an extended limitation period, but their right to do so was then curtailed without notice or transitional provisions. I think that this complaint depends on the principle of the protection of legitimate expectations, whereas Lord Walker and Lord Reed consider that it can be justified on the basis of the principle of effectiveness alone. I doubt whether this difference matters. In either case, the force of the complaint depends entirely on the proposition that reasonable persons in their position could have made their plans on that assumption. Could they? I think not. If English law had never recognised a right to recover tax on the ground of mistake of law, but only on the basis of the principle in Woolwich Equitable, it is not disputed that that state of affairs would have satisfied the requirements of EU law. If Parliament had retrospectively created a concurrent right to recover tax on the ground of mistake of law, but in the same enactment made it subject it to a limitation period of six years to run from the time of payment, it is not disputed that that state of affairs would also have satisfied the requirements of EU law. The question whether the right to recover money paid under a mistake of law extended to mistaken payments of tax was a difficult question. There were powerful voices raised in favour, such as that of Professor Birks, but also strong and principled arguments against. I have dealt with this matter at paragraphs 166 168 above. Before Park J gave judgment in Deutsche Morgan Grenfell [2003] 4 All ER 645 on 18 July 2003, no one could reasonably have counted on being able to recover tax on the ground of mistake of law. They might have thought that there were strong arguments to that effect, but I do not believe that they could reasonably have assumed when deciding how long they had in which to bring their claims that those arguments would prevail. Even after Park Js judgment, the right to recover tax on the ground of mistake of law was being challenged on appeal on serious grounds. The existence of such a right was rejected by the Court of Appeal [2006] Ch 243 and was not definitively established until the judgment of the House of Lords [2007] 1 AC 558 on 25 October 2006. In a common law system, it is open to the courts to create new causes of action, but limitation is necessarily a matter for the legislature. On 8 September 2003, just seven weeks after the decision of Park J, the government announced its intention to introduce what became section 320 of the Finance Act 2004, with its provision that the limitation period for the newly recognised claim to recover tax on the ground of mistake of law should run from the date of payment and not from the date of discovery. I find it impossible to regard that sequence of events as any different in substance from the situation that would have existed if Parliament had simultaneously created a right to recover tax for mistake of law and subjected it to a limitation period running from the date of payment. If potential claimants in the position of the present appellants claim to have been entitled to count on being able to recover on the ground of mistake of law with an extended limitation period, then the highest that they can put their case is that they were entitled to do so in the seven week interval between 18 July and 8 September 2003. Bearing in mind the brevity of the interval, the virtual certainty of an appeal and the uncertainty about its outcome, the argument that they had a legitimate expectation of the kind suggested seems to me to be unrealistic. In my judgment, section 320 of the Finance Act 2004 was not inconsistent with the protection of legitimate expectations. All that Parliament did was to provide for the limitation period applicable to a cause of action which English law had only just recognised. This was a lawful exercise by Parliament of the discretion allowed to member states as to the conditions regarding limitation on which any national law right is be available. The contrary view of the majority depends on the declaratory theory of judgments. It proceeds upon the basis that when Park J and then the House of Lords held in Deutsche Morgan Grenfell that there was a right to recover tax on the basis of mistake, they were declaring the law as it had always been. At a purely formal level, this proposition is undoubtedly correct. Judgments of the courts about the common law are deemed to be declaratory and not legislative. But we are, I think, in danger of allowing the form to overlay the substance. In Deutsche Morgan Grenfell, at p 570, Lord Hoffmann distinguished between two questions raised by the declaratory theory of judgments: One is whether judges change the law or merely declare what it has always been. The answer to this question is clear enough. To say that they never change the law is a fiction and to base any practical decision upon such a fiction would indeed be abstract juridical correctitude. But the other question is whether a judicial decision changes the law retrospectively and here the answer is equally clear. It does. It has the immediate practical consequence that the unsuccessful party loses, notwithstanding that, in the nature of things, the relevant events occurred before the court had changed the law: see In re Spectrum Plus Ltd [2005] 2 AC 680. There is nothing abstract about this rule. In my judgment, it is the first of Lord Hoffmanns propositions which is relevant for present purposes. The question is not whether the law must be treated as always having been as Park J and the House of Lords declared it to be. It is whether before those judgments were delivered a litigant could reasonably count on being able to recover the overpaid tax on the ground of mistake (with an extended period of limitation), as opposed to being limited to the already established remedy under the Woolwich Equitable principle (with a normal period of limitation). The question must in my judgment be put in this way, because the issue is whether there is an assumption reasonably to be imputed to litigants about how long they had in which to bring their claim, which was then retrospectively falsified by Parliament. The answer to the question cannot depend on any legal fiction. It must depend on the position as it appeared to stand, before those judgments were given. This must in particular be true when one is seeking to apply to the relevant English law principles of EU law which have always depended on substance rather than form. The reality is that the Test Claimants never were in a position to make their plans on the footing that they had a right of action for mistake until at the very earliest the judgment of Park J, but more realistically until the matter was definitively settled by the House of Lords in 2006. It is right to point out that this is substantially the same principle as that on which the Test Claimants themselves rely when they say (with the support of the House of Lords in Deutsche Morgan Grenfell) that they cannot be taken to have discovered their mistake about the lawfulness of the United Kingdoms corporation tax regime until the European Court of Justice definitively decided the point. By the same token, the Test Claimants cannot be taken to have assumed that they had a right to recover the tax on the ground of mistake at a stage when they had arguments and hopes but no definitive decision. The protection of legitimate expectations: Finance Act 2007, section 107 As I have already indicated, I regard this provision as more problematic. It was announced on 6 December 2006, more than three years after the announcement which preceded section 320 of the Act of 2004. It went a great deal further than the earlier enactment, since it applied retrospectively without limit of time to any action brought before the first announcement had been made on 8 September 2003. It might be said that the announcement of 2006 was a response to the decision of the House of Lords in Deutsche Morgan Grenfell and that the interval between judgment and announcement was no greater than it had been in 2003. But the circumstances were different. Companies in the position of the British American Tobacco group who had already brought their actions before the announcement of 8 September 2003 had been expressly excluded from the operation of the legislation proposed on that date. That exclusion was duly contained in section 320 of the Finance Act 2004. The British American Tobacco group and other companies in the same position had been pursuing their claims through the English courts and the Court of Justice on that basis since 2003, when their right to the fruits of those proceedings was removed in 2006. In my view, while they had had no legitimate expectation of being able to bring an action to recover on the ground of mistake of law in 2003, they had acquired such an expectation by 2006, not least as a result of the terms of the announcement of September 2003 and the 2004 Act. It was therefore contrary to the principle of the protection of legitimate expectations, for that expectation to be defeated without notice of transitional provisions. Section 33 of the Taxes Management Act 1970 This provision applies only to assessed taxes, and therefore only to a very small part of the present claims. It confers a right subject to highly restrictive conditions to invoke what is essentially a discretionary power of the Commissioners to grant a refund of overpaid tax. No one suggests on this appeal that such a limited remedy could possibly be enough in itself to satisfy the virtually unqualified obligation of the United Kingdom to provide an effective means of recovering tax overcharged contrary to EU law. This does not of course matter if it is an additional remedy as opposed to an exclusive one. There is certainly nothing in the provision which expressly excludes the availability of other causes of action at common law. If that is its effect, it must be by implication. In the ordinary way, such an exclusion might be implied, on the ground that where Parliament confers a restricted right of recovery, that must impliedly displace a corresponding right at common law which would be unrestricted. However, it is axiomatic that the courts cannot imply an exclusion of unrestricted rights of action at common law where that would be inconsistent with an overriding rule of EU law that an unrestricted right must be available. Section 33 cannot therefore be an exclusive right to recover tax overcharged contrary to EU law. Whether it is an exclusive right in other circumstances, is not a point which needs to be considered on this appeal. The Court of Appeal held that section 33 did impliedly exclude a right of action at common law, even in relation to claims for tax overcharged contrary to EU law. They then dealt with the resulting inconsistency with EU law by reinterpreting the section so as remove the offending restrictions and the element of discretion. I think that this was wrong in principle. I very much doubt whether such radical surgery can be justified even under the extended principles of construction authorised in Marleasing. Its effect would be fundamentally to alter the scheme of the provision. But, however that may be, it seems, with respect, eccentric to imply an ambit for section 33 which is inconsistent with EU law and then to torture the express provisions so as to deal with anomalies that but for the implication would never have arisen. The damages claims In addition to their claims in restitution, the claimants have claims against the Commissioners in damages on the principle of state liability adopted by the European Court of Justice in Francovich v Italian Republic (Cases C 6 and 9/90) [1995] ICR 722. This cause of action is subject to a number of conditions, one of which is that the breach should be sufficiently serious, ie should involve a grave and manifest disregard of the limits of the member states discretion: see Brasserie du Pecheur SA v Federal Republic of Germany (Joined Cases C 46/93 and C 48/93) [1996] QB 404. Both courts below have dismissed the claim for damages on the ground that that condition is not satisfied. That may explain why, although the issues before us were formulated so as to cover their implications for the damages claim also, the argument focused exclusively on the claim for restitution. In fact, the damages claims do not call for separate consideration because neither section 320 of the Finance Act 2004 nor section 107 of the Finance Act 2007 applied to those claims unless they fall within section 32(1)(c) of the Limitation Act 1980. It follows from the construction that I would give to that provision that they do not fall within it. It is not suggested that section 33 of the Taxes Management Act 1970 has any bearing on a claim for damages on the principle of state liability. Conclusion In the result, I would (1) affirm the decision of the Court of Appeal on the requirements of the cause of action based on Woolwich Equitable and the absence of any requirement for an additional remedy in mistake (Issue 12 in their numbering); (2) affirm their decision on the effect of section 32(1)(c) of the Limitation Act 1980) (Issue 22); (3) allow the appeal on section 107 of the Finance Act 2007 (Issues 20 (4) allow the appeal on section 33 of the Taxes Management Act 1970 and 21); and (Issue 23). The question whether section 320 of the Finance Act 2004 is compatible with EU law cannot be decided without a reference to the Court of Justice. It is plain from the novelty of the circumstances in which it arises, and from the differences of opinion within the court that it is not acte clair. I would, however, limit the reference to section 320 of the 2004 Act. LORD REED Lord Walker and Lord Sumption have expressed different views about the way in which EU law applies to the grounds of action available to the test claimants for the recovery of taxes which were levied contrary to EU law, and in particular about the way in which EU law applies to legislation which shortened, retroactively and without transitional provisions, the limitation period applicable to one of those grounds of action. In my opinion, Lord Walkers analysis of the compatibility of section 320 of the Finance Act 2004 and section 107 of the Finance Act 2007 with the principle of effectiveness, and of the compatibility of the latter provision with the principle of the protection of legitimate expectations, is consistent with the relevant case law of the Court of Justice of the European Union. I agree with his reasoning and conclusions in relation to those issues, as well as in relation to the issues of domestic law before the court. For my part, in agreement with Lord Hope and Lord Clarke, I am inclined to the view that section 320 of the 2004 Act also infringes the principle of the protection of legitimate expectations. I add some observations of my own in relation to the issues of EU law only because of the importance of those issues and the division of opinion in the court. It is perhaps unusual to discuss EU law in such detail when the matter is to be referred to the Court of Justice, but in the present case the issues of EU law and domestic law are closely inter related. The difficulties in this case arise partly from the fact that the relevant principles of English law have been in the course of development during much of the relevant period of time. The principal milestones along the road are three decisions of the House of Lords. First, in 1992 the House of Lords held that a taxpayer was entitled to recover taxes paid in response to an unlawful demand: Woolwich Equitable Building Society v Inland Revenue Comrs [1993] AC 70. Secondly, in 1998 the House of Lords held that money paid under a mistake of law was recoverable: Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349. Thirdly, in 2006 the House of Lords held that the latter principle applied to taxes paid under a mistake of law, including taxes paid in ignorance of the fact that the legislation under which they were levied was incompatible with EU law: Deutsche Morgan Grenfell Group plc v Inland Revenue Comrs [2007] 1 AC 558 (DMG). Two other important matters were also decided in that case. The first concerned the limitation period applicable to the claim. In terms of section 32(1)(c) of the Limitation Act 1980, that period would not begin to run until the mistake was discovered, or could with reasonable diligence have been discovered. The House of Lords held that, in the circumstances of the case, the mistake could not be discovered until the incompatibility of the tax with EU law had been established by a judgment of the Court of Justice. The second matter was that the fact that the taxpayer might have a concurrent ground of action under the Woolwich principle, which was subject to a limitation period running from the date of the payment, did not prevent it from pursuing its claim on the ground of mistake if the extended limitation period best suited its interests. Finally, in its present decision this court has held that a taxpayer who pays taxes in compliance with legislation which is incompatible with EU law has a ground of action under the Woolwich principle, in addition to any ground of action which may be available on the basis of mistake. The legislative provisions with which we are now concerned alter the limitation period applicable to claims for the repayment of taxes on the ground of mistake, so that it runs from the date when the payment was made, rather than the date when the mistake was discovered or could reasonably have been discovered. The first provision with which we are concerned, section 320 of the Finance Act 2004, applies to claims which were made on or after 8 September 2003. The second provision, section 107 of the Finance Act 2007, applies to claims made before that date. The claims with which we are concerned were made on 18 June 2003, in the case of the BAT group claimants, and on 8 September 2003, in the case of the Aegis group claimants. They were based on both grounds of action. The principal issue we have to determine is whether the application of the legislation to the claims is compatible with EU law. In considering that issue, there appear to me to be three central questions, which can at this stage be broadly stated as follows. The first is whether the ground of action enabling taxes levied in breach of EU law to be recovered on the basis of mistake falls within the ambit of the EU principle of effectiveness. It is argued that it does not, since the ground of action based on an unlawful demand in itself fully satisfies the requirement of EU law that there should be an effective remedy. Since no additional remedy is required by the principle of effectiveness, it follows, so the argument runs, that the additional ground of action which English law provides, based on mistake, falls outside the scope of that principle. I disagree. As I shall explain, it appears to me that the EU principle of equivalence, which is the complement of the principle of effectiveness, applies to the grounds of action available for the recovery of taxes in domestic law. Where an action for the recovery of taxes under domestic law can be based either on the ground of mistake or on the ground of unlawful demand (or, as in the present case, on both grounds), it follows from the principle of equivalence that both grounds of action should also be available in similar circumstances to enforce an analogous right under EU law. So long as they must both be available, they must also both be effective. The principle of effectiveness therefore applies to both grounds of action. The second question, which arises only if the first question is answered in the affirmative, is whether the application of section 320 of the 2004 Act to the Aegis claims, and of section 107 of the 2007 Act to the BAT claims, is compatible with the principle of effectiveness. As I shall explain, I consider that it is not compatible in either case, since the retroactive curtailment of the limitation period and the absence of any transitional provisions rendered impossible in practice the exercise of rights derived from EU law. If that is correct, it follows that the legislation cannot be relied upon against the claimants, whatever the answer to the third question may be. The third question is whether the application of the legislation to these claims is compatible with the EU principle of the protection of legitimate expectations. That is a question which arises even if the first question is answered in the negative, since the procedural rules laid down by domestic law for the enforcement of rights derived from EU law must be in conformity with the general principles of EU law, including the general principle requiring the protection of legitimate expectations. The answer to the third question is however of no practical significance if the first two questions are answered as I would answer them. In the event, we are all agreed that the application of section 107 of the 2007 Act to the BAT claims is incompatible with the protection of the BAT claimants legitimate expectations. In agreement with Lord Hope and Lord Clarke, I have also reached the same provisional conclusion in respect of the application of section 320 of the 2004 Act to the Aegis claims, for reasons which I shall explain. It might be argued that a fourth question also arises on the facts of these cases: namely, whether the application of the legislation in issue to these claims would be compatible with the rights recognised in the Charter of Fundamental Rights of the European Union (OJ 2000 C 364, p 1) (notably in article 47), to which effect is given by article 6(1) of the Treaty on European Union (TEU), or with the fundamental rights recognised by article 6(3) TEU, including in particular the right of access to a court, guaranteed by article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the right to the peaceful enjoyment of possessions, guaranteed by Article 1 of the First Protocol to the Convention. That question however goes beyond the ambit of the dispute as defined by the parties, and it raises issues on which the court has not been addressed. In those circumstances it would not be appropriate for the court to consider that question of its own motion. My answers to the first three questions in any event produce a result which is not incompatible with the fundamental rights just mentioned. I turn now to consider in greater detail the three questions which I have identified. The mistake ground of action and the principles of equivalence and effectiveness Under the principle of cooperation laid down in article 4(3) TEU, it is for the member states to ensure the effective judicial protection of an individuals rights under EU law: see, for example, Unibet (London) Ltd v Justitiekanslern (Case C 432/05) [2008] All ER (EC) 453, paras 37 44. In particular, in the absence of EU rules governing the matter, it is for the domestic legal system of each member state to lay down the procedural rules governing actions for safeguarding rights which individuals derive from EU law. In a case such as the present, it may seem idiosyncratic to describe the grounds of action available under domestic law as procedural rules, but that description reflects the distinction drawn in the case law of the Court of Justice between the right derived from EU law and the national law by means of which effect is given to that right, which may govern such matters as the procedure to be followed, the period within which claims must be made, and the proof of such claims. That general approach applies to the right to recover the taxes in issue in the present case, to the extent that they were levied in breach of EU law: see the judgment of the Grand Chamber on the first reference in these proceedings, Test Claimants in the FII Group Litigation v Inland Revenue Comrs (Case C 446/04) [2006] ECR I 11814, para 203. As the Grand Chamber stated, the procedural rules laid down by domestic law must comply with two conditions. First, they must not be less favourable than those governing similar domestic actions. That is the principle of equivalence. Secondly, they must not render virtually impossible or excessively difficult the exercise of rights conferred by EU law. That is the principle of effectiveness. Equivalence and effectiveness are complementary requirements. For the purpose of applying the principle of equivalence, a claim for the recovery of taxes levied by a member state in breach of EU law is similar to a claim for the restitution of taxes unlawfully levied under domestic law. In England and Wales, the rules laid down by domestic law governing such claims are in large part rules of common law. The procedure laid down by section 33 of the Taxes Management Act 1970 is an exception. For the reasons given by Lord Walker and Lord Sumption, however, that statutory procedure is not applicable in the circumstances of this case. The relevant rules of common law include those laid down by the House of Lords in the three cases which I have mentioned Woolwich, Kleinwort Benson and DMG and by this court in the present case. In particular, as I have explained, it was held in the DMG case that a person who had mistakenly paid taxes which had been levied in breach of EU law had a ground of action based upon the fact that the payment had been made under a mistake: that is to say, the ground of action whose general nature was established in Kleinwort Benson. The present decision holds that such a person also has a ground of action based upon the fact that the payment was made in compliance with legislation which was incompatible with EU law: that is to say, the ground of action whose general nature was established in Woolwich. The two grounds of action are in some respects subject to different rules, and in consequence one or the other may be more suitable to a claimant, depending upon the circumstances. For example, apart from the legislation in issue in the present case, the two grounds of action are subject to different limitation periods. There may be other differences. In the present case, as I have explained, the claims are based upon both the mistake ground of action and the unlawful demand ground of action. Where both these grounds of action are available for the recovery of taxes which have been levied in breach of domestic law, and a person seeking to recover such taxes can choose to base his claim upon whichever ground of action best suits his interests, it follows from the principle of equivalence that the same grounds of action, and the same freedom of choice, must equally be available in analogous circumstances to a person seeking to recover taxes which have been levied in breach of EU law: otherwise, claims based on EU law would be less favourably treated than similar claims based on domestic law. As the Court of Justice stated in Rewe Handelsgesellschaft Nord mbH v Hauptzollamt Kiel (Case 158/80) [1981] ECR 1805, para 44, the system of legal protection established by the Treaties implies that it must be possible for every type of action provided for by national law to be available for the purpose of ensuring observance of Community provisions having direct effect (emphasis added). It might however be argued that a complication arises from the fact that it had not been definitively decided at the time when the claims were made, or at the time when the legislation was enacted, that those grounds of action were available for the bringing of claims such as those with which the present proceedings are concerned. Does that make a difference to the way in which the principle of equivalence applies? In my view it does not. The decision of the House of Lords in DMG, confirming the soundness of a claim to the repayment of unlawfully levied tax on the basis of a mistake in law, was in no sense prospective only. The decision of this court in the present case, confirming that claims to the repayment of unlawfully levied tax can be made on the basis of the Woolwich principle even in the absence of a formal demand, has similarly determined what the law was at the time when the claims were made. Although each of those decisions determined a question of law which was previously contestable, and can therefore be said to have involved a development of the law, they cannot be equiparated to legislation: such decisions actually, and not merely formally, declare the law that is applicable to the case before the court and all other comparable cases. As Lord Goff of Chieveley explained in Kleinwort Benson at pp 378 379, the declaratory theory of judicial decision is not an aberration of the common law, but reflects the nature of judicial decision making (an aspect which is also reflected in the temporal effects of the judgment of the Grand Chamber on the first reference in these proceedings). It follows that these claims, although made in proceedings which commenced prior to the decisions of the House of Lords in DMG and of this court in the present case, are based on grounds of action which were available under English law at the time when the claims were made, as a means of recovering taxes which had been unlawfully levied, even if that could not have been known with certainty until the matter had been finally determined by the highest courts. It accordingly appears to me that the grounds of action based on mistake and on an unlawful demand were both available at all material times, in the circumstances laid down in the relevant case law, for the recovery of taxes which had been levied contrary to domestic law. It follows from the principle of equivalence that both grounds of action must also have been available in analogous circumstances for the recovery of taxes levied contrary to EU law. That is not, of course, to say that English law was bound to maintain both grounds of action subject to unchanged incidents or conditions; but any changes would have to comply with the requirements of EU law, including the requirement of effective judicial protection. That conclusion is challenged on the basis that the mistake ground of action is neither necessary nor sufficient to meet the requirements of EU law, as laid down in such cases as Amministrazione delle Finanze dello Stato v SpA San Giorgio (Case 199/82) [1983] ECR 3595: it is not necessary, since the unlawful demand ground of action is in itself adequate; and it is not sufficient, since it requires the presence of an additional element besides the levying of the taxes in breach of EU law, namely that they must have been paid under a mistake as to the lawfulness of the domestic legislation. The first of these contentions appears to me to be off the point. The fact that the ground of action based on an unlawful demand satisfies the San Giorgio principle does not exclude the possibility that the ground of action based on mistake also satisfies that principle. Indeed, the ground of action based on mistake is of considerable practical importance as a means of enforcing rights to repayment derived from EU law, as the present case demonstrates, since it enables claims relating to taxes levied in breach of EU law to be brought outside the six year limitation period, reckoned from the date of the payment, which applies to claims based upon the Woolwich principle: a period which may have expired before the mistake as to the validity of the tax legislation is discovered. Admittedly, if English law had evolved differently, and the ground of action based on mistake had not been available, then the ground of action based on an unlawful demand might well have met the requirements of EU law. The fact of the matter, however, is that English law provides two grounds of action which are capable of satisfying the San Giorgio principle, and the principle of equivalence therefore requires that both grounds of action should be available for the enforcement of rights derived from EU law. The second contention also appears to me to be mistaken. The two grounds of action are not identical: in particular, subject to the legislation at issue in the present case, they are subject to different limitation periods. The mistake ground of action admittedly includes an additional element, namely that the taxes were paid under a mistake; but it is the presence of that additional element which enables the claimant to benefit from an extended limitation period which begins when the mistake is discovered or could with reasonable diligence have been discovered, rather than beginning when the payment was made. The mistake ground of action is therefore a valuable remedy for the recovery of taxes levied contrary to EU law. If it were not available for that purpose, then the person who had paid taxes levied contrary to EU law would be in a less favourable position than the person who had a similar claim under domestic law. The principle of equivalence does not of course oblige a member state to extend its most favourable rules governing recovery under national law to all actions for repayment of charges or dues levied contrary to EU law (Edilizia Industriale Siderurgica Srl v Ministero delle Finanze (Case C 231/96) [1998] ECR I 4951, para 36 (Edis)). It was therefore open to the United Kingdom to curtail the limitation period applicable to the ground of action based on mistake without offending against the principle of equivalence, so long as it did so not only for claims based on a breach of EU law but also for similar claims based on a breach of domestic law. That had not however been done by the time the present actions were commenced. Whether the retroactive manner in which the limitation period was subsequently curtailed was compatible with EU law raises issues not in relation to the principle of equivalence but in relation to the principle of effectiveness. If, then, the principle of equivalence required that the mistake ground of action should be available to the claimants at the time when they made their claims, then it follows under EU law that the principle of effectiveness also applied to that ground of action, and continues to apply until the claims are determined. The question which arises, and to which I turn next, is whether the application of section 320 of the 2004 Act to the Aegis claims, and of section 107 of the 2007 Act to the BAT claims, would be compatible with that principle. The application of the principle of effectiveness The principle of effectiveness requires that the national procedural rules required by the principle of equivalence must provide effective judicial protection in conformity with EU law. Taken in conjunction with the principle of equivalence, it is a principle which has far reaching implications for domestic law. The principle of effectiveness may in particular impinge upon domestic laws relating to limitation periods. There is of course no objection in principle to limitation periods under EU law: on the contrary, it is recognised that reasonable periods of limitation are necessary in the interests of legal certainty (Rewe Zentralfinanz eG v Landwirtschaftskammer fr das Saarland (Case 33/76) [1976] ECR 1989, para 5 and Comet BV v Produktschap voor Siergewassen (Case 45/76) [1976] ECR 2043, paras 17 18). Equally, there is no requirement that rights derived from EU law should be subject to the most favourable limitation period available under domestic law, provided the principle of equivalence is respected (Edis). National legislation curtailing the period within which recovery may be sought of sums which have been levied in breach of EU law is not in principle incompatible with EU law. The Court of Justice has however laid down certain requirements with which such legislation must comply. It must for example not be intended specifically to limit the consequences of a judgment of the Court of Justice (see eg Deville v Administration des Impts (Case 240/87) [1988] ECR 3513). In that regard, I note that the Government announced its intention to introduce the provision which became section 107 of the Finance Act 2007 on 6 December 2006, which was the day on which the Court of Justice had rejected the Governments application to re open the hearing in the first reference in this case so as to allow it to seek a temporal restriction to the effect of the judgment. The effect of section 107 is not however confined to the taxes with which the courts judgment was concerned, and it is not contended that the provision offended against the Deville requirement. In the circumstances, I proceed on that basis. A further requirement of legislation curtailing a limitation period is that the arrangements for its entry into force must be consistent with effective judicial protection of the rights derived from EU law. In particular, such legislation must ensure that it remains possible in practice to enforce the right to repayment derived from EU law. In order to understand how that principle applies in the present case, it is helpful to consider some of the judgments of the Court of Justice. First, Aprile v Amministrazione delle Finanze dello Stato (No 2) (Case C 228/96) [2000] 1 WLR 126 concerned a claim for repayment of charges wrongfully levied in 1990, when such claims were subject to the general limitation period of ten years. On 27 January 1991 legislation was enacted which brought such claims within the scope of a shorter limitation period prescribed by customs legislation, which was then a period of five years, and in addition reduced that limitation period to three years as from 27 April 1991. The action was begun on 30 March 1994. It was accepted by the national authorities that the legislation could not be applied to claims which had been lodged prior to 27 April 1991. In that regard, the Advocate General observed at para 41 of his opinion that the legislation would be clearly incompatible with Community law if it applied to claims which had been lodged before that date: the Community principle of legal certainty did not allow such claims to be affected by a later provision not existing at the time of lodgement which detracted from the legal situation of the claimants. The issue concerned claims lodged after 27 April 1991 in respect of payments which had been made at a time when the longer limitation period applied. As the Court of Justice noted, the national courts interpreted the legislation as not having any retroactive effect: it was construed as meaning that persons whose claims had arisen before the date when the legislation came into force had three years from that date within which to commence proceedings: a period which was sufficient to guarantee the effectiveness of the right to reimbursement (para 28). On that basis, the legislation was compatible with Community law. The same conclusion was also reached, on similar facts, in Dilexport Srl v Amministrazione delle Finanze dello Stato (Case C 343/96) [2000] All ER (EC) 600. Secondly, Marks & Spencer plc v Customs and Excise Comrs (Case C 62/00) [2003] QB 866 concerned a claim for repayment of VAT unduly paid between May 1991 and August 1996, when the relevant limitation period was six years. On 19 March 1997 legislation was enacted which reduced the limitation period to three years. The legislation was deemed to have come into force on 18 July 1996. The action was begun on 15 April 1997. The Court of Justice considered the legislation both in relation to the principle of effectiveness and in relation to the principle of the protection of legitimate expectations. I shall consider the second of those aspects below. In relation to the principle of effectiveness, the court derived from its judgments in Aprile and Dilexport the proposition that, in order for national legislation curtailing the period within which recovery may be sought of sums charged in breach of Community law to be compatible with Community law, the time set for its application must be sufficient to ensure that the right to repayment is effective (para 36). The Court continued: 37. It is plain, however, that that condition is not satisfied by national legislation such as that at issue in the main proceedings which reduces from six to three years the period within which repayment may be sought of VAT wrongly paid, by providing that the new time limit is to apply immediately to all claims made after the date of enactment of that legislation and to claims made between that date and an earlier date, being that of the entry into force of the legislation, as well as to claims for repayment made before the date of entry into force which are still pending on that date. 38. Whilst national legislation reducing the period within which repayment of sums collected in breach of Community law may be sought is not incompatible with the principle of effectiveness, it is subject to the condition not only that the new limitation period is reasonable but also that the new legislation includes transitional arrangements allowing an adequate period after the enactment of the legislation for lodging the claims for repayment which persons were entitled to submit under the original legislation. Such transitional arrangements are necessary where the immediate application to those claims of a limitation period shorter than that which was previously in force would have the effect of retroactively depriving some individuals of their right to repayment, or of allowing them too short a period for asserting that right. 39. In that connection it should be noted that member states are required as a matter of principle to repay taxes collected in breach of Community law (Socit Comateb v Directeur Gnral des Douanes et Droits Indirects (Joined Cases C 192 to 218/95) [1997] ECR I 165, para 20, and Dilexport [1999] ECR I 579, 610 611, para 23), and whilst the court has acknowledged that, by way of exception to that principle, fixing a reasonable period for claiming repayment is compatible with Community law, that is in the interests of legal certainty, as was noted in paragraph 35 hereof. However, in order to serve their purpose of ensuring legal certainty limitation periods must be fixed in advance (ACF Chemiefarma v Commission of the European Communities (Case 41/69) [1970] ECR 661, para 19). As the court made clear at para 38, the legislation in issue in Marks & Spencer was objectionable not only because it applied retroactively to persons who had already made claims for repayment which were within the limitation period then in force, but also because it precluded claims by persons who could otherwise have made claims within that period, without any transitional provisions to protect the rights of such persons. A similar conclusion was also reached in Grundig Italiana SpA v Ministero delle Finanze (Case C 255/00) [2003] All ER (EC) 176, where a limitation period of five years was replaced by one of three years, and a transitional period of 90 days was held to be insufficient to ensure that the right of recovery was not rendered excessively difficult. It follows from cases such as Aprile, Dilexport, Marks & Spencer and Grundig that a taxpayer who has paid taxes levied contrary to EU law is not vested with a right to repayment in accordance with the domestic provisions which were in force at the time when the payment was made. It is permissible to alter the applicable rules of domestic law, including rules as to limitation, provided the legislation effecting the alteration does not in practice deprive the persons affected of their right to seek reimbursement. In order for that proviso to be met, however, the legislation must not apply the new limitation period retroactively so as to bar claims which were made timeously according to the law then in force, and the arrangements for its entry into force must also allow persons who have not yet made claims an adequate period of time to ensure that their right to repayment remains effective. In the present case, the claims are for the repayment of taxes unduly paid between 1973 and 1999, when the relevant limitation period was six years. That period generally ran from the date of the payment, but in an action for relief from the consequences of a mistake the period was extended: it did not begin to run until the claimant discovered the mistake or could with reasonable diligence have discovered it (section 32(1)(c) of the Limitation Act 1980, re enacting a provision previously contained in section 12 of the Limitation Act 1939). As Lord Walker has explained at paras 103 104, it has been established in this case that the payments were made under a mistake about the lawfulness of the tax regimes under which they were paid; and it was only after the Court of Justice issued its judgment in Metallgesellschaft Ltd v Inland Revenue Comrs (Joined Cases C 397/98 and C 410/98) [2001] Ch 620 that it was generally appreciated that the UK corporation tax regime was open to challenge as infringing Community law. A well advised company in the position of the claimants would then have had grounds for considering that it was entitled to the repayment of tax which had been levied contrary to Community law, and that there was at least a reasonable prospect that it could rely upon the extended limitation period provided by section 32(1)(c) of the 1980 Act in order to recover any taxes paid more than six years before the proceedings were begun. In order to do so, it would of course have to base its claim upon the mistake ground of action. The BAT action was begun in June 2003, and the Aegis action on 8 September 2003. In each action, the claim was based upon the mistake ground of action (as well as the unlawful demand ground of action), and reliance was placed on section 32(1)(c). Section 320 of the 2004 Act, enacted in July 2004, excluded the application of section 32(1)(c) of the 1980 Act in relation to taxation matters where the action was brought on or after 8 September 2003. Section 107 of the 2007 Act, enacted in July 2007, excluded the application of section 32(1)(c) where the action was brought prior to 8 September 2003. It is apparent from that summary that the claims, so far as they relate to payments made more than six years before the proceedings were commenced, have always been dependent on the application of section 32(1)(c) of the 1980 Act. The effect of the legislation of 2004 and 2007 is thus to deprive the claimants, retrospectively, of the ability to pursue their claims so far as they relate to those payments. Since the legislation was retroactive in its effect, there was nothing the claimants could do to avoid its operation: that, of course, was the point of making the legislation retroactive. Since the legislation retroactively restricts the possibility of repayment to claimants who brought an action within six years of the date of the payment, rather than six years of the date when their mistake was discovered or could with reasonable diligence have been discovered, it deprives persons who do not satisfy that condition of any possibility of exercising the right to repayment derived from EU law, which they previously enjoyed. In the circumstances of this case, it retroactively renders the taxes unduly paid by the BAT group prior to June 1997, and by the Aegis group prior to September 1997, irrecoverable: taxes whose reimbursement had been timeously sought under the law then in force. It therefore renders impossible in practice the exercise of rights derived from the EU treaties which national courts are bound to protect. That is the first reason why I have reached the provisional conclusion that it is contrary to EU law and cannot be relied on in these proceedings. That conclusion does not appear to me to be affected by the argument that the legislation serves the legitimate purpose of avoiding the disruption of public finances which the present claims, and other similar claims, would otherwise cause. As the Court of Justice observed in its Marks & Spencer judgment at para 39, member states are required as a matter of principle to repay taxes collected in breach of EU law. Legal certainty, which protects both taxpayers and the administration, can justify fixing reasonable limitation periods for bringing claims for repayment, but it cannot in my view justify applying them in such a way that the rights conferred by EU law are no longer safeguarded. Nor in my view can the present case be distinguished from such cases as Marks & Spencer on the ground that those cases concerned situations where there was only one basis on which repayment could be sought, whereas the present case concerns a situation where two grounds of action exist, with differently calculated limitation periods, and the effect of the legislation in issue is merely to apply the same method of calculating the limitation period to both grounds of action. I accept that the present case differs in that respect from the cases which have come before the Court of Justice, but the difference is in my view of no consequence. Since both grounds of action are available as means of enforcing EU rights in accordance with the principle of equivalence, it follows that the principle of effectiveness must also be respected in relation to both. The vice of the legislation in issue is not that it seeks to apply a common limitation period to the two grounds of action, but that it does so retroactively and without transitional provisions, and so fails to conform to the principle of effective judicial protection. The principle of the protection of legitimate expectations A further reason for my provisional conclusion that the legislation is incompatible with EU law is that it is in my view incompatible with the principle of the protection of legitimate expectations. As a general principle of EU law, this principle binds member states when implementing EU law at national level. In particular, it applies to national rules governing the protection of EU rights in national courts. The point is illustrated by Marks & Spencer (Case C 62/00) [2003] QB 866, where the Court of Justice rejected the Governments contention that the procedural rules governing the recovery of overpayments of VAT were entirely a matter of domestic law, subject only to the Community principles of equivalence and effectiveness. As the Court held (para 44), the principle of the protection of legitimate expectations forms part of the Community legal order; and, on the facts of that case, legislation retroactively curtailing the period within which repayment might be sought of taxes collected in breach of Community law was incompatible with that principle. It is in my opinion an even clearer breach of that principle for legislation which has the effect of reducing the limitation period applicable to actions for the enforcement of rights derived from EU law to be applied to actions which were already pending before the courts when the legislation was enacted. Although persons cannot legitimately expect that the legal rules applicable to them will not be altered, they may legitimately expect that rights which they possess will not be retroactively abridged. They are therefore entitled to expect that a claim which was not time barred when it was made will not subsequently become time barred as a result of retroactive legislation. My conclusion on this point does not depend on an assumption that the claimants knew, at the time when they commenced proceedings, that their claims could validly be based upon the mistake ground of action, and could therefore benefit from the extended limitation period provided by section 32(1)(c) of the 1980 Act. Although the validity of claims to the repayment of unlawfully levied tax on the basis of mistake was strongly arguable at that time, and was of course ultimately established, I accept that it was only some years later that the point was definitively resolved by the decision of the House of Lords in DMG [2007] 1 AC 558. Although there was therefore an arguable question in 2003 as to whether the claims which they had submitted to the court were time barred, the claimants could legitimately expect that that question would be decided by the court in accordance with a proper understanding of the law in force at the time when the claims were made. They could legitimately expect that the courts decision of that question would not be pre empted by retroactive legislation subsequently enacted by Parliament. Nor does it appear to me to be material that the legislation in issue left untouched the limitation period which applied to the ground of action based on an unlawful demand. The claimants had based their claims upon both grounds of action, as they were entitled to do. The fact that their claims in respect of payments made during the six years prior to the commencement of the proceedings, so far as based on the unlawful demand ground of action, were not affected by the legislation in issue does not diminish the significance of the fact that their right to pursue claims in respect of earlier periods, on the basis of mistake, was taken away from them after proceedings relying upon that right had been commenced. The protection of legitimate expectations is not of course an absolute principle, and even retroactive measures interfering with the administration of justice may sometimes be justified by compelling considerations relating to the public interest; and, in any assessment of whether such a justification existed, a lack of certainty as to the law at the material time might be a relevant consideration. In the present case, however, for the reasons explained in para 239, there appear to me to be no other considerations capable of outweighing the breach of legitimate expectations which resulted from the legislation in issue. Conclusion In view of the division of opinion on the court in relation to the compatibility of section 320 of the 2004 Act with EU law, I agree that that issue will require to be the subject of a reference to the Court of Justice in accordance with the directions proposed by Lord Hope. The other issues should in my view be dealt with as proposed by Lord Walker.	The Appellants are all companies which belong to groups which have UK resident parents and also have foreign subsidiaries, both in the European Union and elsewhere. The purpose of the litigation was to determine various questions of law arising from the tax treatment of dividends received by UK resident companies from non resident subsidiaries, as compared with the treatment of dividends received from subsidiaries within wholly UK resident groups of companies. The provisions giving rise to these questions related to the system of advance corporation tax (ACT) and to the taxation of dividend income from non resident sources under section 18 (Schedule D, Case V) of the Income and Corporation Taxes Act 1988 (ICTA). The relevant provisions have since been amended or repealed, but the problems created by their existence in the past have not gone away. The Appellants case is that the differences between their tax treatment and that of wholly UK resident groups of companies breached article 43 (freedom of establishment) and article 56 (free movement of capital) of the EC Treaty, and that these breaches have caused them considerable loss. A previous reference to the Court of Justice of the European Union (CJEU) held that those principles had, at least in some respects, been breached. The issues in this appeal to the Supreme Court relate to the requirements under both EU and domestic law as to the availability of remedies for such breaches of EU law. It is common ground that two types of restitutionary remedies are available in domestic law in this situation: a claim for restitution of tax unlawfully demanded (under the Woolwich principle), and a claim for tax wrongly paid under a mistake (a DMG claim). EU law requires there to be an effective remedy for monies paid in respect of tax that has been unlawfully charged. In the present case, the Woolwich cause of action was now time barred. The limitation period for DMG mistake claims had been extended by section 32(1)(c) of the Limitation Act 1980 (LA). However, in June 2004, s320 of the Finance Act 2004 was enacted, retrospectively excluding the application of s32(1)(c) in relation to claims based on a mistake of law relating to a taxation matter, where the action was brought on or after 8 September 2003. In July 2007, s107 of the Finance Act 2007 came into force. It excluded the application of s32(1)(c) to any DMG claims brought before 8 September 2003. The Court of Appeal held: that the Woolwich restitution remedy was a sufficient remedy as EU law does not require that there must always be a remedy based on mistake; that the Woolwich restitution remedy met the requirements of EU law and was not affected by sections 320 and 107; that the restitution and damages remedies sought by the Appellants in respect of one part of the claim were excluded by virtue of the statutory provisions for recovery of overpaid tax in section 33 of the Taxes Management Act 1970; and that section 32(1)(c) of the Limitation Act 1980 could be given a wider meaning so as to apply to a Woolwich claim. The Appeal raises the following specific issues: (1) Could Parliament lawfully curtail without notice the extended limitation period under section 32(1)(c) of the Limitation Act 1980 for the mistake cause of action (section 320 FA 2004) and cancel claims made using that cause of action for the extended period (section 107 FA 2007)? In particular: (a) Would a Woolwich restitution remedy be a sufficient remedy for the repayment claims brought on the basis of EU law? (b) Whether or not a Woolwich restitution remedy would be a sufficient remedy, does EU law protect the claims which were made in mistake; and, specifically, did the curtailment without notice of the extended limitation period for mistake claims (section 320 FA 2004) and the cancellation of such claims in respect of the extended period (section 107 FA 2007) infringe the EU law principles of effectiveness, legal certainty, legitimate expectations and rule of law? (2) Are the restitution and damages remedies sought by the Appellants in respect of corporation tax paid under section 18 of the ICTA excluded by virtue of the statutory provisions for recovery of overpaid tax in section 33 of the Taxes Management Act 1970? (3) Does section 32(1)(c) of the Limitation Act 1980 apply to a claim for a Woolwich restitution remedy? (4) Does the Woolwich restitution remedy apply only to tax that is demanded by the Revenue, and not to tax such as ACT which is payable on a return; and, if so, what amounts to a demand? The Supreme Court unanimously dismisses the appeal on issues (3) and (4), and allows the appeal on issue (2). On issue (1), a reference is made to the CJEU for a preliminary ruling under article 267 Treaty on the Functioning of the European Union. Leading judgments are given by Lord Hope, Lord Walker, Lord Sumption and Lord Reed, with shorter judgments by Lord Brown, Lord Clarke and Lord Dyson. Issue (1) The central question in the appeal is whether EU law requires only that the member state must make available an adequate remedy which meets the principles of effectiveness and equivalence, or whether it requires every remedy recognised in domestic law to be available so that the taxpayer may obtain the benefit of any special advantages that this may offer on the question of limitation [13, 38]. The majority of the Court (Lord Sumption and Lord Brown dissenting [123 & 142]) holds that the Woolwich remedy on its own was not sufficient to meet the requirements of effectiveness and equivalence; an effective remedy was also required in the DMG mistake cause of action. The principle of equivalence requires that the rules regulating the right to recover taxes levied in breach of EU law must be no less favourable than those governing similar domestic actions. It must follow, if the means of recovering of taxes levied contrary to EU law are to match those in domestic law, that both remedies should be available [21, 212]. The retrospective application of the section 320 FA 2004 limitation period was therefore not compatible with EU law as it infringed the principles of equivalence and effectiveness, and possibly also the principle of legitimate expectations [15, 22, 115, 135 136, 140, 209, 241]. In relation to s107 FA 2007, the Court unanimously holds that, by 2006, the Appellants had acquired a legitimate expectation that their entitlement to have their DMG claims decided by a court would not be removed from them by the introduction without notice of a limitation period that was not fixed in advance. So it was not lawful for Parliament to cancel claims made using the mistake cause of action for the extended period [15, 22, 115, 125, 129, 140, 203, 209, LR 34 35, ]. Since the Court is divided on the question as to whether EU law requires that both remedies should be available to the Appellants so that they can choose the remedy that best suits their case for reimbursement, the matter is not acte clair. A reference to the CJEU is necessary [23]. Issue (2) The question is answered in the negative. Section 33 can be given an interpretation in conformity with EU law by not construing it as impliedly setting itself up as an exclusive provision. The common law claim in unjust enrichment remains available [119, 205]. The appeal on this issue is allowed. Issue (3) The question is answered in the negative. The extension to the limitation period under section 32(1)(c) should not be read widely so as to apply to Woolwich claims. The Court should not seek to develop the law by broadening the interpretation of an action for relief from the consequences of a mistake [62, 186]. The appeal on this issue is dismissed. Issue (4) The question is answered in the negative. The Woolwich restitution remedy is not limited to tax that is demanded by the Revenue, but is available to cover all sums paid to a public authority in response to (and sufficiently causally connected with) an apparent statutory requirement to pay tax which (in fact and in law) is not lawfully due [79, 174]. The appeal on this issue also is dismissed.
Despite the significance of her name in Cartesian philosophy, the vessel Res Cogitans depends on bunkers. The parties submissions have in compensation lent a degree of metaphysical complexity to commonplace facts. We are told that many similar cases worldwide await our decision with interest. The essential problem arises from the insolvency of the OW Bunker Group and the concerns of vessel owners that they may be exposed to paying twice over, once to their immediate bunker supply group now insolvent, and again to the ultimate source of the bunkers who may claim rights under a reservation of title or maritime lien. The concerns stem from what are understood to be fairly typical conditions on which bunkers are supplied worldwide. The bunkers in this case were supplied to the vessel in the Russian port of Tuapse in the Black Sea on 4 November 2014. They were ordered on 31 October 2014 by the appellants, who are respectively owners and managers of the vessel and can be treated as one and referred to simply as the Owners. The immediate bunker supplier was the first respondent, OW Bunker Malta Ltd (OWBM), which obtained the bunkers under a contract with its parent company, OW Bunker & Trading A/S (OWBAS), another member of the OW Bunker Group, which was at the time the worlds largest bunker supplier and is now insolvent. OWBAS in turn obtained them from Rosneft Marine (UK) Ltd (RMUK), which itself obtained them from an associate, RN Bunker Ltd (RNB), which had facilities in Tuapse and made the actual delivery. On 6 November 2014, OWBAS announced that it was applying to the court in Aalborg for restructuring. The second respondent, ING Bank NV (ING) financed the OW Bunker Group and claims as assignees of any claim which OWBM has against the Owners. OWBMs contract with the Owners OWBMs supply contract with the Owners described itself as being for sale and delivery ex barge of 110 mt of gasoil at a price of USD 848 per mt and 1000 mt of fueloil at a price of USD 359 per mt (a total of USD 443,800), with Payment within 60 days from date of delivery upon presentation of invoice. But it was expressly subject to the OW Bunker Groups general terms (said in OWBMs printed Sales Order Confirmation to be well known to you and to be published on OWBMs website). The general terms start with the following General Introduction: A.1 This is a statement of the terms and conditions according to which the International OW Bunker Group (hereinafter called OWB) will sell marine bunkers. A.2 These conditions apply to all offers, quotations, orders, agreements, services and all subsequent contracts of whatever nature, except where otherwise is expressly agreed in writing by OWB. Clause P.1 provides for the agreement to be governed by English law and for arbitration in London of all disputes arising in connection with it. Clause G.12 under the heading Delivery provides: Delivery shall be deemed completed and all risk and liabilities, loss, damage, deterioration, depreciation, including contamination, evaporation or shrinkage to the Bunkers delivered and responsibility for loss, damage and harm caused by pollution or in any other manner to third parties shall pass to the Buyer from the time the Bunkers reach the flange/connecting pipe line(s)/delivery hoses provided by the Seller on the barge/tank truck/shore tank. Clauses H.1 and H.2 provide in summary that until full payment of all amounts due to OWBM, title and property rights were reserved to OWBM and the Buyer was in possession of the bunkers solely as Bailee for the Seller, and shall not be entitled to use the Bunkers other than for the propulsion of the Vessel. The full wording of clauses H.1 and H.2 is as follows: H.1 Title in and to the Bunkers delivered and/or property rights in and to such Bunkers shall remain vested in the Seller until full payment has been received by the Seller of all amounts due in connection with the respective delivery. H.2 Until full payment of the full amount due to the Seller has been made and subject to article G.14 hereof, the Buyer agreed [sic] that it is in possession of the Bunkers solely as Bailee for the Seller, and shall not be entitled to use the Bunkers other than for the propulsion of the Vessel, nor mix, blend, sell, encumber, pledge, alienate, or surrender the Bunkers to any third party or other Vessel. The Vessel is defined by clause B.1 of the terms as meaning the Buyers Vessel, Ship, Barge or Off shore Unit that receives the supply/bunkers; either as end user or as transfer unit to a third party. It is unnecessary to consider whether the recognition in clause B.1 that the vessel might serve as a transfer unit to a third party fits with the prohibition in clause H.2 of sale, alienation or surrender of the bunkers to any third party or other vessel. That situation is not in question here. What is clear is that the Owners accepted that, until full payment to OWBM, they would not acquire title or property rights in the bunkers, but would hold them as bailees for OWBM, subject only to a right to use them for the propulsion of the vessel Res Cogitans herself. RMUKs contract with OWBAS OWBASs purchase from RMUK priced the gasoil and fueloil at respectively USD 333 per mt and USD 830 per mt (a total of USD 416,000), and required payment within 30 days from date of delivery against hard copy of invoice. The purchase was subject to RMUKs terms and conditions, clause 10 of which provided, inter alia: Until such time as payment is made, on behalf of themselves and the Vessel, the Buyer agrees that they are in possession of the Marine Fuels solely as Bailee for the Seller. If, prior to payment, the Sellers Marine Fuels are commingled with other Marine Fuels on board the Vessel, title to the Marine Fuels shall remain with the Seller corresponding to the quantity of the Marine Fuels delivered. There was no express provision regarding consumption, but on the facts being assumed for the purposes of this case, RMUK was aware that the bunkers were being purchased for resale at a profit, that the OW Bunker Groups terms would be likely to include provisions to like effect to clauses H.1 and H.2 set out in para 6 above and that the bunkers were being purchased for immediate use and might be wholly or partly consumed within both the 30 day credit period allowed by RMUK and the 60 day credit period allowed by OWBM. Having contracted to supply the bunkers to OWBAS, RMUK then entered into a contract with RNB, under which RNB agreed to sell the bunkers to RMUK for delivery in accordance with the contract between RMUK and OWBAS. The assumed facts On the assumed facts, the Owners availed themselves of the right to consume the bunkers in the vessels propulsion and did so both within and, quite probably after, the 30 and 60 day periods allowed for payment under the contracts between respectively RMUK and OWBAS and OWBM and the Owners. The bunkers were in the event totally consumed without any payment ever being made by OWBM or OWBAS to RMUK. RMUK on the other hand paid RNB in accordance with its contract with RNB on 18 November 2014. On the day before doing so, RMUK, having become aware that it might not receive payment from OWBAS, sent a Demand of Payment to the Owners, asserting that it remained the owner of the bunkers and requesting immediate payment from the Owners of USD 416,000, the amount which it had invoiced to OWBAS. The Supreme Court was given no indication that RMUK has since then taken any formal steps to pursue this claim against the Owners. The proceedings to date By the end of November 2014, the Owners had commenced arbitration proceedings claiming a declaration that they had no liability to pay OWBM and/or ING for the bunkers. The parties agreed to submit a raft of detailed preliminary issues to the arbitrators (David Farrington, Ian Kinnell QC and Bruce Harris), and for the purposes of such issues agreed a series of assumed facts. The arbitrators, after a four day hearing, wrote an admirably analytical award dated 16 April 2015, giving their reasons for answers to each of such issues set out in its appendix 1 and holding inter alia that, on the assumed facts, OWBM/ING would be entitled to payment. The parties having agreed that this award on preliminary issues should be the subject of appeals on both sides without leave pursuant to section 69(2)(a) of the Arbitration Act 1996, Flaux J gave directions accordingly on 8 May 2015, and the matter came on 7 to 9 July 2015 before Males J, who with notable speed produced his judgment on 14 July 2015. He dismissed the Owners appeal, but went on, obiter, to express his opinion on an appeal by OWBM/ING, which would only have arisen for decision had the Owners appeal succeeded. Males J then gave the Owners permission to appeal to the Court of Appeal, while refusing OWBM/ING permission to go to the Court of Appeal on their cross appeal. The Court of Appeal (Moore Bick V P, Longmore and McCombe LJJ) on 22 October 2015 dismissed the Owners appeal. The Supreme Court granted permission to appeal on 11 February 2016. The issues and the award in more detail The arbitrators were evidently invited to treat the assumed facts as accepting that all the bunkers were used within the 60 day credit period allowed by OWBM to the Owners (see para 42 and footnote 18 to their award). But their reasoning was wide enough to cover what the Supreme Court has been told may be the actual position, which is that at most that part of the bunkers were so used, with any remainder being used later. Addressing OWBMs cross claim for the price, the arbitrators noted that section 2(1) of the Sale of Goods Act 1979 provides that: A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. Further, section 49 provides that: (1) Where, under a contract of sale, the property in the goods has passed to the buyer and he wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods. (2) Where, under a contract of sale, the price is payable on a day certain irrespective of delivery and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed and the goods have not been appropriated to the contract. The arbitrators noted in footnote 7 to para 31 of their award that, if the contract was one of sale, then, according to authority binding on them, section 49(1) precluded recovery of the price of goods in circumstances where the property in goods had not passed to the buyer. The authority to which they were referring is F G Wilson (Engineering) Ltd v John Holt & Co (Liverpool) Ltd (often referred to as Caterpillar) [2014] 1 WLR 2365. This is an authority the correctness of which OWBM/ING would, if necessary, wish to challenge in the Supreme Court on this appeal. It is in dispute whether it is open to them to do so, in the light of the issues as addressed to and answered by the arbitrators as well as in the light of Males Js refusal of permission to OWBM/ING to cross appeal from his judgment to the Court of Appeal. Because of this dispute, it will be necessary to give an account of the arbitrators reasoning, award and answers to the preliminary issues which is fuller than it would otherwise have been. Having rejected section 49(1) as a basis for recovery of the price, the arbitrators considered and rejected three other ways in which OWBM suggested that it could recover the price of the bunkers if treated as sold within the Sale of Goods Act: (i) under section 49(2), as being payable on a day certain irrespective of delivery; (ii) under section 50, as damages for non acceptance; and (iii) on the basis that property passed for or in a nanosecond, as and when the bunkers went up in smoke. These being points raised by OWBMs cross claim, for which permission to appeal was refused by Males J, none of them is before the Supreme Court. Taking stock, the arbitrators considered that they could now answer certain of the agreed preliminary issues. They could answer issues 1, 2 and 3 to the effect that, on the assumed facts, OWBM never had property in the bunkers at any material time, and that the retention of title clause in its terms (in any event) prevented property passing to the Owners. On that basis, issue 4 then required the arbitrators to determine for the price under section 49 or section 50 of SOGA what is the consequence in respect of any claim that OWBM may seek to assert: (a) 1979; or (b) otherwise under the Contract; or (c) (d) (e) in bailment; or in restitution; or in tort? They held that they could answer issue 4(a) to the effect that No such claim could succeed, and issue 8, asking whether section 49(2) applied, with a simple no. On that basis, the arbitrators said (para 45) that it was now convenient to turn attention to issue 4(b). This, they said, concerns the possibility that [OWBM/ING] have a contractual claim falling outside constraints of [the Sale of Goods Act], and involves looking again at the contractual relationships between the parties, and in particular at that between OWBM and the Owners. In answering this issue, the arbitrators said (para 46): If, as we believe we must, we accept that section 49 of SOGA rules out the possibility of a claim against the Owners for the price of the bunkers supplied to the Vessel, and, as seems more obviously the case, that section 50 offers no alternative, does this also rule out the possibility of there being some other contractual remedy against the Owners arising out of their failure to pay OWBMs invoice? The Owners have suggested that the answer to this question is Yes. We do not agree. Whether or not one chooses to describe the contract between these two parties as a hybrid contract is, we consider, probably neither here nor there (although we would prefer to describe it and no doubt others like it as sui generis), but to suggest that the remedies that may follow from the failure to comply with its terms are solely and irrevocably those within the gift of SOGA appears to us to be unacceptable and quite unreal. In the next para (para 47), they continued: If all had gone in accordance with the parties expectations (and, of course, the Owners had had previous dealings with OWB Group companies), the Owners would have paid OWBMs invoice within the 60 days credit period. We are quite confident, that, when they did so, it would not have crossed anyones mind to enquire what bunkers had been consumed meanwhile in order to determine whether the invoice was being paid wholly or in part under a contract of sale (in respect of unconsumed bunkers), or otherwise (in respect of consumed bunkers). Regardless of the situation on board the Vessel, both parties would in our opinion understand that payment was being made simply in accordance with the express terms of the contract, which would have been the case. There is in our view no challenge to the provisions of SOGA or their effect in reaching the conclusion that we have unhesitatingly reached that, on the assumed facts, once the 60 days period of credit had elapsed the Owners were in breach of contract, the remedy for which was a claim in debt. We have seen nothing in the authorities to suggest that this simple and straightforward conclusion is incorrect. The arbitrators concluded that this reasoning enabled them to answer issues 4(b) and 6(a). Issue 6(a) was whether to the extent not resolved by the determination of issue 4 OWBM/ING had a claim under the contract. However, they added we have to say that we find the relationship (if any) between issues 4 and 6 somewhat unclear (para 48). They went on to say that we believe that we can at this point also tackle issue 9. Before doing so they addressed issue 5, rejecting OWBMs case that their supply to the Owners contained various implied terms, now no longer relied on. Turning to issue 9, this asks: Did [the Sale of Goods Act] apply to the Contract between the Owners/OWBM in any event and if not what is the effect on the parties respective claims? The arbitrators gave the straightforward answer: No, and none. shortly with issues 10 to 13, saying (para 53): In the light of this answer, the arbitrators concluded that they could deal As to Issue 10, OWBM was not required to own or to have property in the bunkers at the time of delivery because the contract between OWBM and the Owners did not require this. There was no modification of the requirements of SOGA because SOGA did not apply and its terms were not engaged. As to Issue 11, there was no such requirement. As to Issue 12, no terms were implied into the contract by virtue of section 12 of SOGA. And, finally, as to Issue 13, in so far as there were no such implied terms as suggested, there were none to be breached. It is unclear what, if any, other breaches of contract by OWBM are alleged, but none appears to have been established. Issues 10 to 13 and the answers given read as follows: 10. Do the OWBM T&Cs, on a true and proper construction, modify the requirements of section 12 of SOGA 1979 such that OWBM was required to own or have property in the Bunkers at the point of delivery? ANSWER: The OWBM T&Cs did not modify section 12 of SOGA 1979, but, under the Contract between the Owners and OWBM, OWBM was not required to own or have property in the Bunkers at the point of delivery, and section 12 did not apply. If not, what is the requirement imposed by the Contract, 11. on a true and proper construction, regarding the title OWBM is required to pass to the Owners? ANSWER: There was no such requirement. 12. What terms were implied into the Contract by virtue of section 12 SOGA? ANSWER: None, because section 12 did not apply. 13. Is OWBM in breach of Contract, and in particular the implied terms referred to at Issue 12 above (or any of them) and if so in what way? ANSWER: As there were no terms implied into the Contract by virtue of section 12 SOGA, there were none to be breached. No other breaches were specified, and on the basis of the Assumed Facts, none appears to have been established. The proceedings in court in more detail Males J in dismissing the Owners appeal held that OWBMs contract to supply bunkers to the Owners was not a contract to which the Sale of Goods Act applied, but was a contract containing a condition whereby OWBM undertook that the Owners would have the lawful right to use any bunkers which they in fact used pursuant to the liberty they were given by its terms (paras 48 and 52). He held that it was not subject to any further condition as regards the passing of property in any bunkers used. OWBM/INGs cross appeal, to recover the price under section 49 of an equivalent sum by way of damages, did not on this basis arise, but Males J nonetheless expressed some views on it, obiter. He thought (paras 66 and 74) that if the Act applied, that could only be because OWBM undertook, in the terms of section 2(1), to transfer the property in goods to the buyer, that it had failed to do so and was therefore (subject to two now immaterial arguments) in breach of the implied term contained in section 12(1), and that that would represent a total failure of consideration which, applying Rowland v Divall [1923] 2 KB 500, would provide the Owners with a defence to a claim for the price. Apart from this problem, he said that he would, however, have disagreed with the arbitrators on one point relating to the cross claim, in that in his view the credit terms would have satisfied the language of section 49(2). Having expressed these views, he refused permission, as already stated, in respect of the Owners cross appeal. The issues argued before the Court of Appeal were thus effectively limited to two: (1) Was the contract a contract of sale within the meaning of section 2(1) of the Sale of Goods Act? (2) If not, was it subject to any implied term that OWBM would perform or had performed its obligations to its supplier, in particular by paying for the bunkers timeously? Like the judge, the Court of Appeal was bound by the Caterpillar decision, so that it could have done no more than hold that section 49 of the Sale of Goods Act barred any claim to the price by OWBM if the contract was subject to the Act, even if that point was open and had arisen, for consideration. The Court of Appeal agreed substantially with the judge in answering the two main questions before it in OWBM/INGs favour. However, as appears from the following key passage in its reasoning, it also contemplated that the contract would or might be a contract of sale pro tanto to the extent that payment was made at a time when any part of the bunkers remained unconsumed. Moore Bick V P, giving the main judgment, with which the other members of the court agreed, said: 33. Whatever label one attaches to the contract (and I see nothing incongruous in describing it in commercial terms as a contract for the sale of goods), its essential nature is in my view reasonably clear. It is a contract under which goods are to be delivered to the owners as bailees with a licence to consume them for the propulsion of the vessel, coupled with an agreement to sell any quantity remaining at the date of payment, in return for a money consideration which in commercial terms can properly be described as the price. That may not satisfy the definition of a contract of sale of goods in section 2(1) of the 1979 Act, but there is no reason why the incidents of a contract of sale of goods for which the Act provides should not apply equally to such a contract at common law, save to the extent that they are inconsistent with the parties agreement. The difficulties in the present case stem entirely from the owners attempt to establish that the consideration for the payment of the price was the transfer of property in the whole of the goods to which the contract related, despite the fact that that does not correspond to the express terms of the contract relating to the use of the goods and the passing of title. The commercial background and the terms of the contract make it clear that what the owners contracted for was not the transfer of property in the whole of the bunkers, but the delivery of a quantity of bunkers which they had an immediate right to use but for which they would not have to pay until the period of credit expired. From the suppliers point of view the retention of title clause provided an ever diminishing degree of security for the payment of what was due to them. Since the contract provided for the transfer to the owners of property in any part of the bunkers remaining at the time of payment, it was to that extent a contract for the sale of goods to which the Act, including the implied condition in section 12, applied. A failure to pass title to any residue remaining at the time of payment would therefore involve a breach of contract, but it would not be one which entitled the owners to treat the contract as a whole as discharged, unless (contrary to all expectations) it represented such a large proportion of the quantity originally delivered that there could be said to have been a total failure of consideration. 34. For these reasons I agree with the judge that the transfer of property in the bunkers from OWBM to the owners was not the essential subject matter of the contract and that a failure to transfer property in the bunkers, all of which had been consumed when the period of credit expired, did not relieve the owners of the obligation to pay for them. The issues before the Supreme Court The issues on the Owners appeal to the Supreme Court remain as argued before the Court of Appeal and set out in para 22 above. But, in seeking to uphold the decisions of the courts below, Mr Robert Bright QC for OWBM/ING submits that it is open to OWBM/ING to rely on a point which was not open to his clients in those courts. That is that the decision of the Court of Appeal in the Caterpillar case, mentioned in para 13 above, was wrong and should be overruled. The correct position is, he submits, that, even though a contract is categorised as one of sale within the Sale of Goods Act, section 49 should not be read as excluding all possibility of claims to the price of goods sold, if the contract so provides, even though the circumstances cannot be brought within either of subsections (1) and (2). Whether this submission is open to OWBM/ING is, as I have stated in para 13 above, in dispute. For the Owners, Mr Jonathan Crow QC makes five basic, though over lapping, submissions about the nature of the contract. This, he submits, is a matter of substance, not form. Second, it must be determined at the date when the contract is made. Third, it depends on what the parties then agreed, not what happened subsequently or what they expected they might do subsequently. Fourth, the question must be answered once and for all, and fifthly it must be answered by reference to the statutory test set out in section 2(1) of the Act, not by reverse engineering, by which Mr Crow meant: not because the consequences of recognising the contract as one of sale within the statutory definition might seem unpalatable. Analysis of the nature of the contract Mr Crows first proposition is well established and needs no great elaboration: see eg Stoneleigh Finance Ltd v Phillips [1965] 2 QB 537 (CA). An agreement may also be in substance a contract of sale, even though it has ancillary aspects, eg for after sales services, which do not involve the passing of property and are not by themselves sale. Here, Mr Crow is able to point out that the basic form and language of the contract is that of sale. That is true, as far as it goes. But clauses A.1 and A.2 make clear that sale may here be used in an expanded sense, since the general terms are to apply to all agreements and services and all subsequent contracts of whatever nature, and Buyer is under clause B.1 a defined term which includes any party requesting offers or quotations for or ordering Bunkers and/or Services (emphasis added). Even apart from that, however, clauses H.1 and H.2 make clear that the contract has special features. First, they expressly provide not only for retention of title pending payment, but also expressly that, until such payment, the Buyer is to be in possession of the bunkers solely as Bailee for the Seller. After going on to provide that the Buyer shall not be entitled to use the bunkers, the terms introduce the qualification other than for the propulsion of the Vessel. The qualification clearly reflects a reality. Bunker suppliers know that bunkers are for use. If they grant relatively long credit periods combined with a reservation of title pending payment in full, it is unsurprising that they do so combined with an express qualification authorising use in propulsion, since standard terms prohibiting any use would be uncommercial or in practice, no doubt, simply ignored. Mr Crow vigorously resisted the introduction of any such considerations, on the basis that they are speculative and that the nature of a contract cannot change according to the level of certainty with which parties are to be taken to have expected that bunkers supplied might or might not be used in propulsion before payment for them was made. But OWBMs (and RMUKs) contractual terms and the assumed facts (particularly paras 13, 20 and 30) together with an admissible modicum of commercial awareness on the courts part about how ships operate (and in particular how owners strive to keep them operating) and about the value of credit and the likelihood that full advantage of it will be taken all point in one direction. They demonstrate that the liberty to use the bunkers for propulsion prior to payment is a vital and essential feature of the bunker supply business. In these circumstances, OWBMs contract with the Owners cannot be regarded as a straightforward agreement to transfer the property in the bunkers to the Owners for a price. It was in substance an agreement with two aspects: first, to permit consumption prior to any payment and (once the theory of a nanosecond transfer of property is, rightly, rejected) without any property ever passing in the bunkers consumed; and, second, but only if and so far as bunkers remained unconsumed, to transfer the property in the bunkers so remaining to the Owners in return for the Owners paying the price. But in this latter connection it is to be noted that the price does not here refer to the price of the bunkers in respect of which property was passing, it refers to the price payable for all the bunkers, whether consumed before or remaining at the time of its payment. A contract of sale may under section 2(3) of the Act be either absolute or conditional; and under section 2(6) An agreement to sell becomes a sale when the conditions are fulfilled subject to which the property in the goods is to be transferred. Mr Crow submits on this basis that the contract can be regarded as an agreement to transfer property, conditional on the bunkers remaining unburned when payment is made. The difficulties with this submission are that: i) it categorises the whole agreement by reference to only one possibility relating to only one part of the bunkers covered by the agreement, namely the possibility of at least some bunkers surviving unused, after 60 days or whenever payment is made. Sections 2(3) and (6) can readily be applied where there is a condition regarding the passing of property to which all the goods covered by an agreement are subject, but that is not the case here; ii) it ignores the fact that there is no condition governing the transfer of property in the bunkers used before payment the property in bunkers consumed never passes and is never agreed to be passed; and iii) it focuses on the agreement to pass property in the bunkers surviving at the time of payment, when the agreement was a single contract to pay a single price for all the bunkers sold not later than 60 days after delivery, whatever had happened to such bunkers in the meantime; the agreement is a single agreement which cannot sensibly be treated as divisible. As the arbitrators said, aptly, in para 47 of their award quoted in para 17 above, in the ordinary course when Owners paid OWBMs invoice after 60 days: it would not have crossed anyones mind to enquire what bunkers had been consumed meanwhile in order to determine whether the invoice was being paid wholly or in part under a of sale (in respect of unconsumed bunkers), or otherwise (in respect of consumed bunkers). Mr Crow sought to avoid some of these difficulties by submitting at one point that the agreement could be analysed as one of sale, under which OWBM undertook that at the date of payment they would transfer property in any bunkers then remaining and that they could and would also have transferred property in any bunkers already consumed, had they not been consumed. That submission certainly has a metaphysical aspect. But it makes in my view neither legal nor commercial sense. All that mattered for the Owners was that they should have and had the right to consume the bunkers in the vessels propulsion as and when they did so prior to payment, and that upon payment they would acquire the property in, and thereby an absolute right to dispose of or use as they wished, any remaining bunkers. For similar reasons to those given in the preceding three paragraphs, I would also reject the Court of Appeals suggestion in para 33 of its judgment, quoted in para 23 above, that the contract can be analysed as a contract of sale to the extent that it provided for the transfer of property in any part of the bunkers remaining at the time of payment. That is again to divide up a single agreement covering the supply of all the bunkers (gasoil and fueloil) at a single price for each, irrespective of what had happened to them. However, I fully accept that, viewing in isolation the position of any bunkers remaining at the time of payment, the transaction relating to them is closely analogous to a sale. I also accept that, both as regards bunkers consumed and as regards any bunkers remaining at the time of payment, the contract, although not one of sale, would contain similar implied terms as to description, quality, etc to those implied in any conventional sale. The above analysis is consistent with the approach taken by the Court of Appeal in the somewhat complicated case of Harry & Garry Ltd v Jariwalla [1988] WL 1608652. The English buyers, Harry & Garry, had under contracts of sale received a quantity of sarees which they found defective and in respect of which they had not yet accepted the relevant bills of exchange, by reference to which, it appeared, the Indian sellers, the Jariwallas, had however already succeeded in raising some monies in India. In these circumstances, Harry & Garry agreed to accept the bills, so acquiring property in the sarees, while the Jariwallas agreed either to arrange the cancellation of the bills or to take back and pay for the sarees. Under this agreement, 2,494 sarees were then selected as sarees which the Jariwallas would, as they did, take back physically, and it was agreed that the Jariwallas would pay 46,763.45 for such sarees, with property being retained by Harry & Garry until this full amount was paid. Through a Mr Shah, the Jariwallas sold some 411 of these sarees, evidently with the consent of Harry & Garry despite the reservation of title. Harry & Garry sued for the full 46,763.45 agreed to be paid. In the court below, Judge Harris had seen the contract as being one of sale, and on that basis held that, since the circumstances did not fall within section 49(2), a claim for the price was precluded. In the Court of Appeal, Harry & Garrys appeal was allowed. Kerr LJ, giving the main judgment, noted that section 49(1) was in terms inapplicable, because of the reservation of title. But he went on to say of the judges approach that: It would be ironical if that were the correct analysis. One would be driven to the conclusion that although these goods had been delivered and had been accepted, the only remedy open to the plaintiffs, if indeed they were sellers of these goods, would apparently have been a claim for damages for non acceptance under section 50, there being no other provision of the Act which would have given the plaintiffs any remedy. With all due respect to the judge, no doubt influenced as he was by the complexity of this case and the arguments which were addressed to him, I cannot agree with that analysis for two reasons. First, in my view this was not a contract for the sale of goods within the terms of the 1979 Act. It was not, to quote section 2(1) of the Act, a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. Like many other contracts in complex situations, this was a sui generis transaction. In effect, what the Jariwallas agreed was that if the bills of exchange were accepted, which was their great concern, they would either have them cancelled or they would take the goods back and pay for them. When it then came to the specific agreement about the 2,494 selected sarees, I think the nature of the agreement was that in consideration of the plaintiffs allowing them to take that consignment away and seeking to dispose of it as agents for the plaintiffs, who remained the owners of it, they agreed again either to perform the first part of the option, to have the bills of exchange cancelled at any rate to the extent of the value of those selected goods, or to pay the sum of 46,763.45p. That was the nature of the agreement. Taking it on its own or taking it, as I think one should, as part of the agreement made on 23 December, I do not think it was a contract for the sale of goods to which the Act applied. As with the buy back contract in Harry & Garry, so here, in my opinion, the relevant agreement is, in Kerr LJs words, Like many other contracts in complex situations, a sui generis transaction, not a contract of sale. As I have already indicated, that does not mean that its terms, as regards undertakings as to description and quality, would not be modelled on those applying in the sale of goods. But, in its essential nature, it offered a feature quite different from a contract of sale of goods the liberty to consume all or any part of the bunkers supplied without acquiring property in them or having paid for them. The obligation on the part of OWBM to be able to pass the property in respect of any bunkers not so consumed against payment of the price for all the bunkers cannot make the agreement as a whole a contract of sale. Mr Crow drew our attention to first instance cases where the relationship between the suppliers of bunkers and charterer customers under a reservation of title was assumed to fall within the Sale of Goods Act, for the purposes of analysing whether, on the termination of the charter, the vessels owners had acquired title under section 25(1) of that Act: Forsythe International (UK) Ltd v Silver Shipping Co Ltd [1994] 1 WLR 1334, Angara Maritime Ltd v Oceanconnect UK Ltd [2010] EWHC 619 (QB); [2011] 1 Lloyds Rep 61. In neither case was the nature of the contract or the present issue questioned or directly addressed. Similarly, it was simply assumed that the transaction was one of sale within the Act in the appellate authorities of Borden (UK) Ltd v Scottish Timber Products Ltd [1981] Ch 25 (CA) and Armour v Thyssen Edelstahlwerke AG [1991] 2 AC 339 the former case concerning an unsuccessful attempt to trace title reserved in resin into chipboard manufactured using it, the latter concerning a successful attempt to reclaim steel supplied subject to a reservation of title. I add that, even if on analysis these two cases could and should have been analysed as sui generis, like the present, it is difficult to think that could have had any effect on their outcome. None of these cases therefore really assists the resolution of the present appeal. I also add (with further reference to the Court of Appeals suggestion mentioned in para 31 above) that, even if the contract were (contrary to my above analysis) to be analysed as a contract of sale when made in that it contemplated the transfer of property in any bunkers unused at the date of payment, I do not see how this could assist the Owners. OWBM could not owe any obligation to transfer property in bunkers consumed before payment. The contract would be subject to a resolutive condition subsequent whereby it would cease to be a contract of sale as and to the extent that the Owners exercised their contractual right to consume the bunkers in the vessels propulsion, and would cease entirely to be a contract of sale if and when all such bunkers were consumed before payment. For the reasons I have given, the arbitrators were correct, in my opinion, in concluding that the contract was not one of sale within section 2 of the Sale of Goods Act, with the result that the Owners could have no possible defence under section 49 to the claim for the price. The Owners alternative ground of appeal I turn in this light to the Owners alternative ground of appeal, which is that there must, as a matter of obviousness and necessity, have been an implied term of the contract relating to performance of obligations in the contractual chain above OWBM, by virtue of which OWBM obtained the bunkers it supplied to the Owners. In the Court of Appeal at least initially and in the written case, this is put extremely briefly as an implied duty on OWBM to perform its obligations by making timeous payment to its supplier. The real reason why OWBM could not have passed any title to the Owners appears, however, to have been that OWBAS became insolvent and never paid RMUK. The Owners formulation of an implied term in their case would not address this. Not surprisingly, the matter was therefore put differently and more widely in the Court of Appeal, which was however left in the end in understandable uncertainty about the precise content of the alleged implied duty. For similar reasons to those given by Moore Bick LJ in para 36, I share the Court of Appeals conclusion that there is no basis or need for any such implied duty, however it is put. In short, the essential nature of the bargain is as I have stated in para 28 of this judgment. As a result, OWBMs only implied undertaking as regards the bunkers which it permitted to be used and which were used by the Owners in propulsion prior to payment was that OWBM had the legal entitlement to give such permission. In order to be so entitled, OWBM did not need to have or acquire title to the bunkers. It merely needed to have acquired the right to authorise such use under the chain of contracts by virtue of which it had obtained the bunkers. As regards bunkers in existence at the time of any payment, OWBM would of course have to have had or at least be able to pass title. Had they been unable to do so, then, maybe, the Owners could have treated OWBM as in breach of condition and terminated the contract, though they would at the same time have had to refrain from further use of the bunkers. OWBM would then have been unable to maintain a claim for the whole price, and would have had to assert either a contractual or a restitutionary claim (it is unnecessary to consider which) to pro rata payment for the bunkers consumed. But none of this is relevant, and for that reason it was not explored in submissions. What happened was quite different. No payment was ever tendered by the Owners. The Owners simply continued to use the bunkers under the contractual liberty until they were all consumed. So far as material, no basis appears for treating the contractual liberty as ending with the 60 day period for payment, if payment was not then made; so long as the contract remained in force, the liberty would continue on its face until payment or complete consumption of all the bunkers supplied. The issues before the court do not involve any claim that OWBM had no right to permit such use, or that the Owners are or may be exposed to any risk of double exposure, either by reason of RMUKs claim (never so far as appears formally pursued) or on any other basis. On the presently assumed facts, therefore the Owners are simply liable for the price, albeit under a contract sui generis, which is not one of sale. The position if the contract had been one of sale In view of the above conclusions, the position if the contract had been classified as a contract of sale within section 2 of the Sale of Goods Act cannot and does not arise. The Owners case was that, if the contract was one of sale, then section 49 would preclude any claim by OWBM/ING for the price of the bunkers used. OWBM/ING challenge this analysis and the Court of Appeal decision in Caterpillar which currently supports it. Since the point was fully argued and has general significance, I propose to say something on it. First, however, I should briefly address the preliminary question, very specific to this particular case, whether it would, if necessary, even have been open to OWBM to challenge the correctness of the Court of Appeals decision in Caterpillar. Not without some doubt, I conclude that it would have been. This is because of the way in which the arbitrators addressed issue 4(b), as set out in paras 16 18 above. They answered it in their reasons before and on the face of it independently of their conclusion under issue 9 that the Sale of Goods Act did not apply to the contract. Further, their reasons appear to postulate that the Sale of Goods Act could apply but that a contractual claim for payment (albeit not for a price) could still be maintained otherwise why the references to section 49 ruling out a claim for the price, to section 50 offering no alternative, and to their conclusion presenting no challenge to the Sale of Goods Act? On that basis, was the Court of Appeal correct in Caterpillar to conclude that, where goods are delivered under a contract of sale, but title is reserved pending payment of the price, the seller cannot enforce payment of the price by an action? In Caterpillar the goods had been agreed to be sold and were delivered by F G Wilson to John Holt & Co (Liverpool) Ltd (Holt Liverpool) which it was known would on deliver them to its subsidiary, John Holt plc (Holt Nigeria), a Nigerian company. The majority (Patten and Floyd LJJ) held that, under the relevant terms, Holt Liverpool (not having paid the price to F G Wilson) had delivered the goods to Holt Nigeria as fiduciary agents for F G Wilson, and that property had in this situation continued in law to reside in Holt Liverpool until such delivery, whereupon it had passed directly from F G Wilson to Holt Nigeria without Holt Liverpool ever acquiring it. Longmore LJ, although he had dissented on the passing of property, gave the principal reasoned judgment on the question which arose from the majoritys conclusion that property had not passed. This was whether F G Wilson could sue Holt Liverpool for the price. He concluded, after reviewing the authorities, that section 49 constituted a code, which precluded any action for the price outside its terms. The authorities included what Longmore LJ saw as two inconsistent previous Court of Appeal decisions, one Otis Vehicle Rentals Ltd v Cicely Commercials Ltd [2002] EWCA Civ 1064, the other the case of Harry & Garry, discussed above on another aspect and which Longmore LJs judgment records was unearthed by the industry of counsel appearing in Caterpillar. Section 49(1) enables an action for the price where the seller has transferred property, with or without delivery, and the buyer has failed to pay the price due. Conversely, the authorities cited by Longmore LJ establish that, where property has not passed, a seller cannot sue for the price of goods, delivery of which the buyer has refused to accept either physically (Atkinson v Bell (1828) 8 B & C 277; Otis Vehicle Rentals, cited above) or by refusing to take up the shipping documents (Stein Forbes & Co v County Tailoring Co (1916) 115 LT 215; Muller, Maclean & Co v Leslie & Anderson (1921) 8 Lloyds List Law Rep 328; Plaimar Ltd v Waters Trading Co Ltd (1945) 72 CLR 304) or by failing or refusing to make the necessary shipping arrangements (Colley v Overseas Exporters [1921] 3 KB 302). An established common law exception (see Dunlop v Grote (1845) 2 C & K 153) now reflected in section 49(2) of the Act exists where the price is payable on a day certain, in which case the seller may enforce its payment, provided that he is ready and able at the same time to deliver to the buyer the goods and property in them: Otis Vehicle Rentals, para 16 per Potter LJ. In Caterpillar, Longmore LJ expressed the view that a price payable on a day certain would embrace a situation where the price was expressed to be payable within 30 days of the date of the invoice. If so, it would embrace the situation under RMUKs contract with OWBAS or OWBMs contract with the Owners, whereby the price was payable within respectively 30 or 60 days of delivery. This was also Males Js view, differing on the point from the arbitrators. Leaving section 49(2) aside, the question of principle is whether section 49 excludes any claim to recovery of a price outside its express terms. The majority of the High Court of Australia in Minister for Supply and Development v Servicemens Co operative Joinery Manufacturers Ltd (1951) 82 CLR 621 can be read as accepting that similar statutory language did not exclude all such claims. However, whilst Latham CJ, one of the majority, made no express reference to section 49(2), he did refer to Dunlop v Grote, cited above, and to Benjamin on Sale, 7th ed (1931), p 861, which both deal with a price payable on a day certain. It is not clear that he necessarily intended to go further. In Colley v Overseas Exporters, cited above, McCardie J undertook a detailed examination of the pre 1893 Sale of Goods Act position at common law, concluding that there had been only two established counts available for recovery of the price of goods sold, both dependant on property passing and so falling within what became section 49(1). Section 49(2) was a limited exception. Support for this can be found in the illuminating discussion and judgments in Laird v Pim (1841) 7 M & W 474, to which McCardie J also referred. In that case, the defendant, having contracted to purchase and having been given possession of a plot of land, had refused to complete a conveyance or pay for it. During the proceedings, the analogy with the non acceptance of goods was drawn, and at one point Parke B pointed out that, since the land was still the plaintiffs at law, the plaintiff might bring ejectment. The plaintiff made clear however that it was not claiming the price of the whole purchase money, but only for the damages sustained by the non performance of the contract (p 479). To this counsel for the defendant responded (p 483) that Unless the defendants are bound to pay the purchase money, no damages can be recovered for the non payment of it: the plaintiff, therefore, must shew not only that the defendants did not pay, but also that they were bound to pay. But this argument failed. Parke B said (p 485) that the plaintiff was substantially in the same situation, for the purpose of recovering the money, as if all had been done on his part which he engaged to do. It does not follow that he shall recover the whole purchase money, but he is in the same situation for the purpose of recovering damages for the non payment of the price, as if all had been done by him. That approach, if adopted, at least answers the problem which Longmore LJ found in paras 55 56 in Caterpillar about accepting a claim for damages for non payment of money or seeing any remedy whatever open to the seller. I add three observations. First, it would seem to me that the non performance in a case like Laird v Pim could just as well be described in terms of failure to accept a transfer of the title to property, as failure to pay its price. Second, if described as a claim for failure to pay the price, the judgments in Sempra Metals Ltd v Inland Revenue Comrs [2008] AC 561 mean, I believe, that a claim for damages for non payment of money could quite readily be accommodated in the modern law. Third, in Laird v Pim, the damages might have had to be reduced to take account of the prospect of recovery of the property the law report does not address their measure more precisely than I have already indicated. In the present case, bearing in mind the complete consumption of the bunkers, there would be no difference between the agreed price and the damages for non payment of the price that would follow on the approach taken in Laird v Pim. Nonetheless, there is artificiality about treating the sellers claim as being for damages, after delivery was made albeit under retention of title, and particularly so where the buyer is authorised to consume the goods as here. Part of the thinking behind the rule in section 49(1) is no doubt, as Longmore LJ observed (para 43), that It would have been thought unfair to a buyer if, before delivery had occurred, the goods had perished or been damaged and yet the price was payable, unless the goods were actually his property, see Simmons v Swift (1826) 5 B & C 857. It would also be odd if a sellers creditors on bankruptcy could both seize goods still on his premises and sue the buyer for the price. However, it will be noted that both these rationales focus on situations where delivery has not been made, and, as appears from the judgments in Simmons v Swift, the real significance attached by the court to the fact that property had not passed in Simmons v Swift was that it meant that the goods were still at the risk of the sellers. The oddity mentioned by Longmore LJ would not have existed, if the goods had been at the buyers risk. Section 49(2) relaxes only partially the strictness of section 49(1), and it depends on the price being payable on a day certain. These are words which can no doubt be construed liberally, as Longmore LJ was minded to, but are not of indefinite expansion. Further, the main focus of section 49(2) may well have been on cases where delivery has not been made hence the phrase irrespective of delivery. Section 49 does not focus on the position existing where delivery is made, title is reserved but the price is agreed to be paid, albeit not on a particular day certain. Even less does it focus on the position where all these features are present and the buyer is permitted to dispose of or consume the goods or they are at the buyers risk and are destroyed or damaged. The question is whether in all these cases an action for the price is excluded, and the seller is forced to look around for other means of redress. The Court of Appeal, in an alternative reason for its judgment in Harry & Garry, did not think so. Kerr LJ, now approaching the case on the hypothesis that the buy back contract was subject to the Sale of Goods Act, said this: In any event, however and this is the second reason why I differ from the judge it is clear from the authorities to which we were referred that even in the realm of contracts for the sale of goods there can be situations in which a seller may be entitled, under the particular terms of the contract, to claim a sum which is in effect the price of the goods, even though he cannot bring himself within the terms of section 49. In that connection we were helpfully referred by Mr Bartlett to another section of the Act and a number of authorities. I can deal with them quite shortly. First, section 55 of the Act makes it clear that the provisions of the Act are not exhaustive, but that the parties may enter into agreements which negative or vary the rights, duties or liabilities which would otherwise arise under a contract of sale by virtue of the Act. Secondly, Mr Bartlett referred to a part of the speech of Lord Diplock in Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441, 501, in which he points out that the Sale of Goods Act is not an exhaustive code within which every transaction of the nature of a sale of goods must necessarily be brought, but that it is open to parties, if they have done so by the terms of their agreement, to create situations which, while being contracts for the sale of goods, are not governed exclusively by the terms of the Act. It is true that in Colley v Overseas Exporters [1921] 3 KB 302, 310, McCardie J expressed the obiter view that section 49(2) was an exhaustive statement (together with subsection (1)) of situations in which a seller is entitled to sue for the price. But that was clearly not the view of Wright J as expressed in Shell Mex Ltd v Elton Cop Dyeing Co Ltd (1928) 34 Commercial Cases at p 39, where he referred to what is now section 55 of the 1979 Act and the particular terms of the contract. He concluded that on its true construction the sellers were not entitled to recover the price, but without regard to the fact that on no view could the case have been brought within section 49. Kerr LJ went on to state that that had been the view of the majority of the High Court of Australia, in Minister for Supply and Development v Servicemens Co operative Joinery Manufacturers Ltd, before concluding: If, contrary to the primary view which I have expressed, this transaction recorded in the form of the document of 31 December 1982 was indeed a sale by the plaintiffs to the Jariwallas, then in my view, having regard to the agreement as a whole which the judge has found, it would still be open to the plaintiffs to sue for the 46,000 odd once a reasonable time had elapsed and it had become clear all of which has now happened that they were not going to be relieved from the bills of exchange. Accordingly, I would allow this appeal to the extent of judgment for the plaintiffs for 46,763.45p, with the appropriate interest. Like Longmore LJ in Caterpillar (para 53), I am unconvinced that the solution to the present problems is found in section 55 or in Lord Diplocks dicta in Ashington Piggeries. Both concern the negativing or variation of any right, duty or liability [which] would arise under a contract of sale of goods by implication of law, into which category it is difficult to fit the statutory provisions of section 49. I am also unconvinced that Wright Js judgment in Shell Mex is of present assistance, and I have already questioned whether both members of the majority in the High Court of Australia in the Minister of Supply case were necessarily speaking of situations outside section 49(2). Nevertheless, the 1893 Act was rooted in and intended to reflect common law authority, developed in an era when freedom of contract and trade were axiomatically accepted as beneficial. Certainly, a court could not now recognise a claim for the price in a case falling squarely within section 50, and it should be cautious about recognising claims to the price of goods in cases not falling within section 49. But I consider that this leaves at least some room for claims for the price in other circumstances than those covered by section 49. Harry & Garry is on its facts such a case. Title being reserved to Harry & Garry, the Jariwallas were nonetheless permitted to take possession under the buy back contract, and to dispose of some of the sarees of which possession was taken back. It seems entirely natural and appropriate that Harry & Garry should be entitled to recover for the price of all the sarees so taken back, on condition of course that they were ready and willing to transfer title in the remaining sarees to the Jariwallas in return. Another case covered by authority is that where the goods are at the buyers risk, but property has not passed. This situation was addressed in two successive cases in 1872: Castle v Playford (1872) LR 7 Ex 98 and Martineau v Kitching (1872) LR 7 QB 436. In the former, the contract for the sale of ice was for cash on delivery at the rate of 20s a ton as weighed on arrival and delivery in the United Kingdom, but it was agreed that the buyer should take upon himself all risks and dangers of the seas. The vessel was lost. The court (Cockburn CJ, Willes, Blackburn, Mellor, Brett and Grove JJ) found it unnecessary to decide whether property had passed. Whether or not it had, the true construction of the contract was from the buyers viewpoint, in Cockburn CJs words, at p 99: I will engage, when it arrives, to pay you according to what may be its value; and if, in the meantime, while it is upon the seas, it shall perish through the perils of the seas, I will undertake to pay you for it according to what may be estimated to have been its fair value at the time of going down. Blackburn J giving the other reasoned judgment said, at p 100: Now here, the ship and cargo have gone to the bottom of the sea; but in the cases of Alexander v Gardner (1835) 1 Bing NC 671, and Fragano v Long (1825) 4 B & C 219, it was held, that if the property did perish before the time for payment came, the time being dependent upon delivery, and if the delivery was prevented by the destruction of the property, the purchaser was to pay an equivalent sum. In the present case, when the ship went down there would be so much ice on board, and, in all probability, upon an ordinary voyage so much would have melted; and what the defendant has taken upon himself to pay is the amount which, in all probability, would have been payable for the ice. The two judgments define the sum payable in very slightly different ways, but both treat it as a sum payable for the goods under the contract terms. Three months later the second case came before Cockburn CJ, Blackburn, Lush and Quain JJ in the Queens Bench Division. Sugar was agreed to be sold, with the price payable Prompt at one month; goods at sellers risk for two months, to be kept at the sellers premises and drawn down by the buyers as wanted. After two months and after only some of the sugar had been drawn down by the buyers, a fire destroyed the rest. The buyer having disputed his liability to pay for the undelivered sugar which had been burned in the fire, the seller brought an action to recover the price of [the] sugars sold and the question was whether the sellers were so entitled (see pp 436, 441, para 21; and p 445). The court held that they were. Cockburn CJ did so on the basis that property had passed. But Blackburn, Lush and Quain JJ found it unnecessary to decide this, and they all decided the case on the basis that after two months the risk had passed. Blackburn J put the matter thus, at p 455: [A]ssume that [property] had not passed. If the agreement between the parties was, I contract that when you pay the price I will deliver the goods to you, but the property shall not be yours, they shall still be my property so that I may have dominion over them; but though they shall not be yours, I stipulate and agree that if I keep them beyond the month the risk shall be upon you; and then the goods perish; to say that the buyer could then set up this defence and say, Although I stipulated that the risk should be mine, yet, inasmuch as an accident has happened which has destroyed them, I will have no part of that risk, but will throw it entirely upon you because the property did not pass to me, is a proposition which, stated in that way, appears to be absolutely a reductio ad absurdum; and that is really what the argument amounts to. If the parties have stipulated that, if after the two months the goods remain in the sellers warehouse, they shall, nevertheless, remain there at the buyers risk, it would be a manifest absurdity to say that he is not to pay for them; and I think the case of Castle v Playford is a clear authority of the Court of Exchequer Chamber, that where the parties have stipulated that the risk shall be on one side, it matters not whether the property had passed or not. The parties here have by their express stipulation impliedly said, after the two months the goods shall be at the risk of the buyer, consequently it is the buyer who must bear the loss. The price may therefore be recovered in respect of goods undelivered which remain the sellers property but are at the buyers risk and are destroyed by perils of the seas or by fire. The present situation is in my opinion a fortiori. The price of bunkers, which remain the sellers property but which are both (i) at the buyers risk as regards damage or destruction (clause G.12) and (ii) also permitted by the express terms of the contract to be destroyed by use for the Owners commercial benefit, must be equally recoverable. I add that I do not suggest that this is the limit of the circumstances outside section 49 in which the price may be recoverable. The decision in Harry & Garry itself was that the price was recoverable for all the 2,494 sarees agreed to be bought back, although only 411 of them had been disposed of by the buyers with the sellers permission. The precise limits of such circumstances and the significance which may in particular attach to the use of retention of title clauses in combination with physical delivery of the goods and the transfer of risk must be left for determination on some future occasion. I would only add that, when that occasion arises, much benefit will be obtained (as I have done in writing this judgment) from the perceptive discussion by Professor Louise Gullifer in her article The interpretation of retention of title clauses: some difficulties (2014) LMCLQ 564. She also addresses some critical remarks to the other issue in the Caterpillar case, that is the interpretation of Holt Liverpools role as one of agency on behalf of F G Wilson in parting with the goods to Holt Nigeria. That issue does not arise here, but may well merit further consideration in another case in this court. It follows from what I have said that, had the contract been one of sale, I would have held, over ruling the Caterpillar case on this point, that section 49 is not a complete code of situations in which the price may be recoverable under a contract of sale, and that, in the present case, the price was recoverable by virtue of its express terms in the event which has occurred, namely the complete consumption of the bunkers supplied. Conclusion the contract between OWBM and the Owners was not one of sale, but In the result, I conclude that, on the assumed facts: (i) sui generis; (ii) that it was not subject to any such implied term or terms, regarding performance by OWBM (or OWBAS) of any supply contract higher up the chain, as the Owners have alleged though it was no doubt subject to an implied promise by OWBM that OWBM was entitled (in consequence of whatever were the arrangements under which the bunkers had been obtained directly or indirectly from whoever was interested in them) to supply them to the Owners on terms permitting their use for the propulsion of the vessel before payment; and (iii) price. that the Owners have no defence to OWBMs claim to the agreed Had I concluded on the other hand that the contract was one of sale, I would, again on the assumed facts, have held that section 49 of the Sale of Goods Act was also no bar to a claim by OWBM to payment of the agreed price.	In October 2014, PST Energy 7 Shipping LLC and Product Shipping and Trading S.A., the owners and managers of the vessel Res Cogitans, (collectively, the Owners) ordered a quantity of marine fuel, (the bunkers) from OW Bunker Malta Ltd (OWB). The contract between OWB and the Owners provided for payment 60 days after delivery and included a clause under which property was not to pass to the Owners until payment for the bunkers had been made. It also entitled the Owners to use the bunkers for the propulsion of Res Cogitans from the moment of delivery. OWB obtained the bunkers from its parent company, OW Bunker & Trading A/S (OWBAS). OWBAS obtained the bunkers from Rosneft Marines (UK) Ltd (RMUK), which obtained them from RN Bunker Ltd (RNB). In November 2014 OWBAS announced that it was applying to the Danish courts for restructuring and subsequently became insolvent. ING Bank NV (ING) became the assignee of OWBs rights against the Owners. The Owners consumed all of the bunkers in the vessels propulsion, without making payment to OWB, which did not make payment to OWBAS, which in turn did not make payment to RMUK. RMUK paid RNB and demanded payment from the Owners, asserting that it remained the owner of the bunkers. The Owners commenced arbitration against OWB and ING, seeking a declaration that they were not bound to pay for the bunkers, or damages for breach of contract, on the grounds that OWB had been unable to pass title to them, owing to the application of section 2(1) and s.49 of the Sale of Goods Act 1979 (SoGA). The arbitrators determined that OWB did not undertake to transfer property in the bunkers to the Owners under the Contract and that the Owners therefore remained liable to pay OWB/ING. Males J agreed and the Court of Appeal dismissed a further appeal by the Owners. The Supreme Court unanimously dismisses the appeal by the Owners, PST Energy. Lord Mance gives the only judgment, with which the other Justices agree. There are three issues before the Supreme Court: (1) Was the contract a contract of sale within the meaning of section 2(1) of SoGA? (2) If not, was it subject to any implied term that OWB would perform or had performed its obligations to its supplier, in particular by paying for the bunkers timeously? (3) Should the Court of Appeal decision F G Wilson (Engineering) Ltd v John Holt & Co (Ltd) [2014] 1 WLR 2365 (known as Caterpillar) be overruled? [22, 24] Was the contract a contract of sale under section 2(1) the Sale of Goods Act 1979? section 2(1) of SoGA defines a contract of sale of goods as one by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. OWB argues that this was a contract of sale within that definition. But bunker suppliers know that bunkers are for use prior to payment [27]. OWBs contract with the Owners therefore cannot be regarded as a straightforward agreement to transfer the property in the bunkers to the Owners for a price under section 2(1). It was a sui generis (unique) agreement, with two aspects: first, to permit consumption prior to any payment and without any property ever passing in the bunkers consumed; and second, if and so far as bunkers remained unconsumed, to transfer the property in the bunkers remaining to the Owners in return for the Owners paying the price for all of the bunkers, whether consumed before or remaining at the time of payment [28, 34]. Even if the contract were to be analysed as a contract of sale, in that it contemplated the transfer of property in any bunkers unused at the date of payment, OWB could not owe any obligation to transfer property in bunkers consumed before payment. It would cease to be a contract of sale if and when all such bunkers were consumed before payment [36 37]. Was there an implied term that OWB would pay timeously? In consequence of his conclusion at [28] Lord Mance finds that OWBs only implied undertaking as regards the bunkers which it permitted to be used, and which were used by the Owners in propulsion prior to payment, was that OWB had the legal entitlement to give such permission [39, 59]. Should Caterpillar be overruled? The Court of Appeal held in Caterpillar that where goods are delivered under a contract of sale but title is reserved pending payment of the price, the seller cannot enforce payment of the price by an action [42]. section 49(1) of SoGA enables an action for the price where the seller has transferred property, with or without delivery, and the buyer has failed to pay the price due [44]. Lord Mance considers that section 49(2) reflects an established common law exception to the rule in section 49(1) [45]. The question of principle is whether section 49 excludes any claim to recovery of a price outside its express terms. section 49(2) relaxes only partially the strictness of section 49(1). The 1893 Act which introduced the wording now found in section 49(2) reflected the common law in an era when freedom of contract and trade were axiomatically accepted as beneficial. Therefore a court should be cautious about recognising claims to the price of goods in cases not falling within section 49 but this leaves at least some room for claims for the price in other circumstances [53]. For instance, the price may be recovered in respect of goods undelivered which remain the sellers property but are at the buyers risk and are destroyed by perils of the seas or by fire. The present situation is an even stronger example [57]. Lord Mance declined to set the precise limits for the circumstances in which the price may be recoverable outside section 49. Had the contract between OWB and the Owners been one of sale, Lord Mance would have held, over ruling the Caterpillar case on this point, that section 49 is not a complete code of situations in which the price may be recoverable under a contract of sale. In the present case the price was recoverable by virtue of its express terms in the event which has occurred, namely the complete consumption of the bunkers supplied [58, 60].
John Walker, the appellant in these proceedings, started to work for Innospec Ltd on 2 January 1980. From the beginning of his employment, he was required to become a member of the firms contributory pension scheme. He continued to pay into the scheme throughout the time that he was employed by Innospec. His employment continued until Mr Walker accepted early retirement on 31 March 2003. He would have reached normal retirement age, as prescribed by the pension scheme, in 2007. Under the terms on which Mr Walker could take early retirement, he was able to maximise his pension to the level that it would have reached if he had retired in 2007. The concessions made by his employer which allowed him to do so were not made in exchange for any waiver by him of his future pension rights. Mr Walker is gay. He has lived with his male partner since 1993. They applied for a civil partnership on 5 December 2005 (the same day the Civil Partnership Act 2004 came into force) and their civil partnership was registered on 23 January 2006. They are now married. Shortly after the civil partnership was registered, Mr Walker asked Innospec to confirm that, in the event of his death, they would pay the spouses pension, which the scheme provides for, to his civil partner. They refused, because his service predated 5 December 2005. The basis of the refusal (which was confirmed after Mr Walker and his partner married) is paragraph 18 of Schedule 9 to the Equality Act 2010. This provision must be considered in greater detail later in this judgment but, in broad outline, it provides an exception to the general non discrimination rule implied into occupational pension schemes. Under this exception, it is lawful to prevent or restrict access to a benefit, facility or service to a person (a) where the right to that benefit etc accrued before 5 December 2005, or (b) which is payable in respect of periods of service before that date. If Mr Walker was married to a woman, or, indeed, if he married a woman in the future, she would be entitled on his death to the pension provided by the scheme to a surviving spouse. When the claim was issued, the value of that spouses pension was about 45,700 per annum. As things stand at present, Mr Walkers husband will be entitled to a pension of about 1,000 per annum (the statutory guaranteed minimum). The proceedings In November 2011, Mr Walker lodged a claim in the Employment Tribunal (ET) against his employers, alleging that they had discriminated against him on the ground of his sexual orientation. On 13 November 2012, the ET unanimously decided that there had been both direct and indirect discrimination on that ground. It had been argued on behalf of the respondents that there had not been direct discrimination and that, although the operation of the pension scheme amounted to indirect discrimination, this was justified. Both arguments were rejected by the ET. The discrimination was direct, the ET said, in that it involved unequal treatment of straightforwardly comparable individuals viz heterosexual married couples and same sex couples who had entered a lifetime commitment to each other. It was likewise indirect discrimination because an unwarranted requirement had been imposed in respect of the couple of the same gender. The proffered justification by the respondents (that it was necessary to have the restriction in place in order to ensure proper funding of the scheme) was found by the ET to be unsupported by sufficiently cogent evidence. The ET concluded that paragraph 18 could and should be read in a manner which would render it compliant with Council Directive 2000/78/EC of 27 November 2000 [2000] OJ L 303/16 (the Framework Directive). This establishes a general framework for equal treatment in employment and occupation. It therefore upheld Mr Walkers claim on liability and fixed a date for a remedies hearing. Innospec appealed. Its arguments on direct and indirect discrimination failed. The Employment Appeal Tribunal (EAT) rejected the argument that because, as a matter of status, a spouse is entitled to a pension or survivors benefit without the restriction which paragraph 18 places upon a civil partner, they were not comparable: [2014] ICR 645. The EATs dismissal of the argument drew on section 23(3) of the Equality Act 2010 which provides that if the protected characteristic is sexual orientation, the fact that one person is a civil partner while another is married is not a material difference between the circumstances relating to each case and on the statement of Lady Hale in Bull v Hall [2013] UKSC 73; [2013] 1 WLR 3741, para 29, to the effect that the criterion of marriage or civil partnership [should be regarded] as indissociable from the sexual orientation of those who qualify to enter it. On the question of indirect discrimination, the EAT held that the ET was entitled to conclude that Innospec had failed to produce any cogent evidence on the issue of justification but had merely relied on generalised assertions. It had thus failed to show that the indirect discrimination was proportionate. The EAT allowed Innospecs appeal, however. It held that the Framework Directive did not have retrospective effect to render unlawful inequalities based on sexual orientation that arose before the last date for its transposition. After that date the Directive provided a basis for ensuring equal treatment between those with different sexual orientation but not before. Paragraph 18 was therefore not incompatible with the Directive. The EAT further held that if, contrary to its view, paragraph 18 was, on its face, incompatible with the Directive, it was not open to it to interpret that provision in a way that rendered it compatible. The plain purpose of the paragraph was to create an exception. To nullify that exception would run directly contrary to the grain of the legislation (Ghaidan v Godin Mendoza [2004] 2 AC 557). It was also held that paragraph 18 could not be disapplied. In reaching that conclusion, the EAT referred to the judgment of Lord Mance in R (Chester) v Secretary of State for Justice [2013] UKSC 63; [2014] AC 271, at paras 61 62 where he said: The Court of Justice has accepted that, although the Treaty contemplates that the general principle of non discrimination underlying article 13 EC 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: Kckdeveci v Swedex GmbH and Co KG (Case C 555/07) [2010] All ER (EC) 867, Rmer v Freie und Hansestadt Hamburg (Case C 147/08) [2011] ECR I 3591, para 61 . however, for the general principle of non discrimination to apply, the context must fall within the scope of Community or now Union law . The EAT considered that Mr Walkers claim, in so far as it related to an asserted entitlement to spousal pension, could not be brought within the scope of European Union (EU) law in respect of the period prior to the time limit for transposing the Framework Directive. Mr Walker appealed the EATs decision. In the Court of Appeal the Secretary of State argued that the EAT was wrong in its conclusion on direct discrimination. In effect, he repeated the argument advanced by Innospec to the EAT that civil partners and married persons are not in a comparable position in respect of pension rights because paragraph 18 itself created a difference in status between the two groups. That argument was rejected, Lewison and Underhill LJJ finding that civil partnership and marriage were indeed comparable situations in the UK and Lord Dyson MR agreeing with both: [2016] ICR 182. The Court of Appeal nevertheless dismissed Mr Walkers appeal. At the outset, Lewison LJ identified what he described as two relevant principles of EU law. These were said to be the no retroactivity principle and the future effects principle. Lewison LJ described the first of these principles as prescribing that EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect, that the purpose to be achieved so requires and that the legitimate expectations of those concerned are duly respected para 5 of his judgment. Because the Court of Appeal found that to require payment of a spouses pension to Mr Walkers husband, after Mr Walkers death, would be to give the Framework Directive retrospective effect, it concluded that the no retroactivity principle precluded this. The second principle was said to be that amending legislation applies immediately to the future effects of a situation which arose under the law as it stood before amendment, unless there was a specific provision to the contrary again para 5. The application of those principles by the Court of Appeal is central to their decision. They underpin critically their conclusion that the Framework Directives prohibition of discrimination on grounds of sexual orientation applies only to pension payable in the future in respect of service and/or contributions paid prior to 2 December 2003, the deadline for its transposition. In turn that conclusion depends vitally on the Court of Appeals analysis of the EU cases which, it says, articulate the no retroactivity and future effects principles. The issues in broad outline The appellant identified three principal issues. The first is whether the differential treatment provided for by paragraph 18 of Schedule 9 is compatible with the Framework Directive. The second issue is whether, if the differential treatment is not compatible with the Framework Directive, the appellants claim must nonetheless fail because paragraph 18 must be given effect, or whether, as the appellant contends, the paragraph must be disapplied because of its inescapable conflict with the Directive. The final issue raised by the appellant is whether a declaration of incompatibility under section 4 of the Human Rights Act 1998 should be made by this court, declaring that paragraph 18 is incompatible with article 14, read with article 8 and/or article 1 of the First Protocol of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Some general considerations Until the beginning of this century there was no legal prohibition on discrimination on the grounds of sexual orientation at work. Since then, the legal status of gay and lesbian employees has been transformed, mainly because of two developments. The first was the introduction of equal treatment legislation by the European Union. The Framework Directives prohibition of discrimination in the field of employment and occupation extended to unequal treatment on the ground of sexual orientation. The deadline for transposing the Directive into domestic law was 2 December 2003 and the UK did this initially by way of regulations (the Employment Equality (Sexual Orientation) Regulations 2003) (SI 2003/1661)) and subsequently in primary legislation now incorporated into the Equality Act 2010. Part 5 of that Act prohibits direct and indirect discrimination on grounds of sexual orientation in the context of employment. The second development is domestic in origin. Parliament has legislated to recognise same sex unions, first by introducing civil partnerships equivalent to marriage (the Civil Partnership Act 2004) and subsequently by legalising same sex marriage itself (the Marriage (Same Sex Couples) Act 2013). The recognition of same sex partnerships, which is not required by EU law, was motivated by an appreciation that formal equality for same sex couples will always be deficient if they are unable to avail themselves of the legal benefits attendant on marriage. In her foreword to the consultation paper preceding the introduction of the Civil Partnership Act 2004, Jacqui Smith, the Minister of State for Industry and the Regions and Deputy Minister for Women and Equality, noted: Many [same sex couples] have been refused a hospital visit to see their seriously ill partner, or have been refused their rightful place at their partners funeral. Others find themselves unable to access employment benefits reserved only for married partners. Couples who have supported each other financially throughout their working lives often have no way of gaining pension rights. Grieving partners can find themselves unable to stay in their shared home or to inherit the possessions they have shared for years when one partner dies suddenly without leaving a will. In so many areas, as far as the law is concerned, same sex relationships simply do not exist. That is not acceptable. Although EU law does not impose any requirement on member states to recognise same sex partnerships, the European Court of Justice has held that if a status equivalent to marriage is available under national law, it is directly discriminatory contrary to the Framework Directive for an employer to treat a same sex partner who is in such a partnership less favourably than an opposite sex spouse (Maruko v Versorgungsanstalt der Deutschen Bhnen (Case C 267/06) [2008] 2 CMLR 32). Thus in the UK it is unlawful as a matter of both EU and domestic law for an employer to deny a same sex civil partner or spouse of an employee a benefit that would be provided to a spouse of the opposite sex. That is not an end of the matter, however. When it introduced civil partnerships, Parliament also decided to include an exception to the prohibition on discrimination in the context of employment. That is now contained in paragraph 18 of Schedule 9 of the Equality Act 2010, which provides in its current form: (1) A person does not contravene this Part of this Act, so far as relating to sexual orientation, by doing anything which prevents or restricts a person who is not [within sub paragraph (1A)] from having access to a benefit, facility or service (a) the right to which accrued before 5 December 2005 (the day on which section 1 of the Civil Partnership Act 2004 came into force), or (b) which is payable in respect of periods of service before that date. Mr Walker does not come within section 1A. (It concerns either (a) a man who is married to a woman, or (b) a woman who is married to a man, or (c) someone married to a person of the same sex in a relevant gender change case.) If the effect of the Framework Directive is to prohibit discrimination on the ground of sexual orientation with regard to the payment of pensions in respect of periods of service before 5 December 2005, paragraph 18 is plainly incompatible with it. The essential question, therefore, is whether that is the effect of the Directive. The rule against retroactive legislation The general rule, applicable in most modern legal systems, is that legislative changes apply prospectively. Under English law, for example, unless a contrary intention appears, an enactment is presumed not to be intended to have retrospective effect. The logic behind this principle is explained in Bennion on Statutory Interpretation, 6th ed (2013), Comment on Code section 97: If we do something today, we feel that the law applying to it should be the law in force today, not tomorrows backward adjustment of it. Such, we believe, is the nature of law. those who have arranged their affairs in reliance on a decision which has stood for many years should not find that their plans have been retrospectively upset. EU law is no different in this respect. As the Court of Appeal observed, the Court of Justice of the European Union (CJEU) has developed two principles to establish the temporal application of EU legislation the no retroactivity principle and the future effects principle. These were described by the CJEU in Land Nordrhein Westfalen v Pokrzeptowicz Meyer (Case C 162/00) [2002] 2 CMLR 1, paras 49 50 as follows: According to settled case law, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, the substantive rules of Community law must be interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, their objectives or their general scheme that such effect must be given to them (see, in particular, Bout (Case C 21/81) [1982] ECR 381, para 13, and GruSa Fleisch (Case C 34/92) [1993] ECR I 4147, para 22). It also follows from settled case law that new rules apply immediately to the future effects of a situation which arose under the old rules (see, among other cases, Licata v Economic and Social Committee (Case C 270/84) [1986] ECR 2305, para 31). In application of that principle the Court has held, in particular, that since the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p 21, and OJ 1995 L 1, p 1) contains no specific conditions whatsoever with regard to the application of article 6 of the EC Treaty (now, after amendment, article 12 EC), that provision must be regarded as being immediately applicable and binding on the Republic of Austria from the date of its accession, with the result that it applies to the future effects of situations arising prior to that new member states accession to the Communities (Case C 122/96) Saldanha and MTS [1997] ECR I 5325, para 14). The policy behind the no retroactivity principle is thus similar to that described in Bennion the need to ensure legal certainty and to protect the legitimate expectations of those who have relied on the law as it previously stood. The future effects principle is simply the other side of the same coin. It is a method developed by the CJEU to avoid any retrospective effect and to ensure the immediate prospective application of legislation to ongoing legal relationships. The principle is necessary because it is not always easy to identify the point at which a right accrues. Employment provides a paradigm example. How should a new EU provision be applied to an ongoing employment relationship that had begun before the provision came into force? In Land Nordrhein Westfalen, the CJEU answered that question by holding that the application of a new rule from the date of its entry into force, to a contract of employment concluded prior to its entry into force, cannot be regarded as affecting a situation arising prior to that date (para 52). As Advocate General Jacobs explained at para 59 of his Opinion: Applying a legal provision to a fixed term employment contract which has not finally ended by the time that provision enters into force does not involve the retroactive application of the law; it entails only the immediate application of that provision to the effects in the future of situations which have arisen under the law as it stood before amendment. The CJEU draws a distinction, therefore, between the retroactive application of legislation to past situations (which is prohibited unless expressly provided for) and its immediate application to continuing situations (which is generally permitted). The distinction was elucidated by Advocate General Cosmos in Andersson v Svenska Staten (Case C 321/97) [2000] 2 CMLR 191, para 57: Retroactive effect consists in the application of the rule to situations which were permanently fixed before that rule came into force. Immediate effect, which, in principle, works likewise according to the principle tempus regit actum, consists in applying the rule to situations which are continuing. The application of these principles presents a challenge when one is dealing with entitlement to an occupational retirement pension. Conventionally, the right to a pension accumulates over decades. During the time that the right is accruing, actuarial assumptions are made based on existing legal conditions, notwithstanding that the pension is payable in the future. Those assumptions are upset when, because of changes in social values, a new equal treatment provision is introduced. It is not immediately easy to identify the point at which entitlement to a pension becomes permanently fixed whether for example at the date of retirement or when the pension is paid. The Directive So far as are material to the circumstances of this case, the relevant passages from Recitals 11 and 12 of the Framework Directive are these: (11) Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons. (12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community. Article 1 provides that The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the member states, the principle of equal treatment. Article 2 provides: 1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in article 1. 2. For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in article 1; indirect discrimination shall be taken to occur (b) where an apparently neutral provision, criterion or practice would put persons having a particular . sexual orientation at a particular disadvantage compared with other persons unless: (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary . The appellants arguments For the appellant, Mr Martin Chamberlain QC submits that the Court of Appeal has fundamentally misconstrued the nature of the issues involved in the jurisprudence of the CJEU. Mr Chamberlain argues that the line of cases on which the Court of Appeal relied are all concerned with temporal limitations imposed on claims for equal pay for men and women, not for claims for equal treatment in relation to pension entitlement for heterosexual and gay men and women. Moreover, that limitation was, he says, introduced as an exceptional measure to deal with the consequence of the abrupt, financially catastrophic impact that retrospective entitlement to equality of pay would have had on the economies of many member states of the EU. The cases considered by the Court of Appeal In Defrenne v Sabena (Case 43/75) [1976] ECR 455; [1981] 1 All ER 122 (Defrenne II) the court held that article 119 had direct effect and could be relied on from the date by which it had required member states to implement the principle of equal pay (1 January 1962). The court recognised, however, that this would have far reaching economic consequences. In light of these and the anticipated impact of large numbers of backdated claims, the court exceptionally limited the effect in time of its judgment, so that the direct effect of article 119 could not be relied on to support claims for pay periods before the judgment date (except those that had already been launched by that date). That this was a pragmatic decision, inspired by the combination of unusual circumstances surrounding the application of article 119, is clear from the final part of the judgment. In para 70 it referred to the fact that many undertakings could not have foreseen that they might become liable for claims from the date that member states were required to implement the principle of equal pay and that many might be driven to bankruptcy in consequence. Then at paras 72 74, the court said this: 72. However, in the light of the conduct of several of the member states and the views adopted by the Commission and repeatedly brought to the notice of the circles concerned, it is appropriate to take exceptionally into account the fact that, over a prolonged period, the parties concerned have been led to continue with practices which were contrary to article 119, although not yet prohibited under their national law. 73. The fact that, in spite of the warnings given, the Commission did not initiate proceedings under article 169 against the member states concerned on grounds of failure to fulfil an obligation was likely to consolidate the incorrect impression as to the effects of article 119. 74. In these circumstances, it is appropriate to determine that, as the general level at which pay would have been fixed cannot be known, important considerations of legal certainty affecting all the interests involved, both public and private, make it impossible in principle to reopen the question as regards the past. It is clear from these passages that the CJEU was not propounding a general rule relating to the retrospective application of legislation. Rather, it was expressing an exception to the general rule that judicial decisions will generally have retrospective application. The statement in para 5 of Lewison LJs judgment (see para 12 above) that EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect, though no doubt correct, is not supported in any way by Defrenne II. Moreover, the statement that the legitimate expectations of those concerned are required to be duly respected must also be approached with some caution in the context of judicial decisions, which are generally retroactive. In Defrenne II, it was the combination of the expectations of undertakings (fuelled as they were by the inaction of the Commission) and the circumstance that considerable financial hardship might accrue which led the court to take the exceptional course which it did. Bilka Kaufhaus GmbH v Weber von Hartz (Case C 170/84) [1986] ECR 1607; [1986] 2 CMLR 701 determined that benefits under an occupational pension scheme amounted to pay within the meaning of article 119, being consideration received by the worker from the employer in respect of his employment (para 22). The issue whether there was entitlement to benefits deriving from service before article 119 should have been implemented in Germany did not arise. Barber v Guardian Royal Exchange Assurance Group (Case C 262/88) [1990] ECR I 1889; [1991] 1 QB 344 involved a different question from that in Bilka Kaufhaus. The issue in Barber was whether benefits under contracted out schemes fell within pay for the purposes of article 119. The court held that they did para 28. Under the cross heading, Effects of this judgment ratione temporis the court considered in paras 40 44 the question whether the judgment should be restricted in relation to any retrospective effect. Some passages from these paragraphs are of significance in understanding whether this case has any bearing on the principle of non retroactivity of legislation. At para 40 the court recorded the submissions of the Commission and the UK government: 40. the Commission has referred to the possibility for the court of restricting the effect of this judgment ratione temporis in the event of the concept of pay, for the purposes of the second paragraph of article 119 of the Treaty, being interpreted in such a way as to cover pensions paid by contracted out private occupational schemes, so as to make it possible to rely on this judgment only in proceedings already pending before the national courts and in disputes concerning events occurring after the date of the judgment. For its part the United Kingdom emphasised at the hearing the serious financial consequences of such an interpretation of article 119. The number of workers affiliated to contracted out schemes is very large in the United Kingdom and the schemes in question frequently derogate from the principle of equality between men and women, in particular by providing for different pensionable ages. Referring to its judgment in Defrenne II, the court then made clear in para 41 that taking the course that the Commission and the UK government had invited it to follow was only possible as an exceptional measure. It said that it may, by way of exception, taking account of the serious difficulties which its judgment may create as regards events in the past, be moved to restrict the possibility for all persons concerned of relying on the interpretation which the court, in proceedings on a reference to it for a preliminary ruling, gives to a provision. (emphasis added) Another factor in play in the courts decision to restrict the effect of its judgment was that, because of earlier Directives, the member states and the parties concerned were reasonably entitled to consider that article 119 did not apply to pensions paid under contracted out schemes and that derogations from the principle of equality between men and women were still permitted in that sphere para 43. This factor carries echoes of the situation which pertained in Defrenne II. As in that case, the decision in Barber does not constitute an example of a general principle of non retroactivity for EU legislation. It is, rather, an instance of curtailing what would otherwise be the logical application of the judgment to existing and precedent situations for essentially practical reasons. The scope of the Barber limitation was considered in Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers en Schoonmaakbedrijf (Case C 109/91) [1993] ECR I 4879; [1995] ICR 7. That case related to an occupational pension scheme. Until 1 January 1989 rules of the scheme provided for survivors pensions for widows only, but after that date widowers also were entitled to pensions. After the death in October 1988 of the applicants wife, who had been a member of the scheme, he requested but was refused the grant of a widowers pension. He brought proceedings for a declaration that he was entitled to the pension because such a pension was to be treated as pay within the meaning of article 119 of the EEC Treaty and that no discrimination between men and women was permissible. The national court referred to the Court of Justice the questions whether pay in article 119 covered non statutory benefits to surviving relations and, if so, from what date the applicant could claim a widowers pension. Various possible interpretations of the effect of the Barber limitation were considered by the judge rapporteur and the Advocate General see AG10. One of these was to apply equal treatment to all pension payments made after 17 May 1990 [the date of the Barber judgment], including benefits or pensions which had already fallen due and irrespective of the date of the periods of service during which the pension accrued. Advocate General Van Gerven explained in AG13 17 why he considered that it was not appropriate to do so. An important passage appears at AG13: Before I take my position on the effect in time of Barber v Guardian Royal Exchange Assurance Group (Case C 262/88) [1990] ICR 616, I consider it important to clarify the rationale which led the court to introduce that limitation into its judgment. That that is an unusual step needs no demonstration, given the declaratory character which in principle attaches to the courts interpretation of Community law pursuant to article 177 of the EEC Treaty: That was formulated by the court in Amministrazione delle Finanze dello Stato v Denkavit Italiano Srl (Case 61/79) [1980] ECR 1205, 1223 1224, paras 16 18 and Amministrazione delle Finanze dello Stato v Meridionale lndustria Srl (Cases 66/79, 127/79, 128/79) [1980] ECR 1237, 1260 1261, paras 9 11: The interpretation which, in the exercise of the jurisdiction conferred on it by article 177, the Court of Justice gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions enabling an action relating to the application of that rule to be brought before the courts having jurisdiction, are satisfied. As the court recognised in its judgment of 8 April 1976 in Defrenne v Sabena (Case C 43/75) [1976] ECR 455, it is only exceptionally that the court may, in application of the general principle of legal certainty inherent in the Community legal order and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in good faith, be moved to restrict for any person concerned the opportunity of relying on the provision as thus interpreted with a view to calling in question those legal relationships (emphasis added) Once again, the exceptionality of restricting the full availability of a right declared by the CJEU as deriving from an EU measure is emphasised. AG Van Gerven was clearly heavily influenced to the view that a restriction on the availability of the right was essential because of the dire financial consequences that would otherwise follow. They had been described in the Judge Rapporteurs report at p 86. If the option discussed above had been chosen, the additional financial impact on occupational pension schemes would be at least 45 billion, and [under another canvassed option] 33 billion. [To these figures would have to be] added approximately 2 billion per annum required in any event to meet the effect of equalisation of pensions for the future. It is unsurprising, therefore, that in para 26, AG Van Gerven stated that the financial consequences of allowing article 119 to have retroactive effect would be catastrophic. It is important to recognise, however, that AG Van Gerven accepted that a literal reading of the Barber judgment would apply equal treatment to all pension payments made after 17 May 1990, including those which had already fallen due irrespective of the date of the periods of service during which the pension accrued. At para 19 he said: On a literal reading, it may indeed be asserted that the effects of an occupational pension are only fully exhausted once the pension has been paid in full to the retired employee. [He then explained why that could not be permitted by continuing ] Such a reading would mean that the temporal limitation of the judgment decided on by the Court would have almost no significance and that the useful effect of the limitation imposed by the Court would largely vanish. The Advocate General expanded on his reasons for adopting the more restrictive interpretation of Barber in para 21: The fact that the good faith of the parties concerned, in particular of employers and occupational pension funds, is to be taken into account means that, before Barber, those parties, in the belief that article 119 was not applicable, could promise pensions and make payments based on a different pensionable age for men and women. The financial balance of the pension schemes concerned could therefore be maintained on that basis before the judgment. Only in respect of periods of service after Barber did employers know that, in administering occupational pension schemes and calculating the contributions to be made to them, account had to be taken of a pensionable age which was the same for men and women. If no account were taken of their good faith and that of pension scheme administrators, that would entail serious financial problems for pension schemes. All these factors argue in favour of not allowing obligations entered into and payments made before the date of the Barber judgment to be affected. The court accepted the more restrictive definition, stating at para 19: Given the reasons explained in Barber [1990] ICR 616, 672, para 44, for limiting its effects in time, it must be made clear that equality of treatment in the matter of occupational pensions may be claimed only in relation to benefits payable in respect of periods of employment subsequent to 17 May 1990, the date of the judgment in Barber, subject to the exception in favour of workers or those claiming under them who have, before that date, initiated legal proceedings or raised an equivalent claim under the applicable national law. The court thus allied itself closely to the reasons in Barber (discussed in paras 33 and 34 above) for espousing and extending to occupational pension schemes a similar restriction on the retroactive effect of article 119. Vroege v NCIV Instituut voor Volkshuisvesting BV (Case C 57/93) [1994] ECR I 4541; [1995] 1 CMLR 881, concerned a pension scheme that until 1990 did not admit married women. Among the questions referred to the CJEU was whether the Barber limitation applied to Mrs Vroeges claim for equal access to the scheme. The court said that it was important to remember the context in which it was decided to limit the effects in time of the Barber judgment (para 20), and reaffirmed the two essential criteria for such a limitation, viz, the general principle of legal certainty and the serious difficulties which its judgment may create as regards the past for legal relations established in good faith (para 21), both of which had been met in Barber (paras 22 25). On that basis, it stated that the Barber limitation concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions para 27. The Court of Appeal in the present case understood the decision in Ten Oever to establish a general principle of EU law, to the effect that entitlement to a survivors pension is permanently fixed as it is earned. It concluded that the same principle could be applied where the law is changed not by a judgment, but by legislation. It was influenced to this view by the opinion that the same policy considerations lay behind the no retroactivity principle and the CJEUs power to limit the retrospective application of its judgments. To an extent, the same policy considerations are in play. In both scenarios one can acknowledge the need to ensure legal certainty and to protect the legitimate expectations of those who rely on the law as it was thought to be. But it is vital to keep the two concepts distinct. No retroactivity and future effects are principles of law which apply to all EU legislation, unless a contrary intention can be found. The Barber exception is an example of a technique used by the CJEU to limit the generally retroactive application of its judgments, which it will only exercise in the most exceptional circumstances and where the impact would be truly catastrophic. The court limits the temporal application of its judgments in cases where reliance has been placed on a different understanding of the law and legitimate expectations may be upset, but only in the most special circumstances. Therefore, how the court exceptionally applies a temporal limitation to one of its rulings has no inevitable bearing on the temporal application of legislation as a matter of principle. Mr Chamberlain submits that all the cases considered by the Court of Appeal and the EAT, in so far as they concerned article 119, involved the application of the exceptional limitations imposed in Defrenne II and Barber. None expressed a general rule that immediate application of EU legislation at the point of enactment should normally be avoided. On the contrary, the consistent theme of the CJEU jurisprudence was that rights established by legislation should be activated at the time that they were stated to exist. I agree with Mr Chamberlains analysis of the relevant jurisprudence and I turn now to consider his principal argument that two recent decisions of the Grand Chamber of the CJEU (which troubled the Court of Appeal because of their perceived incongruence with what that court considered to be the fundamental principles governing retroactivity) put success for Mr Walkers claim beyond doubt. Those decisions are Maruko v Versorgungsanstalt der Deutschen Bhnen [2008] ECR I 1757; [2008] All ER (EC) 977; (Maruko) and Rmer v Freie und Hansestadt Hamburg (Case C 147/08) [2011] ECR I 3591, [2013] 2 CMLR 11 (Rmer). Maruko The claimant in Maruko was a registered life partner of a designer of theatrical costumes who had been a member of the German theatre pension institution (VddB). After his partners death in 2005, the VddB refused Mr Maruko the pension which would have been paid automatically to a surviving spouse. He brought a claim before the Bavarian Administrative Court, which referred several questions to the Court of Justice. The most pertinent of these for present purposes is the fifth. This was whether entitlement to the survivors benefits should be restricted to the period from 17 May 1990 in the light of Barber, as considered in Coloroll Pension Trustees Ltd v Russell (Case C 200/91) [1995] All ER (EC) 23; [1994] ECR I 4389. The spouses pension in issue arose from Mr Marukos service and contributions during a period that started in 1959 and ended (in all likelihood) before 2003. Although the question proceeded on the premise that any limitation to the relevant period of service would be from the date of the Barber judgment, the CJEUs summary of the issue makes it clear that it considered that wider considerations were potentially at stake, for it said at para 74 that the referring court seeks to know whether entitlement to the survivors benefit must be restricted in time and in particular to periods subsequent to [the Barber judgment]. The pension fund in the Maruko case presented an argument similar to that advanced by the Secretary of State in the present appeal. It suggested that, to take account of service before the Framework Directives implementation deadline would give the Directive retrospective effect. The court summarised that argument in para 75: The VddB considers that the case which led to the judgment in Barbers case differs, on its facts and in law, from the case in the main proceedings and that Directive 2000/78 cannot be given retroactive effect by means of a decision that the Directive applied at a date prior to the date of expiry of the period allowed to member states for its transposition. At paras 77 79, the CJEU unambiguously rejected that argument: 77. It is clear from the case law that the court may, exceptionally, taking account of the serious difficulties which its judgment may create as regards events in the past, be moved to restrict the possibility for all persons concerned of relying on the interpretation which the court gives to a provision in response to a reference for a preliminary ruling. A restriction of that kind may be permitted only by the court, in the actual judgment ruling upon the interpretation sought (see inter alia Barber at para 41; and Meilicke v Finanzamt Bonn Innenstadt (Case C 292/04) [2007] 2 CMLR 19 at para 36). 78. There is nothing in the documents before the court to suggest that the financial balance of the scheme managed by VddB is likely to be retroactively disturbed if the effects of this judgment are not restricted in time. 79. It follows from the foregoing that the answer to the fifth question must be that there is no need to restrict the effects of this judgment in time. The material ruling of the court was that The combined provisions of articles 1 and 2 of Directive 2000/78 preclude legislation such as that at issue in the main proceedings under which, after the death of his life partner, the surviving partner does not receive a survivors benefit equivalent to that granted to a surviving spouse. The effect of this, as regards Mr Walker and his husband, is unmistakable. If he survives Mr Walker, his husband is entitled to a spouses pension on the same basis as would a wife. This was a case of a pensioner who had been in a registered life partnership. His claim was for the same supplementary pension payments that were given to married pensioners. His pension rights arose from contributions paid during a period of service from 1950 until 31 May 1990. The CJEU held that he was entitled to equal treatment if German life partnerships were comparable to marriage. One of the supplementary questions which the court considered was whether, if Mr Rmer was entitled to pension payments, their amount should be calculated only by reference to the contributions that were made after the Barber judgment. Advocate General Jskinen approached this question on the basis that any limitation of the period of service to be considered would require a restriction on the otherwise natural application of the principle that contemporaneous discrimination was forbidden unless exceptional circumstances would justify such a restriction (AG157 158). As it happened, no party had requested one in the Rmer case, and it was, moreover, by no means apparent from the documents in the case that the financial balance of the supplementary pension scheme managed by the defendant in the main proceedings risks being retroactively disturbed by the lack of such limitation. (AG159) In the circumstances, the CJEU held that Barber had no bearing on Mr Rmers entitlement. Neither the Federal Republic of Germany nor the Freie und Hansestadt Hamburg had suggested any limitation in time of the effects of the present judgment and no evidence submitted to the court indicated that they should be so limited. From this it is clear that, unless evidence establishes that there would be unacceptable economic or social consequences of giving effect to Mr Walkers entitlement to a survivors pension for his husband, at the time that this pension would fall due, there is no reason that he should be subjected to unequal treatment as to the payment of that pension. The decisions of the EAT and the Court of Appeal Mr Chamberlain submitted that the EAT wrongly took AG Van Gervens description of pension benefits in Ten Oever as deferred pay as equating the time at which a pension right accrues with the time at which any discrimination in the provision of resulting benefits is to be judged. I agree that the EAT was wrong to do so. The point of unequal treatment occurs at the time that the pension falls to be paid. If Mr Walker married a woman long after his retirement, she would be entitled to a spouses pension, notwithstanding the fact that they were not married during the time that he was paying contributions to his pension fund. Whether benefits referable to those contributions are to be regarded as deferred pay is neither here nor there, so far as entitlement to pension is concerned. Mr Walker was entitled to have for his married partner a spouses pension at the time he contracted a legal marriage. The period during which he acquired that entitlement had nothing whatever to do with its fulfilment. As AG Jskinen said in Rmer at AG160: In the hypothetical case that Mr Rmer had been able to enter into a marriage in October 2001, instead of a life partnership, the Freie und Hansestadt Hamburg would have had to increase the supplementary pension paid to him . The financing of the retirement scheme concerned must have been planned taking into account the possibility of changes in the marital status of pensioners. Likewise, the financing of Innospecs retirement scheme should have been planned taking into account a possible change in Mr Walkers marital status. He could not have been denied entitlement to a spouses pension if, perfectly legally, he married a woman after he retired. His marriage to his current partner is just as legal as would be a heterosexual marriage. His entitlement to a spouses pension is equally well founded. The Court of Appeal considered that the Barber case explained how the future effects principle should be applied to the Framework Directive. At para 11 of his judgment, Lewison LJ said of the exception in Barber, The concept underpinning this limitation on the effect of the judgment is, in my judgment, the same concept that distinguishes between situations that are permanently fixed or established and those that are not. In fact, none of the Barber line of cases mentions the future effects principle. As Mr Chamberlain submitted, this is because that principle is concerned with the effects of legislation, whereas Barber and Ten Oever dealt with temporal limitations on judgments. The approach of the Court of Appeal led it to the same conclusion as the EAT, in equating the time at which a right to a pension accrues with the time at which discrimination in the provision of benefits is to be judged. The implication of this approach was considered by Professor Wintemute in an article in (2014) 43 ILJ 506, 510, commenting on the EAT judgment when he said: The implication of the EATs analogy was that, from 1980 to 2003, Mr Walker had been paid the lower gay wage (one with no expectation that a survivors pension would ever be paid to the employees surviving partner despite the employees equal contributions to the pension scheme), rather than the higher heterosexual wage (one with an expectation that a survivors pension might be paid to the employees surviving spouse based on the employees contributions to the pension scheme). This illustrates the essential flaw in the approach of the EAT and the Court of Appeal. The salary paid to Mr Walker throughout his working life was precisely the same as that which would have been paid to a heterosexual man. There was no reason for the company to anticipate that it would not become liable to pay a survivors pension to his lawful spouse. The date when that pension will come due, provided Mr Walker and his partner remain married and his partner does not predecease Mr Walker, is the time at which denial of a pension would amount to discrimination on the ground of sexual orientation. Dealing with Maruko Lewison LJ said that the fifth question which the referring court had posed (set out at para 47 above) was very puzzling para 37. He suggested (at para 40) that the court had given an unnecessary answer to the wrong question. Undoubtedly, the referring courts reference to 17 May 1990 was misplaced how could that date, being the date of the Barber judgment on equal pay under article 119, have any possible relevance to the temporal application of the judgment in Maruko on equal treatment under the Framework Directive? But the Court plainly understood the referring court as asking essentially whether the effect of its judgment should be limited in time. That question is only puzzling or unnecessary if one proceeds on the assumption that there is a general rule that the time at which a pension right accrues should be equated with the time at which discrimination in the provision of resulting benefits occurs. For the reasons given earlier, I do not consider that this is correct. The response given to the fifth question in Maruko is therefore perfectly explicable and provides the inescapable answer in Mr Walkers case. In order to deal with the Court of Appeals treatment of the Rmer decision, it is necessary to say a little more about the questions referred to the CJEU in that case. The fifth question had two parts which the CJEU interpolated as 5(a) and (b). Question 5(a) asked whether, if the domestic legislation contravened the Framework Directive, Mr Rmer was entitled to supplementary pension payments in line with married people before that legislation was amended. This was answered affirmatively by the court see paras 53 56. Question 5(b) was whether, if the domestic legislation contravened the Directive, Mr Rmer was entitled to backdated supplementary pension payments even for the period before the transposition deadline for the Framework Directive. Question 6 was whether, if Mr Rmer was entitled to supplementary pension payments, the amount of those payments should be calculated by reference to the contributions made after the Barber judgment. Mr Rmer had conceded that the answer to question 5(b) might be that he could only receive backdated supplementary payments from 2003. But, as far as question 6 was concerned, his pension payments should, in any event, be calculated from that date on the basis of all the contributions he has paid, irrespective of their date. A G Jskinen AG142. The CJEU accepted that Mr Rmer was not entitled to payments that were due to be paid before 2003 (because the Directive had not been implemented before then) but that when it came to the calculation of the quantum of the pension payments, the fact that the contributions underpinning the entitlement had been paid before then made no difference para 66. Put simply, Mr Rmer could not claim pension payments before 2003 but the pension due to him after that date should be calculated on the basis of all the years during which entitlements to them had been built up. Translating that to Mr Walkers case, the message is clear. He could not have claimed entitlement to the payment of the pension before the transposition of the Directive into UK law but, once that happened, the rate of his pension was to be based on all the years of his service, even those which preceded the date of the transposition. The Court of Appeal misunderstood Rmer. At para 43, Lewison LJ said that the CJEU had held that entitlement to equal treatment did not become part of EU law until the time limit for transposing the Directive had expired. On that basis, the answer to question 5 was plainly a negative answer: the entitlement did not apply before the deadline for transposing the Directive (para 44). It was, of course, true that entitlement did not arise until the Directive had to be transposed, but this does not address the question of what the entitlement was after the deadline was reached. Lewison LJ thought that question 6 was conditional on an affirmative answer to question 5 and since, in his estimation, a negative answer had been given to question 5, question 6 was irrelevant. This was, I am afraid, wrong. In the first place, both parts of question 5 had not been given a negative answer. Question 5(a) had been answered affirmatively. More importantly, question 6 remained supremely relevant to Mr Walkers case. His entitlement to a spouses pension did not materialise until after the transposition of the Directive but the response to question 6 provided the key to the nature of the right that Mr Walker then acquired. It was entitlement to a pension calculated on the basis of his years of service before the Directive was transposed. Parris v Trinity College Dublin The case Parris v Trinity College Dublin (Case C 443/15) [2017] Pens LR 3 was a reference to the CJEU from the Labour Court in Ireland. It also concerned a claim for a survivors pension under the Framework Directive. Dr Parris had entered a civil partnership with his partner of 30 years in the UK on his 63rd birthday in 2009. This civil partnership was not recognised in Ireland until a change in the law on 12 January 2011. Dr Parris had been employed as a lecturer by Trinity College Dublin (TCD) from 1972 to 2010. He took early retirement in 2010. He had been a member of TCDs non contributory occupational pension scheme. The scheme provided a survivors pension, but only where the marriage or civil partnership took place before the members 60th birthday. The questions referred to the CJEU concerned whether TCDs refusal to provide the survivors pension to Dr Parris civil partner, by reference to that rule, constituted indirect discrimination on sexual orientation grounds, direct age discrimination, and/or discrimination on a combination of those grounds. The questions referred did not concern Dr Parriss period of service. In fact, his employment almost entirely predated the deadline for transposing the Framework Directive, and had ended before Irelands recognition of civil partnerships. The UK nevertheless made submissions to the CJEU which broadly mirror those of the Secretary of State in the present appeal. It was submitted that since Dr Parriss pension entitlements were based almost entirely on periods of service completed before the coming into force of the Directive, they could not be subject to the principle of equal treatment. Advocate General Kokott rejected those submissions. At paras 39 42 of her Opinion she said 39. that objection is unfounded. For it is settled case law that a new rule of law applies from the entry into force of the act introducing it, and, while it does not apply to legal situations that have arisen and become definitive under the old law, it does apply to their future effects, and to new legal situations. It is otherwise, subject to the principle of the non retroactivity of legal acts, only if the new rule is accompanied by special provisions which specifically lay down its conditions of temporal application. 40. Those principles also apply to the temporal application of Directive 2000/78. A restriction of the temporal scope of that Directive, in derogation from the aforementioned general principles, would have required an express stipulation to that effect by the EU legislature. No such special provision has been made, however. 41. Consequently, the Court has already declared Directive 2000/78 to be applicable to cases concerning occupational and survivors pension schemes the entitlements under which had arisen much as they did here long before the entry into force of that Directive and any contributions or reference periods in respect of which also predated the entry into force of that Directive. Unlike in Barber, for example, concerning article 119 of the EEC Treaty (now article 157 TFEU), the Court expressly did not apply a temporal restriction to the effects of its case law relating to occupational pension schemes under Directive 2000/78. I would add that there was, moreover, no longer any need for such a temporal restriction, since it had become sufficiently apparent to all the interested parties since the judgment in Barber that occupational pensions fall within the EU law concept of pay and are subject to any prohibitions on discrimination. It is true that the Court has held that the prohibition on 42. discrimination contained in Directive 2000/78 cannot give rise to claims for payments in respect of periods in the past that predate the time limit for transposing that Directive. However, the recognition of the right to a future survivors pension, at issue in the present case, is unaffected by that principle because such recognition is concerned only with future pension scheme payments, even though the calculation of those payments is based on periods of service completed or contributions made in the past. These statements are entirely consistent with the analysis of Maruko and Rmer which Mr Chamberlain offered and which I accept. The CJEU held that Dr Parriss case did not amount to discrimination at all, citing the principle in Maruko that legislation treating surviving civil partners less favourably than surviving spouses will amount to direct discrimination if the two are in comparable situations under national law, but noting that the rule in issue in Dr Parriss case applied equally to opposite sex marriages and same sex civil partnerships. His inability to meet the qualifying criterion for the survivors pension resulted from the lack of provision for same sex partnerships under Irish law at the time of his 60th birthday and it was for member states to decide both whether to make such provision and, if so, whether to make it retrospective. The CJEU did not, therefore, need to address the UK governments argument that Dr Parriss claim fell outside the temporal scope of the Directive but nothing in its judgment cast doubt on AG Kokotts clearly expressed opinion that the submissions of the UK were incompatible with Maruko and Rmer. Conclusion on the first issue I would therefore hold that Mr Walkers husband, provided he does not predecease him, and that they remain married at the time of Mr Walkers death, is entitled under the Framework Directive to a spouses pension calculated on the basis of all the years of Mr Walkers service with Innospec. On that account, paragraph 18 of Schedule 9 is incompatible with the Framework Directive. In particular, paragraph 18(1)(b) which authorises a restriction of payment of benefits based on periods of service before 5 December 2005 cannot be reconciled with what I consider to be the plain effect of the Directive. Must effect be given to paragraph 18 or should it be disapplied the second issue? The appellant claims that, applying the principles established by Kckdeveci v Swedex GmbH and Co KG (Case C 555/07) [2010] 2 CMLR 33, paragraph 18 must be disapplied. As Lord Mance explained in R (Chester) v Secretary of State for Justice in the passage cited at para 10 above, for the general principle of non discrimination to apply, the context must fall within EU law. Both the EAT and the Court of Appeal considered that non discrimination did not become a fundamental principle of EU law until the transposition deadline of the Framework Directive Lewison LJ at para 49 and Underhill LJ at para 59. Mr Chamberlain submits that this is incorrect, arguing that the CJEU did not say that non discrimination only became a general principle of EU law in 2003. Its relevant finding was that Mr Rmers claim for equal pension benefits only came within the material scope of EU law from that time. Whether that is right or not need not be decided finally in this case because Mr Chamberlains second argument disposes of the issue. That is that non discrimination on grounds of sexual orientation is now a principle of EU law. It follows that any contemporary denial to his husband of a spouses pension, calculated on all the years of Mr Walkers service, would be incompatible with the Framework Directive. In so far as paragraph 18 authorises that, it must be disapplied on the basis of the principles articulated in Kckdeveci and Chester. The third issue In light of my conclusion on the first two issues, it is not necessary to decide the third issue, viz whether paragraph 18 is incompatible with Mr Walkers rights under article 14 of ECHR, when read together with article 8 and article 1 of the First Protocol. Final conclusion I would allow Mr Walkers appeal and declare that, in so far as it authorises a restriction of payment of benefits based on periods of service before 5 December 2005, paragraph 18 of Schedule 9 to the 2010 Act is incompatible with the Framework Directive and must be disapplied. I would make a further declaration that Mr Walkers husband is entitled to a spouses pension calculated on all the years of his service with Innospec, provided that at the date of Mr Walkers death, they remain married. LORD CARNWATH AND LORD HUGHES: We agree that Mr Walkers appeal should be allowed, but on more limited grounds. This appeal was heard at the same time as the appeal in OBrien v Ministry of Justice [2017] UKSC 46, in which the court has decided to refer to the European court a question relating to the pension entitlement of part time workers. As explained in the judgment of Lord Reed, that arises from a difference among the members of the court as to the interpretation of the Ten Oever line of authority (as he describes it para 20). In so far as Lord Kerrs reasoning in the present case (in particular, paras 35 46) turns on his interpretation of that line of authority, we prefer to await the authoritative ruling of the European court. The present case is in our view distinguishable substantially for the reasons given by Lord Kerr at paras 56 58. On any view Mr Walker had earned a right to a pension for his spouse. That right, and the possibility of a change in his marital status, should have been taken into account in the financing of the scheme. The question who qualified as his spouse fell to be answered at a date when it was unlawful under the Directive to discriminate as between heterosexual and same sex marriages. At that time, as Lord Kerr says (para 56), he was entitled to have for his married partner a spouses pension; The period during which he acquired that entitlement had nothing whatever to do with its fulfilment. To the extent that paragraph 18 of Schedule 9 to the Equality Act 2010 restricted that right it was incompatible with European law, and must be disapplied.	John Walker, the appellant in these proceedings worked for the respondent, Innospec Ltd, from 1980 until his retirement in 2003. Throughout that time he made regular contributions to the firms occupational pension scheme. Mr Walker is gay and has lived with his male partner since 1993. They entered into a civil partnership on 23 January 2006 and are now married. In 2006 Mr Walker asked Innospec to confirm that, in the event of his death, they would pay the spouses pension, which the scheme provides for, to his civil partner. Innospec refused, because his service predated 5 December 2005, the date that civil partnerships were introduced in the UK, and any discriminatory treatment is therefore permitted under paragraph 18 of Schedule 9 to the Equality Act 2010. This provides that it is lawful to discriminate against an employee who is in a civil partnership or same sex marriage by preventing or restricting them from having access to a benefit, facility or service the right to which accrued before 5 December 2005 or which is payable in respect of periods of service before that date. If Mr Walker was married to a woman (or indeed if he married a woman in the future) she would be entitled on his death to a spouses pension of about 45,700 per annum. As things stand at present, Mr Walkers husband will be entitled to a pension of about 1,000 per annum (the statutory guaranteed minimum). Mr Walkers claim for discrimination was upheld by the Employment Tribunal, but Innospecs appeal to the Employment Appeals Tribunal was allowed, and Mr Walkers appeal to the Court of Appeal was dismissed. He now appeals to the Supreme Court. The Supreme Court unanimously allows Mr Walkers appeal and makes a declaration that (i) paragraph 18 of Schedule 9 to the Equality Act 2010 is incompatible with EU law and must be disapplied and (ii) Mr Walkers husband is entitled on his death to a spouses pension, provided they remain married. Lord Kerr (with whom Lady Hale and Lord Reed agree) gives the lead judgment. Lord Carnwath and Lord Hughes give a judgment concurring in part. EU Directive 2000/78/EC (the Framework Directive) requires member states to prohibit discrimination in the field of employment and occupation on various grounds including sexual orientation. The deadline for transposing the Directive into domestic law was 2 December 2003 and the UK did this within the deadline through legislation now incorporated into Part 5 of the Equality Act 2010 [17]. Parliament also, however, provided for the exception now contained in paragraph 18 of Schedule 9 to the 2010 Act restricting benefits payable in respect of periods of service before 5 December 2005. The essential question in this appeal is whether paragraph 18 of Schedule 9 is incompatible with the Framework Directive [20 21]. Although EU law does not impose any requirement on member states to recognise same sex partnerships, the European Court of Justice (CJEU) has held that if a status equivalent to marriage is available under national law, it is directly discriminatory contrary to the Framework Directive for an employer to treat a same sex partner who is in such a partnership less favourably than an opposite sex spouse. In the UK, Parliament has chosen to recognise same sex partnerships, first through the introduction of civil partnerships and subsequently through the recognition of same sex marriage itself [17 19]. The general rule under EU law, as in most modern legal systems, is that legislative changes apply prospectively. The CJEU has developed two principles to establish the temporal application of EU legislation the no retroactivity principle and the future effects principle [22 23]. These principles draw a distinction between the retroactive application of legislation to past situations (which is prohibited unless expressly provided for) and its immediate application to continuing situations (which is generally permitted). The relevant question is whether the legal situation has become permanently fixed [25]. The application of these principles presents a challenge when one is dealing with entitlement to an occupational retirement pension, the right to which may accumulate over decades and it may not be easy to identify the point at which it becomes permanently fixed [26]. The Court of Appeal, in dismissing Mr Walkers appeal, wrongly concluded that entitlement to a survivors pension is permanently fixed at the date of retirement [43]. It was influenced in this view by a line of the CJEUs case law exceptionally limiting the temporal application of one of its judgments relating to equal pay for men and women (the Barber line of case law). In the opinion of the majority of the Court, these cases are not relevant to the application of the Framework Directive in a case such as this. How the CJEU exceptionally applies a temporal limitation to one of its rulings has no inevitable bearing on the temporal application of legislation as a matter of principle [46]. In any event, two recent decisions of the Grand Chamber of the CJEU concerning the equal treatment rights of same sex partners to survivors pensions put success for Mr Walkers claim beyond doubt (Case C 267/06 Maruko v Versorgungsanstalt der Deutschen Bhnen and Case C 147/08 Rmer v Freie und Hansestadt Hamburg) [46]. From these cases, it is clear that, unless evidence establishes that there would be unacceptable economic or social consequences of giving effect to Mr Walkers entitlement to a survivors pension for his husband, at the time that this pension would fall due, there is no reason that he should be subjected to unequal treatment as to the payment of that pension [55]. Mr Walkers husband, provided he does not predecease him, and that they remain married at the time of Mr Walkers death, is therefore entitled under the Framework Directive to a spouses pension calculated on the basis of all the years of Mr Walkers service with Innospec. On that account, paragraph 18 of Schedule 9, in so far as it authorises a restriction of payment of benefits based on periods of service before 5 December 2005, is incompatible with the Framework Directive and must be disapplied [77]. Lord Carnwath and Lord Hughes agree with the majority that Mr Walkers appeal should be allowed, but on the more limited basis that the question of who qualified as his spouse fell to be determined after the Directive had come into force. They prefer to leave the broader question of whether the Barber line of case law is of any relevance to the application of the Framework Directive to be determined by the CJEU in OBrien v Ministry of Justice [2017] UKSC 46, in which the Court has decided to refer to the CJEU a question relating to the pension entitlement of part time workers [77 78].
It is now well established that an employment contract is subject to an implied term that the employer and employee may not, without reasonable and proper cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them: Mahmud v Bank of Credit and Commerce International SA [1998] AC 20. In Johnson v Unisys Ltd [2001] UKHL 13; [2003] 1 AC 518, the claimant sought to rely on an alleged breach of this implied term, not as a foundation for a statutory claim for unfair dismissal or as a foundation for a claim for damages unrelated to dismissal, but as a foundation for a claim at common law for damages for the manner of his dismissal. But the House of Lords refused to extend the implied term to allow an employee to recover damages for loss arising from the manner of his dismissal because (per all members of the House except Lord Steyn) such a development of the law would be contrary to the intention of Parliament that there should be such a remedy, but that it should be limited by the statutory code regarding unfair dismissal now to be found in the Employment Rights Act 1996 (the 1996 Act). Some regarded the decision in Johnson as contentious: see, for example, Deakin and Morris Labour Law, 5th ed (2009), at para 5 45. At para 36 of Mr Bothams written case, Mr Reynold QC invited the court to depart from Johnson, but this suggestion was not developed in the written case or in oral argument. Indeed, it was reaffirmed by the majority of the House of Lords in Eastwood and another v Magnox Electric plc and McCabe v Cornwall County Council and another [2004] UKHL 35; [2005] 1 AC 503 (Eastwoods case). Loss arising from the unfair manner of a dismissal is not therefore recoverable as damages for breach of the implied term of trust and confidence: it falls within what has been called the Johnson exclusion area. The principal questions that arise in these two appeals are (i) whether the reasoning in Johnson applies so as to preclude recovery of damages for loss arising from the unfair manner of a dismissal in breach of an express term of an employment contract; and if so (ii) whether the claims made by Mr Edwards or Mr Botham fall within the Johnson exclusion area. It is submitted on behalf of Mr Edwards and Mr Botham that the first question should be answered in the negative and that their claims for damages should be assessed in accordance with orthodox common law principles. In Mr Edwards case, the Court of Appeal (Ward, Lloyd and Moore Bick LJJ) accepted this submission and in Mr Bothams case, Slade J did not. By a consent order dated 31 August 2010, the Court of Appeal (Pill LJ) reversed the decision of Slade J. The case of Mr Edwards The Chesterfield Royal Hospital NHS Foundation Trust (the Trust) was established on 1 January 2005 as an NHS Foundation Trust and acquired the rights and liabilities of its predecessor, the Chesterfield and North Derbyshire Royal Hospital NHS Trust. Mr Edwards had been employed by the Trusts predecessor as a consultant trauma and orthopaedic surgeon pursuant to a contract which incorporated the terms of its letter to Mr Edwards dated 2 June 1998. Para 2 of the letter referred to the Trust terms and conditions of employment copies of which could be seen at the Medical Personnel Office. Para 8 stated that the employment was subject to three months notice on either side. Para 13 stated that in matters of professional misconduct, Mr Edwards would be subject to a separate procedure which had been negotiated and agreed by the Local Negotiating Committee. By letter dated 22 December 2005, disciplinary proceedings were instituted against Mr Edwards arising from allegations that he had undertaken an inappropriate internal examination of a female patient and had then denied that the examination had taken place. It is his case that the applicable procedure at that time was that set out in Disciplinary procedures for Hospital and Community Medical and Dental Staff (HC(90)9). Annex B to HC(90)9 sets out in detail the procedures which authorities should use when handling serious disciplinary charges, for example, where the outcome of disciplinary action could be the dismissal of the medical or dental practitioner concerned (para 1). A disciplinary hearing was held on 9 February 2006. On 10 February, the disciplinary panel decided that Mr Edwards should be summarily dismissed from his employment on grounds of gross personal and professional misconduct. This decision was confirmed by a letter dated 16 February which set out in detail the panels findings and the reasons for its decision. Mr Edwards appeal against this decision was dismissed on 24 April 2006. On 12 May 2006, Mr Edwards started unfair dismissal proceedings before the Sheffield Employment Tribunal. The matters on which he relied as giving rise to the alleged unfairness of his dismissal included that the disciplinary panel had been inappropriately constituted. His case was that his contract of employment entitled him to have a panel including a clinician of the same medical discipline as himself and a legally qualified chairman. The disciplinary hearing of 9 February was chaired by the Trusts medical director who was not legally qualified and the panel did not include an orthopaedic or trauma surgeon. Mr Edwards had always maintained that, if the panel had been properly constituted, it would not have made incorrect findings and he would not have been dismissed. Prior to the pre hearing review before the tribunal, Mr Edwards withdrew his claim for unfair dismissal and it was dismissed by order of the tribunal on 17 August 2006. The Trust referred the complaints against Mr Edwards to the General Medical Council (GMC). The GMCs Investigation Committee decided not to refer the matter to a Fitness to Practise Panel and the complaint was closed. In the result, Mr Edwards was not subjected to any practising restrictions by the GMC arising out of the subject matter of the Trusts disciplinary investigation. By a claim issued on 15 August 2008, Mr Edwards issued proceedings in the High Court against the Trust in which he claimed damages for breach of his employment contract and its wrongful termination. By his particulars of claim, he alleges that the termination of his contract was wrongful and in breach of contract in a number of procedural respects. It is not necessary to refer to them all. They include the plea that the panel had not been properly constituted. Other allegations are that he was denied a fair hearing with legal representation before a properly constituted and unbiased panel; the Trust caused or permitted the Investigator of the allegations to become a witness and the effective prosecutor to become an adjudicator; and he was denied the right to cross examine the key witnesses who were called to give evidence against him. His case is that, if the panel had included a clinician of the same discipline as himself, it would not have reached the erroneous conclusions it did and the Claimants contract would not have been wrongfully terminated. The preliminary schedule of loss alleged that, but for his dismissal, Mr Edwards would have continued to work in his role as a consultant orthopaedic surgeon with the Trust until his retirement in 2022 and that he had suffered loss of earnings (including future earnings) in excess of 3.8 million. By an application notice issued on 17 February 2009, the Trust applied to the court for an order that Mr Edwards claim for damages for loss in respect of a period in excess of his three months contractual notice period be struck out under CPR 24.4. District Judge Jones acceded to the application. Mr Edwards appealed. Nicol J [2009] EWHC 2011 (QB) allowed the appeal, but only to the extent of holding that, subject to liability for breach of contract being established, in addition to compensation for the three months period of his contractual notice, Mr Edwards was also entitled to compensation for the additional period that it would have taken to conduct the disciplinary procedure if it were conducted and completed with reasonable expedition (the so called Gunton extension). In allowing this additional compensation, the judge was applying the Court of Appeal decision in Gunton v Richmond upon Thames London Borough Council [1981] Ch 448. Mr Edwards appealed to the Court of Appeal. The lead judgment was given by Moore Bick LJ. It was recorded at para 44 of his judgment that Mr Edwards was now advancing two discrete claims of breach of contract, namely (i) a claim of wrongful dismissal (termination of the contract without notice) and (ii) a claim that the Trust had failed to carry out the proper disciplinary procedure. The failure to carry out the proper disciplinary procedure was alleged to have resulted in the findings of misconduct which damaged his reputation. It was said that, even if Mr Edwards had continued in his employment with the Trust after the disciplinary process had concluded, he would still have suffered difficulty in obtaining (a) private work (b) expert witness work and (c) employment in a different NHS hospital in the event that he chose to leave Chesterfield Hospital. The focus of the hearings before the Court of Appeal and the Supreme Court was on the claim for damages for loss of reputation resulting from the panels findings. The Court of Appeal held that this second claim did not fall within the Johnson exclusion area and that Mr Edwards was in principle entitled to recover whatever damages he could prove he had suffered as a result of the Trusts failure to carry out the proper disciplinary procedure and that he was not limited in respect of that cause of action to compensation for the three months period or the three months period plus the Gunton extension. Mr Sutton QC submitted to us that Mr Edwards should not be permitted to advance the second claim because it had not been pleaded in the particulars of claim. There is some force in the submission that it had not been pleaded. But the pleading point was not taken before the Court of Appeal. The validity of the second claim was the subject of detailed submissions in the Court of Appeal. It is too late for objection to be taken now. At each stage of these proceedings, it has been accepted by the Trust that the court should proceed on the assumption that Mr Edwards will succeed in establishing all the allegations he makes in the particulars of claim. The case of Mr Botham Mr Botham was employed by the Ministry of Defence (MOD) as a youth community worker from 1988 until 30 September 2003. His employment was terminable on three months notice. He was suspended from work on 10 December 2002 and on 4 June 2003 charged with gross misconduct: it was alleged that he had behaved inappropriately in relation to two teenage girls. Following disciplinary proceedings, on 30 September 2003 he was summarily dismissed for gross misconduct. Because his dismissal was for gross misconduct in relation to young people, he was placed on the list of persons deemed unsuitable to work with children kept by the Department of Education and Skills pursuant to the Protection of Children Act 1999 (POCA). Mr Botham brought a claim for unfair dismissal and wrongful dismissal in the Southampton Employment Tribunal. By its liability judgment dated 17 May 2007, the tribunal found that he had been unfairly dismissed and that his summary dismissal was in breach of contract. The conclusion of unfair dismissal was based on a number of findings including that the MOD had committed breaches of the express and implied terms of the contract of employment. The express terms were set out in the Discipline Code contained in the MODs Personnel Manual and contained various requirements in relation to the disciplinary procedures that were to be followed. After a remedies hearing on 19 October 2007, in its judgment dated 7 November 2007 the tribunal awarded Mr Botham damages for wrongful dismissal in the sum of approximately 7,000 based on loss of salary and benefits for the three months notice period; a basic award for unfair dismissal of 1,989 (after a 55% reduction for contributory fault); and a compensatory award for unfair dismissal of 53,500 (after a 55% reduction for contributory fault and the operation of the statutory cap). Mr Bothams name had been removed from the unsuitable person POCA register on 27 July 2007. The MODs appeal against liability was dismissed by the Employment Appeal Tribunal on 6 October 2008. On 21 April 2009, Mr Botham issued proceedings in the High Court seeking damages for breach of the express terms of his contract of employment. In his particulars of claim he relies on a number of findings that were made by the tribunal in its liability judgment that, in conducting the disciplinary process, the MOD failed to comply with several provisions of the Discipline Code. The alleged breaches are (i) failing to establish the relevant facts before proceeding with the disciplinary action; (ii) failing sufficiently or at all to define the charge, set out the facts to support the charge and to provide and list any documentary evidence; (iii) recommending dismissal without a proper investigation of the facts; and (iv) causing or permitting the Deciding Officer to make reference to other unsubstantiated allegations or suspicions of other offences. His case is that by reason of these breaches of contract, he was dismissed from his employment, suffered a loss of reputation, was placed on the POCA register and was precluded from further employment in his chosen field. His claim for damages includes a claim for loss of future earnings. His claim was dismissed by Slade J [2010] EWHC 646 (QB). She noted at para 57 of her judgment that all the breaches of contract relied on by Mr Botham were alleged to have resulted in Mr Bothams dismissal and the damages claimed were consequential on the dismissal. Accordingly, the claim fell within the Johnson exclusion area and the damages were not recoverable. Mr Botham appealed to the Court of Appeal. In view of the decision of the Court of Appeal in the case of Mr Edwards, on 1 September 2010 and by consent, Pill LJ allowed Mr Bothams appeal and granted the MOD permission to appeal to the Supreme Court. Does the reasoning in Johnson preclude recovery of damages for loss arising from the unfair manner of a dismissal in breach of an express term of an employment contract? It is necessary to start with some background. The statutory right to claim compensation for unfair dismissal was first introduced by the Industrial Relations Act 1971 (the 1971 Act). It is clear from the report of the Royal Commission on Trade Unions and Employers Associations 1965 1968 (Cmnd 3623) (the Donovan report) that the 1971 Act was intended to enhance the protection of employees. The Donovan report stated at para 522: An employee has protection at common law against wrongful dismissal, but this protection is strictly limited; it means that if an employee is dismissed without due notice he can claim the payment of wages he would have earned for the period of notice. Beyond this, the employee has no legal claim at common law, whatever hardship he suffers as a result of his dismissal. Even if the way in which he is dismissed constitutes an imputation on his honesty and his ability to get another job is correspondingly reduced he cannotexcept through an action for defamationobtain any redress (see the decision of the House of Lords in [Addis v Gramophone Co Ltd [1909] AC 488]). As the Donovan report stated, the relevant common law position was that stated in Addis. There has been much debate as to whether the headnote to the law report of the decision in Addis accurately reflects the decision of the majority of the House of Lords: see, for example, per Lord Steyn in Mahmud at pp 50 51 and again in Johnson at paras 1 to 5 and 15 and 16. The headnote is in these terms: Where a servant is wrongfully dismissed from his employment the damages for dismissal cannot include compensation for the manner of the dismissal, for his injured feelings, or for the loss he may sustain from the fact that the dismissal of itself makes it more difficult for him to obtain fresh employment But as Lord Nicholls said at para 2 in Eastwoods case, by the time of the Donovan report, it was settled law that an employee was not entitled to recover damages in respect of the manner of his dismissal. The protection at common law was strictly limited. The employer was entitled to bring the contract of employment to an end without cause. The Donovan report recommended that the law should be changed and that statute should establish machinery to safeguard employees against unfair dismissal. Parliament gave effect to this recommendation in the 1971 Act. The relevant provisions are now contained in Part X of the 1996 Act. An employee has the right not to be unfairly dismissed. The remedies for unfair dismissal are set out in Chapter II of Part X. A complaint may be made to an employment tribunal. If the tribunal upholds the complaint, it may make an order for reinstatement or re engagement or an award of compensation for unfair dismissal. But Parliament placed significant limitations on the ability of an employee to complain of unfair dismissal and on the remedies available where unfair dismissal is proved. The most striking of these are: (i) complaints of unfair dismissal must be brought within a period of three months and time will only be extended where timely presentation of the claim is not reasonably practicable (section 111); (ii) subject to exceptions for automatically unfair dismissals, the normal rule is that, in order to qualify to bring an unfair dismissal claim, an employee must have been continuously employed for not less than one year ending with the effective date of termination; (iii) there is a statutory cap on the level of the compensatory award which can be made by an employment tribunal (for dismissals on or after 1 February 2011 the cap is 68,400); and (iv) the employment tribunal has the power to reduce an employees compensation for unfair dismissal if it is satisfied that he has contributed to his dismissal by conduct which can be characterised as culpable or blameworthy (Nelson v British Broadcasting Corporation (No 2) [1980] ICR 110, 121 per Brandon LJ). It can be seen, therefore, that Parliament decided to give a remedy that was strikingly less generous than that which the common law would give for a breach of contract in the ordinary way. As Lord Nicholls said in Eastwoods case at paras 12 and 13, Parliament has addressed the highly sensitive and controversial issue of what compensation should be paid to employees who are dismissed unfairly. In fixing the limits on the amount of compensatory awards, Parliament has expressed its view on how the interests of employers and employees, and the social and economic interests of the country as a whole, are best balanced in cases of unfair dismissal. In Johnson, the employee claimed common law damages for breach of the implied term of trust and confidence. He alleged that, because of the manner in which he had been dismissed, he had suffered a mental breakdown and was unable work. His claim was struck out as disclosing no reasonable cause of action. The ratio of Johnson is that the implied term of trust and confidence cannot be extended to allow an employee to recover damages for loss arising from the manner of his dismissal. Lord Nicholls (para 2) was unwilling to create a new common law right covering the same ground as the statutory right not to be unfairly dismissed since it would fly in the face of the limits Parliament has already prescribed on matters such as the classes of employees who have the benefit of the statutory right, the amount of compensation payable and the short time limits for making claims. He added that it would also defeat the intention of Parliament that claims of this nature should be decided by specialist tribunals, not the ordinary courts of law. Lord Hoffmann also regarded the statutory background as determinative of the question whether the new common law right should be created. He concluded (para 58) that for the judiciary to construct a general common law remedy for unfair circumstances attending dismissal would be to go contrary to the evident intention of Parliament that there should be such a remedy but that it should be limited in application and extent. Lord Millett was of the same opinion. At para 80, he said that the creation of the statutory right made the development of the common law for which the employee contended both unnecessary and undesirable. He made the same points as those made by Lord Nicholls and Lord Hoffmann and added: even more importantly, the coexistence of two systems, overlapping but varying in matters of detail and heard by different tribunals, would be a recipe for chaos. All coherence in our employment laws would be lost. Lord Bingham agreed with Lord Hoffmann and Lord Millett and dismissed the appeal for the reasons they gave. Only Lord Hoffmann in Johnson considered the question of what the position would be if the manner of the dismissal was in breach of express terms of the contract of employment. He said: 60. There is one further point. During the argument there was some discussion of whether the provisions for disciplinary hearings were express terms of Mr Johnson's contract and what the consequences would be if they were. No such express terms were pleaded and Mr Faulks, who appeared for Mr Johnson, was not enthusiastic about doing so. Nevertheless, it may be useful to examine the matter in a little more detail. 61. Section 1(1) of the 1996 Act provides that upon commencing employment, an employee shall be provided with a written statement of particulars of employment. This includes, but is not limited to, the terms and conditions of employment concerning various matters, including the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment (section 1(4)(e)). Section 3(1) then provides that a statement under section 1 shall include a note. specifying any disciplinary rules applicable to the employee or referring the employee to the provisions of a document specifying such rules which is reasonably accessible to the employee. 62. Consistently with these provisions, Mr Johnson was written a letter of engagement which stated his salary and summarised the terms and conditions of his employment, including the notice period. Apart from the statement that in the event of gross misconduct, the company could terminate his employment without notice, it made no reference to disciplinary matters. It was however accompanied by the employee handbook, which the letter of engagement said outlines all the terms and conditions of employment. This was divided into various sections, the first being headed Employment terms and conditions. These made no reference to the disciplinary procedure, which appeared in a subsequent section under the heading Other procedures. There one could find the various stages of the disciplinary procedure: formal verbal warning, written warning, final written warning, culminating in dismissal, as well as the separate procedure for summary dismissal in cases of serious misconduct. 63. So did the disciplinary procedures constitute express terms of the contract of employment? Perhaps for some purposes they did. But the employee handbook has to be construed against the relevant background and the background which fairly looms over the disciplinary procedure is Part X of the 1996 Act. The whole disciplinary procedure is designed to ensure that an employee is not unfairly dismissed. So the question is whether the provisions about disciplinary procedure which (to use a neutral phrase) applied to Mr Johnson's employment were intended to operate within the scope of the law of unfair dismissal or whether they were intended also to be actionable at common law, giving rise to claims for damages in the ordinary courts. 64. Section 199(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 gives Acas power to issue Codes of Practice containing such practical guidance as it thinks fit for the purpose of promoting the improvement of industrial relations. By section 207, a failure to comply with any provision of a Code is not in itself actionable but in any proceedings before an industrial tribunal any provision of the Code which appearsrelevant to any question arising in the proceedings shall be taken into account in determining that question. In 1977 Acas issued a Code of Practice entitled Disciplinary Practice and Procedures in Employment. It explained why it was important to have disciplinary rules and procedures which were in writing and readily available to management and employees. It said in paragraph 4: The importance of disciplinary rules and procedures has also been recognised by the law relating to dismissals, since the grounds for dismissal and the way in which the dismissal has been handled can be challenged before an industrial tribunal. 65. In paragraph 10 it listed what disciplinary procedures should include. The Unisys procedures have clearly been framed with regard to the Code of Practice. 66. My Lords, given this background to the disciplinary procedures, I find it impossible to believe that Parliament, when it provided in section 3(1) of the 1996 Act that the statement of particulars of employment was to contain a note of any applicable disciplinary rules, or the parties themselves, intended that the inclusion of those rules should give rise to a common law action in damages which would create the means of circumventing the restrictions and limits which Parliament had imposed on compensation for unfair dismissal. The whole of the reasoning which led me to the conclusion that the courts should not imply a term which has this result also in my opinion supports the view that the disciplinary procedures do not do so either. It is I suppose possible that they may have contractual effect in determining whether the employer can dismiss summarily in the sense of not having to give four weeks' notice or payment in lieu. But I do not think that they can have been intended to qualify the employer's common law power to dismiss without cause on giving such notice, or to create contractual duties which are independently actionable. Parliament has legislated on the subject of the disciplinary procedures applicable to contracts of employment on a number of occasions and in different ways. I shall start with sections 1 and 3(1) of the 1996 Act. Section 1 obliges an employer to provide the employee with a written statement of particulars of employment. Section 3(1) provides: (1) A statement under section 1 shall include a note (a) specifying any disciplinary rules applicable to the employee or referring the employee to the provisions of a document specifying such rules which is reasonably accessible to the employee, (aa) specifying any procedure applicable to the taking of disciplinary decisions relating to the employee, or to a decision to dismiss the employee, or referring the employee to the provisions of a document specifying such a procedure which is reasonably accessible to the employee. Section 3(1)(aa) was introduced on 1 October 2004 by section 35(2) of the Employment Act 2002 (the 2002 Act). As is stated in Deakin and Morris (loc cit) at para 4.24: even if, in principle, contract and [the] statement [required by section 1] are conceptually discrete, in practice one or both of the parties may regard the statement as being equivalent to a contract in both form and effect. Where the statement favours the employee, it represents strong prima facie evidence of the contract terms and the written particulars place a heavy burden on the employer to show that the actual terms of contract are different from those which he has set out in the statutory statement: per Browne Wilkinson J in System Floors (UK) Ltd v Daniel [1982] ICR 54, 58. In so far as the statement specifies the disciplinary rules, it favours the employee because these rules are designed to ensure that the employee is not unfairly dismissed. The effect of sections 1 and 3(1), therefore, is that Parliament has decided, at least in most cases, that contractual force should be given to applicable rules and procedures. But Parliament has gone further than merely providing that if an employer has applicable disciplinary rules and procedures, they will normally have contractual effect. It has recognised that a breach of disciplinary rules and procedures in the course of a dismissal process is relevant to the question whether the dismissal is unfair. It has from time to time adopted different statutory mechanisms to encourage or enforce compliance with appropriate disciplinary procedures in order to protect employees from dismissals which are procedurally unfair. Thus, in 1977, ACAS issued a Code of Practice entitled Disciplinary Practice and Procedures in Employment. Para 4 explained the importance of disciplinary rules and procedures which were in writing and readily available to management and employees: see para 64 of Lord Hoffmanns speech in Johnson. The 1977 Code was revised in 1997. Section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act) provides that any provision of a Code of Practice which appears to be relevant to any question arising in unfair dismissal proceedings shall be taken into account in determining that question. This is the point that was discussed by Lord Hoffmann at paras 64 and 65 of his speech. The 2002 Act introduced statutory dispute resolution procedures: see section 29 and Schedule 2. The dismissal and disciplinary procedures prescribed by Schedule 2 were similar to the ACAS procedures. Section 30 provided: (1) Every contract of employment shall have effect to require the employer and employee to comply, in relation to any matter to which a statutory procedure applies, with the requirements of the procedure. (2) Subsection (1) shall have effect notwithstanding any agreement to the contrary, but does not affect so much of an agreement to follow a particular procedure as requires the employer or employee to comply with a requirement which is additional to, and not inconsistent with, the requirements of the statutory procedure. Section 31 provided that if, in the case inter alia of unfair dismissal proceedings, it appeared to the employment tribunal that a claim to which the proceedings related concerned a matter to which one of the statutory procedures applied, and the statutory procedure was not completed before the proceedings began by reason of a failure of the employer or employee to comply with the requirements of the procedure, then the tribunal was required to increase or reduce any award in accordance with the provisions of section 31(2) or (3) (as the case may be). Section 34 introduced a new section 98A into the 1996 Act. It provided: (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if (a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal, (b) the procedure has not been completed, and (c) the non completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements. Pursuant to the powers conferred by section 31(6), the Secretary of State made the Employment Act 2002 (Dispute Resolution) Regulations 2004 (SI 2004/752). These were detailed regulations inter alia about the application of the statutory procedures and what constituted compliance with a requirement of a statutory procedure. These procedures proved to be unduly complicated. It was concluded by the Government that they carried an unnecessarily high administrative burden for both employers and employees and have had unintended negative consequences which outweigh their benefits: Better Dispute Resolution: A Review of Employment Dispute Resolution in Great Britain (the Gibbons Review) DTI, March 2007, p 8. The Government therefore decided to return to reliance on an ACAS Code of Practice, but provided for tribunals to have a discretion to adjust awards by up to 25% in the event of non compliance with the Code. Accordingly, sections 29 33 and 34(2) and Schedule 2 of the 2002 Act were repealed by the Employment Act 2008 (the 2008 Act) and the 2004 Regulations lapsed upon the repeal. Section 3 of the 2008 Act introduced a new section 207A into the 1992 Act. It provides that, if in the case inter alia of unfair dismissal proceedings it appears to an employment tribunal that the claim concerns a matter to which a relevant Code of Practice applies and the employer or employee has unreasonably failed to comply with the Code in relation to that matter, then the tribunal may, if it considers it just and equitable to do so, increase or reduce any award it makes to the employee by no more than 25%. A relevant Code of Practice means a Code of Practice which relates exclusively or primarily to procedure for the resolution of disputes. Relevant Codes of Practice have been issued by ACAS from time to time. Thus, for example, the 2003 Code states that it: provides practical guidance to employers, workers and their representatives on The statutory requirements relating to disciplinary and grievance issues; What constitutes reasonable behaviour when dealing with disciplinary and grievance issues; Producing and using disciplinary and grievance procedures. The April 2009 Code states that it sets out the basic requirements of fairness that will be applicable in most cases; it is intended to provide the standard of reasonable behaviour in most instances. To summarise, under section 207 of the 1992 Act, any non compliance with the ACAS Code of Practice relevant to a question arising in unfair dismissal proceedings was to be taken into account in determining that question. Under the 2002 Act, Parliament adopted the direct approach of introducing mandatory dispute resolution procedures and, if a statutory procedure had not been completed for reasons attributable to the employer, providing for the employee to be regarded as unfairly dismissed and for an adjustment of awards in unfair dismissal proceedings. Under the 2008 Act, Parliament reverted to the earlier model (but with modifications) of providing that an unreasonable failure to comply with a relevant Code of Practice may be reflected in the amount of an award of compensation for unfair dismissal. The important point is that in each case, Parliament linked a failure to comply with disciplinary or dismissal procedures with the outcome of unfair dismissal proceedings. To adopt the language of Lord Hoffmann at para 63 of Johnson, the provisions about disciplinary procedure were intended to operate within the scope of the law of unfair dismissal. It follows that, if provisions about disciplinary procedure are incorporated as express terms into an employment contract, they are not ordinary contractual terms agreed by parties to a contract in the usual way. At para 38 of his judgment, Moore Bick LJ said whether the parties intend the provisions relating to disciplinary procedures to sound in damages depends on the true construction of the contract. As a general proposition, this is obviously true. But in the present context, it ignores the statutory link between the provisions about disciplinary procedures and the law of unfair dismissal. The question remains whether, if provisions about disciplinary procedure are incorporated into a contract of employment, they are intended to be actionable at common law giving rise to claims for damages in the ordinary courts. Parliament intended such provisions to apply to contracts of employment inter alia in order to protect employees from unfair dismissal and to enhance their right not to be unfairly dismissed. It has specified the consequences of a failure to comply with such provisions in unfair dismissal proceedings. It could not have intended that the inclusion of these provisions in a contract would also give rise to a common law claim for damages for all the reasons given by the House of Lords in Johnson for not extending the implied term of trust and confidence to a claim for damages for unfair manner of dismissal. It is necessarily to be inferred from this statutory background that, unless they otherwise expressly agree, the parties to an employment contract do not intend that a failure to comply with contractually binding disciplinary procedures will give rise to a common law claim for damages. In these circumstances, I agree entirely with para 66 of Lord Hoffmanns speech. The unfair dismissal legislation precludes a claim for damages for breach of contract in relation to the manner of a dismissal, whether the claim is formulated as a claim for breach of an implied term or as a claim for breach of an express term which regulates disciplinary procedures leading to a dismissal. Parliament has made certain policy choices as to the circumstances in which and the conditions subject to which an employee may be compensated for unfair dismissal. A dismissal may be unfair because it is substantively unfair to dismiss the employee in the circumstances of the case and/or because the manner in which the dismissal was effected was unfair. The manner may be unfair because it was done in a humiliating manner or because the procedure adopted was unfair inter alia because the agreed disciplinary procedure which led to the dismissal was not followed. It may be unfair because defamatory findings were made which damage the employees reputation and which, following a dismissal, make it difficult for the employee to find further employment. Any such complaint was intended by Parliament to be adjudicated on by the specialist employment tribunal subject to the various constraints to which I have referred. Parliament did not intend that an employee could choose to pursue his complaint of unfair dismissal in the ordinary courts, free from the limitations carefully crafted by Parliament for the exercise of this statutory jurisdiction. Lord Phillips agrees that (at any rate in the absence of express agreement) damages are not recoverable for breach of an express term of an employment contract as to the manner of dismissal. He reaches this conclusion by applying and extending the Addis principle (ie as a matter of common law), presumably, for reasons of principle or policy. But the statutory dimension and the link between contractual disciplinary procedures and the statutory law of unfair dismissal cannot be ignored. I think that Lord Phillips implicitly recognises this. This is because he concludes that to permit a claim for damages for failure to comply with a disciplinary code leading to dismissal would undermine the decisions in Johnson and Eastwood. I agree. But those decisions are based on the intention of Parliament derived from the unfair dismissal legislation. I need to deal with the suggestion that was made during the argument (accepted by Lady Hale and Lords Kerr and Wilson) that claims such as those made by Mr Edwards and Mr Botham would have been available as common law claims for breach of contract before the enactment of the 1971 Act and that neither that statute nor its successors should be interpreted as having taken away existing rights enjoyed by employees. The answer to this argument is that the right to claim damages in respect of the manner of a dismissal did not exist before the 1971 Act: see paras 20 and 21 above. I accept that there has been debate as to what Addis decided. It is not necessary to enter into this debate. It is, however, clear that the Donovan report which inspired the 1971 Act stated that the law was as summarised in the headnote to the law report to Addis and Lord Nicholls expressed the same view at para 2 in Eastwoods case. In any event, at the very least it was not clear whether an employee could claim damages for the unfair manner in which he was dismissed. No example was cited to us of any case decided before the 1971 Act in which an employee was awarded damages for breach of contract for the unfair manner in which he had been dismissed. In these circumstances, I cannot accept that an application of the reasoning in Johnson should be rejected because it involves saying that the 1971 Act took away an employees existing rights and that this could not have been intended by Parliament. That is not to say that an employer who starts a disciplinary process in breach of the express terms of the contract of employment is not acting in breach of contract. He plainly is. If that happens, it is open to the employee to seek an injunction to stop the process and/or to seek an appropriate declaration. Miss ORourke QC submitted that, if in such a situation there is a breach of contract sufficient to support the grant of an injunction but (for whatever reason) the employee does not obtain an injunction, it is anomalous if the normal common law remedy of damages is in principle not available to him. The short answer to this submission is that an injunction to prevent a threatened unfair dismissal does not cut across the statutory scheme for compensation for unfair dismissal. None of the objections based on the co existence of inconsistent parallel common law and statutory rights applies. The grant of injunctive or declaratory relief for an actual or threatened breach of contract would not jeopardise the coherence of our employment laws and would not be a recipe for chaos in the way that, as presaged by Lord Millett in Johnson, the recognition of parallel and inconsistent rights to seek compensation for unfair dismissal in the tribunal and damages in the courts would be. Miss ORourke relies on the Court of Appeal decision in Saeed v Royal Wolverhampton Hospitals NHS Trust [2001] ICR 903 and in particular the House of Lords decision in Skidmore v Dartford and Gravesham NHS Trust [2003] UKHL 27; [2003] ICR 721 and on the Court of Appeal decision in Gunton [1981] Ch 448 in support of the conclusion reached by the Court of Appeal in the present case. In Saeed at para 12, Hale LJ said that if an employee thinks that the employer has chosen the wrong disciplinary procedure, then he can try to have it changed in advance or seek damages after the event. This was not a dismissal case and in any event it pre dates Johnson. Understandably, it does not engage with the reasoning in Johnson and therefore it does not shed light on the issue that arises on these appeals. Skidmore is an unfair dismissal case. It was held that the employer had adopted the wrong disciplinary procedures and the employees unfair dismissal claim was remitted to an employment tribunal. At para 15, Lord Steyn said that it was for the employer to decide which disciplinary route should be followed, but that the decision should be in accordance with the contract. If a non conforming decision was taken and acted upon, there is a breach of contract resulting in the usual remedies. Lord Steyn expressed his agreement with what Hale LJ had said in Saeed. But these observations were obiter dicta. The question of what remedy would be available to the employee if a non conforming decision was taken was not in issue in that case. No doubt that is why Johnson was not cited to the House and not mentioned by Lord Steyn and why he did not grapple with the relationship between the statutory code which regulates unfair dismissal claims and common law claims for damages for breach of contract. Although great respect should always be paid to any observations of Lord Steyn, I do not think that it would be right to place weight on these dicta. Gunton was a wrongful dismissal case. The claimant was employed under a contract of service terminable on one months notice. Regulations prescribing a procedure for the dismissal of an employee on disciplinary grounds were incorporated into his contract. The employer gave one months notice of termination, but without first having followed the prescribed disciplinary procedure in all respects. It was held by the Court of Appeal by a majority that the employee could not lawfully be dismissed on a disciplinary ground until the procedure had been properly carried out and that his dismissal was accordingly wrongful. The measure of damages for wrongful dismissal was loss of wages up to the date on which the contract could properly have been determined by the employer (on an application of the least onerous principle: see McGregor on Damages, 18th ed (2010), at para 8 094.) It was held that the period by reference to which damages were to be assessed was a reasonable period for carrying out the disciplinary process plus one month: see per Buckley LJ at p 470 and per Brightman LJ at p 474. Miss ORourke submits that the case of Gunton is an example of damages being awarded for breach of a disciplinary process leading to a dismissal. In my view, this submission is based on a misreading of the case. It was a conventional wrongful dismissal case involving the breach of a term relating to a notice of termination. It was held that it was not open to the employer to give one months notice without first undertaking the disciplinary process properly. As Brightman LJ put it at p 474, the failure to undertake the process properly meant that the notice was invalid and a nullity. It was not a claim for damages for breach of the disciplinary process. It was a claim for wrongful dismissal for purporting to terminate the contract on the basis of an invalid notice. In my view, there is nothing in this case which is inconsistent with the Johnson principle. I would, therefore, hold that the reasoning in Johnson is a bar to a claim for damages for breach of an express term of an employment contract as to the manner of a dismissal. The demarcation boundary But that is not an end to the enquiry because the question remains in any given case whether the claim falls within the Johnson exclusion area or not. The issue of where the boundary is to be found was considered in Eastwood [2005] 1 AC 503. Lord Nicholls gave valuable guidance at paras 27 to 33: 27. Identifying the boundary of the Johnson exclusion area, as it has been called, is comparatively straightforward. The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. An employee's remedy for unfair dismissal, whether actual or constructive, is the remedy provided by statute. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition, in law such a cause of action exists independently of the dismissal. 28. In the ordinary course, suspension apart, an employer's failure to act fairly in the steps leading to dismissal does not of itself cause the employee financial loss. The loss arises when the employee is dismissed and it arises by reason of his dismissal. Then the resultant claim for loss falls squarely within the Johnson exclusion area. 29. Exceptionally this is not so. Exceptionally, financial loss may flow directly from the employer's failure to act fairly when taking steps leading to dismissal. Financial loss flowing from suspension is an instance. Another instance is cases such as those now before the House, when an employee suffers financial loss from psychiatric or other illness caused by his pre dismissal unfair treatment. In such cases the employee has a common law cause of action which precedes, and is independent of, his subsequent dismissal. In respect of his subsequent dismissal he may of course present a claim to an employment tribunal. If he brings proceedings both in court and before a tribunal he cannot recover any overlapping heads of loss twice over. 30. If identifying the boundary between the common law rights and remedies and the statutory rights and remedies is comparatively straightforward, the same cannot be said of the practical consequences of this unusual boundary. Particularly in cases concerning financial loss flowing from psychiatric illnesses, some of the practical consequences are far from straightforward or desirable. The first and most obvious drawback is that in such cases the division of remedial jurisdiction between the court and an employment tribunal will lead to duplication of proceedings. In practice there will be cases where the employment tribunal and the court each traverse much of the same ground in deciding the factual issues before them, with attendant waste of resources and costs. 31. Second, the existence of this boundary line means that in some cases a continuing course of conduct, typically a disciplinary process followed by dismissal, may have to be chopped artificially into separate pieces. In cases of constructive dismissal a distinction will have to be drawn between loss flowing from antecedent breaches of the trust and confidence term and loss flowing from the employee's acceptance of these breaches as a repudiation of the contract. The loss flowing from the impugned conduct taking place before actual or constructive dismissal lies outside the Johnson exclusion area, the loss flowing from the dismissal itself is within that area. In some cases this legalistic distinction may give rise to difficult questions of causation in cases such as those now before the House, where financial loss is claimed as the consequence of psychiatric illness said to have been brought on by the employer's conduct before the employee was dismissed. Judges and tribunals, faced perhaps with conflicting medical evidence, may have to decide whether the fact of dismissal was really the last straw which proved too much for the employee, or whether the onset of the illness occurred even before he was dismissed. 32. The existence of this boundary line produces other strange results. An employer may be better off dismissing an employee than suspending him. A statutory claim for unfair dismissal would be subject to the statutory cap, a common law claim for unfair suspension would not. The decision of the Court of Appeal in Gogay v Hertfordshire County Council [2000] IRLR 703 is an example of the latter. Likewise, the decision in Johnson v Unisys Ltd [2003] 1 AC 518 means that an employee who is psychologically vulnerable is owed no duty of care in respect of his dismissal although, depending on the circumstances, he may be owed a duty of care in respect of his suspension. 33. It goes without saying that an interrelation between the common law and statute having these awkward and unfortunate consequences is not satisfactory. The difficulties arise principally because of the cap on the amount of compensatory awards for unfair dismissal. Although the cap was raised substantially in 1998, at times tribunals are still precluded from awarding full compensation for a dismissed employee's financial loss. So, understandably, employees and their legal advisers are seeking to side step the statutory limit by identifying elements in the events preceding dismissal, but leading up to dismissal, which can be used as pegs on which to hang a common law claim for breach of an employer's implied contractual obligation to act fairly. This situation merits urgent attention by the Government and the legislature. The question in each case is, therefore, whether or not the loss founding the cause of action flows directly from the employers failure to act fairly when taking steps leading to dismissal and precedes and is independent of the dismissal process (Lord Nicholls at para 29). In other words, the court must decide whether earlier events do or do not form part of the dismissal process (Lord Steyn at para 39). This is a fact specific question. As Lord Nicholls observed at paras 15 and 30 to 33, drawing the boundary line in this way leads to unsatisfactory and anomalous results. One of these is that an employer may be better off dismissing an employee than suspending him. But this is the inevitable consequence of the interrelation between the common law and statute. The unfair dismissal legislation occupies the unfair dismissal territory to the exclusion of the common law, but it does not impinge on any cause of action which is independent of a dismissal (such as a common law claim for damages for suspension in breach of contract). It is instructive to see how the House of Lords approached this question in the Eastwood case itself. The case of Eastwood v Magnox concerned two employees (Mr Eastwood and Mr Williams) both of whom pursued claims for unfair dismissal before the tribunal which were compromised. They both then started proceedings in the county court claiming that they had suffered personal injuries in the form of psychiatric illnesses caused by a deliberate course of conduct by certain individuals using the machinery of the dismissal process. On the assumed facts, the House of Lords held that these claims were independent of the dismissal process and did not fall within the Johnson exclusion area. The claimants had acquired a cause of action for breach of contract before their dismissal. On the other hand, as we have seen (para 24 above) in Johnson itself, the claim was for damages for the mental breakdown that the claimant alleged that he had suffered as a result of the manner and the fact of his dismissal: that claim did fall within the Johnson exclusion area. The third case considered by the House of Lords in the Eastwood case was that of Mr McCabe. Mr McCabe lodged a complaint of unfair dismissal with a tribunal on the grounds that his dismissal was in breach of the relevant disciplinary procedures. He was awarded compensation and then started proceedings in the High Court against the employer claiming damages inter alia for breach of contract. The primary complaint in his statement of claim as originally served was that by reason of the councils failure to investigate the allegations properly and to conduct the disciplinary hearings properly and his dismissal he had sustained psychiatric illness. But later (and in response to the decision in Johnson), he sought to amend his statement of claim by limiting the focus of his complaint to the period before his dismissal, that is to the period of his suspension and to the employers failure to carry out a proper investigation of the allegations against him. On the assumed facts on which the amended claim was based, the House of Lords held that Mr McCabes cause of action had accrued before his dismissal and was independent of it. Do the present cases fall outside the Johnson exclusion area? Mr Edwards It is accepted by Miss ORourke that Mr Edwards claim for unfair dismissal falls within the Johnson exclusion area. But she submits that his claim for damages for loss of reputation consequent on the findings of misconduct made by the disciplinary panel does not. She contends that these findings resulted from the fact that (in breach of the contractual disciplinary procedures) the disciplinary panel was not properly constituted and acted in a manner which was procedurally unfair. This breach, she submits, occurred independently of the dismissal. The undisputed facts are that Mr Edwards disciplinary hearing was held on 9 February 2006. He was notified of his summary dismissal on the following day. The decision was confirmed in a long letter from the chairman of the disciplinary panel dated 16 February which set out in detail the allegations and the panels findings. The complaint is that the panels erroneous conclusions flowed from these findings. The findings and conclusions were first published in the letter which was sent six days after the decision to dismiss had been communicated to Mr Edwards and were contained in the letter which confirmed his dismissal. In my view, it is impossible to divorce the findings on which Mr Edwards seeks to found his claim for damages for loss of reputation from the dismissal when they were the very reasons for the dismissal itself. In these circumstances, Mr Edwards claim for damages for loss of reputation is not one of those exceptional cases to which Lord Nicholls referred in Eastwood where an employers failure to act fairly in the steps leading to a dismissal causes the employee financial loss. This claim does not arise from anything that was said or done before the dismissal. It is not independent of the dismissal. It arises from what was said by the Trust as part of the dismissal process. It follows that I cannot accept the distinction made by Lord Kerr and Lord Wilson between the findings or reasons for the dismissal and the dismissal itself. I agree with what Lord Mance says about that. Mr Botham The case pleaded at para 20 of the particulars of claim is that as a result of the MODs breaches of contract, Mr Botham foreseeably, was dismissed from employment, and was caused (wrongly) to suffer loss and damage to his reputation and to be precluded from further employment in his chosen field and to be placed on the register of persons deemed unsuitable to work with children. The damages claimed include loss of earnings and other benefits from the date of dismissal. The statement of facts and issues agreed for the purposes of the appeal state that Mr Botham was placed on the register as a consequence of the dismissal for gross misconduct (para 5) and the relief sought by him includes damages on the grounds that his dismissal and his inclusion on the POCA precluded him from further employment as a youth community worker (para 15(3)). In my view, this case is a fortiori that of Mr Edwards. In Mr Edwards case, it is alleged that the damages for loss of reputation were caused by the erroneous findings made by the panel, rather than the dismissal. Mr Botham goes further and says that the damages he claims for loss of reputation were caused by the dismissal itself. For the reasons already given, it falls within the Johnson exclusion area. That was the view of Slade J and I agree with it. The consent order made by the Court of Appeal on 31 August 2010 should therefore be set aside. Conclusion on the main issue in relation to Mr Edwards and Mr Botham It follows that I would allow the appeals by the Trust and the MoD. In both cases, the employment was terminated by dismissal. Had they both been suspended, the position would have been completely different. As it is, their claims are for damages arising from what was said in the course of the dismissal process and must be rejected for the reasons that I have given. As I have said (para 10 above), Nicol J held that, subject to liability for breach of contract being established, the maximum amount of damages recoverable by Mr Edwards for wrongful dismissal was compensation for the three months notice period and the Gunton extension period. There was some discussion before us as to whether Gunton was correctly decided. The point was described as difficult by Staughton LJ in Boyo v Lambeth London Borough Council [1994] ICR 727 at 747H 748A. But in view of my conclusion on the main issue, this point does not arise and I do not find it necessary to express a view on whether Gunton was correctly decided. Claims by Mr Botham for costs as damages Cost of legal representation in the disciplinary proceedings Mr Botham had the benefit of legal assistance in the disciplinary proceedings. It is common ground that, in view of the nature of the charge against him, it was reasonable and foreseeable that he would obtain such assistance. Mr Reynold QC submits that, since the charge was preferred in circumstances which constituted a breach of the express terms of the contract of employment, Mr Botham is entitled to his legal costs on ordinary principles as loss flowing from the breach. I reject this submission largely for the reasons given by Ms Outhwaite QC and the judge. At para 6 of its remedies judgment, the Employment Tribunal made a finding that Mr Bothams culpable conduct was the sole reason for the disciplinary procedure. It follows that the cost of legal assistance during the disciplinary process was caused by Mr Bothams culpable conduct in triggering the disciplinary process and did not arise out of a breach of contract by the MOD. Furthermore, Parliament designed the Tribunal system so that there was no need for legal representation and, therefore, litigation costs are not normally recoverable. It would be odd if an employee was entitled to recover costs for legal representation for the disciplinary proceedings before his employer, but could not recover costs for legal representation before the Employment Tribunal itself. Litigation costs before the Employment Tribunal and the Employment Appeal Tribunal Mr Reynold submits that, but for the breaches of contract, the costs of legal representation before the Employment Tribunal and the Employment Appeal Tribunal would not have been incurred. Mr Botham is, therefore, entitled to recover these costs as damages for breach of contract on normal common law principles. I would also reject this submission again largely for the reasons given by Ms Outhwaite and the judge. The unfair dismissal claim arose necessarily out of the dismissal and, for the reasons given earlier, fell within the Johnson exclusion area. Legal costs were incurred because Mr Botham had been dismissed. A claim in respect of these costs falls within the Johnson exclusion area and is not recoverable as damages for breach of contract for the same reasons as damages are not recoverable for loss of earnings and benefit. Every unfair dismissal claim involves at the very least an alleged breach of the implied term of trust and confidence, and probably involves an alleged breach of express contractual terms as well. If the court were to award damages for legal representation in dismissal proceedings, such claims would arise following all unfair dismissal claims. This would defeat Parliaments statutory regime which was intended to provide a fast, cost free resolution to dismissals which are alleged to be unfair by a specialist tribunal. All such claims would result in satellite litigation to recover litigation costs. Nor would there be any reason to confine such satellite litigation to successful claims for unfair dismissal. Mr Botham chose to bring a claim for unfair dismissal before the Employment Tribunal. Having elected to bring a claim in a forum where no costs are usually awarded, he should bear the cost consequences of having done so. There are strong policy reasons for awarding costs only in exceptional circumstances. The statutory regime should not be circumvented so as to allow a damages action for costs. Conversely, the MOD had no choice of forum. It responded to the claim after the forum had been chosen by Mr Botham. If the MOD had successfully defended the unfair dismissal claim, it too would not have been able to recover its costs. Overall conclusion For the reasons that I have given, I would allow the appeal of the Trust in the case of Mr Edwards and of the MOD in the case of Mr Botham. LORD PHILLIPS When initially I saw in draft the judgment of Lord Dyson, my reaction was that it was so plainly right in the result that my inclination was simply to add my agreement to it. The judgments of Lady Hale and Lord Kerr have, however, caused me to give further consideration to this difficult area of the law. While I have not changed my mind as to the result, the route by which I have reached it is not on all fours with that of Lord Dyson. For that reason I am adding my judgment to those of Lord Dyson and Lord Mance. Each of the claimants was dismissed from his employment after a disciplinary hearing. Each disciplinary hearing should have complied with a disciplinary code that had contractual force. Each hearing failed to comply with the code. Each claimant alleges that as a consequence of this the relevant tribunal wrongly made findings of misconduct that have inhibited him from obtaining alternative employment and thus caused him financial loss. Each claimant has sought to recover this loss in an action in the High Court for breach of contract. I shall describe each of these claims as a stigma claim. Mr Edwards has combined his stigma claim with what is now a separate claim for wrongful dismissal. He has brought no proceedings other than these two claims. Mr Botham initially commenced proceedings in the Southampton Employment Tribunal, pursuant to legislation that I shall describe compendiously as unfair dismissal legislation. He successfully claimed compensation for both wrongful dismissal and unfair dismissal. His damages for the former were limited to three months salary and benefits, in respect of the period of notice of which he was deprived. His compensation for the latter was reduced to reflect a finding of 55% contributory fault and the effect of the statutory cap. Mr Botham then commenced his stigma claim in the High Court. Neither claim succeeded at first instance. Each was held to be precluded because it fell within the so called Johnson exclusion area. Mr Edwards appealed successfully to the Court of Appeal, after which Mr Botham made a similar appeal, which was allowed by consent. Two questions arise. (1) Are the stigma claims outside the Johnson exclusion area because they are discrete from and independent of the claims for wrongful dismissal? (2) Are the stigma claims outside the Johnson exclusion area because they are claims for breaches of express, and not implied, contractual terms? The majority answers both questions in the negative. Lady Hale answers the second question in the affirmative, and holds that the judgments of the Court of Appeal were correct for this reason. Lord Kerr and Lord Wilson consider that the first question is critical. So far as Mr Edwards is concerned, his stigma claim is sound because it is discrete and independent of the claim for wrongful dismissal. Mr Bothams claim is, however, for loss consequential on his dismissal. In these circumstances his claim is invalid. Lord Dyson holds that each stigma claim arises out of the manner of the claimants wrongful dismissal. I agree with him. If that conclusion is correct it is, I believe, common ground that each claim must fail if Lord Hoffmanns obiter dicta in Johnson were correct. Lord Dyson has set out at para 1 of his judgment the implied term upon which the claim in Johnson was founded (the trust and confidence implied term). The majority in Johnson, Lord Steyn dissenting on the point, held that this implied term had no application to the manner of dismissal of an employee by his employer. This was because Parliament had made alternative provision for this situation by the unfair dismissal legislation. Lord Hoffmann alone expressed the view that, even if the manner of dismissal involved the failure to comply with a disciplinary code that had contractual effect, no claim at common law could be based upon that failure. The vital question in the present case is whether Lord Hoffmann was correct. That question might well have been raised in Eastwood. There also the trust and confidence implied term was invoked to found common law claims by employees who had been dismissed after disciplinary hearings that had been improperly conducted. Each of the employees claimed that the hearings had caused them psychiatric damage prior to dismissal. The employers sought to rely on the Johnson exclusion. No one suggested that the claims could be founded on breaches of express contractual obligations in relation to the disciplinary hearings. Instead, the claims were held to be viable on the basis that they fell outside the Johnson exclusion area in as much as their causes of action preceded and were independent of their subsequent dismissals. Lord Steyn devoted a lengthy concurring speech to the suggestion that there might be good reason to reconsider Johnson. He did not suggest that it could simply be finessed by bringing a claim for failure to comply with the relevant disciplinary codes. In Johnson at para 66, when dealing with the intention of Parliament when passing section 3(1) of the 1996 Act, Lord Hoffmann observed that the disciplinary procedures could not have been intended to qualify the employers common law power to dismiss without cause on giving such notice, or to create contractual duties which are independently actionable. The intention of which he spoke was both that of Parliament and that of the parties themselves. This is echoed by a passage in the judgment of Lord Dyson, when applying Lord Hoffmanns reasoning in the present case. Lord Dyson sets out at para 26 of his judgment the critical passage from the speech of Lord Hoffmann in Johnson. He then expands on the Parliamentary history of the requirement that disciplinary procedures should be incorporated in contracts of employment. He demonstrates that Parliament also provided that failure to comply with those procedures should have specific consequences in unfair dismissal proceedings. Lord Dyson at para 38 observes that disciplinary procedures incorporated into an employment contract are not ordinary contractual terms. At para 39 he concludes that it is necessarily to be inferred from the statutory background that, unless the parties otherwise expressly agree, the parties to an employment contract do not intend that a failure to comply with contractually binding disciplinary procedures will give rise to a common law claim for damages. Thus, on Lord Dysons analysis, no claim to damages can be founded on breach of a disciplinary code that is incorporated into the contract because it is to be inferred that the parties have so agreed. This echoes Lord Hoffmanns reference to the intention of the parties themselves. Courts often refer to the intention of Parliament. When they do so the intention is usually implied or imputed. The courts ascribe to Parliament an intention that the relevant legislation will bear a meaning that is rational and coherent. The intention is thus somewhat artificial. It is even more artificial in the present context to impute to every party to a contract of employment the same intention that Lord Hoffmann and Lord Dyson have ascribed to Parliament in relation to the effect of disciplinary codes. While this may be a legitimate approach to making sense of this area of the law, I believe that there is a more satisfactory route that leads to the conclusion that Lord Dyson has reached in this case. This case is about remoteness of damage. That is what Addis was about. In Addis the plaintiff was employed to manage a business in Calcutta on terms that entitled him to 6 months notice. He was given 6 months notice, but immediately replaced, with the result that he returned to England. His claim for breach of contract succeeded before judge and jury. The jury awarded him 600 for wrongful dismissal. In the House of Lords the principal issue was as to the measure of damage to which he was entitled. There were a number of problems. First it was not clear whether the breach of contract lay in constructively dismissing the plaintiff without notice, or in refusing to let him act as manager during the notice period. Significantly, Lord Loreburn LC held at p 490 that it made no difference. The damages were the same on either footing. The second problem was that it was not clear on what bases the jury had awarded 600 damages. Lord Atkinson at pp 494 and 496 and Lord Collins at pp 497, 498 and 501 considered the case on the footing that the jury might have purported to award exemplary damages. The majority of their Lordships considered, however, that the case raised the issue of principle of whether it was open to the jury to award damages for the consequences of the dismissal in so far as these extended beyond direct financial loss. They considered whether damages could be awarded in respect of injury to feelings or the fact that the dismissal of itself made it more difficult to obtain fresh employment see Lord Loreburn at p 491, Lord Atkinson at p 493, Lord Collins at p 497 and Lord Shaw of Dumferline at p 504. It is particularly material in the present context that they considered whether wrongful dismissal could give rise to a claim for stigma damages. The majority held that it could not. The reason for this was that such a head of loss, together with any claim for distress or injury to feelings, was properly the subject of a claim in tort rather than in contract see Lord James of Hereford at p 492, Lord Atkinson at p 496, Lord Gorell at p 502 and Lord Shaw at pp 503 and 504. Thus Addis was not a case about the scope of the contractual duty of an employer, but a case about the measure of damage recoverable for breach of the employers contractual duty. As Lord Dyson points out at para 19, the 1971 Act was passed on the basis that the law had not changed since Addis. That was the first of a series of statutes, set out by Lord Dyson, that put in place a complex scheme that provided a specifically limited remedy for employees for unfair dismissal that took account of the circumstances of the dismissal, including procedural unfairness and, in particular, any failure to comply with the procedural code that the legislation required to be incorporated in the contract. In the meantime the common law relating to contracts of employment developed in a manner favourable to employees, both by the development of implied obligations on the part of the employer and by recognising heads of damage that could be recovered both in tort and in contract that had not been recognised at the time of Addis. One such obligation arose under the trust and confidence implied term. In Mahmud the House of Lords held that this implied term could give rise to stigma damages. Stigma damage constituted a novel head of damage for breach of a contract of employment. The stigma damages recognised in Mahmud were not caused by wrongful dismissal. Stigma damages cannot be awarded for wrongful dismissal without reversing Addis. In Addis at p 500 Lord Collins summarised, with approval, an observation of Lord Coleridge CJ in Maw v Jones (1890) 25 QBD 107 as follows: dismissal with an imputation might well be thought by a jury to hurt the plaintiffs prospects of finding another situation, and on that ground alone might give a legal claim to consequential damages within the ordinary rule. The majority held, however, that stigma damages could not be recovered as a head of damage flowing from wrongful dismissal. Johnson was decided on the premise that Addis remained good law see Lord Millett at para 68 although he did go on at para 70 to raise the question of whether Mahmud might have changed the position. Addis was not challenged in Eastwood. Addis has not been challenged in the present case. Until Addis is reversed it remains the law that stigma damages cannot be recovered for wrongful dismissal. The stigma effect can, however, be taken into account in a claim under statute for unfair dismissal. If the courts in developing the common law principles of measure of damage can exclude a claim for stigma damages for breach of contract that consists of wrongful dismissal, it is equally open to them to exclude such a head of claim for breach of contract that consists of a failure to comply with a disciplinary code. The question in this case is whether this Court should do so. If this Court follows the reasoning of the House of Lords in Johnson and in Eastwood this question must be answered in the affirmative. The chain of causation linking a failure to follow a disciplinary procedure with stigma is more tenuous than the chain of causation linking wrongful dismissal with stigma. If the law does not permit recovery of stigma damages in the latter case, it makes no sense to permit it in the former. More generally, to permit such a claim based on a failure to comply with a disciplinary code leading to dismissal undermines the decisions of the House of Lords in Johnson and Eastwood. The same is not true of Gunton, if that case was rightly decided, for that case applied the same restrictive approach to measure of damage as Addis. On my reading of Lady Hales judgment, I am inclined to suspect that her quarrel is not simply with Lord Hoffmanns obiter dicta, it is with Addis, with Johnson and with Eastwood. If so, she stands shoulder to shoulder with Lord Steyn. They may both be right. It may be that this area of the law merits fundamental review. That is not, however, the battleground on which this Court was invited to tread. The issue before this Court is narrower. It is whether the reasoning in the latter two cases can be subverted by applying to a claim for breach of a disciplinary code a head of damage that the law does not presently permit to be advanced in a claim for wrongful dismissal. I agree with Lord Dyson and Lord Mance that the answer to that question is no. Accordingly, I would allow each of these appeals. LORD MANCE I agree with Lord Dysons reasoning and conclusions. Mr Bothams case, as pleaded in paragraph 20 of his particulars of claim and as Slade J said in paragraphs 17 18, 25, 29 and 66 of her judgment, is that the Armys breach of contractual terms relating to the implementation of the disciplinary procedure laid down in the Army Discipline Code led to his wrongful dismissal, which in turn led to his alleged loss (save the costs of disciplinary proceedings). Lord Dyson concludes, and I agree, that such a claim is unsustainable in the light of the decision in Johnson v Unisys Ltd [2003] 1 AC 518, the dicta of Lord Hoffmann in that case at para 66, and the further considerations relating to the common law and statutory position mentioned by Lord Dyson at paras 19 to 48. The law would be incoherent otherwise. Lord Phillips prefers an analysis according to which the present case is governed by a principle of remoteness which he derives from Addis v Gramaphone Co Ltd [1909] AC 488. That case establishes that an employee cannot recover damages for injured feelings, mental distress or damage to his reputation, arising out of the manner of his dismissal: Johnson v Unisys Ltd, para 44, per Lord Hoffmann. But it is questionable whether this is a principle of remoteness, as opposed to causation: see eg Mahmud v Bank of Credit and Commerce International SA [1998] AC 20, 51D E, per Lord Steyn and Johnson v Unisys Ltd, paras 39 and 44, citing McLachlin J s dictum in Wallace v United Grain Growers Ltd (1997) 152 DLR (4th) 1, 39 that A wrong arises only if the employer breaches the contract by failing to give the dismissed employee reasonable notice of termination in support of a conclusion that the only loss caused by a wrongful dismissal flows from a failure to give proper notice or make payment in lieu. Put another way, a dismissal is wrongful where there is such a failure (and, of course, no basis for summary dismissal). Other circumstances (such as the reasons for the failure, the employers state of mind or the impact on the employee) are simply irrelevant to the breach or the loss recoverable for it. The respondent employees case on the present appeals is that the disciplinary procedures which they say were prescribed were, in contrast, by their nature intended to give then contractual protection against unfair dismissal, meaning dismissal for unfair reasons or in an unfair manner. On this basis, they submit, there is no reason to treat as irrecoverable any financial loss caused to them by stigma resulting from improper disciplinary procedures leading to unfair findings. I see the argument, but its acceptance would, as Lord Phillips points out, undermine the decisions of the House of Lords in both Johnson and Eastwood v Magnox Electric plc [2004] UKHL 35; [2005] 1 AC 503. These decisions were in turn based upon a consideration of the legal position resulting from Parliaments introduction of a statutory scheme relating to and providing carefully delimited remedies for unfair dismissal. Just as the employees argument depends upon the rationale for the prescribed disciplinary procedures, namely to avoid unfair dismissal, so the answer to it depends upon the existence of a statutory scheme providing remedies for unfair dismissal. Employers and employees when contracting, in particular when introducing prescribed disciplinary procedures, must be taken to have in mind the statutory scheme relating to unfair dismissal, and to contemplate that scheme as providing the relevant remedies in the event of unfair dismissal. It does not seem to me artificial to ascribe such an intention to them, any more than it did to Lord Hoffmann in Johnson, paras 63 and 66. They cannot have intended that procedures put in place to avoid the need to invoke the statutory scheme should in fact circumvent and make irrelevant the careful limitations of that scheme. Parties could by express agreement attach a different significance to the prescribed disciplinary procedures. But, in the absence of express contrary agreement, the Johnson exclusion area must be taken to cover both loss arising from dismissal and financial loss arising from failures in the steps leading to such dismissal, unless the loss claimed can be regarded as occurring quite independently of the dismissal, as the psychiatric loss claimed by the claimants in Eastwood could be. There are further potential objections to Mr Bothams proposed case. It depends upon the propositions (a) that one alleged breach of contract or duty can be said to have caused the commission of another breach of contract or duty by the same person or entity, and (b) that where recovery for the latter breach is limited, a claim may, by relying on the former breach as causing the latter breach, avoid the limit. Both propositions are in my view open to question. First, so far as the failure to take proper disciplinary steps can be separated from the dismissal, then it constituted not a reason for dismissing, but a reason for not dismissing. The dismissal was a fresh decision, which the employer ought not to have taken and without which there would have been no loss. But, second, assuming the first point in Mr Bothams favour, any loss that he suffered flowed from the wrongful or unfair dismissal, and was recoverable either as compensation for breach of contract or for unfair dismissal, subject in either case to the relevant limits. If the wrongful or unfair dismissal is to be attributed causatively to the prior failure to take proper disciplinary steps, I find it difficult to see why or how the damages recoverable for the prior failure should or could exceed the compensation recoverable for the later dismissal. However, these points were not fully developed in argument, and I express no further view on them. Reference was made in argument to the decision in King v University Court of the University of St Andrews [2002] IRLR 252, where the University had employed the claimant on terms that it was entitled . for good cause shown to terminate the appointment of the employee by giving three months notice in writing. The claimant claimed on two bases, first, a breach of the alleged express term not to terminate his employment except on good cause shown, and, secondly, a breach of an alleged implied term of trust and confidence consisting in an alleged failure to act fairly and reasonably in investigating whether good cause was shown. The issue before Lady Smith concerned the second basis of claim. She distinguished Johnson on the basis that the University was only entitled to terminate the claimants appointment by three months notice for good cause shown, and she held that this involved the implication that there should, before any dismissal, be a prior hearing and investigation, fairly conducted in accordance with a mutual duty of trust and confidence. Whether any and if so what damages could be recovered on that basis, in circumstances where the claimant had been dismissed (and the only damages pleaded were alleged to follow from the dismissal) was not discussed. In any event, the decision, at first instance on a preliminary issue, concerned a contract very different to the present, in particular a contract containing express term which was treated as involving an obligation not to dismiss save for good cause shown. The decision does not assist on the issues now before the Supreme Court. Mr Edwardss written case identifies the issue as being whether a person who suffers damage as a result of findings of personal or professional misconduct leading to dismissal and loss of professional status that were made against him in disciplinary proceedings conducted in breach of contract, but which would not otherwise have been made, can recover damages at large (para 30); and the question for the Supreme Court as being whether damages flowing from a breach of an express term of an employment contract, anterior to and separate from dismissal, are in any way restricted; and, if so, on what basis (para 31). In para 67 it accepts that there will be a burden on Mr Edwards to prove that if the procedure had been followed, no dismissal would have resulted, but suggests that, even if this could not be shown, he might still recover limited damages of an unspecified nature. In para 95 it also asserts that the disciplinary findings would still have caused him recoverable damages, by way of restricted future working opportunities, even if they had not been followed by his dismissal by the Trust. These ways of putting the case depart from or expand upon the pleaded particulars of claim, as I read them. While I agree that that should not itself be an absolute bar to their pursuit, I would myself have wished to have a draft amended pleading, before any decision to permit their pursuit. As, however, I have come to the conclusion that they cannot succeed, this is unnecessary. The fact is that Mr Edwards was dismissed on the basis of and contemporaneously with the disciplinary findings about which he seeks to complain. In so far as his claim consists of loss allegedly suffered by dismissal, it falls directly within the exclusion area which was recognised in Johnson v Unisys Ltd [2001] UKHL 13; [2003] 1 AC 518 and which I have referred to in paragraphs 90 to 94 above. But, in my opinion, it is quite unrealistic in this context to seek to differentiate any of the loss he has allegedly suffered from his dismissal. Any breach of disciplinary procedure did not cause of itself identifiably separate loss or illness, as was alleged in Eastwood v Magnox Electric Ltd. [2004] UKHC 35, [2005] 1 AC 503, where (a) Mr Williams claimed that he had suffered stress related illness caused by a long campaign of deliberate harassment independently of his subsequent dismissal, and (b) Mr McCabes claim was for psychiatric injury caused by events occurring before any dismissal. Where the findings reached in the disciplinary proceedings and the dismissal are, as in the present case, a part of a single process, the remedy for any unjustified stigma lies, short of circumstances establishing a claim for defamation, in the restoration of reputation which may in the ordinary course be expected to result from a successful claim for wrongful or unfair dismissal. Since writing this judgment, I have read Lord Kerrs judgment, with which Lord Wilson agrees, by which they would allow the Ministry of Defences appeal in the case of Mr Botham, but dismiss the Trusts appeal in the case of Mr Edwards, as well as Lady Hales judgment, by which she would dismiss both appeals. Essentially, Lord Kerr would permit Mr Edwards to recover damages for any reputational damage from the adverse findings accompanying his dismissal that he can show would have flowed from such findings even if they had not been accompanied by dismissal. On this approach, although the alleged breach in failing to follow the correct investigatory process could not give rise to damages for dismissal (other than damages in lieu of notice), it could give rise to damages in respect of financial loss caused by the reasons given for the dismissal. I am unable to agree with this suggested distinction. The reasons given were part and parcel of the dismissal. The reasons would be very relevant to a claim for unfair dismissal, as Lord Dyson explains in para 40. But they fall to be dealt with in that context, rather than by a claim for damages (at least in the absence of actionable defamation). The contrary approach advocated by Lord Kerr would outflank both the rule in Addis set out by Lord Dyson in para 20 and the Johnson exclusion as explained in Johnson itself and in Eastwood, as well in paras 90 to 94 above. Bearing in mind the modern prevalence of disciplinary procedures (required under section 3(1) of the Employment Rights Act 1996 to be noted in any employees written statement of particulars of employment), it could also make commonplace what Lord Nicholls identified in para 29 in Eastwood as exceptional. Further, on Lord Kerrs approach, damages could not and would not be awarded by reference to what actually happened. The dismissal would have to be discounted. Damages would be awarded on a hypothesis of adverse findings issued independently of any dismissal that is, either without any disciplinary measure at all or in conjunction with some different measure such as suspension. This would involve an enquiry which was both speculative and unreal. Quite apart from the difficulty of an assumption that the same findings would have been made without dismissal, how would one sensibly assess whether any and what loss would have been suffered from the findings if there had been no dismissal? The exercise would also involve, to an even greater degree, distinctions regarding causation and consequences of the sort that Lord Hoffmann found problematic in Johnson at paras 48 and 54. As Lord Nicholls made clear in Eastwood at para 32, the applicability of the Johnson exclusion and so the recoverability of loss may depend upon whether an employer dismisses the employee, as opposed (for example) to simply suspending him. The fact of dismissal can make all the difference. Here, whatever the correct disciplinary process may or should have been, it required the employer to explain the reasons if dismissal was the outcome. When applying the Johnson exclusion, the dismissal and the reasons accompanying it cannot be distinguished in the manner proposed. If there was a failure in the disciplinary process, it led to both, and, if the law is to be coherent, both must fall within the Johnson exclusion. Lady Hales approach would treat damages as recoverable at large for any breach of any contractually provided disciplinary procedure, irrespective of whether dismissal followed or led to the loss claimed. For reasons indicated in paras 90 to 94 above, I do not agree with that approach. The case of an employee with an express contractual right not to be dismissed save for cause is not before us, and gives rise to different issues to those which are. Damages for wrongful dismissal in breach of such a contract would on the face of it be measured on the basis that the contract would have continued unless and until the employee left, retired or gave cause for dismissal (in relation to the prospects of all of which an assessment would have to be made), but questions would no doubt also arise as to whether the employee had accepted or had to accept the dismissal and/or had to mitigate or had mitigated his or her loss. In view of my conclusion on the main issues, it is unnecessary to express any view about the decision of the Court of Appeal in Gunton v Richmond on Thames London Borough Council [1981] Ch 448, or in particular the so called Gunton extension, whereby the damages awarded for wrongful dismissal in that case were calculated by adding the one months contractual notice period to a notional period which a proper disciplinary process would have taken. The Trust did not appeal against Nicol Js decision to award Mr Edwards damages in accordance with the Gunton extension. Before the Supreme Court the Trust simply put a question mark in principle against the correctness of the extension. Mr Edwards and Mr Bothams Cases sought to distinguish Gunton on its facts as well as to draw some support, for a proposition that damages can be recoverable at large, from the recovery under the Gunton extension of damages calculated by reference to the notional period of a proper disciplinary process. I do not think that Gunton lends any real weight to that contention. Indeed, the claimant in Gunton was by amendment seeking damages continuing until his normal retirement age (subject only to the contingencies of redundancy or dismissal under a proper disciplinary process). These he was not awarded. The reasoning upon which the Gunton extension was based appears to operate independently of what would or might have been the outcome of a proper disciplinary process. It is not binding upon us. The extension may be difficult to reconcile with Lord Hoffmanns view in Johnson, para 66, that any contractual disciplinary procedures cannot have been intended to qualify the employers common law power to dismiss without cause on giving such [ie due contractual] notice. But, assuming it to be correct, it neither compels nor leads to any different conclusion to that which I have reached on the central issues whether Mr Edwards and Mr Botham can recover damages at large for the breaches of disciplinary procedures which they allege. I therefore agree with Lord Dyson that both the appeal of the Trust in the case of Mr Edwards and the appeal of the Ministry of Defence in the case of Mr Botham be allowed. LADY HALE In my view the Court of Appeal reached the right conclusions for the right reasons and both appeals should be dismissed. As the majority take a different view, I shall be brief. But I should perhaps declare an interest, as the only member of this court to have spent a substantial proportion of her working life as an employee rather than as a self employed barrister or tenured office holder. There is no reason at all to suppose that, in enacting the Industrial Relations Act 1971, Parliament intended to cut down upon or reduce the remedies available to employees whose employers acted in breach of their contracts of employment. Quite the reverse. Parliament intended to create a new statutory remedy for unfair dismissal which would supplement whatever rights the employee already had under his contract of employment. Parliament did that because most employees had very few rights under their contracts of employment. In particular, although many employees had a reasonable expectation that they would stay in their jobs unless and until there was a good reason to dispense with their services, most of them had no legal right to do so. The 1971 Act gave them the right not to be dismissed without what appeared at the time to be a good reason, determined after a fair process. They were to be compensated, within modest limits, not principally for their hurt feelings but for the loss of their job. That the main target of the new jurisdiction is the loss of the job is borne out by the later inclusion of the remedy of reinstatement. The common law would not normally give damages for the loss of a job. Then, as now, the great majority of contracts of employment gave both the employer and the employee the right to terminate their relationship on giving the prescribed period of notice. So if the employer terminated the relationship summarily, without giving the required period of notice, he would be liable to compensate the employee for that which he would have received had his contract been kept and no more: Addis v Gramophone Company Ltd [1909] AC 488, per Lord Atkinson at p 496. In other words, he would get his pay during the period of notice which he should have had and any contractual commission or bonus which he would have earned during that period. The majority of the House of Lords in Addis decided that the wrongfully dismissed employee was not entitled to any extra damages, either for the injury to his feelings caused by the way in which he had been dismissed or for the fact that his dismissal might make it more difficult for him to get another job. Lord Collins disagreed: he thought that damages for wrongful dismissal might include compensation for the difficulty caused in getting another job. But he was in a minority of one. The majority view was that the employee was entitled to the normal measure of damages in contract, to be placed in the position in which he would have been had his contract been properly performed, and any consequential loss within the contemplation of the parties, but no more. In short, there was no right to be compensated for the longer term consequences of the loss of a job. But let us suppose a contract of employment where the employer is only entitled to dismiss the employee for good cause. Rightly or wrongly, most University teachers employed under the contracts of employment which were current in the 1960s believed that they could only be dismissed for cause. If judges, instead of being office holders, were employed under contracts of employment, they could only be dismissed for cause. Under such a contract, if the employer dismisses the employee without good cause, the employee is entitled to be compensated for the consequences of the loss of the job. Obviously, the calculation of damages will have to take account of contingencies such as the possibility of good cause arising in the future. This is the application of the ordinary principles of the law of contract. However, a great many contracts of employment, perhaps now the vast majority, fall between these two extremes. They couple the right of either party to terminate it on giving a certain period of notice with a provision that, if the employer wishes to terminate it on disciplinary grounds, he must follow a prescribed procedure. Such contracts could be analysed in a number of ways. First, the contract could mean that the employee can be dismissed on notice for non disciplinary grounds, such as incapacity or redundancy or indeed for any other reason the employer might have for wanting to dismiss him; but that, if the employer wants to dismiss him on disciplinary grounds, he can only do so by following the required procedure. Failure to follow this procedure correctly would lead to damages for loss of the job. That was the result reached by the trial judge in Gunton v Richmond upon Thames London Borough Council [1981] Ch 448. Second, the contract could mean that if the employer wants to dismiss the employee on disciplinary grounds, he can only do so after following the prescribed procedure, but that having followed the prescribed procedure and irrespective of the result, he remains entitled to dismiss the employee by giving the usual period of notice. Thus the employee is entitled only to damages for the period during which the correct disciplinary process would have been taking place, plus the contractual notice period on top of that (presumably on the assumption that whatever findings the disciplinary process might have reached would not have justified a summary dismissal). That is the result reached by the Court of Appeal in Gunton (the difference of opinion in the Court of Appeal was as to the effect of a repudiatory breach of contract by the employer whether it automatically brought the contract to an end or whether it only did so if accepted by the employee, an important point which does not arise in this case but does arise in another which may shortly come before this Court). A third analysis is that the contract could mean that the employer always remains free to dismiss on giving the required period of notice, with or without following the contractual disciplinary process, so the employee is only ever entitled to the Addis measure of damages. The two cases before us both fall into that ambiguous category. There is a contractual notice period but also a contractual disciplinary process which (we must assume in Mr Edwards case) was not complied with. But in neither case are we concerned with damages for loss of the job as such. Mr Botham made a successful claim for unfair dismissal to the employment tribunal. Mr Edwards withdrew his. Both are concerned with the adverse consequences of the factual findings of a disciplinary process conducted in breach of contract. In Mr Edwards case, those findings are said to have made it impossible for him to obtain another post as an NHS consultant and to have adversely affected his earnings in private practice. In Mr Bothams case, those findings meant that the resulting dismissal had to be reported to the Department of Education and Skills, so that for a while he was placed on the register of people deemed unsuitable to work with children (the POCA list). These are losses which flow from the breach of contractually agreed disciplinary processes. Why should they not be recoverable in the ordinary way? Lord Phillips says that it is a matter of remoteness. These are not losses which fall within the reasonable contemplation of the parties when they make the contract. I have difficulty with that. Why include disciplinary processes within the employment contract if you do not expect that they will influence the employers decision? The losses flowing from the breach of a contractually agreed disciplinary process are much more directly related to the breach of contract than are the losses flowing from the dismissal as such, especially where the employer was entitled to dismiss whenever he wanted provided that he gave the contractual notice. There were no such contractually agreed processes in Addis, so the cases are readily distinguishable. But for the others in the majority, it is said that such damages would fall within the so called exclusion area created by the House of Lords decision in Johnson v Unisys Ltd [2001] UKHL 13, [2003] 1 AC 518, as further examined and explained in the House of Lords decision in Eastwood v Magnox Electric plc [2004] UKHL 35, [2005] 1 AC 503. Both of those cases concerned alleged breaches of the term, now implied into all contracts of employment, that neither party will, without good cause, conduct themselves in a manner calculated to destroy or seriously damage their relationship of mutual trust and confidence. Arnold J is generally credited as the first to recognise the existence of this implied term in Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84. If the employer acted in breach of the term, the employee was entitled to treat himself as constructively dismissed and thus to take advantage of the remedies for unfair dismissal which Parliament had now provided. Lord Nicholls explained in Eastwood v Magnox, at p 325, that this development of the common law was prompted by the 1971 Act, to enable employees to regard themselves as dismissed if their employers had conducted themselves in a way which no employee could be expected to tolerate. In Johnson v Unisys Ltd, the majority of the House of Lords decided that the implied term of trust and confidence did not give the employee a right of action for damages at common law resulting from the manner in which he had been dismissed. The House was persuaded that Parliament had provided the limited remedy of unfair dismissal to cover that ground and it would be wrong to develop the common law to circumvent the limits which Parliament had laid down. In Eastwood v Magnox Electric, on the other hand, the House recognised that if the employee could establish a cause of action for breach of the implied term independently of the dismissal, then that was not excluded by the statutory regime. However, as Lord Nicholls explained, at para 30, If identifying the boundary between the common law rights and remedies and the statutory rights and remedies is comparatively straightforward, the same cannot be said of the practical consequences of this unusual boundary. He went on to illustrate the difficulties and anomalies, not least that an employer might have to pay full compensation to an employee who was suspended in breach of the implied term but only the statutorily limited compensation to an employee who was dismissed: see Gogay v Hertfordshire County Council [2000] IRLR 703. This case is ample demonstration of the wisdom of Lord Nicholls words. The majority have held that the Johnson exclusion area covers the breach of express as well as implied terms in an employment contract and that the particular losses claimed here fall within the exclusion area. Lord Kerr and Lord Wilson also hold that the exclusion area extends to breach of express terms as well as the implied term; but they hold that it only extends to damage resulting from the dismissal itself, and not to damage resulting from the findings of the wrongful disciplinary process rather than the dismissal. This enables them to distinguish between Mr Edwards and Mr Botham. Mr Edwards is claiming for the adverse consequences of the findings made against him rather than for his dismissal as such. Mr Botham is claiming for the adverse consequences of being placed on the POCA list, which could only happen because of his dismissal. It is understandable to wish to distinguish between the two, as Mr Bothams claim is designed to circumvent the tribunals finding of contributory fault. It seems to me, however, that it has long been recognised that the law of contract is defective in not recognising the concept of contributory fault in certain circumstances: see, for example, the Law Commissions Report on Contributory Negligence as a Defence in Contract (1993, Law Com No 219). The solution to problems like that is principled and comprehensive law reform. We have seen how the Johnson exclusion area has been productive of anomalies and difficulties. There is no reason at all to extend it any further than the ratio of that case. As the Court of Appeal held in this case, it should be limited to the consequences of dismissal in breach of the implied term of trust and confidence. The House of Lords was persuaded that the common law implied term, developed for a different purpose, should not be extended to cover the territory which Parliament had occupied. In fact, the territory which Parliament had occupied was the lack of a remedy for loss of a job to which the employee had no contractual right beyond the contractual notice period. Parliament occupied that territory by requiring employers to act fairly when they dismissed their employees. But there was and is nothing in the legislation to take away the existing contractual rights of employees. There was and is nothing to suggest that Parliament intended to limit the entitlement of those few employees who did and do have a contractual right to the job, the right not to be dismissed without cause. It is for that reason that I am afraid that I cannot agree that the key distinction is between the consequences of dismissal and the consequences of other breaches. The key distinction must be between cases which must rely on the implied term to complain about the dismissal and cases which can rely on an express term. I am uncertain as to how the majority would regard the case of an employee with the contractual right only to be dismissed for cause. Like Lord Kerr, I am puzzled as to how it can be possible for an employee with a contractual right to a particular disciplinary process to enforce that right in advance by injunction but not possible for him to claim damages for its breach after the event. And I am also puzzled why it should make a difference if the right to claim damages is expressly spelled out in the contract. I would have dismissed both appeals. LORD KERR (WITH WHOM LORD WILSON AGREES) The Report of the Royal Commission on Trade Unions and Employers Associations 1965 1968 (the Donovan Report) was commissioned because of the perceived inadequacy of the law relating to dismissal of employees. This much, at least, is uncontroversial in this case. But how did it set about making recommendations to deal with those inadequacies? Did it recommend, and more particularly, did its offspring, the Industrial Relations Act 1971, provide, a comprehensive and exclusive scheme for the compensation of those who had been improperly dismissed from employment? Or was the 1971 Act a statute simply designed to provide wrongly dismissed employees with greater rights than the then only available claim in respect of their dismissal viz for wages that they would have earned during the notice period, while leaving intact any other contractual rights that might have been available to them? An insight into the essential purpose of the Donovan report can be obtained from a number of its passages, albeit that they do not speak directly to the issue that has been starkly expressed above. Paragraph 522 of the report (quoted by Lord Dyson at para 19 of his judgment) sets the scene. Beyond a claim for wrongful dismissal (with the limited redress that afforded) an employee had no rights whatever in relation to the circumstances in which he was dismissed. The only action that he could take about the manner of his dismissal, where that involved an imputation on his honesty, was for defamation. This was a situation which the Donovan report considered could no longer be tolerated. Those who were unfairly dismissed, because of the potentially massive impact that such an event had on their lives, needed to have something more to compensate them beyond the few weeks or even months wages that they would have earned during a notice period. The scene thus set is emphatically in the realm of dismissal from employment and the impact that dismissal has on the future fate of the dismissed employee. That theme emerges strongly from para 526 of the report: In practice there is usually no comparison between the consequences for an employer if an employee terminates the contract of employment and those which will ensue for an employee if he is dismissed. In reality people build much of their lives around their jobs. Their incomes and prospects for the future are inevitably founded in the expectation that their jobs will continue. For workers in many situations dismissal is a disaster. For some workers it may make inevitable the breaking up of a community and the uprooting of homes and families. Of course, at the time that this was written, contractual provisions in relation to disciplinary procedures, if not unheard of, were certainly not the staple of most contracts of employment. It is not surprising, therefore, that there was no reference to the consequences of a failure on the part of employers to adhere to such provisions, whether in relation to the termination of employment or as regards the disadvantages that an employee might suffer in terms of future employability, even if he was not dismissed. Significantly, there is no suggestion in the report that its authors contemplated a complete charter for all claims arising from dismissal from employment. On the contrary, the statement in para 529 that it [is] urgently necessary for workers to be given better protection against unfair dismissal strongly suggests that the primary purpose of the proposals for a change in the law was to enlarge the remedies available to employees rather than to confine the remedies to a single unitary system. Indeed, at para 551 the report states ideally, the remedy available to an employee who is found to have been unfairly dismissed is reinstatement in his old job. The committee actually considered whether the remedy for unfair dismissal should be confined to reinstatement. That stance would sit oddly with the notion that the legislation was designed to be a charter that would bring the curtain down on all manner of claims by employees following their dismissal. Now it is true that at para 553 it is stated: The labour tribunal should normally be concerned to compensate the employee for the damage he has suffered in the loss of his employment and legitimate expectations for the future in that employment, in injured feelings and reputation and in the prejudicing of further employment opportunities. (emphasis supplied). But, although at first sight this might be thought to indicate that actions for reputational damage should be subsumed into the unfair dismissal claim, I do not consider that this was the reports intention. Obviously, the fact that one has been dismissed from employment, whatever the circumstances of the dismissal, can carry a disadvantage in terms of future employability. It is right that this should be reflected in the recoverable compensation where the dismissal is unfair. But that circumstance does not alone warrant the conclusion that breach of a term of the contract which leads to a finding that there has been misconduct on the part of the employee and which leads in turn to dismissal cannot have contractual consequences beyond the enhancement of a claim for unfair dismissal. As a matter of elementary contract law, a term which binds an employer to a particular form of disciplinary hearing, if breached, will give rise to a claim on the part of the employee for the consequences of the breach. Indeed, the employers in these cases concede that such a term would found an application for an injunction to restrain its breach. But it is argued that when one comes to a remedy following the breach (as opposed to in anticipation of it) a claim for damages is not viable because of the effect of the 1971 Act and succeeding statutory provisions. It is conceivable that legislation can have the effect of removing or nullifying a contractual right and it will be necessary to examine the basis on which it is said that this has occurred in the present context. It is important, however, to start with the clear understanding, that, absent any such legislative intervention, there can be no question of terms in an agreement in relation to the conduct of disciplinary hearings being different from other contractual terms. This is so, in my view, whether they have become incorporated into the contract as a result of statutory requirement or are the product of independent agreement between the parties to the contract. Nothing in the 1971 Act suggests that Parliament intended to restrict an employees rights under his contract of employment. If, at the time of the enactment of that legislation, an employees contract of employment included a term that his employer would conduct disciplinary proceedings against him according to a particular set of rules and if, in breach of that term, the employer failed to adhere to those rules, any loss suffered by the employee in consequence would surely be compensatable on a breach of contract claim. As Hale LJ said in Saeed v Royal Wolverhampton Hospitals NHS Trust [2001] ICR 903 at para 12: The employer who is contemplating disciplinary action against an employee has to decide which procedure should be followed. If the employee thinks that the employer has made the wrong choice, he can try to have it changed in advance or seek damages after the event. The court will have to perform its usual task of construing the contract and applying it to the facts of the case. I did not understand either of the employers in these appeals to challenge the correctness of that statement of the law although it is, of course, right, as Lord Dyson has pointed out in para 44, that Saeed was decided before Johnson (Johnson v Unisys Ltd [2003] 1 AC 518). It will be necessary to say something presently about the effect that the later decision may have had on the reasoning in the earlier case but, for present purposes, Saeed is important authority for the proposition that breach of a contractual term in relation to the conduct of a disciplinary hearing could be relied on by an employee in a claim for damages. Lord Dyson has observed that Saeed was not a dismissal case but that does not affect the essential point. There is nothing unusual about breach of such a term giving rise to a claim for damages. The importance of Saeed to the present appeals lies in its recognition that the contractual right to a particular form of disciplinary proceeding is no different from other contractual rights. Ms Outhwaite QC suggested that a claim based on such a contractual right, if pursued after dismissal, would involve the creation of a new cause of action. I do not accept that. It is a perfectly conventional claim in contract involving the breach of an agreed term giving rise to loss on the part of the employee. If one accepts that there is a claim in contract if there is no termination of employment, an impossibly anomalous situation arises if the claim cannot be pursued when the employment is terminated. Suppose that someone who was the subject of disciplinary proceedings had an offer of extremely remunerative employment and that this was withdrawn as the result of adverse findings in the disciplinary proceedings but those findings did not result in his dismissal, would he be entitled to seek damages for the loss of his prospective new employment? Why not? If he has a contractual right to a properly constituted tribunal and can show that such a tribunal would not have made the findings that were instrumental in the offer of employment being withdrawn, can he not say that the failure to constitute a proper tribunal was a breach of a duty owed to him under contract? And if he can show that, as a direct consequence of that breach, he suffered a loss, can he not maintain an action for compensation for breach of contract? This does not represent a novel action or a novel development of the common law. It is merely the application of settled principles of contract law to a particular set of circumstances. Moreover, if an employee can maintain such an action if he is not dismissed, why should he not be able to maintain it if he is dismissed? The loss of the chance of more remunerative employment does not, in the mooted example, flow from the dismissal; it is the direct consequence of the adverse findings. There is no logical reason to draw a distinction between the situation where he has not been dismissed and that where he has been. The employers in these appeals attempt to confront this anomaly by saying that an injunction can be obtained and the employees legal rights should be confined to that. But what is the legal or juridical basis for that assertion? As a matter of first principle, an injunction is available on the basis that a legal wrong is anticipated. If that legal wrong materialises, why should it not be actionable at the suit of the person who could have obtained the injunction? This point, albeit in a somewhat different context, was expressed by Lord Nicholls in Eastwood and another v Magnox Electric plc and McCabe v Cornwall County Council and another [2005] 1 AC 503. In that case one of the claimants, having obtained the statutory maximum compensation for unfair dismissal, sought damages for psychiatric injury caused by the defendant employers suspension of him and its failure to inform him of allegations made against him or to carry out a proper investigation of those allegations. This was said to represent a breach of the necessary relationship between employer and employee of trust and confidence and breach of the employers duty to provide a safe system of work. At para 27 Lord Nicholls said: If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. In the present appeals, on Mr Edwards case, he had a contractual right to have his disciplinary hearing conducted by a tribunal constituted as stipulated in Disciplinary procedures for Hospital and Community Medical and Dental Staff (HC(90)9). At what point did this right (which for the purposes of the appeal, we must assume existed) give rise to a cause of action? Mr Edwards claims that there was a breach of the contractual right as soon as the wrongly constituted panel was convened. Did the cause of action arise then? Or did it first materialise when the decision to dismiss him was taken? It might be argued that Mr Edwards suffered no loss until he was summarily dismissed but this seems to me to take too narrow a view of the position. The Trust accepts that, if the facts as he asserts them are established, Mr Edwards could have applied for an injunction to prevent the tribunal from considering his case. That (rightly made) concession must proceed on the premise that, on those facts, he already had a cause of action at that stage. On Lord Nicholls analysis in Eastwood, therefore, if Mr Edwards can establish his case on the pleaded factual assertions, he had a cause of action at law before his dismissal which should remain unimpaired by his subsequent dismissal. Mr Bothams case is somewhat different. In the agreed Statement of Facts and Issues in his case it is stated that [a]s a consequence of the dismissal for gross misconduct, Mr Botham was reported to the Department of Education and Skills and was placed on the register of persons deemed unsuitable to work with children (emphasis supplied). The reputational damage suffered by Mr Botham is therefore directly linked to his dismissal rather than any defect in the procedures which led to it. The employers in both cases argue, however, that both involve claims for damages arising from the unfair manner of their dismissal and that the reasoning in the Johnson and Eastwood cases preclude such claims. It is therefore necessary to look more closely at both decisions. As Lord Dyson has pointed out (in paras 19 21), the background to the 1971 Act and the Donovan report was that at common law an employee was not entitled to recover damages in respect of the manner of his dismissal. Moreover, an employee could only recover damages if he was actually dismissed. If he had chosen to leave employment because of mistreatment by his employer, he could not maintain an action for wrongful dismissal. In mitigation of the harshness of this rule, the courts developed the concept of the implied term of mutual trust and confidence which, shortly stated, stipulates that an employment contract is subject to the implied term that the parties to it may not conduct themselves in a manner likely to destroy the confidence and trust that is essential to the relationship of employer and employee: Mahmud v Bank of Credit and Commerce International SA [1998] AC 20. It was the concept of the implied term of mutual trust and confidence which predominated in Johnson. The claimant sought to rely on such a term to promote a claim at common law relating to the manner of his dismissal. He alleged that because of the way in which he had been dismissed, he had suffered a mental breakdown and was unable to work. His claim was therefore inextricably, indeed uniquely, linked to the manner of his dismissal. And the manner of his dismissal was in turn said to be unlawful because it was in breach of the implied term of mutual trust and confidence. The issues which the House of Lords had to squarely face, therefore, were (i) whether the implied term of mutual trust and confidence could be used as a foundation for a claim that focused exclusively on the manner in which the employee was dismissed; and (ii) whether a common law action claiming damages could be maintained on that basis, notwithstanding that Parliament had legislated to provide a comprehensive code for compensation of unfair dismissal claims. In dismissing the employees appeal, Lord Nicholls said in para 2 that a common law right embracing the manner in which an employee is dismissed cannot satisfactorily coexist with the statutory right not to be unfairly dismissed. At para 47 Lord Hoffmann suggested that it would be jurisprudentially possible to imply a term which would give a remedy in Mr Johnsons case but he doubted the wisdom of doing so. This was not the basis on which he dismissed the appeal, however. His reasons for doing so are contained in para 54: The remedy adopted by Parliament was not to build upon the common law by creating a statutory implied term that the power of dismissal should be exercised fairly or in good faith, leaving the courts to give a remedy on general principles of contractual damages. Instead, it set up an entirely new system outside the ordinary courts, with tribunals staffed by a majority of lay members, applying new statutory concepts and offering statutory remedies. Many of the new rules, such as the exclusion of certain classes of employees and the limit on the amount of the compensatory award, were not based upon any principle which it would have been open to the courts to apply. They were based upon policy and represented an attempt to balance fairness to employees against the general economic interests of the community. At para 79 Lord Millett suggested that, if the 1971 Act and subsequent legislation in this field had not been enacted, the courts might well have developed the law by imposing a more general obligation upon an employer to treat his employee fairly even in the manner of his dismissal. He explained why this had not been necessary in para 80: the creation of the statutory right has made any such development of the common law both unnecessary and undesirable. In the great majority of cases the new common law right would merely replicate the statutory right; and it is obviously unnecessary to imply a term into a contract to give one of the contracting parties a remedy which he already has without it. In other cases, where the common law would be giving a remedy in excess of the statutory limits or to excluded categories of employees, it would be inconsistent with the declared policy of Parliament. In all cases it would allow claims to be entertained by the ordinary courts when it was the policy of Parliament that they should be heard by specialist tribunals with members drawn from both sides of industry. And, even more importantly, the coexistence of two systems, overlapping but varying in matters of detail and heard by different tribunals, would be a recipe for chaos. All coherence in our employment laws would be lost. Lord Dyson has suggested that the ratio of Johnson is that the implied term of trust and confidence cannot be extended to allow an employee to recover damages for loss arising from the manner of his dismissal (para 24). Moore Bick LJ in the Court of Appeal in Edwards case cast it in slightly different terms. At para 23 of his judgment he said: the ratio is that the common law does not imply into a contract of employment a term that the employer will not act unfairly towards the employee in relation to his dismissal and that the courts are not at liberty to develop the common law implied term of trust and confidence in order to give rise to such an obligation. I would prefer to express the ratio in terms that more clearly recognise the two separate aspects of the decision. In the first place, the House of Lords rejected the notion that the implied term of mutual trust and confidence had any role in determining the nature of the employers obligations at the time of the dismissal of the employee. Secondly, it concluded that compensation for loss flowing from the manner in which an employee is dismissed must be sought within the statutory scheme devised by Parliament in the 1971 Act and continued in successor enactments. It seems to me that it is the latter of these two which is the more relevant to the issues that arise on this appeal. Importantly, I do not construe anything in the opinions in Johnson as casting doubt on the correctness of Hale LJs statement in Saeed that choice of the wrong form of disciplinary action can give rise to a claim for damages. Indeed, para 44 of Lord Hoffmanns speech would appear to contemplate precisely that type of action. He was there discussing the effect of Addis v Gramophone Co Ltd [1909] AC 488 (in which it had been held that if the way in which an employee was dismissed constituted an imputation on his honesty he could not except through an action in defamation obtain any redress). On that subject, Lord Hoffmann said this: if wrongful dismissal is the only cause of action, nothing can be recovered for mental distress or damage to reputation. On the other hand, if such damage is loss flowing from a breach of another implied term of the contract, Addiss case does not stand in the way. (emphasis supplied) A claim for breach of contract arising from the employers selection of the wrong form of disciplinary proceeding need not be a claim for unfair or wrongful dismissal. The choice of the wrong procedure might lead to dismissal but if the employer is contractually bound to follow a particular route, his failure to do so will give rise to a cause of action which can be entirely independent of any claim in respect of termination of employment. The two aspects of the Johnson decision are reflected in the opinions of the House of Lords in the later cases of Eastwood and McCabe. Perhaps significantly, at para 8 of his opinion, Lord Nicholls characterised the claim in Johnson as one which relied on breach of the trust and confidence implied term, not as a foundation for a statutory claim for unfair dismissal or as a foundation for a claim for damages unrelated to dismissal, but as a foundation for a claim at common law for unfair dismissal. It is clear from this and other statements made by Lord Nicholls that reliance on the implied term in a claim for damages unrelated to dismissal would be viable. It was because Mr Johnson's claim was founded on the fact that he had been dismissed, and the trust and confidence implied term could not be applied to dismissal itself that it was bound to fail see para 10 of Eastwood. In the most important part of his speech in Eastwood (at least, so far as the present appeals are concerned) in paras 27 29, Lord Nicholls discussed what he described as the boundary line drawn by the Johnson decision. I have already quoted from para 27 (at para 135 above). It is now necessary to set this passage out in full: The boundary line 27 Identifying the boundary of the Johnson exclusion area, as it has been called, is comparatively straightforward. The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. An employees remedy for unfair dismissal, whether actual or constructive, is the remedy provided by statute. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition, in law such a cause of action exists independently of the dismissal. 28 In the ordinary course, suspension apart, an employers failure to act fairly in the steps leading to dismissal does not of itself cause the employee financial loss. The loss arises when the employee is dismissed and it arises by reason of his dismissal. Then the resultant claim for loss falls squarely within the Johnson exclusion area. 29 Exceptionally this is not so. Exceptionally, financial loss may flow directly from the employers failure to act fairly when taking steps leading to dismissal. Financial loss flowing from suspension is an instance. Another instance is cases such as those now before the House, when an employee suffers financial loss from psychiatric or other illness caused by his pre dismissal unfair treatment. In such cases the employee has a common law cause of action which precedes, and is independent of, his subsequent dismissal. In respect of his subsequent dismissal he may of course present a claim to an employment tribunal. If he brings proceedings both in court and before a tribunal he cannot recover any overlapping heads of loss twice over. A number of important principles can be distilled from these paragraphs: i) If a cause of action is in existence before dismissal, it is not extinguished by subsequent dismissal. As I understand Lord Nicholls opinion, that statement holds true even if the dismissal is consequent on the state of affairs that gave rise to the cause of action; ii) If financial loss occurs (as it normally will in a dismissal situation) from the dismissal itself, such loss is not recoverable other than by a claim for unfair dismissal. Although Lord Nicholls does not address the question directly (since he did not need to do so), it seems to me to be consistent with his opinion that, to be thus excluded, the financial loss must flow solely from dismissal; iii) Where financial loss flows directly from an employers failure to act fairly (or by his failure to abide by the terms of the contract of employment) even though that failure relates to steps taken which lead to dismissal, it is recoverable at the suit of the employee other than by an unfair dismissal claim. Of course, Lord Nicholls was careful to point out that if an employee brings proceedings in court and before the tribunal, he cannot recover overlapping heads of loss twice over but he did not suggest that separate claims arising from the same set of circumstances could not be brought. The same set of circumstances can give rise to an unfair dismissal claim and a claim for breach of contract. Mr Edwards experience perfectly exemplifies this. On his case, the adverse findings made by the wrongly constituted tribunal led to his dismissal but they also caused the reputational damage which, he says, causes his ongoing financial loss. It is a fundamental error, his counsel argues, to conclude that, because the findings led to the dismissal, the financial loss caused by the findings must be subsumed in his unfair dismissal claim. On that argument I believe that Miss ORourke is entirely right. Lord Dyson has said in para 39 of his judgment that Parliament could not have intended that the incorporation of provisions in relation to disciplinary procedures into contracts of employment would give rise to a common law claim for damages. It is not clear why this should be so. Contractual terms, whether they are the product of incorporation or independent agreement, should have contractual force. And if it is the case that breach of a contractual term, whether or not it has been incorporated by statute, can give rise to a cause of action which is quite separate and distinct from an unfair dismissal claim, why should it be assumed that Parliament intended to take away the right to such a cause of action? Lord Dyson says that this is to be necessarily inferred from the statutory background but this, with respect, is a circular argument, depending as it does on the proposition that Parliament intended that the legislation relating to unfair dismissal should provide a comprehensive charter for all claims made by an employee following dismissal. In a further passage in para 39 Lord Dyson states that unless the contracting parties expressly agree they are to be taken as not having intended that a failure to comply with contractually binding disciplinary procedures will give rise to a common law claim for damages. Thus, if they do agree that terms of the contract should have normal contractual force and record that agreement, a common law claim for damages is feasible but if they fail to expressly state that they intend that a contractually binding term should have conventional contractual force, then it is to be treated as unenforceable by the normal route of a claim for damages. This seems a curious result and I am unable to understand on what basis it can be reached unless for some unstated public policy reason. And if it is the case that the proposition is underpinned by a public policy consideration, it seems highly curious that it can be displaced by the express agreement of the parties. In Mr Edwards case Lord Dyson has said that it is impossible to divorce the findings on which he seeks to found his claim for reputational damage from the dismissal when the findings which allegedly caused the reputational damage also constituted the reasons for the dismissal (para 55). In my respectful view, this conflates two quite distinct and readily separable sets of consequences. The findings, on Mr Edwards case, were the reasons that he was dismissed. But, quite independently of the dismissal, those findings, according to Mr Edwards, also did enormous damage to his reputation. Lord Dyson appears to accept (in para 59) that if Mr Edwards had not been dismissed but had merely been suspended, and had been able to establish the facts needed to sustain his claim for reputational damage, he would have had a perfectly viable claim for breach of contract. In such a scenario, the reputational damage claim would not have depended on the fact of suspension; it would have had a quite separate existence. I cannot accept that it does not have an equally separate existence from the fact of dismissal. As I have said, however, (at para 137 above) Mr Bothams case is different. It is accepted that the reputational damage which he is alleged to have suffered was inextricably linked to the fact of his dismissal. His cause of action in respect of that reputational damage did not exist before he was dismissed, therefore. Such financial loss as he may have suffered as a consequence is the result of his dismissal. I consider, therefore, that compensation for damage to his reputation could only have been sought as part of his unfair dismissal claim. For these reasons, I would dismiss the appeal in Mr Edwards case but allow the appeal in the case of Mr Botham.	The central issue in these appeals is whether at common law an employee can recover damages for loss arising from the unfair manner of his dismissal in breach of an express term of an employment contract. Each of Mr Edwardss and Mr Bothams employment contracts contained express terms governing the procedure for dismissal in cases of misconduct and each were summarily dismissed from their employment as, respectively, consultant orthopaedic surgeon and youth community worker [3], [15]. In Mr Edwards case, disciplinary proceedings were instituted against him in December 2005. He was alleged to have undertaken an inappropriate internal examination of a female patient and then denied that the examination had taken place [4]. In February 2006, a disciplinary hearing was held and the panel decided that he should be summarily dismissed for gross personal and professional misconduct [5]. By a claim issued in the High Court in August 2008, Mr Edwards claimed damages for breach of his employment contract and its wrongful termination. Among other procedural breaches, he alleged that the disciplinary panel had not been constituted in line with the applicable policy, which formed a term of his contract. His case was that, if the panel had included a clinician of the same discipline as him, his contract would not have been terminated. His preliminary schedule of loss alleged that he lost earnings (past and future) of over 3.8 million [9]. Mr Botham was suspended from work in December 2002 and was charged with gross misconduct for behaving inappropriately in relation to two teenage girls. Following disciplinary proceedings, in September 2003 he was summarily dismissed for gross misconduct. Because his misconduct was in relation to young people, he was placed on the list of persons deemed unsuitable to work with children under the Protection of Children Act 1999 (the POCA list) [14]. Mr Botham brought proceedings in respect of his dismissal in the employment tribunal. In May 2007, it held he had been unfairly dismissed and his summary dismissal was a breach of contract. In relation to the unfair dismissal, it found that the Ministry of Defence (MoD) had breached express terms of his contract set out in the Discipline Code found in the MoDs Personnel Manual [15]. The tribunal awarded him 7,000 loss of salary and benefits for his notice period, a basic award of 1,989 and a compensatory award of 53,500. His name was removed from the POCA list [16]. Mr Botham then issued proceedings in the High Court seeking damages for breach of the express terms of his contract. Relying on the findings of the tribunal, he alleged that the MoD, in conducting the disciplinary process, failed to comply with provisions of the Disciplinary Code, by reason of which he suffered a loss of reputation, was put on the POCA list and prevented from obtaining further employment in his chosen field. The Supreme Court by a majority allows the appeal. Employees may not recover damages for loss suffered as a result of a breach of a term in their employment contract as to the manner of their dismissal unless the loss can be said to precede and be independent of the dismissal. Compensation for the manner of dismissal is limited to what they may recover pursuant to the Employment Rights Act 1996 (the 1996 Act). Lord Dyson gives the leading judgment with which Lord Mance (adding further comments) and Lord Walker agree. Lord Phillips agrees that the appeals should be allowed, but for different reasons. Lady Hale and Lords Kerr and Wilson dissent. In Johnson v Unisys Ltd [2001] UKHL 13, the House of Lords held that loss arising from the unfair manner of dismissal is not recoverable as damages for breach of the implied term of trust and confidence in employment contracts: it falls within what has been called the Johnson exclusion area [1]. By the time of the report of the Royal Commission on Trade Unions and Employers Associations 1965 1968 (the Donovan report) it was settled law that an employee was not entitled to recover damages in respect of the manner of his dismissal. The Donovan report recommended that the law should be changed and that statute should establish machinery to safeguard against unfair dismissal [21]. Parliament gave effect to this recommendation in the Industrial Relations Act 1971. The relevant provisions are now contained in the 1996 Act. But Parliament placed significant limitations on the ability of an employee to complain of unfair dismissal, such as the three month time limit for bringing a claim, and on the remedies available: there is a cap on the level of the compensatory award (now 68,400). Therefore, Parliament decided to give a remedy which was less generous than that which the common law would give for breach of contract in the ordinary way [19] [23]. In each legislative modification to the unfair dismissal scheme, Parliament linked failure to comply with disciplinary procedures with the outcome of unfair dismissal proceedings; the provisions about disciplinary procedure were intended to operate within the scope of the law of unfair (not wrongful) dismissal [30] [37]. It follows that, if provisions about disciplinary procedures are incorporated as express terms of an employment contract, they are not ordinary contractual terms. Parliament intended such provisions to apply to employment contracts to protect employees from unfair dismissal. It has specified the consequences of a failure to comply in unfair dismissal proceedings. It could not have intended that they would also give rise to a common law claim for damages. Unless the parties express otherwise, they are taken not to intend that a failure to comply with contractual disciplinary procedures will give rise to a common law claim for damages [37] [39],[94]. This is regardless of whether the term is express or implied. A dismissal may be unfair for a variety of reasons and any such complaint was intended by Parliament to be adjudicated on by the specialist employment tribunal, not that an employee could choose to pursue his complaint of unfair dismissal in the ordinary courts, free from the limitations carefully crafted by Parliament [40]. However, other remedies, such as injunction, which do not cut across the statutory scheme, are not excluded [44]. Whether individual cases fall within the Johnson exclusion area is a matter of fact and depends on whether the procedural breach forms part of the dismissal process: [51]. Mr Edwards dismissal flowed from the panels erroneous findings, which flowed from its improper constitution. Likewise, Mr Botham alleges that the loss of reputation was caused by the dismissal itself. Both cases therefore fall within the Johnson exclusion area [55] [59], [99].
The financial crisis of 2007 2008 revealed systemic weaknesses in the European banking system and the lack of an adequate legal framework for rescuing failing banks in some member states of the European Union. The result, after a long period of deliberation, was the European Bank Recovery and Resolution Directive 2014/59/EU (or EBRRD). The directive required member states to confer on their domestic Resolution Authorities (usually the Central Bank) certain minimum powers (or tools) for reconstructing the businesses of failing credit institutions and investment firms. One of the tools was the bridge institution tool, which is dealt with in section 3 (articles 40 41) of the EBRRD. This required designated national Resolution Authorities to have the power to transfer to a bridge institution any assets, rights or liabilities of a failing credit institution. The present appeal is about the recognition in the United Kingdom of measures by a foreign Resolution Authority in accordance with its own national legislation implementing the EBRRD. Any pan European scheme for dealing with the systemic risks of bank failures must depend for its efficacy on the widest possible recognition of a home states measures in other jurisdictions where banks in the course of reorganisation may have interests or assets or under whose laws it may have contracted. The EBRRD dealt with this issue mainly by amending the earlier Directive 2001/24/EC on the Reorganisation and Winding up of Credit Institutions (which I shall call the Reorganisation Directive). The Reorganisation Directive applied to credit institutions in the course of reorganisation or winding up in a member state. It provided for their assets and liabilities to be dealt with in a single process under the law of the home member state, and for the legal consequences to be recognised in all other member states, irrespective of any other relevant law. The EBRRD amended the Reorganisation Directive so that it applied to measures taken in accordance with the new tools with which member states were required to equip themselves. In addition, the EBRRD made supplementary provision for co operation among member states in giving effect to those measures. Oak Finance and Banco Esprito Santo SA The appellants sue as the assignees of the rights of Oak Finance Luxembourg SA. On 30 June 2014, Oak entered into a facility agreement with a Portuguese commercial bank, Banco Esprito Santo SA (BES), through the latters Luxembourg branch, under which it agreed to lend it about $835m. The facility agreement was governed by English law and provided for the English courts to have exclusive jurisdiction in respect of any dispute arising out of or in connection with this Agreement. The entire facility was drawn down on 3 July 2014. The first scheduled repayment, amounting to $52,860,814.22, was due on 29 December 2014. It shortly became clear, however, that BES was in serious financial difficulties. On 30 July 2014, BES reported losses for the first half of 2014 exceeding $3.5 billion, and on the following day applied to Banco de Portugal, the Central Bank of Portugal, for emergency liquidity assistance. Banco de Portugal is the designated Resolution Authority for Portugal for the purpose of the EBRRD. The relevant terms of the EBRRD had been incorporated into Portuguese law by various provisions added by amendment to the Banking Law (Regime Geral das Instituies de Crdito e Sociedades Financeiras). Articles 145 G, 145 H and 145 I of the Banking Law (as amended) implemented the provisions concerning the bridge institution tool. On 3 August 2014, the Central Bank decided to invoke these provisions in order to protect depositors funds. By a Deliberation published on that date it incorporated Novo Banco SA to serve as the bridge institution, and transferred to it the assets and liabilities of BES specified in Annexes 2 and 2A. Annex 2 specified all assets and liabilities recorded in its accounts with certain exceptions. Under article 145 H(2) of the Banking Law, no liability could be transferred to a bridge institution if it was owed to an entity holding more than 2% of the original credit institutions share capital. An exception to that effect was accordingly included as paragraph (b)(i)(a) of Annex 2 of the Central Banks decision. Annex 2A was the balance sheet of BES as at 30 June 2014 adjusted to the time of transfer to show what was then understood to be the value of the transferred assets and liabilities. The Oak liability was not mentioned there by name, but it was included in the totals for liabilities. There followed a number of further decisions of the Central Bank adjusting the transfer of both assets and liabilities as investigation of BESs affairs proceeded. One of these concerned the Oak liability. On 22 December 2014, a week before the due date of the first scheduled repayment of the Oak loan, an internal memorandum addressed to the Board of the Central Bank recorded that although it had originally been thought that the Oak liability was eligible for transfer to Novo Banco, subsequent investigations suggested (i) that Oak had entered into the facility agreement on behalf of Goldman Sachs, and (ii) that Goldman Sachs held more than 2% of BESs share capital. In these circumstances, the Board of the Central Bank reached a decision later that day. The document recording the decision recites that: there are serious and grounded reasons to justify the understanding that Oak Finance, in granting this loan, acted on account of Goldman Sachs International, an entity in relation to which serious and grounded reasons also exist to consider that it falls under paragraph a) of no 2 of article 145 H of the [Banking Law]. The operative part of the decision, which follows, is in these terms: (a) Banco Esprito Santos liability towards Oak Finance pursuant to the loan agreement of 30 June 2014 was not transferred to Novo Banco; (b) This decision is effective as of 3 August 2014; (c) Novo Banco and Banco Esprito Santo must adapt their accounting records to the present decision and act in accordance with it. Goldman Sachs objected. They contended that while they had arranged the facility agreement they were not the true lenders. Nor were they holders of more than 2% of BESs share capital. The Central Bank did not accept either point. On 11 February 2015, its Board resolved to maintain its decision of 22 December 2014. The minutes record Goldman Sachs objection and the Central Banks view that it disclosed no grounds for departing from the decision. But it recites that any issue as to the eligibility of the Oak loan for transfer to Novo Banco would ultimately have to be resolved by a court of law. There are current administrative law proceedings in Portugal in which the appellants challenge the Central Banks decision of 22 December 2014. These have not yet been resolved. The present proceedings On 26 February 2015, the appellants commenced the present actions against Novo Banco in the High Court in England for sums due in respect of the Oak loan. The basis of their claims was that liability on the Oak facility had been transferred to Novo Banco by the Central Banks decision of 3 August 2014. On that footing, Novo Banco was bound by the jurisdiction clause in the facility agreement. Novo Banco countered by applying to set aside service of the claim forms in both actions for want of jurisdiction, on the ground that it had not been transferred, principally because the decision of 22 December 2014 conclusively determined that that was so. This is, accordingly, a case in which the fact on which jurisdiction depends is also likely to be decisive of the action itself if it proceeds. For the purpose of determining an issue about jurisdiction, the traditional test has been whether the claimant had the better of the argument on the facts going to jurisdiction. In Brownlie v Four Seasons Holdings Inc [2018] 1 WLR 192, para 7, this court reformulated the effect of that test as follows: (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it. It is common ground that the test must be satisfied on the evidence relating to the position as at the date when the proceedings were commenced. Portuguese law There is, at least for the purposes of the jurisdiction issue, a large measure of common ground about the powers of the Central Bank and the legal status of its successive decisions as a matter of Portuguese law. The decisions of 3 August and 22 December 2014 were administrative acts governed by rules of administrative law which, as in other civil law systems, are distinct from the rules which govern civil matters. It is agreed that both decisions were valid acts establishing legal rights and obligations of third parties in accordance with their terms. It is agreed that a public authority may amend its own administrative act prospectively or interpret it with effect from the time it was made. It is agreed that a public authority may by a subsequent decision implement its own administrative act or apply it to a particular case. Finally, it is agreed that administrative acts are reviewable by the courts of Portugal, which may annul them on the ground that they were based on an erroneous factual assumption or on an error of law. But unless and until they are annulled, they remain binding and directly effective as a matter of law. The parties are not agreed about the meaning of the December decision. They are, however, agreed that it took effect according to its terms from 3 August 2014 and that subject to annulment by a Portuguese court it conclusively determined as a matter of Portuguese law that the Oak liability was not transferred to Novo Banco. The appellants case is that while the legal effect of the August decision in Portugal falls to be recognised in England, the legal effect of the December decision does not. Recognition: the Directives The rescue of failing financial institutions commonly involves measures affecting the rights of their creditors and other third parties. Depending on the law under which the rescue is being carried out, these measures may include the suspension of payments, the writing down of liabilities, moratoria on their enforcement, and transfers of assets and liabilities to other institutions. At common law measures of this kind taken under a foreign law have only limited effect on contractual liabilities governed by English law. This is because the discharge or modification of a contractual liability is treated in English law as being governed only by its proper law, so that measures taken under another law, such as that of a contracting partys domicile, are normally disregarded: Adams v National Bank of Greece SA [1961] AC 255. By way of exception, however, the assumption of contractual liabilities by another entity by way of universal succession may be recognised in England: National Bank of Greece & Athens SA v Metliss [1958] AC 509. The National Bank of Greece litigation arose out of the reconstruction under Greek law of the liabilities of an insolvent Greek bank which had issued bonds governed by English law, a context very similar to that of the present appeal. As regards banks, however, the law declared in those two decisions of the House of Lords was superseded by the Credit Institutions (Reorganisation and Winding Up) Regulations (SI 2004/1045), which gave effect in English law to the Reorganisation Directive, and by the Bank Recovery and Resolution (No 2) Order (SI 2014/3348) which amended the 2004 order to reflect the changes made to the Reorganisation Directive by the EBRRD. The purpose of the Reorganisation Directive is apparent from its recitals. Recitals (6), (7) and (16) are in the following terms: (6) The administrative or judicial authorities of the home member state must have sole power to decide upon and to implement the reorganisation measures provided for in the law and practices in force in that member state. Owing to the difficulty of harmonising member states laws and practices, it is necessary to establish mutual recognition by the member states of the measures taken by each of them to restore to viability the credit institutions which it has authorised. It is essential to guarantee that the reorganisation (7) measures adopted by the administrative or judicial authorities of the home member state and the measures adopted by persons or bodies appointed by those authorities to administer those reorganisation measures, including measures involving the possibility of a suspension of payments, suspension of enforcement measures or reduction of claims and any other measure which could affect third parties existing rights, are effective in all member states. (16) Equal treatment of creditors requires that the credit institution is wound up according to the principles of unity and universality, which require the administrative or judicial authorities of the home member state to have sole jurisdiction and their decisions to be recognised and to be capable of producing in all the other member states, without any formality, the effects ascribed to them by the law of the home member state, except where this Directive provides otherwise. The relevant substantive provision is article 3, which provides: Article 3 Adoption of reorganisation measures applicable law 1. The administrative or judicial authorities of the home member state shall alone be empowered to decide on the implementation of one or more reorganisation measures in a credit institution, including branches established in other member states. 2. The reorganisation measures shall be applied in accordance with the laws, regulations and procedures applicable in the home member state, unless otherwise provided in this Directive. They shall be fully effective in accordance with the legislation of that member state throughout the Community without any further formalities, including as against third parties in other member states, even where the rules of the host member state applicable to them do not provide for such measures or make their implementation subject to conditions which are not fulfilled. The reorganisation measures shall be effective throughout the Community once they become effective in the member state where they have been taken. Article 3 governs the recognition of reorganisation measures. Article 2, as amended by article 117(2) of the EBRRD, defines these as follows: reorganisation measures shall mean measures which are intended to preserve or restore the financial situation of a credit institution or an investment firm as defined in article 4(1), point (2) of Regulation (EU) No 575/2013 and which could affect third parties pre existing rights, including measures involving the possibility of a suspension of payments, suspension of enforcement measures or reduction of claims; those measures include the application of the resolution tools and the exercise of resolution powers provided for in Directive 2014/59/EU. Since it is not disputed that Banco de Portugal had power under Portuguese law to employ the bridge institution tool as it did, it is unnecessary to examine the detailed provisions of the EBRRD relating to the reconstruction of bank liabilities. For present purposes, the relevant provisions are those dealing with mutual recognition of the legal effects of measures taken in accordance with the tools and the provisions dealing with challenges to those measures in the courts of the home member state. As far as mutual recognition is concerned, recital (119) recites: (119) Directive 2001/24/EC of the European Parliament and of the Council provides for the mutual recognition and enforcement in all member states of decisions concerning the reorganisation or winding up of institutions having branches in member states other than those in which they have their head offices. That Directive ensures that all assets and liabilities of the institution, regardless of the country in which they are situated, are dealt with in a single process in the home member state and that creditors in the host member states are treated in the same way as creditors in the home member state. In order to achieve an effective resolution, Directive 2001/24/EC should apply in the event of use of the resolution tools both when those instruments are applied to institutions and when they are applied to other entities covered by the resolution regime. Directive 2001/24/EC should therefore be amended accordingly. Article 66 is a supplementary recognition provision dealing with (among other things) dispositions of assets and liabilities in the course of a reorganisation of a credit institution in its home state. It provides: Article 66 Power to enforce crisis management measures or crisis prevention measures by other member states. 1. Member states shall ensure that, where a transfer of shares, other instruments of ownership, or assets, rights or liabilities includes assets that are located in a member state other than the state of the resolution authority or rights or liabilities under the law of a member state other than the State of the resolution authority, the transfer has effect in or under the law of that other member state. 3. Member states shall ensure that shareholders, creditors and third parties that are affected by the transfer of shares, other instruments of ownership, assets, rights or liabilities referred to in paragraph 1 are not entitled to prevent, challenge, or set aside the transfer under any provision of law of the member state where the assets are located or of the law governing the shares, other instruments of ownership, rights or liabilities. Turning to proceedings to challenge measures taken in accordance with the tools, recitals (88) and (89) of the EBRRD recite the need for the decisions of a Resolution Authority to be subject to appeal to the courts on the ground (among others) of insufficient factual basis. Recitals (90) and (91) are in the following terms: (90) Since this Directive aims to cover situations of extreme urgency, and since the suspension of any decision of the resolution authorities might impede the continuity of critical functions, it is necessary to provide that the lodging of any appeal should not result in automatic suspension of the effects of the challenged decision and that the decision of the resolution authority should be immediately enforceable with a presumption that its suspension would be against the public interest. (91) In addition, where necessary in order to protect third parties who have acquired assets, rights and liabilities of the institution under resolution in good faith by virtue of the exercise of the resolution powers by the authorities and to ensure the stability of the financial markets, a right of appeal should not affect any subsequent administrative act or transaction concluded on the basis of an annulled decision. In such cases, remedies for a wrongful decision should therefore be limited to the award of compensation for the damages suffered by the affected persons. The corresponding substantive provision is article 85, which provides: Article 85 Ex ante judicial approval and rights to challenge decisions 1. Member states may require that a decision to take a crisis prevention measure or a crisis management measure is subject to ex ante judicial approval, provided that in respect of a decision to take a crisis management measure, according to national law, the procedure relating to the application for approval and the courts consideration are expeditious. 3. Member states shall ensure that all persons affected by a decision to take a crisis management measure, have the right to appeal against that decision. Member states shall ensure that the review is expeditious and that national courts use the complex economic assessments of the facts carried out by the resolution authority as a basis for their own assessment. 4. The right to appeal referred to in paragraph 3 shall be subject to the following provisions: (a) the lodging of an appeal shall not entail any automatic suspension of the effects of the challenged decision; (b) the decision of the resolution authority shall be immediately enforceable and it shall give rise to a rebuttable presumption that a suspension of its enforcement would be against the public interest. In paragraphs 3 and 4, a crisis management measure includes a resolution action: article 2(102). A resolution action includes the application of a resolution tool, or the exercise of one or more resolution powers: article 2(40). A resolution power refers to the powers under national law which are required in order to apply the resolution tools: articles 2(20) and 63. The judgments below Before Hamblen J, Novo Bancos case was that the effect of the December decision fell to be recognised in an English court by virtue of article 66 of the EBRRD. They did not rely on article 3 of the Reorganisation Directive. The judge approached the question in two stages: [2015] EWHC 2371 (Comm). He held, first, that it was sufficiently established for the purpose of jurisdiction (ie the claimants had the better of the argument) that Goldman Sachs held less than 2% of the share capital of BES and was not the real lender under the facility agreement. It followed that for the purpose of jurisdiction, it must be assumed that the Oak liability had been transferred to Novo Banco by the decision of 3 August 2014, there being (on that footing) no relevant exception covering it. That being so, he considered, secondly, that Novo Banco became party to the jurisdiction clause in the facility agreement on 3 August 2014. Novo Banco was therefore bound to submit to the English court any dispute arising out of or in connection with this Agreement, including the dispute about the effect of the December decision. On that footing he did not need to decide what the effect of the latter decision was, nor whether it fell to be recognised under article 66 of the EBRRD. These would be matters for trial. But in case he was wrong about that, he also held that article 66 did not require the recognition of the December decision in England because, whatever else it was, the December decision was not itself a transfer of assets. In the Court of Appeal the argument took a different turn as a result of the intervention of Banco de Portugal. Mr Howard QC, who appeared for them both in the Court of Appeal and before us, put at the forefront of his case on recognition article 3 of the Reorganisation Directive, which had received hardly any attention before Hamblen J. The significance of this is that article 3, unlike article 66 of the EBRRD, is not limited to requiring the mutual recognition of transfers. Mr Howards primary submission was, in summary, that the Directives required the recognition of the entire process of reorganisation under the EBRRD and that it was in principle wrong to consider the effect of the August decision independently of the December decision. Whatever the correct legal analysis of the December decision, an English court was bound to recognise its effect as a matter of Portuguese law, which was to determine conclusively that the Oak liability had not been transferred. The Court of Appeal allowed the appeal, substantially on that ground: [2016] EWCA Civ 1092; [2017] 2 BCLC 277. Application of the recognition provisions of the Directives The first thing that strikes one about the appellants submission is its inherent implausibility. The appellants accept, indeed assert, (i) that the August decision was a reorganisation measure entitled to recognition in England under article 3 of the Reorganisation Directive and (ii) that it was a transfer for the purpose of article 66 of the EBRRD. The result of separating the August decision from the December decision and giving effect only to the former is that in the eyes of an English court Portuguese law must be treated as having transferred the Oak liability to Novo Banco although it would not be so treated in the eyes of a Portuguese court. Since the ordinary purpose of any choice of law rule is to ascertain which legal rules should be applied in the relevant foreign jurisdiction, this is a paradoxical result. In assessing the appellants submission, the provision which is primarily relevant is article 3 of the Reorganisation Directive, as amended by the EBRRD to apply to reorganisation measures taken in the exercise of its various tools. Article 3 of the Reorganisation Directive, as its title declares, determines the applicable law to be applied to a reorganisation measure in England. Article 66 of the EBRRD is a more specific provision. Although its language may suggest some overlap with article 3 of the Reorganisation Directive it is, as its title declares, about enforcement. Its main purpose is to require other member states to take active steps to enforce transfers of assets or liabilities made in the course of a reorganisation in the home state and to prevent challenges to such transfers in their own jurisdictions. Two points need to be made about the Reorganisation Directive, and in particular about article 3. The first is that its purpose, as recital (119) of the EBRRD records, is to ensure that all assets and liabilities of the institution, regardless of the country in which they are situated, are dealt with in a single process in the home member state and that creditors in the host member states are treated in the same way as creditors in the home member state. This can be achieved only by taking the process as a whole and applying the legal effects attaching to it under the law of the home state in every other member state. It is not consistent with either the language or the purpose of article 3 that an administrative act such as the December decision, which affects the operation of a reorganisation measure under the law of the home state, should have legal consequences as regards a credit institutions debts which are recognised in the home state but not in other member states. This was the basis of both of the decisions of the Court of Justice on article 3 of the Reorganisation Directive. LBI hf v Kepler Capital Markets SA (Case C 85/12) (Judgment delivered on 24 October 2013) arose out of proceedings in France brought by a creditor of an insolvent Icelandic bank in the course of winding up in Iceland to attach a debt owed to the bank by Kepler. One of the questions referred to the CJEU was whether article 3 applied to an automatic statutory moratorium retrospectively introduced under the transitional provisions of an Icelandic statute, given that article 3 referred only to decisions of the home states administrative or judicial authorities. The CJEU answered that question by reference to the purpose of the Reorganisation Directive. The Court described that purpose as follows at para 22: At the outset, it must be borne in mind that, as is apparent from recital 6 in its preamble, Directive 2001/24 seeks to establish mutual recognition by the member states of the measures taken by each of them to restore to viability the credit institutions which it has authorised. That objective, and that of guaranteeing equal treatment of creditors, laid down in recital 16 to that directive, require that the reorganisation and winding up measures taken by the authorities of the home member state have, in all the other member states, the effects which the law of the home member state confers on them. The court went on, at para 39, to describe the Directive as establishing a system of mutual recognition of national reorganisation and winding up measures, without seeking to harmonise national legislation on that subject. It answered the question in the affirmative, because the effect of the transitional provisions was retrospectively to treat the judicial declaration of insolvency as ordering the moratorium. Similarly, in Kotnik v Dravni Zbor Republike Slovenije (Case C 526/14) [2017] 1 CMLR 753, one of the issues concerned the application of article 3 to a decision of the Slovenian central bank reconstructing the share and loan capital of an insolvent commercial bank. After referring to its analysis of the purpose of the Reorganisation Directive in LBI, the Court observed, at para 105: That objective entails that the reorganisation measures taken by the administrative or judicial authorities of the home member state, that is, the member state in which a credit institution has been authorised, must have, in all the other member states, the effects which the law of the home member state confers on them (see, to that effect, LBI EU:C:2013:697 at para 22). Secondly, an administrative act such as the August decision does not occur in a legal vacuum. It occurs in the context of a broader framework of public law. Article 3 does not only give effect to reorganisation measures throughout the Union. It requires them to be applied in accordance with the laws, regulations and procedures applicable in the home member state, unless otherwise provided in this Directive, and to be fully effective in accordance with the legislation of that member state. In this legal scheme, it cannot make sense for the courts of another member state to give effect to a reorganisation measure but not to other provisions of the law of the home state affecting the operation of a reorganisation measure. That is so, whether or not that other provision is itself a reorganisation measure. For these reasons I reject the proposition, which was fundamental to both the Judges analysis and the appellants case, that the effect of the August decision can be recognised without regard to the December decision. On the face of it, the December decision was not an interpretation of the August decision or an amendment of it, retrospective or otherwise. Nor was it a retransfer of a liability previously transferred to Novo Banco. It was a ruling that under the terms of article 145 H(2) of the Banking Law and paragraph (b)(i)(a) of Annexe 2 of the August decision, the Oak liability had never been transferred. But, like the courts below, I do not think that it matters what the correct analysis of the December decision is, provided that it is accepted (as it is) that as a matter of Portuguese law it is conclusive of that point unless and until annulled by a Portuguese administrative court. It follows from the agreed propositions of Portuguese law and from the requirement of article 3.2 of the Reorganisation Directive that an English court must treat the Oak liability as never having been transferred to Novo Banco. It was therefore never party to the jurisdiction clause. This makes it unnecessary to consider the alternative case advanced by Banco de Portugal and Novo Banco to the effect that the December decision was itself a reorganisation measure or an implied retransfer of the Oak liability to BES. A provisional decision? The appellants have an alternative case that even if the December decision is otherwise entitled to recognition in England, it should be disregarded on the ground that it was a provisional decision pending the final decision of a Portuguese administrative court on the questions whether Goldman Sachs was the true lender or a 2% shareholder in BES. The argument is that an English court should look to what the Portuguese administrative court would decide about those questions and not what the Central Bank has actually decided. Mr Rabinowitz QC, who appeared for Guardians of New Zealand Superannuation Fund and others, submitted that the Judges finding that the appellants had the better of the argument on those questions meant that we must assume that a Portuguese administrative court would decide them in the appellants favour. The first point to be made is that the December decision was not in terms a provisional decision. The Judge thought that Banco de Portugal had not stated or purported to find that the Oak liability is an Excluded Liability. He considered that the December decision simply asserted that there are serious and well grounded reasons so to conclude, while recognising that that was ultimately a matter for a court of law to determine. I respectfully disagree. He was referring to the recitals and not to the operative part of the decision. The minutes recited the Central Banks reasons for the decision, which were based on its current view of the facts. But the operative section determined that the Oak liability was not transferred to Novo Banco and directed that the accounting records of Novo Banco should be restated accordingly. It follows that the Appellants submission must be based on the mere fact that like any other administrative decision it was subject to review by a Portuguese administrative court. The appellants submission to this effect is based on the decision of the Court of Appeal in Guaranty Trust of New York v Hannay & Co [1918] 2 KB 623. The question at issue in this case was whether as a matter of New York law a particular bill of exchange was conditional. In previous proceedings on the same issue between the same parties a New York judge had held on demurrer that it was. Bailhache J and the Court of Appeal held that it was not. The ground of the decision was that the judgment was no more than evidence of New York law, and expert evidence put before the English courts showed it to be mistaken. The point was put with characteristic clarity by Scrutton LJ at p 667: Foreign law is a question of fact to an English Court; the judgment of a foreign judge is not binding on an English Court, but is the opinion of an expert on the fact, to be treated with respect, but not necessarily conclusive. In my opinion, this decision has no bearing on the present appeal. The issue in Guaranty Trust was not about the legal status of the New York judgment as a matter of New York law. The question was what the relevant rule of New York law was. That was a question of fact. In the present case, there is no issue about either the relevant content of Portuguese law or the status of the December decision, because it is agreed that as a matter of Portuguese law it determines creditors rights. The present issue is quite different, namely whether that decision is to be recognised as affecting rights under an English law contract. That is not a question of fact, but a question of private international law. True it is that the December decision was based on a factual premise which is being challenged in Portugal. But it does not matter for present purposes whether its factual premise was right or wrong. It is binding in Portuguese law in either case, unless and until it is set aside by a Portuguese court. No other conclusion would, as it seems to me, be consistent with the Directives. In the first place, it is not for an English court to decide what would amount to an appeal from an administrative act of the Portuguese Central Bank. Article 3(1) of the Reorganisation Directive provides that the implementation of a reorganisation measure such as the August decision is a matter for the administrative or judicial authorities of the home state alone. Consistently with that approach, article 85 of the EBRRD assigns appeals to the courts of the home state responsible for the reorganisation. Secondly, article 85(4) provides that an appeal is not to entail any automatic suspension of the challenged decision. This is because a banking reconstruction under the EBRRD requires decisive steps to be taken, often as a matter of urgency, which the authorities in other member states can act on. The scheme of the Directives would be undermined if the acts of a designated national Resolution Authority were open to challenge in every other member state simply because they were open to challenge in the home state. Reference to the Court of Justice of the European Union The relevant propositions of EU law are to my mind beyond serious argument. The decisive questions are questions of Portuguese domestic law, on which the parties are agreed. There is therefore no proper basis for a reference. Disposal I would dismiss the appeal.	The European Bank Recovery and Resolution Directive 2014/59/EU (EBRRD) amended Directive 2001/24/EC on the Reorganisation and Winding up of Credit Institutions (the Reorganisation Directive), so as to require member states to confer on their domestic Resolution Authorities certain tools for reconstructing failing credit institutions. One of the tools was the bridge institution tool, which required designated national Resolution Authorities to have the power to transfer to a bridge institution any assets, rights or liabilities of a failing credit institution. The Appellants are the assignees of the rights of Oak Finance Luxembourg SA (Oak). In June 2014, Oak entered into a facility agreement with a Portuguese bank, Banco Esprito Santo SA (BES), under which it agreed to lend BES approximately $835m (the Oak liability). The facility agreement was governed by English law and provided for the English courts to have exclusive jurisdiction over any dispute. The entire loan was advanced on 3 July 2014. BES made one scheduled payment of approximately $53m, but it shortly became clear that BES was in serious financial difficulties. The Central Bank of Portugal, which is the designated Resolution Authority for Portugal for the purposes of the EBRRD, decided to invoke the bridge institution tool to protect depositors funds in BES. By a decision dated 3 August 2014 (the August decision), it incorporated the Respondent (Novo Banco) to serve as the bridge institution and transferred specified assets and liabilities of BES to it, purportedly including the Oak liability. Under article 145H(2) of the Portuguese Banking Law, however, no liability could be transferred to a bridge institution if it was owed to an entity holding more than 2% of the original credit institutions share capital. By a decision dated 22 December 2014 (the December decision), the Central Bank determined that the Oak liability had never been transferred to Novo Banco, as it fell within the article 145H(2) prohibition. There are ongoing administrative law proceedings in Portugal in which the Appellants challenge the December decision, which have not yet been resolved. The Appellants commenced an action in the English courts for sums due in respect of the Oak loan, on the basis that the Oak liability had been transferred to Novo Banco by the August decision, and that Novo Banco was bound by the jurisdiction clause in the facility agreement. Novo Banco countered that the December decision conclusively determined that the liability had not been transferred to it. At first instance, relying on article 66 EBRRD, the judge found that the Oak liability had been transferred to Novo Banco by the August decision and that Novo Banco became party to the jurisdiction clause. The Court of Appeal allowed Novo Bancos appeal. Relying instead on article 3 of the Reorganisation Directive, it held that an English court was bound to recognise the effect of the December decision as a matter of Portuguese law, which was to determine conclusively that the Oak liability had not been transferred. The Supreme Court unanimously dismisses the appeal. Lord Sumption gives the lead judgment, with which the rest of the Court agrees. An English court is required by article 3 of the Recognition Directive to recognise the December decision, and must therefore treat the Oak liability as never having been transferred to Novo Banco. Novo Banco was therefore never party to the jurisdiction clause in the facility agreement. The provision which is primarily relevant to this appeal is article 3 of the Reorganisation Directive, which determines the applicable law to be applied to a reorganisation measure in England. Article 66 of the EBRRD is a more specific provision which concerns enforcement [22]. Lord Sumption makes two points about the Reorganisation Directive, particularly article 3. First, its purpose is to ensure that all assets and liabilities of the institution, regardless of the country in which they are situated, are dealt with in a single process in the home member state. This can be achieved only by taking the process as a whole and applying the legal effects attaching to it under the law of the home state in every other member state. It is not consistent with the language or the purpose of article 3 that an administrative act such as the December decision, which affects the operation of a reorganisation measure under the law of the home state, should have legal consequences as regards a credit institutions debts which are recognised in the home state but not in other member states. [24 26]. Second, article 3 does not only give effect to reorganisation measures throughout the Union, but requires them to be applied in accordance with the laws, regulations and procedures applicable in the home member state, unless otherwise provided in this Directive, and to be fully effective in accordance with the legislation of that member state. In this legal scheme, it cannot make sense for the courts of another member state to give effect to a reorganisation measure but not to other provisions of the law of the home state affecting its operation [27]. For these reasons, Lord Sumption rejects the proposition that the effect of the August decision can be recognised without regard to the December decision. It does not matter what the correct analysis of the December decision is, provided that it is accepted (as it is) that unless and until it is set aside, it is conclusive as a matter of Portuguese law that the Oak liability had never been transferred. It follows from the agreed propositions of Portuguese law and from the requirements of article 3(2) of the Reorganisation Directive that an English court must treat the Oak liability as never having been transferred to Novo Banco. Novo Banco was therefore never party to the jurisdiction clause [28]. Lord Sumption also rejects the Appellants alternative case that, even if the December decision is otherwise entitled to recognition in England, it should be disregarded on the ground that it was a provisional decision pending the final decision of a Portuguese administrative court. As a matter of Portuguese law, the December decision is binding in Portuguese law unless and until it is set aside by a Portuguese court [31 33]. Further, no other conclusion would be consistent with the Directives, particularly article 3 of the Reorganisation Directive, which provides that the implementation of a reorganisation measure such as the August decision is a matter for the administrative or judicial authorities of the home state alone, and article 85 of the EBRRD, which provides that an appeal is not to entail any automatic suspension of the challenged decision [34]. There is no basis for a reference to the CJEU, as the relevant propositions of EU law are beyond serious argument [35].
This case concerns the use in a criminal trial of evidence obtained by members of the public acting as so called paedophile hunter (PH) groups, and whether this is compatible with the accused persons rights under article 8 of the European Convention on Human Rights (the ECHR). PH groups impersonate children online to lure persons into making inappropriate or sexualised communications with them over the internet, and then provide the material generated by such contact to the police. 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. An adult member of a PH group, acting as a decoy, created a fake profile on the Grindr dating application using a photograph of a boy aged about 13 years old as a lure to attract communications from persons with a sexual interest in children. The appellant entered into communication with the decoy, who stated in the course of exchanges first on Grindr and continued on the WhatsApp messaging platform that he was 13 years old. In the belief that the decoy was a child, the appellant sent him a picture of his erect penis. The appellant also sent him messages to arrange a meeting. When the appellant arrived for the meeting, he was confronted by members of the decoys PH group who remained with him until the police arrived. Copies of the appellants communications with the decoy were provided to the police. The respondent, as public prosecutor, charged the appellant with offences related to sexually motivated communications with a child: (i) an offence of attempting to cause an older child (ie a child who has attained the age of 13 years, but has not yet attained the age of 16 years) to look at a sexual image, for the purposes of obtaining sexual gratification (contrary to section 33 of the Sexual Offences (Scotland) Act 2009 the 2009 Act); (ii) an offence of attempting to communicate indecently with an older child (contrary to section 34 of the 2009 Act); and (iii) an offence of attempting to meet with a child for the purpose of engaging in unlawful sexual activity (contrary to section 1 of the Protection of Children and the Prevention of Sexual Offences (Scotland) Act 2005 the 2005 Act). I will refer to these together as the charges. In each case, the charge was put in terms of an attempt to commit the offence, because the appellant believed the decoy was a child whereas he was in fact an adult. After indictment on the charges in Glasgow Sheriff Court, the appellant lodged a preliminary minute objecting to the admissibility of the evidence sought to be relied upon by the respondent on the basis that it had been obtained by covert means without authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA). The appellant also lodged a minute objecting to the admissibility of the evidence provided by the PH group on the basis that it was obtained covertly without authorisation or reasonable suspicion of criminality in violation of his rights under article 8. By a ruling dated 30 July 2018, after a hearing conducted on the basis of agreed facts (as set out below), the Sheriff repelled the appellants objections to the admissibility of the evidence provided by the PH group. Later, at a trial on 29 and 30 August 2018, the respondent led evidence from the decoy and two police officers. The appellant did not lead any evidence. He was convicted on each of the charges. At a later hearing, the appellant was sentenced to 12 months imprisonment on each charge, to be served consecutively. He was also made subject to the notification requirements of section 92(2) of the Sexual Offences Act 2003 for a period of ten years. The appellant appealed against his conviction to the High Court of Justiciary (the High Court). He contended that the Sheriff should have found that the evidence provided by the PH group was obtained in breach of the requirements of RIPSA, that his rights under article 8 in relation to respect for his private life and correspondence were violated by admission of that evidence and that the Sheriff should have excluded it. The appellants appeal was heard in conjunction with the appeal in another case, which is not relevant for present purposes. By an interlocutor dated 20 September 2019 the High Court (the Lord Justice General, Lord Brodie and Lord Malcolm) refused both appeals. It granted the appellant permission to appeal to this court in relation to certain compatibility issues. The appeal on the compatibility issues Article 8 is a Convention right for the purposes of the Human Rights Act 1998 (the HRA). Section 6(1) of the HRA provides that [i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right (this is subject to certain exceptions which are not relevant in this case). A prosecuting authority is a public authority. A court also is a public authority for these purposes: section 6(3)(a) of the HRA. The case comes before this court by way of an appeal on compatibility issues pursuant to section 288AA of the Criminal Procedure (Scotland) Act 1995. So far as is relevant for present purposes, a compatibility issue means a question, arising in criminal proceedings, as to whether a public authority has acted in a way which is made unlawful by section 6(1) of the HRA: see section 288AA(4), read with section 288ZA(2). On an appeal under section 288AA, the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue (subsection (2)(a)); when it has determined the compatibility issue the Supreme Court must remit the proceedings to the High Court (subsection (3)). An appeal under section 288AA may be brought only with permission given by the High Court or by the Supreme Court (subsection (5)). In this case, the High Court has granted permission to appeal in relation to its determination in the criminal proceedings against the appellant of two compatibility issues, as follows: 1. whether, in respect of the type of communications used by the appellant and the PH group, article 8 rights may be interfered with by their use as evidence in a public prosecution of the appellant for a relevant offence; and 2. the extent to which the obligation on the state, to provide adequate protection for article 8 rights, is incompatible with the use by a public prosecutor of material supplied by PH groups in investigating and prosecuting crime. As should be clear, this is not a full appeal, but an appeal limited to these compatibility issues. Factual background and the judgment of the High Court In his ruling on 30 July 2018 the Sheriff set out the agreed facts as follows: 2. The Crown witness, Paul Devine, is a volunteer with Groom Resisters Scotland, an organisation which aims to protect children by catching online predators. The organisation consists of decoys and hunters. Decoys create fake online personas with a general appearance of being under the age of 16. They remain in character as someone aged less than 16 in all communications with the public. In the event of a member of the public having apparently engaged in a sexual conversation with a decoy, a face to face meeting will be arranged at which a hunter or hunters will be present, who will then record and film the member of the public, while confronting them regarding the persons prior communication with the decoy persona. This recording may also be made available on the internet live, so that interested parties can see the confrontation take place. The video will also be uploaded onto various websites in order that it may be viewed by others. The organisation makes contact with the police at or after the time of the confrontation. The sexual communications between the decoy and the member of the public concerned, as well as the recording/film, of that persons confrontation with the hunters or extracts therefrom, are disclosed to the police for investigation. 3. Groom Resisters Scotland is one of several organisations deploying similar operating methods which operate in Scotland and other parts of the United Kingdom. The police are aware that there are a number of hunter organisations operating in Scotland and across the United Kingdom, and evidence obtained from those organisations has led to a number of criminal investigations and prosecutions. In the present case the crown witness Devine, acted as a 4. decoy. Groom Resisters Scotland provided him with photographs of a boy aged approximately 13 years old and he created an online profile on an App named Grindr, a forum through which males apparently can arrange to meet one another, inter alia, for sexual purposes. The terms and conditions of that App specify that users must be aged 18 or over. There was communication between the witness Devine, as the decoy and the minuter [the appellant], wherein sexual images and sexual written communications were sent by the minuter to the decoy. The decoy shared fake personal details with the minuter, staying in character as a 13 year old boy. During the course of communications with the minuter, the decoys Grindr account was blocked and could no longer be used. There was further communication between the decoy and the minuter on WhatsApp and ultimately, arrangements were made between the minuter and the decoy for them to meet in person. The decoy advised two of the hunters in Groom Resisters Scotland, namely Crown witnesses Carling and Constable of these arrangements. The Witnesses Carling and Constable then attended the meeting place at the arranged time and confronted the minuter, broadcasting the confrontation live on Facebook. Film of the confrontation has since been posted onto social media. During the confrontation the police were contacted by Groom Resisters Scotland. Police officers attended during the ongoing confrontation between the minuter and the hunters and Groom Resisters Scotland subsequently provided the police with extracts of the communications between the minuter and the decoy and the minuter and the hunters. The High Court, in its judgment, referred to exchanges taking place in online chat rooms; but the parties agree that this was a slip. All the relevant exchanges took place in communications between the appellant and the decoy which were not shared with others. The exchanges using the WhatsApp messaging platform were protected by end to end encryption. The evidence led at trial confirmed the account given above. The appellant initially contacted the decoy on Grindr on 18 January 2018. The record of the communications between them provided by the PH group showed that from the initial point of contact by the appellant, sexually explicit questions and statements were sent by the appellant to the decoy, as were sexually explicit photographs, including, at the outset, a photograph of the appellant holding his erect penis, to which the decoy responded stating that he was 13. Over the period to 31 January, when the meeting which was arranged by the appellant took place, sexual communications continued to be sent by the appellant to the decoy. During that period the decoy remained in character as a 13 year old boy. All sexual communications came from the appellant. The decoy responded to the appellants messages, including answering questions posed of him about his sexuality. The appellant asked the decoy to delete the messages which the decoy agreed to do. After some time, the appellant asked the decoy to move the conversation to WhatsApp and they swapped telephone numbers to enable this to happen. Entrapment was not in issue in the case, so no examination of the law in relation to that topic is needed. The appellant complained that the circumstances of the case were such that authorisation was required to be obtained under RIPSA for the decoy to act as a covert human intelligence source within the meaning of that Act; that no such authorisation had been obtained; and that as a result the evidence of the decoy had been obtained unlawfully. However, the Sheriff and the High Court held that RIPSA had no application in the circumstances of this case, since the decoy acted on his own initiative and not at the instigation of the police (paras 52 53 of the High Courts judgment). This part of the High Courts judgment is not a matter which affects the compatibility issues which this court has to decide. The Dean of Faculty, Mr Gordon Jackson QC, for the appellant, sought to raise the RIPSA issue at the hearing before us in order to develop an argument that the acquisition and use of the evidence of the communications between the appellant and the decoy were not in accordance with the law, as is required by article 8(2) where there is an interference with rights under article 8(1). However, the compatibility issues to which the appeal relates do not turn on the application of article 8(2), but on the prior question of the extent and effect of the rights conferred by article 8(1). There was also some debate at the hearing in this court as to whether the appellant thought that the decoy was a child at the time he sent his first message to him. The Dean of Faculty claimed that the appellant only learned this later in the course of their exchanges. He emphasised that according to Grindrs terms a person can only have a profile on the site if they are 18 or over, and observed that people putting up profiles on dating sites do not always use true photographs of themselves. The Solicitor General for Scotland, Ms Alison Di Rollo QC, for the respondent, did not accept the Dean of Facultys claim. She pointed out that the profile photograph used by the decoy appeared to be of a child, that the standard terms of dating websites regarding age are not always observed by persons using those sites, and that the appellant was told by the decoy that he was 13 years old very early in the exchanges and expressed no surprise and was in no way deterred from continuing to send sexualized messages. This court is not in a position to resolve this issue of fact and it is not necessary to do so for the purposes of this appeal. The charges in the indictment related to communications across the period from 18 to 31 January 2018, without dividing up the communications more precisely in respect of their timing. The trial was conducted on that basis, without any need for findings to be made as to the appellants precise state of belief as to the age of the person with whom he was communicating at the outset of that period. The appellant did not give evidence about that. Nor did he make any submissions in the Sheriff Court or the High Court about this point, or suggest that it was a significant matter in relation to what are now the compatibility issues before this court. Accordingly, it is appropriate to proceed on the footing that throughout the whole or substantially the whole of the course of the relevant communications between the appellant and the decoy, the appellant believed the decoy to be a child aged 13. The High Court noted that the ECHR, and article 8 in particular, is primarily concerned with the protection of the rights of individuals from interference by the state. However, the High Court also observed (para 47) that, in addition to its prohibitive aspect, article 8 imposes a positive obligation on the state to provide a suitable framework within which an individuals article 8(1) rights are protected from interference by other private individuals, including employers, citing Kpke v Germany (2011) 53 EHRR SE 26 (p 249), para 41, and the judgment of the Third Section of the ECtHR in Ribalda v Spain CE:ECHR:2018:0109JUD000187413, para 54 (there is now a Grand Chamber judgment in this case, dated 17 October 2019, to which I refer below). The High Court held (para 48) that since the decoy acted on his own behalf as a private citizen and not at the instigation of the police or any other public authority, the gathering of the evidence of the communications by him was not a case of interference by the state with the appellants correspondence. The appellant had sent his messages to the decoy, who had received them and passed them on to the police: There was no surveillance or interception (AD v The Netherlands, European Commission on Human Rights [CE:ECHR:1994:0111DEC002196293] THE LAW at para 2 citing G, S and M v Austria (App no 9614/81), unreported, European Commission on Human Rights, 12 October 1983). [The appellant was] fully participating in the communications and [was] aware that they were reaching the intended recipient []. The messages had reached their destination and in due course they were handed to the police for the purposes of prosecuting a crime. As regards the appellants private life, the High Court was prepared to accept (para 49) that, at a general level, a persons internet chats fall within the broad ambit of article 8(1) (Garamukanwa v United Kingdom [2019] IRLR 853, ECtHR, para 22), but went on to say that given the lack of any longstanding pre existing relationship between the appellant and the person with whom he thought he was communicating, he had no reasonable expectation that the communications would remain confidential or private (Halford v United Kingdom (1997) 24 EHRR 523, para 45; Ribalda v Spain, judgment of the Third Section, para 57; Garamukanwa v United Kingdom, para 23). The appellant had voluntarily engaged in his communications on Grindr and WhatsApp with a person he believed to be a child, for sexual purposes. By the time the police were informed, the criminal activity had already been carried out. The court said (para 50) that even if there had been a reasonable expectation of privacy or confidentiality on the part of the appellant, the interference with the appellants right to respect for his private life would have been justified under article 8(2). There was no involvement of the state prior to the evidence of the communications being obtained; the evidence was delivered to the police for the purposes of prosecuting significant criminal activities; and the admission of the evidence of the communications to proof at trial would be subject to the common law rules of fairness. The activities of the decoy were subject to general legal constraints applicable to him as a private individual at common law and under the criminal law, and his actions were justifiable as being for legitimate purposes of the prevention of crime and the protection of the rights and freedoms of others. The court further observed (para 51) that even if there had been a violation of the appellants article 8 right to private life, it would not necessarily follow that the evidence of the communications provided by the decoy should have been excluded from admission to proof at trial. The question of exclusion or not of evidence gathered in breach of a persons rights under article 8 would depend upon whether it was possible to have a fair trial, on application of article 6 of the ECHR (right to a fair trial) and domestic law rules to safeguard the fairness of criminal proceedings. In the courts view, given the protections available under both these regimes, there was no unfairness in the criminal proceedings against the appellant arising from the admission of the evidence provided by the decoy. Discussion Issue (1): were article 8 rights interfered with by the use of the communications provided by the PH group as evidence in the public prosecution of the appellant? This issue is directed to consideration of the rights of the appellant under article 8(1) which are said to be relevant in the context of the circumstances of this case. In line with the submissions made on behalf of the appellant in the courts below, the Dean of Faculty submits that there was an interference with the appellants rights to respect for his private life and for his correspondence under article 8(1). On the basis that there was an interference with those rights, the High Court should have held that the respondent was required to show that such interference was justified under article 8(2). In general terms, article 8 reflects two fundamental values. These were summarised by Baroness Hale of Richmond in R (Countryside Alliance) v Attorney General [2007] UKHL 52; [2008] 1 AC 719, para 116, as the inviolability of the home and personal communications from official snooping, entry and interference without a very good reason and the inviolability of the personal and psychological space within which each individual develops his or her own sense of self and relationships with other people. The right to respect for private life and correspondence in article 8(1) may be engaged with reference to the first of these values even where the conduct engaged in by an individual is not in itself worthy of respect in accordance with the scheme of the ECHR: see, eg, Benedik v Slovenia, CE:ECHR:2018:0424JUD006235714, in which the ECtHR found there was an interference with the right of respect for private life in relation to a police investigation into the downloading and copying of child pornography by the applicant via the internet. In light of the history and objects of the ECHR, state surveillance of private communications is a matter of special concern and state authorities have a particular responsibility to respect a persons private life and correspondence. In the present case, however, as the High Court emphasised, the evidence of the communications between the appellant and the decoy was gathered by a private individual acting on his own behalf, and not by means of surveillance by state authorities, nor by a private individual acting on behalf of or at the instigation of a public authority (the type of situation addressed in MM v The Netherlands (2004) 39 EHRR 19). Therefore, it is not necessary to say more in this judgment about the first value referred to by Baroness Hale in Countryside Alliance. For reasons which reflect those given by the High Court, in the circumstances of this case I do not accept the Dean of Facultys submission that there was any interference with the appellants rights under article 8(1). In my view, there was no interference with those rights at any stage, whether by reason of (a) the actions of the decoy in attracting then recording and passing on evidence of the relevant communications; (b) the actions of the police in taking investigative action based on that evidence and passing it on to the respondent; (c) the actions of the respondent in presenting charges against the appellant based on that evidence and then relying upon it at trial; or (d) the actions of the Sheriff Court in admitting the evidence at trial and convicting the appellant on the basis of it. The compatibility issue on this appeal relates particularly to (c). However, it is relevant to keep in mind the other stages as well, as they are connected with each other in the sense that they are all relevant to bringing the appellants conduct to the attention of the public authorities with responsibility for ensuring that the criminal justice system was brought into proper operation in relation to that conduct. The position is essentially the same in this case in relation to both the right to respect for private life and the right to respect for correspondence under article 8(1), so they can be considered together. In my judgment, there are two reasons why the appellants rights under article 8(1) in relation to respect for private life and respect for his correspondence were not interfered with in the circumstances of this case: (i) the nature of the communications from the appellant to the decoy, whom he believed to be a child, was not such as was capable of making them worthy of respect for the purposes of the application of the ECHR; and (ii) the appellant had no reasonable expectation of privacy in relation to the communications, with the result that he enjoyed no relevant protection under article 8(1) as regards their disclosure to and use by the respondent and the other public authorities referred to above. I develop these points below. (i) The nature of the communications by the appellant An individuals rights under article 8(1), so far as relevant here, are to respect for his private life and his correspondence. In my view, it is implicit in this formulation that the features of his private life and his correspondence for which protection is claimed under article 8(1) should be capable of respect within the scheme of values which the ECHR exists to protect and promote. Part of that scheme is the second fundamental value protected by article 8 identified by Baroness Hale in Countryside Alliance, referred to above. In relation to that aspect of article 8, states party to the ECHR have a special responsibility to protect children against sexual exploitation by adults. In X and Y v The Netherlands (1986) 8 EHRR 235, a mentally handicapped girl aged 16, Miss Y, was forced into sexual intercourse by an adult. This behaviour did not constitute a criminal offence under Dutch law at the time. The European Court of Human Rights (ECtHR) held that by reason of this lacuna in the criminal law, the Netherlands had violated the right of Miss Y to respect for her private life under article 8(1); this was stated to be a concept which covers the physical and moral integrity of the person, including his or her sexual life (para 22). At para 23, the ECtHR recalled, with reference to the case of Airey v Ireland (1979 1980) 2 EHRR 305, para 32, that: although the object of article 8 is essentially that of protecting the individual against arbitrary interference by the 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 or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. At para 24 the ECtHR observed that the choice of the means calculated to secure compliance with article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the contracting states margin of appreciation; and there are different ways of ensuring respect for private life, and the nature of the states obligation will depend on the particular aspect of private life that is at issue. However, although recourse to the criminal law was not necessarily the only answer in every case, and Miss Y had relevant rights under civil law to claim damages or injunctive relief, the ECtHR said this at para 27: The court finds that the protection afforded by the civil law in the case of wrongdoing of the kind inflicted on Miss Y is insufficient. This is a case where fundamental values and essential aspects of private life are at stake. Effective deterrence is indispensable in this area and it can be achieved only by criminal law provisions; indeed, it is by such provisions that the matter is normally regulated. The Dutch criminal code failed to provide Miss Y with practical and effective protection (para 30), with the result that her rights under article 8 had been violated. See also MC v Bulgaria (2005) 40 EHRR 20, para 150: the positive obligations on the state inherent in the right to effective respect for private life under article 8 include that effective deterrence against grave acts such as rape, where fundamental values and essential aspects of private life are at stake, requires efficient criminal law provisions. Children and other vulnerable individuals, in particular, are entitled to effective protection. In KU v Finland (2009) 48 EHRR 52 an unknown person placed an advert of a sexual nature on an internet dating site, ostensibly on behalf of the applicant, a 12 year old boy, without his knowledge or consent, which suggested that he was looking for an intimate relationship with a boy of his own age or older. The applicant was contacted by an older man. The applicants father requested that the police take action to identify the person who had placed the advert, but the internet service provider refused to provide details to identify him and the Finnish courts, applying national privacy laws, refused to order it to do so. The ECtHR held that in these circumstances there had been a violation of the applicants right to respect for his private life under article 8, by reason of the lack of effective criminal sanctions against the perpetrator. The ECtHR again highlighted, at para 41, that the concept of private life in article 8(1) covers the physical and moral integrity of the person, and in that regard referred to the potential threat to the applicants physical and mental welfare brought about by the impugned situation and to his vulnerability in view of his young age. At paras 42 43 the ECtHR reiterated that there may be positive obligations inherent in an effective respect for private life, and that while the choice of means to comply with such obligations will generally be a matter falling within a contracting states margin of appreciation, effective deterrence against grave acts, where fundamental values and essential aspects of private life are at stake, requires efficient criminal law provisions. At paras 45 46 and 49, the ECtHR said this (omitting footnotes): 45. The Court considers that, while this case might not attain the seriousness of [X and Y v The Netherlands (1986) 8 EHRR 235], where a breach of article 8 arose from the lack of an effective criminal sanction for the rape of a handicapped girl, it cannot be treated as trivial. The act was criminal, involved a minor and made him a target for approaches by paedophiles. 46. The Government conceded that at the time the operator of the server could not be ordered to provide information identifying the offender. It argued that protection was provided by the mere existence of the criminal offence of calumny and by the possibility of bringing criminal charges or an action for damages against the server operator. As to the former, the court notes that the existence of an offence has limited deterrent effects if there is no means to identify the actual offender and to bring him to justice. Here, the court notes that it has not excluded the possibility that the states positive obligations under article 8 to safeguard the individuals physical or moral integrity may extend to questions relating to the effectiveness of a criminal investigation even where the criminal liability of agents of the state is not at issue. For the court, states have a positive obligation inherent in article 8 of the Convention to criminalise offences against the person including attempts and to reinforce the deterrent effect of criminalisation by applying criminal law provisions in practice through effective investigation and prosecution. Where the physical and moral welfare of a child is threatened such injunction assumes even greater importance. The court recalls in this connection that sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to state protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives. 49. The court considers that practical and effective protection of the applicant required that effective steps be taken to identify and prosecute the perpetrator, that is, the person who placed the advertisement. In the instant case such protection was not afforded. An effective investigation could never be launched because of an overriding requirement of confidentiality. Although freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others. Without prejudice to the question whether the conduct of the person who placed the offending advertisement on the internet can attract the protection of articles 8 and 10, having regard to its reprehensible nature, it is nonetheless the task of the legislator to provide the framework for reconciling the various claims which compete for protection in this context. Such framework was not however in place at the material time, with the result that Finlands positive obligation with respect to the applicant could not be discharged. In the present case, it is an open question whether the United Kingdom had a positive obligation under article 8 which required it to legislate in the way it did in sections 33 and 34 of the 2009 Act and in section 1 of the 2005 Act, or whether it could, under its margin of appreciation, have chosen not to criminalise the conduct set out in those provisions. In the absence of legislation to create those particular offences, there would still have been other criminal offences which offered a measure of protection for the moral and physical integrity of children against the predations of paedophiles. However, it is clear that these provisions in the 2009 Act and the 2005 Act were enacted to enhance the protection for children in relation to grave types of interference with essential aspects of their private lives (to use the language of the ECtHR in KU v Finland). The assessment of the Scottish Parliament is that having such offences on the statute book is a necessary element in the fabric of protection afforded to children. Whilst, as in KU v Finland, the conduct which is criminalised by these provisions is not as serious as that in X and Y v The Netherlands, in each case it involves direct sexualised communication with a child, including (in the case of section 1 of the 2005 Act) as a prelude to sexual contact between a paedophile and a child. The offences in question provide protection for children against conduct involving them directly, by contrast with the more indirect form of protection at issue in KU v Finland, and they are at least as important as the provisions of criminal law in that case. In my view, the Scottish Parliament having enacted such protection for children by way of the criminal law, it is an aspect of the positive obligation of the state under article 8 to ensure that there can be effective enforcement of the law as contained in these provisions, in much the same way as in KU v Finland. In KU v Finland, the ECtHR, at para 49, put to one side the question whether the conduct of the person who placed the offending advertisement on the internet could attract the protection of article 8 (and also the right to freedom of expression under article 10 of the ECHR), having regard to its reprehensible nature. In the present case, however, as noted above, the conduct which is made the subject of the criminal offences that are in issue involves direct, sexually motivated contact between a paedophile and a child. In my view, in the absence of any question of state surveillance or interception of communications, and where all that is in issue is the balance of the interests of a person engaging in such conduct and of the children who are the recipients (or intended recipients) of the relevant communications, the reprehensible nature of the communications is such that they do not attract protection under article 8(1). They do not involve the expression of an aspect of private life or an aspect of correspondence which is capable of respect within the scheme of values inherent in the ECHR. This view is supported by three matters. First, the conduct in question involves contact between a paedophile and a child which is criminal in nature and is capable of affecting the child more immediately and in a more directly damaging way than the conduct in issue in KU v Finland. Secondly, as observed above, the state has a positive obligation under article 8, owed to children, to enforce these provisions of the criminal law effectively. That obligation reflects the protection which article 8 requires to be accorded to fundamental values and essential aspects of private life in relation to children, who are recognised to be vulnerable individuals. Accordingly it is clear that, under the scheme of the ECHR and for the purposes of article 8, the interests of children in this field have priority over any interest a paedophile could have in being allowed to engage in the conduct which has been criminalised by these provisions. Thirdly, article 17 of the ECHR (prohibition of abuse of rights) supports the conclusion that the criminal conduct at issue in this case is not such as is capable of respect for the purposes of article 8(1). Article 17 is included in Schedule 1 to the HRA. It provides: Nothing in this Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention. The actions of the appellant were aimed at the destruction or limitation of the rights and freedoms of a child under article 8 which are the subject of positive obligations owed to children by the state under that provision, in a context in which those positive obligations outweighed any legitimate interest the appellant could have under article 8(1) to protection for his actions. In R v G (Secretary of State for the Home Department intervening) [2008] UKHL 37; [2009] AC 92, a boy of 15 had sexual intercourse with a girl of 12. He was charged with an offence of rape of a child under 13, contrary to section 5 of the Sexual Offences Act 2003. The girls initial complaint had been that the intercourse had not been consensual. After the charge was brought, the boy indicated that he was willing to plead guilty on the basis that the girl had told him that she too was aged 15 and the intercourse had in fact been consensual. The prosecution was prepared to proceed on that basis. Section 5 is an offence of strict liability, in the sense that the consent of the girl provides no defence and there is no defence of reasonable belief that the girl is aged 13 years or above. The boy pleaded guilty to the offence and was sentenced. Later, in addition to a complaint based on article 6, he complained that in light of the basis of plea accepted by the prosecution, the charge against him should have been changed to a lesser charge of unlawful sexual intercourse with a girl under 13, contrary to section 13 of the 2003 Act, and that it had been a breach of his rights under article 8 for the prosecution to proceed against him with the charge of rape under section 5. The boys appeal based on article 6 was dismissed unanimously by the House of Lords and his appeal based on article 8 was dismissed by a majority of three to two. In the majority, Lord Hoffmann considered that the decision to proceed under section 5 rather than section 13 gave rise to no interference with rights under article 8 (paras 7 10); Lord Mance considered that the decision to proceed under section 5 could not be regarded as unjustified or disproportionate (para 72; ie, by implication, under article 8(2)); and Baroness Hale considered that the decision to proceed under section 5 involved no interference with the boys rights under article 8(1) (para 54), but even if it did it was justified under article 8(2) (para 55). In the minority, Lord Hope of Craighead (with whom Lord Carswell agreed) considered that there was an interference with the boys right to respect for his private life under article 8(1), which could not be justified as a proportionate interference under article 8(2) (paras 37 39). Lord Hope emphasised at para 37 that, as set out in the basis of plea, the sexual intercourse was consensual intercourse between children (and, it may be added, in circumstances where the boy believed the girl to be 15, the same age as himself and just one year below the age of consent). rights under article 8(1), Baroness Hale said this at para 54: In addressing the question whether there was an interference with the boys In effect, the real complaint is that the defendant has been convicted of an offence bearing the label rape. Parliament has very recently decided that this is the correct label to apply to this activity. In my view this does not engage the article 8 rights of the defendant at all, but if it does, it is entirely justified. The concept of private life covers the physical and moral integrity of the person, including his or her sexual life: X and Y v The Netherlands 8 EHRR 235, para 22. This does not mean that every sexual relationship, however brief or unsymmetrical, is worthy of respect, nor is every sexual act which a person wishes to perform. It does mean that the physical and moral integrity of the complainant, vulnerable by reason of her age if nothing else, was worthy of respect. The state would have been open to criticism if it did not provide her with adequate protection. This it attempts to do by a clear rule that children under 13 are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity. This does not in my view amount to a lack of respect for the private life of the penetrating male. In my view, this statement by Baroness Hale accurately reflects the position that, for the purposes of considering whether there is an interference with the rights of an individual to respect for his private life (and, in the present case, for his correspondence) under article 8(1), it is necessary that the activity of the individual should be capable of respect within the scheme of values which the ECHR exists to protect and promote. See also In re JR38 [2015] UKSC 42; [2016] AC 1131, para 100: it is 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, and it did not extend to protect the claimant in relation to police publication of photographs of him participating in a riot (per Lord Toulson, with whom Lord Hodge agreed; see also para 98: 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 ); and para 112 (Lord Clarke of Stone Cum Ebony, with whom Lord Hodge also agreed): 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. The judgment of the ECtHR in Benedik v Slovenia illustrates the same analytical approach to article 8. At paras 107 110 the court examined the nature of the applicants interest involved in the case, concluding at para 110 that since the case involved investigations by public authorities it concerned privacy issues capable of engaging the protection of article 8 of the Convention; then at paras 115 118 the court examined the question whether the applicant had a reasonable expectation of privacy in relation to his use of the internet, and concluded that he did (see further below). As a result of the examination of these two matters the ECtHR concluded that there had been an interference with the applicants right to respect for his privacy under article 8(1), so that it was necessary to consider whether that interference was justified under article 8(2). The appellant in R v G made an application to the ECtHR, relying on his rights under article 6 and article 8. The ECtHR dismissed his application at the admissibility stage: (2011) 53 EHRR SE25. It held that the complaint based on article 8 was manifestly without foundation. However, in doing so the ECtHR made this observation at para 35 of its decision: The court notes that at the time of the events in question, the applicant was 15 years old and the complainant was 12. The applicant was convicted and sentenced on the basis that both parties had consented to sexual intercourse and that the applicant had reasonably believed the complainant to be the same age as him. In these circumstances, the court is prepared to accept that the sexual activities at issue fell within the meaning of private life (see, mutatis mutandis, SL v Austria (2003) 37 EHRR 39). The court therefore concludes that the criminal proceedings against the applicant, which resulted in his conviction and sentence, constituted an interference by a public authority with his right to respect for private life. [In the case of SL v Austria, a violation of the rights of a 15 year old homosexual boy under article 14 of the ECHR, read with article 8, was found in relation to a law which criminalised consensual homosexual relations between the applicant and men aged 19 and above, but not relations with other adolescents in the 14 to 18 age bracket.] The ECtHR in G v United Kingdom considered that, even on the basis that there had been an interference with the boys right to respect for his private life under article 8(1), the interference was justified under article 8(2). The Dean of Faculty sought to rely on para 35 of the decision in G v United Kingdom in support of his submission that there was an interference with the appellants rights to respect for his private life and correspondence in the present case. However, I do not consider that it assists him. That case was concerned with precocious sexual activity between children, between a boy aged 15 and a girl believed to be 15. This involved an aspect of the boys own personal development and experimentation in relation to intimate relationships at a stage of his own life which attracts particular protective concern under the scheme of the ECHR. The present case is very different. The appellant is an adult, not a child or adolescent at a developmental stage. Indeed, I think that the emphasis in the observations of the ECtHR upon the particular facts of the case in G v United Kingdom serves to support the view that in the appellants case there was no interference with his rights under article 8(1). The appellant had no legitimate interest under the scheme of the ECHR, as against the decoy, to assert or maintain privacy in the communications he sent the decoy. The sending of those communications constituted criminal offences, and the decoy was entitled to provide to the police evidence about them which he had in his knowledge and in his possession. That action by the decoy involved no interference with the appellants rights under article 8(1). Once the decoy had provided information to the police, they had in their possession evidence of the commission of criminal offences and the appellant had no legitimate interest under the scheme of the ECHR to prevent the police from acting on that evidence, or to prevent the police from passing it on to the respondent with a view to its use in a prosecution of the appellant. Likewise, once the police passed the evidence to the respondent, the appellant had no legitimate interest under the scheme of the ECHR to prevent the respondent from making use of that evidence in criminal proceedings against him. The police and the respondent, as relevant public authorities, had a responsibility, under the scheme of values in the ECHR, to take effective action to protect children, to the extent that the information provided by the decoy indicated that the appellant represented a risk to them. (ii) No reasonable expectation of privacy According to the Strasbourg case law, an important indication whether the right to respect for private life and correspondence is engaged in relation to an individuals communications is whether the individual had a reasonable expectation of privacy in relation to them: see eg Halford v United Kingdom (1997) 24 EHRR 523, para 45; Garamukanwa v United Kingdom, paras 22 and 29; Benedik v Slovenia, paras 98, 101 and 115 116; and Ribalda v Spain, CE:ECHR:2019: 1017JUD000187413, GC, paras 89 90 and 93. In Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457, para 21, Lord Nicholls of Birkenhead observed 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. This observation was the subject of debate in this court in In re JR38 [2015] UKSC 42; [2016] AC 1131. In that case, with a view to identifying persons who had participated in a riot, the police released photographs showing the claimant, a boy of 14, participating in the violence. The claimant complained that in doing so, the police had breached his right under article 8 to respect for his private life. This court held, by a majority, that there had been no interference with the claimants right under article 8(1) and affirmed that the touchstone for the engagement of article 8(1) is whether, on the facts, the individual had a reasonable expectation of privacy in relation to the subject matter of his complaint: see paras 87 98 (Lord Toulson, with whom Lord Hodge agreed), and 107 and 110 112 (Lord Clarke, with whom Lord Hodge agreed). The court was unanimous that, if article 8(1) was engaged, the interference with the claimants rights would have been justified under article 8(2). However, dissenting on the question of the application of article 8(1), Lord Kerr of Tonaghmore (with whom Lord Wilson agreed) said that, although whether there is a reasonable expectation of privacy will often be a factor of considerable weight, it is not necessarily decisive and has to be weighed alongside other factors relating to the context, including in particular in that case the age of the claimant: paras 56 and 59. principles to be derived from its case law, saying this at paras 100 101: 100. The Court reiterates that private life is a broad term not susceptible to exhaustive definition. Article 8 protects, inter alia, the right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. 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 (see Uzun v Germany [CE:ECHR:2010:0902JUD003562305], para 43). 101. There are a number of elements relevant to the consideration of whether a persons private life is concerned by measures affected outside his or her home or private premises. In order to ascertain whether the notions of private life and correspondence are applicable, the Court has on several occasions examined whether individuals had a reasonable expectation that their privacy would be respected and protected (see Brbulescu v Romania [[2017] IRLR 2032, GC], para 73, and Copland v United Kingdom, [(2007) 45 EHRR 37], paras 41 42). In that context, it has stated that a reasonable In Benedik v Slovenia, at paras 100 106 the ECtHR recapitulated the relevant expectation of privacy is a significant though not necessarily conclusive factor (see Brbulescu, cited above, para 73). At para 106, the ECtHR referred to the judgment of the Grand Chamber in Delfi AS v Estonia (2016) 62 EHRR 6, at para 148, in which it was noted that different degrees of anonymity are possible on the internet: an internet user may be anonymous to the wider public, while their identity is known to their internet service provider. The ECtHR held that the applicant in the Benedik case had a reasonable expectation of privacy, notwithstanding that he used a computer connected to the internet via an internet service provider which had details of the identity of the subscriber (in that case, the applicants father): paras 115 118. On that basis, the ECtHR found that there had been an interference with the applicants right to respect for his privacy under article 8(1) and held that it was not justified under article 8(2). That was because the legal regime governing the circumstances in which the police could obtain details of the identity of the subscriber and hence could learn the identity of the applicant was not clear, so the interference was not in accordance with the law for the purposes of article 8(2). As the phraseology indicates, whether a reasonable expectation of privacy exists in relation to a particular matter is an objective question: Benedik v Slovenia, para 116; In re JR38, paras 98 (Lord Toulson) and 109 (Lord Clarke). In the present case, by contrast with the situation in Benedik v Slovenia, the appellants communications were sent directly to the decoy, a private individual believed by the appellant to be a child of 13. Their contents were not a matter in relation to which the recipient could be thought to owe the appellant any obligation of confidentiality. There was no prior relationship between the appellant and the recipient from which an expectation of privacy might be said to arise between them (contrast the position in Ribalda v Spain, in which the applicants had a reasonable expectation that they would not be subjected to covert video surveillance by their employer; and contrast the position which might arise in relation to intimate letters sent in the course of an established romantic relationship between adults). The appellants contact with the decoy came out of the blue and exhortations by the appellant in messages sent to the decoy that he should keep their communications private did not establish a relationship of confidentiality. Furthermore, the appellant believed that he was communicating with a 13 year old, a child of an age in relation to whom it was foreseeable that he might well share any worrying communications he received with an adult. The present case is, therefore, analogous to the situation posited by Lord Toulson in In re JR38 at para 100, where he said: 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 v HM Advocate [2013] 2 AC 93. Lord Hope DPSCs words, at para 21, 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 identikit, would its use by the police for the purpose of his identification be an infringement of his right to privacy? I consider not. In the present case, the decoy was a member of the public who provided the police with evidence in his possession pertaining to the commission of criminal offences by the appellant. As the ECtHR observed in Delfi AS v Estonia, at para 148, and Benedik v Slovenia, at para 106, there may be different expectations of confidentiality in relation to use of the internet, depending on the person with respect to whom the question is asked. In the present context, the appellant may have enjoyed a reasonable expectation of privacy in relation to his communications for the purposes of article 8(1) so far as concerned the possibility of police surveillance or intrusion by the wider public, but he had no reasonable expectation of privacy in relation to the recipient of his messages. He could not reasonably expect that, where his messages constituted evidence of criminal conduct on his part, the recipient would not pass them on to the police. Once evidence of the messages had been passed to the police by the decoy, the appellant had no reasonable expectation that the police should treat them as confidential, so that they should not make use of that evidence to investigate whether a crime had been committed. Under the scheme of the ECHR, they were bound to do so in order to safeguard children. Nor did the appellant have any reasonable expectation that the respondent should treat the messages as confidential, so that they should not make use of that evidence in bringing a prosecution in respect of his criminal activity. Again, under the scheme of the ECHR, the possibility of effective prosecution of serious crimes committed in relation to children is part of the regime of deterrence which a state is required to have in place to protect them. Open justice is an important principle in domestic law and under the ECHR, so a defendant in the position of the appellant can have no reasonable expectation that a prosecution in which reliance is placed on material of this kind will take place in anything other than a public forum. There is also an area of overlap between the issue of reasonable expectation of privacy and the issue of the nature of the communications by the appellant, addressed above. The majority judgments in In re JR38 indicate that the nature of the information in question is relevant as part of the context in which an assessment whether a reasonable expectation of privacy exists is to be made. As Lord Toulson said at para 97: 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. See also para 112 (Lord Clarke). I have found it helpful in this case to separate out these issues and subject them to distinct examination, as the ECtHR did in Benedik v Slovenia. However, it can also be said that the discussion above regarding the nature of the communications provides further reasons why, for the purposes of article 8(1), the appellant could have no reasonable expectation of privacy in relation to them. Even on the approach of Lord Kerr in In re JR38, there has been no interference with the appellants rights under article 8(1). Unlike the claimant in that case, there is no special feature of the appellants circumstances, such as his being a child deserving of protection under the scheme of the ECHR, which could support a conclusion that his rights under article 8(1) were interfered with, in the absence of his having a reasonable expectation of privacy. Conclusion on compatibility issue (1) For the reasons set out above, I consider that the High Court was right to hold that there was no interference with the appellants rights under article 8(1) in the circumstances of this case. Issue (2): the extent to which the obligation on the state, to provide adequate protection for article 8 rights, is incompatible with the use by a public prosecutor of material supplied by PH groups in investigating and prosecuting crime. I can be short in addressing this issue, focusing on the circumstances of the appellants case. I have already concluded in relation to the first compatibility issue that there was no interference with the appellants rights under article 8(1) associated with the collection by the decoy of evidence about the communications or with the use of that evidence by the relevant public authorities. Clearly, therefore, in this case the state had no supervening positive obligation arising from article 8 to protect the appellants interests which would impede the respondent in any way in making use of the evidence about his communications with the decoy to investigate or prosecute in respect of the crimes he was alleged to have committed. On the contrary, in so far as positive obligations under article 8 were engaged, the relevant positive obligation on the respondent, as a public authority, was to ensure that the criminal law could be applied effectively so as to deter sexual offences against children. Contrary to the appellants argument, article 8 has the effect that the respondent should be entitled to, and indeed might be obliged to, make use of the evidence of the communications with the decoy in bringing a prosecution against him. In Ribalda v Spain, the employer of the applicants, a private company, gathered evidence by covert video surveillance of their behaviour at work on which it relied to dismiss the applicants for theft. The national courts held that the dismissals were justified and lawful. The applicants complained to the ECtHR that the Spanish state had interfered with their right to respect for private life under article 8 by reason of the national courts accepting and relying on the evidence derived from the covert surveillance by the employer. The Grand Chamber of the ECtHR held, first, that the applicants had a sufficient reasonable expectation of privacy such that article 8 was applicable (paras 92 95). The Grand Chamber then addressed compliance with article 8, summarising the applicable principles regarding positive obligations at paras 109 116 of its judgment, including the following: 109. The court observes that, in the present case, the video surveillance measure complained of by the applicants was imposed by their employer, a private company, and cannot therefore be analysed as an interference, by a state authority, with the exercise of Convention rights. The applicants nevertheless took the view that, by confirming their dismissals on the basis of that video surveillance, the domestic courts had not effectively protected their right to respect for their private life. 110. The court reiterates that although the object of article 8 is essentially that of protecting the individual against arbitrary interference by the 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 effective respect for private or family life. These obligations may necessitate the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Sderman v Sweden [CE:ECHR:2013:1112JUD000578608, GC], para 78 and Von Hannover v Germany (No 2) [ECHR:2012:0207JUD004066008, GC], para 98). The responsibility of the state may thus be engaged if the facts complained of stemmed from a failure on its part to secure to those concerned the enjoyment of a right enshrined in article 8 of the Convention (see Brbulescu v Romania [[2017] IRLR 1032, GC], para 110, and Schth v Germany [CE:ECHR:2010: 0923JUD000162003], paras 54 and 57). 111. Accordingly, in line with the approach it has followed in similar cases, the court takes the view that the complaint should be examined from the standpoint of the states positive obligations under article 8 of the Convention (see Brbulescu, cited above, para 110; Kpke [v Germany (2010) 53 EHRR SE 26]; and De La Flor Cabrera [v Spain CE:ECHR:2014:0527 JUD001076409], para 32). While the boundaries between the states positive and negative obligations under the Convention do not lend themselves to precise definition, the applicable principles are nonetheless similar. In both contexts regard must be had in particular to the fair balance that has to be struck between the competing private and public interests, subject in any event to the margin of appreciation enjoyed by the state (see Palomo Snchez v Spain [CE:ECHR:2011:0912JUD 002895506, GC], para 62, and Brbulescu, cited above, para 112). The margin of appreciation goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by independent courts. In exercising its supervisory function, the court does not have to take the place of the national courts but to review, in the light of the case as a whole, whether their decisions were compatible with the provisions of the Convention relied upon (see Peck [v United Kingdom, CE:ECHR:2003:0128JUD004464798], para 77, and Von Hannover (No 2), cited above, para 105). Applying these principles, having regard to the states margin of appreciation and the fair balance to be maintained between the interests of the applicants and their employer, the Grand Chamber held that there had been no violation of any positive obligations owed to the applicants under article 8. As is evident from this recent judgment of the Grand Chamber, positive obligations under article 8 only arise where article 8 is applicable in a claimants case in the first place. In the present case, however, as set out above, article 8 is not applicable in relation to the appellants complaint. Further, even where article 8 is applicable, a contracting state has a margin of appreciation as to how to strike a fair balance between the competing interests which are in issue. Since, in the present context, the state has a positive obligation to operate an effective criminal law regime to deter and punish persons who threaten to harm young children, there is no doubt that the use by the respondent of the evidence provided by the decoy for the purposes of the prosecution of the appellant under that regime involved no breach of any positive obligation owed to the appellant. In that regard, it is relevant that the appellant rightly accepts that the offences with which he was charged under the 2009 Act and the 2005 Act were, in themselves, compatible with article 8. In SXH v Crown Prosecution Service (United Nations High Commissioner for Refugees intervening) [2017] UKSC 30; [2017] 1 WLR 1401, this court addressed the question whether the rights of an individual under article 8(1) were interfered with when the prosecution service in England and Wales decided to bring a prosecution for an offence under a statutory provision which, as here, was agreed to be compatible with the rights of the accused under article 8. Lord Toulson (with whose judgment Lord Mance, Lord Reed and Lord Hughes agreed) observed (para 34) that it was difficult to envisage circumstances in which the initiation of a prosecution against a person reasonably suspected of committing such a criminal offence could itself be an interference with that persons rights under article 8(1). There might be rare and exceptional circumstances in which that could happen: see para 23, setting out the view of the Court of Appeal to that effect, with which Lord Toulson agreed at para 35; and the members of the appellate committee in R v G, apart from Lord Hoffmann, contemplated that there might be such a case. However, there are no exceptional circumstances which apply in the present case. The Scottish Parliament has enacted the criminal law provisions in sections 33 and 34 of the 2009 Act and section 1 of the 2005 Act to protect the rights of children, and it was clearly within the states margin of appreciation under article 8 and that of the respondent as the prosecuting authority to deploy the evidence provided by the decoy in support of a prosecution brought under those provisions. Other issues in the High Court In light of the way in which the compatibility issues have been framed by the High Court, other aspects of the High Courts judgment do not arise for consideration in this court. However, I think it is appropriate to observe that, even if the appellant had been able to show that there had been an interference with his rights under article 8(1), he would still have faced fundamental difficulties in challenging the overall conclusion of the High Court that his appeal against his conviction should be refused. First, the High Court concluded that, even if there had been an interference with the appellants rights under article 8(1) arising from the use of the evidence provided by the decoy in the police investigation and prosecution of the appellant, it would have been justified under article 8(2) as being in accordance with the law and necessary in a democratic society, as a measure proportionate to promoting the legitimate objectives of the prevention of disorder or crime and the protection of the rights and freedoms of others. Although the issue of justification under article 8(2) does not arise under the compatibility issues before this court, I can see no reason to think that the High Court was in error in this part of its judgment. Secondly, even if the appellant had been able to establish that there had been a breach of his rights under article 8 by reason of the use of the evidence provided by the decoy in the investigation and in the prosecution, it would not follow that his conviction should be quashed, as the High Court rightly pointed out. Generally, evidence obtained in breach of article 8 may be relied on in criminal proceedings, provided that there is no violation of the right under article 6 of the ECHR to have a fair trial and no breach of any rules of domestic law regarding the fairness of criminal proceedings: see eg Kinloch v HM Advocate [2012] UKSC 62; [2013] 2 AC 93, paras 15 17 (Lord Hope of Craighead). The High Court considered that there was no unfairness in the proceedings against the appellant (para 51). Again, I see no reason to disagree with their assessment. Conclusion For the reasons given above, I would dismiss the appeal. In relation to the first compatibility issue, I would answer that in this case there was no interference with the appellants right to respect for his private life and correspondence under article 8(1) by reason of the use by the respondent of the evidence obtained from the decoy in the public prosecution of the appellant. In relation to the second compatibility issue, I would answer that there was no incompatibility between the obligation on the state to protect rights arising under article 8 and the use by the respondent in this case of the evidence provided by the decoy in support of the prosecution of the appellant.	This appeal concerns the compatibility of the use in a criminal trial of evidence obtained by a so called paedophile hunter (PH) group with the accused persons rights under article 8 of the European Convention on Human Rights (the ECHR). Article 8 provides that everyone has the right to respect for his or her private life and correspondence. PH groups impersonate children online to lure persons into inappropriate communications and provide the resulting material to the police. An adult member of a PH group, acting as a decoy, created a fake profile on a dating application using a photograph of a boy aged approximately 13 years old. The appellant entered into communication with the decoy, who stated that he was 13 years old. The appellant sent the decoy a sexual image and also arranged a meeting. At the meeting, the appellant was confronted by members of the PH group who remained with him until the police arrived. Copies of the appellants communications with the decoy were provided to the police. The respondent, as public prosecutor, charged the appellant with attempts to commit: (i) the offence of attempting to cause an older child (i.e. a child between 13 and 16 years old) to look at a sexual image, for the purposes of obtaining sexual gratification, contrary to section 33 of the Sexual Offences (Scotland) Act 2009 (the 2009 Act); (ii) the offence of attempting to communicate indecently with an older child, contrary to section 34 of the 2009 Act; and (iii) the offence of attempting to meet with a child for the purpose of engaging in unlawful sexual activity, contrary to section 1 of the Protection of Children and the Prevention of Sexual Offences (Scotland) Act 2005 (together, the charges). The appellant objected to the admissibility of the evidence sought to be relied upon by the respondent on the basis that it was obtained covertly without authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 and without authorisation or reasonable suspicion of criminality in violation of his rights under article 8. These objections were dismissed and the appellant was convicted of the charges. The appellant appealed against his conviction to the High Court of Justiciary, which refused the appeal and granted the appellant permission to appeal to the Supreme Court on two compatibility issues, which arise in criminal proceedings over whether a public authority has acted in a way that is unlawful under section 6(1) of the Human Rights Act 1998. The Supreme Court unanimously dismisses the appeal. Lord Sales gives the judgment, with which all members of the Court agree. The appellant appeals on two issues: (1) whether, in respect of the type of communications used by the appellant and the PH group, article 8 rights may be interfered with by their use as evidence in a public prosecution of the appellant for a relevant offence; and (2) the extent to which the obligation on the state, to provide adequate protection for article 8 rights, is incompatible with the use by a public prosecutor of material supplied by PH groups in investigating and prosecuting crime [11]. On the first issue, the appellant submits that there was an interference with the appellants rights to respect for his private life and his correspondence under article 8(1), which required the respondent to show that such interference was justified under article 8(2) [26]. The court holds that there was no interference with those rights at any stage because: (i) the nature of the communications rendered them incapable of being worthy of respect under article 8; and (ii) the appellant had no reasonable expectation of privacy in relation to the communications [29] [31]. It is implicit in article 8(1) that the protected features of private life and correspondence must be capable of respect within the scheme of values the ECHR exists to protect and promote. States party to the ECHR have a special responsibility to protect children against sexual exploitation by adults [32] [33]. Here, in the absence of any state surveillance, and where the issue is the balance of the interests of a person engaging in such conduct and the children who are the recipients of the relevant communications, the reprehensible nature of the communications means they do not attract protection under article 8(1) [40]. The interests of children have priority over any interest a paedophile could have in being allowed to engage in criminal conduct. Further, the prohibition of the abuse of rights in article 17 of the ECHR supports the conclusion that the criminal conduct at issue in this case is not capable of respect for the purposes of article 8(1) [41] [43]. An important indication of whether the right to respect for private life and correspondence is engaged is whether the individual had a reasonable expectation of privacy in relation to those communications, which is an objective question [51] [55]. The appellants communications were sent directly to the decoy. There was no prior relationship between the appellant and recipient from which an expectation of privacy might be said to arise. Requests made by the appellant to the decoy to keep the communications private did not establish a relationship of confidentiality. Furthermore, the appellant believed he was communicating with a 13 year old child, who it was foreseeable might share any worrying communications with an adult [56]. The appellant may have enjoyed a reasonable expectation of privacy so far as the possibility of police surveillance or intrusion by the wider public are concerned, but not in relation to the recipient [58]. Once the evidence had been passed on to the police, the appellant had no reasonable expectation that either the police or the respondent should treat them as confidential. Again, under the scheme of the ECHR, the effective prosecution of serious crimes committed in relation to children is part of the regime of deterrence a state must have in place [59]. On the second issue, the state had no supervening positive obligation to protect the appellants interests that would prevent the respondent making use of the evidence to investigate or prosecute the crime. On the contrary, the relevant positive obligation on the respondent was to ensure that the criminal law could be applied effectively to deter sexual offences against children. Article 8 has the effect that the respondent should be entitled to, and might indeed be obliged to, make use of the evidence in bringing a prosecution against him [64].
This reference, made by the Counsel General for Wales, raises for determination whether the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill is within the legislative competence of the National Assembly for Wales (the Welsh Assembly). The issues involved are novel and important, and the Counsel General was right to recognise them as such and to make the present reference with a view to resolving them. The reference has been well presented and argued on both sides. The Bill contains in section 1 its own overview. It (a) imposes liability on persons by whom or on whose behalf compensation payments are made to or in respect of victims of asbestos related diseases to pay charges in respect of National Health Service services provided to the victims as a result of the diseases; (b) makes provision for the certification of the amount of the charges to be paid, for the payment of the charges, for reviews and appeals and about information; (c) extends insurance cover of liable persons to their liability to pay the charges. Liability to pay NHS charges arises under section 2 where a compensation payment is made to or in respect of a person (the victim) in consequence of any asbestos related disease suffered by the victim. It is imposed on the person who is or is alleged to be liable to any extent in respect of such disease and by whom or on whose behalf the compensation payment is made after the Bill comes into force. It is convenient to describe such a person as the compensator. The liability is to reimburse the Welsh Ministers in respect of any relevant Welsh NHS services provided to the victim as a result of the disease, in an amount set or amounts out in, or determined in accordance with, regulations under section 6(2) and specified in a certificate to be issued by the Welsh Ministers subject to any limit fixed by regulations under section 6(5)(a). The Bill contains extensive provisions requiring sufferers, compensators and others to provide information (section 12), requiring compensators to apply for and the Welsh Ministers to issue certificates specifying the relevant charges arising under section 2 in accordance with regulations and reduced where appropriate to reflect any contributory fault on the part of the sufferer (section 6) as well as regulating other matters, such as the time for payment of charges (section 7), the recovery of charges (section 8), the review of certificates (section 9), appeals against certificates (section 10 and 11) and cases in which compensators make lump sum or periodical payments (section 13). Section 14 deals with the liability of insurers. It provides: (1) Where the liability or alleged liability of the person by whom or on whose behalf a compensation payment is made is, or (if established) would be, covered to any extent by a policy of insurance, the policy is to be treated as covering the persons liability under section 2. (2) Liability imposed on the insurer by subsection (1) cannot be excluded or restricted. (5) This section applies in relation to policies of insurance issued before (as well as those issued after) the date on which this section comes into force. (6) References in this section to policies of insurance and their issue include references to contracts of insurance and their making. Section 15 provides: (1) The Welsh Ministers must, in the exercise of their functions under the National Health Service (Wales) Act 2006, have regard to the desirability of securing that an amount equal to that reimbursed by virtue of section 2 is applied, in accordance with that Act, for the purposes of research into, treatment of, or other services relating to, asbestos related diseases. (2) The Welsh Ministers must report annually to the National Assembly for Wales on the application of amounts equal to sums reimbursed by virtue of section 2. The Bill in these circumstances has the following characteristics: (i) First, by section 2, it imposes a novel statutory or quasi tortious liability towards the Welsh Ministers on compensators (defined as set out in para 3 above). a. This liability is a liability for pure economic loss which does b. not exist and has never existed at common law. It does not reflect any liability which the compensator had to the victim, since the victim has no liability to the Welsh Ministers to meet any economic loss the Welsh Ministers may have suffered. c. The liability exists whether the compensation is paid to the victim with or without admission of liability; the Counsel General in written submissions states that a key point is that it is a necessary condition of the Bill attaching to insurers that there must be liability established or conceded. But a payment without admission of liability does not in law or even de facto amount to a concession of liability. d. The liability is based on future compensation payments made in respect of actual or potential wrongs, the operative elements of which were committed many decades ago, though the victims are or will only suffer the consequences and the Welsh National Health Service will only have to bear the hospitalisation costs in the future. (ii) Second, by section 14, the Bill imposes a new contractual liability on the liability insurers of compensators (typically employers liability insurers such as those involved in the Trigger litigation: Durham v b. c. d. BAI (Run Off) Ltd [2012] UKSC 14, [2012] 1 WLR 867) to cover any liability which such compensators have as a result of section 2. a. It imposes this new liability on any insurer whose policy would to any extent cover the compensator for any liability which the compensator has or would (if established) have towards the victim. It imposes it irrespective of any policy exclusion or restriction. It imposes it in relation to policies issued before as well as after the date section 14 comes into force and so in relation to policies issued and covering events occurring many decades ago. It does all this although indeed no doubt because such liability insurers would not otherwise be likely to have to answer for any charges levied under section 2. This is clear on any reading of the typical employers liability policy wordings summarised in annex A to my judgment in the Trigger case. In essence, such policy wordings cover employers liability in damages for claims by actual or former employees suffering injury or disease. They are, furthermore, triggered by the original exposure to asbestos during the course of the insurance, not by the imposition of charges under section 2 as a result of compensation payments made, with or without admission of liability, long after the expiry of the policy period. (iii) Third, section 15 provides that the Welsh Ministers must, in the exercise of their functions under the National Health Service (Wales) Act 2006 (the NHS (Wales) Act), have regard to the desirability of securing that an amount equal to that reimbursed by virtue of section 2 is applied, in accordance with that Act, for the purposes of research into, treatment of, or other services relating to, asbestos related diseases. The Bill thus imposes new liabilities on compensators in respect of past conduct and on liability insurers under past insurance contracts. The Counsel General stresses that compensators would only incur such liabilities as a result of their making future compensation payments to or in respect of victims of asbestos related diseases who suffer future hospitalisation; and that insurers would only incur such liabilities under such contracts upon such compensation payments being made and then only if such contracts would to some extent cover any liability which the compensator might have towards the asbestos related disease sufferer to make such compensation payments. The Bill is thus not retrospective in the fullest sense, but it does significantly restructure both the consequences of actual or possible negligence or breach of statutory duty committed long ago by compensators, and the terms of and liabilities attaching under insurance policies also underwritten years ago to cover any such negligence or breach of duty. Unsurprisingly, in view of the identity of the interveners, the Association of British Insurers, the primary focus of submissions before the Supreme Court has been on section 14 of the Bill. But, inevitably, attention has also had to be given to the aim and effect of other provisions of the Bill, particularly section 2, which is directed to compensators. The question referred to the court subdivides into two more specific issues: whether the Bill, and in particular, but not exclusively, section 14, falls within section 108(4) and (5) of the Government of Wales Act 2006 (GOWA), which in turn depends in this case upon whether it relates to Organisation and funding of national health service in paragraph 9 of Part 1 of Schedule 7 to GOWA an issue on which section 15 has a potential bearing; and whether, if it does fall within section 108(4) and/or (5), it is nonetheless outside the Welsh Assemblys competence by virtue of section 108(6), read with section 158(1), on the ground that it is incompatible with the Convention rights scheduled to the Human Rights Act 1998. It is logical to take these issues in that order, since section 108(6) operates as a restriction on the Assemblys legislative competence in respect of matters which fall within section 108(4) and/or (5). The Counsel General must however succeed on both issues in order to make good his submission that the Bill is within the Assemblys legislative competence. The issue whether the Bill falls within section 108(4) and/or (5) was not originally raised by the interveners or therefore addressed in the Counsel Generals written case. It was nonetheless raised squarely in the interveners written case, and has been covered by oral submissions and written notes on both sides. Competence under section 108(4) and (5) Consequent upon the referendum held in 2011 under section 105(1) of GOWA, the competence of the Welsh Assembly is no longer determined by section 94 read with Schedule 5 to the Act. Section 94 has, along with the rest of Part 3 of the Act, ceased under section 106(1) to have effect. Instead the Welsh Assembly has (since 5 May 2011: see The Government of Wales Act 2006 (Commencement of Assembly Act Provisions, Transitional and Saving Provisions and Modifications) Order 2011 No 1011 (W.150)) had the expanded legislative competence provided by sections 108 and 109 read with Schedule 7. Under section 108(3) a provision is only within the Assemblys legislative competence if it falls within subsection (4) or (5). A provision falls within section 108(4) if 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 . A provision falls within section 108(5) if (a) it provides for the enforcement of a provision (of that or any other Act of the Assembly) which falls within subsection (4) or a provision of an Assembly Measure or it is otherwise appropriate for making such a provision effective, or (b) it is otherwise incidental to, or consequential on, such a provision. The relevant matter specified in Part 1 of Schedule 7 on which reliance is placed to establish competence to enact the Bill is para 9 headed Health and health services and reading: Promotion of health. Prevention, treatment and alleviation of disease, illness, injury, disability and mental disorder. Control of disease. Family planning. Provision of health services, including medical, dental, ophthalmic, pharmaceutical and ancillary services and facilities. Clinical governance and standards of health care. Organisation and funding of national health service. Exceptions Abortion. Human genetics, human fertilisation, human embryology, surrogacy arrangements. Xenotransplantation. Regulation of health professionals (including persons dispensing hearing aids). Poisons. Misuse of and dealing in drugs. Human medicines and medicinal products, including authorisations for use and regulation of prices. Standards for, and testing of, biological substances (that is, substances the purity or potency of which cannot be adequately tested by chemical means). Vaccine damage payments. Welfare foods. Health and Safety Executive and Employment Medical Advisory Service and provision made by health and safety regulations. The critical phrase is Organisation and funding of national health service. The questions arise, firstly, whether this covers the imposition of a statutory liability on compensators who were or are alleged to have been wrongdoers, and, secondly, if it does, whether it also covers the amendment of any insurance contracts which would cover such compensators to any extent for any liability they had to the sufferers of the relevant asbestos related disease, so as to make the relevant insurers answer for any compensation payment made irrespective otherwise of the terms of the insurance contract. These questions raise for consideration the vires of the core elements of the Bill under section 108(4) and para 9. But, if the conclusion is that section 2 does, but section 14 does not, fall within section 108(4) and para 9, then the question still arises whether section 14 can be regarded as providing for the enforcement of that provision or as being otherwise appropriate for making such a provision effective or otherwise incidental to, or consequential on, such a provision within section 108(5). On behalf of the interveners, Mr Michael Fordham QC submits that para 9 gives general competence to regulate the Welsh NHS, the services which it provides and the standards its meets, but that it lacks, noticeably, any provision enabling charging for such services. The phrase Organisation and funding of national health service concerns, in his submission, the allocation by the Welsh Ministers of monies to fund the Welsh NHS and their control of spending by the Welsh NHS of any other monies available to it under (now) section 175 of the NHS (Wales) Act, enacted by the United Kingdom Parliament on 8th November 2006, just over three months after GOWA. He submits that there is nothing in para 9 to suggest any wider meaning. More specifically, on the interveners case, para 9 gives general competence in areas such as those dealt with specifically in Chapter 6 (Finance) of Part 11 of the NHS (Wales) Act. Chapter 6 provides that the Welsh Ministers are to decide what funds to allot to Special Health Authorities, what directions to give or conditions to attach regarding such funds (section 171) and what duties and resource limits to impose on such Authorities (sections 172 and 173). It further identifies what funding the Welsh Ministers must in each financial year provide to each Local Health Board (section 174) and the financial duties and resource limits to which such Boards are subject (sections 175 and 176) and makes further provision about the expenditure of such Boards (section 177 and Schedule 8). Exercising the competence provided in these areas, the Welsh Assembly has by the National Health Service Finance (Wales) Act 2014 recently amended section 175, to provide for each Local Health Board to balance its expenditure and income in each three year accounting period, rather than in respect of each financial year as originally enacted. But what para 9 is not, Mr Michael Fordham QC submits, is a provision which itself enables the Welsh Assembly to impose (or authorise the Welsh Ministers to impose) charges on anyone either for Welsh NHS services or on any other basis. It is common ground that the Welsh Ministers do not have (and the Welsh Assembly does not have and cannot confer) general fiscal powers, an exception noted expressly in relation to economic development in paragraph 4 of Part 1 of Schedule 7 GOWA. The Welsh Government has large spending powers, but its funding of the services it supports is, at present, fundamentally dependent on the United Kingdoms block grant. The Welsh Assembly has limited powers or control in respect of business rates and council tax, in which connection the reference to Local government finance in paragraph 12 of Schedule 7 is relevant. That paragraph gives competence (subject to exceptions which I need not set out here) in respect of the Constitution, structure and areas of local authorities. Electoral arrangements for local authorities. Powers and duties of local authorities and their members and officers. Local government finance. The framework within which business rates and council tax are charged is provided by the Local Government Finance Act 1988, as amended in 1992 and 2012. Such taxes are payable to the relevant local government authorities, not to the Welsh Ministers. The reference to Local government finance enables the Welsh Assembly, for example, to determine the level of business rates or limit council tax increases chargeable under these statutes (though, under the block grant system, this does not appear to affect the overall level of funding available to the Welsh Government). But, it cannot on any view be read as a general power enabling the Welsh Assembly to raise funds in any way it may decide, even if such funds are ear marked for use to support local government activities. In support of a generous interpretation of the concept of Organisation and funding of national health service, the Counsel General drew attention to the previous legislative competence under section 94 and Schedule 5 of GOWA, to enact measures relating to the red meat industry in relation to increasing efficiency or productivity, improving marketing, improving or developing services or ways in which the industry contributes to sustainable development. This was treated by the Welsh Assembly as enabling the enactment of the Red Meat Industry (Wales) Measure 2010, permitting the imposition of a levy to meet expenditure incurred on such objectives. He points out that that measure was not challenged. Equally, this means that there is no authority throwing light on its competence. The argument in favour of a generous interpretation can be further advanced, as Lord Thomas notes, by the consideration that the Welsh Assembly is undoubtedly entitled to expend monies out of the block grant on matters covered by other paragraphs of Schedule 7, such as para 5 covering education, training and the careers service, which do not make any specific reference to finance or funding. The specific reference to funding in para 9 may therefore suggest an intention to cover matters other than mere allocation of funds. I do not on the other hand find any assistance in the exception to para 9 relating to the regulation of prices of human medicines and medicinal products. Schedule 8 to the NHS (Wales) Act contains provisions relating to the reimbursement of any remuneration referable to the cost of drugs which is paid by any Local Health Board in any year. The exception in para 9 appears simply to make clear that the Welsh Assembly has no competence to regulate the price of such drugs. It does not to my mind carry either sides argument on the present issues. The language of paragraph 9 of Schedule 7 addresses matters all closely linked to the internal organisation and the delivery of national health services promoting health, preventing, treating and alleviating (or controlling) disease, illness, injury, disability or mental disorder, providing services, governance and standards of care and finally organisation and funding of national health service. A natural inference is, I think, that funding was also seen as closely linked with the internal organisation and delivery of health services. As background to an understanding of para 9, it is not, I consider, inadmissible to take note of the position regarding charging for health services as it was under the National Health Service Act 1977 in force when GOWA was passed and as it was re enacted, in relation to Wales, by the NHS (Wales) Act 2006, passed three months after GOWA was enacted, and still in force. A fundamental tenet of the National Health Service from its outset has been that the services it provides should be free of charge, except where any relevant statutory provision expressly provides for the making and recovery of charges: section 1(2) of the National Health Service Act 1946, section 1(2) of the National Health Service Act 1977, and, now, in relation to Wales, section 1(3) of the NHS (Wales) Act 2006, described as an Act to consolidate certain enactments relating to the health service, among which were necessarily the National Health Service Act 1977 so far as it concerned Wales. Section 1(3) provides that the services provided must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed. The Counsel General addressed submissions to the question whether in context this refers only to enactments by the Westminster Parliament, or whether it extends to the Welsh Assembly. I have no difficulty in accepting that it extends to the latter, but it does not itself confer competence. Competence to provide for such charges must be found elsewhere. Within the NHS (Wales) Act itself there are provisions which do expressly confer on the Welsh Ministers power to make regulations providing for the making and recovery of charges prescribed in respect of the supply under that Act of drugs, medicines or appliances except for a patient who is resident in hospital or in respect of pharmaceutical services: see sections 121 and 122. These, as the Counsel General points out, are the successors to the powers to make or remit prescription charges formerly existing under sections 77, 83, 83A (as inserted by section 14(1) of the Social Security Act 1988) and 126(4) of the National Health Service Act 1977, which powers were then devolved to the Welsh Assembly by Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/672), under the Government of Wales Act 1998. Section 126(1) of the 1977 Act was also amended by section 6 of the National Health Service Reform and Health Care Professions Act 2002 to provide expressly that regulations made under the 1977 Act might be made by an instrument made by the Welsh Assembly. It was pursuant to the powers so devolved and conferred that the Welsh Assembly enacted its flagship reform, The National Health Service (Free Prescription and Charges for Drugs and Appliances) (Wales) Regulations 2007 (SI 2007/121 W11), which abolished prescription charges with effect from 1st April 2007. By the same token, if it were so decided, prescription charges could now be restored by regulations made by the Welsh Ministers under sections 121 and 122. But section 122 would in terms prevent their imposition in respect of a patient resident in hospital. Another provision of the same Act enables the Welsh Ministers to recover in respect of accommodation in single rooms or small wards which is not needed by any patient on medical grounds: section 137. On the Counsel Generals case, the coming into force on 5 May 2011 of paragraph 9 of Schedule 7 of GOWA gives the Welsh Assembly competence to override or vary the scheme which existed under the 1977 Act when GOWA was passed and was consolidated in relation to Wales three months later by the NHS (Wales) Act by imposing charges on any basis which can be said to contribute to funding the Welsh NHS (with the sole qualification that the exception from para 9 would preclude it regulating the prices of Human medicines and medicinal products). The schemes of the National Health Service Acts and of GOWA are legally separate, and nothing in principle prevents the conclusion which he advocates. Against such a conclusion, it may however be said that it gives rise to duplication of competences, with the Welsh Assembly having legislative competence in areas where the Welsh Ministers have delegated powers under the NHS (Wales) Act, and that it gives para 9 an extended scope of uncertain width, when its more obvious aim is the allocation to health boards and other health authorities or professionals of resources available to the Welsh Ministers and the Welsh National Health Service, rather than the raising of revenue. I do not consider that the essentially budgetary, accounting, auditing and macro financial provisions of Part 5 (sections 117 145) of GOWA are by themselves a necessary answer to this point. In these circumstances, although I see the force of the Counsel Generals submission that organisation and funding in para 9 goes beyond allocation of resources, I prefer to approach the present appeal on an assumption, rather than deciding, that para 9 is, at least to some extent, capable of covering the raising of monies, for example by levying charges for services. But this cannot, in my opinion, mean that para 9 confers on the Welsh Assembly a general power to raise monies, even if they are to a greater or lesser extent hypothecated to the Welsh Health Service (as to which, see further para 28 below). The key question is whether, on the assumption I am making, GOWA provides legislative competence for the imposition of liabilities on compensators and insurers, and to this I therefore turn. Section 108(7) provides that 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. The expression relates to, used in section 108(4), has been examined in the context of the Scotland Act, where it is by section 29(3) given a definition identical to that in section 108(7) of GOWA. But it is used in the Scotland Act 1998 to define not the competence conferred to the devolved Parliament, but the competence reserved to the Westminster Parliament. Despite this difference, there is no reason to give the words a different meaning in the two pieces of legislation. The expression involves words of neutral meaning, used to define the parameters of competence. In a Scottish context, it was considered by the Supreme Court in Martin v Most [2010] UKSC 10, 2010 SC (UKSC) 40, paras 15 and 49 and in Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61, 2013 SLT 2, para 16. In Martin v Most Lord Walker said that the expression was familiar in this sort of context, indicating more than a loose or consequential connection, and the language of section 29(3), referring to a provisions purpose and effect, reinforces that (para 49). In Imperial Tobacco, Lord Hope, in a judgment with which all other members of the court agreed, endorsed Lord Walkers approach that the expression indicates something more than a loose or consequential connection (para 16). In a Welsh context, the test adopted in both these authorities was referred to with approval in the recent decision in In re Agricultural Sector (Wales) Bill [2014] UKSC 43; [2014] 1 WLR 2622, para 50, where the Supreme Court added that 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. 27. The provision of health services and the organisation and funding of the Welsh Health Service clearly cannot permit the Welsh Assembly to raise monies generally, by relying on the fact that any monies raised from any source increase the funds available for all its spending, including spending on the Health Service. The question is whether the position is different if the monies raised can be said to be specifically intended or hypothecated to provide funds for use in the Health Service. But, if that were sufficient, it would be difficult to see any real limit to the persons on whom or basis on which such charges might be imposed, provided only that the charges were levied on that express basis. The reality is also that, unless the charges are for research, treatment or other services which would not otherwise be undertaken or provided by the National Health Service, even a hypothecated charge is in substance no different from a general charge boosting the Welsh Governments resources. In these circumstances, any raising of charges permissible under para 9 would have, in my opinion, to be more directly connected with the service provided and its funding. The mere purpose and effect of raising money which can or will be used to cover part of the costs of the Welsh NHS could not constitute a sufficiently close connection. In the case of prescription or other charges to users of the Welsh NHS service, a direct connection with the service and its funding exists, in that users are directly involved with and benefitting by the service. In the case of charges under section 2, the argument would have to be that a sufficient connection can be found in the actual or alleged wrongdoing that led to a compensator making a compensation payment to or in respect of a sufferer from an asbestos related disease. But that is at best an indirect, loose or consequential connection. The expression organisation and funding of national health service could not, in my opinion, have been conceived with a view to covering what would amount in reality to rewriting the law of tort and breach of statutory duty by imposing on third persons (the compensators), having no other direct connection in law with the NHS, liability towards the Welsh Ministers to meet costs of NHS services provided to sufferers from asbestos related diseases towards whom such third persons decide to make a compensation payment for liability which may or may not exist or have been established or admitted. I add that, even if (contrary to my view) hypothecation were the test of part of the test of competence, section 15(1) of the Bill does not achieve it in terms. Under section 15, the Welsh Ministers must have regard to the desirability of expending amounts equalling the charges levied under section 2 on research into, treatment of, or other services relating to, asbestos related diseases. If what is desirable is achieved, then, whether or not the expenditure on such research, treatment or other services would anyway have occurred, the effect would be to cover part of the Welsh Ministers budget 28. for NHS services. But what is desirable is not necessarily achievable or achieved. Lord Thomas suggests (para 90) that the effect of para 9 would anyway be to confine the use of any monies raised to the Health Service, even if they were not used in relation to asbestos related diseases. But for the reasons already given, para 9 cannot in my opinion permit the Welsh Ministers to raise money in any way they choose even if the only purpose for which the monies raised can be used is on the Welsh NHS. 29. Even if a different view were to be taken about the existence of a sufficient connection in the case of section 2, I have no doubt that section 14 would fall outside the Welsh Assemblys legislative competence. It is argued that, assuming that section 2 falls within section 108(4) GOWA, then section 14 falls within section 108(5). That was also the basis on which the Presiding Officer made her statement of compatibility regarding section 14. But in my opinion it is not sustainable. The provisions of sections 5 13, summarised in para 3 above, could all be capable of being regarded as providing for the enforcement of, or otherwise appropriate for making effective, or incidental or consequential on, the provision contained in section 2, whereby compensators must pay the Welsh Ministers charges for NHS services provided to sufferers. But section 14 is directed to an entirely different relationship, that between compensators and their liability insurers. The only basis on which it could be argued to provide for enforcement of section 2, or be otherwise appropriate for making it effective, or be incidental or consequential on it, is financial. Without section 14, compensators required to pay under section 2 may lack the funds to do so. But section 108(5) is not, in my opinion, directed to or wide enough to cover what amounts to a separate scheme for the provision of financial recourse against third party insurers by the compensators who are primarily affected by the scheme introduced under section 108(4), as opposed to provisions enhancing the legal enforceability or, maybe, even the practical effectiveness of the scheme as against compensators. In law and practice, section 2 is part of a coherent, enforceable and effective scheme, irrespective of the financial means of compensators. And section 14 is just as incapable of being regarded as incidental or consequential to section 2. The limited role of the words incidental to, or consequential on is clear from Martin v Most 2010 SC (UKSC) 40. In that case, Lord Rodger at para 128 spoke of the kinds of modifications which are obviously necessary to give effect to a piece of devolved legislation, but which raise no separate issue of principle, contrasting these with other provisions which were independent and deal with distinct aspects of the situation. This guidance was adopted as being of assistance in the context of GOWA in Attorney General v National Assembly for Wales Commission [2012] UKSC 53, [2013] 1 AC 792, at paras 50 53 by Lord Neuberger, with the agreement of three other members of the court, while Lord Hope, with whom the same three members also agreed, distinguished at para 83 between, on the one hand, provisions which are merely subsidiary to other provisions and have consequences which can be seen to be minor or unimportant in the context of the Act as a whole and, on the other, provisions with an end and purpose of their own. 30. Section 14 clearly raises important issues of principle separate from sections 2 13. Unlike compensators, insurers are neither actual nor alleged wrongdoers. The rationale which exists for imposing liability for NHS charges on compensators does not apply to insurers. The rationales of imposing liability on insurers towards compensators are no doubt (i) that this favours the Welsh Ministers prospects of making a financial recovery under section 2, and (ii) perhaps also that it lessens the blow for, and is likely to avoid objections by, compensators, or at least those who remain solvent and had arranged liability insurance. But legislation imposing on insurers new contractual liabilities under old insurance policies years after they were made engages obvious and important general principles. None of the provisions of section 108(5) could in my opinion justify section 14, and the Bill would be outside the legislative competence of the Welsh Assembly on this ground also. 31. Lord Thomas suggests (paras 96 98) that any doubt about competence can be resolved by reference to the consideration that, if the present legislation had imposed charges in respect of National Health Service services on National Health Service patients generally or on victims of asbestos related diseases specifically, then neither the compensators nor their insurers could have had any complaint. The compensator would then have had to meet them, as any other loss, and they would have been recoverable from any liability insurer of the compensator subject to the terms of cover. This is a submission on which the Counsel General also relies in relation to the case under A1P1 (to which I turn later in this judgment), in which context Mr Michael Fordham QC for the interveners accepts that, if this is what had occurred, the compensators and insurers would have no case under A1P1. Their possessions would not have been disturbed, because what happened would have been within the scope of the legal obligations which they had incurred under the existing law of tort and the insurance contracts into which they had entered. 32. However, in the context of competence, reference to what might or might not have been done by other routes is in my view both irrelevant and detrimental for the coherent development and application of provisions of the kind contained in the devolution legislation. Either the Welsh Assembly has competence to do what it proposes, or it does not. It cannot confer competence on itself by hypothesising (however accurately) that it might legitimately have chosen a different route. The fact would remain that it had not chosen the right route. Questions of competence depend on whether what 33. is done is permitted, not on whether something which has not been done would have been permitted. I know of no authority for a contrary proposition, which would seem to me not only novel but confusing, deleterious and likely to give rise to extensive difficulties and arguments in application. The scenario in the present case also appears an unreal one. The suggested alternative route has not been used, and it seems highly improbable that it would be attempted. The National Health Service is a prized asset throughout the United Kingdom, founded on the basic principle of free care according to needs. Imposing NHS hospitalisation charges on sufferers of asbestos related diseases would seem even less thinkable than charging patients generally. It was also suggested that charges might be imposed on sufferers only insofar as such sufferers were able to recover from others in respect of them. This is not in fact what the Bill proposes it makes compensators liable in the first instance, although it aims to assist those with relevant insurance to recover under it and to do so also overrides or varies the insurance terms as far as necessary. The suggested scenario does not therefore match the Bill; it would be artificial and would highlight the reality that what were in reality being imposed were liabilities on compensators and insurers, not on victims. But in any event it is irrelevant, for the basic reason that competence must be judged by reference to what the Bill proposes, not by reference to some different scheme the competence to enact which would have to be assessed in the light of its own terms. 34. For all these reasons, I conclude that the Bill falls outside the legislative competence of the Welsh Assembly, in that it does not relate to any of the subjects listed in paragraph 9 of Part 1 of Schedule 7 to the Government of Wales Act 2006, and I would answer the Counsel Generals reference accordingly. Does the Bill infringe A1P1? 35. In the light of the conclusion I have reached in paras 27, 30 and 34, this issue does not strictly arise for decision. But it has been fully argued, and involves a disagreement about the applicable principles which has general importance. I will therefore express my views on it. For this purpose, it is necessary to assume, contrary to my conclusion in para 34, that the Bill falls within section 108(4) and/or (5) of GOWA. The question is whether, on that basis, it is compatible with the Convention rights scheduled to the Human Rights Act 1998 as required by section 108(6)(c). The relevant right allegedly infringed is article 1 of Protocol No 1 (A1P1). This reads: 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. 36. The relevant NHS costs and compensation payments will be incurred only in the future, once the Bill is in force. But the liability or alleged liability which under section 2 triggers the Welsh Ministers right to recover in respect of them arises from exposure to asbestos which occurred decades ago. The effect of the Bill is therefore to impose on compensators, in the first instance, and their insurers, in the second instance, burdens which have not previously existed. The interveners submit that the Bill would thus deprive both employers and their insurers of their previous legal freedom from exposure to the relevant charges and of their possessions in the form of the assets they would have to use to discharge the new liabilities imposed by the Bill. 37. The Counsel General for Wales submits, in response, that it is not free from doubt whether A1P1 is engaged in these circumstances. Focusing only on the insurance position, his written case argues that a contract of insurance operates at the individual level, not at the level of the balance sheet of the insurer. The essence of insurance is however the pooling of risks and premia. The bottom line of an insurers balance sheet depends upon the rating and writing of individual contracts, which in their totality make up its underwriting book. All individual contracts are a piece of the whole, a part of the main. Any additional liability imposed on a category of policy will feed through into the balance sheet. The complex inter relationship between payments out and past, current and future premium receipts, and (since 1969) compulsory employers insurance for broadly defined liabilities, to which the Counsel General also refers, cannot obscure this simple truth. 38. The Counsel General points out, correctly, that insurers could have had no complaint if the sufferer had decided to use and had the means or insurance to cover hospitalisation in a private hospital. The sufferer could then have held the compensator liable and the compensator could in turn have looked to any insurer he had. That is true, but the liability would have arisen by a conventional route, and the likelihood or unlikelihood of its arising is something which compensators and their liability insurers could assess and factor into their accounts and plans. In reality, the likelihood of liability arising by this route must always have been small. 40. 39. The Counsel General also points out, correctly, that neither the compensators nor their insurers could have had any complaint if the present legislation had imposed the charges on the sufferer. The compensator would then have had to meet them, as any other loss, and they would have been recoverable from any liability insurer of the compensator subject to the terms of cover. In such circumstances, Mr Michael Fordham QC for the interveners accepts that the compensators and insurers would have no case under A1P1. Their possessions would not have been disturbed, because what happened would have been within the scope of the legal obligations which they had incurred under the existing law of tort and the insurance contracts into which they had entered. However, for reasons already noted in paras 32 and 33 above, this scenario is also an unreal one. It has not, and would never have, occurred. The further suggestion that charges might be imposed on sufferers only insofar as such sufferers were able to recover from others in respect of them seems equally remote. If any of these remote scenarios was to be treated as conceivable, it would fall within the exposure accepted by those causing victims to suffer asbestos related diseases and the risks accepted by their liability insurers. But it does not mean that either employers or employers liability insurers are taken to accept other, yet further risks, deriving from the positive intervention of the legislature, cutting across the ordinary law of tort and the agreed policy terms. The present case must again be judged by what the legislature has actually chosen to do no doubt because it concluded that this was necessary rather than by reference to remote contingencies, the non adoption of which by the legislature tends to confirm their unreality. In my opinion, and in agreement on this point with Lord Thomas (paras 103 104), A1P1 is engaged as regards both compensators and their liability insurers. Both are affected and potentially deprived of their possessions, in that the Bill alters their otherwise existing legal liabilities and imposes on them potentially increased financial burdens arising from events long past and policies made long ago. A persons financial resources are capable of being possessions within the meaning of A1P1, as Lord Hope of Craighead put it in AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 AC 868, para 25; the question is whether the alleged victim is a member of a class of people who risk being directly affected by the legislation, rather than subject to some purely hypothetical risk: paras 25 26, with reference to Burden v United Kingdom (2008) 47 EHRR 857, para 34. Lord Hopes judgment on these points carried the support of all members 41. 42. of the House: paras 73, 85 90, 109 114 and 177, with Lord Reed noting at para 111 that the Convention was intended to guarantee rights that were practical and effective and that the Convention concept of a victim was correspondingly broad. In AXA, the Scottish Parliament had by the Damages (Asbestos related Conditions) (Scotland) Act 2009 Act reversed the House of Lords decision in in Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] AC 281 that pleural plaques did not constitute damage for the purposes of a claim for breach of tortious or statutory duty. The effect was to make employers liable for loss not previously recoverable occurring as a result of long past breaches of duty. Employers insurers challenged the statute because of the additional burden which could thus fall on them. It was objected that they were not victims for the purposes of the Convention rights. The objection failed: paras 23 28 per Lord Hope, para 73 per Lord Brown of Eaton under Heywood, paras 85 90 per Lord Mance, paras 109 114 per Lord Reed and para 177 per all three other members of the Court agreeing with Lord Hope and Lord Reed. Lord Brown regarded the answer to the objection as clear almost beyond argument (para 73). Lord Reed and I pointed out that the logical consequence of the argument (had it been accepted) would have been that the true or only persons with victim status were employers: paras 110 and 190. 43. The position under the present Bill is a fortiori to that which existed in AXA. The Bill is clearly directed at both compensators and insurers, but it is also expressly directed at insurers as well as compensators. Moreover it imposes liabilities on both not only in conjunction with existing liabilities, but in addition to them. It does so in the case of compensators by making it irrelevant whether the compensation reflects any actual or admitted liability. It does so in the case of insurers by making them liable in circumstances where the insurance cover which they granted would not apply. For all these reasons, both compensators and insurers are in my opinion entitled to be regarded as victims for the purposes of A1P1. General principles under A1P1 44. The European Court of Human Rights has examined the application of A1P1 in a number of cases. These are all cases at an international level, in which the margin of appreciation had therefore an important potential role. We are concerned with the domestic application of the Convention. The margin of appreciation does not apply. Instead, the issue is with what intensity we should review the Bill and what deference is due or weight attaches to the legislatures view as to the appropriateness of the Bill: see per Lord Reed in AXA [2012] 1 AC 868, 131, R (Huitson) v Revenue and Customs Comrs [2011] EWCA Civ 893, [2012] QB 489, 85. 46. 45. The general principles according to which a court will review legislation for compliance with the Convention rights scheduled to the Human Rights Act 1998 have been comprehensively reviewed in recent case law, particularly Bank Mellat v Her Majestys Treasury (No 2) [2013] UKSC 39, [2014] AC 700, 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, and R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38, [2014] 3 WLR 200. There are four stages, which I can summarise as involving consideration of (i) whether there is a legitimate aim which could justify a restriction of the relevant protected right, (ii) whether the measure adopted is rationally connected to that aim, (iii) whether the aim could have been achieved by a less intrusive measure and (iv) whether, on a fair balance, the benefits of achieving the aim by the measure outweigh the disbenefits resulting from the restriction of the relevant protected right. The European Court of Human Rights has however indicated that these stages apply in relation to A1P1 with modifications which have themselves been varied over the years. Initially, in Handyside v United Kingdom (1976) 1 EHRR 737, para 62, followed in Marckx v Belgium (1979) 2 EHRR 330, para 63, the court said that the State was the sole judge of necessity for the purposes of deciding whether a deprivation of property was in the public interest. That no longer represents the position on any view. But the Counsel General for Wales and Mr Michael Fordham QC disagree as to the current position. The Counsel General submits that the court will at each of the four stages of the analysis respect the legislatures judgment as to what is in the public interest unless that judgment be manifestly without reasonable foundation: James v United Kingdom (1986) 8 EHRR 123, para 46. Mr Michael Fordham QC on the other hand submits that this passage was or, at least in subsequent authority, has been restricted in application to the first or at all events the first to third stages. In my opinion, Mr Michael Fordham QC is basically correct on this issue, at least as regards the fourth stage which presently matters, although that does not mean that significant weight may not or should not be given to the particular legislative choice even at the fourth stage. In James itself, the court went on in paras 47 49 to address the question whether the aim of the legislation was a legitimate one in principle concluding that the United Kingdom Parliaments belief in the existence of a social injustice was not such as could be characterised as manifestly unreasonable. But, turning in para 50 to the means chosen to achieve the aim, it then said: 47. This, however, does not settle the issue. Not only must a measure depriving a person of his property pursue, on the facts as well as in principle, a legitimate aim in the public interest, but there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, amongst others, and mutatis mutandis, the above mentioned Ashingdane judgment (1985) 7 EHRR 528, 57). This latter requirement was expressed in other terms in the Sporrong and Lnnroth judgment by the notion of the fair balance that must be struck between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights ((1982) 5 EHRR 35, para 69). The requisite balance will not be found if the person concerned has had to bear an individual and excessive burden (para 73). Although the court was speaking in that judgment in the context of the general rule of peaceful enjoyment of property enunciated in the first sentence of the first paragraph, it pointed out that the search for this balance is . reflected in the structure of article 1 (P1 1) as a whole (para 69). 48. Later authority confirms the principle governing the validity of the means chosen to achieve the aim is one of fair balance. The court has developed the distinction introduced in James. The court will accept the legislatures judgment as to what is in the public interest unless that judgment is manifestly without reasonable foundation. But an interference with peaceful enjoyment of possession must nevertheless strike a fair balance between the demands of the public or general interest of the community and the requirements of the protection of the individuals fundamental rights : see eg AGOSI v United Kingdom (1986) 9 EHRR 1, at paras 48 and 52, Gasus Dosier und Frdertechnik v Netherlands (1995) 20 EHRR 403, at para 62, Pressos Cia Naviera SA v Belgium (1995) 21 EHRR 301, at para 35 (covering in the public interest, with a footnote reference to James) and paras 36 44 (covering proportionality of the interference), Bck v Finland (2004) 40 EHRR 48, at paras 53 and 55, Grainger v United Kingdom (Application No 34940/10) (unreported) 10 July 2012, at paras 35 and 36 and, most recently, Paulet v United Kingdom The Times, 19 May 2014; [2014] ECHR 477, at para 63 (citing AGOSI). 49. Pressos and Bck are of particular interest in the present reference as cases of retrospective interference. In Pressos legislation removed retrospectively the tortious right to compensation which shipowners had, on the basis of longstanding Belgian Supreme Court authority, enjoyed. The Belgian government invoked the enormous financial implications of such liability (para 40), but the court said: 43. The financial considerations cited by the Government and their concern to bring Belgian law into line with the law of neighbouring countries could warrant prospective legislation in this area to derogate from the general law of tort. Such considerations could not justify legislating with retrospective effect with the aim and consequence of depriving the applicants of their claims for compensation. Such a fundamental interference with the applicants rights is inconsistent with preserving a fair balance between the interests at stake. 50. In Bck retrospective legislation had granted relief to impecunious debtors allowing them to write down their debts very substantially on the basis of a greatly reduced payment schedule. The retrospective nature of this legislation meant that a special justification [was] required for such interference with existing contracts. It was however remedial social legislation and in particular in the field of debt adjustment, it must be open to the legislature to take measures affecting the further execution of previously concluded contracts in order to attain the aim of the policy adopted (para 68). The striking amount of the reduction was justified by the consideration that the debt was already worth much less than its nominal value and any claim to recover it had already been rendered highly precarious before the debt adjustment for reasons not attributable to the State (paras 69 70). 51. Domestic law is to like effect. Lord Hope in AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 AC 868 addressed separately the issues of Legitimate aim (paras 29 33) and Proportionality (paras 34 41). Only in relation to the former did he identify the relevant test as being whether the legislatures choice as to what was in the public interest was manifestly unreasonable, citing in this connection James, 8 EHRR 123, at para 46. In relation to proportionality, he applied the fair balance test, citing Sporrong and Lnnroth and Pressos. Lord Reeds judgment contains the same distinction in paras 124 125 and 126 128. Save for Lord Brown, all the other four members of the court including myself were content to agree with Lord Hopes and Lord Reeds judgments on this aspect. However, Lord Brown at paras 80 and 83 took a different, rolled up approach to the issues of legitimate aim and proportionality. His approach would, if adopted, 52. 53. support the Counsel Generals approach that any challenge on either score must, to succeed, show that the measure was manifestly without reasonable justification. If Lord Browns judgment is read in this way, he was in a minority on the point and his view on it does not in my opinion represent the law. I conclude that there is Strasbourg authority testing the aim and the public interest by asking whether it was manifestly unreasonable, but the approach in Strasbourg to at least the fourth stage involves asking simply whether, weighing all relevant factors, the measure adopted achieves a fair or proportionate balance between the public interest being promoted and the other interests involved. The court will in this context weigh the benefits of the measure in terms of the aim being promoted against the disbenefits to other interests. Significant respect may be due to the legislatures decision, as one aspect of the margin of appreciation, but the hurdle to intervention will not be expressed at the high level of manifest unreasonableness. In this connection, it is important that, at the fourth stage of the Convention analysis, all relevant interests fall to be weighed and balanced. That means not merely public, but also all relevant private interests. The court may be especially well placed itself to evaluate the latter interests, which may not always have been fully or appropriately taken into account by the primary decision maker. It is also clear that The European Court of Human Rights scrutinises with particular circumspection legislation which confiscates property without compensation or operates retrospectively. In the case of confiscation, it will normally be disproportionate not to afford reasonable compensation, and a total lack of compensation will only be justifiable in exceptional circumstances. In the case of retrospective legislation, special justification will be required before the court will accept that a fair balance has been struck: paras 48 49 above. The Counsel General in his written case (paras 89 and 126) himself states that It is of course accepted, as the case law makes clear, that there is a need for special justification where a statutory provision has retrospective effect, while maintaining that this is present in the circumstances of this case. 54. At the domestic level, the margin of appreciation is not applicable, and the domestic court is not under the same disadvantages of physical and cultural distance as an international court. The fact that a measure is within a national legislatures margin of appreciation is not conclusive of proportionality when a national court is examining a measure at the national level: In re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] AC 173; R (Nicklinson) v Ministry of Justice [2014] 3 WLR 200, at paras 71, 163 and 230, per Lord Neuberger, Lord Mance and Lord Sumption. However, domestic courts cannot act as primary decision makers, and principles of institutional competence and respect indicate that they must attach appropriate weight to informed legislative choices at each stage in the Convention analysis: see AXA, para 131, per Lord Reed, R (Huitson) v Revenue and Customs Comrs [2011] EWCA Civ 893, [2012] QB 489, at para 85. But again, and in particular at the fourth stage, when all relevant interests fall to be evaluated, the domestic court may have an especially significant role. 55. To put a legislative measure in context, domestic courts may (under a rule quite distinct from that in Pepper v Hart [1993] AC 593) examine background material, including a white paper, explanatory departmental notes, ministerial statements and statements by members of parliament in debate: Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816. But care must at the same time be taken not to question the sufficiency of debate in the United Kingdom Parliament, in a way which would contravene article 9 of the Bill of Rights. In Wilson, at para 67, Lord Nicholls of Birkenhead put this point as follows (para 67): Lack of cogent justification in the course of parliamentary debate is not a matter which counts against the legislation on issue of proportionality. The court is called upon to evaluate the proportionality of the legislation, not the adequacy of the ministers exploration of the policy options or of his explanations to Parliament. The latter would contravene article 9 of the Bill of Rights. The court would then be presuming to evaluate the sufficiency of the legislative process leading up to the enactment of the statute. 56. There is in this connection a potential tension. If, at the fourth stage when the court is considering whether a measure strikes a fair balance, weight attaches to the legislative choice, then the extent to which the legislature has as the primary decision maker been in or put in a position to evaluate the various interests may affect the weight attaching to its assessment: see Belfast City Council v Miss Behavin Ltd [2007] UKHL 19, [2007] 1 WLR 1420, at paras precedent actually applies, and, if it does not, the same assistance cannot be obtained from the legislative choice as might otherwise be the case. Application of A1P1 to the present reference 57. I have already concluded that the Bill engages A1P1, and addressed the Counsel Generals argument that there are other means by which compensators and insurers might have become or been made liable to bear hospitalisation costs, without altering the laws of tort and contract in the way undertaken by the Bill. More generally, the Counsel General also submits that insurers (as well no doubt as compensators) run a considerable risk of unforeseen exposure, and that this is particularly so in relation to asbestos related diseases, as recent decades have shown. Accepting that as correct, it is, however, no justification for the retrospective imposition of further exposure, which they could legitimately expect could not and would not fall upon them. They could legitimately expect this not only when issuing their original policies, but also when considering their reserves for incurred but as yet unreported claims, as any long tail insurer must do regularly for accounting and solvency purposes and must no doubt also do when considering what, if any, reinsurance or further reinsurance it should from time to time purchase. I note in parenthesis, because no such points were developed before us and I do not therefore rely on them, that it is unclear what insurance policies could or would be caught by the Bill. The Bill is limited to Welsh NHS services, but it purports to apply to all insurance contracts issued to compensators. The proper law of such contracts might be English or Scottish or even foreign, and any indemnity might be due for performance outside, rather than in, Wales. It is not clear to me how Welsh legislation could affect a Scottish or foreign policy, and it might be arguable whether it could affect an English policy due for performance in (say) London. Another point on which the Bill is silent is reinsurance. Having imposed on insurers uncovenanted liabilities, the Bill leaves insurers to make whatever recovery they can under any reinsurances which may be in wide enough terms, without alteration, to cover such new liabilities. 59. The Counsel General relies on the Supreme Courts reasoning as well as the decision in the AXA case. The Counsel General and Mr Michael Fordham QC differ in their analysis of this reasoning. The Counsel General relies upon Lord Hopes identification in paras 37 38 of a special feature of that case as being that the business in which insurers are engaged and in pursuance of which they wrote the policies that will give rise to the obligation to indemnify is a commercial venture which is inextricably associated with risk (para 38). Lord Hope went on to point out that phrases such as bodily injury or disease might expand as medical knowledge and circumstances changed, that new diseases might become familiar, as occurred with asbestos related diseases, and that the number, nature and value of claims were always liable to develop in ways that were unpredictable. Lord Hope was addressing the expansion of insurance liabilities by conventional routes, including the relaxed approach to causation taken in cases such as Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 23, [2003] 1 AC 32 and the Trigger litigation, and using that as a stepping stone for consideration of the issue before the Supreme Court in AXA which was whether a legislative reversal of the prior House of Lords decision in Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] AC 281 could be similarly categorised. 60. Lord Hopes words commanded the agreement of a majority of other members of the court, but I do not accept the Counsel Generals submission that this means that there was disagreement between him and the judgments of either Lord Brown or myself in this area. Lord Hope was careful to make clear in para 40 that the case was not one where the law was settled the Scottish Parliament was restoring a position which might well have represented the law. He also stressed at para 37 that the liability imposed by the Act depended on establishing negligence and preserved all other defences, other than the single question whether pleural plaques are as such actionable. Consistently with this, Lord Brown at para 83 made clear that the case turned on the absence of any legitimate expectation as to the irrecoverability of damages for pleural plaques, rather than on the fact that the appellants as insurers are in a business inevitably associated with risks and unpredictable events. I expanded this point at para 91, when I said: Retrospectivity. The key to this issue is not in my view that insurance is a contract against risks. There are always limits to the contingencies upon which insurers speculate, provided by the terms and conditions of the policy. Further, insurers are normally entitled to expect that the liabilities, which their insured employers incur arising out of and in the course of [their] employment and which they insured under the specimen copy policy to which I have referred, will be liabilities capable of existing in law at the time of the occurrence during the relevant employment from which such liabilities arise. Hence, the present challenge to the 2009 Act is based on the fact that it retrospectively converts into harm actionable in law physical changes which (it has been held in Rothwell ) were not otherwise such, in the hope or expectation that the relevant policies will respond to that development. 61. As the outcome of AXA itself shows, the mere fact that legislation changes the pre existing law retrospectively does not make it incompatible with A1P1. Lord Brown was in AXA (para 78) exercised in this connection by a possible distinction between the power of the courts to adapt and develop (ie change) the law (albeit within well recognised constraining limits) to accord with what the judges consider to be the contemporary demands of justice and the position of the legislature. But the answer to this concern appears to me to lie at least generally in Lord Browns own words adapt and develop and well recognised limits. The common law moves, so far as possible, incrementally and, when some greater shift takes place, it can be expected to be based on some general social consensus that it is appropriate. Common law courts have themselves accepted the possibility of prospective overruling, with express reference to its potential utility in a Convention context: In re Spectrum [2005] UKHL 41, [2005] 2 AC 680 and A v HM Treasury (JUSTICE intervening) [2010] UKSC 5, [2010] 2 AC 534, 693 694, at para 17 per Lord Hope. As this implies, common law jurisprudence must itself take account of the principle that special justification is required for retrospective changes upsetting legitimate expectations. 62. That failure to do this may contravene Convention rights has recently been underlined by the European Court of Human Rightss decision in del Ro Prado v Spain (Application No 42750/09) (unreported) given on 21 October 2013. In that case, the periods to be served under various prison sentences had, in accordance with previous case law stemming from a decision of the Spanish Supreme Court dating in 1994, been ordered in 2000 to be combined and capped at 30 years. However, in 2006 the Spanish Supreme Court in its Parot judgment (STS 197/2006) departed from this previous case law, holding that the sentences should be viewed individually, with the result that the applicants release date was refixed by the Audiencia Nacional in 2008 to expire at a date some nine years later than it would have done. The Strasbourg Court adopted a test of foreseeability (para 130), holding that at the time when the applicant was convicted, detained and notified of the decision to combine the sentences and set a maximum term of imprisonment, she could not have foreseen to a reasonable degree that the method used to apply remissions of sentence for work done in detention would change as a result of a departure from case law by the Supreme Court in 2006 and that the new approach would be applied to her. Her detention after the expiry of the combined period of 30 years was accordingly unlawful under article 5(1) of the Convention, and Spain was ordered both to compensate her and to ensure her release. Whether the issue of retrospectivity arises in a statutory or common law context, there are therefore potential constraints which reflect the legitimate expectations of those affected. 63. The Counsel General submits that AXA was a stronger case for treating the legislation as incompatible than the present, yet the Supreme Court did not do so. I do not accept the Counsel Generals analysis. The Scottish statute in issue in AXA affected all outstanding and future claims, and the present Bill on its face also affects all future compensation payments made in respect of outstanding and future claims. But the two differ in other important respects: a. The Scottish statute was passed to rectify a perceived injustice directly affecting those suffering from asbestos related diseases, and was in this very real sense social remedial legislation. Despite the Counsel Generals contrary submission, the same cannot in my opinion be said of the Bill. It has no effect on sufferers from asbestos related diseases. Its purpose is to transfer the financial burden of costs of their hospitalisation from the Welsh Ministers to compensators and their insurers. b. The Scottish statute was passed to restore the legal position as it had been understood at first instance for some decades, and it might well have been accepted as being at the highest instance. The present Bill aims to change a well understood position which has existed since the NHS was created, by introducing a new right of recourse which has never previously existed, though it is one which Parliament could at or at any time since the creation of the NHS have decided to introduce without any legal problem in relation to future events giving rise to liability claims against compensators (and so to liability insurance claims by compensators against their liability insurers). c. The Scottish statute built on established legal principles, requiring liability to exist before compensators could be compelled to meet claims for pleural plaques and for insurance cover to exist before such compensators could recover from their liability insurers. This was one of the two points stressed by Lord Hope in AXA, as I have mentioned in the preceding paragraph. The Bill bypasses such principles, making the liability of compensators dependent simply on the payment of compensation, even if made without admission of liability and making the liability of insurers arise independently of the terms of the insurance policies issued, by reference to the fact of payment of such compensation, provided such policies would to some extent cover any liability which such compensators would, if it were established, have had. 64. The first of these points requires further treatment. The Counsel General submits that, although the Bill has no effect on sufferers from asbestos related diseases, it is a measure passed as a matter of economic and social policy, in relation to which the Welsh Assembly should be recognised as having a wide area of appreciation and discretionary judgment: see Huitson [2012] QB 489, at para 85 per Mummery LJ. He also cites in support the Houses decision in Wilson [2004] 1 AC 816. Both these were cases where the relevant legislation had retrospective aspects. But in both there were directly applicable and compelling social interests militating in favour of retrospectivity. Wilson concerned consumer protection legislation regarding the enforceability of loan agreements which failed correctly to state the amount of credit. Huitson concerned legislation protecting a grave challenge to the public exchequer, posed by wholly artificial tax arrangements taking advantage of double taxation treaties to avoid the payment of United Kingdom tax by United Kingdom residents. The arrangements were anyway doubtfully legal and such residents had no legitimate expectation that they could avoid such tax. 65. Although the Bill would either save the Welsh Ministers money or add to their resources, it is not shown that it would achieve a directly applicable or compelling social or economic interest comparable with those involved in these previous cases. Section 15 of the Bill contains the specific enjoinder that the Ministers should have regard to the desirability of equivalent sums being made available for research into, treatment of or other services relating to asbestos related diseases, but it is not shown that any such sums so expended would add to existing sums already being spent in these areas, or resolve any exceptional social or economic problem. It is common knowledge that the funding of the National Health Service is under increasing strain throughout the United Kingdom, and it may be so even more in Wales than elsewhere, but that is a different level of general problem to any shown on the authorities to be relevant in the present context. 66. The Counsel General maintains that special justification exists for the retrospectivity involved in the Bill because, without it, the Bill cannot achieve its legitimate policy aim. That is a circular submission, which, if accepted, would eliminate the important balancing stage of the proportionality exercise identified by Lord Reed in Bank Mellat (para 43 above) by Lord Hope in AXA (para 49 above) and by the Strasbourg Court in its case law (paras 44 48 above). As a matter of legislative policy it could be thought appropriate by the relevant legislature that the Welsh NHS should be able to recover hospitalisation costs from those whose breach of tortious or statutory duty caused them to be incurred. But that is, as I have noted, a provision which could have been made by the United Kingdom when or at any time since the NHS was introduced. It is a provision which would no doubt have been proportionate if introduced in relation to future exposure to asbestos and future insurance contracts. But rewriting historically incurred obligations to impose it in relation to future Welsh NHS costs is a quite different step. It is a step for which, on the authorities and as the Counsel General accepts, special justification is necessary, and none is shown. I therefore conclude that, even assuming the Bill to satisfy section 108(4) and/or (5), it falls outside the legislative competence of the Welsh Assembly. 67. Lord Thomas attaches great weight to the judgment of the Welsh Assembly that this is a measure which should in the interests of Wales be enacted. I agree that weight should be given to the Welsh Assemblys judgment. But it is the courts function, under GOWA, to evaluate the relevant considerations and to form its own judgment, on the issue both of legislative competence and of consistency with the Convention rights. I would arrive at the conclusions I have, even if the background to the Bill had consisted of a full presentation and appreciation of its implications by those responsible for promoting and passing the legislation. My conclusion is merely reinforced by the consideration that this does not appear to have been the case. Rather, the Bill was seen as a mere extension in degree of a United Kingdom measure which had already been accepted in principle by the United Kingdom Parliament despite its retrospectivity. The measure in question is the Health and Social Care (Community Health and Standards) Act 2003. This applies to enable the recovery from compensators of costs of hospitalisation incurred by the National Health Service in consequence of any injury, whether physical or psychological: section 150(1) and (2). Injury is specifically defined as not including any disease: section 150(5). The exclusion of disease was in the light of strong representations about the retrospective implications of covering disease, and a lead time of (in the event) three years was allowed before the Act came into force in relation to injury, following representations that a lead time of two or more years was required to allow insurers to re rate policies to cover the relative short tail exposure arising from injury. In short, the 2003 Act shows the United Kingdom Parliament concerned not to legislate in a manner which was to any significant extent retrospective. 68. The 2003 Act was explained by the Health and Social Care Committee which reported on the Bill for the Welsh Assembly in March 2013 as not differing in principle on the question of retrospectivity, though it was said that due to the lengthy latency period for asbestos related diseases, compared with the immediacy of accidental injuries, there may well be a difference in scale between the functions of the two pieces of legislation; that is the degree of retrospectivity will be greater in the Bill than the 2003 Act (para 98). Nevertheless, the Committee went on to add that it was content that the Bill will not apply to compensation payments that have already made [sic] and that it is inevitable that insurance claims arise for matters and amounts that could not be fully foreseen when the original policies were taken out. We believe that is the nature of the insurance business. (para 99). 69. The Committees assessment of the Bill as no different in principle, but only different in degree, from the 2003 Act does not reflect the very real and substantial difference in both aim and effect of the two measures. The Committees final comment in para 99 would, if carried to a logical conclusion, justify any retrospective re writing of any insurance contract, and, for the reasons which I gave in AXA, is not a justification for imposing on compensators and insurers unforeseen and unforeseeable new obligations which they had no opportunity to assess, rate or make reserves to cover. Conclusion 70. It follows from the above that I regard the Bill as outside the legislative competence of the Welsh Assembly under both section 108(4) and section 108(5) GOWA, and, had I reached a contrary conclusion on that, as outside its legislative competence under section 108(6)(c). I would answer the Counsel Generals reference to that effect. LORD THOMAS: (with whom Lady Hale agrees) Introduction 71. I agree with the result set out in the judgment of Lord Mance on the referred question, namely whether the National Assembly for Wales (the Welsh Assembly) had legislative competence to impose the liabilities set out in the Bill on insurers under section 14 of the Bill. However, as my reasons for reaching that conclusion are much narrower and as I have reached a different conclusion on other issues, I will set out my own views. 72. The original challenge to the legislative competence of the Welsh Assembly was the contention by the Association of British Insurers that section 14 of the Bill was incompatible with the Convention rights of insurers under article 1 of Protocol 1 (A1P1) and therefore infringed section 108(6)(c) of the Government of Wales Act 2006 (GOWA 2006). The Association of British Insurers subsequently raised in their written case the further issue as to whether the legislative competence conferred on the Welsh Assembly under section 108(4) and (5) to pass primary legislation included competence to impose the liabilities set out in the Bill on insurers and others. 73. It became apparent as the argument developed that, although the question referred by the Counsel General was limited to the legislative competence of the Welsh Assembly to enact section 14 of the Bill which related only to insurers, the issues also necessarily encompassed the position of those within section 2 whose alleged negligence or breach of statutory duty in the past had caused asbestos related diseases. As those within section 2 will in the overwhelming number of cases be the employers of those who are suffering from asbestos related diseases, it is convenient to refer to those within section 2 as employers. It is important to note that it is by no means clear that any employer or any other person encompassed within section 2 objected to the provisions of the Bill which imposed liability on them. Certainly no argument was advanced before the court by anyone instructed on behalf of any such person. The argument was solely advanced by the Association of British Insurers to protect their own interests. The legislative background 74. It has been clear since at least the late 1970s that the majority of persons suffering from asbestos related diseases are employees of industrial enterprises who contracted the disease whilst in such employment. If the negligence or breach of statutory duty of their employer caused the injury giving rise to the disease, the employer will be liable for damages as a tortfeasor. Those damages will include medical expenses incurred by the employee if, for example, the employee has incurred them by seeking private treatment or required a level of care not provided under the National Health Service. The employer, if insured under the usual form of employers liability policy, will be entitled to recover an indemnity for such damages under the policy, subject to the terms of the policy and any permitted limits or deductibles. 75. However, as the National Health Service in the United Kingdom (NHS) has, since its establishment under the National Health Service Act 1946, provided care on the basis of the service being free of charge at the point of delivery, the cost of medical treatment and of long term care has for the overwhelming majority of those suffering from asbestos related diseases been met from the financial allocation made by the State to the NHS. That cost has therefore been a charge to the general revenue of the State rather than being met by the tortfeasor, namely the employer whose negligence brought about the disease, and by the insurers of that employer. It is in reality a state benefit provided by the State to such employers and their insurers which relieves them of some of the consequences of the employers wrongdoing as a tortfeasor. 76. 77. 78. In 2006, separate legislative provision was made by the United Kingdom Parliament for the National Health Service in Wales by the National Health Service (Wales) Act 2006 (the NHS (Wales) Act), a consolidating Act which replaced the National Health Service Act 1977 and set out a framework for the National Health Service in Wales (the Welsh NHS). The Act was enacted by the United Kingdom Parliament at a time when the Welsh Assembly did not have legislative competence to pass primary legislation. In 2013, about two years after the provisions of Part 4 of the GOWA 2006 came into effect, conferring on the Welsh Assembly competence to enact primary legislation in defined areas, the Bill referred was enacted as primary legislation by the Welsh Assembly. On my analysis of the provisions of the Bill, it should be seen as having two distinct aims. (i) The first and central aim of the Bill is to withdraw the requirement that the Welsh NHS continue the delivery of the benefit to employers and their insurers of not having to meet the cost of medical treatment and care of an employee where the employers are responsible for causing asbestos diseases as tortfeasors. It is intended that the costs of medical treatment and long term care of such employees incurred by the Welsh NHS after the coming into force of the Bill are to be met by employers responsible at any time in the past for causing asbestos related diseases and by the employers insurers, rather than being met out of the monies generally provided by the Welsh Government to the Welsh NHS out of the block grant allocated by Her Majestys Treasury to the Welsh Assembly. (ii) The second, but necessarily subsidiary, aim is to establish machinery for collection of the costs which is as simple and as efficient as possible and causes those with asbestos related diseases the least stress. It is intended that the machinery would enable employers to recover under their employers liability policy the sums payable by way of charges to the Welsh NHS which would have been payable if the liability for such charges had been imposed on the employees and recovered in the conventional way as damages from the employers. It is against that short summary of the background that I turn to consider the issues of legislative competence under section 108 (4) and (5) and in respect of A1P1. It is important to underline two points at the outset. (i) The basis of the view I have formed is that the Bill has the two distinct objectives which I have set out and which it is necessary to analyse separately. (ii) Secondly, it is necessary in such an analysis first to consider the liability of the employer. That is because the effect of the Bill on the liability of insurers under their employers liability policies depends on an examination of the two distinct objectives of the Bill as they affect any employer who has the benefit of employers liability insurance. My approach was not the central focus of the argument, particularly because the only challenge was from the insurance industry and not from any of the employers. However because the procedure to refer a question to this court operates as a direct reference resulting in a final decision without the benefit of a prior decision of another court and because the effect of the judgment of Lord Mance, as the view of the majority of the court, is far reaching and final, it is necessary to set out my own analysis. The position of employers under section 2 of the Bill (1) Legislative competence under section 108(4) and (5) (a) The legislative competence to fund the Health Service under section 108(4) and (5) and Schedule 7 79. The legislative competence of the Welsh Assembly to enact primary legislation extends to legislating afresh by a new Act of the Welsh Assembly or by amending by means of a new Act of the Welsh Assembly a statute previously enacted by the United Kingdom Parliament. Its competence to do so, apart from compliance with the Convention on Human Rights, is set out in section 108(4) and (5) of the GOWA 2006 and the 20 headings enumerating specific competence set out in Part 1 of Schedule 7. These provisions which operate on a conferred powers model were recently considered and explained in In re Agricultural Sector (Wales) Bill [2014] UKSC 43, [2014] 1 WLR 2622. 80. The relevant heading in Part 1 of Schedule 7 is Heading 9: Health and health services: Promotion of health. Prevention, treatment and alleviation of disease, illness, injury, disability and mental disorder. Control of disease. Family planning. Provision of health services, including medical, dental, ophthalmic, pharmaceutical and ancillary services and facilities. Clinical governance and standards of health care. Organisation and funding of national health service. 81. Although none of the exceptions listed under this heading is relevant, it is clear from the whole of Part 1 of Schedule 7 and the exceptions under other headings that no general competence in relation to taxation is conferred on the Welsh Assembly. 83. 82. The main issue in relation to the specific competence under section 108(4) and (5) to impose charges on employers for the services in providing medical treatment and long term care of employees is therefore whether the Bill relates to the Organisation and funding of national health service. There are two relevant meanings which the term funding might ordinarily bear (1) raising funds or (2) allocating funds. Interpreting the GOWA 2006 by giving the words their ordinary meaning in their context, I consider that this term has the first of those meanings raising funds for the Welsh NHS by, for example, charging for the services it provides. I do not consider that it has the second of those relevant meanings the provision and allocation to the Welsh NHS of the monies made available to the Welsh Consolidated Fund under sections 118 120 of the GOWA 2006. The extensive powers to allocate expenditure from that Fund are governed by sections 124 to 129. It would therefore be unnecessary to include in Schedule 7 a specific power referable to the Welsh NHS. This is not done elsewhere in Part 1 of Schedule 7; for example, another important part of the expenditure of the Welsh Assembly is expenditure on education, but there is no reference under Heading 5 education and training to funding. This strongly supports the interpretation of the phrase funding of National Health Service in the context in which it appears in the GOWA 2006 as having the first of these meanings. 84. The submission to the contrary advanced on behalf of the Association of British Insurers (clearly summarised in paras 15 and 16 of the judgment of Lord Mance) was that organisation and funding of national health service should be construed by reference to the subordinate legislative powers conferred under the NHS (Wales) Act and effectively limited to those powers. It is necessary to examine the background in some detail. 85. Prior to the first phase of devolution in 1999 (as explained at para 19 of the judgment in In re Agricultural Sector (Wales) Bill [2014] 1 WLR 2622, section 1(2) of the National Health Service Act 1977 provided that: The services so provided must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment whenever passed. 86. Sections 77 to 83A of that Act (as amended prior to 1999) enabled charges to be made for specified services; the powers to set prescription and other charges were set out in section 77. These were exercisable by the Secretary of State by subordinate legislation. Under the National Assembly for Wales (Transfer of Functions) Order 1999, the powers of the Secretary of State under the National Health Service Act 1977 were simply transferred to the Welsh Assembly, as under the first phase of devolution the Welsh Assembly only had the power to make subordinate legislation. In 2006, the UK Parliament consolidated the legislation in relation to the NHS. It enacted for the National Health Service in England the National Health Service Act 2006 and for Wales the NHS (Wales) Act 2006. The powers under section 77 of the National Health Service Act 1977 (as amended) were re enacted in section 121 of the NHS (Wales) Act as powers to make subordinate legislation. Section 1(2) was re enacted as section 1(3). 87. The NHS (Wales) Act was enacted by the United Kingdom Parliament in 2006 three months after the enactment of the GOWA 2006; the provisions of Part 4 and Schedule 7 of the GOWA 2006 conferring on the Welsh Assembly competence to pass primary legislation required a referendum before such competence would take effect. The legislative competence of the Welsh Assembly under the GOWA 2006 was at first limited under Part 3 and Schedule 5 to what was described as the second phase of Welsh devolution in paras 24 26 of the judgment in In re Agricultural Sector (Wales) Bill. Primary legislative provision relating to the Welsh NHS could only therefore be made by the United Kingdom Parliament, unless specific powers were granted to the Welsh Assembly to pass an Assembly Measure under Part 3. 88. Whilst the competence of the Welsh Assembly was limited under the second phase of Welsh devolution, it was entirely appropriate to consider Part 3 and Schedule 5 of the GOWA 2006 and the NHS (Wales) Act together. It followed that during the currency of the second phase of Welsh devolution amendments to prescription charges were made under subordinate legislation under section 121 of the NHS (Wales) Act. It was through these powers that the National Health Service (Free Prescription and Charges for Drugs and Appliances) (Wales) Regulations 2007 were by the Welsh Assembly made as subordinate legislation constrained by the terms of the NHS (Wales) Act 2006. 89. However, since Part 4 and Schedule 7 has come into effect after the referendum and has brought about the third phase of Welsh devolution, the Welsh Assembly may within the competence conferred by Part 4 and Schedule 7 amend legislation passed by the United Kingdom Parliament prior to March 2011 or supplement it by new primary legislation. 90. The construction advanced on behalf of the Association of British Insurers sought to limit the primary legislative competence of the Welsh Assembly in the third phase of devolution under Part 4 and Schedule 7 by reference to the powers originally conferred by legislation of the United Kingdom Parliament on the Secretary of State to make subordinate legislation and continued under the first and second phases of Welsh devolution. Viewed against the background I have set out, I cannot accept the submission. 91. First the GOWA 2006 and in particular Part 4 and Schedule 7 should, in my view, be construed by reference to the other terms of the GOWA 2006 and not by reference to other statutes of the United Kingdom Parliament such as the NHS (Wales) Act. The position is, in my view, no different to that set out in para 42 of the judgment in In re Agricultural Sector (Wales) Bill with respect to interpreting the legislative competence of the Welsh Assembly. That 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 United Kingdom Parliament and United Kingdom Ministers on the one hand and the Welsh Assembly on the other hand in the first and second phases of Welsh devolution. 92. Second, although the provision in section 121 of the NHS (Wales) Act was necessary to enable the Welsh Assembly to exercise subordinate legislative powers before it received primary legislative competence, once it received primary legislative competence, I see no reason to hold that the powers under the GOWA 2006 should remain so limited. Although the provisions of the National Health Service Act 1977 and the NHS (Wales) Act set out detailed provisions setting out what could be done by secondary legislation and what required primary legislation, there is nothing to suggest that Parliament intended these to be of relevance once the Welsh Assembly acquired primary legislative powers. 93. Third, there is a clear distinction between exercising general tax raising powers and charging for services provided by the NHS. A specific cost can be attributed to the services. The funds so raised can then be used to defer the costs of those services rather than utilising the grant provided to the Welsh Consolidated Fund. Thus it is entirely consistent with the grant to the Welsh Assembly of primary legislative powers in respect of health under Heading 9, that the Welsh Assembly was given competence to vary the NHS (Wales) Act and to charge for services provided without being constrained by the terms of that Act. If on the interpretation of Heading 9 in its context in the GOWA 2006, funding means raising funds, then it was open to the Welsh Assembly either to amend the provisions of the NHS (Wales) Act which restrict the services for which a charge can be made or to enact primary legislation which imposes charges for services as an enactment within the scope of section 1(3) of the NHS (Wales) Act: 94. The services so provided must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed. The terms of the NHS (Wales) Act are not, in my view, therefore relevant to limiting the meaning of Heading 9. I consider for these reasons that funding has the meaning I have set out in para 83 which I have derived from an interpretation of the terms of the GOWA 2006 without reference to the NHS (Wales) Act. In principle, therefore, the Welsh Assembly has competence to enact legislation that makes provision for charging for services by way of the treatment and long term care of those with asbestos related diseases provided that the moneys so raised are used exclusively for the Welsh NHS. (b) Charging employees who can recover from their employers 96. As I have set out, the first and central aim of the Bill is to transfer the cost of medical treatment and care of an employee from the State to the employer in circumstances where the cost would be recoverable as a recognised head of damages from the employer as a tortfeasor. I do not see what objection there could be in law, given my views of legislative competence, to a scheme where the Welsh NHS would have imposed charges directly on such an employee and the employee would have recovered such charges from the employer. 95. 97. 98. 99. Such a scheme would have been analogous to the scheme for Road Traffic accidents set out in the Republic of Irelands Health Amendment Act 1986. In my view, the Welsh Assembly could also have made provision in such a scheme which ensured that the employee with an asbestos related disease, though liable for the charges, did not have to pay until reimbursed or indemnified by the employer or the employers insurers. Moreover, the employers liability insurers would have had to indemnify the employer under a standard form liability policy when the employer was called on to pay the charges by way of damages. It is argued on behalf of the Association of British Insurers that such a scheme would be politically objectionable, but I cannot accept that submission. The Welsh Assembly would, in my view, be seen simply as taking steps to change the position of employers so that for the future they would actually meet the costs of treatment and care of a very serious disease which they had caused through their negligence or breach of statutory duty at some time in the past, rather than that cost continuing to be carried by the State. It is difficult to see what political objections there could be to such a scheme in withdrawing the State benefit to employers and their insurers and providing more funds to the Welsh NHS. The benefits of such a scheme for the Welsh NHS would be no different to the machinery proposed by the Bill, though it would be more expensive to administer and undoubtedly risk causing stress to the persons suffering from asbestos related diseases. I therefore consider that the Welsh Assembly could, either by amendment to the NHS (Wales) Act or by separate legislation, have permitted the Welsh NHS to charge employees for treatment if they suffered from an asbestos related disease as a result of the negligence or breach of statutory duty of the employer. Such a scheme would have achieved the first and central aim of the Bill. No part of the liability of the employers or their insurers would have been re written; they might simply become liable on ordinary principles if their liability to the employee for the asbestos related disease was established. (c) The machinery provided for in the Bill Instead of achieving the first and central aim of the Bill by such a scheme, the Bill seeks to achieve its aims by choosing machinery which can be seen as a better way of collecting such charges directly from employers by imposing liability for such charges on the employers: (i) Sections 2 and 3 impose liability to pay the charges for treatment by the Welsh NHS directly on any employer who is or is alleged to be liable to any extent in respect of the asbestos related disease. (ii) The charges can only be recovered if incurred after the coming into force of the Bill. (iii) The liability only arises if a payment of compensation in respect of the asbestos related disease is made to the employee after the coming into force of the Bill. (iv) Section 5 provides the means by which Welsh Ministers certify the amount of the charges. (v) Section 15 provides that Welsh Ministers must have regard to the desirability of securing that an amount equal to the funds it received through these payments is spent on research or treatment of asbestos related diseases. 100. As the Welsh Assembly has, in my view, competence to impose such charges directly upon the employees, I can see no objection to the competence of the Welsh Assembly under the provisions of section 108(4) and (5) and Heading 9 of Part 1 of Schedule 7 in imposing such charges directly on the employers to achieve the aims of the Bill. Lord Mance suggests (para 33) that it is not relevant to consider in the context of legislative competence what might have been done. Although I agree that what might have been done may not generally be relevant, that is not the analysis I have set out. I have simply sought by this means to demonstrate that in reality, the imposition of direct liability on employers is no more than machinery for the collection of charges for services which, on my interpretation of Heading 9 of Schedule 7 the Welsh Assembly has legislative competence to impose. 101. If charges are to be imposed for NHS services in the Welsh NHS, then, in my view, the monies collected have to be used to fund the Welsh NHS, as that is the sole purpose for which there is legislative competence to raise funds by way of the imposition of charges. Section 15 requires Ministers, in the exercise of their functions under the NHS (Wales) Act to have regard to the desirability that an amount equal to the monies raised are applied for the purposes of research into, treatment of, or other services relating to, asbestos related diseases. Is that sufficient? In my view it is. In the context of the duties under the NHS (Wales) Act, the provision does no more than to require Ministers to have regard to the desirability of applying the monies so collected specifically in relation to asbestos diseases within the work of the Welsh NHS. It does not permit them to use it for any purpose other than for the Welsh NHS. 102. I thus consider that there is legislative competence under section 108(4) and (5) to impose charges under section 2 directly on employers. (d) Is there retrospectivity in respect of the liability imposed on employers? 103. Although the charges which can be recovered are only those that are incurred after the coming into force of the Bill and the liability to pay Ministers arises only where a compensation payment is made after the coming into force of the Bill, there is an element of retrospectivity in the imposition of the machinery of direct liability on employers. The liability imposed, though only in respect of future charges, is retrospective, as it is a new liability owed directly to Welsh Ministers which arises only by reason of negligence or breach of statutory duty which had occurred prior to the coming into force of the Bill. It is not simply an obligation to make future payments to an employee in respect of a recognised head of damages for an established liability, as would be the case if the machinery adopted had been to impose charges directly on the employees and recovery been obtained from employers. In the case of the employers, prior to the Bill, they would have had no such direct liability to Welsh Ministers. Thus the second aim and effect of the Bill has an element of retrospectivity. 104. I therefore agree with Lord Mance that imposing such direct liabilities retrospectively can be viewed as amounting to the deprivation of the possessions of the employers (and others within section 2) so as to engage A1P1. (2) The effect of A1P1 (a) The applicable principles under A1P1 105. I gratefully adopt the summary of the general principles applicable to A1P1 set out at paras 44 to 53 of Lord Mances judgment. The paragraphs trace the development in the increase in the jurisdiction of the judicial branch of the State and of the Strasbourg Court under A1P1 to review the judgement of a legislative branch of the State in relation to the legislation it has enacted. I agree that in the light of the judgments in AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, [2012] 1 AC 868 there are two separate questions which arise. These are: (i) Can it be said that the judgement of the Welsh Assembly was manifestly unreasonable in its decision to legislate first to make employers bear the future cost of medical treatment of a disease they had caused rather than such costs being borne by the State and secondly to impose machinery that creates a new direct liability? This can be properly described as the issue of legitimate aims. (ii) Was a fair balance struck, in the judgement of the court, between the demands of the general interest of the community and the requirements of the protection of the employers fundamental rights? This can properly be described as the issue of proportionality. (b) Was the Welsh Assembly entitled to view the Bill as having legitimate aims? 106. I turn therefore to consider the first question. I have set out the main and subsidiary aims of the Bill at para 77. Those aims must be viewed in the social and economic context of Wales and the legislative competence of the Welsh Assembly to which I have referred: (i) Since the establishment of the NHS in the United Kingdom in 1946, the general expectation has been that it would provide medical treatment and care free at the point of delivery, subject to limited exceptions, such as prescription charges. However, it does not follow from that general expectation that a legislature with responsibility for the NHS cannot change the extent to which its services are funded by the State so that they are not free at the point of delivery. Indeed, charges for NHS services (such as prescription charges) have been imposed or increased on many occasions. In Wales there was a concentration of heavy industry. Wales, along with some other parts of the United Kingdom, has a long and direct experience of serious industrial diseases, such as pneumoconiosis, and their devastating effect on employees. It has long been seen as a matter of social justice that proper compensation and care be provided at the expense of employers in those industries to those suffering from such diseases through negligent acts and breach of statutory duty. Given the period of time that elapses after exposure to asbestos before the disease (ii) manifests itself, it cannot be an objection that the wrongdoing occurred many years ago. (iii) The cost of the provision of health services through the Welsh NHS is an escalating cost. One of the reasons is the effect of serious industrial diseases caused by the concentration of heavy industry and the past negligence and breach of statutory duty by employers. The cost of the Welsh NHS is now a very significant part of the expenditure of the Welsh Assembly which has to be met out of the overall grant to the Welsh Assembly by HM Treasury, as described at para 83 above. There can be little doubt that provision of finance for the Welsh NHS and the Welsh NHS continued ability to provide the requisite health services out of monies made available to it out of the grant to the Welsh Assembly by Her Majestys Treasury is a matter of pressing legitimate concern to the Welsh Assembly. 107. Taking into account this context, I consider that the first and central aim of making the employer (when a tortfeasor) pay for the cost of treating the disease caused by it, is an aim which the Welsh Assembly, as a democratically elected legislature within its area of primary legislative competence, is entitled to reach and has an entirely reasonable foundation. (i) Given the choices which are open to a democratically elected legislature in how the escalating overall cost of health care is to be met and taking account of the very long period of time before an asbestos related disease caused by the employer manifests itself, the Welsh Assembly has to make a judgement. It must be entitled to consider in such circumstances which benefits and services it is to continue to provide free of charge. I cannot therefore see a reason why it is not open to the Welsh Assembly to make a judgement that there is a real social and economic need to withdraw the benefit of free medical treatment and care and impose charges on the employers in industries where negligence or breach of statutory duty has occurred in the past. (ii) The fact that the consequences of such wrongdoing take years to manifest themselves and the escalating cost of treating and caring for those suffering from the diseases can indeed be seen as providing a justification for the Welsh Assembly, in the context I have set out, in withdrawing the benefit hitherto provided and allowing the cost to be borne by those tortfeasors in the same way that those tortfeasors bear the other costs of their wrongdoing which has brought about the diseases. (iii) I cannot therefore see a basis for contending that the Welsh Assembly is not reasonably entitled to reach a judgement that there is a strong public interest in doing so. Nor can I see the basis for questioning as reasonable the judgement of the Welsh Assembly that it would be desirable that the funds so raised would directly benefit those suffering from asbestos related diseases. (iv) Choices have to be made in setting overall policy in relation to the level of service, treatment and care to be provided by a national health service, the funding of such services and the services in respect of which charges are to be made. These are choices of social and economic policy which in my view can and should only be made by the Welsh Assembly as a democratically elected legislature. (v) The Welsh Assembly is also entitled to make the judgement that instead of a scheme which would have involved levying a charge on employees and collecting it from the employers through a scheme of the type I have described at paras 96 98, machinery for direct collection would confer a further benefit on those suffering from asbestos related diseases by relieving them of further worry and stress. (vi) That public interest can therefore be seen as reflecting choices of social and economic policy and of social justice in Wales which may be different to the views of social and economic policy and social justice reasonably held in other parts of the United Kingdom or by other people. As these choices are being exercised in matters within the primary legislative competence of the democratically elected Welsh Assembly, the Welsh Assembly is, in my view, reasonably entitled to adopt such choices and views for Wales. 108. For these reasons therefore the Welsh Assemblys objective in making the tortfeasor pay rather than the public as a whole is a choice which can properly be regarded as having an economic and social purpose. This is clearly an objective on which different views can reasonably be held. However, it is in every respect pre eminently a political judgement in relation to social and economic policy on which it is for the legislative branch of the State to reach a judgement. The judicial branch of the State should not therefore question this first and central aim of the Bill, as there are manifestly reasonable grounds for reaching the view which the Welsh Assembly has reached: AXA General Insurance Ltd v Lord Advocate at para 49 and following. (c) No objection could be taken to charges being claimed by employees from employers 109. If the Welsh Assembly had imposed charges directly on employees as I have set out at paras 96 98 and thus limited the Bill to the first and central aim, there could, in my view, be no question of any rights of employers being affected in any impermissible way. The employers may have had an expectation that the cost of medical treatment and care of a disease caused by their wrongdoing in the past would always be met by the State through the NHS budget rather than by them; and that they would therefore continue to enjoy a benefit from the State in respect of their past wrongdoing. 110. However, such an expectation gave them no legitimate expectation giving rise to legal rights. A legislature would not be constrained by A1P1 from enacting primary legislation to make them liable for future payments in respect of their past wrongdoing as were made after the coming into force of the Bill because it was doing no more than withdrawing a benefit to which employers had no entitlement to enjoy for an unlimited period of time. Thus, even though the obligation to make such payments arose out of a liability to the employee that had arisen in the past, there would be no issue of retrospectivity. (i) The payments would be in respect of a recognised head of damages caused by an asbestos related disease or condition for which liability under existing law had been incurred. The position is, in my view, different to that in AXA General Insurance Ltd v HM Advocate. The Damages (Asbestos related Conditions) (Scotland) Act 2009 imposed liability for a condition, asymptomatic pleural plaques, where it had been declared by the courts that there was no liability under existing law. The Bill in the Welsh Assembly has imposed no new liability in respect of responsibility for the asbestos related disease or condition. The Bill is premised on existing liability for the disease, the existing consequent liability to pay damages and an existing well recognised head of damages, namely medical treatment and care. (ii) The payments would only be payments made after the coming into force of the Bill. (iii) The payments could not be recovered in cases where a settlement had been made of the liability incurred by the employer, as the liability would have been discharged. 111. Thus the first and central aim of the Bill in making the employer bear the responsibility for the cost of medical treatment and care could have been achieved without any objection of retrospectivity on the part of the employer. (d) The limited retrospectivity 112. It is evident therefore from the terms of the Bill viewed in its legislative context that the provisions contained in sections 2, 3 and 5 which give rise to retrospectivity were drafted in a way necessary to achieve the second and subsidiary aim of the Bill, namely to provide the best machinery to collect the charges for NHS Services incurred as a result of the enactment of the first and central aim of the Bill. 113. I have already set out my view that the first and central aim of the Welsh Assembly as to the public interest was an aim which it was open to the Welsh Assembly to adopt as a legitimate aim. It is therefore my view that the Welsh Assemblys second aim in seeking to provide machinery to recover the costs of treatment in the best manner possible can properly and reasonably be judged to be a legitimate aim. It is not one manifestly without reasonable foundation. (e) The approach to proportionality 114. I therefore turn to the second question in relation to A1P1 the issue of proportionality. I agree with Lord Mance that the issue of proportionality is, on the established case law, an issue where the court must itself determine whether the interference by the legislature strikes a fair balance between the benefits to be derived from the public interest of the community and the requirements of the protection of the individuals fundamental rights. In my view, for reasons which I explain at paras 118 126 below, it is an essential part of the balancing exercise that the court accords great weight to the judgement of the legislature as to the public interest, provided that the judgement is not manifestly without reasonable foundation, as I have concluded in respect of the Bill, it is. It is then necessary, whilst according great weight to the judgement of the legislature as to the public interest, for the court to weigh all the factors to determine whether the legislation achieves a fair or proportionate balance between the public interest being promoted (together with the benefits to be derived therefrom) and any infringements of the rights of other interests, including private interests. As the Counsel General accepted, special justification is required where there is retrospectivity. (f) The detriment to employers arising from the Bill 115. The first perceived detriment to the employer is the imposition of direct liability. However, as I have set out at para 110, there could be no legitimate expectation which would have stood in the way of the first and central aim of the Welsh Assembly if the Bill had set out a scheme under which the Welsh NHS charged the employee suffering from the disease and that employee obtained recovery from the employer liable for causing the disease. It is difficult to see therefore how a Bill that encompassed the second aim through providing machinery for the recovery of payment directly from the employer in principle infringes any legitimate expectation or imposes any significant detriments beyond that which the employer would have incurred if he had to pay to the employee by way of damages the charges imposed by NHS Wales. The charges imposed under the Bill will be no greater, and may be less, than the actual cost to NHS Wales of the treatment and care. 116. The second perceived detriment is that the liability of the employer for the payments does not merely arise if negligence or breach of statutory duty is established. The liability for the payments arises if compensation is paid where negligence or breach of statutory duty is alleged, but not admitted, as would be the case under most forms of settlement agreement. However, there is, in my view, no material detriment. The liability to make the payment directly to Ministers only arises in respect of settlements made after the coming into force of the Bill. The employer will know that if any settlement is made, then a direct liability will arise for future medical charges. This would not be any different in its effect to what would be claimed by the employee from the employer if the charges were imposed on the employee in cases where there had been no settlement. The employer would, in deciding whether to settle after the coming into force of the Bill, therefore have to take into account the potential direct liability to Ministers in the same way as the employer would have to take into account potential claims for payments to reimburse an employee for medical charges imposed by the Welsh NHS. This again is the case because the Bill in its effects does no more than provide machinery for the collection of charges which it imposes. 117. The third perceived detriment is the exposure of employers to a direct liability to Ministers in respect of which they would not be indemnified by their policies of employers liability insurance. It has been properly assumed in the argument before the court that the direct liability imposed on employers is not a liability for which there would be an indemnity under the policy; I agree with the view of Lord Mance at para 5(ii) that it is not a liability which would be indemnified under the ordinary form of employers liability policy. However, for the reasons I set out at paras 130 132 below, I consider that there is legislative competence in a manner that would not infringe A1P1 under section 108(4) and (5) to make provision so that insurers would be liable to pay under their policies charges recovered through the machinery of the Bill. Such charges would have been recoverable if the Bill had been confined to its first and central aim of making employers pay for the cost of NHS medical care and treatment through the conventional route of imposing the charges on the employee who would recover the sums as a recognised head of damages from the employer. It is also important to note that some employers, such as the nationalised industries, did not carry insurance and therefore this head of detriment would not apply to them. (g) The weight to be accorded to the public interests as perceived by the Welsh Assembly 118. In considering the public interest, as I have reached the view that the judgement of the Welsh Assembly on the legislative choices open to it as expressed in the Bill, is a judgement that it was reasonable for it to reach (and certainly not manifestly without reasonable foundation), I would accord great weight to the Welsh Assemblys judgement, not simply weight as Lord Mance states at para 67. I do not dispute that, on the present development of the case law, at a domestic level, a margin of appreciation is not applicable. Nonetheless, as a domestic court within the constitutional structure of the United Kingdom, a United Kingdom court should attach great weight to informed legislative choices as expressed in the legislation. This is particularly so where the judgement is made, as it is in this case, on matters of social and economic policy: see para 131 of the judgment of Lord Reed in AXA General Insurance v Lord Advocate. 119. Although the Welsh Assembly is a body, like the Scottish Parliament and Northern Ireland Assembly, to which section 9 of the Bill of Rights does not apply, I would find it difficult to make any logical distinction in the context of the United Kingdoms devolved constitutional structure between these legislatures and the United Kingdom Parliament in according weight to the evaluation of the different choices and interests in respect of matters which are within the primary competence of the legislatures. 120. Under the devolution settlements, in areas where legislative competence has been devolved, the Assemblies and the Scottish Parliament, as the democratically elected bodies with primary legislative competence, have to exercise the same legislative choices as the United Kingdom Parliament would have to exercise in areas of legislative competence which it has not devolved. 121. Although this is an issue which it may not be desirable to have to consider at the present time, the issue plainly arises as to how the court is to treat the judgement of the Welsh Assembly, in contradistinction to the United Kingdom Parliament, in relation to a matter of social and economic policy such as the funding of a national health service. 122. I cannot see why in principle the United Kingdom Parliament in making legislative choices in relation to England (in relation to matters such as the funding of the NHS in England) is to be accorded a status which commands greater weight than would be accorded to the Scottish Parliament and the Northern Ireland and Welsh Assemblies in relation respectively to Scotland, Northern Ireland and Wales. As each democratically elected body must be entitled to form its own judgement about public interest and social justice in matters of social and economic policy within a field where, under the structure of devolution, it has sole primary legislative competence, there is no logical justification for treating the views of one such body in a different way to the others, given the constitutional structure that has been developed. The judgement of each must have the same effect and force. Although the weight to be accorded to the judgement of these legislative bodies will vary according to the matter in issue, there is no reason in determining weight to treat the judgement of the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly in any way different to the United Kingdom Parliament. 123. I do not consider the judgments in Belfast City Council v Miss Behavin Ltd [2007] UKHL 19, [2007] 1 WLR 1420 assist. The case concerned the judgement of a municipality, not a legislature enacting primary legislation. I therefore consider that the judgement of the Welsh Assembly in relation to social and economic policy underpinning primary legislation enacted by it should not be treated in any way different to the judgement of the United Kingdom Parliament underpinning primary legislation enacted by it. 124. In the present case, as I have concluded that the view taken by the Welsh Assembly is a view which is reasonably open to it as a view of the public interest and of social justice on a matter of social and economic policy, I therefore consider great weight should be attached to the legislative choice made by the Welsh Assembly as expressed in the Bill enacted by it as primary legislation within its competence. It must follow therefore that the judgement of the Welsh Assembly as to the public interest and social justice should be preferred on matters of social and economic policy to a judicial view of what it regards as being in the public interest and representing social justice. 125. I have reached the views I have set out as to the judgement reached by the Welsh Assembly by the analysis I have set out of the terms of the Bill in its overall context, following the approach of Lord Nichols of Birkenhead at para 67 of his judgment in Wilson v First County Trust (No 2) [2003] UKHL 40, [2004] 1 AC 816. 126. I have not done so by an analysis of the reports and debates in the Welsh Assembly. There are, in my view, considerable constitutional dangers, if the judicial branch of the State in the United Kingdom assumes the role of examining the debate in any of the legislative branches of the State in the United Kingdom in relation to primary legislation it is considering and then passing judgment on the quality of the debate, the evidence received, the reasons expressed in the debate and whether in the opinion of the judicial branch of the State the legislative branch of the State has put itself in a proper position to evaluate the differing interests. Such an approach might be viewed as being more in the nature of an evaluation by a higher court of the judgment of a lower court on an appeal where the exercise of a discretion is being examined. The better course, in my view, is to examine the legislation itself in its context, as I have set out. (h) The benefits to be derived from the provisions of the Bill 127. In my view, the Bill in imposing the charges directly on the employers does no more than provide machinery which makes it easier and more effective to recover the costs of medical care and treatment in respect of which employers as tortfeasors would be liable as part of the ordinary measure of damages. This would follow as a consequence of the Welsh Assembly no longer continuing the provision of a State benefit to such tortfeasors by providing such treatment at the cost of the State. The assessment of the overall public good in charging such costs for the future and the machinery employed are matters on which it is for the Welsh Assembly to make the choice and judgement. (i) Conclusion 128. Weighing up the detriment to the private interests which I have set out and the public interest and the benefits to be derived therefrom, in my view, a fair and proper balance has been struck as regards the position of employers. The element of retrospectivity in the Bill is, as regards employers, limited to providing machinery for the collection of a head of damages which a legislative body is entitled to ask the employer to bear as a tortfeasor instead of the State bearing the cost itself. The special justification which the Counsel General accepted was required, has been established, given the social and economic policy in dealing with the present consequences of past wrongdoing by employers by discontinuing a benefit to the wrongdoer. There is, in my view, therefore no excessive burden for employers to bear and no violation of the fundamental rights of the employers under A1P1 as regards the machinery adopted of imposing direct liability on employers under section 2 of the Bill. I would have reached the same view if the Welsh Assembly was not able to protect the insurance position of the employers, given the weight that I consider should be attached to the judgement of the Welsh Assembly in a matter of social and economic policy and the limited nature of the retrospectivity. The position of insurers (a) The extent of the liability imposed on insurers under section 14 of the Bill 129. Section 14 imposes liability for the payments made under section 2 of the Bill on the insurers of those within section 2 who are liable to any extent in respect of an asbestos related disease (described by me as an employer). Section 14(2) prevents the insurer from excluding or restricting that liability. Section 14(5) makes clear that the section applies to policies issued before the Bill comes into force. As I have set out at para 117, there would be no liability under the policy for the direct liability imposed by section 2. Thus section 14 was intended to ensure that the direct liability imposed on employers would be met by their insurers. (b) Legislative competence under section 108(4) and (5) 130. The Counsel General contended that the competence to enact such a provision was contained in section 108(5)(a) and (b) either under (a) as a provision for the enforcement of another provision or which would make another provision effective or under (b) as a provision incidental to or consequential on such a provision. 131. The scope of section 108(5)(b) and a similar provision in the Scotland Act 1998 has been considered in Martin v Most [2010] UKSC 10, 2010 SC (UKSC) 40, at paras 40 and 123 and Attorney General v National Assembly for Wales Commission [2012] UKSC 53, [2013] 1 AC 792, at paras 49 53 and 83. The approach which has been adopted is, in summary, to identify the primary purpose of the main provision of the Bill to which the provision in question is incidental or consequential and then to form a judgement on whether the provision in question is subsidiary to that primary purpose and has no end in itself. In the light of that approach to section 108(5)(b), it seems to me that a similar approach should be adopted in relation to section 108(5)(a), namely to identify the primary purpose of the main provision and then form a view on whether the provision in question is intended for the enforcement of the main provision or to make it effective and has no end in itself. 132. The primary purpose of the imposition of direct liability under section 2 of the Bill is to provide machinery for the collection of charges imposed by the Welsh NHS for medical treatment and care which would have fallen on employers as tortfeasors in the circumstances I have set out. In my view, section 14 of the Bill is intended to have no purpose other than to ensure that the machinery operated in such a way that employers can claim from their insurers as if the charges had been reimbursed to the employees as a recognised head of damage. It has no other purpose or end in itself. It is intended as part and parcel of the scheme that provided machinery for collection. 133. However, the terms of section 14 go much further. When subsections (1) to (3) are read together, I agree with Lord Mance that they have the effect of extending the liability under the employers liability insurance policy to an extent greater than the liability would have been if any charges payable to the Welsh NHS had been paid as damages by the employer to the employee. In my view, the provisions would override deductibles and policy limits, as the effect of the provision as drafted is to extend the policy to indemnify the employer for all liability under section 2, if the policy provides cover to any extent. In my view, therefore, section 14 as drafted goes beyond what would be permissible under section 108(5)(a) and (b). (c) The retrospective nature of the provision 134. In whatever way section 14 is drafted, even if limited in the way I have indicated, section 14 would retrospectively amend any policy which the employer has to indemnify the employer against his liability for asbestos related disease by extending it to provide indemnity for payments made to Ministers for charges payable to the Welsh NHS. The imposition of such liabilities retrospectively, in my view, could be seen as the deprivation of the possessions of insurers, so as to engage A1P1. (d) Legitimate aim and retrospectivity 135. As I have set out, the aim of the Welsh Assembly in relation to the position of insurers is to provide protection to employers by amending insurance policies so that they provide cover in relation to the imposition of direct liability under section 2. Imposing direct liability is, for the reasons I have given in essence the provision of machinery for the collection of charges for which the employers would have been liable to the employees once the Welsh NHS withdrew free treatment and care and imposed charges. 136. In my view, the position of insurers must be seen in the light of the two aims of the Bill. If the Bill had been limited to its first and central aim and a scheme of the kind I have described at paras 96 98 enacted, insurers would ordinarily have been liable under the ordinary form of policy to indemnify employers for the charges payable by them to the employees. There would have been no need for the legislation to amend any policy as it would have had to indemnify employers on its existing terms. The only ground on which the Association of British Insurers, as representing the interests of the insurance industry, could therefore have sought to avoid such a liability would be the contention that it was impermissible for a State to change its policy of providing medical care free at the point of delivery and instead charge employers for the consequences of their past wrongdoing. It would have to be contended that the insurance industry had a legitimate expectation that the States policy in relation to providing a benefit to them by funding the future cost of medical care could not be changed in respect of past wrongdoing. 137. I have set out in relation to employers why I take the view that there is no legitimate interest which prevents the Welsh Assembly withdrawing for the future its funding of medical treatment and care for asbestos related diseases which have been caused by the employers past wrongdoing. Clearly in making reserves for known claims and IBNR (incurred but not reported claims) and in preparing their accounts and in making their reinsurance arrangements, insurers will have assumed that the State would go on providing free medical treatment and care for employees who did not choose private treatment and thus provide them with a benefit. However, I cannot see how that could give rise to a legitimate expectation on the part of those who insure employers against the consequences of their past wrongdoing that the State would not be entitled to change its policy for charging and withdrawing the benefit enjoyed by wrongdoers, particularly where the consequences of the wrongdoing take many years to become apparent. In my view, insurers therefore have no legitimate interest which prevents a State changing its charging policy for health care and replacing care free at the point of delivery with the imposition of charges. If insurers have, contrary to my view, a legitimate interest, then the ambit of their interest would need further analysis, as a State has, particularly in times of budgetary stringency, a real interest in amending its charging policy, as it does, for example, in relation to prescriptions. 138. It follows therefore, as it does in the case of employers, that the element of retrospectivity is limited to the machinery for collection. I have set out at para 133, my view that section 14 goes much further than providing an indemnity for collecting sums that would otherwise have been payable by the employer as damages as a tortfeasor. I can see no justification in the balancing exercise under A1P1 for extending the liability of insurers under section 14 further than the indemnity which insurers were bound to provide under their policies if the indemnity had been called upon to indemnify the sums which would have been payable by the employers as damages. (e) Conclusion in relation to insurers 139. It is for that reason, I have come to the conclusion that section 14 as drafted, besides being beyond the competence under section 108(4) and (5), infringes A1P1. However if section 14 had been limited in the way I have suggested, I would have considered it as a provision that achieved a fair balance under A1P1. That is because the retrospectivity would have been limited to providing an indemnity solely in respect of the machinery of collection of sums that would have been otherwise due under the insurance policies if the charges imposed by the Welsh Assembly had been payable by way of damages by the employers as tortfeasors in the ordinary way. 140. For the reasons I have given, insurers, just as employers, have no legitimate interest which protects them against the withdrawal of the State benefit conferred in the provision of free medical treatment and care for diseases caused by negligence or breach of statutory duty, irrespective of whether that negligence or breach of statutory duty occurred in the past, particularly in circumstances where the consequences of such wrongdoing take many years to become manifest. 27, 37 and 46 47, per Lord Rodger, Lady Hale and Lord Mance. That was a case involving subordinate legislation, to which article 9 of the Bill of Rights does not apply. Perhaps in the light of article 9 there is a relevant distinction between cases concerning primary legislation by the United Kingdom Parliament and other legislative and executive decisions. It is, I think, unnecessary to go further into this difficult area on this reference. On any view, if the admissible background material shows that the Bill was put before and passed by the Welsh Assembly on the basis of a supposed analogy or precedent, it must be possible to consider whether that analogy or 58.	The Counsel General for Wales (the Applicant) is, by section 99(1) of the Government of Wales Act 2006, empowered to refer the question whether a proposed Act of the Welsh Assembly is within its devolved legislative competence to the Supreme Court for decision. In the present case, the Applicant referred to the Supreme Court the question whether the Welsh Assembly has the legislative competence to enact the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [1]. The Bill has two provisions of particular importance. Section 2 makes persons by whom or on whose behalf compensation payments are made to victims of asbestos related diseases (compensators) liable to Welsh Ministers for the cost of NHS services provided to such victims. Section 14 extended the scope of the compensators liability insurance policies to cover the sums which they would be required to pay under section 2 [2] [8]. In determining this reference, the Supreme Court therefore has to decide two issues: (1) Whether the Bill comes within the legislative competence of the Welsh Assembly concerning the organisation and funding of [the] national health service under the Government of Wales Act 2006 (GOWA 2006) section 108(4) (5) and paragraph 9 of Part 1 of Schedule 7; and (2) Whether the Bill is nonetheless outside the legislative competence of the Welsh Assembly by virtue of section 108(6) of the GOWA 2006, on the grounds that it was incompatible with the rights of compensators and insurers under article 1 of Protocol 1 of the European Convention on Human Rights to the peaceful enjoyment of their possessions (A1P1 rights) [9]. The Supreme Court unanimously finds that the Welsh Assembly lacks legislative competence to enact the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill in its present form. Lord Mance (with whom Lords Neuberger and Hodge agree) gives the lead judgment and holds that the Bill is: (1) Outside the legislative competence of the Welsh Assembly concerning the organisation and funding of [the] national health service [34]; and (2) Incompatible with the A1P1 rights of compensators and insurers to the peaceful enjoyment of their possessions [65] [69]. Lord Thomas (with whom Lady Hale agrees) concurs in the result set out in the judgment of Lord Mance for narrower reasons [71]. The reasoning of the majority in the lead judgment is as follows: (1) The critical phrase, in determining the legislative competency of the Welsh Assembly to enact the Bill, is Organisation of funding of the National Health Service in paragraph 9 of Part 1 of Schedule 7 to the GOWA 2006 [13]. It is common ground that Welsh Ministers do not have general fiscal powers [17] and even assuming (without deciding) that the Welsh Assembly has competence to levy charges for Welsh NHS services, the Bill is not sufficiently related to the organisation of funding of the National Health Service under section 108(4) of the GOWA 2006 to come within that competence. The charges provided for by the Bill are to be imposed on compensators and insurers rather than patients and lack any direct or close connection with the provision of Welsh NHS services. The Bill seeks to impose what are in effect new tortious or statutory duties on third parties to pay for the relevant Welsh NHS treatment [24] and [27]. (2) The Bill also interferes with the A1P1 rights of compensators and insurers to the peaceful enjoyment of their possessions. The new financial liabilities of compensators and insurers would arise from asbestos exposure and liability insurance policies which long pre dated the Bill [36] and [41]. The retrospective effect of the Bill requires special justification, which is absent in the present case [53], [57] and [65] [69]. Lord Thomas and Lady Hale agree that the Bill is beyond the competence of the Welsh Assembly, but on narrower grounds. Section 2 of the Bill is within the competence of the Welsh Assembly, because the organisation of funding of the National Health Service encompasses a general power to raise funds for the Welsh NHS through the imposition of charges on patients, who could recover those charges from an employer who has exposed him to asbestos. The employer could then claim indemnification from its liability insurer [83] and [96]. It is therefore open to the Welsh Assembly to impose charges directly on the employer/compensator [100] [102]. The interference of the Bill with the A1P1 rights of employers/compensators is proportionate to its economic and social purpose of funding Welsh NHS services for asbestos victims [108], [124] and [128]. However, section 14 of the Bill is outside the competence of the Welsh Assembly because its effect is retrospectively to extend or override the provisions of existing liability insurance policies, contrary to section 108(5) of the GOWA 2006 and the A1P1 rights of insurers [133] and [138] [140].
Balber Kaur Takhar, the appellant, is the cousin of the third respondent, Parkash Kaur Krishan. For many years before 2004, they had not seen each other. In that year they became reacquainted. At the time, Mrs Takhar was suffering personal and financial problems. She had separated from her husband some five years previously. As part of the arrangements made between Mrs Takhar and her husband, she had acquired a number of properties in Coventry. When Mrs Takhar and Mrs Krishan met again, according to Mrs Takhar, she confided in her cousin and grew increasingly to depend upon her. Mrs Takhar claims that Mrs Krishan exerted considerable influence over her. The financial problems of Mrs Takhar arose mainly from the condition of the properties which she had acquired from her husband. Some were in a dilapidated condition. Payment for rates were in arrears. Bankruptcy for Mrs Takhar was in prospect. The Krishans provided financial help to Mrs Takhar. Dr Krishan, the second respondent and the third respondents husband, took on responsibility for negotiating with Coventry City Council over the rates arrears and the dilapidated state of some of the buildings. Then, in November 2005 it was agreed that the legal title to the properties would be transferred to Gracefield Developments Ltd, a newly formed company, of which Mrs Takhar and the Krishans were to be the shareholders and directors. Mrs Takhar claims that it had been agreed between her and the Krishans that the properties would be renovated and then let. The rent would be used to defray the cost of the renovation, which, in the short term, would be met by the Krishans. Mrs Takhar would remain the beneficial owner of the properties. The Krishans present a very different account. They claim that Gracefield was set up as a joint venture company. The properties were to be sold after they had been renovated. They were to be given an agreed value and this would be paid to Mrs Takhar after they had been sold. Any profit over would be divided equally between Mrs Takhar and the Krishans. They explain that Mrs Takhar agreed to these arrangements because planning permission for development had to be obtained in order to realise the value of the properties and this was an area in which Dr Krishan had experience, having already successfully developed his own medical centre. The proceedings On 24 October 2008, Mrs Takhar, issued proceedings in the Birmingham District Registry of the Chancery Division. She claimed that the properties had been transferred to Gracefield as a result of undue influence or other unconscionable conduct on the part of Dr and Mrs Krishan. In a judgment delivered on 28 July 2010 [2010] EWHC 2872 (Ch), His Honour Judge Purle QC rejected that claim. A significant item of evidence in the hearing before Judge Purle was a written profit share agreement dated 1 April 2006. It provided for an initial purchase price of 100,000 for the properties. This was to be placed on a loan account with Gracefield. Further sums totalling 200,000 as deferred consideration were also provided for. The total of 300,000 was to be paid to Mrs Takhar on completion of the sale of the properties. She was also to receive 50% of the profits on the sale of each property. The circumstances in which this written agreement was discovered and Mrs Takhars evidence about it were described by Judge Purle in paras 21 and 22 of his judgment: no case of forgery is advanced. Only the last page of the version of the agreement signed by Mrs Takhar appears to have survived and that is in the form of a scanned copy, which has emerged in the files of Sue Bowdlers firm [the Krishans solicitors]. It was misfiled, apparently. Sue Bowdler had not seen the copy with Mrs Takhars signature on it before until it was found, misfiled. However, there is no doubt that the agreement was prepared for signature. There is no doubt also that the agreement was prepared for signature in or around April 2006 and there is no doubt, in my mind, that it faithfully reflects the oral agreement that had been made. In the absence of Mrs Takhar giving a coherent 22. explanation as to how her signature came to be on the scanned copy, I conclude that the Krishans evidence, which I believe anyway, should be accepted and that Mrs Takhar took the copy of the agreement that she was to sign away, which was returned, probably by her in some way, duly executed to Sue Bowdlers firm, which then ended up misfiled. At all events, I am satisfied that that was the agreement that was made. The properties were transferred by Mrs Takhar in to Gracefields name before the written joint venture agreement was prepared, and the only credible explanation that I have heard is that they were so transferred on the terms subsequently set out in the joint venture agreement, which were previously agreed orally. This was, therefore, powerful evidence in support of the Krishans case. And it is unsurprising that it was heavily relied on by the judge. As the quoted passage shows, he found that the written agreement represented what had earlier been agreed orally between Mrs Takhar and the Krishans. The judge therefore held that Mrs Takhar had transferred the properties to Gracefield for the sum of 300,000 and that she was to receive 50% of the profits when the properties were sold. He dismissed Mrs Takhars claim based on undue influence or unconscionable bargain and held that the properties had been transferred to Gracefield both legally and beneficially. That transfer was, he held, subject to the terms of the oral agreement made between the parties, as reflected in the written profit share agreement. The original of the profit share agreement said to have been signed by Mrs Takhar has not been found. The Krishans claim that it was prepared by accountants at a time when Mrs Takhar was in India and then handed to her when she returned. She was asked to consider it and return it to the accountants. Mrs Takhars case is that she did not sign the document and had never seen it until the dispute arose. The authenticity of the document and whether it had been signed by Mrs Takhar are central issues in the dispute between the parties, therefore. In advance of the trial before Judge Purle, Mrs Takhar had sought permission to obtain evidence from a handwriting expert to examine the signature on the profit share agreement which had been attributed to her. That application was refused because it had not been made until the trial was imminent. On the trial, Mrs Takhar gave evidence that she could not say that the signature on the profit share agreement was not hers, but she was unable to explain how it had got there. After the trial Mrs Takhar instructed new solicitors and asked them to obtain a report from a handwriting expert. Robert Radley is such an expert and he was engaged to inspect and report on various documents. His subsequent report stated conclusively that the signature on the profit share agreement which purported to be that of Mrs Takhar had been transposed from a letter of 24 March 2006 which she had sent to the Krishans solicitors. He was also of the opinion that there was strong evidence that Mrs Takhar did not sign a 2006 bank inquiry form and that the signatures of both the Krishans and Mrs Takhar on later 2011 bank inquiry forms had also been transposed from previous forms. On foot of this report, Mrs Takhar claims that she can now advance a case of fraud against the Krishans. She also claims that she was not in a position to do so until she had received Mr Radleys report. The Krishans dispute both claims. After receiving Mr Radleys report, Mrs Takhar issued proceedings in which she sought to have Judge Purles judgment and order set aside. She claimed that she was entitled to this relief on the ground that it was obtained by fraud, the principal forgery relied upon being that of the copy of the profit share agreement. (Later Mrs Takhar applied for permission to amend her claim to allege an unlawful means conspiracy and deceit. That application was refused and no longer features in the appeal.) The respondents served defences in which they pleaded that Mrs Takhars claim is an abuse of process, inter alia because the documents on which Mr Radleys report was based were available to Mrs Takhar and her legal team since at least 12 July 2009 (approximately 12 months earlier than the trial before Judge Purle). It was ordered that the question whether Mrs Takhars claim amounted to an abuse of process be tried as a preliminary issue. That trial took place before Newey J in February 2015. In his judgment, ([2015] EWHC 1276 (Ch)), Newey J held that a party who seeks to set aside a judgment on the basis that it was obtained by fraud did not have to demonstrate that he could not have discovered the fraud by the exercise of reasonable diligence. The present claim was therefore not an abuse of process. The respondents appealed. The Court of Appeal (Patten, King and Simon LJJ) allowed the appeal in its judgment delivered on 21 March 2017 ([2018] Ch 1; [2017] 3 WLR 853; [2017] CP Rep 23). Patten LJ, delivering the leading judgment, said at para 30 that the appeal turned on whether Newey J was correct in holding that a due diligence condition did not need to be satisfied. Patten LJ began his examination of that issue by a reference to the judgment of Wigram V C in Henderson v Henderson (1843) 3 Hare 100. In that case the Vice Chancellor had said that where a matter had been the subject of litigation and adjudication by a court, it was required of the parties that they bring forward their whole case (at p 115). When litigation had taken place, it would only be in exceptional circumstances that parties could open the same subject of litigation in respect of matter[s] which might have been brought forward as part of the subject in contest, but which [had not been] brought forward because of negligence, inadvertence, or even accident. This applied to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. Henderson is certainly authority for the general principle that parties must normally advance the totality of their case on the first bout of litigation. It is not open to them, save in exceptional circumstances, to bring up a point which should have been raised in that litigation and which could, with reasonable diligence, have been discovered and canvassed on the first trial. Henderson does not speak, however, on two subjects which are critical in the present case. The first of these is whether the rule applies where the new point was not in issue between the parties on the first trial and where, if it had been and evidence on the point had been led, a different outcome might have ensued. The second subject concerns the question whether the rule in Henderson requires modification or disapplication where the new issue raises an allegation of fraud by which, it is claimed, the original judgment was obtained. The second case on this subject referred to by Patten LJ was Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2014] AC 160. In his judgment in that case, Lord Sumption rejected the suggestion that the principle propounded in Henderson should be treated as applying only to the law governing abuse of process and not as an application of the doctrine of res judicata. At para 26, Lord Sumption had said that, [w]here the existence or non existence of a cause of action has been decided in earlier proceedings, to allow a direct challenge to the outcome, even in changed circumstances and with material not available before, offends the core policy against the re litigation of identical claims. I do not consider that Lord Sumptions statement in this passage has any bearing on the issues which arise on this appeal. The existence or non existence of fraud has not been decided in the proceedings before Judge Purle. It is a new issue. It does not involve the re litigation of an identical claim. In the Virgin Atlantic case, Lord Sumption had considered the House of Lords decision in Arnold v National Westminster Bank plc [1991] 2 AC 93. In that case, Lord Keith had drawn a distinction between cause of action estoppel and issue estoppel. At p 104, Lord Keith had described cause of action estoppel in this way: Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. He considered that a distinction between this and issue estoppel should be recognised and said, at p 109: In my opinion your Lordships should affirm it to be the law that there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. At para 35 of the judgment in the present appeal, Patten LJ said this about Lord Keiths speech in Arnold: These passages in Lord Keiths speech in Arnold were affirmed by the Supreme Court in Virgin Atlantic and have to be treated as settled law so far as this court is concerned. It is therefore clear that even in a case of issue estoppel the point cannot be re litigated unless the new material could not with due diligence have been produced at the earlier hearing: see Lord Sumption at para 22. It follows that Mrs Takhar would not be able to re litigate the issue of the terms of the November 2005 agreement unless she can rely on evidence that she could not with due diligence have produced at the trial. It is important to note that Lord Keith, in the first passage quoted, at para 22 above, (dealing with cause of action estoppel), does not suggest that there is a reasonable diligence requirement in cases of fraud or collusion. And in the second passage, at para 23 above, (which concerns issue estoppel) he does not mention fraud at all. In my opinion, it is not to be assumed that Lord Keith was suggesting that due diligence was a prerequisite in cases of fraud. Patten LJ had referred to Lord Sumptions judgment in Virgin Atlantic, para 22, as supporting the proposition that a fresh point could not be relitigated unless the new material could not with reasonable diligence have been produced at the earlier hearing. It is important to note exactly what Lord Sumption said at para 22 in Virgin Atlantic: Arnold v National Westminster Bank plc [1991] 2 AC 93 is accordingly authority for the following propositions. (1) Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non existence of a cause of action. (2) Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised. (3) Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised. The significance of this paragraph, so far as concerns the present case, lies in what it does not assert and the qualifications which it contains. It does not address the question of fraud at all. Moreover, the first proposition which Lord Sumption makes, that cause of action estoppel is an absolute bar in relation to such points as had to be and were decided in order to establish the existence or non existence of a cause of action, is of no relevance at all in the present appeal. The case before Judge Purle did not involve an allegation of fraud on the part of the Krishans. The points which had to be or were decided in Mrs Takhars case before Judge Purle were not concerned with possible fraud. The second proposition in Lord Sumptions para 22, that cause of action estoppel prohibits the raising of points in subsequent proceedings which had not been decided because they were not raised in the earlier proceedings, must be read in context. Again, the issue of fraud is not mentioned. And Lord Sumption has expressly espoused the reasoning of Lord Keith in Arnold where reasonable diligence is not said to be a requirement in cases of fraud or collusion. Given that, I do not consider that the second proposition in para 22 of Virgin Atlantic should be interpreted as covering cases of fraud. As to issue estoppel and the third proposition in para 22, it is clear that Lord Sumption did not prescribe a universally applicable rule. He was careful to qualify his statement (that issue estoppel bars the raising in subsequent proceedings of points which were not raised in the earlier proceedings or were raised but unsuccessfully), by saying that the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised. And, of course, there is again no mention of fraud in this context. I do not consider, therefore, that Virgin Atlantic is authority for the proposition expressed by Patten LJ. In any event, at para 37, Patten LJ accepted the submission of Mr Wardell QC (who appeared on behalf of Mrs Takhar before the Court of Appeal and this court) that the obstacle faced by Mrs Takhar was not one of issue estoppel. He also accepted that she was not challenging an earlier decision of the judge about the authenticity of the profit share agreement. As Patten LJ observed, [t]he allegation about her signature being forged was not raised or decided at the trial of the 2008 action. But the Court of Appeal considered that, although it was not concerned with a question of res judicata in the strict sense of issue or cause of action estoppel, it had to deal with what it described, at para 37, as the wider policy considerations embodied in the rule in Henderson v Henderson. Those policy considerations were engaged, Patten LJ said, whenever a litigant seeks to challenge an earlier decision of a competent court, whether directly or indirectly, by commencing new proceedings in which the same issues arise or seeks directly by way of appeal to challenge the judges decision on the basis of new evidence. On that account, Patten LJ concluded, If the challenge is by way of an action seeking to set the judges order aside on the ground that it was obtained by fraud the real question is whether this amounts to an abuse of process if the success of the action depends upon evidence which could with reasonable diligence have been produced at the earlier trial. I do not agree with this conclusion. In the first instance, this is not a case of commencing new proceedings where the same issues arise. As Patten LJ had earlier said, the question of Mrs Takhars signature having been forged had not been raised or decided in the trial before Judge Purle. The appellant does not seek to set aside Judge Purles decision on any of the issues decided by him. Secondly, for the reasons that I have given, I do not consider that in Arnold or Virgin Atlantic there has been an unequivocal judicial statement that seeking to set aside a judgment on the basis that it was obtained by fraud constitutes an abuse of process, if evidence of the fraud could, with reasonable diligence, have been obtained and produced at the earlier trial. I accept, however, that the question whether fraud should unravel all even where discovery of its existence was possible before the original trial does give rise to intensely relevant policy considerations. These are considered in the next section of this judgment. In para 38 Patten LJ referred to the case of Phosphate Sewage Co Ltd v Molleson (1879) 4 App Cas 801. It had been argued in that case that evidence of fraud other than that presented at the original trial should be allowed to enable a company to claim repayment of a sum which it had paid to a bankrupt. The company had subsequently obtained further evidence of the fraud. It sought to advance a new case founded on that evidence. The House of Lords held that the new allegations of fraud were based on facts within the companys knowledge at the time of the first trial. The plea of res judicata succeeded, therefore. Importantly, Earl Cairns LC said, at p 814, that it would be intolerable if a party who had been unsuccessful in litigation could re open it merely because, since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up to the same relief [as had been] asked for before, but it being in addition to the facts [in the previous litigation], it ought now to be allowed to be the foundation of a new litigation, and [he] should be allowed to commence a new litigation merely upon the allegation of this additional fact. The contrast with the present case is immediately obvious. This is not an instance of the appellant seeking to adduce evidence of facts going in the same direction as facts previously stated, because Mrs Takhar had not asserted that the Krishans had been guilty of fraud, merely that she had no recollection of having signed the profit share agreement. The relief that she seeks now is quite different from that which she had earlier claimed. Previously, she sought to avoid the effect of the agreement because of undue influence and unconscionability on the part of the Krishans. Now she claims that the agreement on which they rely was, in its written form, a forgery. Now, it is true that Earl Cairns had also said in the Phosphate Sewage case, at p 814, that the only way in which [new evidence] could possibly be admitted would be if the litigant were prepared to say, I will shew you that this is a fact which entirely changes the aspect of the case, and I will shew you further that it was not, and could not by reasonable diligence have been, ascertained by me before. But the essential context of this observation is set by the earlier passage quoted above. It is where precisely the same relief as had previously been claimed is sought again. In my view, it is not appropriate to lift the requirement of reasonable diligence out of the context in which it appears and to import it into a different scenario, namely, where a changed basis for success for the appellant is advanced. Patten LJ acknowledged that Earl Cairns statement of principle was expressed in relation to a plea of res judicata and that that was how it had been treated by Lord Keith in Arnold (para 39, per Patten LJ). But he suggested that the rule expressed by Earl Cairns was said by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 to be relevant more generally as a statement of the conditions which must be satisfied to justify a departure from the policy of not permitting a party to challenge prior decisions by a court of competent jurisdiction in which case it is relevant to whether it would be an abuse of process to seek to set a judgment aside without satisfying the reasonable diligence condition. (Patten LJ, also at para 39.) Again, it is important to recognise the context in which Lord Diplock made his remarks about the application of the rule. Hunter was a case in which those who had been convicted of planting bombs in Birmingham sought to establish, by civil action, that they had been subjected to ill treatment before they confessed to involvement in the bombings. This was described as a collateral attack on the correctness of their convictions. At p 545 Lord Diplock said: There remains to be considered the circumstances in which the existence at the commencement of the civil action of fresh evidence obtained since the criminal trial and the probative weight of such evidence justify making an exception to the general rule of public policy that the use of civil actions to initiate collateral attacks on final decisions against the intending plaintiff by criminal courts of competent jurisdiction should be treated as an abuse of the process of the court. The context of the issue in Hunter is therefore firmly set. It is whether a challenge to the correctness of a criminal conviction amounts to an abuse of process. This is, self evidently, an entirely different situation from that which arises in the present case. And it immediately gives rise to concern about whether it is acceptable to apply a test fashioned for the circumstances of collateral challenge to a criminal conviction to the markedly dissimilar setting of seeking to set aside a civil judgment because it was obtained by a fraud which had not been alleged or adjudicated on at the original trial. Patten LJ referred to the decision of the Privy Council in Owens Bank Ltd v Etoile Commerciale SA [1995] 1 WLR 44, (Etoile) where Lord Templeman had said: An English judgment is impeachable in an English court on the ground that the first judgment was obtained by fraud but only by the production and establishment of evidence newly discovered since the trial and not reasonably discoverable before the trial: see Boswell v Coaks (No 2) (1894) 86 LT 365n. As Newey J observed in his judgment in the present case, the reasonable diligence test is not to be found in Boswell v Coaks (which Lord Templeman had cited as authority that it was required). Moreover, the Etoile case involved a decision by the Court of Appeal of St Vincent and the Grenadines that an action claiming damages for fraud should be struck out as an abuse of process in circumstances where in earlier proceedings in France it had been alleged that the date on a critical document had been forged in effect, an allegation of fraud. That case had been rejected by the French court, so that the position in the Etoile case was that the bank sought to rely for a second time on fraud. This distinguishes it from the present appeal. In any event, the Board dismissed the appeal on the basis that it was for the St Vincent courts to control their own process and to decide whether the banks attempt to re open the issue of fraud was an abuse of it. Lord Templemans remarks were therefore obiter. Newey Js criticism of Lord Templemans statement of principle was rejected by Patten LJ. He suggested that this was consistent with the earlier decision of the House of Lords in Owens Bank Ltd v Bracco [1992] 2 AC 443 (Bracco). In that case Lord Bridge, at p 483, had articulated the common law rule in this area as being: that the unsuccessful party who has been sued to judgment is not permitted to challenge that judgment on the ground that it was obtained by fraud unless he is able to prove that fraud by fresh evidence which was not available to him and could not have been discovered with reasonable diligence before the judgment was delivered. It is important to be mindful of the rider which Lord Bridge added to this exposition, however. Later, in the same passage he said: The rule rests on the principle that there must be finality in litigation which would be defeated if it were open to the unsuccessful party in one action to bring a second action to relitigate the issue determined against him simply on the ground that the opposing party had obtained judgment in the first action by perjured evidence. (Emphasis added) The rule is therefore expressed to apply when there is a proposed re litigation of the issue of fraud which had been determined in the earlier litigation. That is not the position here. Mrs Takhar seeks to raise the fraud of the Krishans for the first time. It should be noted that Lord Bridge referred to re litigation of the issue which had been determined against the party seeking to reopen the case. The issue of the Krishans alleged fraud has not been determined. I do not consider, therefore, that Bracco forbids a challenge to a judgment which, it is claimed, was obtained by fraud, where that issue was not canvassed at the first trial. Likewise, it does not prohibit Mrs Takhar from pursuing her present action. Is fraud a thing apart; does it unravel all? 2 Lloyds Rep 61, para 15, Lord Bingham of Cornhill said that: In HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] fraud is a thing apart. This is not a mere slogan. It also reflects an old legal rule that fraud unravels all once fraud is proved, it vitiates judgments, contracts and all transactions whatsoever: Lazarus Estates Ltd v Beasley [1956] 1 All ER 341 at 345, [1956] 1 QB 702 at 712 per Denning LJ. Parties entering into a commercial contract will no doubt recognise and accept the risk of errors and omissions in the preceding negotiations, even negligent errors and omissions. But each party will assume the honesty and good faith of the other; absent such an assumption they would not deal. This reflects the basic principle that the law does not expect people to arrange their affairs on the basis that others may commit fraud. It also carries echoes of what Lord Wilberforce said in The Ampthill Peerage [1977] AC 547, 569: any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution . and having reached that solution it closes the book . in the interest of peace, certainty and security it prevents further inquiry . there are cases where the certainty of justice prevails over the possibility of truth . and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud. This passage from Lord Wilberforces speech resonates with earlier authority. In Hip Foong Hong v H Neotia & Co [1918] AC 888, 894, Lord Buckmaster said: In all applications for a new trial the fundamental ground must be that there has been a miscarriage of justice. If no charge of fraud or surprise is brought forward, it is not sufficient to show that there was further evidence that could have been adduced to support the claim of the losing parties; the applicant must go further and show that the evidence was of such a character that it would, so far as can be foreseen, have formed a determining factor in the result. Such considerations do not apply to questions of surprise, and still less to questions of fraud. A judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail The clear implication from this statement is that in cases of fraud, unlike other instances of claimed miscarriages of justice, it is not necessary to show that the further evidence would have been a determining factor in the result. And, if it was not necessary to show that, it could hardly be said that it would have to be shown that evidence of the fraud could not have been obtained before the first trial by the exercise of reasonable diligence (a more rigorous requirement, by any standard). A need to show reasonable diligence did not feature in Jonesco v Beard [1930] AC 298, where an application was made to set aside a judgment obtained by fraud. At p 300, Lord Buckmaster said the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegations established by the strict proof such a charge requires. No mention was made of a need to show that evidence of the fraud could not have been uncovered by reasonable diligence. If that was deemed to be a requirement, it would surely have been mentioned at this point. This is particularly so because affidavits relating to evidence other than fraud, which had not been produced at the trial, were said by Lord Buckmaster not to be capable of sustaining the case for setting aside the judgment because there was no sufficient explanation of why the evidence had not been made available at the trial (at p 300). The same stricture was not applied to the argument in relation to fraud. The special place occupied by fraud in the setting aside of judgments obtained by its use has been recognised in Australia and Canada. In McDonald v McDonald (1965) 113 CLR 529 the High Court of Australia applied Hip Foong Hong and Jonesco v Beard and rejected the notion that, to set aside a judgment obtained by fraud, it had to be shown that evidence of the fraud could not have been obtained by reasonable diligence before the trial which led to the judgment sought to be set aside. Barwick CJ contrasted the position where a verdict was impeached on the basis of fresh evidence with that where it was obtained by fraud. At p 533 he said: But if the fresh evidence does not satisfy all these requirements so that a new trial could not be ordered on the basis of the discovery of fresh evidence, but does tend to establish that the verdict was obtained by fraud . the court may grant a new trial . if the court . finds the fact of the fraud . to be proved At p 542, Menzies J discussed the grounds on which a new trial can be ordered on the basis of fresh evidence and then observed, [t]his leaves untouched the rule that, if by any means it be proved affirmatively that the earlier judgment was tainted by fraud, it will, without more, be set aside. (Emphasis added) This decision was followed in Toubia v Schwenke [2002] NSWCA 34; (2002) 54 NSWLR 46. As Newey J stated in para 33 of his judgment in this case, in Toubia Handley JA, with whom Heydon JA and Hodgson JA agreed, concluded (in para 41) that [i]n an action for fraud, a plaintiff must prove that he was deceived but need not prove that he was diligent. Handley JA continued: Where the action seeks the judicial rescission of a judgment, the plaintiff must prove that he and the court were deceived and he can only do this by showing that he has discovered the truth since the trial. Where this is done, and the fresh facts are material, fraud is established. Lord Buckmaster [in Hip Foong Hong v H Neotia and Co [1918] AC 888] said that if fraud was proved the judgment was vitiated, and he can only have meant that nothing else had to be proved apart from fraud. That means there is no need to prove due diligence as well. Handley JA, in an earlier passage of his judgment, gave a powerful defence of this principle. Referring to the argument that the dicta in Owens Bank Ltd v Bracco [1992] AC 443 were to the effect that, if fraud was alleged (even for the first time) in an application to set aside a judgment, it had to be shown that it could not have been discovered with reasonable diligence, at paras 37 and 38 he said: 37. I would not follow the dicta in Owens Bank Ltd v Bracco, Owens Bank Ltd v Etoile Commerciale SA, even if there was no High Court decision [in McDonald v McDonald] on the point because, with respect, the dicta are contrary to principle and earlier authority. The assumption is that the court and the losing party were successfully imposed on by the fraud of the successful party, but relief should nevertheless be denied and the judgment allowed to stand because the defrauded party was careless or lacked diligence in the preparation of his case. Contributory negligence is not a defence to an action for fraud whether the relief claimed is rescission or damages. As Brennan J said in Gould v Vaggelas (1985) 157 CLR 215, 252: A knave does not escape liability because he is dealing with a fool. 38. Means of knowledge of the falsity of the representation without actual knowledge is no defence and a representee has no duty to make inquiries to ascertain the truth. In Canada v Granitile Inc (2008) 302 DLR (4th) 40, the Ontario Superior Court of Justice reached the same conclusion. At para 299, Lederer J said: A failure to exercise due diligence, where fraud might otherwise have been discovered, is not enough to sustain a judgment which resulted from that fraud. He developed that theme at para 303 where he said: All of this is consistent with and in furtherance of the fundamental proposition that Fraud unravels everything . We are not required to be perpetually on guard so that we are looking to discover the fraud of another party . Where fraud is present, finality will give way to the responsibility of the court to protect its process so as to ensure that litigants do not profit from their improper conduct . Newey J found the reasoning in the Australian and Canadian cases compelling. I also. The idea that a fraudulent individual should profit from passivity or lack of reasonable diligence on the part of his or her opponent seems antithetical to any notion of justice. Quite apart from this, the defrauder, in obtaining a judgment, has perpetrated a deception not only on their opponent and the court but on the rule of law. Newey J put it well when he said, at para 37 of his judgment: Supposing that a party to a case in which judgment had been given against him could show that his opponent had obtained the judgment entirely on the strength of, say, concocted documentation and perjured evidence, it would strike me as wrong if he could not challenge the judgment even if the fraud could reasonably have been discovered. Were it impossible to impugn the judgment, the winner could presumably have been sent to prison for his fraudulent conduct and yet able to enforce the judgment he had procured by means of it: the judgment could still, in effect, be used to further the fraud. I agree with all of that. It appears to me that the policy arguments for permitting a litigant to apply to have judgment set aside where it can be shown that it has been obtained by fraud are overwhelming. Conclusion For the reasons that I have given, I do not consider that the Etoile and Bracco cases are authority for the proposition that, in cases where it is alleged that a judgment was obtained by fraud, it may only be set aside where the party who makes that application can demonstrate that the fraud could not have been uncovered with reasonable diligence in advance of the obtaining of the judgment. If, however, they have that effect, I consider that they should not be followed. In my view, it ought now to be recognised that where it can be shown that a judgment has been obtained by fraud, and where no allegation of fraud had been raised at the trial which led to that judgment, a requirement of reasonable diligence should not be imposed on the party seeking to set aside the judgment. Two qualifications to that general conclusion should be made. Where fraud has been raised at the original trial and new evidence as to the existence of the fraud is prayed in aid to advance a case for setting aside the judgment, it seems to me that it can be argued that the court having to deal with that application should have a discretion as to whether to entertain the application. Since that question does not arise in the present appeal, I do not express any final view on it. The second relates to the possibility that, in some circumstances, a deliberate decision may have been taken not to investigate the possibility of fraud in advance of the first trial, even if that had been suspected. If that could be established, again, I believe that a discretion whether to allow an application to set aside the judgment would be appropriate but, once more, I express no final view on the question. In Mrs Takhars case, she did suspect that there may have been fraud but it is clear that she did not make a conscious decision not to investigate it. To the contrary, she sought permission to engage an expert but, as already explained, this application was refused. At para 26 of his judgment, Newey J said that the principles which govern applications to set aside judgments for fraud had been summarised by Aikens LJ in Royal Bank of Scotland plc v Highland Financial Partners lp [2013] 1 CLC 596, para 106. There, Aikens LJ said: The principles are, briefly: first, there has to be a conscious and deliberate dishonesty in relation to the relevant evidence given, or action taken, statement made or matter concealed, which is relevant to the judgment now sought to be impugned. Secondly, the relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be material. Material means that the fresh evidence that is adduced after the first judgment has been given is such that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the courts decision to give judgment in the way it did. Put another way, it must be shown that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision. Thus the relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was. Thirdly, the question of materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence. I agree that these are the relevant principles to be applied. I also agree with Newey Js view (expressed at para 47 of his judgment) that Mrs Takhars application to set aside the judgment of Judge Purle has the potential to meet the requirements which Aikens LJ outlined. She should not be fixed with a further obligation to show that the fraud which she now alleges could not have been discovered before the original trial by reasonable diligence on her part. Takhars case should be allowed to proceed to trial. I would therefore allow the appeal and restore the order of Newey J that Mrs LORD SUMPTION: (with whom Lord Hodge, Lord Lloyd Jones and Lord Kitchin agree) Subject to what follows, I agree with the judgment of Lord Kerr. I add some observations of my own only because the disorderly state of the authorities is apt to make the question before us appear more complicated than it really is. In my view, the basic principles on which this case falls to be decided are reasonably straightforward. An action to set aside an earlier judgment for fraud is not a procedural application but a cause of action. As applied to judgments obtained by fraud, the historical background was explained by Sir George Jessell MR in Flower v Lloyd (1877) 6 Ch D 297, 299 300. Equity has always exercised a special jurisdiction to reverse transactions procured by fraud. A party to earlier litigation was entitled to bring an original bill in equity to set aside the judgment given in that litigation on the ground that it was obtained by fraud. Such a bill could be brought without leave, because it was brought in support of a substantive right. If the fact and materiality of the fraud were established, the party bringing the bill was absolutely entitled to have the earlier judgment set aside. In this respect, an original bill differed from a bill of review on the basis of further evidence, which was essentially procedural and did require leave. After the fusion of law and equity in the 1870, the procedure by way of original bill was superseded by a procedure by action on the same juridical basis. The cause of action to set aside a judgment in earlier proceedings for fraud is independent of the cause of action asserted in the earlier proceedings. It relates to the conduct of the earlier proceedings, and not to the underlying dispute. There can therefore be no question of cause of action estoppel. Nor can there be any question of issue estoppel, because the basis of the action is that the decision of the issue in the earlier proceedings is vitiated by the fraud and cannot bind the parties: Director of Public Prosecutions v Humphrys [1977] AC 1, 21 (Viscount Dilhorne). If the claimant establishes his right to have the earlier judgment set aside, it will be of no further legal relevance qua judgment. It follows that res judicata cannot therefore arise in either of its classic forms. The rule, originally stated by Wigram V C in Henderson v Henderson (1843) 3 Hare 100, 115, that a party is precluded from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones, is commonly treated as a branch of the law of res judicata. It has the same policy objective and the same preclusive effect. But, it is better analysed as part of the juridically distinct but overlapping principle which empowers the court to restrain abuses of its process. The relationship between the two concepts was examined by this court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160, paras 22 25. Whereas res judicata is a rule of substantive law, abuse of process is a concept which informs the exercise of the courts procedural powers. These are part of the wider jurisdiction of the court to protect its process from wasteful and potentially oppressive duplicative litigation even in cases where the relevant question was not raised or decided on the earlier occasion. Since the decisions of the House of Lords in Arnold v National Westminster Bank plc [1991] 2 AC 93 and Johnson v Gore Wood & Co [2002] 2 AC 1 it has been recognised that where a question was not raised or decided in the earlier proceedings but could have been, the jurisdiction to restrain abusive re litigation is subject to a degree of flexibility which reflects its procedural character. This allows the court to give effect to the wider interests of justice raised by the circumstances of each case. It is this flexibility which supplies the sole juridical basis on which the respondents can argue that the evidence of fraud must not only be new but such as could not with reasonable diligence have been deployed in the earlier proceedings. It is also the basis on which Lord Briggs, in his judgment on the present appeal, suggests a less absolute rule than that proposed by Lord Kerr. I cannot accept either the respondents argument, or Lord Briggs more moderate variant of it. The reason is that proceedings of this kind are abusive only where the point at issue and the evidence deployed in support of it not only could have been raised in the earlier proceedings but should have been: see Johnson v Gore Wood & Co, at p 31 (Lord Bingham of Cornhill) and Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd, para 22 (Lord Sumption). As Lord Bingham observed in the former case, it is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. The should in this formulation refers to something which the law would expect a reasonable person to do in his own interest and in that of the efficient conduct of litigation. However, the basis on which the law unmakes transactions, including judgments, which have been procured by fraud is that a reasonable person is entitled to assume honesty in those with whom he deals. He is not expected to conduct himself or his affairs on the footing that other persons are dishonest unless he knows that they are. That is why it is not a defence to an action in deceit to say that the victim of the deceit was foolish or negligent to allow himself to be taken in: Central Railway Company of Venezuela v Kisch (1867) LR 2 HL 99, 120 (Lord Chelmsford); Redgrave v Hurd (1881) 20 Ch D 1, 13 17 (Jessell MR). It follows that unless on the earlier occasion the claimant deliberately decided not to investigate a suspected fraud or rely on a known one, it cannot be said that he should have raised it. Nor do I accept Lord Briggs view that a more flexible and fact sensitive approach may be required in order to distinguish between degrees of dishonesty. I think that this would introduce an unacceptable element of discretion into the enforcement of a substantive right. The standard of proof for fraud is high, and rightly so. But once it is satisfied, there are no degrees of fraud which can affect the right to have the judgment set aside. Dicta apart, the only direct authority for a requirement that the new evidence should be such as could not with reasonable diligence have been deployed in the earlier proceedings is McIlkenny v Chief Constable of the West Midlands [1980] 1 QB 283, affirmed sub nom. Hunter v Chief Constable of the West Midlands Police [1982] AC 529. This was an action for damages for assault committed in the course of a police investigation into the Birmingham bombing of November 1974, which had ultimately led to the plaintiffs prosecution and conviction for murder. The same allegation of assault had been made at the criminal trial as an objection to the admission of a confession. The trial judge had rejected it on a voir dire. The subsequent civil action was struck out as an abuse of process, because it was a collateral attack on the trial judges ruling on the admissibility of the confession and thus on the conviction. The actual decision is distinguishable on a number of counts. The earlier proceedings were criminal. Moreover, the result of the civil action, if it had succeeded, would have been to discredit a subsisting conviction without setting it aside. The reasoning, however, is not so readily distinguishable. In the Court of Appeal Goff LJ, at pp 333 335, relied on the authorities on setting aside civil judgments for fraud. These supported the proposition that decisive new evidence must be available in the later proceedings, but in summarising them Goff LJ added a requirement, which they did not support, that the evidence could not with reasonable diligence have been deployed in the earlier proceedings. The sole authority for that refinement was Goff LJ himself. His formulation of the test was endorsed by Lord Diplock, delivering the only reasoned speech in the House of Lords, [1982] AC 529, 545. There are dicta to the same effect in cases arising out of actions to set aside judgments in civil proceedings: see Lord Bridge in Owens Bank Ltd v Bracco [1992] 2 AC 443, 483 and Lord Templeman in Owens Bank Ltd v Etoile Commerciale SA [1995] 1 WLR 44, 48. It may well be that policy considerations justify such a principle where a collateral attack is mounted on a criminal conviction following a trial in which the same issue was decided. There are other procedures for reopening unsafe criminal convictions in such cases. As is well known, these were ultimately invoked and resulted in the convictions of the plaintiffs and McIlkenny and Hunter being quashed. I would respectfully decline to treat the statements in those cases as applying to proceedings to set aside a civil judgment and would hold that the dicta in the two Owens Bank cases were mistaken. None of these judicial statements sufficiently distinguishes between (i) the proposition that an action to set aside a civil judgment must be based on new evidence not before the court in the earlier proceedings, and (ii) the proposition that that evidence must not have been obtainable by reasonable diligence for the earlier proceedings. The first proposition is well established. The second is not supported by any authority earlier than McIlkenny and appears to me to be an insufficient answer to an allegation that a civil judgment has been obtained against the claimant by the deliberate fraud of another party. This is the effect of the decision of the High Court of Australia in McDonald v McDonald (1965) 13 CLR 529, in which the two propositions were carefully and separately considered. It was also the reason why in Toubia v Schwenke (2002) NSWLR 46 the New South Wales Court of Appeal observed that even in the absence of binding Australian authority they would have regarded the dicta in the two Owens Bank cases as being contrary to principle and declined to follow them. In my opinion the Australian cases on this point are correct. I would leave open the question whether the position as I have summarised it is any different where the fraud was raised in the earlier proceedings but unsuccessfully. My provisional view is that the position is the same, for the same reasons. If decisive new evidence is deployed to establish the fraud, an action to set aside the judgment will lie irrespective of whether it could reasonably have been deployed on the earlier occasion unless a deliberate decision was then taken not to investigate or rely on the material. I recognise the risk of frivolous or extravagant litigation to set aside judgments on the ground of fraud, but like other members of the court, I think that the stringent conditions set out by Aikens LJ in Royal Bank of Scotland plc v Highland Financial Partners lp [2013] 1 CLC 596, para 106, combined with the professional duties of counsel, are enough keep it within acceptable limits. I do not think that the imposition of further conditions would be consistent with the long standing policy of equity of reversing transactions procured by fraud. LORD BRIGGS: This appeal turns on the outcome of a bare knuckle fight between two important and long established principles of public policy. The first is that fraud unravels all. The second is that there must come an end to litigation. I will call them the fraud principle and the finality principle. On the facts of this case I agree with Lord Kerr that the fraud principle should prevail. As will appear I also agree with most of his reasoning. But I have been unable to follow him all the way down a path which seeks to erect a reliable bright line boundary between types of case where one principle or the other should clearly prevail. There will be too many cases where that supposed bright line is either invisible, or so technical that it fails to afford a basis for choosing between the two principles which accords with justice, common sense or the duty of the court to retain control over its own process, and thereby protect it from abuse. I would have preferred a more flexible basis upon which, recognising that many cases will straddle any bright line, the court can apply a fact intensive evaluative approach to the question whether lack of diligence in pursuing a case in fraud during the first proceedings ought to render a particular claim to set aside the judgment in those proceedings for fraud an abuse of process. This approach would in particular seek to weigh the gravity of the alleged fraud against the seriousness of the lack of due diligence, always mindful of the principle that victims of a fraud should not be deprived of a remedy merely because they are careless. The problems with a bright line rule Basing himself on that obvious principle of justice, Lord Kerr proposes a clear rule that a judgment may always be set aside for fraud without regard either to the gravity of the fraud or to any lack of reasonable diligence by the alleged victim, unless either (i) fraud was actually alleged in the earlier proceedings, or (ii) there was a deliberate decision not to investigate a suspected fraud. Only in those cases should the finality principle either prevail, or at least give rise to a judicial discretion to apply it. As will appear I agree that there should be such a power (although I doubt whether discretion is the right word) in those two types of case, but there will be numerous other types where the absence of any such power will in my view be an unacceptable fetter upon the courts duty to control its own process, and to protect itself and the parties from abuse. The problems arise mainly from the wide range in the gravity of the alleged frauds, the low threshold of the summary judgment test which the fraud allegation must pass to enable the allegation to be tried, and the almost infinite levels of seriousness of the shortfall in the victims application of reasonable diligence. It makes no sense to me either that a serious, pre meditated, skilfully executed and successful fraud should go without remedy merely because the victim fell short of reasonable diligence by a narrow margin (as the rule propounded by the Court of Appeal would ensure) or that something falling just on the wrong side of honesty should expose the successful litigant to the full rigour of a second trial, where the fraud allegation itself was only just arguable, and the alleged victim was guilty of the most basic failure to test the other partys case (as I fear that Lord Kerrs proposed rule would permit). The allegation of fraud in the present case is a telling example of a grave fraud, at the most serious end of the range. I emphasise that it is at this stage only an untested allegation. It is said that the Krishans planned and implemented a clever forgery of a document vital (if genuine) to their case, and that it was instrumental in their victory. By using a genuine signature of Mrs Takhar, superimposing it on the joint venture agreement, disposing of the original and using a copy to conceal the superimposition, they made it as hard as they possibly could to prevent Mrs Takhar from dealing with it. On looking at the copy document it appeared to her to be, and indeed it was, her signature. Furthermore the alleged forgery was designed from the outset to deceive not only Mrs Takhar but also the court, in litigation which must have been pending when the forgery was planned and committed. By contrast the failure in reasonable diligence may be said to have been at the less serious end of the range. Although the relevant facts have not yet been investigated, it appears likely that Mrs Takhar and her then legal team did take steps to investigate a forgery which they suspected, but they left it too late. A much more familiar example might go like this. Party A tells a spur of the moment deliberate half truth (ie a lie) about a fact in issue when cornered during cross examination at trial, and the advocate for party B fails to put it to A that the statement was a lie (ie dishonest) rather than merely a mistaken recollection, when there were disclosed documents which plainly justified putting it as a lie, absent from the trial bundle due to a serious failure in preparation for trial. Let it be supposed that the deliberate concealment of the whole truth was just on the wrong side of honesty. The trial judge gives credit to As evidence, in particular because the offending half truth was not challenged as a deliberate lie, and this materially contributed to As success. A new legal team then does the necessary work on the disclosed documents and B seeks to set aside the judgment for fraud. Neither of Lord Kerrs exceptions would apply. B would be able to seek a retrial of substantially the same case, if successful in getting the judgment set aside. The court would be powerless to stop the process as an abuse. Strictly B would be entitled to say that the judgment had been obtained by fraud, but a retrial in such circumstances would strike at the heart of the finality principle. On the other hand, if Bs advocate had just said thats a lie Mr A, the court would, on Lord Kerrs analysis, although not on Lord Sumptions, have the requisite discretion because fraud would have been put in issue at the trial. I would suggest that, standing back from the legal technicalities, the real reason why most reasonable observers would say that the application to set aside the judgment in the first example should not be stayed as an abuse, but that in the second example it should, is not because of the brief putting of fraud in issue (if it had been) in the second, but because of the obvious disparity between them, when weighing the gravity of the fraud against the extent of the failure in due diligence. Both examples plainly engage both the fraud and the finality principles. In both of them judgment is alleged to have been obtained by fraud but, equally, in both examples the applicant is seeking, as the overall objective, completely to re litigate the first case, albeit as the second stage in a two stage process. The low level of the summary judgment threshold contributes to the problem in this way. Applications to set aside a judgment for fraud present a potential double whammy to the finality principle. Subject of course to appeals, the first judgment should ordinarily be the end of the matter. But an application to set it aside for fraud will itself involve a trial which, because of the seriousness of the allegation, will be likely to be litigated with bell, book and candle, no stone being left unturned. If the application succeeds, there will then be a third trial, namely the re trial of the original claim. Of course the third trial will be avoided if the application to set aside fails on the merits, but the only protection against the multiple litigation constituted by the trial of the fraud allegation will be if it fails to raise a triable issue. Nor therefore is it appropriate to address the extent to which the fraud principle should prevail as against the finality principle on the basis that the fraud has actually occurred. In particular cases the fraud allegation may be a weak one, just passing the summary judgment test, whereas the invasion of the finality principle in such a case will not merely be a risk but an expensive and time consuming actuality. If these considerations can be weighed in an evaluative balance wherever the two principles are at loggerheads, well and good, but they would only feature in the regime proposed by Lord Kerr if one or the other of his two exceptions applied. I agree that the dicta of Aikens LJ in in Royal Bank of Scotland plc v Highland Financial Partners lp [2013] 1 CLC 596, para 106, cited by Lord Kerr, provide some protection against the abusive use of fraud allegations as a way of re opening decided cases. But they would be unlikely to prevent the AB example from withstanding an application for defendants summary judgment. A deliberate lie in the witness box is no less fraudulent because it is committed on the spur of the moment. If it contributed materially to the outcome, then the requirement for causation is likely to be satisfied, at least at the level necessary to give rise to a triable issue. But those dicta are concerned with delimiting the cause of action, not the varied circumstances in which its pursuit may amount to an abuse. I have already described by example the way in which there can be a wide range of seriousness in a failure to conduct litigation with reasonable diligence. An important part of the finality principle is that a party is expected to bring his whole case about the relevant dispute to bear when it is first litigated. That is the foundation of what used to be called the rule in Henderson v Henderson (1843) 3 Hare 100. If a matter relevant to a dispute could have been raised in the earlier case, then it should have been, and to litigate it even for the first time in a second case used automatically to be prohibited. But the rigour and inflexibility of the old rule has been completely transformed by its re evaluation in Johnson v Gore Wood & Co [2002] 2 AC 1. Now, even if the new matter could have been raised in the earlier proceedings, it no longer follows that it necessarily should have been. Rather, the court conducts an open ended fact intensive evaluation of the question whether to raise the new matter in a second claim is or is not an abuse. Lord Bingham said, at p 31: It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. As will appear, although neither of those cases was concerned with fraud, or with setting aside an earlier judgment, I consider that the sea change which was introduced by the House of Lords in Johnson v Gore Wood presents the correct way out of the problems thrown up by this appeal. The authorities Like Lord Kerr I do not consider that these problems are satisfactorily resolved by the existing authorities. My main reason is that the question whether the making of a particular type of application to a court does or does not involve an abuse of process is not one which is to be regarded as set in stone for all time, once resolved (if it has been) by the highest court. The abuse of process doctrine is one which both needs to be, and has conspicuously been, adaptive to changes in litigation culture over time, during which the pressures upon the courts and the readiness of the courts to conduct evaluative assessments in place of the mechanical application of bright line rules is constantly changing. Johnson v Gore Wood is a prime but not sole example of the courts capacity to adapt to changing circumstances, in an area which is at least in part concerned with procedure. In any event I agree with Lord Kerr, Lady Arden and Newey J that the existing authorities do not upon analysis provide a reliable guide, even though there are statements in some of them which, taken on their own, do appear to suggest that it is settled law that a lack of reasonable diligence will always be fatal to an application to set aside a judgment for fraud, as the Court of Appeal held. They do not, either because the foundations of earlier authority upon which they are expressed to be based prove upon minute analysis to be much less clear than the later dicta which rely upon them suggest, or because there are factors about the context in which the statements are made which are clearly distinguishable from the present context. Owens Bank v Etoile is an example of the first, while Hunter v Chief Constable is a clear example of the second. To the extent that the English authorities do appear at least superficially to espouse the rule that lack of reasonable diligence will always defeat an application to set aside a judgment for fraud, they simply fail to face up to the invasion thereby caused into the principle that a knave should not escape liability because he is dealing with a fool, as powerfully explained in the Australian and Canadian cases referred to by Lord Kerr. This is, therefore, an opportunity for this court to put upon a proper modern basis the principles which ought to regulate the courts power to give full effect to the right of victims of fraud to obtain relief while at the same time exercising an evaluative power to recognise the abuse of that right, and to deal with it where it occurs. This would have enabled the courts to maintain supervision of a type of claim which, if uncontrolled, could turn into a flood of attempts by dissatisfied court users aimed at re litigation of their disputes, based upon merely arguable assertions that they lost because an opposing party lied in the witness box, or even encouraged a witness to do so. The principles The starting point is clearly to recognise that the right to have a judgment set aside for fraud is a distinct cause of action recognised by the common law, like a right to set aside a contract obtained by fraud, which is not inherently conditional upon any requirement for the exercise of reasonable diligence in the proceedings leading to the impugned judgment or, for that matter, the making of the impugned contract. In short, the exercise of reasonable diligence is not in any way part of the cause of action. It is for example fully applicable to a case in which judgment followed upon a defendant simply letting the case go by default, if fraud was involved in the obtaining of the judgment. It is a claim for relief obtainable as of right (ex debito justitiae), rather than only by the invocation of a judicial discretion. Nor does the right depend upon the seriousness of the fraud. Two consequences flow from that starting point. The first is that, if no allegation of fraud was made in the proceedings leading to the impugned judgment, there is no question of cause of action or issue estoppel, for the reasons given by Lord Kerr and Lord Sumption. The second is that the absence of reasonable diligence is not of itself a reason for staying the claim to set aside the judgment. This would be to deny relief to foolish victims of a knave, merely because of their foolishness. The only reason to stay the application to set aside is if the lack of reasonable diligence is so serious, in the context of all other relevant factors, that the application can really be categorised as abusive. But by contrast with claims to set aside agreements for fraud, applications to set aside a judgment for fraud will usually engage the finality principle, because of the re litigation objective which normally lies at the heart of them. Leaving aside default judgments (where there has as yet been little real litigation), the objective of the applicant is not merely to have the impugned judgment set aside, but also to clear the way to have the original dispute relitigated. This may be thought to be obvious where the applicant is (like Mrs Takhar) the unsuccessful claimant in the earlier case, but it is in substance also true of a defendants application. Defendants will not of course wish thereby to bring the same claim again, but their objective is to keep the fraudulent claimant away from their door unless the claimant undertakes the burden of a completely new case, all the way to trial. It is in my view no answer to this analysis to say that the application to set aside a judgment for a fraud not previously alleged will not of itself re litigate anything, so that the finality principle is not thereby really engaged at all. The overall objective is re litigation. The forensic pursuit and defence of the fraud allegation may well travel over, or at least overlap with, ground trampled on in the original proceedings. The present case is an obvious example, since the question whether Mrs Takhar made the agreement in issue was central to the original trial, and would plainly be relevant to the issue whether the document apparently recording the agreement was a forgery. Even if it does not, the application will inevitably involve at least the risk of further expensive and time consuming proceedings about the entitlement of the opposing party to relief already obtained by a judgment which, subject to appeal, ought (in the public interest) to have put an end to the underlying dispute. To that extent I respectfully disagree with the thrust of this part of Lord Kerrs analysis about the separateness of the original proceedings and the application to set aside. In my view the contest between the fraud and finality principles is inherent in applications of this kind, rather than only in Lord Kerrs two exceptions, where fraud was either alleged, or suspected but deliberately not investigated, although it is of course present a fortiori in such cases. That being so, it is in my view wrong in principle to say that the generality of applications to set aside judgments for fraud are entirely unaffected by questions about lack of reasonable diligence (or other factors pointing towards abuse) subject only to the identification of specific exceptional types where a judicial discretion may be engaged. The true principle should be to recognise that such applications constitute the assertion of a legal right with which the court will only interfere if satisfied that the exercise of the right is abusive, but that all such applications by their nature give rise to a risk of abuse with which the court is duty bound to engage, because they undermine finality by their mere pursuit, regardless of outcome. Re litigation is always unfortunate, but it by no means follows that the reason for it is an abuse of process by the applicant. It may well be the respondent who is the real culprit. I would not describe the courts exercise of this duty to guard against abuse as a discretion. There should be no judicial interference with the exercise of the right to set aside a judgment for fraud unless the court is satisfied that it involves an abuse of process. If it does, then the proceedings should be stayed. That will not be discretionary, but it will involve the evaluation of a potentially wide range of factors. I have already mentioned the gravity of the fraud and the extent of the shortfall from the exercise of reasonable diligence. Those would almost always be relevant. But the categories of potentially relevant factors are in principle unlimited. They might include, in particular cases, the centrality (or otherwise) of the fraudulent conduct to the outcome of the case, the extent to which (as here) the alleged fraud was specifically aimed at taking advantage of a lack of care in the preparation of the case by the alleged victim, the resources of the alleged victim during the first proceedings, the amount of toil, treasure and court time which would be thrown away by the setting aside of the judgment, the amount of the same which would be likely to be consumed by the trial of the fraud allegation and, if successful, the re trial of the original claim, and even the apparent strength (or otherwise) of the allegation of fraud. But from start to finish, the question is whether the application really is an abuse of process. Nor would I expect this evaluative approach frequently to come down in favour of a stay. The principle that fraud unravels all is deeply rooted in the common law, and its continued application is an important contributor to honesty within society, to the rule of law and to the ability of the courts to adjudicate disputes justly. Fraud of this kind is all the more serious because it is aimed at deceiving the court itself. But the court must arm itself against always having to allow re litigation, and potentially two further trials between the same parties, wherever the unsuccessful party wants to allege, for the first time, that the case was lost because an opposing party was lying about, rather than just mis recalling, the facts in issue, and can demonstrate an arguable case that this is what happened at trial. Lord Sumption equates the setting aside a judgment for fraud with the setting aside of any transaction for fraud on the basis that a reasonable person is entitled to assume honesty in those with whom he deals, and is not expected to conduct himself or his affairs on the footing that other persons are dishonest unless he knows that they are. I fully agree with that approach to ordinary transactions out of court such as the making of a contract. But I cannot agree that it is reasonable for a litigant always to assume that an opponents case (and evidence in support of it) is honest, with a concomitant right to conduct litigation on that basis, and to re litigate the same dispute whenever he can show, after judgment, an arguable case that his assumption was wrong. Application of the principles to this case It will be apparent from the foregoing why I regard the present case as lying very clearly on the non abusive side of the line, without forming any view at all about whether the allegation of this fraud will in fact be proved. If proven it was a very serious, pre meditated, carefully planned and executed fraud which was instrumental in the defeat of Mrs Takhars claim, and plainly aimed from start to finish at deceiving the court about the central issue in the case. For the reasons given Mrs Takhars failure to use reasonable diligence was by no means at the more serious end of the scale. The expert evidence which she has now obtained, although thus far untested or opposed, plainly gives her a real (rather than merely arguable) prospect of success. Her application comes nowhere near being categorised as an abuse. I would therefore allow the appeal. LADY ARDEN: This appeal concerns Mrs Takhar, who has brought an action (a rescission action) to rescind a judgment against her and made available to the court fresh evidence which, if proved at the trial of the rescission action, will demonstrate that the winning party obtained judgment against her by fraud. Preventing a person from prosecuting a rescission action in these circumstances amounts to restricting her right to pursue her cause of action in fraud, and to have access to justice for that cause of action. Therefore, the law should only impose a restriction on such a claimant in a rescission action where there is justification for doing so. I agree with Lord Kerr that there is no authority which binds this court to hold that failure to act diligently in searching for this evidence before the original trial is, of itself, a bar. It is easy to see how it came to be thought that reasonable diligence in this regard had to be shown as in Boswell v Coaks (No 2) (1894) 86 LT 356n (using the fuller report in the footnotes to Birch v Birch (1902) 86 LT 364, which is also the report used by Lord Templeman in the passage cited by Lord Kerr at para 40 above), the Earl of Selborne, giving the judgment of the House of Lords, held obiter, having emphasised the importance of the finality of judgments, that the rules which applied to a bill of review before 1875 should continue to apply in their full force, and even with greater freedom than before. Those rules included a threshold condition in a rescission action that the fresh evidence could not possibly have been used when the decree was made (see Thomas v Rawlings (1865) 11 LT NS 721, 722, a decision of the Court of Appeal in Chancery). Moreover, the Court of Appeal in Birch v Birch appears obiter to have concluded that this earlier rule continued to apply (see (1902) 86 LT 367). This may have been the reason why Goff LJ held in McIlkenny v Chief Constable of the West Midlands [1980] QB 283, 335 that there was such a rule. In the House of Lords, in the same case but under the name of Hunter v Chief Constable of the West Midlands Police [1982] AC 529, Lord Diplock approved Goff LJs holding, but, as Lord Kerr has explained, in a different context. Furthermore, it may be, as the Federal Court of Australia suggested in Monroe Schneider Associates Inc v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234, 239, that prior to 1875 the Chancery Court had to be somewhat circumspect when asked to rescind a judgment given in a common law court: this might explain such threshold conditions. It is only right that in the generality of cases a judgment obtained by the fraud of the winning party should be rescinded because it is wrong in principle that a person who is proved to be a fraudster should obtain and retain the fruits of his fraud. Clearly, however, a restriction can be justified in some special situations. In other words, there are occasionally exceptions to the principle that fraud unravels all. There are cases where both parties have colluded to deceive the court in those cases it would be an abuse of process to ask the court later to rescind the judgment. As Lord Mansfield held in Montefiori v Montefiori (1762) 1 Black W 363, 96 ER 203 no man shall set up his own iniquity as a defence, any more than as a cause of action. There are other situations: for instance, where the fraud is not material to the outcome: see, for example, Boswell v Coaks. Likewise, a claim to set aside a decree absolute made on divorce, which is equivalent to an order in rem, was not set aside in Callaghan v Hanson Fox [1992] Fam 1 because the parties knew about the evidence and its significance. There must be actual fraud: constructive fraud is not enough. The fraud must be one for which the defendant is responsible. There may well be other situations which I have not mentioned. There may for instance (I express no view) be exceptions where the judgment in the original action was obtained by perjury during the trial or where the fraud was in fact pleaded in the first action. Greater difficulty lies in situations where at the time of the original action a party suspects a fraud but does not investigate it or decides not to investigate it. The justice in this situation may not be so easily answered by allowing an unfettered right to bring a rescission action. I would treat this as a case where the Ashingdane principles found in the jurisprudence of the European Court of Human Rights apply (see Ashingdane v United Kingdom (1985) 7 EHRR 528). Any restriction would have to be derived from a rule which serves the legitimate aim of proving a just solution, thus striking a fair balance between the relevant considerations and going no further than necessary, and which does not defeat the core right of access to court. There are factors which favour some restriction on the victims right in this situation. The judgment in the original action will be final and conclusive (subject to any appeal, and it is to be noted that on any appeal lack of reasonable diligence in obtaining the new evidence for the trial would be relevant). Finality in judgments leads to certainty, and hopefully to the social benefits of dispute resolution. Where property is in issue (eg the ownership of a business), the owner following a final judgment can develop it, invest in it and use it as security to raise money to develop other businesses free from the risk that it might be claimed by someone else. That also is for the economic and social benefit of the community, and there is a social and economic cost if that process is delayed. Furthermore, a litigant has plenty of opportunities to challenge the other partys case under the Civil Procedure Rules (CPR). Mrs Takhar could have served notice on the respondents to prove the disputed agreement, sought further information about it from the respondents and appealed from the denial of permission to adduce expert handwriting evidence. A party is expected to co operate with the court and the other parties in ensuring that so far as possible all issues are dealt with efficiently at a single trial. Under the overriding objective in CPR rule 1.1(1), the court must deal with cases just and proportionately and this includes allotting to each case an appropriate share of the courts resources, while taking into account the need to allot resources to other cases. Litigation resulting in rescission actions may involve not just one but three actions in all. There is also always the risk that the defendant if successful will incur costs which he cannot recover. In assessing reasonable diligence, however, it must be recalled that some litigants do not have legal representation and also that a party is entitled to conduct herself on the basis that the other side is not fraudulent, and that no investigations are needed, until she has real grounds for suspecting fraud. It is of course important for the efficient despatch of litigation that a court insists on compliance with its procedural rules: failure to do so in appropriate cases would provide an incentive to non compliance. The rule in contention on this appeal, however, held by the Court of Appeal to be derived from case law, selects just one consideration and one based on the victims conduct. It is illogical to the extent that it automatically imposes a sanction (a ban on bringing the second action) that may be wholly disproportionate to the lack of diligence. Moreover, it would leave all other factors out of account, including the defendants allegedly fraudulent conduct. In any event, a restriction on a person pursuing a cause of action should in principle only be imposed where it is necessary to do so to protect the rights and freedoms of others. In addition, such a rule would take no account of the protections that can be provided to the defendant in appropriate cases by the exercise of other procedural powers, such as the power to strike out actions which had no real prospect of success. Where the defendant to the rescission action considers that it is clearly not well founded, he can apply to strike out the action on the grounds of abuse of process or obtain summary judgment in his favour. He can be protected in costs and also by the strict rule of procedure that a fraud must be particularised with exactitude: see Jonesco v Beard [1930] AC 298. Where the defendant is prejudiced, and his position cannot for some reason be safeguarded, or the rights of innocent third parties have intervened, it may be relevant to take into account any remedies that the victim may have against her professional advisers in the original action. Where innocent third parties have obtained rights, there may indeed be no point in rescission of the original judgment and the victim may have to resort to other remedies. Too robust a rule favouring finality might encourage litigants to attempt to deceive the other parties or the court. Where deceit is practised on the court, the integrity of the legal system is put at risk and that is an important consideration against the rule contended for. But the short point is that there is as of now at least no procedural rule about any restriction on a person bringing a rescission action in the CPR. The drafters of those rules may wish to consider whether the position should be changed following these judgments. The jurisprudence of the courts of Australia and Canada cited by Lord Kerr is instructive. It is worth noting that in Clone Pty Ltd v Players Pty Ltd (in liquidation) (Receivers & Managers Appointed) [2018] HCA 12 the High Court of Australia was only dealing with lack of reasonable diligence before the fraud was discovered, but the position reached in these cases is not universal in common law jurisdictions. For instance, a rule requiring the claimant in the rescission action to show that he made a reasonable effort in the original trial to ascertain the truth of the matter can be found in the Restatement of Judgments (Second) (1982), para 70 (American Law Institute). There is also legislative precedent for the loss of a right of action as a result of a failure to exercise reasonable diligence in discovering fraud in Limitation Act 1980, section 32. It might be salutary if the CPR were to require a party bringing a rescission action to provide an explanation as to his state of knowledge at the time of the first action in his pleading in the second action, or if they enabled the court to award some security for costs or impose other conditions if reasonable diligence was not taken in the first action. I agree with much that Lord Sumption has said in his judgment, but the question whether conditions should be imposed in this context may involve considerations apart from the imperative of reopening judgments procured by fraud and fall well short of preventing actions for that purpose being brought. The Civil Procedure Rule Committee is empowered to introduce changes to the CPR, and importantly the process involves consultation. The statement of principles set out by Aikens LJ in Royal Bank of Scotland plc v Highland Financial Partners lp [2013] 1 CLC 596 at para 106 approved by Lord Kerr deals with the position at the trial of a rescission action, not with threshold conditions on bringing such an action. In the absence of any special provision in the CPR, and assuming the claim is properly pleaded, the only remedy available to the defendant in a rescission action is to apply to the court for an order barring the claim as an abuse of process. It must be a matter for the respondents in this case whether to pursue that course. They may wish to bring an application or even to contend that some exception to the general rule which this court has found applies. There are matters which cause me some concern on the limited evidence before this court: the fact that Mrs Takhar had concerns about the authenticity of her signature on the agreement from 2008 (two years before the trial), the fact that she had no other explanation in the original trial for the fact that the agreement appeared to bear her signature, her failure to challenge the authenticity of the agreement or to appeal the judges order denying permission to adduce handwriting evidence, the fact that she has received a settlement already from her solicitors suggesting that there was a lack of reasonable diligence (and clearly it cannot matter that it was the solicitors and not the client who showed lack of diligence), and the fact that two years passed between obtaining the report of the handwriting expert and bringing these proceedings. I do not consider that it is for this court to determine the precise state of knowledge at any time of Mrs Takhar or those representing her. It is enough to say that in my judgment, there is not, and should not be, a rule that want of reasonable diligence in the first action of itself leads to a blanket ban on bringing an action to rescind a judgment which the claimant can properly allege the respondents obtained by fraud. This appeal should be allowed and the order of Newey J restored.	The appellant (Mrs Takhar) and the third respondent (Mrs Krishan) are cousins. The second respondent (Dr Krishan) is Mrs Krishans husband. Mrs Takhar and Mrs Krishan became reacquainted in 2004. At this time, Mrs Takhar was suffering from some personal and financial problems, arising mainly from the condition of a number of properties which she owned. In November 2005, it was agreed that the legal title to the properties would be transferred to Gracefield Developments Limited (Gracefield). This was a newly formed company, of which Mrs Takhar and the Krishans were to be the shareholders and directors. Mrs Takhar claims that it was agreed that the properties would be renovated, initially at the cost of the Krishans, and then let. She says that the rent would be used to meet the costs of the renovations but that she was to remain the beneficial owner of the properties. The Krishans case is that Gracefield was set up as a joint venture company and the properties were to be sold after they had been renovated. They say Mrs Takhar was to receive an agreed value for the properties and that any additional profit would be divided equally between Mrs Takhar and the Krishans. On 24 October 2008, Mrs Takhar issued proceedings claiming that the properties had been transferred as a result of undue influence or other unconscionable conduct on the part of the Krishans. At a trial before His Honour Judge Purle QC (HHJ Purle), a significant item of evidence was a scanned copy of a written profit share agreement, apparently signed by Mrs Takhar, which supported the Krishans case. In advance of the trial, Mrs Takhar applied for leave to obtain evidence from a handwriting expert. That application was refused. At the trial, she said that she was unable to assert that the signature was not hers but that she was unable to say how it had come to appear on the document. In the absence of an explanation from Mrs Takhar, HHJ Purle accepted the Krishans evidence and rejected Mrs Takhars claim. Following the trial, Mrs Takhar engaged a handwriting expert, who stated conclusively that the signature on the agreement had been transposed from an earlier document. On receipt of this report, Mrs Takhar sought to have HHJ Purles judgment and order set aside on the ground that it had been obtained by fraud. The respondents claimed that this application was an abuse of process because the documents on which the expert report was based were available to Mrs Takhar before the trial before HHJ Purle. This matter was tried as a preliminary issue. Mr Justice Newey did not agree that the claim was an abuse of process. The Court of Appeal allowed the respondents appeal, holding that a person who seeks to have a judgment set aside on account of fraud had to show that the fraud could not have been discovered by reasonable diligence. Mrs Takhar now appeals to the Supreme Court. The Supreme Court unanimously allows the appeal. It decides that a person who applies to set aside an earlier judgment on the basis of fraud does not have to demonstrate that the evidence of this fraud could not have been obtained with reasonable diligence in advance of the earlier trial. Lord Kerr, Lord Sumption, Lord Briggs and Lady Arden all write judgments. Lord Kerr (with whom Lord Hodge, Lord Lloyd Jones and Lord Kitchin agree): The existence or non existence of fraud had not been decided by HHJ Purle. It is therefore a new issue which does not involve the re litigation of an identical claim [21]. The former House of Lords and Privy Council authorities on which the respondent relied are not authority for the proposition that, in cases where it is alleged that a judgment was obtained by fraud, it may only be set aside where the party who makes that application can demonstrate that the fraud could not have been uncovered with reasonable diligence in advance of the judgment [54]. It is a basic principle that the law does not expect people to arrange their affairs on the basis that others may commit fraud [44]. Australian and Canadian courts have both recognised a special place occupied by fraud in the setting aside of judgments and the reasoning in these cases is compelling [48 52]. It is contrary to justice that a fraudulent individual should profit because their opponent fails to act with reasonable diligence. A person who obtains a judgment through fraud deceives not only their opponent but also the court and the rule of law. It would also seem wrong if a person could be sent to prison for fraudulent conduct and yet remain able to enforce a judgment they obtained because of that fraud [52]. Lord Sumption (with whom Lord Hodge, Lord Lloyd Jones and Lord Kitchin agree): An action to set aside an earlier judgment for fraud is not a procedural application but a cause of action [60]. This cause of action is independent of the cause of action asserted in the earlier proceedings and there can therefore be no question of cause of action estoppel. There is also no question of issue estoppel, because the basis of the action is that the earlier decision is vitiated by fraud and cannot bind the parties [61]. Abuse of process is a concept relating to the courts procedural powers. Previous House of Lords cases have established that where a question could have been but was not raised in earlier proceedings, the courts power to restrain abusive re litigation is subject to a degree of flexibility [62]. Re litigation is abusive not only where the point could have been argued previously but where it should have been. A person is entitled to assume honesty on the part of others, so an application would only be abusive if a claimant deliberately decided not to investigate a suspected fraud or rely on a known one [63]. A more flexible and fact sensitive approach to these cases would introduce an unacceptable element of discretion into the enforcement of a substantive right. The standard of proof for fraud is high but, once it is satisfied, there are no degrees of fraud which can affect the right to have a judgment set aside [64]. Lord Briggs: This case involves a conflict between two important and long established principles of public policy. Firstly, the principle that fraud unravels all and, secondly, the principle that there must come an end to litigation. In this case, the fraud principle should prevail. However, instead of a bright line rule, the court should apply a fact intensive approach to the question of whether a lack of diligence in earlier proceedings really does render a future claim to set aside a judgment on the basis of fraud an abuse of process. This should start from the position that a litigant has a legal right to have set aside a judgment obtained by fraud which is not dependant upon having exercised reasonable diligence in the earlier proceedings. [68]. Lady Arden: There is no reasonable diligence rule barring fresh actions based on fraud [91]. Usually, a judgment obtained by fraud should be set aside. It is wrong in principle that a fraudster should retain the fruits of his fraud but there are some exceptions to this rule [92 93]. If a party suspected a fraud and did not investigate it, any restriction on access to court would have to be compliant with the European Convention on Human Rights, so any restriction on the claimants rights could go no further than necessary [94]. There are factors on both sides. However, the reasonable diligence rule is illogical as it automatically imposes a sanction which could be wholly disproportionate to the lack of diligence [98]. There are already safeguards for the defendant and the Civil Procedure Rules Committee could consider whether further safeguards are needed [99 103].
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.	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].
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.	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.
Does a commercial building which is in the course of redevelopment have to be valued for the purposes of rating as if it were still a useable office? That is the question raised in this appeal. An analogous question would arise if the building were a former hospital which was in the process of conversion into flats. Should it be valued as if it were still available for occupation as a hospital? The question is of general public importance to the law of rating and valuation. The appellants (SJJM) own the freehold of the first floor (the premises) of a three storey office building built in the 1990s, known as Avalon House, at St Catherines Court, Sunderland Enterprise Park, Sunderland. In the past the premises were occupied by tenants as a single office suite of 795.73 square metres. In 2006 the tenants vacated the premises and in December 2009 SJJM accepted the surrender of the lease of the premises. On 9 March 2010 SJJM entered into a contract with Jomast Developments Ltd for the renovation and improvement of the premises with a view to making them more adaptable for use as either three separate suites of offices or as a single suite, in order to attract replacement tenants. The contracted building works involved the removal of all internal elements, except for the enclosure for the lift and staircase by which people gained access to other floors. This entailed stripping out the cooling system including all internal and external plant, the lighting and power installations, the fire alarm system, the suspended ceiling, all sanitary fittings and drainage connections, the timber joisted and modular raised flooring, and existing masonry walls and metal stud partitions. The contract also provided for the construction of new common parts to the premises and new communal sanitary facilities, which involved new solid partitioning, a raised floor, new sanitary fittings, new drainage and plumbing systems, and new electric lighting, alarm and heating systems. Finally, the contract envisaged the construction of three new letting areas within the premises with three self contained electrical distribution circuits and air conditioning and heating systems. After entering into the building contract and until at least 6 January 2012 SJJM had the premises marketed as available for rental either as three separate office suites or as a whole. On 6 January 2012, which is the relevant date for assessing the facts and applying the statutory assumptions discussed below when determining the rateable value of the premises on an application to alter the rating list (the material day), the premises were vacant. Contractors had removed the majority of the ceiling tiles and the suspended ceiling grid and light fittings and also 50% of the raised floor. They had also removed the cooling system and the sanitary fittings, demolished the block walls of the lavatories and stripped out the electrical wiring. The contractors had erected and plastered plasterboard partitions to form the outline of the proposed communal lavatories and had erected and plastered a partition across the floor at the east side of the premises. They had completed first fix electrical installations to the lavatory area and had altered the drainage to accommodate the new location of the lavatories. SJJM wished to reduce its liability to local authority rates on the premises while they were being reconstructed. Local authority rates are a tax on property and the unit of assessment is the hereditament. A hereditament is defined as 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: section 64(1) of the Local Government Finance Act 1988 (the 1988 Act) which refers to this definition in section 115(1) of the General Rate Act 1967 (the 1967 Act). Each hereditament is separately identified on the rating list (which formerly was called the valuation list). The premises were so listed on the 2010 rating list as offices and premises with a rateable value of 102,000. On 6 January 2012 SJJMs agents proposed to the respondent, who is the valuation officer for Sunderland (the VO), that the description of the premises on the rating list should be altered with effect from 1 April 2010 to building undergoing reconstruction and that the rateable value should be reduced to 1. The agents justified their proposal on the basis that the premises were undergoing building works which rendered them incapable of beneficial occupation on the material day. They explained that the scheme of building work was remodelling and refurbishing the floor plate to allow subdivision into up to three separate offices served by communal W/Cs. The VO did not accept the proposal and referred it to the Valuation Tribunal for England (the Valuation Tribunal) as an appeal against his refusal to alter the rating list. The relevant legislation The central issue in this appeal is whether the premises should be rated by having regard to the physical condition they were in on 6 January 2012 or whether para 2(1)(b) of Schedule 6 to the 1988 Act as amended by the Rating (Valuation) Act 1999 (the 1999 Act), which I set out below, requires a valuation officer to assume that they were in reasonable repair as offices and premises on that date. Schedule 6 to the 1988 Act, which is headed Non domestic rating: valuation, provides so far as relevant: 1. This Schedule has effect to determine the rateable value of non domestic hereditaments for the purposes of this Part. 2.(1) The rateable value of a non domestic hereditament none of which consists of domestic property and none of which is exempt from local non domestic rating shall be taken to be an amount equal to the rent at which it is estimated the hereditament might reasonably be expected to let from year to year on these three assumptions (a) the first assumption is that the tenancy begins on the day by reference to which the determination is to be made; (b) the second assumption is that immediately before the tenancy begins the hereditament is in a state of reasonable repair, but excluding from this assumption any repairs which a reasonable landlord would consider uneconomic; (c) the third assumption is that the tenant undertakes to pay all usual tenants rates and taxes and to bear the cost of the repairs and insurance and the other expenses (if any) necessary to maintain the hereditament in a state to command the rent mentioned above. (6) Where the rateable value is determined with a view to making an alteration to a list which has been compiled (whether or not it is still in force) the matters mentioned in sub paragraph (7) below shall be taken to be as they are assumed to be on the material day. (7) The matters are the quantity of minerals or other substances in or the mode or category of occupation of the (a) matters affecting the physical state or physical enjoyment of the hereditament. (b) hereditament. (c) extracted from the hereditament. (cc) the quantity of refuse or waste material which is brought onto and permanently deposited on the hereditament. (d) matters affecting the physical state of the locality in which the hereditament is situated or which, though not affecting the physical state of the locality, are nonetheless physically manifest there, and (e) in the locality of the hereditament. the use or occupation of other premises situated (8A) For the purposes of this paragraph the state of repair of a hereditament at any time relevant for the purposes of a list shall be assumed to be the state of repair in which, under sub paragraph (1) above, it is assumed to be immediately before the assumed tenancy begins. The prior proceedings On 19 October 2012 the Valuation Tribunal dismissed SJJMs appeal. It identified the material day as 6 January 2012 and concluded that on that day there was nothing to prevent the economic repair of the premises. It held that the premises were an office suite in disrepair and were to be rated as if they were in reasonable repair. SJJM appealed to the Upper Tribunal (Lands Chamber) (UT), which heard evidence, as the appeal proceeded as a re hearing. The UT confirmed the Valuation Tribunals finding that the material day was 6 January 2012, and that decision has not been appealed. Otherwise, the UT allowed SJJMs appeal, holding that the premises had been stripped out to such an extent that to replace its major building elements would go beyond the meaning of repair. The assumption in para 2(1)(b) of Schedule 6 to the 1988 Act that a hereditament was in a state of reasonable repair did not extend to the replacement of systems that had been completely removed. The alterations had rendered the premises incapable of beneficial occupation as an office and accordingly the premises were to be rated as a building undergoing reconstruction. As a result, the rateable value of the premises should be reduced to the nominal amount of 1. The VO appealed to the Court of Appeal, which allowed his appeal and therefore dismissed SJJMs underlying appeal. The Court of Appeal reasoned as follows. It recognised that the principle of reality, which I discuss in para 12 below, could be displaced by contrary statutory instructions. The question was the extent to which para 2(1)(b) applied to create a counterfactual assumption. The Court concluded as a matter of statutory construction that the para did create such an assumption and so displaced the reality principle. The premises were described in the rating list as offices and premises. On the facts found by the UT, the hereditament so described was not in a reasonable state of repair. It was not correct to look to the future to see what the premises might become when works were completed. In applying the statutory assumption in para 2(1)(b), the court had to compare the hereditament in its actual state with its previous state as listed, namely as offices and premises. In order to decide whether the replacement of the stripped out elements could fairly be described as repairs as distinct from improvements or alterations, the court should look to the tests applied in the common law of landlord and tenant: Camden London Borough Council v Langford [1980] R A 369. Applying those tests, the court concluded that the replacement of the stripped out elements would amount to repairs. On the facts found by the UT, those repairs would economically return the premises to their former state. Therefore the statutory assumption applied and the premises should be valued as if they were in a state of reasonable repair. Discussion For many years and long before Parliament enacted Schedule 6 to the 1988 Act, it had been an established principle of rating law that a hereditament is to be valued as it in fact existed at the material day. This principle, which in the past was described by the Latin phrase, rebus sic stantibus (ie as things stand), and is often referred to as the principle of reality or the reality principle, was stated by Lord Buckmaster in Poplar Assessment Committee v Roberts [1922] 2 AC 93, 103, thus: [A]though the tenant is imaginary, the conditions in which his rent is to be determined cannot be imaginary. They are the actual conditions affecting the hereditament at the time when the valuation is made. Similarly, in Townley Mill Co (1919) Ltd v Oldham Assessment Committee [1937] AC 419, 437, Lord Maugham, when explaining the legal context in which the Rating and Valuation Act 1925 was enacted, said: The hypothetical tenant was assumed to be a tenant from year to year with a reasonable prospect of continuing in occupation; but the hypothetical rent which the tenant could give was estimated with reference to the hereditament in its actual physical condition (rebus sic stantibus), and a continuance of the existing state of things was prima facie to be presumed. In Dawkins (VO) v Ash Brothers and Heaton Ltd [1969] 2 AC 366, in which the House of Lords held that the Lands Tribunal had been correct to take account of an existing demolition order in assessing the hypothetical rent, Lord Pearce stated (382): one must assume a hypothetical letting (which in many cases would never in fact occur) in order to do the best one can to form some estimate of what value should be attributed to a hereditament on the universal standard, namely a letting from year to year. But one only excludes the human realities to a limited and necessary extent, since it is only the human realities that give any value at all to hereditaments. They are excluded in so far as they are accidental to the letting of a hereditament. They are acknowledged in so far as they are essential to the hereditament itself. In the same case, Lord Wilberforce described the reality principle thus (385 386): The principle that the property must be valued as it exists at the relevant date is an old one The principle was mainly devised to meet, and it does deal with, an obvious type of case where the character or condition of the property either has undergone a change or is about to do so: thus a house in course of construction cannot be rated: nor can a building be rated by reference to changes which might be made in it either as to its structure or its use. In this passage Lord Wilberforce referred to each of what is generally regarded as the two limbs of the reality principle, namely the physical state of the property and its use. The reality principle continues to be a fundamental principle of rating and is manifested in Schedule 6 to the 1988 Act, in particular in para 2(6) and (7). In Scottish & Newcastle Retail Ltd v Williams (VO) [2001] 1 EGLR 157 the Court of Appeal upheld the decision of the Lands Tribunal that the reality principle meant that it was assumed that a hereditament was in the same physical state as upon the material day, save for minor alterations, and could be occupied only for a purpose within the same mode or category of purpose as that for which it was occupied on the material day. Thus in that case two public houses in a shopping centre had to be valued as public houses and not as retail units. The decision appealed against interprets Schedule 6 to the 1988 Act as entailing a major departure from the reality principle by requiring that the hereditament be assumed to be in a reasonable state of repair for the mode of occupation listed in the rating list, namely as offices and premises. I do not agree with that approach. In my view, the legislative history shows that the repairing assumption which para 2(1) of Schedule 6 introduced did not supplant the reality principle to that degree. Before the enactment of the 1988 Act the statutory hypothetical tenancy of non industrial property required that the landlord bear the cost of repairs. For example, section 2 of the Valuation for Rating Act 1953 provided that the hypothetical tenancy of a dwelling house was one in which the landlord had undertaken to bear the cost of the repairs and insurance, and the other expenses, if any, necessary to maintain the hereditament in a state to command that rent. In Wexler v Playle (VO) [1960] 1 QB 217 the Court of Appeal held that the statutory hypothesis was that the reasonable landlord, when contracting with the tenant for the let of a dwelling house, undertook to put the property in repair and would do so by removing readily remediable defects (Wilmer LJ 239) or reparable and temporary defects (Harman LJ 240). Thus the existence of such defects in the property did not affect its value for rating purposes. This reflected what might reasonably be expected in reality (Morris LJ 235). See also, on the equivalent provisions in section 19(6) of the 1967 Act, the similar view in relation to commercial offices expressed by Eveleigh LJ in Camden London Borough Council v Langford (VO) in which he distinguished between repairs needed to make good decay, which fell within the hypothetical landlords repair obligation, and structural work on reinforced concrete columns and beams to preserve the stability and duration of the building, which went beyond repair and rendered the building unlettable. Further, in Saunders v Maltby (VO) (1976) 19 RRC 33 the Court of Appeal held that the landlords repair obligation in the statutory provision did not extend to uneconomic repairs which were disproportionate to the value of the property; instead the landlord would let the property at a lower rent. Case law distinguished between a mere lack of repair, which did not affect rateable value because of the hypothetical landlords obligation to repair, and redevelopment works which made a building uninhabitable. Thus, for example, in Paynter (VO) v Buxton [1986] RVR 132, the Lands Tribunal upheld a nil valuation of two flats on the first and second floors of a terraced house in London which, along with the third floor flat, were undergoing a programme of refurbishment works, which were progressing from the top down. At the relevant time, there were extensive alterations to the third floor flat, which had been valued at nil and was not the subject of appeal, but lesser activity in the other flats in which there had been some re plastering, some sanitary ware had been removed, some floorboards lifted and skirting boards and a door had been removed. The Lands Tribunal accepted evidence that a programme of alterations on the three floors was being carried out on all three flats and concluded that the works amounted to alteration and modernisation and not repair. Thus the tribunal upheld the nil valuation. See also De Silva and Another v Davis (VO) [1983] 1 EGLR 211 and Hounslow London Borough Council v Rent Audio Visual Ltd & Bryant (VO) [1970] RA 535 for other applications of the distinction. The 1988 Act ended domestic rating, replacing it with the Community Charge. It also removed from the hypothetical tenancy the assumption that the landlord carried the repairing obligation by providing in Schedule 6 that all non domestic hereditaments be rated by reference to a hypothetical tenancy in which the tenant bore the repairing obligation. As originally enacted para 2(1) of Schedule 6 to the 1988 Act provided: The rateable value of a non domestic hereditament shall be taken to be an amount equal to the rent at which it is estimated the hereditament might reasonably be expected to let from year to year if the tenant undertook to pay all usual tenants rates and taxes and to bear the cost of the repairs and insurance and the other expenses (if any) necessary to maintain the hereditament in a state to command that rent. Following the decision of the Lands Tribunal in Benjamin v Anston Properties Ltd [1998] 2 EGLR 147 that, because, under the 1988 Act, the hypothetical tenant bore the obligation to repair, the rental value of the hereditament would be adversely affected by a state of disrepair, Parliament, by section 1 of the Rating (Valuation) Act 1999, amended the 1998 Act to reinstate the prior law as to the assumption that the building was in a state of repair. It did so (a) by deleting the words in para 2(1) of Schedule 6 (para 18 above) from if the tenant to the end and replacing them with the three assumptions in the current para 2(1) and (b) by introducing para 2(8A). For both the current para 2(1) and para 2(8A) see para 8 above. As a general rule those amendments took effect retrospectively on 1 April 1990 (the date on which Part III of the 1988 Act first required the compilation of rating lists) in relation to rating lists compiled before the 1999 Act was passed. Paragraph 3 of the 1999 Acts explanatory notes stated that the Act was designed to put on a statutory footing the law as it was widely believed to apply before the Benjamin decision. The 1999 Act can thus be seen as applying principles analogous to those in Wexler, Camden London Borough Council and Saunders (para 16 above) to a hypothetical lease in which the tenant bore the obligation to put the hereditament in repair. In my view the Court of Appeal goes too far in interpreting the 1999 Act as completely displacing the reality principle in relation to both the physical state and the mode of occupation of a hereditament which is undergoing redevelopment. The 1999 Act, by introducing the assumption of reasonable repair at the outset of the hypothetical tenancy (the repair assumption), is not addressing the question of whether the premises were capable of beneficial occupation, which, in the context of a building undergoing redevelopment, is a logically prior question. Thus the repair assumption (para 2(1)(b)) applies to matters affecting the physical state of the hereditament (para 2(7)(a)) but not to the mode or category of occupation of the hereditament (para 2(7)(b)). I derive support for this view from the speech of Baroness Farrington, who identified the mischief which the 1999 Act addresses when she promoted it as a Bill in the Grand Committee in the House of Lords (Hansard 5 May 1999, CWH2 3). After referring, with apparent approval, to Wexler v Playle and Saunders v Maltby she stated: the 1988 Act does not contain any express reference to the hereditaments state of repair. I am aware that the noble Earl, Lord Lytton, regards this as a lacuna. I agree with him that this lacuna lies at the heart of the Lands Tribunal decision in Benjamin v Anston Properties which determined that valuers should take account of disrepair in rating valuations. It is this lacuna, and this alone, that the Bill seeks to address. She went on to state (CWH6): The Bill deals with a single issue of principle in the field of valuation for rating by way of correcting a lacuna. The Government are anxious that what is in effect an old principle governing rating valuation should merely be restated and incorporated with the minimum of disturbance to the corpus of law and valuation practice, which has grown up and developed over the passage of time. This statement, in my view, negatives a suggestion that the 1999 Act was addressing any mischief caused by the established distinction between works to correct a lack of repair on the one hand and what she called renewal, refurbishment or improvement on the other. In a helpful intervention, the Rating Surveyors Association and the British Property Federation submitted that, where works were being carried out on an existing building, the correct approach was to proceed in this order: (i) to determine whether a property is capable of rateable occupation at all and thus whether it is a hereditament, (ii) if the property is a hereditament, to determine the mode or category of occupation and then (iii) to consider whether the property is in a state of reasonable repair for use consistent with that mode or category. The first two stages of that process involve the application of the reality principle. At the third stage the valuation officer applies the statutory assumption in para 2(1)(b) if the reality is otherwise. In my view, this is a helpful approach where a building is undergoing redevelopment. But it is subject to the useful practice, which I discuss in para 31 below, of reducing the rateable value of a building, which is incapable of rateable occupation because of such temporary works, to a nominal figure rather than removing it from the rating list altogether. How does a valuation officer ascertain that premises are undergoing reconstruction rather than simply being in a state of disrepair? The subjective intentions of the freehold owner of a property are not relevant to the reality principle. The matter must be assessed objectively. But, in carrying out that objective assessment of the physical state of the property on the material day, the valuation officer can have regard to the programme of works which is in fact being undertaken on the property. It is clear on the UTs findings of fact, which I have summarised in para 4 above, that on 6 January 2012 the premises had been largely stripped out in the course of a redevelopment and an outline of the future development (the communal lavatory facilities) had been created. The premises were incapable of beneficial occupation, because, as an objective fact, they were in the process of redevelopment and no part of them was capable of beneficial use. If the works are objectively assessed as involving such redevelopment, there is no basis for applying the assumption in para 2(1)(b) to override the reality principle and to create a hypothetical tenancy of the previously existing premises in a reasonable state of repair. This is both because a building under redevelopment, like a building under construction, is incapable of beneficial occupation and, in any event, the hypothetical landlord of a building undergoing redevelopment would normally not consider it economic to restore it to its prior use. When in the course of a redevelopment some part of the developed property becomes capable of beneficial occupation, and thus becomes a separate hereditament, the assumption in para 2(1)(b) might apply to that part. Thus, if, in the course of the conversion of a hospital into offices, a part of the development became capable of beneficial occupation as flatted accommodation, para 2(1)(b) might apply to deem a hole in the roof of that part to have been repaired immediately before the beginning of the hypothetical tenancy of that part. But para 2(1)(b) neither deems the development to be complete nor assumes that the building in whole or in part is in a state of repair to be let as a hospital. It is necessary to examine other statutory provisions and the cases to which counsel for the VO referred to see whether they contradict this approach. He referred, first, to the statutory provisions relating to the completion of a building under structural alteration. Section 46A(5) of the 1988 Act provides that, where a completion day has been notified, the hereditament which comprised the existing building is deemed to have ceased to exist on the day of completion of the new building which results from the structural alteration. The VO argued that this meant that a building undergoing structural reconstruction continued to be liable to rates until the new building was completed. There was thus, he submitted, no scope for an entry in the list as a transitory building undergoing reconstruction either when the reconstruction involved structural alteration or, by analogy, when it did not. He submitted that this was supported also by para 2(7)(b) of Schedule 6 to the 1988 Act which required the identification of the mode and category of occupation, which under para 2(6) was to be taken as they are assumed to be on the material day. On SJJMs approach, there was and could be no such mode or category of occupation. In the alternative, the VO argued that, if there were such a thing in the world of rating as a transitory building under reconstruction, a hereditament could achieve that status only once it had become uneconomic to repair the building to its former status. Again, light is shed on the effect of the statutory provisions by referring to historical developments on the rating regime. Before 1966 liability for occupiers rates depended upon a building being occupied. A building undergoing redevelopment was not occupied in the relevant sense by the carrying out of alterations or by the presence of the workmen who were doing so: Arbuckle Smith & Co Ltd v Greenock Corpn [1960] AC 813. The Local Government Act 1966 introduced liability for rates on premises which were not occupied, if a rating authority so resolved, and its provisions were repeated in the consolidating General Rate Act 1967 in section 17 and Schedule 1. Paragraph 1 of Schedule 1 to the 1967 Act created the liability of an owner to be rated in respect of an unoccupied hereditament at one half of the amount payable if the hereditament were occupied. Paragraph 8 of that Schedule empowered a rating authority to serve a completion notice on the owner of a newly erected or altered building. The notice had the effect that the building was to be treated for the purpose of the schedule as completed on the date specified in the notice and the owner thereafter became liable to be rated in respect of the property. Paragraph 10 of the Schedule contained a precursor of section 46A(5) of the 1988 Act, deeming a relevant hereditament to have ceased to exist on the completion of the structural alteration. The paragraph stated in its concluding words that it was not to be construed as affecting any liability for rates under para 1 in respect of the hereditament for any period before that date. Section 46A of the 1988 Act was thus not a novelty. It was introduced retrospectively into the 1988 Act by the Local Government and Housing Act 1989 (section 139 and Schedule 5 paras 25 and 79(3)). While section 46A(5) does not contain the concluding words of para 10 of Schedule 1 to the 1967 Act, I see no reason to give the section a different interpretation from its precursor in this respect. Counsel for the VO sought to support his position by referring to the judgment of the Divisional Court in Easiwork Homes Ltd v Redbridge London Borough Council [1970] 2 QB 406. In that case, the owners chose to modernise a block of flats. During the modernisation works, the flats were uninhabitable, as the plumbing had been removed and all the essential services were being renewed. The Council assessed each flat for rates while unoccupied. The owners did not pay and the Council applied for a distress warrant to enforce the liability. The Justices decided that the owners were liable to pay rates and issued a distress warrant. The Divisional Court dismissed the owners appeal on the question whether section 17 of the 1967 Act could apply to premises which were unoccupiable. The Court held that the statute contemplated that liability to rates might arise when an owner was carrying out alterations and improvements which temporarily rendered a property incapable of occupation because para 10 of Schedule 1 to the 1967 Act provided for the payment of rates when more radical structural alterations were being carried out. But, in my view, the case does not assist the VO because the owners had not applied to have the valuation list altered during the period of the works; they had challenged their liability only at the stage of enforcement. Indeed, the Council had contended before the Justices that the owners could have applied for a reduction of the rateable values for the period when the premises were unoccupiable. It is clear that para 10 of Schedule 1 to the 1967 Act and its successor, section 46A(5) of the 1988 Act, did not and do not bar an application to alter the rating list to reflect the actual state of a hereditament undergoing redevelopment. In Ravenseft Properties Ltd v Newham London Borough Council [1976] QB 464 the Court of Appeal considered an appeal by the owners of offices, which were in the course of erection, against completion notices under para 8 of Schedule 1 to the 1967 Act. The court held that the test for completion of a new building or an existing hereditament undergoing structural alteration was whether it was ready for occupation. Lord Denning MR in the course of his judgment said that Easiwork had been correctly decided because the old valuation list, unless it was altered, continued to apply (p 474) (emphasis added). Bridge LJ, who had sat in the Easiwork appeal, was of the same view. He stated (p 479) It is clear that in a situation where an old existing hereditament has a valuation based on its occupiable value and is undergoing radical structural alterations, it can be the subject of a proposal for an alteration in the valuation list for, at all events, any substantial period when by reason of the alteration it is incapable of occupation. That seems to me to provide the answer to the problem of hardship to an owner which in the Divisional Court we felt could arise in the Easiwork case. Bridge LJ expressed that view in the context of section 68(4)(b) of the 1967 Act which defined the expression material change of circumstances as a change in value of the hereditament caused by the making of structural alterations or the total or partial destruction of the building. Now, the Non domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009 list as a ground for making a proposal to alter a rating list that the rateable value shown in the list is inaccurate by reason of a material change of circumstances (regulation 4(1)(b)) and define material change of circumstances as a change in any of the matters mentioned in para 2(7) of Schedule 6 to the [1988] Act (regulation 3). I consider, therefore, that radical alterations, whether or not they are structural, which render the hereditament unoccupiable, may justify a proposal to alter the rating list. I also do not accept the point made by counsel for the VO (para 25 above) about paras 2(6) and 2(7)(b) of Schedule 6 to the 1988 Act. The location of the reality principle in para 2(7) of Schedule 6 does not require a valuation officer to disregard the fact that a building is incapable of occupation because it is undergoing reconstruction. In my view the assumption in para 2(1)(b), which para 2(6) brings into the assessment of the reality in para 2(7), can operate in the manner set out in para 24 above. But it does not negate the reality principle to the extent that counsel for the VO contended. Further, while a building which is undergoing reconstruction may be incapable of occupation for a time, it has been the practice of the Valuation Office to treat the property as a hereditament with only a nominal value rather than to remove the property from the rating list temporarily: see, for example, Hounslow London Borough Council v Rank Audio Visual Ltd and Paynter v Buxton. There is no bar to implementing a proposal to alter the description of the hereditament on the rating list from offices and premises to building undergoing reconstruction and consequently to reduce the listed rateable value to a nominal amount if the facts, objectively assessed, support that alteration. There is also, for the reasons given above, no basis for the alternative argument that a building can be listed as being under reconstruction only once the works have proceeded so far that it is no longer economic to restore the hereditament to its former state by means of repair. Does the interpretation advanced by SJJM create a danger of ratepayers abusing the system, for example, by removing sanitary facilities or windows and then claiming that the hereditament was incapable of beneficial occupation? The Court of Appeal saw their approach as preventing such abuse: Lewison LJ para 30. But the Court of Appeals interpretation was novel. Prior practice, which had been reflected in the non statutory guidance in the Rating Manual produced by the Valuation Office, had been consistent with the approach which SJJM advocates. It was not suggested to this Court that the administration of rates had not been effective in the past. Further, when Parliament in the Rating (Empty Properties) Act 2007 increased the unoccupied business rate to make owners of unoccupied property liable for the same rate as those payable on occupied properties, it also introduced into the 1988 Act, in section 66A, an anti avoidance power which enables the Secretary of State and the Welsh Ministers to make regulations to disregard changes in the state of an unoccupied hereditament. This power can be used to undermine attempts by owners to avoid unoccupied rates through causing or allowing the state of their property to change. To date neither government have used the power: I infer that the practice before the Court of Appeals decision had not caused a serious problem. In any event, the power can be exercised, if it is needed, for example to prevent avoidance by the partial implementation of a scheme of works and its deliberate non completion. On the facts found by the UT, which I summarised in paras 2 4 above, I conclude that the premises were undergoing reconstruction on the material day and that the UT was entitled to alter the rating list as it did to reflect that reality. Conclusion For these reasons, which differ in some respects from those of the Upper Tribunal, I would allow the appeal and restore the determination of the Upper Tribunal set out in paras 88 and 90 of its decision.	S J & J Monk (SJJM) own the freehold of the first floor of a three storey office building. Previously the premises were occupied by tenants as a single office suite. In March 2010 SJJM entered into a building contract for the renovation of the property to make it more adaptable for use as either three suites of offices, or as a single suite, in order to attract replacement tenants. After entering into the building contract and until at least 6 January 2012, SJJM had the property marketed as available for rental either as three separate office suites or as a whole. On 6 January 2012, which is the relevant date for determining the rateable value of the property on an application to alter the rating list, the property was vacant and substantial construction work had been undertaken, with the premises stripped to a shell. SJJM wished to reduce the propertys liability to local authority rates during reconstruction. These rates are a tax on property on the rating list. The 2010 rating list listed the property as offices and premises with a 102,000 rateable value. On 6 January 2012 SJJM proposed to the valuation officer (the VO) that the property description should be altered to building undergoing reconstruction and the rateable value reduced to 1 as the property could not be occupied due to the building works. The issue in the appeal is whether the property should be rated having regard to its physical condition on 6 January 2012 or whether paragraph 2(1)(b) of Schedule 6 to the Local Government Finance Act 1988, as amended by the Rating (Valuation) Act 1999, requires a valuation officer to assume the property was in reasonable repair in its previous state as offices and premises on that date. Para 2(1) of Schedule 6 provides that the rateable value of the property is an amount equal to the rent at which it is estimated it might be expected to be let from year to year, subject to the assumption in para 2(1)(b) that immediately before the tenancy begins, the property is in a state of reasonable repair, but excluding from that assumption any repairs which a reasonable landlord would consider uneconomic. The VO rejected SJJMs proposal to alter the description of the property on the rating list. The Valuation Tribunal upheld his decision. The Upper Tribunal allowed SJJMs appeal, holding that the property had been stripped out beyond reasonable repair. It held that the para 2(1)(b) assumption did not extend to the replacement of systems which had been completely removed. The property should be rated as a building undergoing reconstruction and the rateable value of the premises reduced to 1. The Court of Appeal allowed the VOs appeal and held that para 2(1)(b) created an assumption that the repairs would return the premises to their former state, provided that they were economic. This displaced the reality principle that the property should be valued as it existed on 6 January 2012. The property should be valued as if it were in a state of reasonable repair. The Supreme Court unanimously allows S J & J Monks appeal and restores the determination of the Upper Tribunal. Lord Hodge gives the judgment, with which the other Justices agree. Before Parliament enacted Schedule 6 to the 1988 Act it had long been an established principle of rating law that property should be valued as it in fact existed on the material day. That principle is referred to as the reality principle [12]. The reality principle continues to be a fundamental principle of rating and is manifested in Schedule 6, in particular para 2(6) and (7), which provide that certain matters relating to the property, including matters affecting its physical state and the mode or category of its occupation, shall be taken to be as they are assumed on the material day [14]. The legislative history shows that the repairing assumption introduced by para 2(1)(b) of Schedule 6 did not supplant the reality principle by requiring that the premises are to be assumed to be in a reasonable state of repair for the mode of occupation listed on the rating list, namely as offices and premises [15]. The Court of Appeal went too far in interpreting that assumption as displacing the reality principle in relation to both the physical state of the property undergoing redevelopment and to its mode of occupation. The para 2(1)(b) assumption of reasonable repair at the outset of a hypothetical tenancy is not addressing the question of whether the premises were capable of beneficial occupation. In the context of a building undergoing redevelopment that is a question that requires to be asked first. Therefore, the repair assumption applies to matters affecting the physical state of the property (para 2(7)(a)) but not to its mode or category of occupation (para 2(7)(b)) [20]. A valuation officer must assess objectively whether a property is undergoing reconstruction, and therefore incapable of beneficial occupation, rather than simply being in a state of disrepair. In carrying out that objective assessment of the physical state of the property on the material day, the valuation officer can have regard to the programme of works being undertaken on the property. If the works are assessed as involving redevelopment, there is no basis for applying the para 2(1)(b) assumption to override the reality principle and to create a hypothetical tenancy of the previously existing property in a reasonable state of repair. This is both because a building under redevelopment, like a building under construction, is incapable of beneficial occupation and because the hypothetical landlord of a building undergoing redevelopment would not normally consider it economic to restore it to its prior use [23]. If, during redevelopment, some part of the property becomes capable of occupation, the para 2(1)(b) assumption might apply to that part, but para 2(1)(b) does not deem the development complete [24]. There is no statutory bar preventing an application to alter the rating list to reflect the actual state of the property undergoing redevelopment [29]. There is also no bar to implementing a proposal to alter the description of a property on the rating list from offices and premises to building undergoing reconstruction and consequently to reduce the listed rateable value to a nominal amount if the facts, objectively assessed, support that alteration. Furthermore, there is no basis for the argument that a property can be listed as being under reconstruction only once the works have proceeded so far that it is no longer economic to undertake repairs to restore the property to its former state [31]. On the facts found by the Upper Tribunal, the building was undergoing reconstruction on 6 January 2012 and the Upper Tribunal was entitled to alter the rating list to reflect that reality [33].
The appellant Mark Golds was convicted by a jury of the murder of his partner. He had admitted in court that he had killed her, and the sole issue at his trial had been whether he had made out the partial defence of diminished responsibility, and so fell to be convicted of manslaughter rather than of murder. The law to be applied was section 2 of the Homicide Act 1957 after its recent revision by the Coroners and Justice Act 2009. The issue is the correct approach to the statutory test of whether his abilities were in specified respects substantially impaired: see section 2(1)(b). The appellant had attacked his partner with a knife at their home in front of her young children after a running argument which had taken place on and off throughout much of the day. He had inflicted some 22 knife wounds together with blunt impact internal injuries. He had a history of mental disorder leading to outpatient treatment and medication. Two consultant forensic psychiatrists gave evidence that there was an abnormality of mental functioning arising from a recognised medical condition, although they disagreed what that condition was. There was no contradictory psychiatric evidence. The judge correctly identified the questions which the jury needed to address (see para 8 below) and helpfully provided a written summary of the ingredients of diminished responsibility. He also provided a crystal clear written route to verdict document. On the issue of substantial impairment of ability he told the jury: Mr Rose [counsel for the defence] did suggest to you in his closing address that you would get some further help from me when giving you directions in law as to what the word substantially means, where it says substantially impaired his ability to exercise those qualities. I am not going to give you any help on the meaning of the word substantially, because unless it creates real difficulty and you require further elucidation, the general principle of English law is that where an everyday word is used, dont tell juries what it means. They are bright enough and sensible enough to work it out for themselves, so I am not going to paraphrase substantially. Substantially is the word that is in the Act of Parliament and thats the word that you have to work with. If it becomes a stumbling block in some way, well at the end of the day, you can send me a note and in those circumstances, I am permitted to offer you a little more help, but not at this stage of proceedings. The jury did not ask for further help. In the Court of Appeal (Criminal Division), amongst other grounds of appeal which have not survived, the appellant contended (a) that the judge had been wrong not to direct the jury as to what substantially impaired meant and (b) that the jury might in the absence of such direction have applied a more stringent test than it ought to have done. It was contended on his behalf that so long as the impairment was more than merely trivial, the test of substantially impaired was met. The Court of Appeal dismissed the appellants appeal ([2015] 1 WLR 1030) but certified in relation to this ground that the following two questions of law of general public importance were involved: 1. Where a defendant, being tried for murder, seeks to establish that he is not guilty of murder by reason of diminished responsibility, is the Court required to direct the jury as to the definition of the word substantial as in the phrase substantially impaired found in section 2(1)(b) of the Homicide Act 1957 as amended by section 52 of the Coroners and Justice Act 2009? 2. If the answer to the first question is in the affirmative, or if for some other reason the judge chooses to direct the jury on the meaning of the word substantial, is it to be defined as something more than merely trivial, or alternatively in a way that connotes more than this, such as something whilst short of total impairment that is nevertheless significant and appreciable? The Court of Appeals answers to these questions were (1) that the judge was not, on authority, required to give greater definition than he did and (2) that if he had done so the appropriate formulation would have been that it was not enough that there was some impairment; the jury had to ask if it was substantial. It would, the court held, be wrong to direct the jury that it sufficed that the impairment was more than merely trivial. The statute As now amended, section 2 Homicide Act 1957 provides a complete definition of diminished responsibility. The material parts of it are as follows: Persons suffering from diminished responsibility 2(1) A person (D) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which (a) arose from a recognised medical condition, (b) substantially impaired Ds ability to do one or more of the things mentioned in subsection (1A), and (c) provides an explanation for Ds acts and omissions in doing or being a party to the killing. (1A) Those things are (a) (b) (c) to understand the nature of Ds conduct; to form a rational judgment; to exercise self control. (1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for Ds conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct. (2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder. (3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter. This differs from the previous formulation of the partial defence. As originally enacted, section 2(1) provided: (1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. It follows that the expression substantially impaired has been carried forward from the old Act into its new form. But whereas previously it governed a single question of mental responsibility, now it governs the ability to do one or more of three specific things, to understand the nature of ones acts, to form a rational judgment and to exercise self control. Those abilities were frequently the focus of trials before the re formulation of the law. But previously, the question for the jury as to mental responsibility was a global one, partly a matter of capacity and partly a matter of moral culpability, both including, additionally, consideration of the extent of any causal link between the condition and the killing. Now, although there is a single verdict, the process is more explicitly structured. The jury needs to address successive specific questions about (1) impairment of particular abilities and (2) cause of behaviour in killing. Both are of course relevant to moral culpability, but the jury is not left the same general mental responsibility question that previously it was. The word used to describe the level of impairment is, however, the same. The effect of the new statutory formulation is that the following four questions will normally arise in a case where diminished responsibility is advanced. (1) Did the accused suffer from an abnormality of mental functioning? (2) (3) abilities listed in section 1A? (4) killing the deceased? If so, did it arise from a recognised medical condition? If yes to (1) and (2), did it substantially impair one or more of the If yes to (1), (2) and (3), did it cause or significantly contribute to his Of course, in some cases one or more of these may be common ground. The function of the judge is to focus the jurys attention on what is at issue and to explain why the issue(s) are relevant, as the judge did in the present case. It is not to read the jury a general statement of the law. Authority: substantially impaired The concept of diminished responsibility was developed (with, at first, varying terminology) by the common law in Scotland in the late 19th and early 20th centuries as a means of mitigating, in an appropriate case, the mandatory sentence of death attendant on murder: see Lord Justice General Rodgers helpful historical survey in Galbraith v HM Advocate 2002 JC 1 (paras 23 to 27), together with the report of the Scottish Law Commission SLC 195 (2004) at para 3.1. It operates by reducing the offence of murder to that of culpable homicide. It was adopted by English law via the Homicide Act 1957 for the same reason, and using the same mechanism of partial defence, at a time when the abolition of capital punishment was under debate but there was no Parliamentary majority for that greater step. Soon after its introduction, the new partial defence was considered by the Court of Criminal Appeal in R v Matheson [1958] 1 WLR 474, R v Spriggs [1958] 1 QB 270 and R v Byrne [1960] 2 QB 396. In the first case there was no occasion for discussion of the meaning of substantially impaired; the defendant was agreed to be certifiable. In Spriggs, however, the court considered the then conventional formulations employed in Scotland in relation to the level of impairment, which included (but were not confined to) references to the borderline of insanity (see HM Advocate v Savage 1923 JC 49). The court (Lord Goddard CJ, Hilbery and Salmon JJ) concluded that the correct course for the trial judge was not to attempt synonyms or re definition but simply to direct the jury in the terms of section 2. In Byrne the defendant was a sexual psychopath who had strangled and mutilated a young woman resident of the YWCA. The case on his behalf was that he was unable to resist his impulse to gross and sadistic sexual violence. The judges directions had amounted to excluding from abnormality of mind an inability to control his urges, and this was held to have been wrong. The court further took the view that on the medical evidence the defendant was so disturbed that there was no room for doubt that diminished responsibility was made out. Giving the judgment of the court, however, Lord Parker CJ addressed the question of substantial impairment. He said this at 403 404: Assuming that the jury are satisfied on the balance of probabilities that the accused was suffering from abnormality of mind from one of the causes specified in the parenthesis of the subsection, the crucial question nevertheless arises: was the abnormality such as substantially impaired his mental responsibility for his acts in doing or being a party to the killing? This is a question of degree and essentially one for the jury. Medical evidence is, of course, relevant, but the question involves a decision not merely as to whether there was some impairment of the mental responsibility of the accused for his acts but whether such impairment can properly be called substantial, a matter upon which juries may quite legitimately differ from doctors. This court has repeatedly approved directions to the jury which have followed directions given in Scots cases where the doctrine of diminished responsibility forms part of the common law. We need not repeat them. They are quoted in Reg v Spriggs. They indicate that such abnormality as substantially impairs his mental responsibility involves a mental state which in popular language (not that of the MNaughten Rules) a jury would regard as amounting to partial insanity or being on the border line of insanity. Both in England and in Scotland it has subsequently been held that it is not usually helpful to direct juries in terms of the borderline of insanity. That is demonstrated by considering the case where the mental impairment is depression, to which (however severe) such a description is inapt. Such a formulation was later disapproved in R v Seers (1984) 79 Cr App R 261 (a depression case) and is now more often and wisely avoided even in a case of florid psychosis. Despite its use in Byrne, it cannot have been the intention of the court in that case to require any such direction, given the approval of Spriggs which had commended abstention from elaboration of the words of the section. Giving the judgment in Seers Griffiths LJ reached the same conclusion. At 264 he said this: It is to be remembered that in Byrne all the doctors agreed that Byrne could be described as partially insane; he was a sexual psychopath who had hideously mutilated a young woman he had killed. In such a case the evidence justifies inviting a jury to determine the degree of impairment of mental responsibility by a test of partial insanity. But it is not a legitimate method of construing an Act of Parliament to substitute for the words of the Act an entirely different phrase and to say that it is to apply in all circumstances. We are sure that this was not the intention of the court in Byrne , and the phrase was used as one way of assisting the jury to determine the degree of impairment of mental responsibility in an appropriate case, and no doubt to point out that Parliament by the use of the word substantial was indicating a serious degree of impairment of mental responsibility. But what is clear is that whilst the question whether the impairment was or was not substantial was to be left to the jury in the unimproved words of the statute, the underlying assumption was that substantially in this context meant impairment which was of some importance or, as it was put in Seers, a serious degree of impairment. The court cannot have contemplated in any of these cases that it was sufficient that the impairment merely passed triviality. R v Simcox The Times 25 February 1964; [1964] Crim LR 402 concerned a man who had previously murdered his second wife and had now sought out his third wife, with whom he was in dispute, taking with him a rifle with which he shot her sister when it was her whom he encountered. Some four psychiatrists agreed that he had an abnormality of mind, namely a paranoid personality. Each said that it impaired his self control, but none was prepared to say that the impairment was substantial; they spoke of moderate impairment, or of his finding it harder than others to control himself. The judge left the question to the jury in the terms of the section, adding only that they should ask: do we think, looking at it broadly as commonsense people, there was a substantial impairment of his mental responsibility in what he did? If the answer to that is yes then you find him not guilty of murder but guilty of manslaughter. If the answer to that is no, there may be some impairment but we do not think it was substantial. We do not think it was something which really made any great difference although it may have made it harder to control himself to refrain from crime, then you would find him guilty as charged. The Court of Appeal, whilst observing that the final sentence needed the previous focus on the word substantial in order that it should not be thought that the absence of self control had to be total, approved this direction. It is to be seen that it was essentially in accordance with Spriggs, since it repeated and emphasised, but did not attempt to re define, the statutory expression substantially impaired. Three years later the Court of Criminal Appeal considered the case of R v Lloyd [1967] 1 QB 175, which would appear to be the indirect origin of the submission made in the present case that substantially impaired means any impairment greater than the merely trivial. The defendant had killed his wife. There was evidence that from time to time he had suffered recurrent episodes of reactive depression. Two psychiatrists gave evidence that this was a mental abnormality which to some extent impaired his mental responsibility. Neither was prepared to say that the impairment was substantial. The first said that the depression impaired his responsibility to some extent. The second said that there was some effect; he could not say to what degree, but although it was not as low as minimal it was not substantial. The medical evidence was thus to similar effect as in Simcox. At trial, Ashworth J had directed the jury in the terms of the statute, but he had then added: Fourthly, this word substantial, members of the jury. I am not going to try to find a parallel for the word substantial. You are the judges, but your own common sense will tell you what it means. This far I will go. Substantial does not mean total, that is to say, the mental responsibility need not be totally impaired, so to speak destroyed altogether. At the other end of the scale substantial does not mean trivial or minimal. It is something in between and Parliament has left it to you and other juries to say on the evidence, was the mental responsibility impaired, and, if so, was it substantially impaired? (p 178) Counsel for the defendant, on appeal, contended that the judge had erred in not directing the jury that substantially meant really present or not trivial. That was a submission that it meant no more than that there was some operating impairment, and thus that any such sufficed, so long as it was not trivial, and was exactly the same submission which is now made in the present case. Since the doctors had agreed that the depression was not trivial in its effect, the defendant was, it was submitted, entitled to be acquitted of murder. That contention was firmly rejected by the court. Edmund Davies J, giving the judgment of the court, said this at 180B This court is wholly unable to accept that submission. The word substantially obviously is inserted in the Act with a view to carrying some meaning. It does carry a meaning. This court is quite unable to see that the direction given to the jury on the meaning of this word, can validly be criticised, and finds itself in a difficulty of saying that any distinction can be validly drawn between the direction given in the instant case and that approved of by this court in Reg v Simcox. It is the decision of the Court of Appeal which is the authority. But it is equally clear that Ashworth J, in saying what he did, had no intention of telling the jury that any impairment beyond the trivial sufficed. Firstly, if that had been his intention, it would have followed that the evidence in the case satisfied the test and a verdict of diminished responsibility ought to have followed unless the jury disagreed; this the judge would surely have told the jury. Secondly, such an intention is inconsistent with the judge telling the jury that he was not going to find a synonym for the word substantially. Thirdly, the judges summing up makes clear that he had before him Bryne, with its references to the borderline of insanity, although (anticipating Seers) he sensibly did not adopt that expression in a case concerning depression. In referring to the spectrum of impairment as he did, he may have had in mind the warning in Simcox (see para 13 above) that it should be made clear that the impairment did not need to be total. What he was clearly saying was that before an impairment could be substantial it must of course be greater than the merely trivial, but that, beyond that, what amounted to substantial impairment was a matter of degree for the jury. Over the years since, a reference of this kind to the extremities of possible impairment has sometimes been thought not simply to be helpful to juries but also to provide a possible definition of the meaning of substantially. R v Egan [1992] 4 All ER 470 concerned the case where there is both abnormality of mind and voluntary intoxication. Its principal decision largely anticipated the test for such a case which was later adumbrated by the House of Lords in R v Dietschmann [2003] UKHL 10; [2003] 1 AC 1209, but the court was held by the House to have erred in its treatment of other prior decisions. No real issue arose in relation to the meaning of substantially impaired except as to how drink was to be accommodated within it. But one of those prior decisions on drink, R v Gittens [1984] QB 698, 703, had contained the conclusion of Lord Lane CJ that the jury should ignore the effect of drink, as later held to be the law in Dietschmann. Lord Lane had pointed out that voluntary intoxication could not constitute a mental abnormality arising from disease or inherent cause, so the jury should ignore it and then go on to consider whether the combined effect of the other matters which do fall within the section amounted to such abnormality of mind as substantially impaired the defendants mental responsibility within the meaning of substantial set out in R v Lloyd. In Egan, having cited that passage, Watkins LJ added in passing: In R v Lloyd directions as to the word substantial, to the effect that (1) the jury should approach the word in a broad commonsense way or (2) the word meant more than some trivial degree of impairment which does not make any appreciable difference to a persons ability to control himself, but it means less than total impairment were both approved. There was no occasion for analysis of Lloyd in Egan. But although it was correct that Ashworth Js direction had been approved, it would be quite inaccurate to imply that the effect of the case was that substantially meant the same as more than some trivial degree of impairment. It may well be that Watkins LJ meant to say no such thing, rather than simply to refer to Ashworth Js formulation as convenient, but if he did, it was a misreading of Lloyd. The decision in Lloyd, to which no doubt Lord Lane CJ was referring in Gittens, was precisely the opposite, viz: that substantially was not the same as more than trivial see para 13 above. The difficulty for later readers was compounded by the closing words of the judgment in Egan at 480h: Finally, for the avoidance of doubt, we advise judges that guidance as to the meaning of substantial should be explicitly provided for the jury by using one or other of the two meanings in R v Lloyd. This proposition that Lloyd authorised two meanings of substantially may have achieved some currency since. If it has, it too is based on a misunderstanding. The most that Lloyd ever said was that two methods of summing up were unexceptional: the first to tell the jury simply to use its common sense without further elaboration and the second to allude to the spectrum between just beyond trivial impairment and total impairment. The decision of the court was explicitly that impairment beyond more than merely trivial is required; it follows that if the second approach, referring to the spectrum, is adopted in summing up, this must be made clear. But the court in Lloyd was not attempting in its (extempore) judgment to ordain a template for future summings up. It was dealing with the submission that the defendant in that case was entitled to have his conviction for murder set aside because any impairment beyond the merely trivial sufficed, and this submission it rejected. All that mattered in that case, as in most cases before an appellate criminal court, was whether the judge had misdirected the jury to the disadvantage of the defendant. With or without any implication of two meanings, Ashworth Js additional spectrum illustration has gained currency. It has figured in successive Crown Court Benchbooks. For example, the first (2010) edition, published before the new statutory formula came into operation, carefully avoided dictating the terms of summing up to judges. However, it cited at p 340 what Ashworth J had said, and added that the direction was approved by the Court of Criminal Appeal. A little later it gave one illustration of the kind of summing up which might be employed. It did so in the context of the more difficult case where diminished responsibility is complicated by drink and/or by alcohol dependence, but the example was equally relevant also to non alcohol cases. One suggested form of words (at p 347) was: This requires you to consider to what extent the defendants state of mind differed from that of the ordinary person. Was it so abnormal that the defendants mental responsibility was substantially reduced? Substantially is an ordinary English word to which you will bring your own experience. It means less than total and more than trivial. Where you draw the line is for your own good judgment. Subsequent editions, before and after the 2009 Act amendments, contained similar passages until the decision of the Court of Appeal in the present case. It will be seen that this formulation does not tell the jury that any impairment beyond the merely trivial suffices, but with hindsight it is possible that if one does not go back to the decision in Lloyd, it might be taken by some to carry that implication. In R v Ramchurn [2010] EWCA Crim 194; [2010] 2 Cr App R 18 (an unamended 1957 Act case) the trial judge had understandably adopted these suggestions. His written direction to the jury was: Substantially impaired means just that. You must conclude that his abnormality of mind was a real cause of the defendants conduct. The defendant need not prove that his condition was the sole cause of it, but he must show that it was more than a merely trivial one which did not make any real or appreciable difference to his ability to control himself. In retirement, the jury asked a specific question: what was the difference between trivial and substantial? The judge responded with the Ashworth formula. He told them: The following direction has been approved at a senior level and it is this; the direction on the words substantially impaired. Your own common sense will tell you what it means. Substantial does not mean total. That is to say the mental responsibility need not be totally impaired, so to speak, destroyed altogether. The other end of the scale, substantial does not mean trivial or minimal. It is something in between and Parliament has left it to you to say on the evidence was the mental responsibility impaired and if so, was it substantially impaired? The defendant in Ramchurn had planned and executed the killing of his wifes lover, a cousin to whom he had originally given a home. He had threatened previously that he would kill him, and had made a number of preparations to do so, such as trying to get keys to gain access to the victims home, and when that failed arranging a meeting to carry out his plan, equipping himself with a rope ligature for the purpose. He disposed of the body some distance away and set up a false alibi. The evidence was that he was depressed. One doctor described his state as an emotional turmoil and a tortured frame of mind, and expressed the opinion that in the tumultuous final moments which resulted in the death the impairment of mental responsibility would have been substantial. The other agreed that there was an element of depression, and accepted that it had played some part in the killing. Carefully cross examined, he agreed that the impact of the depression on the defendants mental responsibility was more than trivial, but he disagreed that it was substantial. The jury convicted of murder. The argument for the defendant on appeal in Ramchurn was that there were two inconsistent meanings of substantially to be derived from Lloyd, that the judge had in consequence failed to give the jury a clear direction and moreover that the law was in too uncertain a state to satisfy the requirements of article 7 of the ECHR. Accordingly, it was contended, the conviction for murder was unsafe. The Court of Appeal rejected those arguments. At para 23, Lord Judge CJ addressed specifically the two meanings argument, founded then as now on a combination of Lloyd with Egan. The argument was rejected: It is, however, clear on analysis that in Lloyd the court rejected the submission that there were two meanings for the word substantially. In the judgment in Lloyd the word substantially carried some meaning or a meaning. It was accepted in Lloyd that there were different ways of illustrating the same concept and, if necessary, explaining its relevance to the jury. If the court in Egan had intended to convey that the words substantially impaired embraced two different concepts or levels of impairment, it would have said so not by citing Lloyd as authority in support, but by distinguishing Lloyd. In the result, just as the court in Lloyd could see no effective difference between the directions in Simcox and Lloyd, the Court of Appeal in Egan could see no difficulty in the deployment of either of the two methods of explanation found in Lloyd. The court recorded that section 2 had been in force for 50 years and applied in countless murder trials, and observed that in its experience the test of substantial impairment was probably, in practice, the least difficult aspect of what can be a difficult defence to convey to a jury. It went on specifically to endorse the general starting point that the test was in ordinary English and should be left to the judgment of the jury. In so doing, it said this at para 15: Substantially is an ordinary English word which appears in the context of a statutory provision creating a special defence which, to reflect reduced mental responsibility for what otherwise would be murderous actions, reduces the crime from murder to manslaughter. Its presence in the statute is deliberate. It is designed to ensure that the murderous activity of a defendant should not result in a conviction for manslaughter rather than murder on account of any impairment of mental responsibility, however trivial and insignificant; but equally that the defence should be available without the defendant having to show that his mental responsibility for his actions was so grossly impaired as to be extinguished. That is the purpose of this defence and this language. The Concise Oxford Dictionary offers of real importance and having substance as suggested meanings for substantially. But, in reality, even the Concise Oxford Dictionary tells us very little more about the ordinary meaning and understanding to be attached to the word substantially. The jury must decide for itself whether the defendants mental responsibility for his actions was impaired and, assuming that they find that it was, whether the impairment was substantial. Thus the appeal failed in Ramchurn. The court was plainly not adopting the submission that substantially means any impairment beyond the merely trivial, for if it had done so, the evidence of both psychiatrists would have met the test. It is right to remember that the focus on the meaning of that word in the half dozen cases here reviewed, and in the present case, does not mean that it is often the occasion of difficulty. But the fact that the present submission is now made for the third time, despite its failure in both Lloyd and Ramchurn, does demonstrate that the use of the Ashworth spectrum formula may encourage semantic debate, at least in some cases. Moreover it is known that in at least one case which reached the Court of Appeal on sentence, the trial judge had directed the jury that the test of substantially impaired was met by an impairment which was more than minimal: R v Brown (Robert) [2011] EWCA Crim 2796; [2012] 2 Cr App R(S) 156. Since the appeal was limited to sentence in that case, the correctness of that direction did not call for adjudication. But that case is a further illustration of difficulty. When the defendant was, on that direction, convicted of manslaughter, the judge concluded when it came to sentence that in fact his responsibility had nevertheless been substantial, and the Court of Appeal decided that he was indeed entitled so to do, and to impose a very long determinate sentence (24 years) in consequence. Scotland The rejection in the foregoing cases of the contention that any impairment beyond the merely trivial will suffice is consistent with the way in which the law of diminished responsibility has evolved in Scotland, where it originated. The law was reviewed in some depth by a specially convened court of five in Galbraith v HM Advocate 2002 JC 1. The court held that the partial defence was not confined to mental illness, strictly so called, and that other mental abnormalities might also be capable of diminishing the responsibility of the accused, including in that case a combination of learned helplessness and post traumatic stress disorder following alleged persistent abuse. The decision anticipated the new English section 2(1)(a) by requiring that there be some recognised mental abnormality (paras 53 and 54). As to the level of impairment, the court held, for reasons essentially the same as had been given by the English court in Seers, that previous references to the borderline of insanity were simply examples of what would plainly qualify rather than a test for inclusion. Lord Justice General Rodger summarised the rule in this way at para 54: In every case, in colloquial terms, there must, unfortunately, have been something far wrong with the accused, which affected the way he acted While the plea of diminished responsibility will be available only where the accuseds abnormality of mind had substantial effects in relation to his act, there is no requirement that his state of mind should have bordered on insanity. In essence, the jury should be told that they must be satisfied that, by reason of the abnormality of mind in question, the ability of the accused, as compared with a normal person, to determine or control his actings was substantially impaired. Thus substantially impaired was adopted as the test, and used in the sense of something far wrong with the accused. There was, then, one difference between Scottish and English law, because in Scotland Galbraith held that psychopathic personality disorder was not capable of being a basis for diminished responsibility in the same way as in both jurisdictions voluntary intoxication cannot by itself found the plea: see Galbraith at para 54 and, in England, R v Dowds [2012] EWCA (Crim) 281; [2012] 1 WLR 2576. Now, however, that distinction has gone. Following scrutiny by the Scottish Law Commission the law has been put into statutory form by section 51B of the Criminal Procedure (Scotland) Act 1995, inserted by section 168 of the Criminal Justice and Licensing (Scotland) Act 2010, (asp 13). Provision is made by subsection (3) to exclude voluntary intoxication but, on the Commissions recommendation, not for a similar exclusion for psychopathic personality disorder. The new Scottish definition of diminished responsibility in subsection (1) provides: A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the persons ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind. Thus, the Scottish law now expresses, like the English, the essential feature of abnormality of mind such as impairs the ability to determine or control conduct, and, like English law, adopts as the test for the level of impairment the same expression, namely substantially. Plainly in Scotland this expression was used in the knowledge of the meaning authoritatively given to it by Galbraith, which the Scottish Law Commission had endorsed: SLC 195, July 2004, paras 3.15 3.17. Usage of language The admirably concise submissions of Mr Etherington QC for the appellant correctly point out that as a matter simply of dictionary definition, substantial is capable of meaning either (1) present rather than illusory or fanciful, thus having some substance or (2) important or weighty, as in a substantial meal or a substantial salary. The first meaning could fairly be paraphrased as having any effect more than the merely trivial, whereas the second meaning cannot. It is also clear that either sense may be used in law making. In the context of disability discrimination, the Equality Act 2010 defines disability in section 6 as an impairment which has a substantial and long term effect on day to day activities, and by the interpretation section, section 212, provides that Substantial means more than minor or trivial. It thus uses the word in the first sense. Conversely, the expression significant and substantial when used to identify which breaches by the police of the Codes of Practice under the Police and Criminal Evidence Act 1984 will lead to the exclusion of evidence (see for example R v Absolam (1988) 88 Cr App R 332 and R v Keenan [1990] 2 QB 54) is undoubtedly used in the second sense. It is to be accepted that the word may take its meaning from its context. It is not surprising that in the context of triggering a duty to make reasonable adjustments to assist the disabled, the first sense should be used by the Equality Act; the extent of adjustments required varies with the level of disability and a wide spectrum of both is to be expected. Mr Etherington additionally submits that this usage shows that the first sense does not entirely strip the word substantially of meaning. Conclusions: substantially The foregoing review of the authorities clearly shows that in the context of diminished responsibility the expression substantially has always been held, when the issue has been confronted, to be used in the second of the senses identified above. True it is that in Lloyd Edmund Davies J observed that that word had been put into the 1957 Homicide Act with a view to it carrying some meaning. If by that he meant that it could have no purpose at all unless it was used in the second sense above, the Equality Act usage may suggest otherwise, although even without the word substantially it is perhaps open to doubt that a merely trivial effect would be taken to be included either in impairment or in disability. But this does not alter the central thrust of the decision in Lloyd, which was that in the context of diminished responsibility an impairment of consequence or weight is what is required to reduce murder to manslaughter, and not any impairment which is greater than merely trivial. There is no basis for thinking that when the same expression was carried forward into the new formulation of diminished responsibility any change of sense was intended. The adverb substantially is applied now, as before, to the verb impaired. In the absence of any indication to the contrary, Parliament is to be taken to have adopted the established sense in which this word has been used for 50 years. The reformulation of the law followed the recommendation of the Law Commission, except to the irrelevant extent that it did not incorporate developmental immaturity as an extension beyond recognised medical conditions. The Commission had addressed diminished responsibility in two reports, each preceded by a detailed consultation paper: Partial Defences to Murder Law Com 290 (2004) and Murder, Manslaughter and Infanticide Law Com 304 (2006). Prior to the earlier report, it had consulted upon a number of possible formulations of the test for diminished responsibility see Partial Defences at 5.52 et seq. Most employed the adverb substantially. The Commission was concerned to ensure that a requirement for causation was explicitly incorporated into the proposed statutory test, as it now has been, and had consulted on the question whether this test would suffice without any threshold of substantial impairment see possible version (6) at 5.52. It is no doubt true that in many cases the question whether the impairment is sufficient to establish the partial defence will march alongside the question whether it was a significant contributory factor in causing the killing. But this will not always be so. Where, for example, the recognised medical condition is an emotionally unstable personality disorder leading to histrionic and impulsive behaviour, or where it is depression leading to distorted thinking, the medical evidence may make it clear that it has had some impact on behaviour and thus was a significant cause. The jury may be satisfied that if the defendants personality had been different, or if there had not been some depression, he would not have killed as he did. The real question thus may very well be whether the condition passes the threshold of substantial impairment, or does not. An illustration is afforded by the facts of R v Brown. The defendants marriage had broken down. He was living elsewhere with his girlfriend. There were acrimonious negotiations over the division of property between himself and his wife. He felt that she was dishonestly concealing her assets and cheating him, and that she had unfairly manipulated him into signing what he saw as a disadvantageous pre nuptial agreement. He planned to kill her. He prepared a grave in Windsor Great Park and, when returning the children to her after a weekend, took with him a hammer hidden in his daughters bag and beat her to death, before dismantling the CCTV equipment which would have recorded his movements, and disposing of the body in the grave. There was psychiatric evidence that he had developed an adjustment disorder, a recognised medical condition, arising from the severe stress of life events. The jury must have accepted the diagnosis, and that the adjustment disorder was a significant cause of his killing his wife. On the judges direction, that impairment beyond the merely trivial sufficed, the conviction for manslaughter followed. Whether or not the jury would have concluded, but for that direction, that the impairment was substantial, can never be known. But it is clear that such a conclusion would not follow necessarily from the finding of significant causation. After consultation, the Commissions final conclusion, in the second report at 1.17, was that although there were some infelicities in the wording it was not persuaded that any of the alternative formulations canvassed would sufficiently improve the law to justify interfering with a workable form of words. It had pointed out in the earlier report at 7.91 that the approach to the concept was essentially pragmatic, that the leading authority remained Byrne and that this partial defence had, unlike provocation, troubled the House of Lords only once in 50 years. The formula now incorporated into the statute was recommended. The specific requirement for causation was added, but the threshold of substantial impairment was maintained. It follows that there is nothing in the change of the formulation of the test for diminished responsibility to cause a different view to be taken now of the sense in which the word substantially is used in conjunction with impairment. This use of the expression accords with principle. Diminished responsibility effects a radical alteration in the offence of which a defendant is convicted. The context is a homicide. By definition, before any question of diminished responsibility can arise, the homicide must have been done with murderous intent, to kill or to do grievous bodily harm, and without either provocation or self defence. Whilst it is true that at one end of the scale of responsibility the sentence in a case of diminished responsibility may be severe, or indeed an indefinite life sentence owing to the risk which the defendant presents to the public, the difference between a conviction for murder and a conviction for manslaughter is of considerable importance both for the public and for those connected with the deceased. It is just that where a substantial impairment is demonstrated, the defendant is convicted of the lesser offence and not of murder. But it is appropriate, as it always has been, for the reduction to the lesser offence to be occasioned where there is a weighty reason for it and not merely a reason which just passes the trivial. Directing juries: good practice As Mr Perry QC for the Crown rightly submitted, there are many examples of ordinary English words incorporating questions of degree, which are left to juries to apply without attempts at further definition. No one attempts to define reasonable in the many contexts in which it appears. Nor should there be any further sophistication applied to the standard of proof required, that the jury be sure, at least beyond the comparable expression leaving no reasonable doubt. The same principle of leaving an ordinary word alone was applied by the House of Lords in Brutus v Cozens [1973] AC 854 to the expression insulting, and would apply equally, no doubt, to its sister expressions abusive and threatening. In all these cases the understandable itch of the lawyer to re define needs to be resisted. Any attempt to find synonyms for such ordinary English expressions, although they involve questions of degree, simply complicates the jurys exercise, and leads to further semantic debate about the boundaries of meaning of the synonym. Where, however, as here, there are two identifiable and different senses in which the expression in question may be used, the potential for inconsistent usage may need to be reduced. The existence of the two senses of the word substantially identified above means that the law should, in relation to diminished responsibility, be clear which sense is being employed. If it is not, there is, first, a risk of trials being distracted into semantic arguments between the two. Secondly, there is a risk that different juries may apply different senses. Thirdly, medical evidence (nearly always forensic psychiatric evidence) has always been a practical necessity where the issue is diminished responsibility. If anything, the 2009 changes to the law have emphasised this necessity by tying the partial defence more clearly to a recognised medical condition, although in practice this was always required. Although it is for the jury, and not for the doctors, to determine whether the partial defence is made out, and this important difference of function is well recognised by responsible forensic psychiatrists, it is inevitable that they may express an opinion as to whether the impairment was or was not substantial, and if they do not do so in their reports, as commonly many do, they may be asked about it in oral evidence. It is therefore important that if they use the expression, they do so in the sense in which it is used by the courts. If there is doubt about the sense in which they have used it, their reports may be misunderstood and decisions made upon them falsified, and much time at trials is likely to be taken up unnecessarily by cross examination on the semantic question. The experience of R v Brown (supra at paras 24 and 33) underlines the need for clarification. The sense in which substantially impaired is used in relation to diminished responsibility is, for the reasons set out above, the second of the two senses. It is not synonymous with anything more than merely trivial impairment. It does not follow that it is either necessary or wise to attempt a re definition of substantially for the jury. First, in many cases the debate here addressed will simply not arise. There will be many cases where the suggested condition is such that, if the defendant was affected by it at the time, the impairment could only be substantial, and the issue is whether he was or was not so affected. Second, if the occasion for elucidation does arise, the judges first task is to convey to the jury, by whatever form of words suits the case before it, that the statute uses an ordinary English word and that they must avoid substituting a different one for it. Third, however, various phrases have been used in the cases to convey the sense in which substantially is understood in this context. The words used by the Court of Appeal in the second certified question in the present case (significant and appreciable) are one way of putting it, providing that the word appreciable is treated not as being synonymous with merely recognisable but rather with the connotation of being considerable. Other phrases used have been a serious degree of impairment (Seers), not total impairment but substantial (Ramchurn) or something far wrong (Galbraith). These are acceptable ways of elucidating the sense of the statutory requirement but it is neither necessary nor appropriate for this court to mandate a particular form of words in substitution for the language used by Parliament. The jury must understand that substantially involves a matter of degree, and that it is for it to use the collective good sense of its members to say whether the condition in the case it is trying reaches that level or not. It seems likely that the Ashworth spectrum illustration will have been of assistance to juries in some cases, for it helps to explain (a) that the impairment need not be total to suffice and (b) that substantially is a question of degree. But, as the experience of Lloyd, Ramchurn and the present case teaches, if it is to be used it needs to be combined with making it clear that it is not the law that any impairment beyond the merely trivial will suffice. The impairment must of course pass the merely trivial to be considered, just as it need not reach the total, but whether, when it has passed the trivial, it can properly be regarded as substantial, is a matter for the jury in the individual case, aided as it will be by the experts exposition of the kind of impairment which the condition under consideration may have generated in the accused. Unless the spectrum illustration has been used by someone in the case, it is preferable for the judge not to introduce it. If it has been used, or if, on mature consideration the judge considers that it may help the jury in the particular case on trial, it needs to be coupled with a clear statement that it is not enough that the impairment be merely more than trivial; it must be such as is judged by the jury to be substantial. For the same reason, if an expert witness, or indeed counsel, should introduce into the case the expression more than merely trivial, the same clear statement should be made to assist the jury. Once this usage is understood by all concerned with the trial, there ought to be no occasion for the jury to be distracted by debate about the meaning of the word. What matters is what kind of effect the medical condition was likely to have had on the three relevant capacities of the accused. So long as the experts understand the sense in which substantially is used in the statute (which should henceforth be clear), and that the decision whether the threshold is met is for the jury rather than for them, it is a matter for individual judgment whether they offer their own opinion on whether the impairment will have been substantial or confine themselves to the kind of practical effect it would have had. If they do the former, they will be understood to be using the word in the second sense set out in para 27 above. It follows that the questions certified by the Court of Appeal should be answered as follows: (1) Ordinarily in a murder trial where diminished responsibility is in issue the judge need not direct the jury beyond the terms of the statute and should not attempt to define the meaning of substantially. Experience has shown that the issue of its correct interpretation is unlikely to arise in many cases. The jury should normally be given to understand that the expression is an ordinary English word, that it imports a question of degree, and that whether in the case before it the impairment can properly be described as substantial is for it to resolve. (2) If, however, the jury has been introduced to the question of whether any impairment beyond the merely trivial will suffice, or if it has been introduced to the concept of a spectrum between the greater than trivial and the total, the judge should explain that whilst the impairment must indeed pass the merely trivial before it need be considered, it is not the law that any impairment beyond the trivial will suffice. The judge should likewise make this clear if a risk arises that the jury might misunderstand the import of the expression; whether this risk arises or not is a judgment to be arrived at by the trial judge who is charged with overseeing the dynamics of the trial. Diminished responsibility involves an impairment of one or more of the abilities listed in the statute to an extent which the jury judges to be substantial, and which it is satisfied significantly contributed to his committing the offence. Illustrative expressions of the sense of the word may be employed so long as the jury is given clearly to understand that no single synonym is to be substituted for the statutory word: see para 40 above. R v Brennan Counsel drew attention to the Court of Appeal decision in R v Brennan [2014] EWCA Crim 2387; [2015] 1 WLR 2060, decided after both trial and appeal in the present case. The defendant in that case (aged 22 at the time of the offence) had a nine year history of disturbed childhood, sexual abuse and outpatient mental health treatment together with one instance when he was sectioned following a suicide attempt. On the undisputed psychiatric evidence he suffered from a schizotypal disorder as well as an emotionally unstable personality disorder. He was obsessed with witchcraft and Satanist killings. He was also depressed. He had planned and executed the ritualistic killing of a client whom he had served as a male prostitute. He left notes of what he planned to do, and after killing the man with one or more knives, had scored his back and painted or written on the walls symbols such as a pentagram and references to Satan and to Krishna, before cleaning himself up and going to the police station to report what he had done. He was treated by the police as needing an appropriate adult to attend his interviews, and told that person that he had been having thoughts of killing somebody (apparently anybody) for several weeks. At trial the only issue was diminished responsibility. The Court of Appeal held that in that case there was only one possible outcome. There was simply no basis for a verdict of murder and moreover this was so clear that the judge ought not to have left it open to the jury. The court regarded that decision as a straightforward application of R v Galbraith [1981] 1 WLR 1039; 73 Cr App R 124. It went on to offer some general observations about the circumstances in which a judge ought to withdraw murder from the jury where the issue is diminished responsibility and uncontradicted psychiatric evidence supports the defence case on that topic. The report suggests that Brennan was a case in which the Crown expressly did not challenge the diagnosis of the single consultant psychiatrist called and barely challenged her opinion that the defendants condition substantially impaired his ability to form rational judgments. (There was perhaps greater challenge to the opinion that his ability to control himself was also substantially impaired). That was a reasoned decision. The Crown had a second psychiatric report, disclosed in ordinary course to the defence, which agreed those conclusions. Counsel for the Crown had then, legitimately, tested the evidence of the psychiatrist, in particular by drawing attention to the defendants consumption of drink and drugs, and to the clear evidence of pre planning. As to the first, the psychiatrists answer had, however, been that the underlying mental condition effected sufficient impairment independently of any additional disinhibition attributable to intoxication. As to the second, she had said that a disordered and impaired mind may well be no less capable of premeditation and detailed planning than a rational one, and that that was what had happened. Those answers had not been challenged, presumably because they were not, on the facts, capable of dispute. It is an important part of the Crowns function, where the charge is murder and a case of diminished responsibility is advanced, to assess the expert evidence almost invariably obtained on both sides and its relationship to any dispute of fact. If it is clear that the defendant was indeed suffering from a recognised medical condition which substantially impaired him in one of the material respects, and that this condition was a significant cause of the killing, the Crown is entitled to, and conventionally frequently does, accept that the correct verdict is guilty of manslaughter on the grounds of diminished responsibility and no trial need ensue. In practice quite a large proportion of verdicts of manslaughter on this ground arise from the Crown taking this responsible course: see the research undertaken for the Law Commission by Professor Mackay cited in Partial Defences to Murder Law Com 290 (2004) at Appendix B, especially paras 6, 20 and 21. Acceptance of a plea to manslaughter may properly be given either before trial, thus making it unnecessary, or after testing the evidence if that is required. Given the answers of the psychiatrist in Brennan and the state of the evidence, it is clear that the Crown could not properly ask the jury to convict of murder unless it was to reject one or more parts of the expert evidence. Certainly a jury is not bound by the expert. In some cases, pre planning, especially involving meticulous preparations, may indicate self control which gives grounds for rejecting an opinion that self control was substantially impaired. In others, there may be legitimate grounds for asking the jury to disagree about the level of impairment. In yet further cases, it may be perfectly proper to ask the jury to conclude that it was the drink or drugs which led to the killing, whilst the underlying mental condition was in the background. That is not by any means an exhaustive catalogue of questions which a jury may properly be invited to decide. However, as the Court of Appeal rightly held, if the jury is to be invited to reject the expert opinion, some rational basis for doing so must at least be suggested, and none had been at trial nor was on appeal. It is not open to the Crown in this kind of situation simply to invite the jury to convict of murder without suggesting why the expert evidence ought not to be accepted. In particular, it would not have been a proper basis for rejecting diminished responsibility that the circumstances of the killing had been particularly violent or sadistic. It is a well known factor in such cases that such brutality may (understandably) be taken by a jury to point away from the partial defence; sometimes it may truly do so, but not infrequently it is the product of the mental disorder. It may be agreed that the ordinary principles of R v Galbraith are capable of being applied in a trial where the sole issue is diminished responsibility. A court ought, however, to be cautious about doing so, and for several reasons. First, a murder trial is a particularly sensitive event. If the issue is diminished responsibility, a killing with murderous intent must, ex hypothesi, have been carried out. If a trial is contested, it is of considerable importance that the verdict be that of the jury. Second, the onus of proof in relation to diminished responsibility lies on the defendant, albeit on the balance of probabilities rather than to the ordinary criminal standard. The Galbraith process is generally a conclusion that no jury, properly directed, could be satisfied that the Crown has proved the relevant offence so that it is sure. In the context of diminished responsibility, murder can only be withdrawn from the jury if the judge is satisfied that no jury could fail to find that the defendant has proved it. Thirdly, a finding of diminished responsibility is not a single issue matter; it requires the defendant to prove that the answer to each of the four questions set out in para 8 above is yes. Whilst the effect of the changes in the law has certainly been to emphasise the importance of medical evidence, causation (question 4) is essentially a jury question. So, for the reasons explained above, is question 3: whether the impairment of relevant ability(ies) was substantial. That the judge may entertain little doubt about what he thinks the right verdict ought to be is not sufficient reason in this context, any more than in any other, for withdrawing from the jury issues which are properly theirs to decide. Where, however, in a diminished responsibility trial the medical evidence supports the plea and is uncontradicted, the judge needs to ensure that the Crown explains the basis on which it is inviting the jury to reject that evidence. He needs to ensure that the basis advanced is one which the jury can properly adopt. If the facts of the case give rise to it, he needs to warn the jury that brutal killings may be the product of disordered minds and that planning, whilst it may be relevant to self control, may well be consistent with disordered thinking. While he needs to make it clear to the jury that, if there is a proper basis for rejecting the expert evidence, the decision is theirs that trial is by jury and not by expert it will also ordinarily be wise to advise the jury against attempting to make themselves amateur psychiatrists, and that if there is undisputed expert evidence the jury will probably wish to accept it, unless there is some identified reason for not doing so. To this extent, the approach of the court in Brennan is to be endorsed. The present case In the present case the appellant and the deceased had lived together for around three years before she was killed on a Sunday in July 2012. On that day she and he, and her two sons aged 13 and eight, had been to a family barbecue. The couple had rowed at the party, in part because she said that he had hit her in the past, in part because he demanded that she give him a bank card which she refused to do, and in part because he wanted to go home and she did not. After they had returned home, separately, and after her mother had visited the house, the argument was renewed later in the evening. Outside the house, the appellant seized the deceased by her face, held her by her hair and slapped her across the cheek. She insisted that he leave the home. He packed a bag but refused to leave. Some time later that evening he attacked her. By then the deceased had a large lump on her face. The several stages of this attack were witnessed by one or both of her two sons. The older son intervened in the argument. He stood between them and said that he would not leave them alone. The appellant then fetched a knife from the kitchen, but the older son took it from his pocket. The boy told his mother about the knife and the appellant said Its self defence. She went and sat on the bed but the appellant went after her and punched her in the head, whereupon she hit him back. He had a small cut on his eyebrow which the boys said he squeezed to increase the blood flow. Then he attacked the deceased with a second knife which he produced, kneeling on her arms as he did so and shouting that he was going to kill her. She was afterwards found to have some 22 knife wounds, plus internal bleeding injuries to her abdomen and liver, apparently from a kick or similar blow(s) or contact with a hard object, which latter injuries were the fatal ones. When the police arrived the appellant became extremely violent. He was described as snarling like an animal and appearing as if deranged. At some stage he said to the police that She is evil . The demons gone She had Satan in her eyes. The appellant was 46 years old. Since he was about 23 he had been referred by his GP for out patient psychiatric consultations from time to time. He had never been admitted to hospital but had complained of depression, paranoid fears and, at times, of hearing voices in his head. He had been prescribed anti depressant and anti psychotic drugs and was still under such prescription at the time of the offence, although he had told the doctors that he was not taking his medicine. One consultant psychiatrist diagnosed his condition as a mixed personality disorder with paranoid, emotionally unstable, anxious and dependent traits. On the basis largely of what he had said to the police, the doctor concluded that at the time of the killing he was additionally in the grip of an acute psychotic episode and was driven by persecutory beliefs. The second psychiatrist disagreed that there was a personality disorder, but concluded that the appellant was at the time of the offence suffering from a paranoid psychotic illness, most likely schizophrenia. Both expressed the opinion that the different conditions they identified substantially impaired the relevant statutory abilities, although they were not at one as to which. The first psychiatrist thought that the ability to form a rational judgment and to exercise self control were impaired, but that the defendant knew what he was doing; the second agreed on the first two counts but additionally thought that the ability to understand the nature of his conduct was impaired. The Crown case was that he was simply very angry with his partner, and had been on and off all day, for unremarkable domestic reasons. There was some evidence of an ability to control himself on previous occasions when there had been assaults on her which had not been uncontrolled. The truthfulness of his assertion that he had seen Satan was in issue, and may or may not have been consistent with asserting self defence at the time. The renewal of the attack despite the warning presence of the children and the removal of the first knife might perhaps be some indicator of self control and give some support to the contention that the cause was simple anger rather than distorted thinking. That being the state of the evidence, the debate between the two possible meanings of the expression substantially barely arose. If the appellant was indeed in the grip of a psychotic episode involving persecutory delusions when he killed his partner, that would, by any ordinary standard, involve substantial impairment of one or more of the statutory abilities. The real question appears to have been whether, on the balance of probabilities, he had been. The judge left the issues squarely to the jury, correctly reminding them more than once that the doctors were agreed that there was a medical condition substantially impairing his abilities. Conclusion It follows that for the several reasons set out above, this appeal must be dismissed.	The appellant Mark Golds was convicted by a jury of the murder of his partner. The medical evidence was that he had an abnormality of mental functioning arising from a medical condition. He admitted in court that he had killed his partner. The sole issue in the case was whether he had been in the grip of a psychotic condition when he did so, so as to satisfy the requirements for the partial defence of diminished responsibility and reduce the charge of murder to manslaughter. The law to be applied was section 2 of the Homicide Act 1957 after its revision by the Coroners and Justice Act 2009, with the relevant test being whether the appellants ability to understand what he was doing, to form a rational judgment or to exercise self control was substantially impaired [5]. The trial judge correctly identified the questions which the jury needed to address, and provided a written summary of the ingredients of diminished responsibility. On the issue of substantial impairment, the judge told the jury that he was not going to give them specific guidance on the meaning of the everyday word substantially, unless it created difficulty and they requested assistance. The jury did not ask for further clarification or assistance. The appellant appealed against his conviction, including on two issues relating to the correct approach to the statutory test. Firstly, where a defendant, being tried for murder, seeks to establish that he is not guilty of murder by reason of diminished responsibility, whether the Court was required to direct the jury as to the definition of the word substantial in the phrase substantially impaired in s.2(1)(b) Homicide Act 1957, as amended by s.52 Coroners and Justice Act 2009? Secondly, if the judge is required to, or if the judge of his own accord chooses to, direct the jury on the meaning of the word substantial, is it to be defined as something more than merely trivial, or alternatively in a way that connotes more than this, such as something whilst short of total impairment that is nevertheless significant and appreciable? The Court of Appeal dismissed his appeal. There was no authority requiring the judge to give direction on the meaning of substantial, and if he had done so it would have been wrong to direct that it would suffice if the impairment was more than merely trivial. Mr Golds appealed to the Supreme Court. The Supreme Court unanimously dismisses Mr Golds appeal. Lord Hughes gives judgment, with which the rest of the Court agrees. In a murder trial where diminished responsibility is an issue, the judge is not ordinarily required to direct the jury beyond the terms of the statute, and should not attempt to define the meaning of substantially. However, if there is a risk that the jury will misunderstand the meaning of substantial, then a direction is required. Whether this risk arises is a matter for the judge. This may be the case where the jury has been introduced to the question of whether any impairment beyond the trivial will suffice, or has been introduced to the concept of a spectrum between greater than trivial and total. The judge must direct that while an impairment must be more than merely trivial to be substantial, it is not the case that any impairment that is more than trivial will suffice [43]. Lord Hughes carries out a comprehensive review of the treatment of the expression substantial impairment in the context of the diminished responsibility defence in cases from both England and Scotland (from whose common law the English defence was derived). This included the old formulation of the defence in the Homicide Act 1957 before it had been amended by the Coroners and Justice Act 2009. In the earlier formulation the phrase substantially impaired applied to the global concept of mental responsibility, rather than to the ability to do one or more specified things, as it now does [6]. There is no indication that Parliament wished the same expression to carry a different meaning in the new the formulation of diminished responsibility, or therefore that the authorities on the old formulation should not apply to the new law [30 35]. In ordinary usage, substantial is capable of meaning either (1) present rather than illusory or fanciful, thus having some substance, or (2) important or weighty. Either sense can be used in law making, and the word may take its meaning from its context. The review of the authorities clearly shows that in the context of diminished responsibility the expression substantially has always been held to be used in the second of the two possible meanings [27]. This meaning of the expression also accords with principle there must be a weighty reason for a reduction from murder to the lesser offence of manslaughter, and not merely a reason which just passes the trivial [36]. In the authorities reviewed, the expression substantially impaired has been consistently treated as a question of degree, and one that should be left to the jury. The cases repeated and re emphasised, but did not attempt to re define the statutory expression. However, they did proceed on the assumption that substantially in this context meant impairment which was of some importance, or a serious degree of impairment. It was not contemplated in any of the cases considered that it was sufficient that the impairment merely passed triviality [9 26]. Where triviality was mentioned, as in R v Lloyd [1967] 1 QB 175, it was in the context of a direction to the jury that substantial impairment fell between two extremities: more than merely trivial, but less than total. It is clear from the decision in that and other appeals that there was no intention to direct that any impairment beyond the trivial sufficed, or that the reference to the extremities of possible impairment should provide a definition of substantial impairment. Beyond the merely trivial, what amounted to a substantial impairment was a matter of degree for the jury. There is usually no need for the jury to be directed on the meaning of ordinary words: any attempt to find synonyms or re define such words complicates the jurys task and leads to further debate. There will be many cases where the need for elucidation does not arise, for example where the suggested impairment, if it existed, is clearly substantial. If the need does arise, the judge may offer help on what the expression means, but must avoid substituting a single synonym, and it is usually better to avoid the spectrum referred to in R v Lloyd [37 42].
In this appeal two men who had been convicted of very serious offences and who would continue to be detained in a penal institution on 18 September 2014 sought to establish a right of convicted prisoners to vote in the Scottish independence referendum on that date. As a prompt decision was needed, the court debated the matter and dismissed the appeal on the same day as the hearing. This judgment sets out the reasoning of the majority of the court. The proceedings giving rise to the appeal were applications for judicial review of the Scottish Independence Referendum (Franchise) Act 2013 (the Franchise Act), an Act of the Scottish Parliament. The Franchise Act based the franchise for the referendum on the franchise for local government elections, which is determined by the Representation of the People Act 1983 (the 1983 Act), and extended it to young voters over the age of 16. Section 2(1)(b) of the 1983 Act provides that a person who is subject to any legal incapacity to vote is not entitled to vote as an elector at a local government election. Section 3(1) of the 1983 Act incapacitates convicted prisoners from voting. Such prisoners have lacked the legal capacity to vote since 1969. Before then, there were other legal provisions which disenfranchised felons or had the effect of preventing prisoners from being registered to vote. The challenges follow on from decisions of the European Court of Human Rights (the Strasbourg Court) concerning the disenfranchisement of convicted prisoners. In Hirst v The United Kingdom (No 2) (2005) 42 EHRR 849 the Grand Chamber held that the general and automatic disenfranchisement of convicted prisoners was a violation of article 3 of Protocol No 1 (A3P1) of the European Convention on Human Rights (ECHR). In Scoppola v Italy (No 3) (2012) 56 EHRR 663 the Grand Chamber confirmed its judgment in Hirst. More recently, this court in McGeoch v Lord President of the Council 2014 SC (UKSC) 25 (R (Chester) v Secretary of State for Justice [2014] AC 271) has applied the principles in Hirst and Scoppola in claims under the Human Rights Act 1998 (HRA 1998). The appellants did not claim that, if their appeal were to succeed, they would necessarily have a right to vote in the referendum but asserted that it was important to review the lawfulness of the legislation, which was a matter of general public importance. The Lord Advocate and the Advocate General for Scotland did not challenge that assertion. Lord Glennie, who heard the applications in the Outer House of the Court of Session, issued his opinion refusing them on 19 December 2013 (2014 SLT 213). The First Division of the Inner House of the Court of Session refused a reclaiming motion on 2 July 2014 (2014 SLT 755). An expedited appeal was presented to this court on 24 July 2014. Mr Aidan ONeill QC for the appellants, submitted that the Franchise Acts blanket disenfranchisement of convicted prisoners in relation to the independence referendum was ultra vires the Scottish Parliament under the following headings: 1. 2. 3. 4. 5. because it was incompatible with A3P1 of the ECHR; because it was incompatible with article 10 of the ECHR (article 10); because it was incompatible with the law of the European Union (EU law); because it contravened the substantive requirements of the International Covenant on Civil and Political Rights (ICCPR); because it was incompatible with the basic democratic principles of the common law constitution, namely the principle of universal suffrage and the concomitant fundamental right to vote; and because it contravened the common law requirements of the rule of law. 6. The first three challenges are concerned with the effect which the Scotland Act 1998 gives to certain international norms, namely Convention rights incorporated into domestic law by HRA 1998 or EU law (defined in section 126(9) of the Scotland Act) which has precedence within its sphere over domestic law under the European Communities Act 1972, as limitations on the powers of the Scottish Parliament. Section 29(1) of the Scotland Act provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. Subsection (2)(d) states that a provision is outside that competence so far as it is incompatible with any of the Convention rights or with EU law. In relation to those three challenges the issue is whether the appellants or other convicted prisoners have rights which invalidate the relevant provisions of the Franchise Act. The fourth challenge raises a separate issue, namely whether the ICCPR has any effect in domestic law. The fifth and sixth challenges raise the questions whether the common law recognises a principle of universal suffrage and whether a denial of such a principle would be contrary to the rule of law. I consider each challenge in turn. (i) A3P1 of the ECHR A3P1 is entitled Right to free elections. It provides: 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 article requires the contracting states to hold elections at reasonable intervals and the Strasbourg Court, drawing on the travaux prparatoires, has interpreted it as also conferring a right of participation, both by standing for election and voting, in the election of representatives to the legislature: Mathieu Mohin and Clerfayt v Belgium (1987) 10 EHRR 1, paras 46 51. The natural meaning of the article is that the phrase the free expression of the opinion of the people in the choice of the legislature is the product of the free elections at reasonable intervals by secret ballot. The article states that the elections are to be held under conditions which will ensure that free expression. Article 31(1) of the Vienna Convention on the Law of Treaties (1969) provides, as a general rule of interpretation: 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. In my view the ordinary meaning of the words of A3P1 strongly supports the view that the signatories of the ECHR were undertaking to hold periodic elections to a democratically elected legislature. The requirement that the elections are held at reasonable intervals also suggests that the drafters of A3P1 did not have referendums in mind. The words in their ordinary meaning do not support a wider view that A3P1 was intended to cover any major political decision which was put to a popular vote, however important that decision might be. That the object and purpose of A3P1 is so limited is confirmed by the consistent case law of the European Commission on Human Rights and the Strasbourg Court. The Lord Ordinary, Lord Glennie, in para 22 of his opinion referred to X v United Kingdom (Application No 7096/75, 3 October 1975) and 11 subsequent decisions on admissibility which vouched the principle that A3P1 applies to elections to the legislature and has no application to voting in other elections or in a referendum. Lady Paton, delivering the succinct opinion of the First Division, agreed in para 24. It is not necessary to analyse all of those decisions, which vouch a consistent line of reasoning. I therefore examine four to highlight the scope of the reasoning of the Strasbourg Court. X v UK concerned the referendum in 1975 on whether the United Kingdom should remain a member of the EEC. The Commission decided that A3P1 did not cover the referendum because it was not an election concerning the choice of the legislature. In v Latvia (Application No 14755/03, 26 January 2006) the Third Section dealt with a complaint that a prisoner had not been allowed to vote in a referendum on Latvias accession to the EU. It rejected the application as inadmissible, reiterating that the obligations imposed on Contracting States by A3P1 were limited to parliamentary elections and do not apply to referendums. Niedwied v Poland (2008) 47 EHRR SE6 concerned a prisoner who had been deprived of a right to vote in (i) the presidential election of 2000, (ii) parliamentary elections in 2001 and (iii) the referendum on Polands accession to the European Union in 2003. The Strasbourg Court rejected the claims in respect of (i) and (iii) ratione materiae because the A3P1 obligations related to the choice of legislature. The fourth decision, McLean and Cole v United Kingdom (2013) 57 EHRR SE95, concerned complaints by convicted prisoners about their disenfranchisement from (i) elections to the European Parliament in 2009, (ii) the United Kingdom parliamentary election of 2010, (iii) elections to the Scottish Parliament in 2007 and 2011, (iv) the nationwide referendum on the alternative vote also in 2011 and (v) local government elections. The court held that local authorities in the United Kingdom were not part of the legislature in A3P1 and that complaint (v) was inadmissible. In relation to complaint (iv) the court reiterated (in para 32) that A3P1 was limited to elections concerning the choice of the legislature and did not apply to referendums. It continued (in para 33): There is nothing in the nature of the referendum at issue in the present case which would lead the court to reach a different conclusion here. It follows that complaint concerning the alternative vote referendum is incompatible ratione materiae with the provisions of the Convention and its Protocols and must be rejected pursuant to article 35(4). Mr ONeill QC founded on the first sentence of this extract to argue that the Strasbourg Court would apply A3P1 to a particular referendum, such as a referendum transferring powers from one legislature (the UK Parliament) to another (the Scottish Parliament). He also pointed out that some of the admissibility decisions did not contain detailed reasoning. For the reasons which we set out below we are not persuaded by either point. For completeness I also refer to Anchugov and Gladkov v Russia [2013] ECHR 638 in which the First Section of the Strasbourg Court held (in paras 54 and 55) that the obligations which A3P1 imposed on Contracting States did not extend to the election of a Head of State. Thus a complaint under A3P1 of exclusion from the important election of the Russian President was declared inadmissible ratione materiae. While the Court considered (in paras 38 40) as relevant legal material article 25 of the ICCPR, which I discuss in paras 26 31 below, only the disenfranchisement from the parliamentary elections was held to breach A3P1. The courts of the United Kingdom are not bound by the judgments of the Strasbourg Court in interpreting the ECHR. In section 2 of HRA 1998 the courts are obliged only to take into account that jurisprudence. There is room for disagreement and dialogue between the domestic courts and the Strasbourg Court on the application of provisions of the ECHR to circumstances in the UK. Nonetheless, it is consistent with the intention of Parliament in enacting HRA 1998 that our courts should follow a clear and constant line of decisions of the Strasbourg Court, 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: Manchester City Council v Pinnock (Nos 1 and 2) [2011] 2 AC 104, Lord Neuberger at para 48. On occasion our domestic courts may choose to go further in the interpretation and application of the ECHR than Strasbourg has done where they reach a conclusion which flows naturally from Strasbourgs existing case law: Rabone v Pennine Care NHS Trust [2012] 2 AC 72, Lord Brown of Eaton under Heywood para 112; In re G (Adoption: Unmarried Couple) [2009] AC 173. As Mr ONeill submitted, the Strasbourg Court has on many occasions emphasised both that democracy is a fundamental feature of the European public order and that the ECHR was designed to promote the ideals and values of a democratic society: see for example Staatkundig Gereformeerde Partij v The Netherlands (Application No 58369/10, 10 July 2012) at para 70. Further, it is in the appellants favour that there is no doubt that a vote whether to secede from a 307 year old Union is a momentous and historic decision for a democratic country. If the ECHR protected a principle of universal suffrage in all important democratic decisions, the Scottish independence referendum would clearly merit such protection. But, in my view, the case law of the Strasbourg Court is unequivocal. What A3P1 requires is regular periodic elections to the legislature of a Contracting Party and it also protects the right to vote and stand for election in such elections. The legislature is not confined to a national Parliament but includes the European Parliament Matthews v UK (1999) 28 EHRR 361 but it does not include local authorities in the United Kingdom: McLean & Cole v UK. There is thus no real support for the appellants position in the Strasbourg jurisprudence. There is no clear direction of travel in that jurisprudence to extend A3P1 to referendums. On the contrary, between 1975 and 2013 there have been at least 12 applications in which claims under A3P1 concerning a right to vote in referendums have been rejected as inadmissible. The fact that in some cases the Strasbourg Court has not set out detailed reasoning does not assist the appellants. The applications were treated as manifestly ill founded, avoiding the need for such reasoning. At best for the appellants there is the first sentence from the quotation in para 11 above from McLean and Cole, which could suggest that there could be a referendum which would be the equivalent of an election to a legislature. But that must be construed against the backdrop that the Strasbourg Court has held that referendums which could have a direct and material effect on the powers and operation of a legislature are not within the ambit of A3P1. Thus accession to the European Union, by which the European Parliament is introduced as a new legislature in relation to a Contracting State and the powers of the national legislature are constrained, is outside A3P1: Z v Latvia and Niedwied v Poland. So also is a referendum on the way in which the legislature is elected: McLean and Cole. In my view there is no material difference between accession and secession in this context. In each case the powers of one legislature are reduced in favour of another legislature. Nor am I persuaded that the Edinburgh Agreement, by which the United Kingdom Government and the Scottish Government agreed to be bound by the outcome of the Scottish independence referendum, is a point of distinction from other referendums. The secession of Scotland from the UK could, in theory at least, have been organised constitutionally without a referendum by legislation of the UK Parliament. The fact that the referendum is a very important political decision for both Scotland and the rest of the United Kingdom is not material. If the political importance of a democratic decision were the criterion for inclusion within A3P1, it is likely that the election of the executive President of the Russian Federation would have come within that article. But it did not: Anchugov and Gladkov v Russia. In view of the clear line of case law by the Strasbourg Court, I do not think, for the reasons discussed in para 28 below, that article 25 of the ICCPR affects the proper interpretation of A3P1. In Mathieu Mohin and Clerfayt v Belgium the Strasbourg Court stated (at para 53): Article 3 (P1 3) applies only to the election of the legislature, or at least of one of its chambers if it has two or more (fn 76: Travaux Prparatoires, vol VIII, pp 46, 50 and 52). The word legislature does not necessarily mean only the national parliament, however; it has to be interpreted in the light of the constitutional structure of the State in question. The passage of time and the Strasbourg case law since 1988 have not altered the meaning of A3P1. There are clearly arguments of legal policy which could suggest that a right to vote in a historic constitutional referendum should be protected in the same way as a right to vote in an election of a national or European legislature. In several cases the Strasbourg Court has stated that any general, automatic and indiscriminate departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws which it promulgates: Hirst at para 62; Sitaropoulos and Giakoumopoulos v Greece (2012) 56 EHRR 320 (Grand Chamber) at para 68; Scoppola v Italy (No 3) (Grand Chamber) at para 84; and Shindler v UK (2013) 58 EHRR 148 (4th Section) at para 103. That reasoning could readily be applied to democratic decisions other than elections to the legislature. A referendum which results in the creation of a new legislature or the transfer of powers from one legislature to another could have an equal effect on the democratic validity of the resulting Parliament. But A3P1, as currently worded, does not protect such a wider right of participation in public life. The appellants claim under A3P1 therefore fails. (ii) Article 10 of the ECHR 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. The courts below held that article 10 does not confer any wider right to vote than is conferred by A3P1. I agree, essentially for the reasons which they gave (the Lord Ordinary at paras 37 and 40 43 and the First Division at para 25). The European Commission on Human Rights and the Strasbourg Court have repeatedly held in decisions on admissibility that article 10 did not protect the right to vote or other rights already secured by A3P1 as the lex specialis. See, for example, Liberal Party v United Kingdom (1980) 4 EHRR 106, paras 14 16, and the other cases to which the Lord Ordinary referred at para 37 of his opinion. This is consistent with the wording of article 10 and with the approach to construction of the ECHR which considers an individual article in the context of the Convention as a whole. In any event, there is nothing in the Strasbourg jurisprudence to suggest that a claim under article 10, if admitted as in Hirst v United Kingdom, would confer a wider right of political participation by voting or standing for election than that protected by A3P1: Hirst, para 89; Anchugov and Gladkov, paras 113 116; danoka v Latvia (2006) 45 EHRR 478, para 141. The claim under article 10 therefore fails. (iii) European Union law The appellants asserted that the disenfranchisement of convicted prisoners entailed a breach of EU law. The argument ran thus. If voters in Scotland voted for independence, the appellants as Scottish born British citizens would automatically be made citizens of an independent Scotland on the enactment of the Scottish Governments draft Scottish Independence Bill. An independent Scottish Government would have to apply to join the EU. If the application did not succeed, the appellants new Scottish nationality would not carry with it the rights of EU citizenship, including the rights in the Charter of Fundamental Rights of the EU. Because the outcome of the referendum might affect rights conferred and protected by the legal order of the EU, Mr ONeill QC submitted that the legislative conditions for participation in the referendum were amenable to judicial review carried out in the light of EU law. The blanket and comprehensive statutory prohibition from voting was, he submitted, contrary to EU law and thus outside the legislative competence of the Scottish Parliament. I do not think that the prohibition from voting in the independence referendum involves any breach of EU law for the following two reasons. First, it must be borne in mind that a yes vote in the referendum would not itself determine the citizenship of the appellants or other people born in Scotland. The Scottish Government and UK Government would have to negotiate the terms of Scotlands secession from the UK and it is not possible at this time to say whether people may be empowered to elect to retain United Kingdom citizenship. While the Scottish Independence Bill, if enacted as currently drafted, would end the UK citizenship of a Scottish born citizen, that Bill might be amended in the light of the negotiations. It would not have been the independence referendum but legislation that followed those negotiations and also negotiations between the Scottish Government and the governments of European Union Member States which might have given rise to a withdrawal of EU citizenship. The judgment of the Court of Justice of the European Union in Rottmann v Freistaat Bayern [2010] QB 761 may be distinguished on the basis that the Scottish Parliament in enacting the Franchise Act to provide for the franchise of the referendum was not exercising powers in the sphere of nationality in a way which affected the rights conferred or protected by the EU legal order. Secondly, as the Lord Advocate and the Advocate General for Scotland submitted, this court has recently held that EU law does not incorporate any right to vote, such as that recognised in the Strasbourg Courts case law on the ECHR: McGeoch v Lord President of the Council 2014 SC (UKSC) 25, Lord Mance at paras 56 59. The EU law challenge therefore fails. (iv) The International Covenant on Civil and Political Rights (ICCPR) Mr ONeill prayed in aid article 25 of the ICCPR for two purposes. First, he submitted that this Court should use the article as an aid in the interpretation of the scope of A3P1 of the ECHR. Secondly, he argued that the Act was outside the competence of the Scottish Parliament because it was contrary to the UKs obligations in international law contained in that article. Article 25 of the ICCPR provides: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country. Article 2 involves an undertaking to respect the ICCPR rights without distinction of any kind. The United Nations Human Rights Committee, which was established under article 28 of the ICCPR, expressed the view in Gillot v France (Communication No 932/2000) (2002) 10 IHRR 22, that article 25 applied to referendums on self determination in New Caledonia. The French government did not contest that view, which can readily be justified by reference to the combination of paras (a) and (b) of article 25 of the ICCPR. In the General Comment adopted by the Human Rights Committee under article 40, para 4 of the ICCPR, 27 August 1996, the Committee stated (in para 6): Citizens participate directly in the conduct of public affairs when they exercise power as members of legislative bodies or by holding executive office. This right of direct participation is supported by paragraph (b). Citizens also participate directly in the conduct of public affairs when they choose or change their constitution or decide public issues through a referendum or other electoral process conducted in accordance with paragraph (b). The different wording of article 25 of the ICCPR from that of A3P1 of the ECHR explains the different interpretations of the scope of the provisions. Thus in Yevdokimov and Rezanov v Russian Federation (Communication No 1410/2005) the Committee concluded that article 25 of the ICCPR extends to the vote on the election of the Russian President, while in Anchugov and Gladkov the Strasbourg Court, having cited article 25 of the ICCPR, held that A3P1 did not. The decisions on article 25 of the ICCPR do not in my view assist the interpretation of A3P1 of the ECHR. Mr ONeill QCs submission that the Scottish Parliament lacks the competence to legislate in breach of article 25 of the ICCPR fails to allow for the fundamental separation of powers in our constitution. The UK Parliament and the Scottish Parliament make laws; the executive branch of the UK Government makes international treaties; but unless those treaties are incorporated into law, they do not affect domestic rights. In J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, Lord Oliver of Aylmerton stated (p 500B C): [A]s a matter of the constitutional law of the UK, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self executing. There is a clear difference between Convention rights which have been incorporated into the domestic laws of the UK by HRA 1998 and rights arising under the ECHR, which are not part of this countrys law but obligations under international law: In re McKerr [2004] 1 WLR 807, Lord Nicholls at para 25, Lord Hoffmann at paras 62 63; R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, Lord Bridge of Harwich pp 747G 748F. The drafters of the Scotland Act 1998 clearly bore in mind the distinction between international and domestic obligations. Section 126(10) excluded from the expression international obligations the obligations to observe and implement EU law and the Convention rights. The latter obligations, as part of our domestic law, limit the competence of the Scottish Parliament (section 29(2)(d); para 6 above). No such limit is imposed on the Scottish Parliament in relation to the international obligations of the UK, which are not part of our domestic law. Instead, section 35(1) empowers the Secretary of State, who is a minister of the UK Government, to make an order prohibiting the Presiding Officer from submitting a Bill for Royal Assent if it contains provisions which he has reasonable grounds to believe would be incompatible with any international obligations. That provision do[es] not limit the legislative competence of the Scottish Parliament in a way that can be decided upon by a court: Whaley v Lord Advocate 2008 SC (HL) 107, Lord Hope at paras 8 9. The challenge based on international law, and in particular article 25 of the ICCPR, therefore fails. (v) The common law right to vote In essence Mr ONeill QC argued that because we live in a developed liberal parliamentary democracy the common law had developed to recognise as a fundamental or constitutional right a principle of universal and equal suffrage, subject only to proportionate limitations, such as for a minimum age, which must be provided for by law. I have no difficulty in recognising the right to vote as a basic or constitutional right. The House of Lords did so in Watkins v Secretary of State for the Home Department [2006] 2 AC 395. See for example Lord Bingham (para 25) and Lord Rodger (para 61). It is also not in doubt that the judiciary have the constitutional function of adapting and developing the common law through the reasoned application of established common law principles in order to keep it abreast of current social conditions. Nor is it controversial to suggest that judges can take into account rules of international law which are binding on the United Kingdom when interpreting statutes and in developing the common law: R v Lyons [2003] 1 AC 976, Lord Bingham at para 13, Lord Hoffmann paras 27 28; R (Osborn) v Parole Board [2013] 3 WLR 1020, Lord Reed para 62. In McGeoch v Lord President of the Council Lord Sumption (para 121) stated: 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 my view the concluding words are an important limitation. Like the courts below I do not think that the common law has been developed so as to recognise a right of universal and equal suffrage from which any derogation must be provided for by law and must be proportionate. It is important to bear in mind, as the Lord Ordinary did in para 70 of his opinion, the historical development of the right to vote. Parliaments were initially summoned and the franchise created by the Kings writ. In the fifteenth century parliamentary legislation in both Scotland and England and Wales sought to regulate the franchise. In Scotland the Election of Commissioners Act 1681 established the county franchise which survived until 1832. Since then the franchise has been extended by statute. It has thus been our constitutional history that for centuries the right to vote has been derived from statute. The UK Parliament through its legislation has controlled and controls the modalities of the expression of democracy. It is not appropriate for the courts to develop the common law in order to supplement or override the statutory rules which determine our democratic franchise. In In re McKerr [2004] 1 WLR 807, Lord Nicholls of Birkenhead stated (para 30): The courts have always been slow to develop the common law by entering, or re entering, a field regulated by legislation. Rightly so, because otherwise there would inevitably be the prospect of the common law shaping powers and duties and provisions inconsistent with those prescribed by Parliament. R v Lyons [2003] 1 AC 976 is a recent instance where the House rejected a submission having this effect. See also the similar statements of Lord Steyn (para 51) and Lord Hoffmann (para 71). In my view that consideration is apt in relation to the submission that this court should recognise a common law right of universal and equal suffrage and provides a complete answer to the submission. Such a right would contradict sections 2(1)(b) and 3(1) of the 1983 Act. Although the impugned Act is an Act of the Scottish Parliament to which the doctrine of parliamentary sovereignty does not apply, the appellants proposition has to be tested against the provisions of the 1983 Act. So tested, I am satisfied that there is no common law right of universal and equal suffrage which could require the Scottish Parliament to extend the franchise in the Act to encompass convicted prisoners. While the common law cannot extend the franchise beyond that provided by parliamentary legislation, I do not exclude the possibility that in the very unlikely event that a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful. The existence and extent of such a power is a matter of debate, at least in the context of the doctrine of the sovereignty of the United Kingdom Parliament: see AXA General Insurance Co Ltd v Lord Advocate 2012 SC (UKSC) 122, Lord Hope (paras 49 51) and in relation to the Scottish Parliament Lord Reed (paras 153 154). But such a circumstance is very far removed from the present case, and there is no need to express any view on that question. Finally, I derive little assistance from Sauv v Attorney General of Canada [2002] 3 SCR 519, to which Mr ONeill QC referred. In that case the Supreme Court of Canada considered the constitutionality of a statutory disenfranchisement of convicted prisoners serving a sentence of more than two years in the context of sections 3 and 15(1) of the Canadian Charter of Rights and Freedoms. The majority of the court held that the right to vote was fundamental to Canadian democracy and the rule of law (McLachlan CJ at paras 9 and 58) and that the disenfranchisement in the election legislation was unconstitutional. The judgment has to be understood in the context of the Charter of Rights which in section 3 gives every citizen of Canada the right to vote in the election of members of federal and provincial legislatures and in section 15(1) gives every individual equal benefit of the law. Further, in Haig v Canada [1993] 2 SCR 995 the Supreme Court held that section 3 of the Charter of Rights did not extend to a federal referendum on the constitution of Canada: LHeureux Dub J at pp 1030 1033. In my view, the Canadian cases provide no support for the appellants position. I therefore reject the submission that there is a common law right to vote. (vi) The Rule of Law In my view there is no separate argument that the rule of law encompasses a universal right to vote. Nor can the rule of law be a means of subverting the dualist approach of the laws of the UK towards international treaties: paras 29 and 30 above. The Franchise Act has established the franchise for the referendum in accordance with the rule of law. The Scotland Act 1998, in Schedule 5, Part I, para 5A, empowered the Scottish Parliament to enact legislation to hold a referendum on Scottish independence, by excluding such a referendum from reserved matters. This gave the Scottish Parliament Conclusion authority to apply the 1983 Act to the referendum franchise as well as to extend the franchise to young people aged 16 or over. It is for these reasons that the court dismissed the appeal. As the appellants were legally assisted persons and remained in detention, it was agreed that the court should make an order awarding costs against them as assisted persons but modifying their liability to nil. LORD NEUBERGER: (with whom Lady Hale, Lord Clarke, Lord Hodge and Lord Reed agree) I agree with Lord Hodge that this appeal must be dismissed for the reasons which he gives. I add a few words of my own on the issue which divides the Court, namely the applicability of article 3 of the First Protocol to the European Convention on Human Rights (A3P1) to a referendum under the Scottish Independence Referendum (Franchise) Act 2013 (the Referendum). A3P1 is in these terms: 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. Given the issue on this appeal, namely whether the Referendum would be or was unlawful because people in prison who would otherwise be entitled to vote are excluded from the franchise, it is important to note the structure of the article. The first half of the article imposes a duty, which is to hold free elections at reasonable intervals by secret ballot. The second half of the article is directed to what is required of that ballot. The phrase on which the appeal rests, namely which will ensure the free expression of the opinion of the people, thus does not apply to every national ballot: it only applies to a ballot in which the expression of opinion can be said to involve the choice of the legislature. My agreement with Lord Hodge and the courts below that the respondent is right and that A3P1 does not apply to the Referendum is founded on four reasons based on the language of the article. Three of those reasons rely on the natural meaning of the words, and the fourth reason arises from the Strasbourg Courts jurisprudence. It is perhaps worth emphasising that, in my view, the second reason is enough on its own to justify this conclusion, and that may well also be true of the third and fourth reasons. The first reason, which would probably not be enough on its own, is that the word elections is not a word that naturally covers a referendum which does not involve electing anyone to any post. Of course, it might be said (perhaps particularly by a lawyer) that the Referendum required the Scottish people to elect whether to leave the United Kingdom, but that is a pedantic or syntactical point, which avoids addressing the natural meaning of the word election. Save in technical contexts (such as English legal terminology), which plainly do not arise here, an election is a ballot where people choose between more than one candidate. The second reason is based on the expression at reasonable intervals. It is appropriate, indeed necessary, in the present age that every democratic state has a national election to select the members of the national legislature at reasonable intervals. And no one can doubt that A3P1 requires what we in the United Kingdom call general elections to be held at reasonable intervals. However, it would be little short of absurd to suggest that there can be an obligation on a government to have a referendum, particularly one such as the Referendum the subject of this appeal which is concerned with a classic one off issue, at reasonable intervals. There could be no objection under A3P1, for instance, if no further referendum was ever held in relation to Scottish independence. At reasonable intervals cannot mean once. Thirdly the requirement that people are entitled to vote in the choice of the legislature does not naturally suggest a choice as to which legislature governs or does not govern. The definite article before legislature strongly suggests that the legislature to which the article refers is a specific and established entity, and that it is its membership to which the article refers. Indeed, there is no doubt that A3P1 refers to general elections, ie to elections for the membership of the legislature, and it is a little difficult to see how the words the choice of the legislature can do double duty, and refer to such elections and to referenda or other ballots which have a different aim. Fourthly, decisions of the of the Strasbourg Court indicate that A3P1 only applies to directly effective elections ie to elections which ipso facto result in what the people voted for, and not to ballots which require some further legal step to produce that result. Thus, in a general election in the UK, a Member of Parliament is elected as soon as all the votes are cast. Nothing else is needed, apart from the pure machinery of counting the votes and announcing the result. On the other hand, while the main political parties had committed themselves to accept the result of the Referendum, a yes vote would not of itself have triggered independence for Scotland. If there had been a yes vote, Scotland would not have achieved independence unless and until the UK Parliament had voted in favour, and, whatever the main parties had promised, Members of Parliament would have been free, indeed constitutionally bound, to vote as they saw fit. The Strasbourg Court appears to have consistently considered that a referendum which was not automatic, and only advisory, in nature was not within the ambit of A3P1. It can be traced to the Commissions admissibility decision X v United Kingdom (Application No 7096/75), where it was held that A3P1 did not apply to the 1975 UK referendum on whether to leave the EEC (as it then was), because it was of a purely consultative character. That formulation has been impliedly adopted in subsequent decisions of the Commission and the Court, some of which are considered in paras 10 16 of Lord Hodges judgment. The 1975 referendum, which was considered in X v UK, would almost certainly have been regarded as committing the UK to leaving the EU in practice, but it could not have been legally binding any more than the Referendum was or would have been. I agree with Lord Hodge that article 31(1) of the Vienna Convention on the Law of Treaties (quoted in his para 8 above) takes things no further. The travaux prparatoires relating to A3P1 throw no light on the present issue. What they do show is an intention not to require elections for the executive or the judiciary, but that is not germane to the issue on this appeal. I cannot see how the deletion of the words and government after legislature at the end of the draft A3P1 assists the conclusion that the article does not have the meaning preferred by Lord Hodge and the courts below. On the contrary: the retention of those two words would have provided some support for an argument that A3P1 was intended to have a wider meaning than it otherwise would have. There is, I accept, some initial attraction in the argument that, if a provision such as A3P1 is meant to apply to the membership of a legislature, then it ought a fortiori to apply to the logically anterior, and arguably more fundamental, issue of the existence or nature of the legislature itself. However, quite apart from the fact that the article does not apply to such an issue as a matter of language, I do not consider that this argument can in fact withstand scrutiny. The purpose of A3P1 is to ensure that the membership of any national legislature is the subject of elections which must be (i) reasonable in terms of frequency, and (ii) on the basis of universal (or close to universal) suffrage. There is no reason in terms of practice or principle why this should apply to a vote on the form of the legislature. The effect of the article is that, whatever the form of the legislature and, however that form is determined, it must be a legislature whose membership is elected in accordance with A3P1. Thus, the UK Parliament could decide to dissolve itself and to be replaced by a new legislature without a national ballot approving the decision, but election to the membership of the new legislature would have to be effected by a national ballot, as it must comply with A3P1. Taken to its logical conclusion, it appears to me that, because its membership of the EU involves the UK being in some way subject to the European Parliament, the appellants argument would mean that leaving the EU would actually require a national ballot and joining the EU in 1973 without a national ballot must have infringed A3P1. For these reasons, which are little more than a footnote to Lord Hodges reasons, I would reject this appeal, but, as he points out, there is a further ground for doing so. The decisions starting with X v UK and referred to by Lord Hodge in his paras 10 16 above, show that there is a clear and consistent view in Strasbourg that A3P1 does not apply to referenda. It is open to us to go further than the Strasbourg Court in deciding on the ambit of a provision in the Convention, but such an unusual course would require sound justification. I can see no such justification in the present case. LADY HALE: This is a difficult case. I agree with Lord Hodge and Lord Neuberger that, on a literal interpretation, article 3 of the First Protocol (A3P1) does not apply to the Scottish independence referendum. But I also agree with Lord Kerr and Lord Wilson that the evolutive approach to the interpretation of the Convention adopted by the European Court of Human Rights strongly suggests that it might indeed encompass a referendum such as this and that the European Court may well have been hinting just as much in para 33 of its decision in McLean and Cole v United Kingdom (2013) 57 EHRR SE95, quoted by Lord Hodge at para 11. I further agree that, if we are confronted with a question which has not yet arisen in the European Court, we have to work out the answer for ourselves, taking into account, not only the principles which have been developed in Strasbourg, but also the principles of our own law and constitution. However, while it is clear that A3P1 requires the holding of regular parliamentary elections, it is also clear that it does not require the holding of a referendum, even on such an important issue as Scottish independence. Nor would I take it for granted that article 1 of the International Covenant on Civil and Political Rights, quoted by Lord Kerr at para 81, requires there to be such a referendum. This depends upon several difficult questions, not only about the interpretation of article 1, but also about the import of the Treaty of Union between Scotland and England, and how that Treaty might lawfully be brought to an end, issues of the highest constitutional importance upon which we have heard no argument at all. In the end, therefore, I conclude that, as A3P1 does not require there to be such a referendum, then the requirements (which the Strasbourg Court has implied into that article) as to the right of individuals to participate in the elections which it does require do not apply to such a referendum. If this be so, the only source of such a right would be the common law. It would be wonderful if the common law had recognised a right of universal suffrage. But, as Lord Hodge has pointed out, it has never done so. The borough franchise depended upon royal charter. The 40 shilling freehold county franchise appears to have been the creation of Parliament. Every subsequent expansion of the franchise, from the great Reform Act of 1832 onwards, has been the creation of Parliament. It makes no more sense to say that sentenced prisoners have a common law right to vote than it makes to say that women have a common law right to vote, which is clearly absurd. 56. For these reasons, I would dismiss this appeal. LORD KERR: 58. The appellants, Leslie Moohan and Andrew Gillon, challenge the validity of the Act of the Scottish Parliament which authorised the referendum on Scottish independence. The referendum took place on 18 September this year. The appeal was heard by this court as a matter of urgency in July and, as Lord Hodge has explained, the courts decision was announced on the day of the hearing, with reasons to follow. 59. The Act under challenge was the Scottish Independence Referendum (Franchise) Act 2013. The appellants challenge was advanced on a number of grounds. It was claimed that the Act, in indiscriminately preventing convicted prisoners from voting, was incompatible with the European Convention on Human Rights; was in violation of EU law; and constituted a breach of a fundamental common law right to vote. The Convention arguments 60. It is clear from the decisions of both the ECtHR and this court that a blanket ban on prisoner voting in elections is incompatible with article 3 of Protocol 1 (A3P1) to the Convention. It provides: 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. 61. The critical question to be determined on the Convention arguments, therefore, is whether the independence referendum falls within the scope of that article. If it does, the 2013 Act is not law (section 29, Scotland Act 1998), it having been agreed between the parties that it would not be possible for this court to excise the offending provisions and leave the remainder of the Act in place. 62. The appellants also claimed that the refusal to allow them to participate in the referendum constituted a violation of article 10 of the ECHR which guarantees freedom of expression. For the reasons given by Lord Hodge in paras 19 and 20 of his judgment, with which I agree, this claim must fail. Application of the principle expressed in the maxim, lex specialis derogat legi generali, precludes reliance on article 10. This applies in domestic and international law contexts. Where two provisions are capable of governing the same situation, a law dealing with a specific subject matter overrides a law which only governs general matters. A3P1 is specifically concerned with freedom of expression in the choice of legislature. Article 10, dealing with freedom of expression generally, cannot provide rights in relation to voting which are greater than those provided for by A3P1. The correct approach to interpretation of A3P1 63. A3P1 is not to be read as if it were a Westminster or a Holyrood statute. It is an instrument of international law, to be interpreted according to that systems markedly distinct canons of interpretation. These are encapsulated in articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT): see, eg, Genocide (Bosnia and Herzegovina v Serbia and Montenegro) 2007 ICJ Rep 43, 109 110. The following provisions of those articles are particularly relevant to this case: 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 [include] its preamble and annexes 3. There shall be taken into account, together with the context: c. Any relevant rules of international law applicable in the relations between the parties. 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 64. It would be wrong to read article 31 as reflecting something like the so called golden rule of statutory interpretation where one starts with the ordinary meaning of the words and then moves to other considerations only if the ordinary meaning would give rise to absurdity. That is not international law. The International Law Commission made clear in its Commentary to the draft treaty, at p 219, that, in accordance with the established international law which these provisions of VCLT codified, such a sequential mode of interpretation was not contemplated: 65. 66. The Commission, by heading the article General rule of interpretation in the singular and by underlining the connection between paras 1 and 2 and again between para 3 and the two previous paragraphs, intended to indicate that the application of the means of interpretation in the article would be a single combined operation. I should say that, even if a golden rule type of interpretation was considered to be appropriate, I do not consider that this would impel the interpretation for which the respondent and the intervener contend. They argue that A3P1 does not apply to this referendum because the Strasbourg cases have applied it only to elections to a legislature and, at any rate, not to referendums. For reasons that I will give presently, I do not accept that the position is as clear cut as the respondent and the intervener contend. In any event, if A3P1 was designed to apply only to elections to legislatures, it would have been most naturally expressed as reading, The High Contracting Parties undertake to hold free elections to the legislature at reasonable intervals by secret ballot. Instead the core of the obligation is to hold free elections. A corollary of that is that any vote that is held must be held fairly. And that obligation is to be performed under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. This phrasing may, on one view, point to a focus on legislative elections, but it by no means justifies an exclusion of other votes. Why should it? If voting for a representative in a legislature is deemed sufficiently important that it should be guaranteed to all, why would voting for the form of government be deemed less important? If the interpretation of A3P1 is not free from doubt, recourse to the travaux prparatoires is appropriate article 32 VCLT. They suggest that its focus on legislatures is not intended to be a positive restriction of its application only to legislative elections, but rather a right of political participation that did not extend to elections of the executive (elections to the judiciary not having been contemplated to begin with). The background to this is that the United Kingdom had proposed that the text of the article should read: Signatory governments undertake to respect the political liberty of their nationals and, in particular, 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 legislature and government (emphasis added). The delegate of Sweden, a constitutional monarchy, was unable to commit his Government with regard to this proposal. That followed the expression of unease by both Sweden and Norway, another constitutional monarchy, about the definition of the right of the people to choose their government. (Preparatory work on article 3 of Protocol No 1 to the ECHR, p 59). Such hesitation is understandable, as a provision in those terms might have been interpreted as requiring the end of monarchical government in two countries with so long and proud a tradition of it. The reference to choice of government urged by the United Kingdom was accordingly dropped. 67. Approaching the problem with the three powers of government in mind, and with no reason to think beyond that, it was therefore logical for the drafters of Protocol No 1 to express a right that excluded elections to the judiciary and executive as a right in positive terms to participate in legislative elections. But it does not follow that A3P1 ought not to apply to situations which were not in the contemplation of its original drafters. In addition to the imperative to interpret the Convention as a living instrument (see, eg, Tyrer v United Kingdom (1978) 2 EHRR 1), the court has an obligation to interpret A3P1 in light of its object and purpose (VCLT, article 31(1)). The object and purpose of A3P1 must be as contributors to the overall purpose of the Convention as expressed in the preamble. It envisages the guarantee of an effective political democracy as the foundation for all other rights enjoyed by those within its protection. 68. Provided the exclusion of elections to executive and judicial posts from A3P1 is respected, it is difficult to see how that purpose would be other than frustrated by preventing the safeguards applicable to ordinary legislative elections from applying to this most fundamental of votes. The fact, if indeed it be the fact, that the framers of A3P1 did not have referendums in mind does not provide a definitive answer. Of their nature, referendums are held less frequently and more irregularly than elections to legislatures. But a referendum on whether a country should become independent of others with which it has been united for centuries and whether, in consequence, it should have a radically different form of government is surely intimately associated with citizens expression of opinion about the choice of legislature. 69. The majoritys reasoning lays emphasis on the requirement to hold elections at regular intervals but, in my view, this is secondary to the primary aim of the provision which is to ensure that citizens should have a full participative role in the selection of those who will govern them. Given that a referendum as to whether Scotland should become an independent nation would have made a critical difference to the form of government to which the appellants and other citizens in Scotland would be subject, I consider that the right to vote in this particular referendum should be recognised as an undeniable aspect of the appellants A3P1 right. Strasbourgs approach to referendums 70. The ECtHR has so far declined to extend the ECHRs protections to referendums. The question arises, however, whether that exclusion by the Strasbourg Court is categorical. As Lord Hodge has pointed out in para 11 of his judgment, in McLean and Cole v United Kingdom (2013) 57 EHRR SE95, at para 33 the ECtHR, in dismissing the applicants complaint that they had been disenfranchised from the nationwide referendum on the alternative vote, said that there was nothing in the nature of the referendum at issue in that case which warranted a different conclusion from that reached in earlier decisions concerning referendums. Lord Hodge was not disposed to attribute to the words, the referendum at issue in the present case the significance which the appellants seek to attach to them. At para 16 of his judgment he suggested that the statement must be construed against the backdrop that the Strasbourg Court has held that referendums which could have a direct and material effect on the powers and operation of a legislature are not within the ambit of A3P1. But it is noteworthy that in para 32 of the judgment the ECtHR said this: The Convention organs have emphasised on a number of occasions that article 3 of Protocol No 1 is limited to elections concerning the choice of the legislature and does not apply to referendums (see X v United Kingdom (7096/75) 3 October 1975; Bader v Germany (26633/95) 15 May 1996; Castelli v Italy (35790/97 and 38438/97) 14 September 1998; Hilbe v Liechtenstein (31981/96) 9 September 1999; and Borghi v Italy (54767/00) 20 June 2002 (extracts). (emphasis added) 71. The ECtHR appears here to draw a contrast between, on the one hand, elections which concern the selection of legislatures and, on the other, referendums which, in their conventional form, are not usually associated with that type of choice. A distinction can be drawn between referendums which merely have an effect on the powers and operation of a legislature and those which necessarily determine the type of legislature that citizens of a country will have. The latter surely involve the choice of legislature. Deciding whether Scotland should be independent is inextricably bound up with the question of what sort of legislature it will have; whether it will be a sovereign Parliament or one which must act within the range of powers devolved to it. I do not consider that Strasbourg can be said to have set its face against recognising that A3P1 should cover referendums that, in effect, determine the choice of legislature for a countrys people. 72. Another way of approaching the question is to focus on the rationale for, and therefore the proper scope of, the exclusion of referendums from A3 P1. Of the cases cited by the ECtHR in McLean and by the Lord Ordinary in the present case, only the admissibility decision of the Commission in X v United Kingdom (Application No 7096/75, 3 October 1975) contains any reasoning. All of the others either cite X without further discussion, or cite one or more cases which in turn cite X (or a case citing X), likewise without further discussion. It is therefore X that illuminates the reasons why Strasbourg has not subsequently applied A3P1 to referendums, and consequently the scope of such a restriction. The Commission held in that case that the referendum on continued British membership of the European Union fell outside A3P1 for two reasons: [I]t was of a purely consultative character and there was no legal obligation to organise such a referendum. It did not, therefore, fall within the scope of article 3 of Protocol No 1 to the Convention. It follows that a right to participate in the referendum could not be derived from that provision 73. The independence referendum meets both criteria which the Commission considered were absent in X. Both the United Kingdom and Scottish governments had agreed that the result of the referendum would be binding and section 1(1) of the Scottish Independence Referendum Act imposed the legal obligation to organise the referendum. It is strictly unnecessary to go further but it would be wrong not to observe the serious deficiencies in the Commissions reasoning. First, there was a legal obligation to hold the referendum in X: it was imposed by section 1(1) of the Referendum Act 1975. Secondly, and more fundamentally, it cannot be correct that the absence of a legal obligation (in domestic law) to hold a particular vote means that that vote does not fall within A3P1. If that were so, the obligation to hold free elections would have no effect in a totalitarian country whose laws did not require elections at all. That would be absurd. The Commission may have meant that the obligation to hold the vote had to be imposed by international law, but that would simply be begging the question. X, and consequently all subsequent Strasbourg authorities concerning referendums, must therefore be regarded with some caution. Be that as it may, even if one takes X and its progeny as good law, this referendum would fall within A3P1. There is not, in the words of Lord Slynn in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295, para 26, any clear and constant jurisprudence of the ECHR to contrary effect and at least some indications in Strasbourg case law that a vote which involves the selection of a form of legislature as an incident of a referendum would come within the ambit of A3P1. 74. In v Latvia (Application No 14755/03, 26 January 2006) the ban on prisoners voting in the EU accession referendum was said not to breach A3P1 because the obligations imposed by this provision are limited to parliamentary elections and do not apply to referendums. In support of this proposition the court relied on Bader v Austria (Application No 26633/95, Commission decision of 15 May 1996). In that case the Austrian Constitutional Court, had found that there was a fundamental difference between elections and referendums on the basis that in elections the voter had the opportunity to choose between competing political parties whereas in referendums the voter had to give his opinion on an issue which had already been determined by the legislature. The voter did not have to decide on parties and personalities but on the question whether a decision by the legislator should acquire the force of law or not. 75. Apart from that contained in X itself, this is the only articulation of the justification for distinguishing between voting in a referendum and voting for a candidate in an election to a legislature. But the distinction between the form of referendum involved in the Bader case and the present is not difficult to find. Quite apart from the fact that political parties took up markedly different positions on the Scottish referendum and, to that extent, the choice made by the voter reflected his or her predilection for the stance of each, the referendum involved here did not involve the endorsement of a decision already taken by a legislature. On the contrary, it concerned the choice of the mode of government for that country. The philosophical underpinning for A3P1 must surely be that citizens should be entitled to have influence in how they are to be governed. To deny them participation in the stark choice between the two forms of government that the referendum posed must strike at the root of the values which A3P1 are designed to protect. 76. Democracy is the only political model contemplated by the ECHR. The concept of universal entitlement to participate in the political process is the natural concomitant of the underlying premise of all human rights law, as recognised in article 1 of the Universal Declaration of Human Rights, that All human beings are born free and equal in dignity and rights. This spirit informs the Convention and its application. In United Communist Party of Turkey v Turkey (1998) 26 EHRR 121, at para 45 the court said: Democracy is without doubt a fundamental feature of the European public order (see the Loizidou judgment cited above, p 27, 75). That is apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights (see the Klass and Others judgment cited above, p 28, 59). The Preamble goes on to affirm that European countries have a common heritage of political tradition, ideals, freedom and the rule of law. The court has observed that in that common heritage are to be found the underlying values of the Convention (see the Soering v the United Kingdom judgment of 7 July 1989, Series A no 161, p 35, 88); it has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society (see the Kjeldsen, Busk Madsen and Pedersen v Denmark judgment of 7 December 1976, Series A No 23, p 27, 53, and the Soering judgment cited above, p 34, 87). In addition, 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. 77. This is the most extensive analysis by the ECHR of the vital importance of effective political democracy. It demonstrates that democracy and democratic principles are indissolubly linked to the society which the Convention seeks to foster. To find that the choice of government by which one is to be ruled lies outside the sphere of protection that the Convention provides would be remarkable indeed. Self determination 78. Although the material relating to other treaties was deployed in the appellants written case principally in support of an argument that the common law must reflect their terms, Mr ONeill QC submitted on their behalf at the hearing that they were also relevant to the interpretation of A3P1 directly. In particular, the appellants relied on the International Covenant on Civil and Political Rights (ICCPR), the parties to which include all parties to the ECHR. It is therefore, in the terms of article 31(3)(c) VCLT, a relevant rule of international law applicable in the relations between the parties which must be taken into account in interpreting A3P1. 79. Two provisions of the ICCPR are relevant. Article 25 is the rather more expansively phrased counterpart of A3P1: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country. 80. The appellants relied on two decisions of the United Nations Human Rights Committee, Gillot v France (2002) 10 IHRR 22 and Yevdokimov and Rezanov v Russian Federation (21 March 2011, Application No 1410/2005). These make it clear that article 25 ICCPR extends to referendums and to the election of a head of state, respectively. Given my conclusion about the applicability of A3P1 to referendums of the type involved in this appeal, the decision in Gillot would not present a difficulty in the use of article 25 of ICCPR as an aid to the interpretation of A3P1. But in Yevdokimov and Rezanov it was applied to the election of the Russian President. In light of ECtHRs decision in Anchugov and Gladkov v Russia (Application Nos 11157/04 and 15162/05) where it was held that A3P1 did not apply to the election of a head of state, despite having considered the Yevdokimov and Rezanov case, the use of article 25 as a freestanding aid to the interpretation of A3P1 is at least problematical. 81. The same considerations do not apply to article 1 of the ICCPR. It provides: 1. All peoples have the right of self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non Self Governing and Trust Territories, shall promote the realization of the right of self determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. 82. The Scottish people were exercising their right to self determination when they voted in the referendum. They were freely determining their political status. The circumstance that they acquired that right by virtue of the 2013 Act does not detract from that argument. Not only is the right to self determination guaranteed by the ICCPR; it is also a peremptory norm of international law, also known as ius cogens, with which no other rule of international law may conflict: see, eg, International Law Commission, Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law (2006), paras 33 and 41. 83. Given that under the VCLT the ICCPR must be interpreted as a coherent whole, it is clearly arguable that the protections guaranteed by article 25 ICCPR ought to apply to any vote taken in the exercise of the article 1 right to self determination. That is consonant with the conclusion reached above that the corollary of the core obligation in A3P1 is that any election that is held must be held freely ie with every safeguard that has been held necessarily to apply. Thus, although article 25 does not, solely on its own account, provide the irrefutable interpretation of A3P1, taken in combination with article 1 of the ICCPR, it sheds light on how the Convention provision should be applied. I do not consider that its influence on the proper application of A3P1 can be dismissed on the basis that the wording of article 25 differs from that of A3P1 and that different interpretations of the two provisions are therefore acceptable. Conclusion 84. In light of my conclusions on the proper interpretation to be given to A3P1 I would have allowed the appeal. I agree with Lord Hodge, however, in his rejection of the arguments founded on EU law for the reasons that he has given. 85. Since it is unnecessary for me to do so, I would prefer not to express a view on the claim that the appellants enjoyed a common law right to vote beyond agreeing with what Lord Sumption said in McGeoch v Lord President of the Council 2014 SC (UKSC) 25, quoted with approval by Lord Hodge in para 33 of his judgment. 87. 86. The common law can certainly evolve alongside statutory developments without necessarily being entirely eclipsed by the latter. And democracy is a concept which the common law has sought to protect by the incremental development of a system of safeguarding fundamental rights. In this regard, it marches in step with other European states see, for instance, Lautenbach (2013) in European states the protection of human rights, democracy and the rule of law are interwoven and all part of the domestic [and legal] system: The Concept of the Rule of Law and the European Court of Human Rights, p 209. It is therefore at least arguable that exclusion of all prisoners from the right to vote is incompatible with the common law. I must regard it as a moot point whether the observations of Lords Nicholls, Steyn and Hoffmann in In re McKerr [2004] 1 WLR 807 provide a complete answer to the claim that the common law should, in the absence of any Convention right, now recognise a right to vote. I acknowledge, however, the force of the point made by Lord Hodge that, insofar as a claim to a common law right to vote conflicted with sections 2(1)(b) and 3(1) of the Representation of the People Act 1983, it could not succeed. I would wish to hear rather fuller argument than was possible on this appeal on the effect of the interaction between the 1983 Act and the 2013 Act (which is, of course, a measure of the Scottish Parliament) before reaching a final conclusion on this issue. 88. LORD WILSON: Introduction 89. The Lord Advocate acknowledges that the rights under A3P1 of convicted prisoners in Scotland are currently violated by the blanket prohibition, not yet reformed, against their voting in elections to the UK Parliament, to the Scottish Parliament and to the European Parliament. Such was the interpretation given to A3P1 by the Grand Chamber of the European Court of Human Rights (the ECtHR) in Hirst v United Kingdom (No 2) (2005) 42 EHRR 849; and in R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2014] AC 271, this court decided to adopt it: see the judgment of Lord Mance at paras 9 and 34. Such being part of our law, the Lord Advocate nevertheless invited us, at the hearing on 24 July 2014, to hold that the rights under A3PI of convicted prisoners in Scotland were not violated by the blanket prohibition against their voting in the Scottish referendum on 18 September 2014. That seemed to me to suggest so bizarre an anomaly as to demand the closest scrutiny. My conclusion was that it did not withstand it. I agree with the judgment of Lord Kerr. 90. 91. The question in the referendum was whether Scotland should become an independent country. Of all the ramifications raised by that question, perhaps the most important was its effect on the identity of the legislature which would both rule and serve the Scottish people. Those who voted yes voted that the sovereign legislative power of the UK Parliament should no longer extend to Scotland; that instead sovereignty should reside in the people of Scotland; and that, subject to the proposed written constitution for Scotland, the Scottish Parliament should become the sole repository of legislative power in Scotland. I cannot accept the suggestion of Lord Hodge in para 16 above that the effect of secession, like that of accession to the EU, would be no more than to reduce the power of the UK Parliament. Had it been necessary (which it was not) to ask whether voters in the referendum were choosing their legislators as well as their legislature, one might have responded that they were choosing whether all those individuals to be elected in constituencies in England, Wales and Northern Ireland to serve as members of the UK Parliament should have any continuing role as legislators for the people of Scotland. Lord Kerr points out at para 72 above that in the X case the European Commission of Human Rights laid stress on its understanding (right or wrong) that the UKs referendum in 1975 on continued membership of the EEC was of a purely consultative character. On any view the same could not be said of the Scottish referendum. By the Edinburgh Agreement dated 15 October 2012, the UK government and the Scottish government agreed that it should deliver a decisive expression of the views of the people in Scotland. In his Opinion the Lord Ordinary observed that he had no reason to doubt that the outcome of the referendum will in practice and as a matter of agreement be binding. Lord Neubergers hypothesis at para 47 above that a majority of the members of the UK Parliament might nevertheless have refused to enact legislation reflective of a yes vote seems to me, with respect, to be far fetched. Interpretation of A3P1 92. Lord Kerr suggests at para 63 above that A3P1 falls to be interpreted in accordance with article 31 of the Vienna Convention on the Law of Treaties (the Vienna Convention). I agree. In Bankovic v Belgium (2001) 11 BHRC 435, the Grand Chamber of the ECtHR said at para 55: The court recalls that the convention must be interpreted in the light of the rules set out in the Vienna Convention So the search is for the ordinary meaning to be given to the terms of [A3P1] in their context and in the light of its object and purpose. 93. It is in my view significant, as well as unusual, that the objective of A3P1 has been set out as part of its terms. It is to ensure the free expression of the opinion of the people in the choice of the legislature. Those words are dominant: the other words of the article are subservient to them. I consider both that the drafters of the article did not have in mind a secession referendum but that, had they had it in mind, they would have expressly provided that a right to vote in it fell within its ambit. Although neither of those considerations is relevant, what is intriguing is that the drafters alighted upon a phrase choice of the legislature which happens, as I have explained, to be a particularly apt description of the exercise in which Scottish voters were engaged on 18 September. Yes, indirectly and generically, they might also be said to have been choosing their legislators but on any view they were choosing their legislature. Lord Neuberger suggests at para 46 above that the reference in the article to the legislature strongly suggests an established entity. I cannot subscribe to his construction: in my view the reference is to the choice of the legislature which will exercise power over the voters irrespective of whether it is already established. In any event, however, both the UK Parliament and the Scottish Parliament were already established entities. 94. I turn from the dominant words to the subservient words, in which I must confront the reference to elections at reasonable intervals. It is possible that in time to come there will be another secession referendum in Scotland but one cannot say that such referenda might, still less should, take place at reasonable intervals. 95. The general rule of interpretation set by article 31 of the Vienna Convention requires that the terms of the articles in the ECHR should be read in their context and in the light of their object and purpose. This will sometimes precipitate the need to depart from a literal interpretation. Take the case of Pretto v Italy (1983) 6 EHRR 182. It was the practice of the Court of Cassation in Italy to disseminate its judgments solely by depositing them in its registry. Article 6(1) of the ECHR provides that [j]udgment shall be pronounced publicly . The ECtHR accepted at para 28 that the Court of Cassation had not pronounced its judgment publicly. Nevertheless it held that the rights of the disappointed litigant under article 6(1) had not been violated. It said at para 26: The Court therefore does not feel bound to adopt a literal interpretation. It considers that in each case the form of publicity to be given to the judgment must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of article 6(1). 96. I have already explained that the objective behind A3P1 is set out in the dominant words of the article itself. But, at a higher level of generality, what are the object and purpose behind the objective of seeking to ensure the free expression of the opinion of the people in the choice of the legislature? 97. Article 31(2) of the Vienna Convention provides that the context of the terms of a treaty includes its preamble. Short though the preamble to the ECHR is, the government signatories chose in it to reaffirm their belief that the freedoms which were the foundation of justice and peace in the world would best be maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend. Thus it was that in Zdanoka v Latvia (2006) 45 EHRR 478 the Grand Chamber embarked on its assessment of the ambit of A3P1 by observing at para 98 that it was apparent from the preamble to the ECHR that democracy constituted a fundamental element of the European public order. It proceeded at para 103 to reaffirm the words by which, five months earlier in the Hirst case, it had identified the overall object and purpose of A3P1. There it had said at para 58: The Court has had frequent occasion to underline the the importance of democratic principles underlying interpretation and application of the Convention and it would use this occasion to emphasise that the rights guaranteed under article 3 of Protocol No 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law. 98. Indeed in the Hirst case it had proceeded in para 82 to describe A3P1 as a vitally important Convention right. If, as the Grand Chamber has held and as this court has acknowledged (see R (Barclay) v Lord Chancellor and Secretary of State for Justice [2009] UKSC 9, [2010] 1 AC 464, para 53, Lord Collins of Mapesbury), A3P1 is indeed crucial to establishing and maintaining the foundations of an effective democracy, it follows that its effect will be apt to establishing and maintaining them. If the ambit of the article were not to have extended to the referendum about whether Scotland should become an independent country, it would not have been apt to establishing and maintaining the foundations of a democracy in Scotland. The object and purpose of the article therefore drive a conclusion that its ambit did extend to it and, were that conclusion to be overridden by the reference in the article to reasonable intervals, then (for a clich can often be the most telling means of making a point) the tail would be wagging the dog. 99. But the requisite exercise in interpreting A3P1 is not yet complete. For article 31(3)(c) of the Vienna Convention requires account to be taken of any relevant rules of international law. In Neulinger v Switzerland (2010) 28 BHRC 706 the ECtHR observed at para 131 that the ECHR should not be interpreted in a vacuum but, in accordance with article 31(3)(c), should be interpreted in harmony with general principles of international law. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, Lady Hale at para 21 indorsed that observation. In Bayatyan v Armenia (2011) 54 EHRR 467 the ECtHR added at para 102 that account had to be taken not only of the terms of international instruments but also of their interpretation by competent organs. 100. It is therefore no surprise to find that, in cases about the effect of A3P1, the ECtHR has regularly had regard to article 25 of the International Covenant on Civil and Political Rights 1966 (the ICCPR) and to its interpretation by the Human Rights Committee which was established under article 28 of it and which reports on its implementation and determines issues arising under it: see the Hirst case, cited at para 89, paras 26 27; Scoppola v Italy (No 3) (2012) 56 EHRR 663, paras 40 42; and Anchugov and Gladkov v Russia (Applications Nos 11157/04 and 15162/05), 4 July 2013, paras 38 40. In the last of those cases the court proceeded to observe at para 94 that the rights enshrined in A3P1 were the same as those enshrined in article 25 of the ICCPR. In para 28 above Lord Hodge demonstrates, by reference to conflicting determinations about rights to vote in the election of the Russian President, that the ambit of article 25 must be somewhat more extensive than that of A3P1. But it is unsurprising that the determination of the Human Rights Committee in that particular regard shed no light on the meaning of the choice of the legislature in A3P1. By contrast the approach of the committee in Gillot v France, Communication No 932/2000, (2002) 10 1HRR 22, sheds significant light on it. Although it did not uphold the complaint that the rules for qualification to vote in the referenda in New Caledonia about secession from France were such as to violate rights under article 25, France did not even seek to deny, nor did the committee appear to hesitate before accepting, that rules for qualification to vote in referenda about secession had to be consonant with the rights set out in article 25. Determinations of the ECtHR about referenda 101. Since in my view every aspect of the requisite approach to the construction of A3P1 militates in favour of a conclusion that a secession referendum falls within its ambit, I turn to see whether the ECtHR has determined otherwise and, in either event, how this court should then proceed. 102. The Lord Advocate contended that there is a clear and constant line of determinations by the ECtHR that A3P1 does not apply to referenda. This is true. But it is too glib. For the court has never had occasion to consider the application of A3P1 to a secession referendum. No doubt the least dissimilar of its determinations are those which hold that the article does not apply to referenda about accession to the EU. But there remains a substantial difference between a determination whether to curtail some of the powers of the existing legislature by accession to the EU and whether to eliminate every aspect of the role of the existing legislature by creation of a new state. And what about the terms used by the ECtHR in its admissibility decision in the McLean and Cole cases cited by Lord Hodge at para 11 above? One of the complaints, unsurprisingly inadmissible, was of a disentitlement to vote in the UKs referendum in May 2011 on whether to conduct its elections under the alternative vote system. What did the court have in mind in choosing to point out that there was nothing in the nature of the referendum at issue in the present case which would lead it to decline to follow its earlier decisions that A3P1 did not apply to referenda? The answer is not hard to find. The two applicants were convicted prisoners and at least one of them was imprisoned in Scotland. The court gave its decision on 11 June 2013 and less than three months earlier the Scottish government had told the world that the referendum on Scottish independence would take place on 18 September 2014. 103. The majority of the court considers that the case law of the ECtHR is, to use the word favoured by Lord Hodge at para 14 above, unequivocal. I am driven to say that I totally disagree. There is no decision of the ECtHR in point. All one can say is that to determine that A3P1 extended to voting in the Scottish referendum would be to go significantly further than the ECtHR has gone. In Brown v Stott [2003] 1 AC 681, Lord Bingham of Cornhill, borrowing a phrase devised by another judge in another context, described the ECHR at p 703 as a living tree capable of growth and expansion within its natural limits while adding that its limits often called for careful consideration. But three years later Lord Bingham articulated the Ullah principle. Does that principle disable this court from going significantly further than has the ECtHR by determining that A3P1 extended to voting in the Scottish referendum? Retreat from the Ullah principle 104. I offer this timeline. The facts of the decisions to which I refer are irrelevant. (a) 1998: Parliament requires the court to take into account any decision of the ECtHR so far as it is relevant: section 2(1) of the HRA 1998. (b) 2001: Lord Slynn of Hadley observes that in the absence of special circumstances the court should follow any clear and constant jurisprudence of the ECtHR: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 26. He explains that otherwise the case may proceed to that court, which is likely to follow its own jurisprudence. (c) 2004: Lord Bingham articulates what has become known as the Ullah principle, namely that the court must keep pace with evolving Strasbourg jurisprudence no more, but certainly no less: R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20. He cites Lord Slynns observation with approval and (d) explains that it reflects the fact that the ECHR is an international instrument, the correct interpretation of which can be authoritatively expounded only by the ECtHR. Equally however, he might have noted that such parts of the ECHR as are scheduled to the HRA 1998 also represent domestic law, the correct interpretation of which can be authoritatively expounded only by this court, as had been held only three months earlier in In re McKerr [2004] UKHL 12, [2004] 1 WLR 807, para 63, Lord Hoffmann. June 2007: Lord Brown of Eaton under Heywood observes that the final words of the Ullah principle might equally have been no less, but certainly no more: R (Al Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] AC 153, para 106 (with which Baroness Hale agrees, para 90). Lord Brown explains that, were this court to construe a Convention right too widely, the UK could not apply to ECtHR to have it corrected but that, in the obverse situation, the aggrieved individual could apply to have it corrected. In my respectful view, however, the notion that the ECtHR has power to correct a decision of this court is a constitutional aberration. (e) October 2007: Lord Bingham observes that the ECtHR has not been required to determine any case closely comparable with the case before the court, that it is inappropriate to align it with the least dissimilar of the ECtHR cases and that instead the task of the court is to seek to give fair effect to the principles laid down by the ECtHR: Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] AC 385, para 19. (f) 2008: Lord Hope of Craighead, possibly unaware of what Lord Brown has recently said, stresses that the words of the Ullah principle are certainly no less and not certainly no more and that the jurisprudence of the ECtHR is not to be treated as a straitjacket: In re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] AC 173, para 50. (g) 2009: Lord Phillips of Worth Matravers, giving the judgment of the court, holds that it is open to it to decline to follow a decision of the ECtHR if it seems insufficiently to have appreciated aspects of our domestic process: R v Horncastle [2009] UKSC 14, [2010] 2 AC 373, para 11. (h) February 2011: Lord Neuberger, giving the judgment of the court, qualifies Lord Slynns observation by stating that the duty to follow any clear and constant jurisprudence of the ECtHR arises only if its effect is not inconsistent with a fundamental aspect of our law and if its reasoning does not overlook or misunderstand a point of principle: Manchester City Council v Pinnock [2011] UKSC 6, [2011] 2 AC 104, para 48. (j) (i) October 2011: Lord Kerr, in a dissenting judgment, expresses powerful criticism of what he calls Ullah type reticence: Ambrose v Harris [2011] UKSC 43, [2011] 1 WLR 2435, paras 126 130. 2012: Lord Brown suggests that the Ullah principle establishes only that the court should not unwillingly find a violation of Convention rights unless clearly compelled to do so by the law of the ECtHR; that it would be absurd to wait for it to make a decision almost directly in point before finding a violation; and that the court can carry its law a step further if it follows naturally from it: Rabone v Pennine Care NHS Trust [2012] UKSC 2, [2012] 2 AC 72, para 112. (k) 2013: Lord Mance observes that the court could refuse to follow a decision of the Grand Chamber of the ECtHR only in the event of inconsistency with a fundamental principle of our law or of egregious oversight or misunderstanding: the Chester case, cited at para 89 above, para 27. 2013: Lord Sumption points out, that by article 46 of the Convention, the UK has an international obligation to abide by the final judgment of the ECtHR in any case to which it is a party, with the result that it cannot do (l) otherwise save in altogether exceptional cases: the Chester case, cited at para 89 above, para 121. (m) 2014: Lord Neuberger suggests that, where the decisions of the ECtHR are not directly in point, the court should extract and apply the principles which underlie them: Surrey County Council v P [2014] UKSC 19, [2014] AC 896, para 62. (n) 2014: Lord Kerr suggests that the duty of the court under section 6 of HRA 1998 not to act incompatibly with a Convention right requires it to determine whether an alleged right exists even where the jurisprudence of the ECtHR discloses no clear answer: the Surrey County Council case, cited at subpara (m) above, para 86. 105. The effect of the above is that protracted consideration over the last six years has led this court substantially to modify the Ullah principle. The present case does not require further consideration of the current status of Lord Binghams opinion that our courts must certainly [do] no less than to keep pace with the jurisprudence of the ECtHR. For present purposes the relevant part of his opinion was we must do no more, or, as Lord Brown at one time considered, certainly [do] no more, than to keep pace with it. At any rate where there is no directly relevant decision of the ECtHR with which it would be possible (even if appropriate) to keep pace, we can and must do more. We must determine for ourselves the existence or otherwise of an alleged Convention right. And, in doing so, we must take account of all indirectly relevant decisions of the ECtHR and, in particular, of such principles underlying them as might, whether as currently expressed or as subject to the natural development apt to a living instrument, inform our determination. 106. Such is the exercise which I believe that I have performed above and it explains the conclusion which I reached on 24 July 2014 that the rights of convicted prisoners in Scotland under A3P1 had been violated by the blanket prohibition against their voting in the referendum.	Under the Scottish Independence Referendum (Franchise) Act 2013 (the Franchise Act), convicted prisoners were not eligible to vote in the Scottish independence referendum on 18 September 2014 [2]. The Appellants were Scottish prisoners who challenged that exclusion through judicial review proceedings [1]. They relied on previous case law establishing that a general and automatic prohibition that bars prisoners from participating in general elections will violate article 3 of Protocol No 1 (A3P1) of the European Convention on Human Rights (ECHR) [3]. A3P1 is entitled Right to free elections and 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 appellants judicial review applications were refused by Lord Glennie in the Outer House of the Court of Session on 19 December 2013. The First Division of the Inner House of the Court of Session refused a reclaiming motion on 2 July 2014 [4]. The Supreme Court heard and decided the appellants appeal on 24 July 2014, in order that the matter be resolved promptly in advance of the then imminent referendum [1]. This judgment sets out the reasons for that decision. The Supreme Court dismisses the appeal by a majority of five to two. It holds that the statutory disenfranchisement of convicted prisoners from voting in the Scottish referendum was lawful. Lord Hodge gives the substantive judgment of the majority (comprising himself, Lord Neuberger, Lady Hale, Lord Clarke and Lord Reed). In their view, the words of A3P1 on their ordinary meaning refer to an obligation to hold periodic elections to a democratically elected legislature. However, the requirement that such elections take place at reasonable intervals suggests that the drafters did not have referendums in mind [8]. There is unequivocal case law from the European Court of Human Rights (ECtHR) to show that the reach of A3P1 is limited to periodic general elections to the legislature [14]. Four cases are cited as examples of referendums not covered by A3P1: the UKs 1975 referendum on whether to remain in the EEC in X v United Kingdom (Application No 7096/75, 3 October 1975); referendums on accession to the EU by Latvia ( v Latvia (Application No 14755/03, 26 January 2006)) and Poland (Niedwied v Poland (2008) 47 EHRR SE6) [10]; and the UKs nationwide referendum on the alternative vote (McLean & Cole v United Kingdom (2013) 57 EHRR SE95) [11]. Although the Supreme Court is not bound to follow ECtHR authority, it will ordinarily do so when, as here, there is a clear and constant line of decisions delineating the scope of a Convention right [13]. These cases also show that the political importance of a democratic decision is the not the criterion for its inclusion within A3P1 [17]. The appellants advanced several arguments as to why the Franchise Act was unlawful, which are not accepted. Article 10 of the ECHR, protecting freedom of expression, does not confer any wider right to vote than is provided by A3P1 [19]. The prohibition on prisoners voting does not breach EU law because: (i) the outcome of the referendum would not in itself have been determinative of voters EU citizenship [23]; and (ii) EU law does not incorporate any right to vote [24]. The appellants relied on Article 25 of the International Covenant on Civil and Political Rights (ICCPR), which protects the right to participate in referendums on self determination, both as an aid to interpreting A3P1 and as a free standing international law obligation [26]. Neither point succeeded. Article 25 ICCPR is different in wording and scope from and does not inform the interpretation of A3P1 [28]. The ICCPR is not incorporated into UK domestic law and therefore Article 25 does not affect the legislative competence of the Scottish Parliament [30]. The right to vote is a basic or constitutional right [33] but the common law has not developed so as to recognise a right of universal and equal suffrage from which any derogation must be provided for by law and proportionate [34]. Neither is the right to vote inherent in the rule of law on a separate basis from a statutory franchise [38]. Lord Neuberger gives a concurring judgment focussing on the natural meaning of the words of A3P1 [44 46]. Lady Hale gives a concurring judgment expressing her view that A3P1 does not require the holding of a referendum, even on such an important issue as Scottish independence [54] and hence does not have a bearing on the right to vote in such a referendum [55]. Lord Kerr and Lord Wilson dissent from the majority. Lord Kerr, with whom Lord Wilson agrees [90], considers that the natural meaning of the words of A3P1 not only encompasses elections to the legislature but also elections that will determine the form of the legislature [65]. The ECHR is a living instrument and A3P1 may apply to situations which were not in the contemplation of its original drafters [67]. A fundamental purpose of the ECHR is to guarantee an effective political democracy; that purpose would be frustrated by preventing the safeguards applicable to ordinary legislative elections from applying to this most fundamental of votes [68]. The requirement to hold elections at regular intervals is secondary to the primary aim of A3P1 which is to ensure that citizens should have a full participative role in the selection of those who will govern them [69]. The ECtHR case law has not, so far, considered a referendum that will determine the type of legislature that a countrys people will have [71]. Lord Wilson adds that the words ensure the free expression of the opinion of the people in the choice of the legislature are dominant in A3P1 (and particularly apt to describe the Scottish independence referendum) [93] while the words at regular intervals are subservient [94] and must not be interpreted to contrary effect to the object and purpose of the provision [96]. The ECtHR authorities on referendums are not directly on point [103] and it is open to the Supreme Court to go further than the Strasbourg case law in developing a Convention right [105].
This judgment is concerned with a number of points which arise from this Courts decision in Coventry v Lawrence [2014] UKSC 13, [2014] 2 WLR 433. By that decision, we held that the occupiers of a Stadium, David Coventry trading as RDC Promotions, and a Track, Moto Land UK Limited, were liable in nuisance to the appellants, Katherine Lawrence and Raymond Shields, who were the owners and occupiers of a residential bungalow, Fenland, some 850 yards away. The nuisance arose from the use of the Stadium for speedway racing and other motorcar racing, and the use of the Track for motorcycle racing and similar activities. A summary of the factual and procedural history is set out in paras 7 27 of our earlier judgment. The appellants brought their proceedings not only against Mr Coventry and Moto Land (the respondents), but also against their respective landlords, Terence Waters and Anthony Morley and a predecessor landlord (the Landlords). The effect of our decision was to reverse the Court of Appeal and to restore the trial judges order of 4 March 2011, which was based on his finding that the respondents were liable in nuisance but the Landlords were not so liable. By the time of the trial, Fenland was unoccupied owing to a fire, and it remains in its fire damaged state to this day. The order made by the Judge included (i) an injunction against the respondents limiting the levels of noise which could be emitted from the Stadium and the Track to take effect on 1 January 2012 or, if [earlier, when] Fenland is again made fit for occupation, (ii) permission to the parties to apply to vary the terms of this injunction not earlier than 1 October 2011, (iii) awards of damages of some 10,350 against each of the two respondents, (iv) a provision dismissing the claims against the landlords, and (v) a direction that the respondents pay 60% of the appellants costs, to be subject to detailed assessment. Subject to further arguments, the effect of our earlier decision is to restore the orders for an injunction and for damages referred to in items (i) and (iii) above, and also the order for costs recorded in item (v). Four further or consequential issues now arise, and they are as follows. First, in relation to item (i), should the injunction be suspended until Fenland is rebuilt? The second issue, which arises out of item (ii), is when the parties should be able to apply to the judge. The third issue, which is raised by item (iv), is whether the Landlords are also liable to the appellants in nuisance. The fourth issue, which concerns item (v), is whether the order for costs against the respondents infringes article 6 of the European Convention on Human Rights (the Convention). The first two issues are of no general application, the third issue is of some significance, and the fourth issue concerns a matter which is important. The two minor issues On the first minor issue, the respondents contend that the injunction should be suspended until Fenland is rebuilt and fit to be occupied again as a residence, whereas the appellants argue that, as the Judge decided, there should be a specific long stop date, by which the injunction should take effect irrespective of the physical state of Fenland. On the face of it, at any rate, it seems to me that there is no reason why the injunction should start to bite so long as Fenland remains unoccupiable. The purpose of the injunction is to prevent activities at the Stadium and on the Track interfering with the ordinary residential use and enjoyment of Fenland. So long as such use and enjoyment is not possible, it is hard to see what justification there can be for maintaining the injunction: it would cause damage to the respondents with no concomitant benefit to the appellants. There are arguments the other way, but they are unpersuasive. Thus, the Judge imposed a long stop date, but (i) there is no apparent justification for it, and (ii) the date has long passed anyway, so this Court is free to exercise its own discretionary power. It is also said that there is reason to believe that the fire may have been started by one of the many people in the locality who support the continuation of the respondents activities. That is no more than a suspicion, and the Judge was unable to decide whether the fire had occurred accidentally or had been started deliberately. He did find that an earlier attack on Fenland with a forklift truck had been to exact revenge upon [the appellants] for the difficulties their complaints had caused to the activities at the Stadium or at the Track, although there was no proof as to who was responsible. In my view, unless it could be shown that the fact that injunction was still suspended in some way prevented Fenland being restored, I do not see why it should take effect before Fenland is restored. It was also argued that the effect of this decision would be that the respondents could postpone indefinitely the date when the injunction will take effect. However, it is not the respondents, but the appellants, who, by putting off the restoration of Fenland (as they are of course quite entitled to do) can indefinitely postpone the coming into force of the injunction. As the injunction is for the benefit of the residential use and occupation of Fenland, that is scarcely a surprising state of affairs. Turning to the second minor issue, I do not consider that there should be a delay before the parties are able to apply to vary the injunction. The Judge thought that there should a delay, apparently to enable either party to argue that the terms of the injunction were not satisfactory in practice. The appellants contend that, given that this was a matter for the Judge, this Court should adopt the same approach. However, the Judges approach was inherently flawed as, under his order, the injunction would not have come into effect under item (i) above before either party could have made an application under item (ii). Even more importantly, at least one reason which the respondents will very probably have in applying to the court is to argue that the court should discharge the injunction on the ground that damages would be an adequate remedy. As explained in para 149 151 of our earlier judgment, in the light of the state of the authorities before we gave our judgment, this argument was understandably not regarded as having much prospect of success, and therefore was not run by the respondents below. However, it now has a prospect of success, and, as is stated in para 152 of the earlier judgment, it should be considered on its merits if it is indeed raised. There is therefore now a good reason, which did not exist when the Judges order was being considered, for the respondents to be able to apply without having to wait. The first main issue: the liability of the Landlords in nuisance The first main issue concerns the extent to which the Landlords should be held liable for nuisance which is caused by their tenants, the respondents. At trial, the Landlords do not seem to have made much of the argument that they were in a different position from the respondents. It appears that it was the Judge who took the point that the terms of the leases under which the respondents occupied the Stadium and the Track (the Leases) contained covenants against nuisance, and that the law as set out in Clerk & Lindsell on Torts, 20th edition, para 20 81, indicated that landlords are not liable for nuisance created by their tenants, unless the nuisance was close to inevitable as a result of the letting. On that basis, relying primarily on the terms of the Leases, he dismissed the claims against the Landlords. That decision was upheld by the Court of Appeal on the ground that there was no nuisance, and therefore no consideration was given to the question whether the Judges reasons for rejecting the claims against the Landlords were justified. However, now that we have held that the respondents are liable in nuisance, the question which arises is whether the Judge was right in holding that their Landlords were nonetheless not liable. I should perhaps add that the appellants cross appeal on this issue to the Court of Appeal related simply to Terence Waters (Mr Waters) and his son James, although claims had been made unsuccessfully against one other defendant under this head. The law relating to the liability of a landlord for his tenants nuisance is tolerably clear in terms of principle. Lord Millett explained in Southwark London Borough Council v Mills [2001] 1 AC 1, 22A, that, where activities constitute a nuisance, the general principle is that the persons directly responsible for the activities in question are liable; but so too is anyone who authorised them. As he then said, when it comes to the specific issue of landlords liability for their tenants nuisance, [i]t is not enough for them to be aware of the nuisance and take no steps to prevent it. In order to be liable for authorising a nuisance, the landlords must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property. In Smith v Scott [1973] Ch 314, referred to with approval by Lord Hoffmann in Mills at p 15D E, Sir John Pennycuick V C considered at p 321C D the appropriate test to be applied in order to decide whether landlords had authorised a nuisance by letting a property from which the tenant caused the nuisance. He described the authorities [as] not altogether satisfactory, but decided that they suggested that it must be a virtual certainty, or there must be a very high degree of probability, that a letting will result in a nuisance before the landlords can be held liable for the nuisance. As Pickford LJ put it in a case cited with approval by Lord Millett in Mills at p 22A, Malzy v Eichholz [1916] 2 KB 308, 319, [a]uthority to conduct a business is not an authority to conduct it as to create a nuisance, unless the business cannot be conducted without a nuisance, a view shared by Lord Cozens Hardy MR at pp 315 316. When it comes to landlords being liable for their tenants nuisance by participating in the nuisance, as a result of acts or omissions subsequent to the grant of the lease, the law was considered authoritatively in Malzy. Lord Cozens Hardy at p 316 had no hesitation in rejecting as an extraordinary proposition the contention that landlords could be rendered liable by accepting rent and refraining from taking any proceedings against their tenant, once they knew that their tenant was creating a nuisance. As he put it at p 315, by reference to an earlier, unreported case, there must be such circumstances as to found an inference that the landlord actively participated in the [relevant] use of the [property], and he referred a little later to the need for actual participation by [the landlord] or his agents. It was suggested that two decisions of the Court of Appeal, Sampson v Hodson Pressinger [1981] 3 All ER 710 and Chartered Trust Plc v Davies [1997] 2 EGLR 83, demonstrated that the law has developed since Malzy, so that it is now less easy for landlords to escape liability for their tenants nuisance than it was 100 years ago. We were not referred to any social, economic, technological or moral developments over the past century in order to justify a change in the law on this topic; indeed, as already mentioned, Smith (where Sir John Pennycuick relied on 19th century cases) and Malzy (which was decided a century ago) were both cited with approval in the House of Lords less than 15 years ago. Sampson was discussed in Mills at p 16B D by Lord Hoffmann, whose implied doubts about the decision I share. If, which I would leave open, the defendant landlords in Sampson were rightly held liable for nuisance in that case to the plaintiff tenant, it could only have been on the basis that the ordinary residential user of the neighbouring flat which they had let would inevitably have involved a nuisance as a result of the use of that flats balcony. In Chartered, although the nuisance resulted from the tenants use of the property, the actual nuisance was caused by people assembling in the common parts, impeding access to the plaintiffs property. Since the landlords were in possession and control of the common parts, where the nuisance was occurring, the decision may well have been justified on orthodox grounds, although, again, I would not want to be taken as approving (or indeed disapproving) the decision that there was a valid claim against the landlords in nuisance in that case. In the present case, there can be no question of the Landlords being liable to the appellants for the nuisance on the ground that it was an inevitable, or nearly certain, consequence of the letting to respondent tenants of their respective demised premises, the Stadium and the Track. The intended uses of those properties were well known to the Landlords at the time of the lettings and those uses have in fact resulted in nuisance, but that is not enough to render the Landlords liable in nuisance as a result of the letting. It is clear from what the Judge said in his judgment and from the terms of the injunction he granted that those uses could be, and could have been, carried on without causing a nuisance to the appellants. It also appears that, in the past, the use of the Stadium and the Track may well not have given rise to any nuisance. Accordingly, the Landlords cannot be liable in nuisance as a result of having let the Stadium and Track to the respondents. In reaching the same conclusion, the Judge was primarily impressed by the inclusion of covenants against nuisance in the Leases. Unfortunately, as is common ground, he misinterpreted the relevant clause in the Motoland lease. Even if the landlords would have been assisted by a clause prohibiting nuisance, this was not such a clause. On the contrary the prohibition was subject to the tenant being allowed to use the premises for the permitted motor cycle use. This might be taken, if anything, as an indication that the landlords had accepted the risk that the permitted use might cause a nuisance, and deprived themselves of power through the lease to do anything about it. I doubt in any event that such covenants could take matters further either way. If, at the time that the Leases were granted, it was inevitable, or close to inevitable, that the proposed or permitted uses would result in nuisance, then I do not think that the Landlords could have escaped liability by simply taking, or having taken, a covenant against nuisance (even assuming that the covenant, properly construed, would have served to prevent nuisance from the proposed or permitted uses in such circumstances). If, as was held in Malzy, landlords do not become liable for their tenants nuisance simply by failing to enforce a covenant which would put an end to the nuisance, it must follow that, if landlords would otherwise be liable for their tenants nuisance, they should not escape liability simply by including such a covenant in the lease. Conversely, in a case such as the present where the proposed uses would not necessarily result in nuisance, I do not consider that the Landlords position would have been weaker if the Leases had contained no covenant against nuisance. As Lord Cozens Hardy MR put it in Malzy at p 319 it is wrong to render [the landlord] a sort of trustee of [such a] covenant for the benefit of [a neighbour]. Accordingly, if the claim in nuisance against the Landlords is to succeed, it must be based on their active or direct participation to use the adjectives employed by Lord Cozens Hardy in Malzy and by Lord Millett in Mills. The judge appears to have ignored this alternative. Although he referred to the allegations of orchestration by Terence Waters, he regarded them as potentially relevant only to a separate claim of harassment, which had not been pleaded. Accordingly he made no, or limited, findings on this issue. That failure is attributable to the fact that the Landlords did not raise at trial the argument that they should not be liable for nuisance if the respondents were so liable, and, as mentioned above, it was the Judge who raised the point, and he went on to decide it on the misconceived basis described in para 16 above. In this Court, the appellants expressly disclaimed the right to contend that it was not open to the Landlords to rely on the argument that they had not authorised or participated in the nuisance despite not having taken the point properly at first instance. While I appreciate the concern shared by Lord Mance and Lord Carnwath in finding for the Landlords in these circumstances, I consider that we have to do our best to arrive at the right result in the light of the evidence and the findings which the Judge made. This creates a difficulty for this court. Although there is little authority on the issue, the question whether a landlord has directly participated in a nuisance must be largely one of fact for the trial judge, rather than law. The difficulty is compounded by the lack of pleadings on the point, attributable no doubt to the late stage at which it emerged. In other circumstances it might be appropriate to remit the matter for further findings on this issue. However, this was not sought by any of the parties, for understandable reasons, given the exorbitant expenditure of time and money already incurred. Accordingly we must do our best on the available material to decide whether the Landlords directly participated in the respondents nuisance creating activities. It is clear in my view that the issue whether a landlord directly participated in his tenants nuisance must turn principally on what happened subsequent to the grant of the Leases, although that may take colour from the nature and circumstances of the grant and what preceded it. In this case, Lord Carnwath considers that it is significant that (i) Mr Waters (and his son James) had been using the Stadium before the grant of the lease of it in 2005 and had tried to revive its commercial use in 2008, and (ii) Mr Waters initially developed the Track and used it from 1992 until the grant of the lease. I consider that information is of very marginal relevance to the question whether they directly or actively participated in the nuisance while the Stadium was let. At the most it may fairly be said to render it a little more probable that they participated, but in my view that is as far as it is likely to go in this case. In this case, the appellants rely on a number of factors to establish their case that Mr Waters participated in the nuisance. In particular, they rely on the fact that Mr Waters (i) did nothing as landlord to try to persuade his tenant to reduce the noise, (ii) erected a hay bale wall around Fenland to discourage complaints and to keep down the noise, (iii) co ordinated all dealings with the local authority on noise issues, leading for the respondents in discussions, (iv) appealed against the noise abatement notice served by the local authority in respect of the noise emanating from the Stadium and the Track, and (v) co ordinated the response to the appellants complaints about the noise, and often responded himself. I shall concentrate on the case against Mr Waters, as, if it fails, the case against his son James must fail, as the grounds for holding him liable are weaker. As to point (i), the fact that a landlord does nothing to stop or discourage a tenant from causing a nuisance cannot amount to participating in the nuisance (to use the expression employed by Lord Millett and Lord Cozens Hardy). As a matter of principle, even if a person has the power to prevent the nuisance, inaction or failure to act cannot, on its own, amount to authorising the nuisance. As already discussed, that is strongly supported by the reasoning in Malzy. I also consider point (ii) to be of very limited force. Absent very unusual circumstances, the fact that a landlord takes steps to mitigate a nuisance can scarcely give rise to the inference that he has authorised it. It is somewhat ironic that the appellants argue that Mr Waters should be liable for the nuisance because he did not take steps to prevent it, and then argue that the fact that he took steps to reduce the nuisance supports the contention that he is liable for it. Constructing the wall on land adjacent to Fenland could, it is fair to say, be regarded as a somewhat aggressive act. Indeed, the Judge said that he should have been inclined to regard [it] as an aggravating feature to be reflected in an award of damages, had [Mr Waters] been found to be liable in nuisance, but, as he immediately went on to observe, that does not mean that Mr Waters thereby participated in the nuisance. Points (iii), (iv) and (v), which are all based on Mr Waters leading part in fighting off the risk of nuisance abatement by the local authority and claims in common law, have somewhat more force, but, even taken together, they do not persuade me that Mr Waters participated in the nuisance. Any landlord, whose premises were being lawfully used for motor car and motorbike racing, would naturally wish to avoid, or else to minimise, any restriction on the emission of noise from the premises, whether by the local authority or by the court. Any such restriction would be very likely adversely to affect the value of his reversionary interest, as it would risk curtailing the racing activities on the premises, and therefore the commercial attraction of the premises, which in turn could be expected to depreciate the capital and rental values of the premises. On that ground alone, I find it hard to accept that, by trying to fight off allegations of nuisance against his tenants, a landlord can be said to be participating or authorising the nuisance. So far as point (iii) is concerned, a noise abatement notice was served by the local authority in December 2007, and it included a requirement for certain attenuation works, which were eventually carried out in January 2009. It is clear that, particularly during 2007, Mr Waters spoke against the service of an abatement notice and any further steps to curtail the activities at the Stadium and Track, at a number of meetings between the owners and operators of the Stadium and the Track and representatives of the local authority, and that in 2008 he made further representations about the need for any noise attenuation works. However, it has to be borne in mind that he was a local councillor and therefore had a legitimate interest in that capacity so far as the activities at the Stadium and the Track were concerned. Those activities commanded quite a lot of local support, as well as local opposition, and the fact that he spoke in support of them at such meetings is of less assistance to the appellants case than if he had not been a councillor. Nonetheless, while Mr Waters position as a councillor can fairly justify much of his involvement, I find it hard to accept that it can explain everything that he said at such meetings in support of the local authority taking no steps to curtail the activities at the Stadium or Track. In my view, however, the fact that a landlord seeks to persuade a local authority not to take action in relation to alleged noise or other nuisance emanating from his tenants activities does not involve his authorising or participating in the nuisance caused by those activities. It is worth recalling that the notion of authorising or participating in a nuisance is not limited to landlords: as Lord Millett pointed out in Mills, the notion of authorising and participating in a nuisance is a general principle of tortious liability Any person with an interest in the activities continuing, such as a local inhabitant, a participant, a spectator, or a person with an economic interest (eg someone employed at the Stadium or Track, with a car or bike manufacturing or repair business, or with a betting operation), might seek to persuade the local authority against taking action aimed at curtailing the activities. Such a person would not thereby be authorising or participating in the nuisance, so as to become liable for it. It would therefore be illogical if a landlord could be held liable because he takes such a course because of his economic interests. The fact that he joins with his tenant, even taking the lead, in making representations to the local authority cannot of itself undermine this analysis. The most it can do is to reinforce other factors which support the contention that he has authorised or participated in the nuisance. The fact that Mr Waters was a party to the appeal against the abatement notice when it was served in December 2007, point (iv), is not a powerful point. If he had been served with the notice, he was perfectly entitled to appeal against it. Even if he was not bound to appeal against it, indeed even if he was not served with it, a landlord may well wish to ensure that his reversionary interest in the property concerned is not damaged by such a notice. Point (v), that Mr Waters was primarily responsible for replying to the complaints made by the appellants solicitors in 2007 and 2009, is again explicable by reference to his interest as landlord in not having the use of the premises impeded. Further, given that he had much of the relevant information available to him as a councillor, and as a result of his discussions with the local authority, it is unsurprising that the detailed responses came from him. In any event, it appears that he was unaware that, as landlord, he was unlikely to be held liable for common law nuisance in any event, a point I return to in para 31 below. On behalf of the Landlords, Mr Denehan and Ms McGowan (neither of whom appeared at first instance) said that, during the time that nuisance is alleged by the appellants, the Landlords had no involvement in the activities carried on at the Stadium and the Track, they were not in possession of the Stadium or the Track, they enjoyed no share of the profits made from the activities at the Stadium and the Track, and their actions cannot be said to have been causative of the nuisance in any way. Those points are well founded, save that by playing a substantial part in seeking to fight off the local authoritys noise concerns, Mr Waters may well have indirectly caused a degree of nuisance, as he may have delayed service of the noise abatement notice, and he may have caused the noise levels to have been at a higher level than they would otherwise have been. But that is quite insufficient to amount to authorising or participating in the nuisance. For the reasons which I have given, none of the five points relied on by the appellants make good the contention that Mr Waters authorised or participated in the nuisance. While I agree with Lord Carnwath that they show that Mr Waters went further than most landlords would have done, I do not consider that, as a matter of ordinary language, any of the grounds relied on can be said to involve Mr Waters actively or directly participating in the respondents nuisance. I acknowledge that it is, at least in principle, possible that five points which, when taken separately cannot justify a certain conclusion, could, when taken together, justify that conclusion. Nonetheless, in relation to the five points relied on in this case, the reasons why each is not strong enough to enable the appellants to fix liability on Mr Waters are such that I do not see how they could fix such liability between them. Before turning to the final issue, it is right to say that, although I would uphold the dismissal of the appellants claim against the Landlords, my current view is that there should be no order for costs as between the appellants and the Landlords. The legal basis on which the Landlords have succeeded in this Court is not merely different from that on which they succeeded before the Judge: it is a basis which was not pleaded or developed in argument before the Judge. While the appellants expressly disclaimed any objection to the Landlords resting their case on this basis in this Court, it seems to me, at least at the moment, that the right course to take on costs as between the appellants and the Landlords is to let them lie where they fall. At one extreme, the Landlords could say that they should have their costs because they have fought off the appellants claim against them. At the other extreme, the appellants could say that they should have all their costs until the Landlords formally raised the point on which they have succeeded. Further, this could be said to be one of those unusual cases where the successful party brought the proceedings on himself (in the form of unusually confrontational behaviour for instance as mentioned in para 19 above). The second main issue: the level of costs The final issue arises out of the Judges order for costs, namely that the respondents should pay 60% of the appellants costs. The appellants costs at first instance consisted of three components, as permitted by the Courts and Legal Services Act 1990 as amended by sections 27 31 in Part II of the Access to Justice Act 1999. The first was the base costs, ie what their lawyers charged on the traditional basis, which was, in crude terms, calculated on an hourly rate and the costs of disbursements. The second component was the success fee (or uplift) to which the lawyers were entitled, because they were providing their services on a conditional fee (or no win no fee) basis. The third component was the so called ATE premium, a sum which is payable to an insurer who agreed to underwrite the appellants potential liability to the respondents for their costs if the respondents had won. The appellants base costs amounted to 398,000; the success fee, which (we will assume) was at the maximum permitted level of 100%, amounted to 319,000 odd (as the uplift does not apply to every item of costs), and the ATE premium was apparently about 350,000. Accordingly, if the respondents had been liable for the whole of the appellants costs up to the date the Judge made the order, they would have had to pay the appellants around 1,067,000. As it is they are liable for over 640,000. These figures are very disturbing. They give rise to grave concern even if one ignores the success fee and ATE premium. The fact that it can cost two citizens 400,000 in legal fees and disbursements to establish and enforce their right to live in peace in their home is on any view highly regrettable. The point is reinforced when one takes into account the value of their home, which is less than 300,000 (coupled with the effect of the nuisance on that value, 74,000 at the most) and the fact that there will have been very significant further base costs incurred as a result of four day appeals in the Court of Appeal and this Court. The point can equally forcefully be made from the point of view of the respondents. As relatively small business operators, they are not only having to fund their own costs, which presumably would be of the same order, but in addition they are going to have to pay some 240,000 towards the appellants costs. It is true that the respondents lost, but they were seeking to defend their businesses and they plainly had a reasonable case, as is evidenced by the fact that they won in the Court of Appeal. One of the main, and laudable, aims of the proposals made by Lord Woolf in his report Access to Justice (1996), which led to the enactment of the Civil Procedure Act 1997, and the introduction of the Civil Procedure Rules the following year, was to try and achieve a better relationship between the costs and benefits of litigation. As the figures in this case show, and as is reflected in many other cases, that target has not merely proved elusive, but it is often missed by a very wide margin indeed. It is, of course, easy to criticise, and, having been Master of the Rolls until 2013, I am as aware as anyone how hard it is to ensure that a case, particularly one that does not involve a very large sum of money but is potentially complex in terms of fact, law and expertise, such as the present case, is both properly and proportionately litigated. It is also right to acknowledge that the reforms proposed by Sir Rupert Jackson in 2010, which do not apply to this case, have been largely introduced and are being absorbed. Nonetheless, even without the effect of Part II of the 1999 Act, to which I must shortly turn, it would be wrong for this Court not to express its grave concern about the base costs in this case, and express the hope that those responsible for civil justice in England and Wales are considering what further steps can be taken to ensure better access to justice. It is only fair to emphasise that this concern relates to the current system and that it is not intended to imply any criticism of the lawyers in this case. The amount of the base costs in this case is however dwarfed by the total potentially recoverable costs, which are nearly three times as much. The figures illustrate the malign influence of the amendments made to the 1990 Act by Part II of the 1999 Act, and as implemented through CPR rule 44 and CPR44 PD now fortunately repealed and replaced by the provisions of Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, following Sir Rupert Jacksons Review of Civil Litigation Costs (2010), referred to above. As Sir Rupert pointed out in his Review, and as is explained in Zuckerman on Civil Procedure Principles and Practice (3rd ed 2013), the system introduced in 1999 had a number of unique and regrettable features, four of which are worth mentioning for present purposes. First, claimants had no interest whatever in the level of base costs, success fee or ATE premium which they agreed with their lawyers, as, if they lost they had to pay nothing, and if they won the costs would all be paid by the defendants, who, on the other hand, had no say about the costs (other than retrospectively on an assessment). Secondly, in many cases, unsuccessful defendants found themselves paying, in addition to the whole of their own costs, three times the claimants real costs. Thirdly, while proportionality had a part to play when assessing the recoverability of base costs (albeit a limited part see Home Office v Lownds [2002] 1 WLR 2450), it was excluded from consideration in relation to the recovery of success fee or ATE premium (which were simply required to be reasonable) see CPR44 PD, paras 11.7 11.10. Fourthly, the stronger the defendants case, the greater their liability for costs would be if they lost, as the size of the success fee and the ATE premium should have reflected the claimants prospects of success. Even accepting that they have no complaint about their liability for 60% of the appellants base costs, the respondents are understandably aggrieved by the consequences of the Judges order that they pay 60% of the appellants costs, because it means that they have to pay (i) 60% of the 100% success fee, and (ii) 60% of the ATE premium. Mr McCracken QC contends on their behalf that this is a grievance which can be accorded legal recognition through article 6 of the European Convention on Human Rights and/or article 1 of the First Protocol to the Convention (A1P1). His argument is that, by virtue of section 6 of the Human Rights Act 1998 the court, as a public body, must exercise its discretion when awarding costs in accordance with the Convention, save where otherwise required by primary legislation (such as the 1990 and 1999 Acts), and that secondary legislation (such as the CPR and Practice Directions) must be disapplied where it requires otherwise. Relying on the judgments of the Strasbourg Court in MGN Limited v United Kingdom (2011) 53 EHRR 5 and Dombo Beheer BV v Netherlands (1994) 18 EHRR 213, he contends that article 6 would be infringed if the court required the respondents to pay 60% of the success fee and the ATE premium. As to A1P1, he relies on the reasoning of the Strasbourg court in James v United Kingdom (1986) 8 EHRR 123. In MGN v UK at para 217, the Strasbourg Court said that the depth and nature of the flaws in the system introduced by the 1999 Act and the provisions of the CPR referred to above were such that the Court can conclude that [it] exceeded even the broad margin of appreciation to be accorded to the State in respect of general measures pursuing social and economic interests. That provides some support for the respondents case. However, the observation and the decision itself were made in connection with an alleged infringement of article 10, where the claimant was rich enough not to need to take advantage of a conditional fee agreement. In the present case, by contrast, article 10 does not apply and it is apparent that the appellants needed the protection of a conditional fee agreement and recoverable ATE premium in order to be able to bring their claim. Dombo Beheer was a case concerned with article 6, and the Strasbourg court said that it was clear that the requirement of equality of arms, in the sense of a fair balance between the parties applies in principle to cases concerning civil rights and obligations. However, it is by no means clear that that general observation would necessarily support the respondents argument. In James v UK at para 50, the Strasbourg court said that, when someone is deprived of property, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised, and that a fair balance . must be struck between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights. I am unconvinced that this takes matters any further than the argument based on article 6. In Callery v Gray [2002] 1 WLR 2000, the House of Lords effectively confirmed that, subject to reasonableness, success fees and ATE premiums were recoverable, and in Campbell v MGN Ltd (No 2) [2005] 1 WLR 3394, the House of Lords held that the 1999 Act costs recovery regime did not infringe article 10. However, as I have mentioned, the Strasbourg court took a different view in the latter case. In those circumstances, it must, in my view, follow that the issue of whether the 1999 Act costs regime, and in particular a claimants right to recover any success fee and ATE premium from an unsuccessful defendant, infringes the Convention, is one which it is open to this Court to reconsider. In the light of the facts of this case and the Strasbourg court judgments relied on by Mr McCracken, it may be that the respondents are right in their contention that their liability for costs under the 1990 Act, as amended by Part II of the 1999 Act, and in accordance with the CPR, would be inconsistent with their Convention rights. However, it would be wrong for this Court to decide the point without the Government having had the opportunity to address the Court on the issue. This concern is based on the proposition that a declaration of incompatibility ought not be made by a court without the Government having the opportunity of addressing the court. It appears to me that there is a substantial argument to the effect that it is not merely secondary legislation, namely CPR 44 and CPR44 PD, but also Part II of the 1999 Act, which had the effect of requiring defendants who have been ordered to pay a claimants costs to pay the uplift and ATE premium in full, subject to the uplift and premium having been reasonable, but irrespective of proportionality. Section 58A(6) of the 1990 Act (added by section 27 of the 1999 Act) provides that an order for costs may, subject to rules of court, include provision requiring the payment of any fees payable under a conditional fee agreement which provides for a success fee, and section 29 of the 1999 Act has a similar provision in relation to an ATE premium. It is true that these provisions are not on their face mandatory, but it seems to me to be arguable that the costs charging and recovery system introduced by Part II of the 1999 Act simply would not work unless a claimants success fee and ATE premium were recoverable in full, irrespective of proportionality, from a defendant who had been ordered to pay the claimants costs. Accordingly, if the respondents argument based on article 6 or A1P1 is correct, it may well be that the proper outcome would not be to disregard paras 11.7 11.10 of CPR44 PD, but to grant a declaration of incompatibility, although that would be questionable as the relevant provisions of the 1990 and 1999 Acts have been repealed and replaced by a far less unsatisfactory system in Part 2 of the 2012 Act. Nonetheless, the system enacted in the 1999 Act remains in force in relation to litigation brought pursuant to conditional fee agreements made before April 2013 (see Simmonds v Castle (Practice Note) [2013] 1 WLR 1239). Quite apart from that, a determination by a United Kingdom court that the provisions of the 1999 Act infringed article 6 could have very serious consequences for the Government. Although the Strasbourg court would not be bound by the determination, it would, I suspect, be likely to agree or accept that conclusion, so that those litigants who had been victims of those provisions could well have a claim for compensation against the government for infringement of their article 6 rights. However, it would be inappropriate to go further into the contention that article 6 or A1P1 is infringed by the order for costs made against the respondents in this case. It seems to me that, if the respondents wish to maintain that contention, as they are plainly entitled to do, the present appeal should be re listed for hearing before us, after appropriate notice has been given to the Attorney General and the Secretary of State for Justice. In relation to that hearing, it is only right to flag up the point that, as Lord Bingham and Lord Hoffmann emphasised in Callery at paras 8 and 17 respectively, it is the Court of Appeal which has the primary supervisory and judicial policy making functions in connection with case management, procedural and costs issues in the courts of England and Wales; and members of the Court of Appeal have far greater experience than the members of this Court on matters concerning costs. It may therefore be inappropriate for us to decide the point raised by the respondents without the benefit of the Court of Appeals consideration of, and views on, the issue, particularly as there may be an argument that, although the outcome of the costs system produces an unattractive result in the present case, its compatibility has to be assessed by reference to the generality of cases, so that a few unfortunate results are inevitable. Further, as any claim based on the Convention is fact sensitive, and because the issue here concerns first instance costs, it may be inappropriate for an appellate court to decide the issue without having the views of the trial Judge. Accordingly, quite how far this Court should go at this subsequent hearing will have to be considered at the time. At one extreme, it may be right simply to decide that all the various points are arguable but should be remitted to the Court of Appeal or a first instance judge. At the other extreme, if we thought it appropriate to do so (particularly if all parties were agreed on that course) we could determine all the issues. And there are clearly a number of intermediate possibilities. Once the interveners are identified, it would be appropriate to consider how the matter is to proceed either at a short hearing or by way of written submissions. I would expect all those involved (including the Attorney General and the Secretary of State for Justice, and any other intervener sanctioned by the Court) to try and seek an agreed procedure, and then to contact the Court Registrar in writing explaining what had been agreed and what had not been agreed, so far as the identification of the issues and proposed procedure was concerned. We could then consider that written material, and give appropriate directions. I have, somewhat unusually, dealt with questions of future procedure in this judgment, because I am very concerned indeed about the possibility of a further escalation in the already exorbitant costs in this case. If I was satisfied that there was any satisfactory way of proceeding without incurring the parties in further costs, I would eagerly grasp it, but, sadly, I cannot see any such course. However, it is also right to record that it was suggested in argument that, even if the respondents article 6 or A1P1 rights were infringed by the present costs order, we could do nothing about it, as we would be interfering with the A1P1 rights of the appellants solicitors and counsel. On the basis of the arguments we have heard so far, we are inclined to dismiss that argument, but it may have some prospect of success in so far as it is based on reliance by those solicitors and counsel on the House of Lords decision in Campbell v MGN. Accordingly, it is an argument which the appellants are free to deploy if they are so advised. It remains to deal with the respondents argument that their liability for costs under the 1999 Act costs recovery regime would infringe article 9 of the Aarhus Convention. Articles 9.3 and 9.4 of that Convention require members of the public to enjoy appropriate access to administrative or judicial procedures and adequate and effective remedies, which involves them not being prohibitively expensive. However, those articles are concerned with those who wish to challenge acts and omissions which contravene provisions of [the] national law which relate to the environment. That may well apply to a claimant seeking to prevent a common law nuisance by noise, but I do not see how it can extend to a defendant who is being sued for causing a nuisance by noise. Conclusion Accordingly, I conclude that: a) The injunction against nuisance by noise imposed by the Judge against the respondents should be suspended until Fenland is fit to be occupied residentially, subject to the next point; b) The appellants and the respondents should each have liberty to apply at any time to vary or discharge the injunction, albeit on notice (save in case of urgency); c) The respondents claim in nuisance against the Landlords is dismissed, but, albeit that this is a preliminary view, the Landlords should recover no costs; d) Consideration of the respondents contention that the Judges order that the respondents liability for costs extends to the success fee and the ATE insurance premium infringes their rights under article 6 of the Convention is adjourned for further hearing after notice being given to the Attorney General and the Secretary of State for Justice, following which the parties (including any authorised interveners) must seek to agree issues and proposed procedure, and the Court will then give directions. LORD CARNWATH This judgment is directed principally to the first main issue identified by Lord Neuberger: the liability of the landlords in nuisance. I shall comment briefly at the end on the costs issue. On all other matters covered by Lord Neubergers judgment, I agree with him and have nothing to add. The authorities Like Lord Neuberger (para 11) I would start from Lord Milletts summary of the law in Southwark London Borough Council v Mills [2001] 1 AC 1, 22A, in particular that in order to be liable for authorising a nuisance, the landlords must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property (emphasis added). In view of the limited discussion or findings of fact on this issue in the lower courts, this is not a suitable case for a detailed examination of the law. However, some brief comments on both alternatives may be helpful for future reference. It is convenient to deal first with the second. Authorising by letting head, and the test which he extracts. One additional authority which might have assisted the judge, because of its helpful review of the authorities in a similar factual context, is Tetley v Chitty [1986] 1 All ER 663. A local council had granted planning permission to a go kart club to develop a go kart track on land owned by the authority, and had granted the club a seven year lease to use it for that express purpose. The council were held liable in nuisance for noise arising from the use of the track. It was common ground that they would not be relieved of potential liability by clauses in the lease obliging the club not to commit a nuisance. Having reviewed the authorities cited to him (which did not apparently include Malzy v Eichholz), the judge (McNeill J) accepted that it was not necessary to show that the nuisance was a necessary consequence of the use. He had mentioned among other authorities Smith v Scott [1973] Ch 314 (to which Lord Neuberger has referred), where the phrases virtual certainty or a very high degree of probability had been used. Possible alternative tests, on which he found it unnecessary to express a concluded view, were whether the use was likely to cause a nuisance, or was the foreseeable result of the decision to permit the use for go karting. It was enough that, on the facts of this case, the nuisance was an ordinary and necessary consequence or a natural and necessary consequence of the use (expressions used in two of the older cases), and that there was accordingly express or implied consent to do that which on the facts here inevitably would amount to a nuisance (pp 670 671). I agree generally with Lord Neubergers analysis of the authorities under this Reference might also have been made to authorities from other common law jurisdictions which have adopted the same principles. A close parallel on the facts is the judgment of the Ontario Supreme Court in Banfai v Formula Fun Centre Inc [1984] OJ No 3444, 34 CCLT 171(HCJ). The court held that the owner, Hydro, was on the facts liable for nuisance caused by car race course run by its tenant because it arose from use in the way intended when the lease was granted. OLeary J, adopting the approach of the English authorities as to the landlord exception (including Smith v Scott), said: Hydro not only knew that Formula intended to use the land for an amusement ride, it knew and approved of the layout of the track. It knew the size, power and make of the cars to be raced thereon and the hours of the day the track would be in operation. the nuisance resulted from Formula operating the track, that is to say, using the land exactly as Hydro knew it intended to use it. By entering into the lease, Hydro authorized Formula to use the land in the manner that caused a nuisance. It follows that the nuisance was the natural and necessary result of what the landlord authorized the tenant to do (paras 44 48) It is of interest that the landlord was held liable even though there seems to have been no finding that it knew or should have known that a nuisance was likely to result from the permitted activity. It was enough that he was aware of the relevant aspects of the intended activity, from which, as found by the court, nuisance had resulted. I agree, however, with Lord Neuberger that, on the limited findings of fact made by the judge in this case, it is not possible to hold the landlords liable on the ground that nuisance was a necessary or highly probable consequence of the lettings. The less stringent tests suggested by the judge in Tetley v Chitty (likely, foreseeable) do not seem to be supported by earlier or later authority. I would reject them as insufficiently rigorous for a case where the sole basis for attributing responsibility to the landlord lies in the terms and circumstances of the grant of the lease. Participation I agree accordingly with Lord Neuberger that the case for the landlords liability stands or falls on the issue of participation, in the sense used in Malzy v Eichholz. In Malzy itself, the landlord was held not liable for nuisance caused by the activities of his tenant, because the evidence showed no more than that, with knowledge of the offending use, he had continued to accept rent and had not taken any steps under the lease to bring it to an end. As Lord Cozens Hardy MR explained (following Lord Collins MR in an unreported case): There must be something much more than that. There must be something which can fairly amount to his doing the act complained of or allowing the act complained of, either by actual participation by himself or his agents or by what Lord Collins called active participation in that which was complained of. (p 315) Unfortunately, very little help is to be gained from the English authorities as to the practical application of this test, in circumstances where the landlords involvement in his tenants activities goes beyond mere receipt of rent and failure to intervene, as in that case. Again some help might have been gained from other common law jurisdictions. A similar concept is found, for example, in the American Restatement. In Harms vs City of Sibley 702 N.W.2d 91 (Iowa 2005) pp 104 5, the Supreme Court of Iowa held (applying the American Restatement (Second) of Torts (1979), sections 834, 837) that a lessor may be liable if at the time of the lease he consents to the activity and he then knows or should know that it will necessarily involve or is already causing the nuisance or if he participates to a substantial extent in carrying it on. On the facts of that case the landlord of a ready mix plant site was held jointly liable with his tenant for a nuisance caused by the plant, where the evidence showed that the landlord had purchased the property with the intent of building a ready mix plant, had obtained a building permit for that purposed, and was president of the ready mix company which operated the plant. In reaching this conclusion, as I understand the judgment, that court did not draw a clear distinction between the two parts of the test, relying both on the landlords state of knowledge at the time of the lease and his personal involvement in the property both before and after. Even in the absence of direct authority, I see nothing in Lord Milletts formulation which requires a rigid division between the two parts of the test. The terms and circumstances of the lease, and the history, may be relevant in considering the significance of the landlords conduct thereafter. Participation is not a term of art nor a precise definition. What is required in my view is a broad, common sense judgment, based on the facts as a whole, as to whether there was such active involvement by the landlord in the offending activities as to make him jointly responsible in law for their consequences. We are concerned directly with the period from April 2006, when the claimants began to complain of nuisance, having acquired their house in January of that year. However, in considering the position of the landlords it is unrealistic in my view to ignore the earlier history. As far as concerns the stadium, Terence Waters had been the owner of the stadium since it was constructed by him in 1975 until August 2005, when he sold to his son James. The 1985 planning permission for continuation of speedway racing, which is still operative, was and remains personal to him. In September 2005, James granted a lease to a Mr Harris (not a party) which lasted until its surrender in January 2008. During that time the business at the Stadium was operated under an arrangement with Mr Harris by David Coventry (2nd defendant, trading as RDC Promotions), whose own involvement with the stadium had started in 1993 (judgment para 16). We were told that the application to extend the stadium facilities in 2006 was in James name. In January 2008 James, in the judges words (para 28), tried to revive the commercial activities at the stadium, before selling it to RDC Promotions in April 2008. They have owned and operated it ever since. However, James continued to take the lead in negotiations with the authorities, and it seems that the appeal against the abatement notice served in 2007 was in his name. The moto cross track was also developed initially by Terence Waters under a 1992 temporary permission personal to him (and a Mr Nunn). Permanent permission was granted in 2002, this time personal to Terence Waters and Moto land UK Ltd (the 3rd defendant) to whom Mr Waters and his co owners granted a 10 year lease in September 2003. This history shows a close involvement by Mr Terence Waters, and later his son, in the activities of the stadium and the track dating back to their inception. Although the precise legal basis of their involvement has varied over the years, their central role in the enterprise has not. It is against that background in my view that the issue of participation in the relevant period must be judged. Lord Neuberger (para 21) has summarised the factors on which the claimants rely in the present case. I do not understand there to be any material dispute about the factual allegations; the dispute is as to their significance in law. In my view they show clearly that the involvement of Terence and James Waters has gone far beyond the ordinary role of a landlord protecting and enforcing his interests under a lease. It has involved active encouragement of the tenants use and direct participation in the measures and negotiations to enable it to be continued. That these measures were directed in part to mitigating the problem does not alter the fact of participation nor the consequences for the landlord when the measures proved ineffective. It may be, as Lord Neuberger suggests, that they were motivated at least in part by their concurrent interests as freeholders, or even, in Terences case, as local councillor. But under the Malzy test, as I understand it, the issue is not why they participated, but whether they did so, and with what effect. Jamess involvement is more recent than that of his father, and there is a lack of evidence about the precise extent of his involvement in the activities at the stadium before and since the period of his direct occupation in early 2008. However, it seems clear that he took a leading role in the negotiations with the authority to allow the use to continue at its existing level, and in the appeal against the abatement notice, though not served on him. On the material available to us, there is no reason to treat him as a less active participant than his father. For these reasons, in respectful disagreement with Lord Neuberger, I would allow the appeal on this issue, and hold that Terence and James Waters are jointly liable for the nuisance. I understand that the majority of this court supports Lord Neubergers view that consideration of this aspect should be adjourned for further hearing, following notice to the Attorney General and Secretary of State. In those circumstances I prefer to express no view at this stage on the substantive issues, save that I agree with him (para 48) that the Aarhus Convention is of no help to the respondents for the reasons he gives. LORD MANCE I agree with Lord Neubergers judgment on all issues, save that concerning the liability of the Third and Fourth Respondents, Messrs Terence and James Waters, as landlords in nuisance, discussed by Lord Neuberger in his paras 10 to 31 and by Lord Carnwath in his paras 52 to 67. On that issue, I find myself in sympathy with Lord Carnwaths reasoning and conclusion. I am fortified in this by the course this litigation has taken with regard to the Third and Fourth Respondents liability. Lord Neuberger says in para 10 that At trial, the landlords do not seem to have made much of the argument that they were in a different position from the other defendants at trial. That appears an understatement. All the defendants were represented at trial by the same counsel (though not the same solicitor), and no suggestion at all was made in their opening or closing written submissions that, if there was a nuisance, the Third and Fourth Respondents were not liable for its commission in common with the other defendants held liable in nuisance. The only point made was that, assuming there was a nuisance, any damages awarded should not in the case of the Third and Fourth Respondents include exemplary and aggravated damages (but should be confined to ordinary damages): see especially para 53 of their opening submissions and paras 111 to 166 of their closing submissions. As explained in counsels submissions before us, it appears to have been the judge who, effectively of his own motion, raised at a very late stage a possible distinction between the Third and Fourth Respondents and other defendants as regards liability for any nuisance. According to para 22 of his judgment, a point to this effect seems to have been explored with counsel in the Appellants final oral submissions, and, in paras 22 to 25 of his judgment, the judge then picked the point up, deciding that the Third and Fourth Respondents had no liability because of the terms of the leases. In doing this, he not only misread one of them, as Lord Neuberger points out in his para 16, but also overlooked the principle that a landlord who participates in a nuisance may be liable, irrespective of the terms of the lease. The Court of Appeal judgment is of equally little assistance on the present issue, since the Court concluded that there was no nuisance at all and so did not need to consider any question about the Third and Fourth Respondents liability. The fact that the Third and Fourth Respondents were prepared to recognise their liability along with other defendants for any nuisance which existed, while denying that it extended to liability for exemplary or aggravated damages, appears to me not insignificant, when the question is whether they sufficiently participated in the nuisance for it to be appropriate to hold them liable for it. They and their counsel are likely to have had a much better feel for the reality of what was going on than we can have. But it also appears to me consistent with the facts and matters relied upon of which we are aware, and on which the Appellants place reliance in this connection. Hilary Term [2014] UKSC 13 On appeal from: [2012] EWCA Civ 26 JUDGMENT Coventry and others (Respondents) v Lawrence and another (Appellants) before Lord Neuberger, President Lord Mance Lord Clarke Lord Sumption Lord Carnwath JUDGMENT GIVEN ON 26 February 2014 Heard on 12, 13 and 14 November 2013 Appellant Stephen Hockman QC William Upton (Instructed by Richard Buxton Environmental and Public Law) Respondent Robert McCracken QC Sebastian Kokelaar (Instructed by Pooley Bendall Watson) LORD NEUBERGER The issues raised by this appeal 1. This appeal raises a number of points in connection with the law of private nuisance, a common law tort. While the law also recognises public nuisance, a common law offence, this appeal is only concerned with private nuisance, so all references hereafter to nuisance are to private nuisance. It should also be mentioned at the outset that the type of nuisance alleged in this case is nuisance in the sense of personal discomfort, in particular nuisance by noise, as opposed to actual injury to the claimants property (such as discharge of noxious material or removal of support). 2. As Lord Goff of Chieveley explained in Hunter v Canary Wharf Ltd [1997] AC 655, 688, [t]he term nuisance is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land, quoting from Newark, The Boundaries of Nuisance (1949) 65 LQR 480. See also per Lord Hoffmann at pp 705 707, where he explained that this principle may serve to limit the extent to which a nuisance claim could be based on activities which offended the senses of occupiers of property as opposed to physically detrimental to the property. 3. A nuisance can be defined, albeit in general terms, as an action (or sometimes a failure to act) on the part of a defendant, which is not otherwise authorised, and which causes an interference with the claimants reasonable enjoyment of his land, or to use a slightly different formulation, which unduly interferes with the claimants enjoyment of his land. As Lord Wright said in Sedleigh Denfield v O'Callaghan [1940] AC 880, 903, a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society. 4. In Sturges v Bridgman (1879) 11 Ch D 852, 865, Thesiger LJ, giving the judgment of the Court of Appeal, famously observed that whether something is a nuisance is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances, and what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey. Accordingly, whether a particular activity causes a nuisance often depends on an assessment of the locality in which the activity concerned is carried out. 5. As Lord Goff said in Cambridge Water Company v Eastern Counties Leather plc [1994] 2 AC 264, 299, liability for nuisance is kept under control by the principle of reasonable user the principle of give and take as between neighbouring occupiers of land, under which . those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action: see Bamford v Turnley (1862) 3 B & S 62, 83, per Bramwell B. I agree with Lord Carnwath in para 179 below that reasonableness in this context is to be assessed objectively. 6. The issues raised on this appeal are as follows: The extent, if any, to which it is open to a defendant to contend that he has established a prescriptive right to commit what would otherwise be a nuisance by means of noise; The extent, if any, to which a defendant to a nuisance claim can rely on the fact that the claimant came to the nuisance; The extent, if any, to which it is open to a defendant to a nuisance claim to invoke the actual use of his premises, complained of by the claimant, when assessing the character of the locality; The extent, if any, to which the grant of planning permission for a particular use can affect the question of whether that use is a nuisance or any other use in the locality can be taken into account when considering the character of the locality; The approach to be adopted by a court when deciding whether to grant an injunction to restrain a nuisance being committed, or whether to award damages instead, and the relevance of planning permission to that issue. A summary of the substantive facts 7. In February 1975, planning permission was granted to Terence Waters for the construction of a stadium (the Stadium) some three miles west of Mildenhall Suffolk, on agricultural land which he owned. The planning permission permitted the Stadium to be used for speedway racing and associated facilities for a period of ten years. Speedway racing involves racing speedway motorcycles over several laps of a circuit. 8. The Stadium was constructed during the ensuing year, and thereafter it was used for the permitted purpose by a company called Fen Tigers Ltd, Terence Waters licensee or lessee of the Stadium. The planning permission was renewed on a permanent basis in 1985, although it was made personal to Mr Waters. Stock car and banger racing started at the Stadium in 1984. Such uses were not permitted under the planning permission, but after ten years of such use, it was contended that they had become immune from planning control enforcement, pursuant to section 191 of the Town and Country Planning Act 1990, as substituted by section 10(1) of the Planning and Compensation Act 1991, and Mr Waters applied for a Certificate of Lawfulness of Existing Use or Development (a CLEUD), pursuant to section 191 in early 1995. In July 1997, a CLEUD was issued by the planning authority confirming that, for a period of ten years, there had been 20 stock car and banger racing events (at specified hours of the day) at the Stadium each year, so that such a use had become lawful in planning terms. In addition, greyhound racing has been going on at the Stadium since 1992. 9. To the rear of the stadium is a motocross track (the Track), an undulating track on which this particular type of motorbike racing and practice takes place. The Track was constructed and used pursuant to a personal planning permission for motocross events, which was granted in May 1992 for a year, and renewed from time to time thereafter, always subject to conditions which sought to control the frequency of events, and the amount of sound which was emitted during such events. Eventually, in 2002, a permanent personal planning permission was granted for this use, subject to similar conditions, including one which limited the use of the Track to a limited number of days within prescribed hours, and another which imposed a maximum noise level of LAeq 85 dB over any hour at the boundary of the Track. 10. In August 2005, the Stadium was acquired from Mr Waters by his son, James Walters, and he leased it a month later to Carl Harris, who entered into an arrangement whereby the business at the Stadium was operated by David Coventry. David Coventry and his brother later took on the lease and then acquired the Stadium in April 2008. They have owned and operated it since then. Fen Tigers Ltd itself continued to promote speedway racing at the Stadium until it went into liquidation in July 2010. Terence Waters is also one of the three joint owners of the Track, and, in September 2003, he and his co owners granted a lease of the track for ten years to Moto Land UK Ltd (M LUK), who since then have operated the activities on the Track. 11. The trial judge, His Honour Judge Richard Seymour QC (sitting as a Deputy Judge of the High Court), found that, between 1975 and 2009, the Stadium had been used for speedway racing between 16 and 35 times per year, save that for six years (1990, 1991, 1993 1994, 1997 and 2000) it was not used at all for speedway. As for stock car racing, the judge found that it had occurred at the Stadium between 16 and 27 times a year between 1985 and 2009, save that there was no stock car racing in 1991 or 1992. The judge also found that the Track had been used for motocross to the full extent permitted by the relevant planning permission (para 76). As he also mentioned, in 1995, this activity had resulted in the service of noise abatement notices, under section 80 of the Environmental Protection Act 1990, which were then the subject of inconclusive proceedings. 12. Across open fields, about 560 metres from the Stadium and about 860 metres from the Track, is a bungalow called Fenland, which was built in the 1950s. It stands in about 0.35 hectares of garden, and is otherwise surrounded by agricultural land. The nearest residential property to Fenland appears to be about half a mile away, and the small village of West Row is about 1.5 miles to the south east of Fenland (and about one mile to the south east of the Stadium). In January 2006, Katherine Lawrence and Raymond Shields (the 13. appellants) purchased and moved into Fenland; their vendors were a Mr and Mrs Relton, who had owned and lived in Fenland since 1984. By April 2006, the appellants had become concerned about the noise coming from the motocross events on the Track. They complained about this to the local council in and after April 2006, and they also wrote to Mr Coventry and M LUK, and to Terence and James Waters, threatening proceedings. The complaints to the council eventually resulted in the service of further noise abatement notices, required the carrying out of works to mitigate the noise emanation (the attenuation works). These notices were served during December 2007 on Mr Coventry, his brother, M LUK and Fen Tigers Ltd, and stated that the activities at the Stadium and on the Track each constituted a statutory nuisance. The attenuation works were carried out, albeit later than they should have been, by January 2009. 14. Meanwhile, the appellants had also been pursuing their contention that both the Stadium and the Track were being used in such a way as to constitute a nuisance. As discussions did not produce what they considered to be an acceptable outcome, the appellants issued proceedings against Mr Coventry, M LUK and Terence and James Waters (the respondents) in the High Court for an injunction to restrain the nuisance in early 2008. In those proceedings, the appellants contended that the activities at the Stadium and on the Track constituted a nuisance individually, or in the alternative cumulatively. They maintained this contention following the completion of the attenuation works. The respondents filed a joint Defence in December 2009 denying nuisance. In April 2010, Fenland suffered a serious fire, which caused extensive 15. damage and rendered it uninhabitable. Since then, no one has lived there, as it has yet to be rebuilt. Meanwhile, the proceedings came on before Judge Seymour on 26 January, and he heard them over 11 days. The judgments below 16. The judge gave his decision on 4 March 2011, and his judgment runs to 325 paragraphs and over 110 pages [2011] EWHC 360 (QB) (reported in part [2011] 4 All ER 1314). It is unnecessary to attempt to explain it in any detail for the purposes of this appeal. There are some parts which are difficult to follow, and there are one or two findings which he should have made, but did not make (in particular whether the appellants knew of the planning permissions when they purchased Fenland). 17. Particularly where there has been a relatively long and expensive hearing, it is important that the judge (i) clearly identifies for his own benefit as well as that of the parties, all the issues of fact and expert opinion that are in issue, and (ii) resolves in clear terms all such issues which are relevant on his view of the law, and, at least often, those issues which would be relevant if his view of the law turns out to be wrong. Otherwise, there is a real risk of a complete or partial rehearing being ordered, which would be very unfair on the parties, and would bring the administration of law into disrepute. 18. Reverting to Judge Seymours judgment, he began by summarising the relatively uncontroversial history, and then turned to the nature of the locality. He described the immediate locality which was generally rural, but included some houses and a small village, West End, and also a US Air Force base at RAF Mildenhall, which, at its nearest point, is about a mile to the east of the Stadium, the Track and Fenland, and is also about a mile to the north of West Row. The judge described the terms of the various planning permissions, and then turned to the question whether the planning permissions for the uses of the Stadium and the Track should have any bearing on the issue of whether those uses constituted a nuisance. He concluded in para 66 that they should not, because of the personal nature of the permissions, and the fact that they limited the permitted uses to a maximum number of days a year and to specified hours of the day. 19. Judge Seymour next discussed the extent to which the Stadium and the Track had been used over the years. He then set out (at paras 96 206) the oral and documentary evidence which he had read and heard in relation to the level of noise emanating from the Stadium and the Track. This evidence consisted of (i) letters, mostly of support, sent to the planning authorities in connection with the applications for, and renewals of, the planning permissions for the use of the Stadium and the Track for the activities described above, (ii) the advices given in connection with those applications and permissions by planning officers to planning committees, (iii) the planning permissions themselves, (iv) letters sent to the local authority between 1992 and 2010, complaining of the noise, (v) records kept, and letters sent, by the local Environmental Health Officers, (vi) the oral evidence of the appellants, four other residents in the locality on behalf of the appellants, and Mrs Relton and at least five other residents for the respondents, (vii) one expert acoustic witness for each side, (viii) reports on noise levels from various public bodies including the World Health Organisation, the Department of the Environment, the National Physical Laboratory, and the Institute of Sound and Vibration Research. 20. When considering the expert evidence, the judge (at para 158) raised the question whether it was appropriate, in assessing whether the noise generated by the activities [of the defendant] was capable of causing a nuisance, to take into account as one of the noise characteristics of the locality the noise generated by those very activities. As Jackson LJ said in the Court of Appeal [2012] 1 WLR 2127, para 72, the judge does not appear to have answered that question expressly, but he appears to have held that the answer was no. 21. The judge said that, when the Stadium was being used for speedway, stock car, and banger racing from 1984, and also when the Track was being used for motocross from 1992, the noise was sometimes sufficiently intrusive to generate complaints, and sometimes not. Accordingly, he concluded that it was possible so to organise activities at the Stadium or at the Track as not to produce intrusive noise affecting those residing nearby para 95. 22. The judge also concluded at para 207 that the operation of activities at the Stadium both before and after the [attenuation] works constituted a nuisance, by reason of the noise generated, to [the appellants], and he immediately went on to make the same finding about the activities at the Track. 23. The judge then considered and rejected the respondents contention that they had acquired a right to create what would otherwise have been a nuisance by noise, as a result of the use of the Stadium for speedway, stock car, and banger racing for more than 20 years. First, he held that no such right could be acquired as a matter of law; secondly, he held that, even if that was wrong, the interruption in use, especially in respect of stock car and banger racing in 1991 and 1992, would have been fatal to a prescriptive claim. 24. Finally, having concluded that the appellants had established a claim in nuisance, the judge turned to the question of remedies. He stated at paras 243 245 that he was minded to grant an injunction to restrain the respondents from carrying on activities at the Stadium or at the Track which emitted more than a specified level of noise, which he had in mind to fix at specific levels which he identified. He explained at para 243 that he had arrived at those levels by reference to the quantum of noise emitted from various motor racing circuits across the United Kingdom, a topic on which he had heard evidence from one of the expert witnesses, and also stated that there should be a lower level of noise permitted during the evening and at night. He recorded at para 244 that the respondents did not challenge the notion that he should grant an injunction if he concluded that their activities had caused continuing nuisance. At para 245, he provisionally indicated the decibel limits he had in mind, and added that, as Fenland was unoccupied, it may be appropriate to suspend any injunction. The judge then dealt with damages for past nuisance. 25. After he had handed down his judgment, a further hearing took place before the judge, pursuant to which he made an order which was a little more generous to the respondents than he had provisionally suggested, in that the injunction he granted permitted them to emit somewhat higher noise levels on up to 12 weekends each year. He gave the respondents time to reorganise their affairs by providing that the injunction would only take effect on 1 January 2012, or (if later) when Fenland was ready for residential occupation (which has not yet happened). The terms of the order also gave either party permission to apply to vary the terms of the injunction, but not earlier than 1 October 2011. 26. The respondents appealed against the decision. The Court of Appeal reversed Judge Seymours decision, holding that the appellants had failed to establish that the respondents activities at the stadium and the Track constituted a nuisance: [2012] 1 WLR 2127. Jackson LJ, who gave the main judgment, with which Mummery and Lewison LJJ agreed, held that the judge had gone wrong in holding that the actual use of the Stadium and the Track over a number of years, with planning permission, or a CLEUD, could not be taken into account when the assessing the character of the locality for the purpose of determining whether an activity is a nuisance paras 74 and 76. In those circumstances, it was unnecessary for the Court of Appeal to consider any other issue, although Lewison LJ expressed a provisional view that, contrary to the judges conclusion, it is possible to obtain by prescription a right to commit what would otherwise be a nuisance: paras 88 91. 27. The appellants now appeal to the Supreme Court. As indicated at the start of this judgment, the appeal raises a number of points relating to the law of nuisance, and it is convenient to consider them in principle before applying them to the facts and arguments in this appeal. Acquiring a right to commit what would otherwise be a nuisance by noise 28. There is no doubt that a defendant can have a right to carry on an activity which would otherwise be a nuisance. For instance, in common law, a claimant may have bindingly agreed to the activity being carried on and to the consequent nuisance, or a claimant may somehow be estopped from objecting to the activity on the ground that it constitutes a nuisance; and, under a statute, certain activities in certain circumstances may be accorded immunity from a claim in nuisance see eg section 76 of the Civil Aviation Act 1982 and section 158 of the Planning Act 2008. 29. It is well established that an easement (that is, a right in favour of the so called dominant land over the so called servient land, such as a right of way, a right to light, a right of support, or a right of drainage) can be acquired by prescription as well as by express grant. Prescription is a form of deemed grant and arises as a result of long use. 30. Prescription was initially introduced and developed by the judges. It has been complicated by the facts that (i) as originally developed, it was subject to some rather technical, and impractical, rules (and in particular a requirement of at least an inference of enjoyment since 1189), (ii) the courts have developed another prescriptive principle, that of lost modern grant (which is not subject to so much technicality), (iii) it has been the subject of a large number of judicial decisions, many of which are hard to understand or reconcile, (iv) Parliament enacted the ill drafted Prescription Act in 1832 (2 & 3 Will 4, c 71), so that (v) there are now two types of common law prescription, together with statutory prescription. 31. The essential feature of prescription for present purposes is that, in order to establish a right by prescription, a person must show at least 20 years uninterrupted enjoyment as of right, that is nec vi, nec clam, nec precario (not by force, nor stealth, nor with the licence of the owner), as Lord Walker put it in R (Lewis) v Redcar and Cleveland Borough Council [2010] 2 AC 70, para 20), of that which he now claims to be entitled to enjoy by right. 32. An issue in the present appeal is whether the right to commit a nuisance by noise can be acquired by prescription. For this purpose, I do not think that it strictly matters whether the right to make a noise which would otherwise be a nuisance can be an easement or not. As Lord Sumner said in Pwllbach Colliery Co Ltd v Woodman [1915] AC 634, 649, a right in favour of a property owner over neighbouring land (in that case, to spread coal dust emanating from the property owners land over adjoining land) may be too indeterminate to be an easement, but it can still be the subject of a perfectly valid grant. Accordingly, it seems to me that there is no inherent reason why a right to spread coal dust, or to make a noise which would otherwise be a nuisance, should not be established by prescription. 33. Having said that, I am of the view that the right to carry on an activity which results in noise, or the right to emit a noise, which would otherwise cause an actionable nuisance, is capable of being an easement. The fact that the noise from an activity may be heard in a large number of different properties can fairly be said to render it an unusual easement, but, as Mr McCracken QC for the respondents said, whether or not there is an easement is to be decided between the owner of the property from which the noise emanates and each neighbouring property owner. Equally, as Lewison LJ said at [2012] 1 WLR 2127, para 88, the fact that a right is only exercisable at specified times does not prevent it from being an easement. As he also pointed out at para 89, one can characterise a right to emit noise in relatively conventional terms in the context of easements, namely as the right to transmit sound waves over the servient land. Lord Parker of Waddington clearly assumed that the right to emit noise could be an easement in Pwllbach [1915] AC 634, 646, referring to Lyttleton Times Co Ltd v Warners Ltd [1907] AC 476. Furthermore, where there is an express grant, it should normally be reasonably easy to identify the level of permitted noise, the periods when it may be emitted, and the activities which may produce the noise. 34. Subject to questions of notice and registration, the benefit and burden of an easement run with the land, and, therefore, if a right to emit noise which would otherwise be a nuisance is an easement, it would bind successors of the grantor, whereas it is a little hard to see how that would be so if the right were not an easement. Given the property based nature of nuisance, and given the undesirable practical consequences if the benefit and burden of the right to emit a noise would not run with the relevant land, it appears to me that both principle and policy favour the conclusion that that a right to create what would otherwise be a nuisance by noise to land can be an easement. 35. Greater difficulties arise when one comes to consider whether, and if so how, a right to commit a nuisance has been obtained by prescription. It has been suggested that is not possible to obtain by prescription a right to commit what would otherwise be a nuisance by noise, vibration, smoke or smell see the discussion in Clerk and Lindsell on Torts 20th ed (2010), para 20 85. 36. As that discussion suggests, there appear to be three possible problems with the notion that such a right could be obtained by prescription. The first is that the 20 years can only run when the noise amounts to a nuisance. As Thesiger LJ giving the judgment of the Court of Appeal, agreeing with Sir George Jessel MR, put it in Sturges at 11 Ch D 852, 863 864, [c]onsent or acquiescence of the owner of the servient tenement lies at the root of prescription, and an enjoyment which a man cannot prevent raises no presumption of consent or acquiescence. So, during such time as the noise is at such a level that it does not amount to a nuisance, time will not run: while it is not a nuisance there can be no question of the claimant being able to stop it. Secondly, there could obviously be difficulties in identifying the extent of the easement obtained by prescription: even if the level of noise can be shown to have amounted to a nuisance for more than 20 years, it will often have varied in intensity and frequency (in the sense of both timing and pitch). Thirdly, there could also be a connected problem of deciding how much, if any, more noise could be emitted pursuant to the acquired right than had been emitted during the 20 years. 37. In my view, these problems should not stand in the way of a continuing nuisance by noise being able to give rise to a prescriptive right to transmit sound waves over servient land. The first two problems are, at least largely, practical in nature, and could often present the owner of the alleged dominant land with difficulties in making out his case, but that is not a good reason for holding that he should not be entitled to do so on appropriate facts. Further, the extent of the two problems is mitigated by the fact that, to justify a prescriptive right, the 20 years use does not have to be continuous: see Carr v Foster (1842) 3 QB 581, 586 588, per Lord Denman CJ, and Patteson and Williams JJ. It is worth noting that Patteson J was prepared to accept that an interruption of even seven years might not destroy the claim to have acquired a right by prescription over 20 years. 38. As for the third problem, it is not dissimilar from the question of the extent of some other easements obtained by prescription, such as a right of way or a right to discharge polluted water. The precise extent of a right to transmit sound waves obtained by prescription must be highly fact sensitive, and may often depend not only on the amount and frequency of the noise emitted, but also on other factors including the character of the neighbourhood and the give and take referred to by Lord Goff in Cambridge Water [1994] 2 AC 294, 299. 39. Given the potential effect on the enjoyment of the servient land of an increase in the level or frequency of noise, it seems to me that the dominant owner cannot, or at least could only very rarely, be accorded the degree of latitude available to someone with a right of way or a right of drainage obtained by prescription, as discussed in McAdams Homes Ltd v Robinson [2004] 3 EGLR 93, paras 24 47 and 79 84. The position is closer to a case where a right to pollute the servient owners watercourse is obtained by prescription. Thus, in Baxendale v McMurray (1867) 2 Ch App 790, 795, Lord Cairns LJ indicated that, albeit in a case where a change of materials had been involved in the business of the dominant owner, the servient owner had cause for complaint if he could show a greater amount of pollution and injury arising from the use of this new material in order to establish a breach of his rights. 40. So far as previous cases on noise and the like are concerned, as Lewison LJ said below at para 91, Tindal CJ clearly assumed that a right to emit noxious vapours and smells could be acquired by prescription in Bliss v Hall (1838) 4 Bing NC 183, 186, and in Sturges v Bridgman 11 Ch D 852, 863 865, it was also clearly assumed by the Court of Appeal that a right to emit noise and vibration which would otherwise be a nuisance can be acquired by prescription. So, too, in Crump v Lambert (1867) LR 3 Eq 409, 413, Lord Romilly MR said that the right of sending smoke or noise over a neighbours land could be obtained if the neighbour has not resisted for a period of 20 years. Finally in this connection, I note that in another well known nuisance case, St Helens Smelting Co v Tipping (1865) 11 HLCas 642, 652, Lord Westbury LC referred to cases where any prescriptive right has been acquired by a lengthened user of the place. 41. In these circumstances, I conclude that, in the light of the relevant principles, practical considerations and judicial dicta, it is possible to obtain by prescription a right to commit what would otherwise be a nuisance by noise, or, to put it another way, to transmit sound waves over neighbouring land. 42. Before leaving this topic, I should mention that, in the Court of Appeal, Lewison LJ at para 91 raised the possibility that all that the owner of the dominant land needed to establish in order to show a prescriptive right was that the sound waves (at a certain volume) have been passing over the servient land for a period of over 20 years irrespective of whether they constituted a nuisance during any part of that period. So far as practicalities are concerned, this approach would have the advantage of avoiding the first of the three problems identified in para 36 above, but the other two problems would remain. 43. However, this approach was not adopted by the respondents on this appeal, and I am inclined to think that they were right. The approach was considered and rejected both by Sir George Jessel and the Court of Appeal in Sturges 11 Ch D 852, as explained in para 36 above, on the ground that time 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. 44. Lord Walker of Gestingthorpes observations in R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70, para 30 give some support for this view. He approved 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. 45. It is true that this would not apply to a right to receive light, but the right to light is an anomalous easement, as Lord Hoffmann pointed out in Hunter [1997] AC 655, 709. In a passage which supports the view expressed in the preceding two paragraphs, he said that [i]n the normal case of prescription, the dominant owner will have been doing something for the period of prescription (such as using a footpath) which the servient owner could have stopped. But one cannot stop a neighbour from erecting a building with windows. 46. In any event, the right to emit noise (or smoke or smells) over neighbouring land must be a positive easement, as opposed to a negative easement such as the right to receive light, support, air or water see Gale on Easements 19th ed (2012), para 1 01 and footnote 3. (It is suggested in the text that the right to emit noise etc represent a third category of easement, because they merely involve actions on the dominant land, but, as the footnote states, the easement is not to carry on the activity on the dominant land but to emit noise over or into the servient land, which is a positive easement). In every case that I can conceive, the acquisition of a positive easement can only arise from the owner or occupier of the putative dominant land doing something which would be a wrong against the owner or occupier of the putative servient land normally trespassing: see the list of positive easements in Gale, para 1 74. Coming to the nuisance 47. For some time now, it has been generally accepted that it is not a defence to a claim in nuisance to show that the claimant acquired, or started to occupy, her property after the nuisance had started ie that it is no defence that the claimant has come to the nuisance. This proposition was clearly stated in Bliss 4 Bing NC 183, 186 per Tindal CJ. Coming to the nuisance appears to have been assumed not to be a defence in Sturges v Bridgman 11 Ch D 852. And in London, Brighton and South Coast Railway Co v Truman (1885) LR 11 App Cas 45, 52, Lord Halsbury LC described the idea that it was a defence to nuisance as an old notion long since exploded and he also said that whether the man went to the nuisance or the nuisance came to the man, the rights are the same in Fleming v Hislop (1886) LR 11 App Cas 686, 697. 48. More recently, in Miller v Jackson [1977] 1 QB 966, 986 987, the majority of the Court of Appeal held that the principle was well established. However, Lord Denning MR, in the minority, considered that the proper approach was for court to balance the right of the cricket club to continue playing cricket on their cricket ground, as they had done for 70 years, as against the right of the householder, whom he described as a newcomer who had built a house on the edge of the cricket ground which four years ago was a field where cattle grazed: see pp 976 and 981. He held that there was no nuisance given that the cricket club had spent money, labour and love in the making of [the pitch]: and they have the right to play upon it as they have done for 70 years, and answered with a resounding no his own rhetorical (in both senses of the word) question whether this was all to be rendered useless to them by the thoughtless and selfish act of an estate developer in building right up to the edge of it?: see p 978. 49. Geoffrey Lane LJ (with whom Cumming Bruce LJ agreed) accepted, albeit with some regret, that it was not for the Court of Appeal to alter a rule which has stood for so long, namely that it is no answer to a claim in nuisance for the defendant to show that the plaintiff brought the trouble on his own head by building or coming to live in a house so close to the defendants premises that he would inevitably be affected by the defendants activities, where no one had been affected previously: p 987. Accordingly, he concluded that the claim in nuisance was made out. 50. The respondents suggest that there is authority prior to the decision in Bliss 4 Bing 183, which supports the contention that the law was somewhat different in earlier times. Leeds v Shakerley (1599) Cro Eliz 751 was cited as an authority for the proposition that coming to the nuisance was a defence, but it may well be explained on the ground that the wrong complained of was the single act of diverting a watercourse, as opposed to the continuing loss of the watercourse. In his Commentaries on the Laws of England 1st ed, (1765 1769), Vol II Chap 26, p 403, Blackstone, after explaining that a defendant can be liable in nuisance for setting up a tannery near my home, continues but if he is first in possession of the air and I fix my habitation near him, the nuisance is of my own seeking, and must continue. And in the criminal, public nuisance, case of R v Cross (1826) 2 Car & P 483, 484, Abbott CJ said that a defendant whose trade was said to be a nuisance to a householder or a user of a road would be entitled to continue his trade [if] his trade [had been] legal before the erection of the houses in the one case, and the making of the road in the other. 51. In my view, the law is clear, at least in a case such as the present, where the claimant in nuisance uses her property for essentially the same purpose as that for which it has been used by her predecessors since before the alleged nuisance started: in such a case, the defence of coming to the nuisance must fail. For over 180 years it has been assumed and authoritatively stated to be the law that it is no defence for a defendant to a nuisance claim to argue that the claimant came to the nuisance. With the dubious 16th century exception of Leeds Cro Eliz 751, there is no authority the other way, as the observations of Blackstone and Abbott CJ were concerned with cases where the defendants activities had originally not been a nuisance, and had only become an arguable nuisance as a result of a change of use (due to construction works) on the claimants property. 52. Furthermore, the notion that coming to the nuisance is no defence is consistent with the fact that nuisance is a property based tort, so that the right to allege a nuisance should, as it were, run with the land. It would also seem odd if a defendant was no longer liable for nuisance owing to the fact that the identity of his neighbour had changed, even though the use of his neighbours property remained unchanged. Quite apart from this, the concerns expressed by Lord Denning in Miller [1977] 1 QB 966 would not apply where a purchasing claimant has simply continued with the use of the property which had been started before the defendants alleged nuisance causing activities started. 53. There is much more room for argument that a claimant who builds on, or changes the use of, her property, after the defendant has started the activity alleged to cause a nuisance by noise, or any other emission offensive to the senses, should not have the same rights to complain about that activity as she would have had if her building work or change of use had occurred before the defendants activity had started. That raises a rather different point from the issue of coming to the nuisance, namely whether an alteration in the claimants property after the activity in question has started can give rise to a claim in nuisance if the activity would not have been a nuisance had the alteration not occurred. 54. The observations I have quoted from Blackstone and Abbot CJ were in the context of cases where the defendants activity only becomes a potential nuisance after a change of use or building work on the claimants property, and they therefore provide some support for the defendant in such a case. However, in both Sturges and Miller, it appears clear that the defendants activities pre dated the plaintiffs construction work, and it was only as a result of that work and the subsequent use of the new building that the activities became a nuisance. However, Miller was not concerned with damage to the senses, but with physical encroachment on, and potential physical damage to, the plaintiffs and their property (through cricket balls). In Sturges, the only issue raised by the unsuccessful defendant was prescription, the nuisance at least arguably involved more than offence to the senses, and the plaintiffs construction work merely involved an extension to an existing building (see at 11 Ch D 852 853, 854, 860 861). 55. It is unnecessary to decide this point on this appeal, but it may well be that it could and should normally be resolved by treating any pre existing activity on the defendants land, which was originally not a nuisance to the claimants land, as part of the character of the neighbourhood at least if it was otherwise lawful. After all, until the claimant built on her land or changed its use, the activity in question will, ex hypothesi, not have been a nuisance. This is consistent with the notion that nuisance claims should be considered by reference to what Lord Goff referred to as the give and take as between neighbouring occupiers of land quoted in para 5 above (and some indirect support for such a view may be found in Sturges, at pp 865 866). 56. On this basis, where a claimant builds on, or changes the use of, her land, I would suggest that it may well be wrong to hold that a defendants pre existing activity gives rise to a nuisance provided that (i) it can only be said to be a nuisance because it affects the senses of those on the claimants land, (ii) it was not a nuisance before the building or change of use of the claimants land, (iii) it is and has been, a reasonable and otherwise lawful use of the defendants land, (iv) it is carried out in a reasonable way, and (v) it causes no greater nuisance than when the claimant first carried out the building or changed the use. (This is not intended to imply that in any case where one or more of these requirements is not satisfied, a claim in nuisance would be bound to succeed.) 57. It would appear that the Court of Appeal adopted this approach in Kennaway v Thompson [1981] QB 88. In that case, Lawton LJ seems to have assumed that the noise made by the defendants motorboats on the neighbouring lake should not be treated as a nuisance in so far as it was at the same level as when the plaintiff built her house nearby, and was a reasonable use reasonably carried out. However, a subsequent and substantial increase in the level of noise (due to larger boats and increased proximity to the plaintiffs house) and in the frequency of activity did constitute a nuisance. 58. Accordingly, it appears clear to me that it is no defence for a defendant who is sued in nuisance to contend that the claimant came to the nuisance, although it may well be a defence, at least in some circumstances, for a defendant to contend that, as it is only because the claimant has changed the use of, or built on, her land that the defendants pre existing activity is claimed to have become a nuisance, the claim should fail. Reliance on the defendants own activities in defending a nuisance claim 59. The assessment of the character of the locality for the purpose of assessing whether a defendants activities constitute a nuisance is a classic issue of fact and judgment for the judge trying the case. Sometimes, it may be difficult to identify the precise extent of the locality for the purpose of the assessment, or the precise words to describe the character of the locality, but any attempt to give general guidance on such issues risks being unhelpful or worse. 60. However, such questions can give rise to points of principle on which an appellate court can give guidance. Thus, the concept of the character of the locality may be too monolithic in some cases, and a better description may often be something like the established pattern of uses in the locality. 61. In this case, the ground on which the Court of Appeal overturned the judges decision was that he had wrongly failed to take into account the respondents activities at the Stadium and the Track when considering the character of the locality. The appellants contend that the judge was right to disregard those activities. 62. The issue therefore is whether, and if so to what extent, the use to which the defendant actually puts his property can or should be relied on when assessing the character of the locality for the purpose of assessing whether the claimant has made out her case that those activities constitute a nuisance. 63. It seems clear that the character of the locality must be assessed by reference to the position as it is as a matter of fact, save to the extent that any departure from reality, or artificial assumption, should be made as a matter of logic or legal requirement (the presumption of reality). Accordingly, in a nuisance claim, I accept that one starts, as it were, with the proposition that the defendants activities are to be taken into account when assessing the character of the locality. 64. This approach accords with what was said by Lord Westbury in St Helens Smelting 11 HL Cas 642, 650, namely: [A]nything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. 65. Where I part company with the Court of Appeal is on the issue of whether one ignores the fact that those activities may constitute a nuisance to the claimant. In my view, to the extent that those activities are a nuisance to the claimant, they should be left out of account when assessing the character of the locality, or, to put it another way, they should be notionally stripped out of the locality when assessing its character. Thus, in the present case, where the judge concluded that the activities at the Stadium and the Track were actually carried on in such a way as to constitute a nuisance, although they could be carried on so as not to cause a nuisance, the character of the locality should be assessed on the basis that (i) it includes the Stadium and the Track, and (ii) they could be used for speedway, stockcar, and banger racing and for motocross respectively, but (iii) only to an extent which would not cause a nuisance. 66. In so far as the respondents activities at the Stadium and the Track cause no nuisance, they are lawful. There is therefore no reason to disregard them when assessing the character of the neighbourhood. Indeed, it would be unrealistic, and indeed unfair on the respondents, if those activities were disregarded. However, in so far as the activities are unlawful, in particular in so far as they constitute a nuisance to the appellants, it would seem to me to be illogical, as well as unfair to the appellants, to take those activities into account. It would involve the respondents invoking their own wrong against the appellants in order to justify their continuing to commit that very wrong against the appellants. 67. The Court of Appeal appears to have accepted at para 75 of Jackson LJs judgment that, if the respondents had used the Stadium or the Track in breach of planning conditions, a claim in nuisance may well have been made out. But the reason for that must be that a use in breach of planning law is unlawful and should therefore not be taken into account when assessing the character of the locality (unless, perhaps, it was shown that planning permission was likely to be forthcoming). It appears to me that the same conclusion should, as a matter of logic, indeed perhaps a fortiori, apply to a use which constitutes the very nuisance of which the appellants are complaining. 68. The respondents rely on the fact that the activities carried on at the Stadium and the Track had been going on for many years before the judge made his assessment of the character of the neighbourhood. As Jackson LJ put it [2012] 1 WLR 2127, paras 69 and 72, these activities were an established feature, indeed a dominant feature, of the locality and one of the noise characteristics of the locality by the time that the appellants brought their claim. However, in so far as those activities were being carried on unlawfully, for instance because they give rise to a nuisance to the claimants making the nuisance claim, they should not be taken into account when assessing the character of the locality, whether they have been going on for a few days or many years. 69. Of course, once the nuisance has been going on for 20 years, the position may be different, as the respondents may well have obtained a right to cause what would otherwise be a nuisance. I should perhaps add that if a defendants actual activities have been held to be a nuisance by the court, but the court has then decided to refuse an injunction and award damages instead, then, whether or not the activities can be described as lawful, it would in my view be proper to take them into account as part of the character of the locality: they have effectively been sanctioned by the court. 70. I do not consider that this conclusion is inconsistent with the reasoning of the Court of Appeal in Rushmer v Polsue & Alfieri Ltd [1906] 1 Ch 234, affirmed [1907] AC 121. In my view, the brief opinion of Lord Loreburn LC at pp 122 123, encapsulates the effect of the judgments of Stirling and Cozens Hardy LJJ in the Court of Appeal, namely that (i) whether an activity gives rise to a nuisance may depend on the character of the particular locality, (ii) the trial judge rightly directed himself as to the law, and (iii) there was no reason to think that he had not applied his own directions to the facts of the case (and I think that the rather discursive judgment of Vaughan Williams LJ is to much the same effect). The only relevant point for present purposes which I can discern from the reasoning of the Court of Appeal is that an activity can be a nuisance even if it conforms to the character of the locality a point made by all three members of the court, perhaps most clearly by Cozens Hardy LJ at pp 250 251. But that is entirely consistent with the above analysis. 71. It must be acknowledged, however, that there appears to be an element of circularity in the notion that, when assessing the character of the locality, one has to ignore the defendants activities if, or to the extent that, they constitute a nuisance, given that the point one is ultimately seeking to decide is whether the defendants activities amount to a nuisance. However, it seems to me that there should be no real problem in this connection. In many cases, it is fairly clear whether or not a defendants activities constitute a nuisance once one has established the facts, and nice questions as to the precise identification of the locality or its character do not have to be addressed. In those cases where the precise character of the locality is of importance, the point should not cause much difficulty either. In this case, for example, the question for the judge was the extent to which the noise levels from the Stadium and the Track were or would be acceptable in what was a sparsely populated area, with a couple of small villages and a military airfield between a mile and two miles away, and he answered it by taking the noise levels at other well established racing circuits elsewhere in the country. 72. However, in some cases, there will be an element of circularity. In such cases, the court may have to go through an iterative process when considering what noise levels are acceptable when assessing the character of the locality and assessing what constitutes a nuisance. Nonetheless, the circularity involved in my conclusion does give cause for concern. 73. The concern is, however, allayed once one considers the two other possible approaches. Either one ignores the activity in question altogether when assessing the character of the locality. That may often be the simplest and fairest way of dealing with the issue but, at least in some cases, it could be unfair on a defendant in a nuisance case. Or one adopts a solution which is both even more circular than the one which I prefer, and surprising in its consequences, namely the approach taken by the Court of Appeal. If the activity which causes the alleged nuisance is taken into account, without modification, as part of the character of the locality, it would mean that there could rarely be a successful claim for nuisance, as I see it. If the matters complained of by the claimant are part of the character of the locality, then it is hard to see how they could be unacceptable by a standard which is to be assessed by reference to that very character. Furthermore, to the extent that the defendants activities constitute a nuisance, it seems wrong that he should be able to have them taken account when assessing the character of the locality: he would be relying on his own wrong against the claimant. 74. Accordingly, I conclude that a defendant, faced with a contention that his activities give rise to a nuisance, can rely on those activities as constituting part of the character of the locality, but only to the extent that those activities do not constitute a nuisance and to avoid any misunderstanding, if the activities couldnt be carried out without creating a nuisance, then they would have to be entirely discounted when assessing the character of the neighbourhood. 75. Similarly, any other activity in the neighbourhood can properly be taken into account when assessing the character of the neighbourhood, to the extent that it does not give rise to an actionable nuisance or is otherwise unlawful. There will, no doubt, frequently be many uses which may not have obtained a specific sanction (through being agreed to by the claimant, through a prescriptive right or through the court refusing an injunction), but which are unobjectionable as a matter of law, and may therefore properly be taken into account. In addition, as Lord Carnwath says at para 185 below, the fact that it is not open to a neighbouring claimant to object to the defendants activities simply because they emit noise does not mean that the defendant is free to carry on those activities in any way he wishes. The claimant is entitled to expect the defendant to take all reasonable steps to ensure that the noise is kept to a reasonable minimum, consistent with what was said by Bramwell B in Bamford 3 B & S 62 (see para 5 above). This is consistent with the approach taken by the court in relation to the noise temporarily caused by building works see eg Andreae v Selfridge & Co Ltd [1938] 1 Ch 1, 7. The effect of planning permission on an allegation of nuisance The interrelationship of planning permission and nuisance has been considered in a number of cases, and has been discussed in a number of articles and books. The grant of planning permission for a particular use is potentially relevant to a nuisance claim in two ways. First, the grant, or terms and conditions, of a planning permission may permit the very noise (or other disturbance) which is alleged by the claimant to constitute a nuisance. In such a case, the question is the extent, if any, to which the planning permission can be relied on as a defence to the nuisance claim. Secondly, the grant, or terms and conditions, of a planning permission may permit the defendants property or another property in the locality to be used for a certain purpose, so that the question is how far that planning permission can be relied on by the defendant as changing the character of the locality. As explained in para 18 above, the judge effectively by passed these issues by concluding that the grant of planning permission should not be taken into account when assessing whether the respondents activities at the Stadium or the Track constituted a nuisance, for two reasons. The first reason was that the permissions in question were personal, and the second was that they only permitted those activities at certain times. I find the first reason largely unconvincing and the second reason baffling. The fact that a planning permission for a particular use is personal does not alter the fact that it removes the bar which would otherwise exist on that use, and that the use is acceptable in planning terms at least if carried on by, or on behalf of, the very person who is carrying it on. However, there is something in the point that, by granting a permission which was both permanent and personal, the planning authority was, as it were, hedging its bets a view supported by the fact that the question whether to grant planning permission was controversial. Nonetheless, the fact remains that the use in question did have planning permission. I fail to understand why the restriction as to number of days and the time limitations contained in an otherwise relevant planning permission should invalidate its relevance to the issue of nuisance. Apart from the inherent illogicality of the judges conclusion, such restrictions and limitations were no doubt imposed, at least in part, in the interests of those in the neighbourhood of the Stadium and Track. Accordingly, I agree with the Court of Appeal that the judges reasons for refusing to take into account the fact that planning permissions had been granted for the activities carried on by the respondents are unsupportable. However, that leaves open the question as to what weight, if any, should be given to the fact that planning permission has been granted for the very activities which a claimant contends give rise to a nuisance by noise. More particularly, what weight, if any, should be given to the fact that there is a planning permission for a use which will inevitably give rise to the noise which is said to constitute a nuisance, and/or which contains terms or conditions which specifically allow the emission of the noise which is said by a claimant to constitute a nuisance? The implementation of a planning permission can give rise to a change in the character of the locality, but, subject to one possible point, it is no different from any other building work or change of use which does not require planning permission. Thus, if the implementation of a planning permission results in the creation of a nuisance to a claimant, then, subject to one possible point, it cannot be said that the implementation has led to a change in the character of the locality save, as explained above, (i) to the extent that the implementation could have been effected in a way which would not have created a nuisance, or (ii) if the defendant can show a prescriptive right to create the nuisance, or (iii) the court has decided to award the claimant damages rather than an injunction in respect of the nuisance. I have described the conclusions in the preceding paragraph as being subject to one possible point. That point is the extent, if any, to which a defendant, in seeking to rebut a claim in nuisance, can rely on the fact that the grant, or terms and conditions, of a planning permission permit the very noise (or other disturbance) which is alleged by the claimant to constitute the nuisance (or which is relied on by the defendant as forming part of the character of the locality). In the Court of Appeal, Jackson LJ discussed the cases in which the relationship between planning decisions and claims in nuisance had been considered. In Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343, 359, Buckley J accepted that planning permission is not a licence to commit a nuisance, but he went on to say that a planning authority can, through its development plans and decisions, alter the character of a neighbourhood. As Jackson LJ explained [2012] 1 WLR 2117, para 57, even though the implementation of the planning permission in Gillingham resulted in noise, vibration, dust and fumes [which] caused serious disturbance local residents, Buckley J dismissed the claim for public nuisance. In the following paragraph of his judgment, having described that as a [h]arsh outcome, Jackson LJ said it was nonetheless a correct outcome, as the planning authority had made a decision in the public interest and the consequences had to be accepted. Jackson LJ seems to have concluded that the same reasoning applied in Hirose Electrical UK Ltd v Peak Ingredients Ltd [2011] Env LR 680: see para 62. However, he also accepted in para 59 that it was not open to a defendant in a nuisance claim to be able to rely on a planning permission for a change of use of a very small piece of land, which was the basis of the decision of the Court of Appeal in Wheeler v JJ Saunders Ltd [1996] Ch 19. In that case, Staughton LJ suggested that only a strategic planning decision affected by considerations of public interest would assist a defendant in a nuisance claim, and Peter Gibson LJ, while plainly dubious about the reasoning in Gillingham, suggested that it could only apply in relation to a major development: see pp 30 and 35. Further, as I read the analysis of Jackson LJ at para 66, he also thought that that reason justified the decision of the Court of Appeal in Watson v Croft Promosport Ltd [2009] 3 All ER 249. It seems to me that the effect of Jackson LJs analysis is that, where the planning permission is granted for a use of the defendants property which inevitably results in, or specifically permits, what would otherwise be a nuisance to the claimant, that use is to be treated as part of the character of the locality, if the permission relates to a large area, but not if it relates to a small area. Further, as is apparent from the contrasting outcomes in Gillingham and Hirose, as against Wheeler and Watson, where the planning permission for the nuisance making activity is strategic in nature or relates to a major development, it would defeat the claim for nuisance, whereas where it is for a small area, it would have no effect on the nuisance claim. As mentioned in para 73 above, that is scarcely surprising, as once one accepts that the noise complained of forms part of the character of the locality for the purpose of considering what constitutes a nuisance, it is hard to see how that very noise could be held to be a nuisance. In my judgment, the conclusion reached by the Court of Appeal on this issue is unsatisfactory, both in principle and in practice, although it is only fair to add that they may understandably have considered that their hands were tied by the decisions mentioned in paras 84 86 above. Logically, the fact that the alleged nuisance arising from the defendants property is permitted by the planning authority should be a decisive factor, a relevant factor, or an irrelevant factor when assessing whether it is a nuisance. Which of those three possibilities applies should not depend on whether the permission relates to a large or small area of land. Furthermore, while Jackson LJ was at pains to emphasise that the grant of planning permission would not defeat a nuisance claim, it seems to me that that was precisely the effect of a planning permission for a large area, according to the reasoning of Buckley J in Gillingham, of the Court of Appeal in Watson, and of Jackson LJ in this case. It also would be somewhat paradoxical if the greater the likely disagreeable impact of a change of use permitted by the planning authorities, the harder it would be for a claimant to establish a claim in nuisance. Yet that seems to be the effect of Jackson LJs analysis, as the greater the area covered by the planning permission, (i) the more likely it is to provide a defence to a claim in nuisance, and (ii) the more intrusive any noise or other intrusion is likely to be. Quite apart from this, it is hard to know what is meant by a large area. The grant of planning permission for a particular development does not mean that that development is lawful. All it means is that a bar to the use imposed by planning law, in the public interest, has been removed. Logically, it might be argued, the grant of planning permission for a particular activity in 1985 or 2002 should have no more bearing on a claim that that activity causes a nuisance than the fact that the same activity could have occurred in the 19th century without any permission would have had on a nuisance claim in those days. Quite apart from this, it seems wrong in principle that, through the grant of a planning permission, a planning authority should be able to deprive a property owner of a right to object to what would otherwise be a nuisance, without providing her with compensation, when there is no provision in the planning legislation which suggests such a possibility. This point is reinforced when one turns to sections 152 and 158 of the Planning Act 2008: section 158 expressly excludes claims in nuisance by neighbours as a result of the use of a property consequent upon a ministerial order permitting that use, and section 152 provides for appropriate compensation where a neighbour would, but for section 158, have had a claim in nuisance. It is also to be noted that section 76 of the Civil Aviation Act 1982 expressly excludes an action for nuisance owing to aircraft, but section 1 of the Land Compensation Act 1973 provides for compensation for neighbours (including in respect of nuisance by noise attributable to aircraft) when land is developed as an aerodrome. As for practical considerations, I am not impressed by the suggested difference between a strategic planning decision affected by considerations of public interest (or a planning decision relating to a major development) and other planning decisions. No doubt all planning applications take into account the public interest, and the difference between a strategic planning permission (or a planning permission for a major development), and other planning permissions seems to me to be a recipe for uncertainty. Waste Services Ltd [2013] QB 455, para 46(ii), that In my view, therefore, Carnwath LJ was right when he said in Barr v Biffa The common law of nuisance has co existed with statutory controls, albeit less sophisticated, since the 19th century. There is no principle that the common law should march with a statutory scheme covering similar subject matter. Short of express or implied statutory authority to commit a nuisance, there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights. Peter Gibson LJ expressed much the same view in Wheeler at 35, where he suggested that [t]he court should be slow to acquiesce in the extinction of private rights without compensation as a result of administrative decisions which cannot be appealed and are difficult to challenge. In an observation that also relates to the final topic raised on this appeal, he added that, where a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted, he could well see that in such a case the public interest must be allowed to prevail and that it would be inappropriate to grant an injunction (though whether that should preclude any award of damages in lieu is a question which may need further consideration). Accordingly, I consider that the mere fact that the activity which is said to give rise to the nuisance has the benefit of a planning permission is normally of no assistance to the defendant in a claim brought by a neighbour who contends that the activity cause a nuisance to her land in the form of noise or other loss of amenity. A planning authority has to consider the effect of a proposed development on occupiers of neighbouring land, but that is merely one of the factors which has to be taken into account. The planning authority can be expected to balance various competing interests, which will often be multifarious in nature, as best it can in the overall public interest, bearing in mind relevant planning guidelines. Some of those factors, such as many political and economic considerations which properly may play a part in the thinking of the members of a planning authority, would play no part in the assessment of whether a particular activity constitutes a nuisance unless the law of nuisance is to be changed fairly radically. Quite apart from this, when granting planning permission for a change of use, a planning authority would be entitled to assume that a neighbour whose private rights might be infringed by that use could enforce those rights in a nuisance action; it could not be expected to take on itself the role of deciding a neighbours common law rights. However, there will be occasions when the terms of a planning permission could be of some relevance in a nuisance case. Thus, the fact that the planning authority takes the view that noisy activity is acceptable after 8.30 am, or if it is limited to a certain decibel level, in a particular locality, may be of real value, at least as a starting point as Lord Carnwath says in para 218 below, in a case where the claimant is contending that the activity gives rise to a nuisance if it starts before 9.30 am, or is at or below the permitted decibel level. While the decision whether the activity causes a nuisance to the claimant is not for the planning authority but for the court, the existence and terms of the permission are not irrelevant as a matter of law, but in many cases they will be of little, or even no, evidential value, and in other cases rather more. The evidence before the planning authority when it was deciding to grant planning permission may also be before the court when deciding a nuisance claim. This evidence will often consist of letters or other submissions from neighbours (sometimes including the claimant), expert assessments, and advice from planning officers. The weight to be given to this sort of evidence obviously depends very much on the facts of the particular case, but, in a nuisance case with live witnesses, it will be likely to be of significantly less value if the people who produced the documents are not available to be cross examined. It should be added that I am very dubious about the notion that it would always be safe to assume that the reasons given by planning officers for recommending that planning permission be granted were the actual reasons which the planning authority had in mind when granting planning permission. While the planning officers reasons would normally feature large in the minds of members of the planning committee, it would be little short of nave to assume that even the majority of those members who were in favour of granting permission agreed with all those reasons, or had no other reasons. Where a planning authority is defending a public law attack on the grant of a planning permission, and the only positive evidence of its reasons for the grant of the permission are those contained in the planning officers advice, and the authority has adduced no evidence to suggest that it had not accepted those reasons (and there is no other evidence to suggest otherwise), I can see some ground for making the assumption. However, where the issue arises in private law proceedings in which the planning authority is not a party and the planning permission itself is not under attack, and in which there is normally oral evidence, I do not think it would be necessarily correct to make such an assumption. Whether it would be right to make the assumption in a particular case would depend on the evidence, including the contemporary documentation and possibly expert evidence, as well as on the arguments. It is right to add that I should not be taken as necessarily suggesting that the actual decision that there was no liability in nuisance in Gillingham [1993] QB 343 was wrong, although much of Buckley Js reasoning, despite the fact that it was approved in the dissenting judgment of Lord Cooke of Thorndon in Hunter [1997] AC 655, 722, cannot stand. As Lord Carnwath points out in para 203 below, the alternative basis for the decision in Gillingham, which was based on discretion, was probably right. The award of damages instead of an injunction As explained in paras 24 25 above, in addition to awarding the appellants damages for the nuisance by noise which they had suffered in the past, the judge granted them an injunction limiting the levels of noise which could be emitted from the Stadium and the Track, and he also gave liberty to apply. He was not invited to award the appellants damages instead of an injunction. On this appeal, however, the respondents contend that, if the judge was right in concluding that their activities at the Stadium and the Track constituted a nuisance, then this was a case where he ought to have awarded damages instead of an injunction. Where a claimant has established that the defendants activities constitute a nuisance, prima facie the remedy to which she is entitled (in addition to damages for past nuisance) is an injunction to restrain the defendant from committing such nuisance in the future; of course, the precise form of any injunction will depend very much on the facts of the particular case. However, ever since Lord Cairns Act (the Chancery Amendment Act 1858 (21 & 22 Vict c 27)), the court has had power to award damages instead of an injunction in any case, including a case of nuisance see now section 50 of the Senior Courts Act 1981. Where the court decides to refuse the claimant an injunction to restrain a nuisance, and instead awards her damages, such damages are conventionally based on the reduction in the value of the claimants property as a result of the continuation of the nuisance. Subject to what I say in paras 128 131 below, this is clearly the appropriate basis for assessing damages, given that nuisance is a property related tort and what constitutes a nuisance is judged by the standard of the ordinary reasonable person. The question which arises is what, if any, principles govern the exercise of the courts jurisdiction to award damages instead of an injunction. The case which is probably most frequently cited on the question is Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, but there has been a substantial number of cases in which judges have considered the issue, some before, and many others since. For present purposes, it is necessary to consider Shelfer and some of the subsequent cases, which were more fully reviewed by Mummery LJ in Regan v Paul Properties DPF No 1 Ltd [2007] Ch 135, paras 35 59. In Shelfer, the Court of Appeal upheld the trial judges decision to grant an injunction to restrain noise and vibration. Lindley LJ said at pp 315 316: [E]ver since Lord Cairns Act was passed the Court of Chancery has repudiated the notion that the legislature intended to turn that court into a tribunal for legalising wrongful acts; or in other words, the court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict. Neither has the circumstance that the wrongdoer is in some sense a public benefactor (eg, a gas or water company or a sewer authority) ever been considered a sufficient reason for refusing to protect by injunction an individual whose rights are being persistently infringed. A L Smith LJ said at 322 323, in a frequently cited passage: [A] person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour's rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be. In such cases the well known rule is not to accede to the application, but to grant the injunction sought, for the plaintiffs legal right has been invaded, and he is prima facie entitled to an injunction. There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution. In my opinion, it may be stated as a good working rule that (1) If the injury to the plaintiffs legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction then damages in substitution for an injunction may be given. Significant obiter observations were subsequently made on the question in Colls v Home & Colonial Store Ltd [1904] AC 179, where the House of Lords reversed the courts below who had concluded that the defendant had infringed the plaintiffs right to light (and had awarded an injunction). Lord Macnaghten said at p 192 that he had some difficulty within following out [the] rule that an injunction ought to be granted when substantial damages would be given at law. He added at p 193 that if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, then he was disposed to think that the court ought to incline to damages rather than to an injunction. Lord Lindley (as he had by then become), at pp 212 213, after reviewing some of the previous cases on the topic, including Shelfer, described the result of the foregoing review of the authorities as not altogether satisfactory, and adding that there is the uncertainty as to whether the proper remedy is an injunction or damages, but that the good sense of judges and juries may be relied upon for adequately protecting rights to light on the one hand and freedom from unnecessary burdens on the other. In Kine v Jolly [1905] 1 Ch 480, the Court of Appeal discharged an injunction restraining an interference to a right to light. At p 504, Cozens Hardy LJ said he thought that the tendency of the speeches in the House of Lords in Colls was to go a little further than was done in Shelfer, and indicated that as a general rule the court ought to be less free in granting mandatory injunctions than it was in years gone by. Vaughan Williams LJ appears to have thought that the two cases involved different approaches, but concluded that each approach yielded the conclusion that there should be no injunction. Romer LJ, dissenting on the issue of liability, did not need to decide the point, and did not indicate which he preferred. In the subsequent decision of Slack v Leeds Industrial Co operative Society Ltd [1924] 2 Ch 475, which was also concerned with an interference with the plaintiffs right to light, all three members of the Court of Appeal (Sir Ernest Pollock MR, and Warrington and Sargant LJJ) considered that nothing in Colls served to undermine the good working rule of A L Smith LJ in Shelfer, although they discharged a quia timet injunction and ordered an inquiry as to damages. In Fishenden v Higgs & Hill Ltd (1935) 153 LT 128, another rights of light case, the Court of Appeal adopted a rather different approach, when allowing an appeal against Crossman Js refusal to award damages instead of an injunction. Lord Hanworth MR (as Sir Ernest Pollock had become) observed that his judgment in Slack should not be read as saying that A L Smith LJs four tests by themselves were now prescribed as the guiding tests for the court. Indeed, he observed at p 139 that we ought to incline against an injunction if possible. Romer LJ said at p 141 that A L Smith LJs four tests were not intended to be a fetter on the exercise of the courts discretion, and suggested that, while it was true that an injunction should be refused if those tests were satisfied, it by no means follow[ed] that an injunction should be granted if they were not. In deciding to overturn the injunction, Romer LJ was strongly influenced by the fact that the defendants had acted fairly [and] in a neighbourly spirit as well as by the conduct of the plaintiff. At p 144, Maugham LJ said that the working rule laid down by A L Smith LJ was not a universal or even a sound rule in all cases of injury to light, and said he preferred the approach of Lord Lindley in Shelfer and Colls. In more recent times, the Court of Appeal seems to have assumed that the approach of Lindley and A L Smith LJJ in Shelfer represents the law, and indeed that the four tests suggested by A L Smith LJ are normally to be applied, so that, unless all four tests are satisfied, there was no jurisdiction to refuse an injunction. That seems to have been the approach of Geoffrey Lane LJ in Miller [1977] 1 QB 966 (discussed in paras 48 49 above), and of Lawton LJ in Kennaway [1981] QB 88 (discussed in para 57 above). Jaggard v Sawyer [1995] 1 WLR 269, was a case where the Court of Appeal upheld the trial judges decision to award damages instead of an injunction restraining the defendant trespassing on the plaintiffs land. In so doing, the judge effectively gave the defendant a right of way to his house over the plaintiffs land, against the plaintiffs will, in return for a capital payment from the defendant to the plaintiff (see pp 286 287). At pp 282 283, Sir Thomas Bingham MR (with whom Kennedy LJ agreed), specifically tested the trial judges decision to award damages by reference to A L Smith LJs four tests, and emphasised that the test is one of oppression, and the court should not slide into application of a general balance of convenience test. He held that the judge had rightly concluded that the four tests were satisfied. Millett LJ said at p 287 that A L Smith LJs checklist has stood the test of time, but emphasised that it is only a working rule and does not purport to be an exhaustive statement of the circumstances in which damages may be awarded instead of an injunction. As he immediately went on to emphasise on the next page, the decision whether or not to award damages instead of an injunction is a discretion. Accordingly, he said, the cases where judges have awarded or refused to award damages can be no more than illustrations of circumstances in which particular judges have exercised their discretion. He also suggested that [t]he outcome of any particular case usually turns on the question: would it in all the circumstances be oppressive to the defendant to grant the injunction to which the plaintiff is prima facie entitled? He then went on to refer to the significance of the defendants state of mind, including openness, good faith, and understanding. Some seven years ago, in Regan [2007] Ch 135, the Court of Appeal rejected the trial judges view that, where the defendants building interfered with the claimants right to light, the onus was on the claimant to show that damages were not an adequate remedy. In his judgment, Mummery LJ then effectively decided that an injunction should be granted on the basis that three of A L Smith LJs tests were not satisfied: see paras 70 73. In Watson [2009] 3 All ER 249, the Court of Appeal reversed the trial judges decision to award damages instead of an injunction in a case where the nuisance was very similar in nature and cause to that alleged in this case. At para 44, Sir Andrew Morritt C described the appropriate test as having been clearly established by the decision of the Court of Appeal in Shelfer, namely that damages in lieu of an injunction should only be awarded under very exceptional circumstances. He also said that Shelfer established that the circumstance that the wrongdoer is in some sense a public benefactor is not a sufficient reason for refusing an injunction, although he accepted at para 51 that the effect on the public could properly be taken into account in a case where the damage to the claimant is minimal. It seems to me that there are two problems about the current state of the authorities on this question of the proper approach for a court to adopt on the question whether to award damages instead of an injunction. The first is what at best might be described as a tension, and at worst as an inconsistency, between two sets of judicial dicta since Shelfer. Observations in Slack, Miller, Kennaway, Regan, and Watson appear to support the notion that A L Smith LJs approach in Shelfer is generally to be adopted and that it requires an exceptional case before damages should be awarded in lieu of an injunction, whereas the approach adopted in Colls, Kine, and Fishenden seems to support a more open minded approach, taking into account the conduct of the parties. In Jaggard, the Court of Appeal did not need to address the question, as even on the stricter approach it upheld the trial judges award of damages in lieu, although Millett LJ seems to have tried to reconcile the two approaches. The second problem is the unsatisfactory way in which it seems that the public interest is to be taken into account when considering the issue whether to grant an injunction or award damages. The notion that it can be relevant where the damages are minimal, but not otherwise, as stated in Watson, seems very strange. Either the public interest is capable of being relevant to the issue or it is not. As part of this second problem, there is a question as to the extent to which it is relevant that the activity giving rise to the nuisance has the benefit of a planning permission. So far as the first problem is concerned, the approach to be adopted by a judge when being asked to award damages instead of an injunction should, in my view, be much more flexible than that suggested in the recent cases of Regan and Watson. It seems to me that (i) an almost mechanical application of A L Smith LJs four tests, and (ii) an approach which involves damages being awarded only in very exceptional circumstances, are each simply wrong in principle, and give rise to a serious risk of going wrong in practice. (Quite apart from this, exceptionality may be a questionable guide in any event see Manchester City Council v Pinnock (Secretary of State for Communities and Local Government intervening) [2011] 2 AC 104, para 51). The courts power to award damages in lieu of an injunction involves a classic exercise of discretion, which should not, as a matter of principle, be fettered, particularly in the very constrained way in which the Court of Appeal has suggested in Regan and Watson. And, as a matter of practical fairness, each case is likely to be so fact sensitive that any firm guidance is likely to do more harm than good. On this aspect, I would adopt the observation of Millett LJ in Jaggard [1995] 1 WLR 269, 288, where he said: Reported cases are merely illustrations of circumstances in which particular judges have exercised their discretion, in some cases by granting an injunction, and in others by awarding damages instead. Since they are all cases on the exercise of a discretion, none of them is a binding authority on how the discretion should be exercised. The most that any of them can demonstrate is that in similar circumstances it would not be wrong to exercise the discretion in the same way. But it does not follow that it would be wrong to exercise it differently. Having approved that statement, it is only right to acknowledge that this does not prevent the courts from laying down rules as to what factors can, and cannot, be taken into account by a judge when deciding whether to exercise his discretion to award damages in lieu. Indeed, it is appropriate to give as much guidance as possible so as to ensure that, while the discretion is not fettered, its manner of exercise is as predictable as possible. I would accept that the prima facie position is that an injunction should be granted, so the legal burden is on the defendant to show why it should not. And, subject to one possible point, I would cautiously (in the light of the fact that each case turns on its facts) approve the observations of Lord Macnaghten in Colls [1904] AC 179, 193, where he said: In some cases, of course, an injunction is necessary if, for instance, the injury cannot fairly be compensated by money if the defendant has acted in a high handed manner if he has endeavoured to steal a march upon the plaintiff or to evade the jurisdiction of the Court. In all these cases an injunction is necessary, in order to do justice to the plaintiff and as a warning to others. But if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, I am disposed to think that the Court ought to incline to damages rather than to an injunction. It is quite true that a man ought not to be compelled to part with his property against his will, or to have the value of his property diminished, without an Act of Parliament. On the other hand, the Court ought to be very careful not to allow an action for the protection of ancient lights to be used as a means of extorting money. The one possible doubt that I have about this observation relates to the suggestion in the antepenultimate sentence that the court ought to incline to damages in the event he describes. If, as I suspect, Lord Macnaghten was simply suggesting that, if there was no prejudice to a claimant other than the bare fact of an interference with her rights, and there was no other ground for granting an injunction, I agree with him. However, it is right to emphasise that, when a judge is called on to decide whether to award damages in lieu of an injunction, I do not think that there should be any inclination either way (subject to the legal burden discussed above): the outcome should depend on all the evidence and arguments. Further, the sentence should not be taken as suggesting that there could not be any other relevant factors: clearly there could be. (It is true that Colls, like a number of the cases on the issue of damages in lieu, was concerned with rights of light, but I do not see such cases as involving special rules when it comes to this issue. Shelfer itself was not a right to light case; nor were Jaggard and Watson. However, in many cases involving nuisance by noise, there may be more wide ranging issues and more possible forms of relief than in cases concerned with infringements of a right to light.) Where does that leave A L Smith LJs four tests? While the application of any such series of tests cannot be mechanical, I would adopt a modified version of the view expressed by Romer LJ in Fishenden 153 LT 128, 141. First, the application of the four tests must not be such as to be a fetter on the exercise of the courts discretion. Secondly, it would, in the absence of additional relevant circumstances pointing the other way, normally be right to refuse an injunction if those four tests were satisfied. Thirdly, the fact that those tests are not all satisfied does not mean that an injunction should be granted. As for the second problem, that of public interest, I find it hard to see how there could be any circumstances in which it arose and could not, as a matter of law, be a relevant factor. Of course, it is very easy to think of circumstances in which it might arise but did not begin to justify the court refusing, or, as the case may be, deciding, to award an injunction if it was otherwise minded to do so. But that is not the point. The fact that a defendants business may have to shut down if an injunction is granted should, it seems to me, obviously be a relevant fact, and it is hard to see why relevance should not extend to the fact that a number of the defendants employees would lose their livelihood, although in many cases that may well not be sufficient to justify the refusal of an injunction. Equally, I do not see why the court should not be entitled to have regard to the fact that many other neighbours in addition to the claimant are badly affected by the nuisance as a factor in favour of granting an injunction. It is also right to mention planning permission in this context. In some cases, the grant of planning permission for a particular activity (whether carried on at the claimants, or the defendants, premises) may provide strong support for the contention that the activity is of benefit to the public, which would be relevant to the question of whether or not to grant an injunction. Accordingly, the existence of a planning permission which expressly or inherently authorises carrying on an activity in such a way as to cause a nuisance by noise or the like, can be a factor in favour of refusing an injunction and compensating the claimant in damages. This factor would have real force in cases where it was clear that the planning authority had been reasonably and fairly influenced by the public benefit of the activity, and where the activity cannot be carried out without causing the nuisance complained of. However, even in such cases, the court would have to weigh up all the competing factors. In some such cases, the court may well be impressed by a defendants argument that an injunction would involve a loss to the public or a waste of resources on account of what may be a single claimant, or that the financial implications of an injunction for the defendant would be disproportionate to the damage done to the claimant if she was left to her claim in damages. In many such cases, particularly where an injunction would in practice stop the defendant from pursuing the activities, an injunction may well not be the appropriate remedy. Since writing this, I have read with interest Lord Sumptions suggestions as to how the law on the topic of damages instead of an injunction in nuisance cases might develop. At any rate on the face of it, I can see much merit in the proposals which he proffers. However, it would be inappropriate to go further than I have gone at this stage, in the light of the arguments which were raised on this appeal. There may well be objections, qualifications, and alternatives which could be made in relation to Lord Sumptions suggested approach, and they should be considered before the law on this topic is developed further. In that connection, I see real force in what Lord Mance says in para 168. A final point which it is right to mention on this issue is the measure of damages, where a judge decides to award damages instead of an injunction. It seems to me at least arguable that, where a claimant has a prima facie right to an injunction to restrain a nuisance, and the court decides to award damages instead, those damages should not always be limited to the value of the consequent reduction in the value of the claimants property. While double counting must be avoided, the damages might well, at least where it was appropriate, also include the loss of the claimants ability to enforce her rights, which may often be assessed by reference to the benefit to the defendant of not suffering an injunction. Support for such an approach may be found in the reasoning in Jaggard [1995] 1 WLR 269, which suggests that this is a proper approach to damages where an injunction is refused to restrain a trespass, and damages were awarded instead. Sir Thomas Bingham MR said this at pp 281 282, when explaining and approving an earlier case where a judge had assessed damages for breach of a restrictive building covenant, which he then applied to the claim in Jaggard: The defendants had committed a breach of covenant, the effects of which continued. The judge was not willing to order the defendants to undo the continuing effects of that breach. He had therefore to assess the damages necessary to compensate the plaintiffs for this continuing invasion of their right. He paid attention to the profits earned by the defendants, as it seems to me, not in order to strip the defendants of their unjust gains, but because of the obvious relationship between the profits earned by the defendants and the sum which the defendants would reasonably have been willing to pay to secure release from the covenant. To the same effect, Millett LJ said this at p 292 in Jaggard: In my view there is no reason why compensatory damages for future trespasses and continuing breaches of covenant should not reflect the value of the rights which she has lost, or why such damages should not be measured by the amount which she could reasonably have expected to receive for their release. However, there are factors which support the contention that damages in a nuisance case should never, or only rarely, be assessed by reference to the benefit to the defendant in no injunction being granted, as pointed out by Lord Carnwath in para 248 below. For that reason, as well as because we have not heard argument on the issue, it would be inappropriate for us to seek to decide on this appeal whether, and if so in what circumstances, damages could be recoverable on this basis in a nuisance claim. There are differences between the various members of the Court on this final issue. Most, probably all, of these differences are ones of emphasis and detail rather than of principle, but I nonetheless accept that we are at risk of introducing a degree of uncertainty into the law. The nature of the issue, whether to award damages in lieu of an injunction, is such that a degree of uncertainty is inevitable, but that does not alter the fact that it should be kept to a reasonable minimum. Given that we are changing the practice of the courts, it is inevitable that, in so far as there can be clearer or more precise principles, they will have to be worked out in the way familiar to the common law, namely on a case by case basis. The resolution of this appeal Having dealt with the points of principle raised on this appeal, I can now turn to the application of those principles to the facts of this appeal. First, there is no question of the respondents being able to rely on the fact that the appellants came to the nuisance, or any other similar argument. The appellants used their property, Fenland, as a residence, which was the same purpose to which it had been put ever since before the activities currently carried on at the Stadium and the Track had started. Secondly, there is the relevance of the planning situation in relation to the appellants nuisance claim. As already explained (paras 77 79 above) the judge was wrong to hold that (i) the planning permission granted in 1985 and the CLEUD issued in 1997 in relation to the use of the Stadium, and (ii) the planning permission granted in 2002 for the use of the Track, were irrelevant for the purposes of the appellants nuisance claim on the ground that the planning permissions were personal and they and the CLEUD were for discontinuous periods. Accordingly, the two permissions and the CLEUD were, at least in principle, evidence which could have been taken into account. However, I do not consider that the judges failure to take them into account can fairly be said to undermine his conclusion that the respondents activities at the Stadium and the Track constituted a nuisance. The CLEUD was of no relevance, other than as evidence which supported the argument that the activities to which it related had been going on for ten years before it had been applied for. The planning permissions showed that the planning authority considered that at least most of the uses of which the appellants complained were acceptable in planning terms, and turned their minds to some extent to noise pollution by limiting the frequency and the times of the activities. Further, the judges failure to give any weight to the planning permissions or the CLEUD on the issue of nuisance does not call into question his ultimate conclusion on that issue in favour of the appellants. It was not the appellants case, nor was it the judges conclusion, that the current use of the Stadium and the Track was by any means necessarily inappropriate: the concern was over the level of noise, which was not a matter specifically covered by the planning permissions or the CLEUD (save the 2002 permission for the motocross activities on the Track). This is best illustrated by the judges concern to make an order which enabled the business at the Stadium and the Track to continue. Quite apart from this, as already explained, the fact that a particular use has been granted planning permission is not normally a matter of much weight, and there was no reason to think that this was an exceptional case. On the contrary. The evidence showed that it was not an easy decision whether to grant the planning permissions, as was demonstrated by the initial temporary permissions, and the cautious nature of the planning officers recommendation. Further, the background documents to the planning permissions (including letters of support and opposition, and the planning officers reports) were available to the judge, and he took them into account, and there was a wealth of other evidence available to the judge at the trial, and that evidence was subject to cross examination, and he took it all into account. As I have already explained, the Court of Appeal took the view that the 1985 and 2002 planning permissions, given that they had been implemented, were highly relevant to, indeed effectively determinative of, the appellants claim in nuisance. For the reasons which I have given in paras 80 98 above, that was wrong (although understandable in the light of earlier decisions of the Court of Appeal), and, as I have just explained, although the Judge also went wrong on the issue of the relevance of the permissions, I do not think that his error justified interfering with his conclusion. The third question is whether the Judge went wrong in holding that the respondents had failed to establish a right by prescription to create what would otherwise be a nuisance of noise at the Stadium. On that topic, I consider that the judge was right for the wrong reason. I do not consider that he was entitled to hold that the interruption for two years prevented the respondents obtaining the right to create what would otherwise be a nuisance of noise if they had otherwise satisfied the requirements for establishing such a right. If a person regularly causes a nuisance by noise through holding motocross events more than 20 times a year for a period of 20 years, save that during two years of that period, there are no such events, I consider that the requirements of a prescriptive right would be satisfied (subject, of course, to there being any of the normal defences). In that connection, I have already referred in para 37 above to the judgments in Carr v Foster 3 QB 581. Mere non use, or inactivity, for two out of 20 years, at least in the absence of other evidence, would be insufficient to justify a court concluding that an action which has been carried out for the other 18 years fairly consistently and to a significant extent in each of those years failed to justify the conclusion that a prescriptive right had been established. It is a question of degree, and that is shown by contrasting the facts of the present case and of Carr with those of White v Taylor (No 2) [1969] 1 Ch 160, where non use for two periods, each more than five years, did defeat a prescription claim. The essential question in a prescription case has been said to be whether the nature and degree of the activity of the putative dominant owner over the period of 20 years, taken as a whole, should make a reasonable person in the position of the putative servient owner aware that a continuous right to enjoyment is being asserted and ought to be challenged if it is intended to be resisted (see Gale op cit, para 4.54, and per Lord Walker in Lewis [2010] 2 AC 70, para 30). This somewhat circular and hypothetical test appears to involve questions of degree and judgment. However, one must take as a starting point the somewhat arbitrary, but at least clear, proposition that, where the use or activity in question has been carried on as of right for 20 years or more, then, absent special facts, the dominant owner gets a right to carry on the use or activity. Accordingly, the answer to my mind on the facts of this case is plain: assuming that the activities at the stadium and the Track had caused a nuisance over a period of at least 20 years, the putative servient owner should have appreciated what was being claimed. Given the consistent and substantial activities at the Stadium for all but two of those 20 or more years the two years interruption should not be capable of being a problem for the respondents prescriptive claim. However, the reason why, in my view, the respondents fail to establish a prescriptive right to create what would otherwise be a nuisance in this case, is that, even allowing for the fact that gaps such as that discussed in the preceding two paragraphs would not be fatal to their claim, they did not show that their activities during a period of 20 years amounted to a nuisance. As explained in paras 35 37 above, in order to justify the establishment of a right to create a noise by prescription, it is not enough to show that the activity which now creates the noise has been carried on for 20 years. It is not even enough to show that the activity has created a noise for 20 years. What has to be established is that the activity has (or a combination of activities have) created a nuisance over 20 years. Otherwise, it could not be said that the putative servient owner had the opportunity to object to the nuisance, or could be said notionally to have agreed to it. As acknowledged in paras 35 39 above, this requirement will often present evidential problems for a person seeking to establish by prescription a right to commit what would otherwise be a nuisance. Of course, the strictness of this requirement is mitigated by the fact that the nuisance does not need to have occurred anything like every day during the 20 years, as just explained. In the present case, it seems to me that, on the findings made by the judge, and the evidence as explained by him, fell well short of establishing that the activities had caused a nuisance to Fenland for a continuous period of 20 years (even allowing for periods of no nuisance as in Carr) at any time between the commencement of the use of the Stadium in 1976 and the date on which these proceedings were issued in 2008. Mr Relton (the appellants predecessor in title) apparently first formally complained of noise to the council in 1992 (only 16 years before the proceedings were brought), and this resulted in the abatement notices referred to in para 11 above. At least as recorded in the judgment, no witness appears to have suggested, through either first hand or hearsay evidence, either expressly or inferentially, that there was nuisance by noise to Fenland much before 1994. The appellants witnesses seem to have come to the area after 1990, and (with the exception of Mrs Relton) the respondents witnesses seem to have been in a similar position, and Mrs Relton denied that there was a significant noise problem (and indeed described her husband as over sensitive to noise). There is also an argument that the judge did not properly approach the question whether the respondents caused a nuisance by noise on the right basis, as he decided that Fenland was to be treated as being in a purely agricultural environment, rather than in an environment which included the Stadium and the Track used for activities which did not create a nuisance (as explained in para 65 above). There are passages in his judgment which suggest that he may have approached the issue on this basis. However, it is clear that he did not do so, as, in para 243 of his decision, he fixed the acceptable level of noise from the Stadium and Track by reference to the levels of noise emitted from land used for similar activities (see para 24 above). The consequence of these conclusions is that, subject to a final point, the injunction granted by the judge should be restored (together with all the other terms, including the permission to apply). The final point is whether the judge should have awarded damages rather than an injunction. Given that he was not asked to do so, it is scarcely surprising that he did not address this issue. Further, it is not an issue which an appellate court should determine when the trial judge was not asked to do so, save in the most exceptional circumstances. The decision whether to award damages instead of an injunction can be dependent on a number of issues, including the behaviour and attitude of the parties. It is therefore a matter on which the trial judge is particularly well positioned to assess in a case such as this, where there was substantial oral evidence. Further, a defendant who wishes to argue that the court should award damages rather than an injunction should make it clear that he wishes to do so well in advance of the hearing, not least because the claimant may wish to adduce documentary or oral evidence on that issue which she would not otherwise consider relevant. The appellants were not afforded such an opportunity in this case. However, as Lord Clarke said in argument, it would be wrong to be very critical of the respondents for not raising the point at or before the trial as the decisions in Regan and Watson would have precluded the trial judge from awarding damages in lieu of an injunction, although it is right to add that the respondents should ideally have reserved their position on the point. In my judgment, the fairest way to deal with the point that the judge should have awarded damages instead of an injunction is to refuse the respondents permission to raise it, but to hold that they should be free to raise the argument that the injunction granted by the judge should be discharged, and damages awarded instead under the provision in the judges order giving the parties permission to apply. I should emphasise that, if such an application were made by the respondents, I am not in any way seeking to fetter the judges discretion when deciding whether to award damages instead, or seeking to suggest how that discretion might be exercised. No doubt the judge will carefully consider the effect of, and give such appropriate weight as he sees fit to, all the circumstances, including the evidence and arguments which he has already received, and any fresh evidence and argument which he sees fit to receive, in the light of the points made in paras 119 130 above. Conclusion As the first, second and fifth issues set out in para 6 above were raised by the respondents, and the third and fourth issues were raised by the appellants, the effect of this decision is that the appeal is allowed, and the order of Judge Seymour QC is restored. LORD SUMPTION I agree that this appeal should be allowed for the reasons given by Lord Neuberger. It is, I think, worth pointing out that the question what impact the grant of planning permission should have on liability in tort for private nuisance and the question what remedies should be available for a nuisance are closely related. They both raise a broader issue of legal policy of some importance, namely how is one to reconcile public and private law in the domain of land use where they occupy much the same space? I agree with Lord Neuberger that the existence of planning permission for a given use is of very limited relevance to the question whether that use constitutes a private nuisance. It may at best provide some evidence of the reasonableness of the particular use of land in question. But planning authorities are concerned with the public interest in development and land use, as that interest is defined in the planning legislation and any relevant development plans and policies. Planning powers do not exist to enforce or override private rights in respect of land use, whether arising from restrictive covenants, contracts, or the law of tort. Likewise, the question whether a neighbouring landowner has a right of action in nuisance in respect of some use of land has to be decided by the courts regardless of any public interest engaged. What saves, or could save the law from anomaly and incoherence is the courts discretion as to remedies. An injunction is a remedy with significant side effects beyond the parties and the issues in the proceedings. Most uses of land said to be objectionable cannot be restrained by injunction simply as between the owner of that land and his neighbour. If the use of a site for (say) motocross is restrained by injunction, that prevents the activity as between the defendant and the whole world. Yet it may be a use which is in the interest of very many other people who derive enjoyment or economic benefits from it of precisely the kind with which the planning system is concerned. An injunction prohibiting the activity entirely will operate in practice in exactly the same way as a refusal of planning permission, but without regard to the factors which a planning authority would be bound to take into account. The obvious solution to this problem is to allow the activity to continue but to compensate the claimant financially for the loss of amenity and the diminished value of his property. In a case where planning permission has actually been granted for the use in question, there are particularly strong reasons for adopting this solution. It is what the law normally provides for when a public interest conflicts with a proprietary right. The main question, as it seems to me, is not whether the judge in deciding on the appropriate remedy should take account of the public interest or, more generally, of interests which are not before the court. He will usually lack the information to do so effectively, and is in danger of stepping outside his main function of deciding the issue between the parties. The main question is whether the current principles of law governing the availability of injunctions are consistent with the public interest reflected in the successive and increasingly elaborate legislative schemes of development control which have existed in England since 1947. The ordinary principle is that the court does not grant an injunction in a case where there is an adequate legal remedy. In particular, it does not do so where damages would be an adequate remedy. Where an injunction is granted, it is usually because the injury to the Claimant is irreparable, in the sense that money cannot atone for it. However, this principle has never been consistently followed in cases of nuisance. The leading case is Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 which created a strong presumption in favour of an injunction, to be displaced only in the four narrowly defined categories identified by AL Smith LJ at pp 322 323. The exceptions applied only to cases where the injury to the claimant was small and the grant of an injunction would be oppressive. In Colls v Home and Colonial Stores Ltd [1904] AC 179, 192, Lord Macnaghten wondered why an injunction should be granted when substantial damages would be given at law, and there were subsequent attempts to widen the discretion. But the courts have not taken the hint. In Regan v Paul Properties DPF No 1 Ltd [2007] Ch 135 and Watson v Croft Promosport Ltd [2009] 3 All ER 249 the Court of Appeal have reverted to substantially the same position as the Court of Appeal in Shelfer more than a century before. The courts might have defended the special treatment of nuisance by pointing to the traditional attitude of equity to land as being unique, an approach which is exemplified in its willingness to grant specific performance of contracts for the sale of land. From this, it might have been concluded that paying the claimant enough to buy a comparable property elsewhere where there was no nuisance was not equivalent to letting him use his existing land free of the nuisance. In fact the Shelfer principle was based mainly on the courts objection to sanctioning a wrong by allowing the defendant to pay for the right to go on doing it. This seems an unduly moralistic approach to disputes, and if taken at face value would justify the grant of an injunction in all cases, which is plainly not the law. In his dissenting judgment in the Court of Appeal in Co operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1996] Ch 286, 304 (subsequently upheld in the House of Lords [1998] AC 1), Millett LJ said: The competing arguments in the present case, and the difference in the views of the members of this court, reflect a controversy which has persisted since the dispute between Sir Edward Coke and Lord Ellesmere LC. Sir Edward Coke resented the existence of an equitable jurisdiction which deprived the defendant of what he regarded as a fundamental freedom to elect whether to carry out his promise or to pay damages for the breach. Modern economic theory supports Sir Edward Coke; an award of damages reflects normal commercial expectations and ensures a more efficient allocation of scarce economic resources. The defendant will break his contract only if it pays him to do so after taking the payment of damages into account; the plaintiff will be fully compensated in damages; and both parties will be free to allocate their resources elsewhere. Against this there is the repugnance felt by those who share the view of Fuller CJ in Union Pacific Railway Co v Chicago, Rock Island and Pacific Railway Co (1896) 163 US 564, 600 that it is an intolerable travesty of justice that a party should be allowed to break his contract at pleasure by electing to pay damages for the breach. English law has adopted a pragmatic approach in resolving this dispute. The leading principle is usually said to be that equitable relief is not available where damages are an adequate remedy. In my view, it would be more accurate to say that equitable relief will be granted where it is appropriate and not otherwise; and that where damages are an adequate remedy it is inappropriate to grant equitable relief. In my view, the decision in Shelfer is out of date, and it is unfortunate that it has been followed so recently and so slavishly. It was devised for a time in which England was much less crowded, when comparatively few people owned property, when conservation was only beginning to be a public issue, and when there was no general system of statutory development control. The whole jurisprudence in this area will need one day to be reviewed in this court. There is much to be said for the view that damages are ordinarily an adequate remedy for nuisance and that an injunction should not usually be granted in a case where it is likely that conflicting interests are engaged other than the parties interests. In particular, it may well be that an injunction should as a matter of principle not be granted in a case where a use of land to which objection is taken requires and has received planning permission. However, at this stage, in the absence of argument on these points, I can do no more than identify them as calling for consideration in a case in which they arise. LORD MANCE I agree that the appeal should be allowed for the reasons given by Lord Neuberger. In addition to their reasons for allowing this appeal, the judgments prepared by Lord Neuberger, Lord Sumption and Lord Carnwath address a number of wider issues which were argued before us. For the most part, I also agree with the way in which Lord Neuberger addresses these issues in his judgment. It is common ground that a change in the intensity of a previous activity may, just as much as the introduction of a new activity, give rise to a nuisance. The fact that the nuisance is already being committed cannot make it part of the character of the locality (see Lord Neubergers judgment paragraphs 65 to 76). But Lord Neuberger (paragraphs 72 and 74) and Lord Carnwath (paragraph 187) suggest, as I see it, that such a change or the introduction of a new activity may in some circumstances and to some degree be compatible with the existing character of the locality, and to that extent not involve the creation of a nuisance. With or without planning permission, the character of an area may be susceptible over time to gradual change and development. Each step in the process may be said by itself to fit with the existing character and be largely imperceptible, though, ultimately, the difference resulting from the totality of all the steps may be considerable. In the meantime, those occupying property, living or working, in the area, will have had time to adapt. That is a quite different process from one brought about by an activity increased in intensity or introduced for the first time and bringing about a radical change over a relatively short period. In the latter case and to the extent that the increased or new activity goes beyond anything which would fit with the existing character of the locality, an aggrieved occupier can have cause for complaint about a resulting nuisance, unless and until the increased or new activity is allowed to continue as a nuisance either for 20 years without proceedings being issued or by a court by refusal of an injunction. With regard to the significance of planning permission, I agree with what Lord Neuberger says in paragraphs 77 to 97 and 99. The reasoning in Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343 suggests that a development plan or a strategic planning decision adopted in the public interest can of itself bring about a corresponding major alteration in the character of a neighbourhood without any need to compensate for any private nuisance thereby caused. I regard that as unsustainable in principle and fairness. If the increase in an existing activity or the introduction of a new activity constitutes a nuisance in relation to the previously existing character of the locality, I see no basis for treating differently a decision to permit such an increase or new activity taken in the public interest by a development or planning authority. The general public interest may have led to a particular private interest being overlooked or overridden. If it is to be acceptable to permit this, then it should at least be permitted on a basis that affords compensation. That is not to suggest that the grant, terms and conditions of a planning permission may not have some relevance in some nuisance cases, as Lord Neuberger indicates in his paragraphs 96 to 97 and also (in relation to remedy) in paragraph 118. As to the reliance which might be placed on planning officers reports, on which Lord Neuberger touches in paragraph 98, it seems to me that it must all depend on the nature of the decision and of the debate before the planning committee and so on all the circumstances (as I understand Lord Neuberger also to say in the last sentence of paragraph 98), and I prefer myself to say no more without rather more information about these in a specific case. With regard to remedy, I am broadly in agreement with Lord Neuberger. However, I would adopt the qualifications made by Lord Carnwath in his paragraphs 246 and 247. I do not think that a grant of planning permission can give rise to any presumption that there should be no injunction, and, while I would, in a case where it was relevant, like to hear argument on this, I am not at present persuaded that cases on the right to light involve the same considerations as those arising, or are therefore necessarily helpful, where the question is the appropriate remedy in respect of a nuisance of the present different nature. I would only add in relation to remedy that the right to enjoy ones home without disturbance is one which I would believe that many, indeed most, people value for reasons largely if not entirely independent of money. With reference to Lord Sumptions concluding paragraph, I would not therefore presently be persuaded by a view that damages are ordinarily an adequate remedy for nuisance and that an injunction should not usually be granted in a case where it is likely that conflicting interests are engaged other than the parties interests a suggested example of the latter being given as a case where a use of land has received planning permission. I would see this as putting the significance of planning permission and public benefit too high, in the context of the remedy to be afforded for a private nuisance. As already indicated, I agree with Lord Neubergers nuanced approach. LORD CLARKE I agree with the conclusions and reasoning of Lord Neuberger subject to one or two points. First, I agree that the fact that planning permission has been granted is capable of being relevant to an action in nuisance in a number of respects but, as Lord Carnwath has shown, the facts of such cases are so varied that it is difficult to lay down hard and fast rules. As so often, all depends upon the circumstances. However, I agree with Lord Neuberger, Lord Sumption and Lord Carnwath that the existence of planning permission for the activity complained of may well be of particular relevance to the remedy to be granted. Secondly, I agree with Lord Neuberger at para 120 that the courts power to award damages in lieu of an injunction involves a classic exercise of discretion which should not as a matter of principle be fettered. In these circumstances, in the absence of submissions on the point, I would wish to reserve the question upon whom the burden of proof should be placed on the question how that discretion should be exercised. Thirdly, as I see it, the most important aspect of this case relates to the correct approach to remedies. In particular I agree with the views of Millett LJ in Co operative Insurance Society Ltd v Argyll Stores (Holdings) Limited [1996] Ch 286 at 305, which was a dissenting judgment but was subsequently upheld by the House of Lords at [1986] AC 1. He concluded that the general principle is or should be that equitable relief will be granted where it is appropriate and not otherwise and that, where damages are an adequate remedy, it is inappropriate to grant equitable relief. Lord Sumption set out Millett LJs views at his para 160, as I read it, with approval. I entirely agree with Lord Sumption (at para 161) that the decision in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 is out of date and that it is unfortunate that it has been followed so recently and so slavishly. Indeed, I would so hold now in this appeal, although (in the absence of submissions) I would not now lay down precise principles which should be followed in the future. They must be developed on a case by case basis and in each case all will depend upon the circumstances. I agree with Millett LJs general approach. Fourthly, I would leave open the question how damages should be assessed. The traditional approach had been to assess the loss of value of the property caused by the nuisance. There may also be scope for an award of general damages: see eg, in the context of noise, Farley v Skinner [2002] 2 AC 732. Although the claim was in contract, Lord Steyn, who gave the leading speech, would have reached the same conclusion if the claim had been in nuisance: see para 30. It may however be that, in the light of the views expressed by Lord Hoffmann in Hunter v Canary Wharf [1997] 1 AC 655 at 706, such damages could only be awarded in nuisance as loss of the amenity value of the land. This could be in the form of general damages if it is not possible to prove a specific loss of value, rather as in Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 244, which is referred to by Lord Hoffmann at page 706F. Finally, I would leave open the question whether it may in some circumstances be appropriate to award what have been called gain based damages in lieu of an injunction. I appreciate the possible problems identified by Lord Neuberger and Lord Carnwath but it does seem to me that, where a claimant is seeking an injunction to restrain the noise which has been held to amount to a nuisance, it is at least arguable that there is no reason in principle why a court considering whether or not to award damages in lieu of an injunction should not be able to award damages on a more generous basis than the diminution in value caused by the nuisance, including, for example, an award which represented a reasonable price for a licence to commit the nuisance. So, for example, as Lord Neuberger notes at para 111, in Jaggard v Sawyer [1995] 1 WLR 269 the Court of Appeal awarded damages for trespass in lieu of an injunction which in effect gave the defendant a right of way over the plaintiffs land in return for a capital sum. If that can be done in trespass I do not at present see why it should not in principle be done in nuisance in a case like this, where a similar payment would give the respondents the right to commit what would otherwise be a nuisance by noise. Moreover, as Lord Neuberger observes at para 128, there may be scope for assessing the claimants loss by reference to the benefit to the defendant of not suffering an injunction. However, these are all matters for the future and I recognise that before reaching final conclusions it would be necessary to consider the relevant authorities and to receive appropriate submissions. I agree with Lord Neubergers proposals as to the resolution of the appeal. In particular, as to the future, I agree with his paras 148 to 151, especially 150 and 151. Thus, while I naturally hope that issues of remedy can now be resolved by agreement, some of the questions raised by Lord Neuberger and the other judgments in this appeal may fall for decision in this very case. LORD CARNWATH Basic principles The present appeal raises important issues relating to an area of the law which has received little attention at the highest level, that is nuisance by interference with enjoyment (as distinct from nuisance by encroachment or damage: see Clerk & Lindsell on Torts 20th ed (2010), para 20 07, 09). Although many of the relevant principles are treated by the textbooks as long settled, the authorities are generally in the Court of Appeal and below. Particular aspects of the law of nuisance, notably the rule in Rylands v Fletcher (1868) LR 3 HL 330, have received recent attention in the House of Lords (Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 and Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1), and some of the speeches have commented on more general principles. But for authoritative statements at the highest level on this area of the law one has to go back almost 150 years, to the landmark case of St Helens Smelting Co v Tipping (1865) 11 HL Cas 642, long before the advent of modern planning control. Ben Pontin in his valuable recent book Nuisance Law and Environmental Protection (2013) shows how since the middle of the 19th Century common law nuisance has played an important complementary role to regulatory controls, on the one hand stimulating industry to find better technical solutions to environmental problems, and, on the other, stimulating the legislature to fill gaps in the regulatory system. He sees the present appeal as an important opportunity for the Supreme Court to review the proper role of this part of the law of nuisance in the modern world (p 184). Lord Neuberger has highlighted five particular issues raised by the appeal, in summary: i) ii) iii) The defendants activity as part of the character of the area iv) Relevance of planning permission v) Remedies Prescriptive right Coming to the nuisance On the first two issues I agree respectfully with Lord Neuberger and have nothing to add. On the others, although I agree with his overall conclusions, I prefer to explain my reasoning in my own words. Reasonable user It is important at the outset to identify the test to be applied in determining what amounts to a nuisance. In his introduction (para 5), Lord Neuberger quotes without comment a passage in Cambridge Water Company v Eastern Counties Leather plc [1994] 2 AC 264, 299, in which Lord Goff referred to the controlling principle of reasonable user the principle of give and take. As I explained in Barr v Biffa Waste Services Ltd [2013] QB 455, paras 60 72, Lord Goff was not seeking to lay down a general rule, and the concept is not without its problems. The criterion of reasonableness has also been strongly criticised by some academics. (See for example, Allan Beever The Law of Nuisance (2013) p 9ff: it is presented as an explanation of the operation of the law, but it does not, cannot, explain anything.) In Barr v Biffa Waste Services Ltd (para 72), I referred to Tony Weirs qualification of the reasonableness test: Reasonableness is a relevant consideration here, but the question is neither what is reasonable in the eyes of the defendant or even the claimant (for one cannot by being unduly sensitive, constrain one's neighbour's freedoms), but what objectively a normal person would find it reasonable to have to put up with. (Weir An Introduction to Tort Law, 2nd ed (2006), p 160) The character of the locality Another important question is the context in which the reasonableness test is to be applied. Traditionally the acceptability of the defendants activity is to be judged by reference to the character of the locality, a concept which dates back at least to Sturges v Bridgman (1879) 11 Ch D 852. At that time the mix of uses in an area would have been the result largely of unrestrained market forces, and the degree of regulatory control was very limited. Although the same principle has survived into the modern law, it is unrealistic to leave out of account the many factors which influence the character of an area in the modern world, including the impact of planning control. In Hunter v Canary Wharf Ltd [1997] AC 655, Lord Cooke (dissenting on this part of the case) highlighted these changes: the lineaments of the law of nuisance were established before the age of television and radio, motor transport and aviation, town and country planning, a crowded island, and a heightened public consciousness of the need to protect the environment. All these are now among the factors falling to be taken into account in evolving the law. (p 711 D E) Lord Hoffmann, in the majority, also commented on the significance of the introduction of modern planning control, which he saw as an argument against further extending the law of nuisance: In a case such as this, where the development is likely to have an impact upon many people over a large area, the planning system is, I think, a far more appropriate form of control, from the point of view of both the developer and the public, than enlarging the right to bring actions for nuisance at common law. (p 710B D) Against that background, in areas where conflicts may arise, the character of any locality may not conform to a single homogeneous identity, but rather may consist of a varied pattern of uses all of which need to coexist in a modern society. Due account also needs to be taken of the process by which the pattern of uses has developed. The impact of general planning control since 1948, which includes development plan allocations as well as decisions on individual planning applications, will have played a major part in ensuring, as Lord Hoffmann said, an appropriate balance between developers and the public. However planning control is only part of the story. The pattern of uses will include, not only uses approved under modern planning permissions, but also other lawful uses lawful either because they began before 1948, or because they have become established in law since then (such as stock car racing in this case). Potentially unneighbourly uses, even if not subject to specific planning permission, are likely to have been subject to other regulatory controls to ensure their acceptability within their particular environment. Other activities may have been encouraged to relocate, with or without threats of discontinuance orders, or financial incentives. After more than 60 years of modern planning and environmental controls, it is not unreasonable to start from the presumption that the established pattern of uses generally represents societys view of the appropriate balance of uses in a particular area, taking account both of the social needs of the area and of the maintenance of an acceptable environment for its occupants. The common law of nuisance is there to provide a residual control to ensure that new or intensified activities do not need lead to conditions which, within that pattern, go beyond what a normal person should be expected to put up with. This analysis seems to me consistent with that of the Lord Westbury LC in St Helens case in the different circumstances of the Victorian world. In the passage quoted by Lord Neuberger (para 64), Lord Westbury spoke of the need for a person living in a town to subject himself to consequence of trade operations in his locality which are necessary for trade and commerce and for the benefit of the inhabitants of the town and of the public at large: 11 HL Cas 642, 650. There is no reason why, in a modern context, the same analysis should not apply to activities other than trade which contribute to the ordinary life of a modern community, and which need to be accommodated within the urban fabric. An example mentioned in argument was a major football stadium. Significant disturbance on match days may be regarded as a necessary price for an activity regarded as socially important, provided it is subject to proper controls by the public authorities, including the police, to ensure that the disturbance is contained as far as reasonably practicable. In those circumstances, if someone buys a house next to such a stadium, he should not be able to sue for nuisance, even though the noise may be highly disturbing to ordinary home life on those days. This is not because he came to the nuisance, nor (necessarily) because it has continued for 20 years. Rather it is because it is part of the established pattern of uses in the area, and society attaches importance to having places for professional football within urban areas. He can however sue if there is something about the organisation, or lack of it, which takes the disturbance beyond what is acceptable under the reasonableness test. Nor is there any reason why this approach should be confined to urban areas. As the present case illustrates, similar patterns of potentially conflicting uses may arise in the country as much as in the town. Relevance of the defendants activity The above analysis seems to me to provide the answer to Lord Neubergers third issue, concerning the relevance of the actual use complained of by the claimant. An existing activity can in my view clearly be taken into account if it is part of the established pattern of use. That is clear from many of the reported cases which proceed on the basis that the defendants activity contributes to the character of the locality against which the new or intensified use is to be considered. So in Rushmer v Polsue & Alfieri Ltd [1906] 1 Ch 234 (approved by the House of Lords [1907] AC 121) the Court of Appeal specifically rejected an argument that because the defendants activities conformed to the character of the area, there could not be a nuisance when a new more intrusive element was introduced. Similarly, in Halsey v Esso Petroleum [1961] 1 WLR 683, Veale J started from the position of the ordinary man who may well like peace and quiet but will not complain, for instance, of the noise of traffic if he chooses to live on a main street in an urban centre, nor of the reasonable noises of industry, if he chooses to live alongside a factory (p 692). Thus the defendants activities, at their previous level, were accepted as part of the established pattern of uses in the area, also reflected in the development plan zoning (p 688), and thus as the starting point for consideration of the alleged nuisance. In Kennaway v Thompson [1981] QB 88 it was common ground that the plaintiff could not complain of noise of motor boats at the levels accepted by her as tolerable when she built her house (p 94B). The terms of the injunction were designed to protect the defendants activities at that level, with a limited number of days for noisier boats (p 94F 95A). Similarly in Watson v Croft Promosport Ltd [2009] 3 All ER 249 the injunction, even as modified by the Court of Appeal, did not stop the defendants activity altogether, but sought to define the level of acceptable use, by limiting numbers of days and defining noise limits (paras 53 54). In none of these cases did the court find it necessary to undertake an iterative process as proposed by Lord Neuberger (para 72). The judges proceeded on the basis that a change in the intensity or character of an existing activity may result in a nuisance, no less than the introduction of a new activity. It was a matter for the judge, as an issue of fact and degree, to establish the limits of the acceptable, and if appropriate to make an order by reference to the limits so defined. Planning control The problem The most difficult problem raised by the present appeal, in my view, is the fourth of Lord Neubergers issues, that is the relevance of the planning history of the defendants activity. Modern planning legislation dates from the coming into force in 1948 of the Town and Country Planning Act 1947. More limited regulatory controls of activities on land had existed since around the mid 19th century, but until the 1947 Act there was no attempt to provide a comprehensive system for the allocation of land use and development. Decisions made by local planning authorities and planning inspectors reflect, or should reflect, an attempt by the authorities consciously to balance the likely benefits of a proposed development against any potential adverse consequences. That process often involves consideration of the interests of neighbouring property owners, including the impact of noise. Thus, national planning advice encourages planning authorities to restrict new development which could give rise to significant adverse impacts from noise; but emphasises that planning is concerned with the acceptability of the use in principle, rather than control of processes or emissions which are subject to other regulatory controls (National Planning Policy Framework (2012), paras 122 123). The law of private nuisance, of far greater antiquity than modern planning legislation, also fulfils the function of protecting the interests of property owners. There is, however, a fundamental difference between planning law and the law of nuisance. The former exists to protect and promote the public interest, whereas the latter protects the rights of particular individuals. Planning decisions may require individuals to bear burdens for the benefit of others, the local community or the public as a whole. But, as the law stands, it is generally no defence to a claim of nuisance that the activity in question is of benefit to the public. Thus planning controls and the law of nuisance may pull in opposite directions. A development executed in accordance with planning permission may nevertheless cause a substantial interference with the enjoyment of neighbouring properties. Should a property owner be able in effect to undermine the planning process by bringing a claim of nuisance against the developer and securing not only damages but also an injunction prohibiting the activity in question, regardless of its public significance? This is not a problem which arises if the project is authorized by statute. In the 19th century, long before modern planning control, railways were built under private acts which not only conferred the necessary powers to acquire or interfere with private property interests, but also conferred effective immunity from actions for nuisance. The same principle has provided protection for more modern activities, such as oil refineries. But, as Lord Wilberforce explained in Allen v Gulf Oil Refining Ltd [1981] AC 1001 the defence applies only where Parliament has by express direction or by necessary implication authorised the activity in question and the alleged nuisance is the inevitable consequence of that activity (pp 1011F, 1013F). The Planning Act 2008 has adopted the same solution for nationally significant infrastructure projects, such as airports and power stations. The Act is designed to provide a more efficient method for securing planning and other approvals necessary for such projects, within the context of a policy framework approved by Parliament. Section 158 of the 2008 Act provides statutory immunity from liability for private or public nuisance for activities authorised by an order granting development consent under the Act, subject to any contrary provision contained in the order. By section 152 compensation is payable to any person whose land is injuriously affected by the carrying out of the works (within the relatively narrow limits defined by section 10 of the Compulsory Purchase Act 1965 and Part I of the Land Compensation Act 1973: section 152(5)(7)). There is no equivalent statutory protection for other forms of development authorised under ordinary planning procedures, whether by the local planning authority or the Secretary of State following a public inquiry. In Barr v Biffa Waste Services Ltd [2013] QB 455, para 46, a case relating to waste disposal under an environmental licence, in a passage quoted by Lord Neuberger (para 91), I pointed out that the common law of nuisance had co existed with statutory controls since the 19th century without the latter being treated as a reason for cutting down private law rights. However, the context is important. I was speaking about environmental regulation rather than planning control, which was not in issue. Further, while my statement was an accurate reflection of the historical position, it is open to the criticism that as a blueprint for the future development of the law it was unduly simplistic. In a perceptive article on the decisions of the Court of Appeal in the present case and in Barr v Biffa Waste Services Ltd, Maria Lee concludes: It is not realistic to look for a single, across the board response to the complicated relationship between tort and regulation, or even just nuisance and planning permission Courts are not generally in a position to assess the substantive quality of regulation (Nuisance and Regulation in the Court of Appeal [2013] JPEL 277, 284) She suggests that an examination of the process followed by the regulation could help the court to determine how much authority the external assessment of the public interest should have, but that no single process issue could be decisive (p 284). Gillingham Docks and subsequent cases The issue has attracted particular attention over the last 20 years, since the judgment of Buckley J in the Gillingham Docks case (Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343). That has been considered by the Court of Appeal in two cases before the present judgment (Wheeler v JJ Saunders Ltd [1996] Ch 19 and Watson v Croft Promosport [2009] 3 All ER 249) and once in the House of Lords (Hunter v Canary Wharf Ltd [1997] AC 655). The facts of the Gillingham Docks case were unusual. The council as local planning authority had granted planning permission to the defendant to develop part of the historic Chatham Royal Naval Dockyard as a commercial port. It had been clear to both the council and local residents at the time that the port would be operated on a 24 hour basis, and that the only access to the port for vehicles would be via two residential roads. In spite of strong objections by local residents the council decided that the promised economic benefits outweighed the inevitable disturbance of local residents. Several years later, the priorities of the council changed and they brought an action in public nuisance seeking to restrain the use of the residential roads by heavy goods vehicles at night. Modifying the planning permission to achieve the same effect would have involved the payment of compensation. The judge rejected the claim. Although he accepted that the principle of statutory immunity had no direct application, he attached weight to the fact that Parliament had delegated to the local planning authority the task of balancing the likely pros and cons of a proposed development, under a procedure which enabled local residents to object. He said: It has been said, no doubt correctly, that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance. However, a planning authority can, through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of rendering innocent activities which prior to the change would have been an actionable nuisance. (p 359) The grant of planning permission for the dock had authorised a change to the character of the neighbourhood, against which the reasonableness of the use was to be judged. The dock company was not operating the port other than as a normal commercial undertaking, and it could not operate a commercial port without disturbing nearby residents. It would not, he thought, be realistic to attempt to limit the amount of trade at the port: It would be a task for which a court would be ill equipped, involving as it would the need to consider the interests of the locality as a whole and the plaintiff's and county council's plans in respect of it. In some cases even the national interest would have to be considered. These are matters to be decided by the planning authority and, if necessary, the minister and should be subject only to judicial review. (pp 360 361) There was an alternative public law challenge based on the unreasonableness of the councils action in bringing public nuisance proceedings in respect of a project which it had itself authorised on public interest grounds, and where there was available the alternative of modification of the permission or discontinuance accompanied by compensation (see pp 350 351). The judge found it unnecessary to consider how those arguments would have been resolved in judicial review proceedings. However, he indicated that, even if he had held otherwise on liability, he would have refused an injunction as matter of discretion, having regard to the history and the damage to the dock undertaking, leaving it to the authority to resolve the planning problem using its statutory powers (p 364A C). That judgment was considered by the Court of Appeal, some three years later, in Wheeler v JJ Saunders Ltd [1996] Ch 19. Again the facts were unusual. Dr Wheeler was a veterinary surgeon specialising in pigs. He had earlier been involved in the management of a pig farm operated by the defendant company close to his home. But the relationship broke down and the business was subsequently conducted without his involvement. In 1988 and 1989, the company obtained planning permission to construct two new buildings to house their pigs (some 800 in total), one of which was only 11 metres from a holiday cottage owned by Dr Wheeler and his wife. Government guidelines recommended a normal separation distance of at least 100 metres from the nearest dwelling house. Dr Wheeler and his wife succeeded in their action for damages and an injunction restraining the use of the new pig sheds, notwithstanding that they had been erected and used in accordance with planning permission. Staughton LJ noted that the company had given the council the misleading impression that the planning applications were merely to continue an activity which had been tolerated in the past, and that nothing much would change as regards the number of pigs on the farm or the conditions in which they were to be kept. Also, the local planning authority had failed to consult the councils environmental health department. Peter Gibson LJ described the grant as incomprehensible (p 36). It was held that the reasoning in Gillingham Docks had no application to the facts of this case. The planning permission had not changed the character of the neighbourhood, which remained a pig farm but with an intensified use of part of it. In the words of Staughton LJ, the planning permission was not a strategic planning decision affected by considerations of public interest (p 30). Peter Gibson LJ said: Prior to the Gillingham case the general assumption appears to have been that private rights to claim in nuisance were unaffected by the permissive grant of planning permission, the developer going ahead with the development at his own risk if his activities were to cause a nuisance. The Gillingham case, if rightly decided, calls that assumption into question, at any rate in cases, like Gillingham itself, of a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted. I can well see that in such a case the public interest must be allowed to prevail and that it would be inappropriate to grant an injunction (though whether that should preclude any award of damages in lieu is a question which may need further consideration). But I am not prepared to accept that the principle applied in the Gillingham case must be taken to apply to every planning decision. The Court should be slow to acquiesce in the extinction of private rights without compensation as a result of administrative decisions which cannot be appealed and are difficult to challenge. (p 35) In the meantime, the Gillingham Docks case had been considered by the House of Lords in Hunter v Canary Wharf [1997] AC 655. The case involved a claim for nuisance, brought by local residents in relation to interference with television signals due to the construction of a tower as part of the Canary Wharf development. The development had been carried out under planning permission granted under a special procedure by the London Docklands Development Corporation. There was no appeal from the Court of Appeals decision that the grant of planning permission could not itself provide immunity from liability for nuisance. In the House of Lords, Lord Cooke of Thorndon, who alone thought that there could be liability in principle, endorsed the Gillingham Docks judgment as directly relevant to the circumstances of Canary Wharf. He contrasted Wheeler in which there had been an injudicious grant of planning consent, procured apparently by the supply of inaccurate and incomplete information (p 722). By contrast, the Canary Wharf Tower had been built in an enterprise zone in an urban development area and authorised under the special procedure designed to encourage regeneration: The Canary Wharf project in general, and the tower at One Canada Square in particular, were obviously of a scale totally transforming the environment In these circumstances, to adopt the words of Staughton L.J. in Wheeler v J J Saunders Ltd, at p 30, the tower falls fairly within the scope of a strategic planning decision affected by considerations of public interest. (p 722E) Of the Gillingham Docks case itself he said: the judge held that, although a planning consent could not authorise a nuisance, it could change the character of the neighbourhood by which the standard of reasonable user fell to be judged. This principle appears to me to be sound and to apply to the present case as far at least as television reception is concerned. Although it did interfere with television reception the Canary Wharf Tower must, I think, be accepted as a reasonable development in all the circumstances. (p 722F G) More recently, the issue arose again, in circumstances much closer to those of the present case, in Watson v Croft Promosport Ltd (2009) 3 All ER 249. A World War II aerodrome had been turned into a motor racing circuit, pursuant to planning permission granted in 1963 after a public inquiry. Although there were no planning restrictions on the levels of activities, its use was relatively limited until 1994 (there were no more than 10 meetings a year between 1982 and 1994), and appears to have caused little disturbance to local residents. In that year, after the circuit had changed ownership, an application was made for more extensive use, involving 37 race days, 24 exclusive test days and 120 days when the track would be used for other purposes. Permission was granted by the local authority in July 1995. In 1998, following a period of disputes with local residents, and an adjourned planning inquiry, the owner made a further application for planning permission on the basis that he was prepared to enter into an enforceable planning obligation under section 106 of the Town and Country Planning Act 1990 to set limits to the amount of noise from racing on the circuit. The proposed agreement contained a detailed set of measurement criteria by which noise from the circuit would be assessed and monitored, and prescribed the racing activities which could be undertaken, and when quiet and rest days were to be held. The activities were divided into N1 to N5 activities, according to the noise levels which were generated. Permission was granted by the inspector on this basis. He accepted that the Development Plan policies weigh heavily against the project and that the noise had at times been of such character, duration and intensity and tone as to seriously harm the amenity to which residents reasonably feel they are entitled; but that had to be weighed against the existing planning permission which allowed uncontrolled use of the circuit. Bearing in mind the very wide planning use rights which the site now enjoys, he considered that the agreement would strengthen significantly the ability of the local planning authority to control noise at the circuit. Local residents brought an action claiming that, even within the constraints set by the agreement, the activities constituted a nuisance. Simon J [2008] EWHC 759 (QB) noted that their objections were not to the car and motor bicycle racing fixtures, amounting to about 20 (N1 and N2) events each year (over approximately 45 50 days), but to the noise from other activities, in particular Vehicle Testing Days and Track Days (when members of the public drive vehicles at speed all day) at noise levels which reach N2 N4 levels. He held that the character of the locality had been essentially rural, and that the circuit could be, and was, run in a way that was consistent with its essentially rural nature (para 55). He declined to accept the 1998 planning permission as an indication (in Lord Hoffmanns terms) of the appropriate balance between developer and public, since the limits had in effect been dictated by the owners (paras 55 56). He held that there was an actionable nuisance. The claimants had argued that the N1 N4 noise from the circuit should be confined to 20 days, as representing the the threshold of the nuisance, and that 40 days would be acceptable only upon the payment of compensation for the difference between 20 40 days. This, they submitted, would accommodate the core activities of the circuit. The judge regarded the proposed threshold as too low. Striking a proper balance between the respective legitimate interests of the parties, in the light of the past and present circumstances, he held that the threshold should be set at 40 N1 N4 days. However he declined to grant an injunction, awarding damages instead (based on the diminution in value of the claimants properties). He took account of the delay in bringing the proceedings, and the claimants willingness to accept damages for at least part of the nuisance. He also took account of his perception of the social value of the activity, and the limited number of sites on which it could take place (paras 87 88). The finding of nuisance was upheld by the Court of Appeal. The court accepted that the implementation (not the mere grant) of planning permission might so alter the character of a neighbourhood as to render innocent an activity which would otherwise have been a nuisance (paras 32 3). Whether it did so was a question of fact and degree. In this case the planning permissions had not changed the character of the local neighbourhood, which remained essentially rural, nor could they be regarded as strategic (para 34). Further, the Court of Appeal held that the judge had been wrong to refuse an injunction. Applying the principles established in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, the circumstances of the case were held not to be sufficiently exceptional to justify the refusal of an injunction. The court accepted that, in a marginal case where the damage to the claimant is minimal, the social value of the activity in question could be taken into account consistently with Shelfer. However, the existence of a public benefit could not alone negate the requirement of exceptional circumstances or oppression of the defendant (para 51). Relevance of planning history I have reviewed these cases is some detail, because they illustrate the wide variety of circumstances in which planning decisions may be made, and the danger of laying down any general propositions about their relevance to the application of the reasonableness test in any particular case. They suggest that a planning permission may be relevant in two distinct ways: i) It may provide evidence of the relative importance, in so far as it is relevant, of the permitted activity as part of the pattern of uses in the area; ii) Where a relevant planning permission (or a related section 106 agreement) includes a detailed, and carefully considered, framework of conditions governing the acceptable limits of a noise use, they may provide a useful starting point or benchmark for the courts consideration of the same issues. Before considering those alternatives, I should note my respectful disagreement with Lord Neubergers reservations (para 98) about the potential utility of planning officers reports as evidence of the reasoning of the planning authority itself. Judged by my own experience in practice and on the bench over some 40 years, I have found that a planning officers report, at least in cases where the officers recommendation is followed, is likely to be a very good indication of the councils consideration of the matter, particularly on such issues as public interest and the effect on the local environment. The fact that not all the members will have shared the same views on all the issues does not detract from the utility of the report as an indication of the general thrust of the councils thinking. That is illustrated by some of the planning reports in this case (as Lord Neuberger implicitly recognises, when relying on the cautious nature of the planning officers recommendations para 138). In any event, in so far as the focus is on the evidence before the planning authority (to which Lord Neuberger refers in para 138), rather than the decision itself, the planning officers report is likely to offer the most comprehensive summary of the relevant material. (i) Relative importance The first alternative begs the question whether the relative importance of an activity to the public is relevant at all. In Miller v Jackson [1977] QB 966 the Court of Appeal held by a majority that public benefit was not relevant to liability, but (by a different majority) that it may be relevant to remedies. In Kennaway v Thompson [1981] QB 88 the court declined to follow the latter view, holding that public benefit was not relevant at either stage. Clerk & Lindsell para 20 107 notes the position as apparently established by those cases, but adds that since a finding of nuisance necessarily involves the balancing of competing interests, public interest, while not itself a defence, should be a factor in assessing reasonableness of user. The only case cited Dennis v Ministry of Defence [2003] Env LR 741 (noise from military aircraft) does not directly support the proposition, since Buckley J held there to be a nuisance, but awarded damages in lieu of a declaration or injunction because of the public interest in the activity (paras 48, 80). In agreement with Peter Gibson LJ in Wheeler [1996] Ch 19, 35, I think there should be a strong presumption against allowing private rights to be overridden by administrative decisions without compensation. The public interest comes into play in the limited sense accepted by Lord Westbury 11 HL Cas 642, 650, as discussed above, that is in evaluating the pattern of uses necessary for the benefit of the inhabitants of the town and of the public at large, against which the acceptability of the defendants activity is to be judged. Otherwise its relevance generally in my view should be in the context of remedies rather than liability. I would accept however that in exceptional cases a planning permission may be the result of a considered policy decision by the competent authority leading to a fundamental change in the pattern of uses, which cannot sensibly be ignored in assessing the character of the area against which the acceptability of the defendants activity is to be judged. I read Staughton LJs use of the word strategic as equivalent to Peter Gibson LJs reference to a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted. For this reason, in my view (differing respectfully from Lord Neuberger on this point) the reasoning of the judge in Gillingham Docks can be supported. Similarly, the Canary Wharf development was understandably regarded by Lord Cooke as strategic in the same sense. But those projects were exceptional both in scale and the nature of the planning judgements which led to their approval. By contrast, in neither Wheeler v Saunders and nor Watson v Croft Promosport Ltd did the relevant permissions result in a significant change in the pattern of uses in the area, let alone one which could be regarded as strategic; and for the reasons noted above neither decision could be regarded as reflecting a considered assessment by the authorities concerned of the appropriate balance between public and private interests. (ii) Benchmark Apart from such strategic cases, a planning permission may also be of some practical utility in a different way. As many of the cases show, a major problem when dealing with nuisance by noise is to establish any objective and verifiable criteria by which to judge either the existence of a nuisance or the limits of any injunction. In some cases there may have been a single planning permission which established, by condition or by a linked section 106 agreement, a framework of noise levels and time limits, which can be taken as representing the authoritys view, with the benefit of its expert advisers, of the acceptable limits. Lord Neuberger makes a similar point in paragraph 96. Watson v Croft Promosport Ltd offers one example of such a framework, in the form of a unilateral undertaking incorporating a relatively sophisticated set of noise criteria. As has been seen, that did not purport to be an assessment of what was seen by the planning inspector as objectively reasonable, but rather an attempt to control the uncontrolled. However, some of the noise criteria found in the agreement were used by the judge in setting the threshold of the acceptable, and by the Court of Appeal in framing the limits of their injunction. Where the evidence shows that a set of conditions has been carefully designed to represent the authoritys view of a fair balance, there may be much to be said for the parties and their experts adopting that as a starting point for their own consideration. It is not binding on the judge, of course, but it may help to bring some order to the debate. However, if the defendant seeks to rely on compliance with such criteria as evidence of the reasonableness of his operation, I would put the onus on him to show compliance (see by analogy Manchester Corpn v Farnworth [1930] AC 171, relating to the onus on the defendant to prove reasonable diligence under a private Act). By contrast, evidence of failure to comply with such conditions, while not determinative, may reinforce the case for a finding of nuisance under the reasonableness test. The present case is illustrative of the opposite case, where the conditions of the planning permissions, such as they were, were of little help to the judge. It is perhaps unfortunate that the authority did not at some stage attempt to secure an overall agreement relating to the operation of activities on the combined sites. The permission for the stadium contained no noise limits, other than some limits on days and hours of use. Three breach of condition notices served by the planning authority between 2007 and 2009 related to apparently isolated breaches of those limits. The established use certificate contained some limitation of hours, but it is unclear how if at all they could be enforced. In relation to the noise limit of 85dB LAeq over one hour at the boundary of the site, set by the 1997 permission for the motocross site, the most recent evidence we were shown of compliance was in a planning report of December 2001. With the help of its own expert advice, the council did attempt in 2008 to impose some overall control by use of their statutory nuisance powers ([2011] EWHC 360 (QB), paras 115 117). That may be an uncertain guide in the context of the common law, given the statutory defence of best practicable means. (Thus, as Lord Neuberger says, the 1995 noise abatement proceedings had been inconclusive, not because of their result which was in favour of the owners, but because it was not possible to say whether the justices held that there was no nuisance, or merely that the owners were using best practicable means.) In any event, although the authoritys experts report was available, he was not called as a witness, his approach was strongly criticised by the claimants expert, and the judge was unimpressed by the council officers evidence that the abatement works had solved the problem (para 207). In those circumstances, the judge was entitled to regard the conditions in the planning permissions and the terms of the abatement notices as of very little assistance in establishing the appropriate noise limits of the defendants activity. The judgment of the Court of Appeal Against that background, I turn to the reasoning of Jackson LJ in the present case. Dealing with what he called the planning permission issue, he reviewed the sequence of cases since Gillingham Docks and summarised their effect in the following propositions: (i) A planning authority by the grant of planning permission cannot authorise the commission of a nuisance. (ii) Nevertheless the grant of planning permission followed by the implementation of such permission may change the character of a locality. (iii) It is a question of fact in every case whether the grant of planning permission followed by steps to implement such permission do have the effect of changing the character of the locality. (iv) If the character of a locality is changed as a consequence of planning permission having been granted and implemented, then: (a) the question whether particular activities in that locality constitute a nuisance must be decided against the background of its changed character; (b) one consequence may be that otherwise offensive activities in that locality cease to constitute a nuisance. (para 65). He held that the appeal should be allowed. I should quote the relevant passage in full (paras 71 75): 71. The judge, at para 158, identified the following question as an important issue in the case: whether it was appropriate, in assessing whether the noise generated by the activities at the stadium and at the track was capable of causing a reasonable person annoyance to a degree amounting to a nuisance, to take into account as one of the noise characteristics of the locality the noise generated by those very activities. 72. The judge did not immediately state his answer to that question. It is clear, however, from the later passages, as Mr Peter Harrison for the claimants concedes, that the judge's answer to that question is no. In my view, that is the wrong answer. Throughout the period when the claimants were living at Fenland the noise generated from time to time by motor sports was one of the noise characteristics of the locality. 73. The judge, at para 203, stated his conclusion as follows: What was clear from Mr Sharpss measurements, and was borne out by the recordings of measurements annexed to the second report of Mr Stigwood, was that noise from the activities at the stadium and at the track, after the completion of the works undertaken in 2008 2009, was intermittently much louder, typically by 10 dB, than the ambient noise level leaving out of account those activities. It is, in my judgment, those dramatic increases in loudness which really constitute the nuisance in the present case, in other words the contrast between the loud levels and the noise levels prevailing when there was nothing going on at the stadium or at the track. 74. In my view that conclusion is flawed. The noise of motor sports emanating from the track and the stadium are an established part of the character of the locality. They cannot be left out of account when considering whether the matters of which the claimants complain constitute a nuisance. 75. I quite accept that if the second and third defendants had ignored the breach of condition notices and had conducted their business at noise levels above those permitted by the planning permissions, the claimants might have been able to make out a case in nuisance. It appears, however, that this was not the case. Abatement works were carried out in 2008 to the satisfaction of Forest Heath District Council. No breach of condition notices have been served since then, apart from one which did not relate to noise level. It will be apparent from my discussion of the Gillingham Docks case that I regard that case as of no relevance to the present. It has not been argued that the change resulting from the various permissions was strategic, and the Court of Appeal rightly did not so find. That, however, did not detract from the relevance of the permitted or established uses as part of the established pattern of uses in the area. The Court of Appeal were right to regard them as matters to be taken into account in judging the acceptability of the current use. However, like Lord Neuberger, and in respectful disagreement with the Court of Appeal, I do not consider that the judges essential reasoning is open to challenge on this basis. Admittedly, as Lord Neuberger has pointed out (paras 77 79), the judges reasons for discounting the particular permissions (his para 66) seem unconvincing. However, he was entitled in my view on the facts of this case to approach the matter on the basis (his para 67) that it was more relevant to look, not so much at the permissions as such, as at their practical effects on the locality. This led to his conclusion (para 95) that the activities at the stadium and track were part of the character of the area, but only intermittently, and even then not necessarily involving a noise amounting to a nuisance. I find that conclusion hard to criticise. Furthermore, para 158, on which the Court of Appeal relied, seems to me to have been taken by them out of context (albeit apparently with the acquiescence of counsel then appearing for the claimant). As I read it, the second part of para 158 was not raising an issue of law as to the relevance of the defendant's existing activities. The judge had already made clear his view on that issue in dealing with the character of the area (see above). Rather para 158, though perhaps not very clearly expressed, was his introduction to the discussion of the respective expert views on the appropriate methods of assessment of noise. It would serve no purpose in this judgment to review the noise evidence in any detail, particularly as the judges task was complicated by the failure of the experts to agree a common methodology. However, it is clear that there was a significant difference of approach. The defendants expert favoured comparison with what he called "fixed benchmark values", which he saw as appropriate for a situation where "the noise from the stadium and motocross track are part of the background noise level of the area" (see especially judgment paras 164, 188). By contrast, the claimants expert favoured comparison with the background noise levels in the absence of the relevant noise source, noting differences on occasion of at least 10dBA over those levels. The judge preferred the latter approach, because it was those "dramatic" differences which constituted the real nuisance (para 203, 243). The judge's treatment of the noise evidence cannot in my view be equated (as the Court of Appeal seemed to think) with "leaving out of account" the noise from the existing activities. It simply reflected his reasonable assessment, preferring on this point the expert evidence for the claimant, that the impact of the extreme events which were the real cause of the nuisance was not mitigated by the more acceptable noise levels experienced on other days or at other times. This was not a conclusion of law, but one of factual judgement properly based on the evidence before him. Finally, while I agree with Jackson LJ as to the potential relevance of evidence of a substantial failure to comply with planning conditions, there was nothing in the evidence in this case which should have led to any assumption in that respect in favour of the defendant. Regardless of any specific enforcement action by the authority, it was for the defendant, if he wished to rely on any planning conditions, to prove not only compliance with them but also their significance to the judges assessment of nuisance. On the facts of this case, as I have said, the judge was entitled to give very little weight to that factor. Remedies On the way the case has been argued in the lower courts, the final issue addressed by Lord Neuberger does not strictly arise. As the judge recorded, it was accepted that if a nuisance was established an injunction should follow, the only issue being its terms. The defendants have sought to open the issue in this court for the first time, on the basis that in the lower courts having regard to the authorities such an argument would have been doomed to failure. However, the result is that we have no relevant findings, either as to how the judge would have exercised his discretion if he been able to do so, or as to how he would have assessed future damages, had he decided on that course. In those circumstances, we should approach the issue with caution, conscious that anything we say can be no more than guidance. With that caveat, I agree with Lord Neuberger and the rest of the court that the opportunity should be taken to signal a move away from the strict criteria derived from Shelfer [1895] 1 Ch 287. This is particularly relevant to cases where an injunction would have serious consequences for third parties, such as employees of the defendants business, or, in this case, members of the public using or enjoying the stadium. In that respect, in my view, the Court of Appeal in Watson [2009] 3 All ER 249 was wrong to hold that the judge had no power to make the order he did, and to limit public interest considerations to cases where the damage to the claimant is minimal. As has been seen, Peter Gibson LJ in Wheeler [1996] Ch 19 saw more flexible remedial principles as a possible answer to the public interest aspect of cases such as Gillingham Docks, rather than creating an exception to the law of nuisance. Commenting on the restrictive view taken by the Court of Appeal in Watson, Maria Lee has said: The fact that something should go ahead in the public interest does not tell us where the costs should lie; we need not assume that injured parties should bear the burden associated with broader social benefits The continued strength of private nuisance in a regulatory state probably depends on a more flexible approach to remedies (Tort Law and Regulation: Planning and Nuisance (2011) 8 JPL 986, 989 990) I agree. The practice of other common law countries has varied. For example, the Australian courts have generally followed the Shelfer principles (see eg Munroe v Southern Dairies [1955] VLR 332. So also in New Zealand: see Bank of New Zealand v Greenwood [1984] 1 NZLR 525, where Hardie Boys J said (p 535): To the extent that this is an appeal to set the public interest ahead of the private interests of the plaintiffs, then I regret that authority requires me to close my ears to it. So also in Ireland, in the leading case of Bellew v Cement Ltd [1948] Ir R 61, the majority adopted a strict Shelfer approach. Maguire CJ said: I am of the opinion that the court is not entitled to take the public convenience into consideration when dealing with the rights of private parties. This matter is a dispute between private parties, and I think that the court should be concerned, only, to see that the rights of the parties are safeguarded. (p 64) In Canada by contrast the Supreme Court has allowed a more flexible approach. Thus in Canada Paper Co v Brown (1922) 63 SCR 243 the court adopted Shelfer principles, but Duff J added: An injunction will not be granted where, having regard to all the circumstances, to grant it would be unjust; and the disparity between the advantage to the plaintiff to be gained by the granting of that remedy and the inconvenience and disadvantage which the defendant and others would suffer in consequence thereof may be a sufficient ground for refusing it. (para 252) Similarly, in Bottom v Ontario Leaf Tobacco Co. [1935] 2 DLR 699, in refusing an injunction to close a factory, the court gave weight to the fact that closure would cause unemployment which would be disastrous to a small community. Riddell JA said (para 3): The public good can never be absent from the mind of the Court when dealing with a matter of discretion. A more flexible approach has also been adopted in the United States. A leading case is Boomer v Atlantic Cement Company (1970) 26 NY 2d 219, in the New York Court of Appeal. The case has been described as a staple of the [US] law school curriculum and a constant preoccupation of [US] legal scholars (Farber, D.A. The Story of Boomer Pollution and the Common Law (2005) 32 Ecology LQ 113). A nuisance had been caused to local residents by the operation of a cement factory but the court refused to grant an injunction requiring the closure of the plant, taking account of the facts that it had cost $45 m to construct and employed more than 300 local people. As Justice Bergan said at p 223, the total damage to the plaintiffs' properties was relatively small in comparison with the value of defendant's operation and with the consequences of the injunction which plaintiffs seek. The court accordingly permitted the defendant company to continue operating the factory on payment of damages in lieu of an injunction, to be assessed by the lower court. Further support for a more flexible approach can be found in a number of academic writings, most recently by Mark Wilde in Nuisance Law and Damages in Lieu of an Injunction: Challenging the Orthodoxy of the Shelfer Criteria (in Tort Law: Challenging Orthodoxy ed Stephen Pitel and others (2013) cap 12). While therefore I agree generally with the observations of Lord Neuberger and Lord Sumption on this aspect, I have three particular reservations. First, I would not regard the grant of planning permission for a particular use as in itself giving rise to a presumption against the grant of an injunction. As I have said, the circumstances in which permissions may be granted differ so much as to make it unwise to lay down any general propositions. I would accept however that the nature of, and background to, a relevant planning permission may be an important factor in the courts assessment. Secondly, I would be cautious of too direct a comparison with cases relating to rights of light, particularly where (as in Kine v Jolly [1905] 1 Ch 480) the court was asked to make a mandatory injunction to demolish a house built in good faith (see also Wilde op cit p 372, citing Sargant LJ in Slack v Leeds Industrial Co operative Society [1924] 2 Ch 475, 496). Cases such as the present are not concerned with such drastic alternatives. The judge is not asked to bring the defendants activity to an end altogether, but to set reasonable limits for its continuation. In so doing he should take into account not only the claimants environment but also the viability of the defendants business. In some cases it may be appropriate to combine an injunction with an award of damages (as happened at first instance in Watson v Croft Promosport). I also agree with Lord Mance that special importance should attach to the right to enjoy ones home without disturbance, independently of financial considerations. Thirdly, without much fuller argument than we have heard, I would be reluctant to open up the possibility of assessment of damages on the basis of a share of the benefit to the defendants. The issues are complex on any view (for a detailed academic discussion of the recent authorities, see Craig Rotherham Gain based relief in tort after A G v Blake (2010) 126 LQR 102). Jaggard v Sawyer [1995] 1 WLR 269, to which Lord Neuberger refers, gives Court of Appeal support for an award on that basis for trespass or breach of a restrictive covenant, but the same approach has not hitherto been extended to interference with rights of light (see Forsyth Grant v Allen [2008] Env LR 877). In cases relating to clearly defined interference with a specific property right, it is not difficult to envisage a hypothetical negotiation to establish an appropriate price. The same approach cannot in my view be readily transferred to claims for nuisance such as the present relating to interference with the enjoyment of land, where the injury is less specific, and the appropriate price much less easy to assess, particularly in a case where the nuisance affects a large number of people. Further, such an approach seems to represent a radical departure from the normal basis regarded by Parliament as fair and appropriate in relation to injurious affection arising from activities carried out under statutory authority. Conclusion For all these reasons, I agree with the disposal of the appeal proposed by Lord Neuberger.	This judgment is concerned with a number of points which arise from the Supreme Courts decision in Coventry v Lawrence [2014] UKSC 13. That decision held the occupiers of a Stadium, David Coventry trading as RDC Promotions, and a Track, Moto Land UK Limited, liable in nuisance to the appellants, Katherine Lawrence and Raymond Shields. The appellants were the owners and occupiers of a residential bungalow, Fenland, some 850 yards away. The nuisance arose from the use of the Stadium for speedway racing and other motorcar racing, and the use of the Track for motorcycle racing and similar activities. The appellants brought their proceedings not only against Mr Coventry and Moto Land (the respondents), but also against their respective landlords, Terence Waters and Anthony Morley and a predecessor landlord (the landlords). The effect of the Supreme Courts decision was to reverse the Court of Appeal and restore the trial judges order, which was based on his finding that the respondents, but not the landlords, were liable in nuisance. By the time of the trial, Fenland was unoccupied due to a fire, and is still fire damaged today. The order made by the judge included: (i) An injunction against the respondents limiting the noise which could be emitted from the Stadium and the Track to take effect on 1 January 2012 or, if earlier, when Fenland is again fit for occupation; (ii) Permission to the parties to apply to vary the terms of this injunction not earlier than 1 October 2011; (iii) A provision dismissing the claims against the landlords; and (iv) A direction that the respondents pay 60% of the appellants costs. The effect of the Supreme Courts earlier decision is to restore the orders for an injunction and for damages, as well as the order for costs. Four further issues now arise: (1) Should the injunction be suspended until Fenland is rebuilt? (2) When should the parties be able to apply to the judge to vary the terms of the injunction? (3) Are the landlords also liable to the appellants in nuisance?; and (4) Does the order for costs against the respondents infringe article 6 of the European Convention on Human Rights (the Convention), which protects the right to a fair hearing? Lord Neuberger, with whom Lord Clarke and Lord Sumption agree, gives the main judgment. The injunction imposed by the judge against the respondents should be suspended until Fenland is fit to be occupied, subject to any party having liberty to apply at any time to vary or discharge the injunction. The respondents claim in nuisance against the landlords is dismissed as the landlords neither authorised nor participated in the nuisance. Lord Carnwath, with whom Lord Mance agrees, would have held that the landlords participated in, and were consequently liable for, the nuisance. Consideration of the respondents contention that the judges order for costs infringes the respondents rights under article 6 of the Convention is adjourned for a further hearing after notice is given to the Attorney General and the Secretary of State for Justice. The first two issues are of no general application, the third issue is of some significance, and the fourth issue concerns a matter which is important [4]. The two minor issues On the first issue, the injunction should not take effect before Fenland is restored, unless it could be shown that the fact that the injunction is still suspended in some way prevented Fenland being restored [6] [7]. On the second issue, there should not be a delay before the parties are able to apply to vary the injunction [8]. The third issue: the liability of the Landlords in nuisance The law relating to the liability of a landlord for his tenants nuisance is tolerably clear in terms of principle. In order to be liable a nuisance, the landlords either must have authorised it by letting the property or they must participate directly in the commission of the nuisance [11]. In the present case, there can be no question of the landlords having authorised the nuisance on the ground that it was an inevitable, or nearly certain, consequence of the letting the Stadium and the Track to the respondent tenants. The intended uses of the Stadium and the Track were known to the landlords at the time of the lettings and those uses have in fact resulted in nuisance, but that is not enough to render the landlords liable in nuisance as a result of the letting. It is clear that those uses could be, and could have been, carried on without causing a nuisance to the appellants [15]. Accordingly, if the claim in nuisance against the landlords is to succeed, it must be based on their active or direct participation [18]. Although there is little authority on the issue, the question whether a landlord has directly participated in a nuisance must be largely one of fact for the trial judge, rather than law [19]. The issue whether a landlord directly participated in his tenants nuisance must turn principally on what happened subsequent to the grant of the leases, although that may take colour from the nature and circumstances of the grant and what preceded it [20]. None of the factors upon which the appellants rely establish that the landlords authorised or participated in the nuisance [21] [30]. Lord Carnwath, with whom Lord Mance agrees, would have held that the landlords actively encouraged the tenants nuisance, and are therefore liable for that nuisance [66, 69]. The fourth issue: the level of costs The appellants costs at first instance consisted of three components in the light of the Court and Legal Services Act 1990, as amended by Part II of the Access to Justice Act 1999, and in accordance with the Civil Procedure Rules: (1) Base costs: what their lawyers charged on the traditional basis; (2) Success fee: the lawyers were entitled to this because they were providing their services on a conditional fee (no win, no fee) basis; and (3) ATE premium: a sum payable to an insurer who agreed to underwrite the appellants potential liability to the respondents for their costs if the respondents had won. The appellants base costs were 398,000, the success fee was approximately 319,000, and the ATE premium was around 350,000. As a result of the judges order, therefore, the respondents are liable for over 640,000 of a total of around 1,067,000. Even if one ignores the success fee and ATE premium, the fact that it can cost two citizens 400,000 in legal fees to establish and enforce their right to live in peace in their home is on any view highly regrettable [32] [36]. The consequences of the judges order that the respondents pay 60% of the appellants costs means that they have to pay 60% of the 100% success fee as well as 60% of the ATE premium. The respondents contend that, if the court required them to pay 60% of the success fee and of the ATE premium, their rights under article 6 would be infringed [38]. In the light of the facts of this case and the European Court of Human Rights jurisprudence, it may be that the respondents are right in their contention that their liability for costs would be inconsistent with their Convention rights [41]. However, it is unclear whether such infringement of the respondents human rights, if established, should be recognised by a declaration of incompatibility or by other relief, and a declaration of incompatibility ought not to be made without the Government having the opportunity of addressing the court [42]. Accordingly, if the respondents wish to maintain their contention that article 6 is infringed by the order for costs in this case, the present appeal should be re listed for hearing before the Supreme Court, after appropriate notice has been given to the Attorney General and the Secretary of State for Justice [44].
This appeal is concerned with the validity of a patent which claims the nucleotide sequence of the gene which encodes for a novel protein (and which has further associated claims). Although there is an insufficiency issue, which I will consider at the end of this judgment, the primary issue on this appeal raises a difficult question, namely the way in which the requirement of industrial applicability in Articles 52 and 57 of the European Patent Convention (the EPC) extends to a patent for biological material. While this issue can be said to raise an important question of principle, its resolution is inevitably fact sensitive, and therefore any answer may be of limited value in other cases. Further, the issue arises in the context of a fast developing field, which requires a court to approach it with caution. The need for caution is reinforced by the fact that the answer may give rise to potentially far reaching consequences for scientific research, the biotech industry, and human health. On the other hand, for those very reasons, it is particularly important that the law in this area is as clear, consistent and certain as possible. The patent in suit The patent in suit (the Patent) is European Patent (UK) 0,939,804. It describes the encoding nucleotide, the amino acid sequence, and certain antibodies, of a novel human protein, which it calls Neutrokine , and includes contentions as to its biological properties and therapeutic activities, as well as those of its antibodies. These contentions are predictions, which are substantially based on the proposition that Neutrokine is a member of the TNF ligand superfamily. The application for the Patent was filed by Human Genome Sciences Ltd (HGS) on 25 October 1996, and it was granted by the Examining Division of the European Patent Office (the EPO) to HGS on 17 August 2005. Accordingly, the Patents validity is to be judged as at October 1996. For present purposes, it is unnecessary to go into the claims or the description of the Patent in much detail. The claims, although not in their final form as allowed by the Technical Board of Appeal of the European Patent Office, are set out in an appendix to the judgment of Kitchin J at first instance, [2008] EWHC 1903 (Pat), [2008] RPC 29. The centrally important claim for present purposes is Claim 1, which essentially extends to the encoding nucleotides of the gene of Neutrokine . The specification, or description, of the Patent is well summarised by Kitchin J at [2008] RPC 29, paras 100 133. It is confusingly long, diffuse, and widely expressed, running to over 25 closely typed pages, and nearly 200 paragraphs of descriptive text, and a further twelve pages of sequences of polypeptide amino acids and DNA nucleotides. Also, as Kitchin J said, the specification contains extravagant and sometimes contradictory claims [2008] RPC 29, para 134. Perhaps rather more tolerantly, the Technical Board of Appeal of the European Patent Office (the Board) referred to the Patent as having been drafted on a boiler plate basis, which it described as a practice used by patentees T 0018/09 Neutrokine/Human Genome Sciences, para 27. The specification begins by explaining that Neutrokine is a new protein, and a member of the TNF ligand superfamily of cytokines, which are proteins which act as inter cellular mediators in inflammation and other immune responses. It states that all the known members of that superfamily are involved in regulation of cell proliferation, activation and differentiation, including control of cell survival or death by apoptosis or cytotoxicity. The specification also explains that the first identified member of the superfamily is known as TNF , which was isolated in 1975 and whose encoding gene was sequenced in 1985. By 1996, it was clear that TNF had a variety of effects on different cell types, which the specification describes as including immunoregulatory actions including activation of T cells, B cells, monocytes, [and] thymocytes . Accordingly, it is claimed, there is a need to provide cytokines similar to [TNF ] that are involved in pathological conditions. The specification goes on to reveal the existence and structure of Neutrokine , to claim it as a member of the superfamily, and to explain that it is expressed in neutrophils in kidney, lung, peripheral leukocyte, bone marrow, T cell lymphoma, B cell lymphoma, activated T cells, stomach cancer, smooth muscle, macrophages and cord blood tissue. The specification then describes the claimed invention as potentially useful for the diagnosis, prevention, or treatment of an extraordinarily large and disparate number of, sometimes widely expressed, categories of disorders of the immune system, and other conditions and actions, either through Neutrokine itself or through its antagonists. However, nowhere in the Patent is there any data or any suggestion of in vitro or in vivo studies, so there is no experimental evidence to support any of those suggestions. Among its many contentions, the specification states that, [l]ike other members of TNF family, Neutrokine exhibits activity on leukocytes including for example monocytes, lymphocytes and neutrophils, and so is active in directing the proliferation, differentiation and migration of these cell types. These activities are said to be useful for immune enhancement or suppression, myeloprotection, stem cell mobilization and treatment of leukemia. The specification also discusses the tissues in which Neutrokine is expressed, and goes on to state that, because Neutrokine belongs to the TNF superfamily, it will have a wide range of anti inflammatory activities and may be suitable to be employed as an anti neovascularizing agent to treat solid tumors by stimulating the invasion and activation of host defense cells, e.g., cytotoxic T cells . It is also said that Neutrokine may be suitable to be employed to enhance host defenses against resistant chronic and acute infections and also to inhibit T cell proliferation or for the treatment of T cell mediated auto immune diseases and lymphocytic leukemias. In very summary terms, the disclosure of the Patent thus includes the following features: (i) the existence and amino acid sequence of Neutrokine , (ii) the nucleotide sequence of the gene encoding for Neutrokine , (iii) the tissue distribution of Neutrokine , (iv) the expression of Neutrokine by its mRNA (the encoding gene) in T cell and B cell lymphomas, and (v) the information that Neutrokine is a member of the TNF ligand superfamily. Technical background to the Patent The teaching in the specification must, of course, be read through the eyes of the notional addressee (or the person skilled in the art), an appropriately skilled person or group of persons, as at October 1996. In that connection, the Judge said this at [2008] RPC 29, paras 30 and 32: 30. The Patent is directed to a team of people with about two years of post doctoral experience. It would include a molecular biologist familiar with routine techniques of cloning, expression and sequencing of genes and proteins; a biochemist to make and purify recombinant proteins; and a biologist or immunologist with experience of the TNF superfamily and with the skills necessary to generate and test antibodies. I am also satisfied that any team interested in identifying a new member of the TNF superfamily would carry out a literature search to gather as much knowledge as possible about the existing members. 32. [T]he skilled team looking for a new member of the TNF superfamily would have been aware that the science of bioinformatics could provide assistance in the search and, if a bioinformaticist was not already a member of the team, would have considered it worthwhile to consult such a person. Accordingly, particularly in the light of the last sentence of the first of those two paragraphs, recourse must be had not only to the common general knowledge as at October 1996, but also to the results of any research into the literature which such notional addressees could be expected to carry out as at that time. While a fuller explanation of the background and technique of bioinformatics, referred to in the passage quoted in para 11 above, was provided by the Judge at [2008] RPC 29, paras 78 99, I shall attempt a very brief explanation in the ensuing five paragraphs. DNA molecules are found in virtually every human and mammalian cell. They consist of a long chain of units called nucleotides, many of which encode, via a related molecule called RNA, for proteins through specific regions known as genes. A gene is a stretch of DNA, which normally includes non coding regions as well as protein encoding regions. RNA is made from DNA, and the non coding regions are removed as the RNA is processed into mature messenger RNA (mRNA). mRNA thus contains the protein encoding regions of a gene. mRNA is unstable outside the cell so it is copied in the laboratory to produce the more stable cDNA. Proteins consist of a chain (or sometimes linked chains) of amino acids, and, in mammals, they perform many essential functions in the body; they include, for instance, insulin and erythropoietin. There are four different nucleotides, and contiguous groups of three specific nucleotides in DNA encode either for a specific amino acid or to indicate the end of a particular encoding exercise (known as protein translation). The result of the translation process is often a linear strand of amino acids, which is called a polypeptide, and which folds up to form a functional protein. The sequence of nucleotides in DNA which encodes the amino acid sequence of a particular protein is the encoding gene of that protein. Part of the relevant art is to identify the gene of a particular protein, and to discover in which body tissues that gene is switched on so as to express the protein. Traditional wet lab experiments as at 1996 included the use of Expressed Sequence Tags (ESTs), which are usually relatively small pieces of cDNA, in attempts to identify novel protein encoding genes. However, EST cDNAs normally do not encompass the entire sequence of the original mRNA, and consequently do not give complete DNA sequence information. Therefore, it was often very difficult to derive the correct or complete protein amino acid sequence (and hence to the identity of the protein) from such experimental strategies. In the early 1990s, a new technique, known as bioinformatics, was developed. It relies upon what Kitchin J described as the considerable increase in the amount of DNA and amino acid sequence data created and stored in publicly accessible databases and a parallel increase in the power of computers [2008] RPC 29, para 6. Bioinformatics enables researchers to identify genes (and the proteins for which they encode) by comparing their sequences with previously identified and characterised genes. However, it is not possible to determine, at least conclusively, the actual activity of any gene or protein identified by this technique until after the gene has been cloned and the resultant protein has been subjected to in vitro and in vivo assays. As the Judge explained at [2008] RPC 29, para 75, Assays are essential to determine the activities and functions of a cytokine. They are also necessary to determine whether any putative therapeutic is effective. The immune system is the bodys defence mechanism against infection, which, in technical terms, involves the body being attacked by foreign bodies known as pathogens (bacteria, viruses, fungi, parasites). The system is based on white blood cells (or leukocytes), of which there are various types, including lymphocytes. Lymphocytes recognise and interact with structures on, or derived from, pathogens known as antigens. Two types of lymphocyte based mechanism are relevant for present purposes; they are: (i) The development (in the bone marrow, in the case of adults) of type B lymphocytes (B cells), which produce antibodies, which are molecules which bind to specific antigen sites (or epitopes) on the surface of specific pathogens, in order to clear those pathogens from the body, and (ii) The development (in the thymus) of type T lymphocytes (T cells), which directly react with epitopes derived from specific pathogens, again in order to clear those pathogens from the body. Once a new protein is found and identified, it is relatively easy for those skilled in the art to generate antibodies (or antagonists, which for present purposes can be treated as being the same thing), but it can be much more difficult to produce useful pharmaceuticals as a result. The production of a useful pharmaceutical from an antibody can be seen as initially involving three steps, namely (i) finding a murine antibody which is derived from a single B cell and which neutralises a particular antigen, (ii) ensuring that that antibody does not bind to other antigens, (iii) conversion of the murine antibody so that it can be effective in humans. This often involves engineering it so that it is not recognised and eliminated by the human immune system. Further to this, extensive clinical trials are required to confirm its efficacy in human disease. A more detailed explanation of the immunology may be found in Kitchin Js judgment, [2008] RPC 29, paras 34 50. A family or superfamily of proteins is a group of proteins, all of which enjoy a significant degree of homology, i.e. they all have certain specified structural characteristics. Although the distinction is not always observed, members of a particular family will normally have close structural similarity and similar functions, whereas members of a particular superfamily, while retaining related structural characteristics, will often be more distantly related and will include members which have similar functions but also may include members with different functions. However, even that is an over simplification, as, in some cases, proteins will have pleiotropic functions, that is to say a multitude of different effects on different cell types, driving multiple biological processes per Kitchin J at [2008] RPC 29, para 71. Accordingly, there will be cases where members of a family or superfamily have some functions which are common to all (or a majority) of the members, and other characteristics which are unique to one member (or a few members). The TNF superfamily is sufficiently described for present purposes as consisting of certain cytokines with common structural molecular characteristics. The nature of those characteristics need not be particularised for present purposes (they are described by Kitchin J at [2008] RPC 29, paras 53 56). As the Patent records, the founding member of the superfamily was TNF , which, by 1996, had long been known as a cytokine with a significant role in regulating immune cells; at least eight other members of the family had been found, including one called TNF . At [2008] RPC 29, para 71, Kitchin J stated that the following features would have been appreciated by the notional addressee of the Patent about members of the TNF ligand superfamily as at October 1996: i) They were all expressed by activated T cells and some by other [types of cell]. ii) Their activities were mediated by binding to receptors, of which a number had been identified. iii) They were known to have pleiotropic actions . Some of those activities were understood to be unique to particular TNF ligands and others were understood to be shared by some or all the other TNF ligands. iv) They all played a role in the regulation of T cell proliferation and T cell mediated immune responses [and they all co stimulated T cell proliferation [2008] RPC 29, para 65]. v) Some of the ligands played a role in the regulation of B cell proliferation and antibody secretion and some took part in T cell dependent regulation of B cells. vi) Some of the ligands had an ability to induce cell death by necrosis or apoptosis. vii) TNF and TNF were functionally linked as primary mediators of immune regulation and inflammatory response. viii) It had been suggested that various ligands were associated with a very wide range of particular disease states . But no disease had been identified in which all the ligands were involved. ix) TNF was the only ligand shown to have a therapeutic application; that being for the treatment of rheumatoid arthritis through the use of a specific monoclonal antibody. Earlier in his judgment, at [2008] RPC 29, paras 62 68, the Judge had described what a person skilled in the art would have been expected of a new member of the TNF ligand superfamily as at October 1996. Such a person would have anticipated that one of the activities of any new member [of the TNF ligand family] would relate to T cells. Such a new member would also have been expected to have the same roles, to some degree, as existing members, roles which included involve[ment] during lymphoid or thymic development, T cell mediated immune responses, T cell dependent help for B cells or humoral B cell activity, and being a co stimul[ant] of T cell proliferation. It was also clear that an effect on B cell proliferation and involve[ment] with distinct human diseases would also have been anticipated as a possible property of a new member of the TNF ligand superfamily. The Judge also said this: 72. [I]t was appreciated that further studies were both needed and desirable to identify further ligands in the TNF superfamily and, in relation to each ligand, to seek to identify its unique and redundant biological functions. There was undoubtedly an incentive to do so, because of their apparent roles in the regulation of the immune system and inflammatory response, their possible involvement in various different diseases and so also, in due course, their potential as therapeutic agents. The rewards were potentially very great. 74 [T]he reality [was] that pharmaceutical companies and academic institutions were indeed looking for further members of the TNF ligand and receptor superfamilies and seeking to elucidate their various biological functions and roles in disease states, ultimately with a view to developing a therapeutic or diagnostic product, if possible. The proceedings in the EPO and in the English courts The central issue both in the High Court proceedings before Kitchin J and in the opposition proceedings before the EPO was whether, in the light of the common general knowledge at October 1996, by disclosing the facts summarised in para 10 above (namely the existence and structure of Neutrokine , the sequence of its encoding DNA, its tissue distribution, its expression, and its membership of the TNF ligand superfamily), the Patent satisfied Articles 52 and 57 of the EPC so as to enable HGS to claim the encoding gene for Neutrokine . Article 52 of the EPC provides that an invention cannot be patented unless it is susceptible of industrial application. Article 57 of the EPC (Article 57) goes on to state that an invention is susceptible of industrial application if it can be made or used in any kind of industry, including agriculture. In its various decisions discussed below, the Board always refers to Article 57 alone, and I will adopt the same approach. After the grant of the Patent to HGS, it was the subject of opposition proceedings brought in the EPO by Eli Lilly and Company (Eli Lilly). Following an oral hearing before the Opposition Division of the EPO (the OD) in June 2008, the Patent was revoked on the basis that the claimed invention constituted, as the Judge put it, a claim to an arbitrary member of the TNF ligand superfamily without a known function. HGS appealed against the ODs decision to the Board, which, after a hearing lasting around a day and a half, in a decision given on 21 October 2009, allowed the appeal. The Boards decision was, in very summary terms, based on the ground that the notional addressee of the Patent would have appreciated that, in the light of the common general knowledge of the TNF ligand superfamily and its properties, Neutrokine would, as the Patent states, be active in directing the proliferation, differentiation, and migration of [T cells], and that was a sufficient function to vindicate the Patent under Article 57 see T 0018/09, paras 23 24. Accordingly, the Board referred the case back to the OD with a direction that the Patent be maintained. Meanwhile, Eli Lilly brought parallel proceedings in the High Court for revocation of the Patent in this jurisdiction. The proceedings came before Kitchin J, who, after a hearing held over some thirteen days, decided to revoke the Patent. His decision was, again in very summary terms, based on the conclusion that, in the light of the common general knowledge, the notional addressee of the Patent would have concluded that the functions of Neutrokine were, at best, a matter of expectation and then at far too high a level of generality to constitute a sound or concrete basis for anything except a research project see [2008] RPC 29, para 234. Kitchin Js decision was given on 31 July 2008, after the decision of the OD, but before HGS had appealed to the Board. HGS appealed against Kitchin Js decision to the Court of Appeal, who, on 9 February 2010, dismissed the appeal [2010] EWCA Civ 33, [2010] RPC 14. The Court of Appeals reasoning effectively followed and approved that of Kitchin J, although it was given after the ruling of the Board. In his judgment, with which Hallett LJ and Lewison J agreed, Jacob LJ discussed the reasoning of the Board in T0018/09. It is, of course, against the decision of the Court of Appeal which HGS now appeal. HGSs case on this appeal is that, notwithstanding Kitchin Js impressively full and careful analysis of the law, the relevant technology, the Patent and the expert evidence, and its affirmation by the Court of Appeal, his decision that the Patent failed to satisfy Article 57 was wrong. That case effectively mirrors the reasoning of the Board in T0018/09. In summary, HGS contends that the reasoning of the Board was correct, and that it shows that Kitchin J and the Court of Appeal set too high a standard for industrial applicability in the context of a patent for biological material. HGS and Eli Lilly each rely on the jurisprudence of the Board prior to the decision in T 0018/09 as to the way in which the requirement of industrial applicability extends to biological material patents, as did both Kitchin J, and the Board itself in T 0018/09. Kitchin J also referred to some domestic jurisprudence and to decisions of courts in the United States. It was also suggested below that the Biotech Directive (99/44EC) (the Directive) was of some assistance. The Directive, and domestic and US jurisprudence Article 5 of the Directive confirms that a naturally occurring gene is patentable, but states that [its] industrial application must be disclosed in the patent application. As Jacob LJ put it, However clever and inventive you may have been in discovering a gene sequence, you cannot have a patent for it or for the protein for which it encodes if you do not disclose how it can be used [2010] RPC 14, para 57. It was common ground that the Directive cannot alter the meaning of Article 57 (both because it came into force after 1996, and because the EPC extends to countries outside the EU). While that may not prevent the Directive being of some assistance in a case where Article 57 is in play in relation to a patent for biological material, it seems to me that it is not helpful in the present case, as it begs the central question, namely how far an applicant for a patent for biological material has to go in disclosing industrial application. Jacob LJs pithy formulation at [2010] RPC 14, para 57, cited in para 35 above, applies equally to Article 57 before the Directive came into force as it does afterwards. So far as the cases in this jurisdiction are concerned, as Kitchin J said at [2008] RPC 29, para 186 [t]here is very little authority on the topic of industrial applicability: only a brief and very general comment from the Court of Appeal in Chiron Corp v Murex Diagnostics Ltd [1996] RPC 535, 607 608, and a decision in 2005 of a Divisional Director acting for the Comptroller of UK Patents, Aeomicas Application BL O/286/05, which analysed the issue more fully. In my view, neither case provides any assistance to the problem raised on this appeal. The conclusions in both Chiron [1996] RPC 535 and Aeomica BL O/286/05 appear equally consistent with HGSs and Eli Lillys contentions, the observations in the former case are at a high level of generality, and the reasoning in the latter case rests on the US jurisprudence. As for the US courts, their approach to the question of what constitutes any new and useful composition of matter under section 101 of 35 USC was considered by the US Supreme Court in Brenner v Manson 383 US 519 (1966) 534 536, and by the US Court of Appeals for the Federal Circuit in Fisher v Lalgudi 421 F 3d 1365 (2005) (and both decisions are discussed and quoted from by the Judge at [2008] RPC 29, paras 218 224). The analyses in the US cases deserve great respect, and it is interesting to note that, in Fisher 421 F 3d 1365, the US Court of Appeals referred to a requirement that an invention is useful to the public as disclosed in its current form as opposed to prov[ing] useful at some future date after further research, and that the invention can be used to provide a well defined and particular benefit to the public. However, there are obvious risks in relying on US jurisprudence when considering the precise nature of the requirements of Article 57 in relation to a claim for a patent for biological material under the EPC. There have been moves over the past fifty years (and more) to harmonise patent law across jurisdictions (the EPC and TRIPS the Trade Related Aspects of Intellectual Property Protection being two important examples), and it is a laudable aim to seek to ensure that all aspects of the law of patents are identical throughout the world. However, the achievement of such an aim is plainly not currently practicable, and, although they have a great deal in common, there are significant and fairly fundamental differences (over and above the different words used in Articles 52 and 57 of the EPC and section 101 of 35 USC) between US patent law and the EPC (two notorious examples being the first to file rule in Europe, and file wrapper estoppel in the US). Accordingly, particularly when it comes to a nice question such as the precise delineation of boundaries between patentability and unpatentability on the ground of industrial application, it would be unsurprising if the law was not identical under the two jurisdictions. In the event, as both parties to this appeal acknowledge, it is in the jurisprudence of the EPO, and in particular that of the Board, that the applicable principles are really to be found. So I now turn to that jurisprudence. The Boards jurisprudence on Article 57 and biological material There are a number of decisions of the Board prior to its decision in relation to the Patent, which are of importance to the present appeal. In their oral arguments, the parties concentrated on two of them, T 0870/04 BDP1 Phosphatase/ Max Planck, on which Eli Lilly placed reliance, and T 0898/05 Hematopoietic receptor/ZymoGenetics, from which HGS sought to derive assistance. However, because it is important to establish the nature and ambit of the approach which the Board has adopted to the application of Article 57 to patents for proteins and their encoding genes, it is, in my view, necessary to consider all the decisions to which we were referred. I also consider that it is necessary to quote a number of passages from the decisions. As both parties accept, the reasoning of the Board in those decisions contains the principles applicable to this appeal, but they disagree as to the precise nature of those principles. In T 0870/04, decided on 11 May 2005, the Board upheld the rejection by the Examining Division of the EPO (the ED) of an application which disclosed BDP 1, a new polypeptide, said to be a member of the so called PTP PEST family. The application suggested that PTP PESTs played an important role in certain specified cellular functions, and were possible candidate anti cancer proteins. It also disclosed that BDP 1 was expressed in most tissues and cell lines, particularly in epithelium origin cell lines and in cancer cell lines. The Board began its reasoning by giving some general guidance. At T0870/04, para 3, it said that the concept of industry in Article 57 was very broad, extending to all activities carried out for for financial (commercial) gains. In the following paragraph, it explained that a practical application of the invention has to be disclosed so that there is some profitable use for which the [claimed] substance can be employed. Turning to the disclosure in the particular application, the Board pointed out at T 0870/04, paras 11 12 (and in the light of the subsequent jurisprudence, I draw particular attention to para 12): 11. [T]he application does not explicitly disclose the specific nature and the possible significance of [the] suggested roles for BDP1. [T]he application stops short of suggesting, let alone identifying, an anti cancer activity for BDP1 or a therapeutic use of BDP1 as a tumour suppressor agent. There is no evidence as to whether BDP1 plays a passive role or an active role in cancer. 12. Nor can the identification of BDP1 as a PTP PEST be taken as any clear indication of its function or use, as the prior art does not attribute clear functions to PTP PESTS as a class. At T 0870/04, paras 21 22, the Board concluded: 21. [A]lthough the present application describes a product (a polypeptide), means and methods for making it, and its prospective use thereof for basic science activities, it identifies no practical way of exploiting it in at least one field of industrial activity. In this respect, it is considered that a vague and speculative indication of possible objectives that might or might not be achievable by carrying out further research with the tool as described is not sufficient for fulfilment of the requirement of industrial applicability. The purpose of granting a patent is not to reserve an unexplored field of research for an applicant. 22. The present case is already on the [wrong] side of the borderline. [T]he only practicable use suggested is to use what is claimed to find out more about the natural functions of what is claimed itself. This is not in itself an industrial application, but rather research undertaken either for its own sake or with the mere hope that some useful application will be identified. Shortly after this, on 28 June 2005, the Board decided T 1329/04 Factor 9/John Hopkins, in which it again upheld the EDs refusal of a patent application. At T 1329/04, para 4, the Board embarked on its familiar problem/solution approach, and described the problem to be solved as isolating a further member of the TGF superfamily, whose established members it described as [having] influence on a wide variety of differentiation processes such as adipogenesis, myogenesis etc. The Board went on to say that the patents claimed solution was the nucleotide sequence encoding for the claimed polypeptide, and described the issue as being [w]hether or not the problem has been plausibly solved. The Board concluded on this issue at T 1329/04, para 11, in a passage which illuminatingly indicates what was lacking in the application: [A]s a significant structural feature fails to be identical in TGF 9 and the members of the TGF superfamily, and no functional characterisation of TGF 9 is forthcoming in the application, it is concluded that the application does not sufficiently identify this factor as a member of this family i.e. that there is not enough evidence in the application to make at least plausible that a solution was found to the problem which was purportedly solved. The Board added at T 1329/04, para 12, that even if supplementary post published evidence may in the proper circumstances also be taken into consideration, it may not serve as the sole basis to establish that the application solves indeed the problem it purports to solve. In T 0604/04 PF4A receptors/Genentech, decided on 16 March 2006, the Board allowed an appeal from the OD where the claim was to certain polypeptides on the ground that they were members of the PF4AR family of chemokine receptors. At T 0604/04, para 6, dealing with the issue of inventive step, and having accepted that there is no absolute certainty that the [claimed] polypeptides are receptors for members of the PF4A family of cytokines to which IL 8 belongs, the Board said that [certain] structural features make it plausible that this is indeed the case. In the following paragraph, the Board expressly distinguished T 1329/04, where it was not accepted that the polypeptide then claimed was a member of the TGF superfamily. Dealing with Article 57, the Board said this at T 0604/04, para 13: In summary, the patent in suit identifies applications for the claimed polypeptides which may ultimately lead to some profitable use. It provides a structural characterisation which enables their assignment to the category of receptors which bind members of the PF4A family of chemokines and, insofar, indicates what their function might be. Yet, in the absence of any characterisation of their ligands, this function remains at best incompletely understood. After referring to T 0870/04, the Board said at T 0604/04, para 15: [T]he technical data provided in respect of the [claimed] polypeptides . fall somewhat short of fulfilling them insofar as, as already above mentioned, there is no evidence available as to which ligands these polypeptides bind to. Yet, of course, each case has to be considered on its own merit and it is important here to take into account the common general knowledge at the priority date as well as the then prevalent attitude of the person skilled in the art as it may be inferred from the documents illustrating this common general knowledge. At T 0604/04, para 16, the Board said that, as at the priority date: chemokines were already known as mediators of the inflammatory response, a role which most of them were thought to play, in particular, through a biological interaction of the chemokines with the cells which they attract which involves binding to the receptors present on the cell surface. Thus, the skilled person would understand that any role of a given chemokine was reflected in its receptor. At T 0604/04, para 18, the Board concluded that: It is clear that chemokines as a family were considered not only to be interesting in fundamental research but also as important for the pharmaceutical industry irrespective of whether or not their role had been clearly defined. It follows that their receptors must have been considered equally important since the mode of action of chemokines is through their receptors. It is, thus, reasonable to conclude that the [claimed polypeptides] which exhibit the characteristics of receptors of members of the PF4A family of cytokines would have been regarded as important to the pharmaceutical industry, i.e. that industrial applicability may be acknowledged. The Board also said at T 0604/04, para 22 that in its judgment, and in the absence of any evidence to the contrary, the patent specification provides adequate experimental instructions for the skilled person to be able to reproduce without undue burden the [claimed] polypeptides . I turn now to the Boards decision on 7 July 2006 in T 0898/05. This was an appeal against the EDs refusal of a patent application, which disclosed the nucleotide sequence and the encoded amino acid sequence of a polypeptide and receptor, Zcytor1, and claimed inter alia the encoding nucleotide and the polypeptide. As in T 0870/04, the Board made some general observations at the outset. Thus, at T 0898/05, para 4, after referring to the reasoning in T 0870/04, the Board said that a patent application [must describe] its subject invention in sufficiently meaningful technical terms that it can be expected that the exclusive rights resulting from the grant of a patent will lead to some financial or other commercial benefit. And in the next paragraph, the Board said that the invention claimed must have such a sound and concrete technical basis that the skilled person can recognise that its contribution to the art could lead to practical exploitation in industry. The Board then elaborated its approach in these terms: 6. [T]he expression profitable use should be understood more in the sense of immediate concrete benefit. This conveys, in the words concrete benefit, the need to disclose in definite technical terms the purpose of the invention and how it can be used in industrial practice to solve a given technical problem, this being the actual benefit or advantage of exploiting the invention. The essence of the requirement is that there must be at least a prospect of a real as opposed to a purely theoretical possibility of exploitation. Further, the use of the word immediate conveys the need for this to be derivable directly from the description, if it is not already obvious from the nature of the invention or from the background article It should not be left to the skilled reader to find out how to exploit the invention by carrying out a research programme. 7. Accordingly, a product whose structure is given (e.g. a nucleic acid sequence) but whose function is undetermined or obscure or only vaguely indicated might not fulfil the above criteria, in spite of the fact that the structure of the product per se can be reproduced. If a patent is granted therefor, it might prevent further research in that area, and/or give the patentee unjustified control over others who are actively investigating in that area and who might eventually find actual ways to exploit it. 8. On the other hand, a product which is definitely described and plausibly shown to be usable, e.g. to cure a rare or orphan disease, might be considered to have a profitable use or concrete benefit, irrespective of whether it is actually intended for the pursuit of any trade at all. Thus, although no particular economic profit might be expected in the development of such products, nevertheless there is no doubt that it might be considered to display immediate concrete benefits. The claimed disclosure is described at T 0898/05, paras 13 16. In summary terms, it disclosed the nucleotide sequence and the encoded amino acid sequence of the cytokine, Zcytor1, its tissue distribution, including in both B and T cells, and claims that Zcytor1 accordingly had various roles such as in proliferation, differentiation, and/or activation of immune cells and that it could therefore be useful in different therapeutic conditions, of which a fair number of different possibilities were given. No experimental evidence was provided to support these claimed roles or uses. At T 0898/05, para 19, the Board identified the two reasons the ED had refused the patent application. They were (i) the use of a computer assisted alignment did not allow any concrete conclusions to be made as to the actual specific function of the protein, because such studies provided only speculation of a vague nature and no specific therapeutic or diagnostic use could be ascertained therefrom; and (ii) Zcytor1 was only a research tool whose disclosure was only the first step in the quest for industrially applicable matter. The Board then started its consideration of the EDs two reasons for refusing ZymoGenetics application in these terms: 21. In the present case, based on computer assisted sequence homology studies and on tissue distribution studies, the Zcytor1 receptor was identified in the application as a putative member of the hematopoietin receptor family and it was assigned a role in proliferation, differentiation and/or activation of immune cells and thus a possible role for its ligands in therapeutic conditions associated with the functioning of the immune system. Admittedly, no experimental evidence for the suggested role of the receptor and/or its ligands is made available in the application. Later evidence, however, confirmed this sort of educated guess, which the examining division considered to be in its own words reasonably credible. 22. The fact that the putative function of the Zcytor1 receptor was assigned in the examples based on computer assisted methods, rather than on the basis of traditional wet lab techniques, does not mean that it has to be automatically disregarded or excluded from a careful and critical examination. [The] probative value [of such examples] has to be examined on a case by case basis regarding the nature of the invention and the prior art relating thereto. Such methods of analysis are increasingly becoming an integral part of scientific investigations and can often allow plausible conclusions to be made regarding the function of a product before it is actually tested. The Board then explained at T 0898/05, para 24, that the identification of the Zcytor1 receptor as a putative member of [the] hematopoietin receptor family of cytokines was based on [its] general structure, and was not called into question by anything in the Patent or by any other evidence. The Board also said that post published evidence, which confirms the preliminary finding and actually supports the conclusion, cannot be ignored. After quoting the EDs view that the suggested role of the Zcytor1 receptor was too vaguely defined, not least because the members of the family all obviously have different functions, the Board said this at T 0898/05, para 27: It might well be possible that members of a structurally related family have, notwithstanding their related structure, a different activity and function. However, there is no reference to the prior art in the decision under appeal which supports such a case in the hematopoietin receptor family. In fact, from the prior art cited in the application and concerned with this family of receptors , it may be derived that, although none of these members are precisely interchangeable in terms of their biological action, there is considerable redundancy of action as well as an ability to elicit, under certain conditions, similar biological responses. Even more important is the fact that this prior art does not cast significant or serious doubts on the suggested role of the Zcytor1 receptor. Thus, the assumption (or educated guess) made in the patent application is plausible. At T 0898/05, paras 29 31, the Board concluded as follows: 29. The function of a protein (and thus of the nucleic acid encoding it) can be seen at different levels. These include: (i) the biochemical activity of the protein , i.e. its molecular function; (ii) the function of the protein in cellular processes , i.e. its cellular function; and (iii) the influence of those cellular processes within a multicellular organism, . this being its biological function in a broad sense. 30. The elucidation of one of these particular levels of function might result, under certain conditions, in a straightforward industrial application, even though the other levels of activity remain completely unknown or only partially characterized. For the purpose of Article 57 , none of these levels is more fundamental than the other ones . 31. In the present case, the suggested role of [Zcytor1] corresponds to the level of the biological function and the practical applications or the concrete technical benefits derived therefrom are clearly disclosed in the present application, namely the stimulation of cell mediated immunity and of lymphocyte proliferation by agonist ligands of Zcytor1 and the suppression of the immune system by antagonists of the Zcytor1 receptor . Although the details of the biochemical activity and the cellular function of the Zcytor1 receptor have not been elucidated in the application, the (therapeutic) treatments directly derivable from the biological function identified by the computer assisted method cannot be considered to be so vaguely defined that they do not suggest any therapeutic or diagnostic use. On the contrary, the treatments referred to in the application are specifically in relation to the function plausibly attributed to the molecule, and are in the areas of rheumatoid arthritis, multiple sclerosis, diabetes mellitus, etc. In T 1452/06 Serine protease/Bayer (10 May 2007) the Board considered and applied its reasoning in T 0870/04 and T 0898/05, when upholding a decision of the ED refusing an application claiming a patent for a polypeptide and its encoding gene. Having said that there was no experimental evidence whatsoever in support of [the claimed] serine protease activity of the claimed polypeptide, the Board then said at T 1452/06, para 4, that such support might be provided by a (computer assisted) comparison of [the disclosed] sequence with sequences of known serine proteases and, more particularly, with the allegedly closely related sequence of [the already known] epithin. The Board accepted, at para 6, that such support might be obtained by a straight (computer assisted) comparison of the [disclosed] sequence with the sequence of [epithin]. However, the Board pointed out that epithin is defined as a putative serine protease (original emphasis) and there was no experimental evidence in support of [its] serine protease activity nor of any other activity at all. (para 7) In T 1165/06 IL 17 related polypeptide/Schering, decided 19 July 2007, the main issue was obviousness, but the Board also addressed the question whether the requirements of Article 57 had been satisfied, and concluded that they had. At T 1165/06, para 14, the Board, adopting its problem/solution approach, said the technical problem to be solved can be defined as the isolation of a further polypeptide of the IL 17 cytokine family, and a nucleotide sequence encoding the polypeptide. The appellants case was that the claimed polypeptide exhibited significant sequence similarity to the [IL 17 cytokine family which had four established members, all of] which functioned in controlling physiology, development and differentiation of mammalian cells At T 1165/06, para 25, the Board concluded: The sequence information provided in the application with respect to the presence in IL 174 of the characteristic cysteine spacing of the IL 17 cytokine family makes it plausible that [the claimed] polypeptide may belong to this family and have biological activities similar to those of the other family members known at the filing date, in particular CTLA 8. This is confirmed by post published evidence filed by the appellant. The reasoning and conclusions of Kitchin J and of the Board As I have mentioned, in their respective decisions, both Kitchin J and the Board referred to and relied on the Boards jurisprudence, but they came to different conclusions. It is therefore appropriate to turn to the reasoning in the two decisions in a little more detail, and in particular the identification of what the notional addressee would get from the Patent, and why the Patent did or did not satisfy Article 57. As to the overall effect of the teaching of the Patent, it is convenient to refer to what Kitchin J said at [2008] RPC 29, paras 231 233, as the view which he expressed was very similar to that of the Board, and was not challenged in this court by HGS. In those paragraphs, he summarised his view as to what the Patent disclosed thus: 231. In this case I am quite satisfied that the skilled person would consider the Patent does not of itself identify any industrial application other than by way of speculation. [I]t contains an astonishing range of diseases and conditions which Neutrokine and antibodies to Neutrokine may be used to diagnose and treat and there is no data of any kind to support the claims made. The skilled person would consider it totally far fetched that Neutrokine could be used in relation to them all and would be driven to the conclusion that the authors had no clear idea what the activities of the protein were and so included every possibility. To have included such a range of applications was no better than to have included none at all. 232. But that is not the end of the matter because the disclosure must be considered in the light of the common general knowledge . The skilled person would have known that TNF was involved as a primary mediator in immune regulation and the inflammatory response and had an involvement in a wide range of diseases as septic shock, rheumatoid arthritis, inflammatory bowel disease, tissue rejection, HIV infection, and some adverse drug reactions. He would have known that all the members of the TNF ligand superfamily identified hitherto were expressed by T cells and played a role in the regulation of T cell proliferation and T cell mediated responses. Further, the skilled person would anticipate that the activities of Neutrokine might relate to T cells and, in particular, be expressed on T cells and be a co stimulant of B cell production; that it might play a role in the immune response and in the control of tumours and malignant disease; that it might have an effect on B cell proliferation . 233. On the other hand, the skilled person would have also known that the members of the family had pleiotropic actions; that some of those activities were unique to particular TNF ligands and others were shared by some or all the other TNF ligands and that no disease had been identified in which they were all involved. Moreover, the therapeutic application of TNF monoclonal antibody for the treatment of rheumatoid arthritis was believed to operate by interrupting the cytokine cascade and by controlling the recruitment and trafficking of blood cells to the joint a rather specific activity. Eli Lillys case to the effect that the teaching of the Patent fell short of the requirements of Article 57 was accepted by Kitchin J at [2008] RPC 29, paras 230 and 234 5 (which were effectively approved by the Court of Appeal). But before quoting them, it is appropriate to refer to three earlier passages in his judgment. At [2008] RPC 29, para 118, the Judge accepted that the claims of the Patent in relation to Neutrokine were significant because: [T]hey reveal the importance of the identification of the tissues where [it] is expressed, the tissues where it acts, the nature of its biological activity and how that profile varies in any particular disease state. However, no data is provided to support these claims. Further, the variety of conditions for which the described method is said to be useful [is] puzzlingly wide and the method itself impossible to operate in the absence of any information as to the standard level of Neutrokine expressed in each of these tissues in normal conditions. Having considered the description of the Patent, the Judge concluded at [2008] RPC 29, para 134, that there was nothing by way of experimental evidence to support the claims made and the idea that Neutrokine and [its antagonists] could be used to treat the extraordinary range of diseases identified was fanciful. He then said that, in his view, the skilled person would come to the conclusion that the inventors had no idea as to the activity of Neutrokine when drafting the Patent and that it taught the skilled person nothing useful about its activity other than that Neutrokine is another member of the TNF ligand superfamily. The Judge also considered in some detail the work carried out since October 1996, and concluded at [2008] RPC 29, para 176, that this work established Neutrokine s functions more clearly, and in particular that it plays a significant and particular role in the proliferation and differentiation of B cells [and] in the regulation of T cell proliferation and activation. He went on: Neutrokine has now been shown to have an important role in the development of autoimmune disease and B cell cancers; but, at the same time, much of its biology remains unclear and is the subject of continuing study by many different research centres. In my judgment the nature and extent of all this research work, the limited conclusions ultimately drawn and the amount of work that remains to be done point strongly to the conclusion that the therapeutic and diagnostic applications suggested in the Patent were indeed speculative. Turning then to the passage in which he expressed his conclusions, [2008] RPC 29, paras 230 and 234 5, Kitchin J said this: 230. I accept that the contribution made by HGS was to find Neutrokine and to identify it as a member of the TNF ligand superfamily. However it is clear from the cases to which I have referred that simply identifying a protein is not necessarily sufficient to confer industrial utility upon it. It may be sufficient if the identification of the protein will immediately suggest a practical application, such as was the case with insulin, human growth hormone and erythropoietin. But if the function of the protein is not known or is incompletely understood and if no disease has been attributed to a deficiency or excess of it, then the position may well be different. In these cases the industrial utility must be identified in some other way. 234. Does [the] common general knowledge, taken as a whole, disclose a practical way of exploiting Neutrokine ? Or does it provide a sound and concrete basis for recognising that Neutrokine could lead to practical application in industry? In my judgment it does not. The fact that Neutrokine might be expected to play a role in regulating the activities of B cells and T cells and play an unspecified role in regulating the immune and inflammatory response did not reveal how it could be used to solve any particular problem. Neither the Patent nor the common general knowledge identified any disease or condition which Neutrokine could be used to diagnose or treat. Its functions were, at best, a matter of expectation and then at far too high a level of generality to constitute a sound or concrete basis for anything except a research project. 235. I believe this conclusion is confirmed by the activities of those in the pharmaceutical industry in the years following the filing of the application. HGS, Lilly and Biogen (and possibly others too) carried out research programmes to try and find out where Neutrokine was expressed, where its receptors were expressed and what its activities appeared to be. They carried out in vitro assays and animal studies and determined that it appeared to have an activity in relation to B lymphocytes with a particular biological profile. On the basis of this work they recognised that it was an important therapeutic target some two to three years after the application for the Patent had been filed. It is significant that in so doing they considered that its utility might lie in the treatment of B cell disorders of particular kinds. The passage I have just quoted from Kitchin Js judgment encapsulates Eli Lillys case, and HGSs case is well summarised in the Boards reasoning at T0018/09, paras 22 26. The first of those paragraphs sets the scene in terms of the general approach: 22. As pointed out in T 870/04, [paras 5 and 6], in many cases the allocation of a newly found protein to a known protein family with known activities suffices to assign a specific function to the protein because normally the members of the family share a specific function. This may be a well characterized and perfectly understood function which provides in a straightforward manner enough support for industrial applicability. In such cases, the immediate concrete benefit is manifest. In other cases, where the members of a protein family have different, pleiotropic effects which may even be opposite and neither completely characterized nor understood, no effect can be assigned to a new member without relying on some experimental data. Between these two extreme situations, a variety of other situations may arise for which a detailed examination of all the facts may be required. Indeed, this is the case for the TNF ligand superfamily. In the next two paragraphs, the Board sought to follow that approach in relation to the instant Patent: 23. As known in the art and acknowledged in the [Patent], all members of the TNF ligand superfamily are known to participate in the regulation of (immune) cell proliferation, activation, and differentiation, and are involved in various medical conditions. They are pleiotropic cytokines which display a wide range of activities and have distinctive, but also overlapping biological functions. As acknowledged in the art, a feature common to all members (without exception) of the TNF ligand superfamily is the expression on activated T cells and the ability to co stimulate T cell proliferation In view of the assignment of Neutrokine to the family, the skilled person expects it to display this common feature, the relevant question here being whether anything in the Patent specification contradicts this expectation. 24. The Patent specification, besides providing the undisputed structural identification of Neutrokine as a member of the TNF ligand superfamily, also provides some further relevant technical data which are fully in line with the expected properties of a member of that superfamily. In particular, it discloses the tissue distribution of Neutrokine mRNA expression using the nucleic acid sequence encoding the Neutrokine protein, as a cDNA probe and, as expected, reports although without concrete experimental data the expression of Neutrokine in activated T cells . It further states that (l)ike other members of TNF family, Neutrokine exhibits activity on leukocytes including for example monocytes, lymphocytes and neutrophils. For this reason Neutrokine is active in directing the proliferation, differentiation and migration of these cell types . This broad statement, far from contradicting the ability of Neutrokine to co stimulate T cell proliferation, actually supports it. In the light of the common general knowledge of the TNF ligand superfamily and its properties, no serious doubts can be cast on this explicit additional information. Nor can this information be taken as a mere theoretical or purely hypothetical assumption. First of all, it is plausible and, secondly, there is ample post published evidence on file confirming both the presence of Neutrokine on activated T cells and its ability to co stimulate T cell proliferation. The Board then turned to Eli Lillys contention that in view of the numerous contradictory statements and of the broad range of conditions and diseases referred to in the patent in suit, the skilled person would have disregarded such information as constituting only hypothetical assumptions or speculations, and said this at T 0018/09, para 26: When reading the patent specification, a skilled person would distinguish the positive technical information such as that mentioned above from other allegedly contradictory and broad statements found in the patent in suit, such as the wide range of activities and conditions for which Neutrokine could be useful. This is because the skilled person realises that the description of the structure of Neutrokine , its structural assignment to the family of TNF ligands, and the reports about its tissue distribution and activity on leucocytes, are the first essential steps at the onset of research work on the newly found TNF ligand superfamily member. In view of the known broad range of possible activities of such a molecule, the skilled person is aware of the fact that the full elucidation of all properties requires further investigations which will gradually reveal them. In this context, the skilled person regards the long listing of possible actions of Neutrokine and of medical conditions in which it might take part as the enumeration or generalisation of the properties of the TNF ligand superfamily. This is seen as the frame in which the newly found molecule has to be placed as one could prima facie have a reasonable expectation that most of them could in fact be present. The Board accordingly concluded at T 0018/09, para 27 that the description of the patent delivers sufficient technical information, namely the effect of Neutrokine on T cells and the tissue distribution of Neutrokine mRNA, to satisfy the requirement of disclosing the nature and purpose of the invention and how it can be used in industrial practice. At T 0018/09, paras 28 30, the Board then considered the arguments that in view of the technical difficulties involved in measuring the co stimulation of T cells by Neutrokine , the implementation of the teaching of the Patent would involve an undue burden, and that, in any event, no industrial application can be directly derived from a mere co stimulation of T cells. Those arguments were also rejected. Although the Board acknowledged that such assays had produced a few contradictory results, there was post published evidence which showed that Neutrokine activity could be reasonably easily measured in relation to both T cells and B cells. Further, the Board said that the activities of Neutrokine , as taught by the Patent (in particular, the inhibition of co stimulation and/or proliferation of lymphocytes) may represent a valid basis for a possible industrial application. The Board went on to say at T 0018/09, para 30, that the Patents teaching as to the expression of Neutrokine mRNA in B cell and T cell lymphomas provides in itself in the context of the disclosure a valid basis for an industrial application, adding that the presence of Neutrokine in these lymphomas, which is also confirmed by post published evidence may be used to develop appropriate means and methods for their diagnosis and treatment based on the disclosure of the [Patent]. In the next four paragraphs, the Board also rejected the contention that alleged technical problems meant that no industrial application could be derived from [the] information [in the Patent]; this was because Eli Lilly was unable to establish serious doubts, substantiated by verifiable facts, so that it was relying on mere unsupported assumptions. Following the Boards jurisprudence Where the EPO decides that a patent, or a claim in a patent, is invalid, then that is the end of the issue (subject, of course, to the patentee or applicant appealing to the Board) in relation to all countries which are signatories to the EPC. Where, however, the EPO decides that a patent, or a particular claim, is valid, then, as this case shows, it is still open to a national court to decide that the patent, or claim, is invalid within its territorial jurisdiction. In all cases, however, the EPO and each national court are, of course, applying the principles contained in the EPC. It is plainly appropriate in principle, and highly desirable in practice, that all these tribunals interpret the provisions of the EPC in the same way. In a number of recent decisions of the House of Lords, attention has been drawn to the importance of UK patent law aligning itself, so far as possible, with the jurisprudence of the EPO (and especially decisions of its Enlarged Boards of Appeal), to quote Lord Walker in Generics (UK) Ltd v H Lundbeck A/S [2009] UKHL 12; [2009] RPC 13, para 35. It is encouraging that the same approach is being adopted in Germany by the Bundesgerictshof see Case Xa ZR 130/07 (10 September 2009), para 33. However, as Lord Walker went on to explain in Generics [2009] RPC 13, para 35, National courts may reach different conclusions as to the evaluation of the evidence in the light of the relevant principles even though the principles themselves should be the same, stemming as they do from the EPC. Thus, the EPO (or another national court) and a national court may come to different conclusions because they have different evidence or arguments, or because they assess the same competing arguments and factual or expert evidence differently, or, particularly in a borderline case, because they form different judgments on the same view of the expert and factual evidence. As Lord Hoffmann said in Conor Medsystems Inc v Angiotech Pharmaceuticals Inc [2008] UKHL 49, [2008] RPC 28, para 3: A European patent takes effect as a bundle of national patents over which the national courts have jurisdiction. It is therefore inevitable that they will occasionally give inconsistent decisions about the same patent. Sometimes this is because the evidence is different. In most continental jurisdictions, including the [EPO], cross examination is limited or unknown. Sometimes one is dealing with questions of degree over which judges may legitimately differ. Obviousness is often in this category. But when the question is one of principle, it is desirable that so far as possible there should be uniformity in the way the national courts and the EPO interpret the [EPC]. Further, while national courts should normally follow the established jurisprudence of the EPO, that does not mean that we should regard the reasoning in each decision of the Board as effectively binding on us. There will no doubt sometimes be a Board decision which a national court considers may take the law in an inappropriate direction, misapplies previous EPO jurisprudence, or fails to take a relevant argument into account. In such cases, the national court may well think it right not to apply the reasoning in the particular decision. While consistency of approach is important, there has to be room for dialogue between a national court and the EPO (as well as between national courts themselves). Nonetheless, where the Board has adopted a consistent approach to an issue in a number of decisions, it would require very unusual facts to justify a national court not following that approach. In the present instance, as discussed above, there has been little helpful domestic guidance as to the application of Article 57 to patents for biological material, but there have been a number of decisions of the Board which have addressed the topic and which at least purport to adopt a consistent approach to the issue. It is true that there is no decision of the Enlarged Board on the instant point, but there was no such decision on the point at issue in Generics [2009] RPC 13. But, again as in that case, there is what may be described, at its lowest, as an intended consistent approach to the issue in a number of carefully considered decisions of the Board. Further, it is not irrelevant to mention that there is unlikely to be a decision of the Enlarged Board on the instant point in the near future, as the Board refused to make a reference in T 0898/05, para 33. Further, while there has been some attack on the reasoning of the Board in its decision on the instant Patent, T 0018/09, both in the judgment of Jacob LJ in the Court of Appeal ([2010] RPC 14, paras 146, 155 and 156) and in the submissions on behalf of Eli Lilly in this court, there has been no attempt either here or below to suggest that the reasoning in the earlier decisions of the Board was wrong, save that Mr Waugh QC, on behalf of Eli Lilly, did make the point that decisions on appeal from the ED, perhaps particularly T 0898/05, should carry less weight as they were unopposed, or ex parte. In relation to the Boards assessment of the factual and expert evidence in a particular ex parte appeal, I can see the force of the point. But I am unimpressed with the point in so far as it is invoked in relation to the applicable principles. In particular, I would reject the implicit suggestion that the Board has been too favourable to patentees in some of the decisions discussed above, as a result of the hearing being ex parte. First, all the decisions discussed above appear to me to demonstrate a consistent approach to the issue raised on this appeal. Secondly, those decisions include an appeal from the OD, namely T 0604/04. Thirdly, the decision of the Board in relation to the instant Patent was from the OD, after strong opposition from Eli Lilly, and, far from resulting in the Board modifying its position, it is Eli Lillys case in this court that the Board went further in this case in favour of the patentee than in any appeal from the ED. In these circumstances, it seems to me to be right to take the law as being that laid down in the Boards jurisprudence I have discussed. But, of course, as explained by Lord Hoffmann and Lord Walker in the passages quoted above, this does not necessarily mandate the same outcome as the Board arrived at in T 0018/09. It is unlikely that the Board and Kitchin J received very different arguments in the present case, in the light of the reasoning in the two decisions, and the fact that the parties in the two sets of proceedings were the same. It is less clear how similar the evidence before each tribunal was: the witnesses were different, and there was at least one further expert witness statement (on behalf of HGS) before the Board which post dated Kitchin Js judgment. Further, unlike before Kitchin J, there was no cross examination of witnesses before the Board. As Jacob LJ said at [2010] RPC 14, paras 25 26, citing the well known observations of Lord Hoffmann in Biogen Inc v Medeva plc [1997] RPC 1, 45, appeals are conducted on the evidence and materials before the court of first instance and the Court of Appeal gives very considerable deference to the findings of fact of the first instance court. So also to its value judgments. That is all the more true of appeals to this court from the Court of Appeal, especially where, as here, there are concomitant findings (i.e. where the Court of Appeal has upheld the trial judges findings of fact and value judgments). In these circumstances, the question which needs to be decided is whether, as the Court of Appeal held, Kitchin J followed the principles laid down by the Boards jurisprudence. If he did, then it seems to me that it would be inappropriate to interfere with his conclusion that the Patent did not satisfy the requirements of Article 57, unless the conclusion was one which he could not reasonably have reached. If he did not, then things would stand on a very different footing. Before turning to that question, however, it is appropriate to mention another, and rather wider, reason for consistency of approach to patents in the biological field. Consistency and policy: the wider picture The BioIndustry Association (the BIA), which has intervened in these proceedings, describes itself as a trade association for innovative enterprises in the UKs bioscience sector and its membership extends to hundreds of companies with an aggregate turnover in 2010 of about 5.5bn, and around 36,000 employees. The requirements of clarity and certainty in this area of law are emphasised by the BIA. As its submissions also explain, after the discovery of a naturally occurring molecule, particularly a protein and its encoding gene, a large amount of research and development is required before there can be any therapeutic benefit. It is therefore important for bioscience companies to be able to decide at what stage to file for patent protection. Thus, If the application is filed early, [t]he company will be left with no patent protection, but would have disclosed its invention in the published patent application to competitors. If the application is filed late, there is a risk in such a competitive environment where several companies may be working on the same type of research projects, that a third party will already have filed a patent application covering the same or a similar invention, in which case the company may not be able to gain any patent protection for its work and by continuing their programme they may risk infringing that third partys patents. In both cases, the company will have lost much of the benefit of its costly research and development. Similarly, funding for research and development on the potential therapeutic value of a newly discovered and characterised protein or its antibodies is dependent on the funders being reasonably confident that the patent (or patent application) concerned will be reasonably safe from attack (or likely to be granted). It is also relevant that bioscience companies attract investment by reference to their patent portfolios, which gives rise to the same need for certainty. As the BIA suggests, it is worth remembering the purpose of the patent system, namely to provide a temporary monopoly as an incentive to innovation, while at the same time facilitating the early dissemination of any such innovation through an early application for a patent, and its subsequent publication. Although this is true in any sector, it has particular force in the pharmaceutical field, where even many of those who are sceptical about the value of intellectual property rights accept that there is a public interest in, and a commercial need for, patent protection. For obvious reasons, the BIA has not set out to support either of the two parties to this appeal in its trenchant written submissions in these proceedings. However, it does suggest that if we agree with the reasoning of the Court of Appeal there is at least a risk that it will make it appreciably harder for patentees to satisfy the requirement of industrial applicability in future cases. If that were so, it is suggested that this would cause UK bioscience companies great difficulty in attracting investment at an early stage in the research and development process. This consequence is said to arise from the reasoning of the Court of Appeal (and hence of Kitchin J), on the basis that there will normally be a need to conduct tests to provide experimental data to establish to the standard they require that a protein (or its antagonists) have therapeutic use. This in turn is said to lead to two problems. First, such tests will or may involve clinical work, which, as I understand it, would be hard to keep confidential, especially in the age of the internet. Secondly, such tests would often be expensive to run, and, as already mentioned, funding would be hard to obtain for a project of this sort which had no protection in the form of a patent application. Having said this, the BIA accepts that it would be wrong in principle to enable applications for patents to be made when the applicant can reveal no more than a vague indication of possible objectives that might or might not be achievable by carrying out further research. After all, as the BIA also states, the purpose of the patents system is not to reserve an unexplored field of research for the applicant nor to give the patentee unjustified control over others who are actively investigating in that area and who might eventually find ways actually to exploit it. Did the courts below follow the Boards jurisprudence? As already mentioned, despite its very wide ranging and generalised suggestions as to the uses to which Neutrokine and its antibodies might be put, over and above revealing the existence and structure of the new protein and its encoding gene, the only relevant teaching of the Patent ultimately arises from its teaching as to the tissue distribution of Neutrokine , its expression in T cell and B cell lymphomas, and the fact that it is a member of the TNF ligand superfamily. Accordingly, the question is whether the Judge was right, or at least entitled, to conclude that the inferences which would have been drawn from this in 1996 would not have been enough to satisfy Article 57. The determination of that issue, as I see it, ultimately involves focussing on the Judges conclusion at [2008] RPC 29, para 234, quoted at para 75 above. In that passage, he concluded that the fact that the description in the Patent, even taken together with knowledge which should be attributed to its addressee, neither reveal[ed] how [Neutrokine ] could be used to solve any particular problem nor identified any disease or condition which [it] could be used to diagnose or treat was fatal to the patents validity. He considered that the functions of Neutrokine were, at best, a matter of expectation and then at far too high a level of generality to constitute a sound or concrete basis for anything except a research project. My initial reaction, like that of the Court of Appeal, was that this was a conclusion to which Kitchin J, as the trial judge, who had heard a great deal of evidence, which he had impressively and cogently analysed, was entitled to come, and with which it would be inappropriate to interfere. Standing back, it also seemed to be a conclusion which could be said to accord with good sense. As he held in the next paragraph of his judgment (also quoted in para 75 above), it required what may fairly be characterised as a research project to enable the therapeutic qualities of Neutrokine to be identified, or, as HGS would put it, to be confirmed. However, on further reflection, like Lord Hope, I have come to the conclusion that the basis upon which the Judge decided the issue was not consistent with the approach adopted by the Board in the decisions which are discussed above. The essence of the Boards approach in relation to the requirements of Article 57 in relation to biological material may, I think, be summarised in the following points: The general principles are: (i) The patent must disclose a practical application and some profitable use for the claimed substance, so that the ensuing monopoly can be expected [to lead to] some commercial benefit (T 0870/04, para 4, T 0898/05, paras 2 and 4); (ii) A concrete benefit, namely the inventions use in industrial practice must be derivable directly from the description, coupled with common general knowledge (T 0898/05, para 6, T 0604/04, para 15); (iii) A merely speculative use will not suffice, so a vague and speculative indication of possible objectives that might or might not be achievable will not do (T 0870/04, para 21 and T 0898/05, paras 6 and 21); (iv) The patent and common general knowledge must enable the skilled person to reproduce or exploit the claimed invention without undue burden, or having to carry out a research programme (T 0604/04, para 22, T 0898/05, para 6); Where a patent discloses a new protein and its encoding gene: (v) The patent, when taken with common general knowledge, must demonstrate a real as opposed to a purely theoretical possibility of exploitation (T 0604/04, para 15, T 0898/05, paras 6, 22 and 31) ; (vi) Merely identifying the structure of a protein, without attributing to it a clear role, or suggest[ing] any practical use for it, or suggesting a vague and speculative indication of possible objectives that might be achieved, is not enough (T 0870/04, paras 6 7, 11, and 21; T 0898/05, paras 7, 10 and 31); (vii) The absence of any experimental or wet lab evidence of activity of the claimed protein is not fatal (T 0898/05, paras 21 and 31, T 1452/06, para 5); (viii) A plausible or reasonably credible claimed use, or an educated guess, can suffice (T 1329/04, paras 6 and 11, T 0640/04, para 6, T 0898/05, paras 8, 21, 27 and 31, T 1452/06, para 6, T 1165/06 para 25); (ix) Such plausibility can be assisted by being confirmed by later evidence, although later evidence on its own will not do (T 1329/04, para 12, T 0898/05, para 24, T 1452/06, para 6, T 1165/06, para 25); (x) The requirements of a plausible and specific possibility of exploitation can be at the biochemical, the cellular or the biological level (T 0898/05, paras 29 30); Where the protein is said to be a family or superfamily member: (xi) If all known members have a role in the proliferation, differentiation and/or activation of immune cells or function in controlling physiology, development and differentiation of mammalian cells, assigning a similar role to the protein may suffice (T 1329/04, para 13, T 0898/05, para 21, T 1165/06, paras 14 and 16, and T 0870/04, para 12); (xii) So the problem to be solved in such a case can be isolating a further member of the [family] (T 1329/04, para 4, T 0604/04, para 22, T 1165/06, paras 14 and 16); (xiii) If the disclosure is important to the pharmaceutical industry, the disclosure of the sequences of the protein and its gene may suffice, even though its role has not been clearly defined (T 0604/04, para 18); (xiv) The position may be different if there is evidence, either in the patent or elsewhere, which calls the claimed role or membership of the family into question (T 0898/05 para 24, T 1452/06, para 5); (xv) The position may also be different if the known members have different activities, although they need not always be precisely interchangeable in terms of their biological action, and it may be acceptable if most of them have a common role (T 0870/04, para 12, T 0604/04, para 16, T 0898/05, para 27). As already explained, Kitchin J concluded that (a) the Patent discloses Neutrokine as a new member of the TNF ligand superfamily; (b) all known members of the superfamily had pleiotropic effects, (c) there were some features which all those known members shared, such as expression by T cells and a role in the regulation of T cell proliferation and T cell mediated responses; (d) however, there were other features which some family members had, but others did not; (e) it would be anticipated that the activities of Neutrokine might relate to T cells and, in particular, be expressed on T cells and be a co stimulant of B cell production; that it might play a role in the immune response and in the control of tumours and malignant disease; that it might have an effect on B cell proliferation; (f) subsequent research has confirmed that was indeed the case; (g) there was a search for new members of the family as they were of interest to the pharmaceutical industry. In those circumstances, it seems to me that, subject to dealing with a number of specific arguments to the contrary, the disclosure of the existence and structure of Neutrokine and its gene sequence, and its membership of the TNF ligand superfamily should have been sufficient, taking into account the common general knowledge, to satisfy the requirements of Article 57, in the light of the principles which I have attempted to summarise in para 107 above. Points (viii), (ix) and (x) appear to apply so far as the plausibility of at least some of the claims are concerned, and points (xi), (xii) and (xiii) all appear to be satisfied, given the evidence in relation to the TNF ligand superfamily (and point (xiv) cannot be invoked by Eli Lilly). Like Lord Hope, I derive considerable assistance from the approach set out at T 0018/09, para 22, which appears to me to be entirely consistent with the Boards earlier jurisprudence (as summarised in para 107 above), and the application in the ensuing four paragraphs, of that approach to the Boards view of what constituted the centrally relevant facts, which (subject to the arguments considered in the next section of this judgment) do not appear to me to be inconsistent with the findings made by Kitchin J. As Lord Hope says at para 152 below, the Boards conclusion was effectively this, that the disclosure of what was accepted to be a new member of the TNF ligand superfamily (coupled with details of its tissue distribution) satisfied Article 57, because all known members were expressed on T cells and were able to co stimulate T cell proliferation, and therefore Neutrokine would be expected to have a similar function. This conclusion was supported, or reinforced, by the statement that Neutrokine was expressed in B cell and T cell lymphomas (referred to in T 0018/09, para 30), and indeed by the interest and effort in the pharmaceutical industry in finding a new member of the superfamily (as explained by Kitchin J at [2008] RPC 29, paras 72 74). The arguments in support of the conclusion reached below The first argument to the contrary is based on the fact that the members of the TNF ligand superfamily were known to have pleiotropic effects. On behalf of Eli Lilly, Mr Waugh QC therefore relies on point (xv) i.e. that the claim to a new member of a superfamily is not good enough because the known members of the family have different activities. In my opinion, that point does not apply in a case where all known members of the superfamily also manifest to a significant degree common activities which are, of themselves, enough to bring the patent within the ambit of points (xi), (xii) and (xiii). Given that the fact that all known family members have sufficient common features to satisfy those points can justify a patent for a new member, it would seem somewhat bizarre if the fact that they had additional, but differing, qualities, should preclude the grant of such a patent. The disclosure of a new member would not only be of greater potential value than if the additional qualities did not exist, but the reason for the grant of the patent is the perceived value of a new member because of the common features of all known members, a feature which is unaffected by the additional qualities. I believe that this conclusion is supported not only by the Boards decision in this case, but also by the Boards conclusion in T 0898/05 that the disclosure of Zcytor1 satisfied Article 57, in circumstances where its predicted activity was based on its membership of a family. As already explained, the Board stated that although none of these members are precisely interchangeable in terms of their biological action, there is considerable redundancy of action as well as an ability to elicit, under certain conditions, similar biological responses T 0898/05, para 27. I also derive support from the fact that the Board in T 0604/04 was prepared to uphold a patent granted in respect of a novel molecule on the basis that it was a member of a family, only most of whose known members were thought to play [a role as] mediators of the inflammatory response; nonetheless, it was held that the evidence established that it was reasonable to conclude that the [claimed] polypeptides which exhibit the characteristics of receptors of members of the PF4A family of cytokines would have been regarded as important to the pharmaceutical industry, ie that industrial applicability may be acknowledged (see T 0604/04, paras 16 18). A second argument raised against validity is the unsatisfactory drafting of the Patent (mentioned by the Court of Appeal at [2010] RPC 14, para 148). If the Judge had found that the drafting of the specification of the Patent was so confusing and potentially misleading that the skilled reader would have been put off the scent in relation to what would otherwise have been appreciated from common general knowledge and reading the literature as to the potential and plausible uses to which the disclosure could be put, that may well have been a problem for HGSs case. However, although the Judge was (in my view, rightly) critical about the drafting of the specification, he did not anywhere in his full and careful judgment say, or even suggest, that its wide ranging prolix contents would have actually diverted the notional addressees, the appropriately skilled persons, from what they would otherwise have understood the Patent to be revealing, in the light of what was appreciated about the properties of the known members of the TNF ligand superfamily. Indeed, Mr Thorley QC, for HGS, identified passages in the evidence of Professor Saklatvala, which would have made such a finding difficult to justify. Mr Waughs submission that the extravagant and wordy claims of the specification should count against HGS as a matter of policy has some attraction. However, I refer again to the Boards comments at T 0018/09, para 27, cited in para 6 above. The drafting of a patent is a ticklish business, no doubt particularly in some types of case, of which biological patents may well be an example, not least because it is a fast developing field, with substantial commercial and scientific pressures. In the end, the question is whether the drafting of the Patent would actually have diverted the notional addressees from what their search of the literature, coupled with common general knowledge, would otherwise have led them to understand represented the teaching of the Patent. The Board held that it would not have done so see at T 0018/09, para 26. Given (a) the fact that the Judge made no express finding that there would have been such a diversion, (b) the evidence of Professor Saklatvala suggested that there would have been no such diversion, and (c) the way in which the Judge expressed himself at [2008] RPC 29, paras 232 and 234 (quoted respectively at paras 70 and 75 above), I would infer that Kitchin J did not think differently. That is unsurprising, given the fact that there was fairly intense interest in the TNF ligand superfamily as the Judge held at [2008] RPC 29, paras 72 and 74 (quoted at para 26 above), and the fact that there is nothing in the description which positively points away from what was known about the family. A third argument is based on the Judges remarks at [2008] RPC 29, paras 176 and 234, that the disclosure in the Patent as to the uses of Neutrokine , even when taken together with common general knowledge, was no more than speculative and did not give rise to an immediate concrete benefit i.e. invoking on points (ii) and (iii). This argument (which was also relied on by the Court of Appeal see at [2010] RPC 14, para 132) proceeds on the implicit assumption that the disclosure of the Patent as summarised in para 108 above is not sufficient in itself to satisfy the requirements of Article 57. However, if, as I consider, the effect of the Boards jurisprudence is that the sort of disclosure summarised in para 108 above does justify patentability, then the fact that the plausible predictions for the use of the invention could also be said to involve speculation takes matters no further. If the known activities of the TNF ligand superfamily were enough to justify patentability for the disclosure of a novel molecule (and its encoding gene) which was plausibly identified as a member of that family, the fact that further work was required to see whether the disclosure actually had therapeutic benefits does not, at least without more, undermine the validity of a patent. In other words, in agreement with Lord Hope, I think that the approach of the Board in this case, in particular at T 0018/09, paras 22 30, appears more in line with the previous EPO jurisprudence than the approach of Kitchin J and the Court of Appeal. The Court of Appeal made much of the Boards statement that a patent should yield an immediate concrete benefit (see at [2010] RPC 14, paras 146, 149, 155 and 156). I certainly accept that, in some cases, different tribunals can and will legitimately come to different views as to whether a particular claimed invention can satisfy the requirement of providing an immediate concrete benefit. However, I am not persuaded that such an argument is open to Eli Lilly in this case. In my view, the Court of Appeals approach, like that of the Judge, was implicitly predicated on the mistaken basis that it was not enough for the Patent to satisfy the requirements of points (xi) to (xiii). Further, at least in the context of the present case, I do not consider that the Courts below gave proper weight to points (viii), (ix) and (x). In particular, in my judgment, the Court of Appeal did not approach the concept of plausibility consistently with the jurisprudence of the Board. That is well demonstrated by Jacob LJs observation at [2010] RPC 14, para 112, that [i]t is not good enough to say this protein or any antibody to it probably has a pharmaceutical use. Such a statement is indeed plausible, but is of no real practical use. You are left to find out what that use is. If the statement is indeed plausible, then, in the absence of any reason to the contrary, it at least prima facie satisfies the requirements of Article 57 according to the Board. I appreciate that the dividing line between plausibility and educated guess, as against speculation, just like the contrast between a real as opposed to a purely theoretical possibility of exploitation, can be difficult to discern in terms of language and application, and is a point on which tribunals could often differ. (I might add that the notion that the dividing line is not very satisfactory is illustrated by the fact that, at one point in his evidence, Professor Saklatvala effectively equiparated speculation with an educated guess.) However, as a result of the decisions discussed above, the Boards approach to patents such as that in this case is, I believe, tolerably clear. I also consider that the Judge did not give sufficient weight to point (x), in that he concentrated on the absence of firm evidence of specific therapeutic roles, as opposed to the other roles of Neutrokine . This is well demonstrated by his reliance in what is perhaps the crucial paragraph of his judgment, [2008] RPC 29, para 234, on the fact that [n]either the Patent nor the common general knowledge identified any disease or condition which Neutrokine could be used to diagnose or treat. He did not, in this context, take into account the roles at other levels which could be attributed to Neutrokine as a result of its membership of the TNF ligand superfamily and their known activities. (The same point may be made about Jacob LJs judgment at [2010] RPC 14, paras 112 and 119, quoted by Lord Hope at para 150 below). Eli Lilly also relied on the Judges finding at [2008] RPC 29, para 234 that the precise uses to which Neutrokine could be put would, on the basis of the disclosure in the Patent, involve a research project, effectively raising point (iv). Although the Court of Appeal also relied on this point (see at [2010] RPC 14, para 149), it does not appear to me to be maintainable, essentially for the reason given in the immediately preceding paragraphs of this judgment. I draw support for this conclusion from the Boards third reason for rejecting a similar argument raised by Eli Lilly in the EPO, namely that the skilled person would not have been able to reproduce [the activities of Neutrokine as described in the Patent] without the undue burden of undertaking a research programme. The Board said that the disclosure of the Patent may represent a valid basis for a possible industrial application. In particular, the inhibition of co stimulation and/or proliferation of lymphocytes might be prima facie of relevance for certain immune diseases in T 0018/09, para 29. If a patent advances an appropriately plausible function for the claimed protein, then the question of undue burden has to be considered in relation to the making of the protein, as the Boards observation at T 0604/04, para 22 that the patent specification provides adequate experimental instructions for the skilled person to be able to reproduce without undue burden the [claimed] polypeptides shows. A further argument, which is really another formulation of the same point, is that, as was emphasised by the Court of Appeal at [2010] RPC 14, para 152, one important reason why Kitchin J reached a different conclusion from the Board was because he concluded that the necessary assays to determine the precise role and potential of the patents disclosure would be a complex task, whereas the Board thought it would simply involve standard assays compare [2008] RPC 29, para 77, and T 0018/09, para 29 respectively. As the Court of Appeal rightly observed, such a conflict is entirely legitimate and understandable, in view of the different evidence, the benefit of cross examination, and/or the room for difference of opinion between two tribunals. In another case, such a difference in assessment of the evidence could well justify a difference in outcome. But not in this case. Once one concludes that the effect of the Boards jurisprudence is that, in the light of the common general knowledge, the disclosure of Neutrokine as a member of the TNF ligand superfamily (coupled with its amino acid and encoding gene sequences and the tissues in which it is expressed), the claims in relation to the inventions potential satisfy Article 57. As a result, the relevance of the degree of effort needed in relation to any subsequent work falls away. (The same point undermines Eli Lillys reliance on a number of other small differences between the findings of the Judge and the Board on the expert evidence). Conclusion on the main issue, Article 57 Accordingly, I would allow HGSs appeal on the issue as to whether the Patent satisfied the requirements of Article 57, and hold that it does. As explained, I have reached this conclusion by applying my understanding of the jurisprudence of the Board to the facts found by Kitchin J. However, particularly as I have stated in para 105 above that there is good sense in the contrary conclusion reached by the Judge and the Court of Appeal, it is right to emphasise that there is also good sense in the result which, at least in my view, is mandated by the Boards approach to the law in this field. Just as it would be undesirable to let someone have a monopoly over a particular biological molecule too early, because it risks closing down competition, so it would be wrong to set the hurdle for patentability too high, essentially for the reasons advanced by the BIA and discussed in paras 97 100 above. Quite where the line should be drawn in the light of commercial reality and the public interest can no doubt be a matter of different opinions and debate. However, in this case, apart from the fairly general submissions of the parties and of the BIA, we have not had any submissions on such wider policy considerations. That is not the end of this appeal, for two reasons. First, there is an argument based on insufficiency: Eli Lilly contends that, even if the Patent satisfies Article 57, it is invalid on the ground of insufficiency, an argument which largely turns on an issue of interpretation, on which the Judge found against Eli Lilly. Secondly, if Eli Lillys insufficiency argument fails, there remain some points decided by Kitchin J and not determined by the Court of Appeal, which it is agreed should be remitted to the Court of Appeal. The contention that claim 1 of the Patent is insufficient The Judge held that, in addition to failing to comply with Article 57, the Patent was invalid on the ground of insufficiency, namely that the specification does not disclose the invention clearly enough and completely enough for it to be performed by a person skilled in the art [2008] RPC 29, para 238. The basis for this conclusion was explained in these terms by the Judge at [2008] RPC 29, para 259: it would have required a research programme and been far from routine for the skilled person to produce a candidate pharmaceutical or diagnostic composition comprising an antibody to Neutrokine a, that is to say the pharmaceutical or diagnostic equivalent of a workable prototype. Although the Court of Appeal did not consider this point, Jacob LJ did say at the end of his judgment, that he rather suspect[ed] that the insufficiency argument would go hand in hand with Article 57 [2010] RPC 29, para 159. Subject to one point, which turns on the meaning of Claim 1 (as well as some of the other claims), it seems to me that that must be correct. If Claim 1 is simply to the encoding gene of Neutrokine , then, subject to any other points which have yet to be decided by the Court of Appeal, the reason why I consider the Judge and the Court of Appeal were wrong to hold that Article 57 is not satisfied is the same reason for holding the claim to be sufficient. In T 0898/05, para 6, the Board explained the close connection, indeed overlap, between Article 57 and sufficiency in a passage, of which the first sentence has already been quoted: It should not be left to the skilled reader to find out how to exploit the invention by carrying out a research programme. [This] corresponds to the requirements of Articles 57 (the need to indicate how to exploit the invention), and 83 EPC (the need to provide a sufficient disclosure of the claimed invention). All those provisions reflect the basic principle of the patent system that exclusive rights can only be granted in exchange for a full disclosure of the invention. However, Eli Lilly contend that the Judge was wrong to hold, as he did at [2008] RPC 29, para 137, that claim 1 is now limited to an isolated nucleic acid molecule comprising one of two sequences which are specifically disclosed and are not defined by reference to their activity. They contend that, on its true construction, the claim requires the claimed protein, or polypeptide to demonstrate what is referred to in the specification as Neutrokine activity, and that such activity is too imprecisely defined and too difficult to establish, following the teaching of the Patent and any prior art, to be sufficient. Claim 1, which I have not so far set out, is in the following terms: An isolated nucleic acid molecule comprising a polynucleotide sequence encoding a Neutrokine polypeptide wherein said polynucleotide sequence is selected from the group consisting of: (a) a polynucleotide sequence encoding the full length Neutrokine polypeptide having the amino acid sequence of residues [as defined]; and the (b) a polynucleotide sequence encoding extracellular domain of the Neutrokine polypeptide having the amino acid sequence of residues [as defined]. In my view, the Judge was right to conclude that the reference to a Neutrokine polypeptide was simply a reference to the polypeptide, and did not incorporate a provision that the polypeptide had certain activities. There is no express reference in the claim to the polypeptide having any specific activities, and I see no grounds for implying into claim 1 such a provision. There is no commercial or technical reason for implying such a provision, and, of course, it is well established that a term is only to be implied into a written document if there are strong reasons in support. It is true that the phrase Neutrokine before the word polypeptide is strictly redundant on this basis, but that is no reason for giving the phrase an unnatural meaning. The fact that the phrase is strictly redundant does not alter the fact that its natural meaning is to describe the polypeptide by the name which the specification has given to it. It is also true that the specification refers to the claimed invention involving Neutrokine activity in more than one place. However, the very fact that this expression is not included in claim 1, when it is (to some extent) defined and, in more than one place used, in the specification suggests that it is not intended to apply to the claim. Accordingly, I would dismiss Eli Lillys cross appeal on the insufficiency issue. Conclusion It follows from this that, at least in my opinion, HGSs appeal on the Article 57 issue should be allowed, Eli Lillys cross appeal on the insufficiency issue should be dismissed, and the case should be remitted to the Court of Appeal to deal with the outstanding issues. LORD HOPE This is a difficult and troublesome case. It is well known that modern techniques in the field of biomedical science offer immense benefits in the promotion of human health, particularly in the combating of a wide range of degenerative diseases previously thought to be incurable and in the provision of techniques for the effective treatment of cancers. As the BioIndustry Association has pointed out in its written intervention, patent portfolios are often the most valuable asset of companies in the bioscience industry. So assessments of the value of a bioscience companys patent portfolio are likely to be a key consideration in deciding whether to acquire or invest in such a company. This in turn affects the funding that is made available for research and development, without which effective progress in putting a patented invention to practical use is likely to be very limited. The evaluation of a patent specification for this purpose will depend on whether it discloses an invention that is reasonably capable of industrial application. There is thus much common ground between the aims of those whose funding is essential for the sustained programme of research and development that will almost always have to be carried out before a product can be placed on the market and the tests that the law lays down for patentability. Article 52(1) of the European Patent Convention provides: European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application. Article 57 provides: An invention shall be considered as susceptible of industrial application if it can be made or used in any kind of industry, including agriculture. These articles were implemented in domestic law in sections 1(1)(c) and 4 of the Patents Act 1977. As the tests in both articles are the same, it is convenient to refer to the issue which they raise as the article 57 issue. It is plain that the standard to be applied for determining whether this test has been satisfied must in principle be the same for patents in the bioscience industry as for those in other fields. The bioscience industry is particularly dependent, however, on funding for long term research and development. It is commonplace for those who need money for these activities to have to look to other organisations to provide it. The tests that must be applied are necessarily very rigorous, and it may require many years of investment before a product can be declared safe for use in the promotion of health in humans. The gap between the point of initial research and the point where the discovery is ready to be developed by the pharmaceutical industry can be very wide. Various steps along this uncertain road can be identified in the present case. First, there is the inventive step itself. In this case it revealed the existence of Neutrokine , a previously unknown member of the TNF ligand superfamily. The characteristics of the newly discovered protein had then to be examined and analysed. In this case the task was to determine whether the Neutrokine molecule had characteristics that offered the prospect of influencing biological mechanisms in the same way as other members of the superfamily. If that could be achieved, there would then have to follow a large amount of research and development before the molecule could be deployed therapeutically. The question that this case raises is how far along that road the process must go before the invention can be held to be susceptible of industrial application and patented. The core of HGSs argument for the industrial application of Neutrokine was identified by their expert witness Professor Noelle in his first witness statement. In para 72 he said: In my opinion, the inventive concept of the Patent is the identification of a new member of the TNF ligand superfamily, which the inventors named Neutrokine , and elucidation of its nucleic acid and amino acid sequences. Once the nucleic acid sequence of a novel member of the TNF ligand superfamily became available, it opened up the field such that it was possible to use well known techniques to express the protein, analyze the protein, develop antibodies and make therapeutics and diagnostics for diseases associated with under or over expression of the protein. In para 75 he said that disclosure of this novel gene and its encoded protein, and the provision of information about its structure and activities enabled the making of products which could be used in studying its role in disease and for the development of potential diagnostic and therapeutic applications. In para 79 he said that, since the activities ascribed to Neutrokine in the Patent were consistent with those activities possessed by other TNF superfamily members, the skilled addressee would consider the activities of Neutrokine described in the Patent as specific and also credible. His point, in short, was the description of the protein, when taken with common knowledge as to the techniques that could be applied to it, was sufficient to show that it was possible to use it in the respects that he identified. For him the fact that it opened up the field indicated that it was susceptible of industrial application. The significance of his observations can be seen by comparing what Jacob LJ said in the Court of Appeal with the judgment of the Technical Board of Appeal (TBA) of the European Patent Office (the EPO) in the present case, which was published on 1 December 2009: Neutrokine /Human Gennome Sciences Inc T 0018/09. The Board reached a different conclusion from that which the trial judge, Kitchin J, had reached on 31 July 2008 when he held that the claimed invention was not susceptible of industrial application at the date of the Patent: [2008] RPC 29, para 237. In the Court of Appeal Jacob LJ attributed this to the fact that the Board was working on different evidence and was using a different procedure: [2010] RPC 14, para 157; see also para 154, where he noted that the judges findings were arrived at following an extensive examination of the evidence. I think that, while both of these things are true, the conclusion ought to have been that tests that the Board applied were materially different from those applied by the judge and by the Court of Appeal. In para 22 of the reasons for its decision that the Patent provided a concrete technical basis for the skilled person to recognise a practical exploitation of the claimed invention in industry, the TBA said: 22. As pointed out in T 870/04 of 11 May 2005 [Max Planck] (cf in particular points 5 and 6 of the Reasons), in many cases the allocation of a newly found protein to a known protein family with known activities suffices to assign a specific function to the protein because normally the members of the family share a specific function. This may be a well characterized and perfectly understood function which provides in a straightforward manner enough support for industrial applicability. In such cases, the immediate concrete benefit is manifest. In other cases, where the members of a protein family have different, pleiotropic effects which may even be opposite and neither completely characterized nor understood, no effect can be assigned to a new member without relying on some experimental data. Between these two extreme situations, a variety of other situations may arise for which a detailed examination of all the facts may be required. Indeed, this is the case for the TNF ligand superfamily. The expression superfamily does not appear to have a precise meaning, as Jacob LJ observed in the Court of Appeal: [2010] RPC, para 73. As he explained, the general idea is that it includes not only very closely homologous compounds but also those with rather less homology. The contrast is between a closely knit family with known activities, and a wider family with a variety of different, pleiotropic effects: cousins, second cousins, distant uncles and so on. The same contrast between two extremes is to be found in para 22 of the TBAs judgment. But the important point that emerges from its comment that it was dealing with a superfamily is to be found in the last two sentences. This case is not one where the different, pleiotropic effects are so poorly understood that it is plain that no effect can be assigned to a new member without relying on some experimental data. That is not true of the TNF ligand superfamily as it lies between the two extremes. So a detailed examination of all the facts is needed before it can be determined whether or not an effect can be assigned to this particular new member. As the TBA said in T 0898/05 (7 July 2006) Hematopoietic cytokine receptor/ZymoGenetics, para 22, the probative value of the claimed invention must be examined on a case by case basis regarding the nature of the invention and the prior art relating thereto: Such methods of analysis are increasingly becoming an integral part of scientific investigations and can often allow plausible conclusions to be made regarding the function of a product before it is actually tested. In other words, that examination may be enough in itself to show, without further experiments, that what the TBA refers to as a specific function can be assigned to the new member of the family. This is because that well characterized and perfectly understood function is shared by other members of the family which it has been shown to belong to. In paras 6 8 of its judgment in ZymoGenetics the TBA contrasted a product whose structure was given but whose function was undetermined or obscure or only vaguely indicated with one which was definitely described and plausibly shown to be usable. In the former case, the granting of a patent might give the patentee unjustified control over others who were actively investigating in that area and who might eventually find ways to exploit it. In the latter, because it was plausibly shown to be usable, it might be considered to display concrete benefits. As these benefits are assumed not yet to have been confirmed by research, the exercise that these passages indicate is necessarily one of prediction. That is why the Board used the word plausibly. I would not quarrel with Jacob LJs comment, after consulting the Shorter Oxford English Dictionary, that the sense that word conveys is that there must be some real reason for supposing that the statement is true: para 111. The important point, however, is that the standard is not any higher than that. Further experiments are not needed if sufficient information is provided in the description, when common general knowledge is taken into account, to show that a positive answer can be given to the question whether a profitable use can readily be identified: ZymoGenetics, para 20. In para 102 of his judgment in the Court of Appeal, however, having reviewed the EPO case law, Jacob LJ said: It is clear from these authorities that discovering a nucleotide sequence encoding for a human protein and being able to show that the protein concerned has some common homology with known proteins (ie is a member of a family) may satisfy article 57. But whether it does or not is case dependent and in particular depends upon how well established the functions of the other members of the family are. To say, my new protein is similar to a known family of proteins is not all that helpful in indicating a possible use if the function of that family is itself poorly understood at best. In para 112, having said that to be plausible a statement must be sufficiently precise, he added: It is not good enough to say this protein or any antibody to it probably has a pharmaceutical use. Such a statement is indeed plausible, but is of no real practical use. You are left to find out what that use is. In para 119, having summarised the findings and conclusions of Kitchin J, he said: So the Judge addressed the crucial question: is it enough to make the invention susceptible of industrial application to tell the skilled reader that Neutrokine is structurally similar to TNF and related cytokines and is believed to have similar biological effects and activities? That depends on what was known about the biological effects and activities of the known members of the superfamily. Each of the postulated uses of Neutrokine or its antagonists was possible in the sense that one could not rule that out as a matter of science based on what was known about other superfamily members. So in one sense each was plausible, even though all of them collectively were not and indeed some contradicted others so both could not be true. But that is miles away from being able to say that any particular use was plausible in the sense of being taken, by the reader, to be reasonably so. In reality one was faced with a research programme to see which, if any, of the possible uses of the Neutrokine or its antagonists was real. I think that there are indications in these passages that the standard which Jacob LJ was setting for susceptibility to industrial application was a more exacting one than that used by the TBA. He appears to have been looking for a description that showed that a particular use for the product had actually been demonstrated rather than that the product had plausibly been shown to be usable. In para 23 of the reasons for its decision in the present case the TBA noted that, as known in the art and acknowledged in the Patent, a feature common to all members of this particular superfamily without exception was the expression on activated T cells and the ability to co stimulate T cell proliferation. It followed, in view of the assignment of Neutrokine to the family, that the skilled person would expect it to display that common feature. Asking itself whether there was anything in the patent specification which contradicted that expectation, the Board found that the technical data in the patent specification, far from contradicting the ability of Neutrokine to co stimulate T cell proliferation, actually supported it. That information could not be taken as a mere theoretical or purely hypothetical assumption. In para 26 the TBA said that a skilled person, when reading the patent specification, would distinguish the positive technical information from the contradictory and broad statements to which Eli Lilly had drawn its attention: This is because the skilled person realises that the description of the structure of Neutrokine , its structural assignment of the family of TNF ligands, and the reports about its tissue distribution and activity on leucocytes, are the first essential steps at the onset of research work on the newly found TNF ligand superfamily member. In view of the known broad range of possible activities of such a molecule, the skilled person is aware of the fact that the full elucidation of all properties requires further investigations which will gradually reveal them. In this context, the skilled person regards the long listing of possible actions of Neutrokine and of medical conditions in which it might take part as the enumeration or generalisation of the properties of the members of the TNF ligand superfamily. This is seen as the frame in which the newly found molecule has to be placed as one could prima facie have a reasonable expectation that most of them could in fact be present. This is in sharp contrast to Jacob LJs comment in [2010] RPC 14, para 145 that the Patent, even in relation to T cell activity, was just too speculative to provide anything of practical value other than information upon which a research programme could be based. Referring to the first sentence of the passage which I have just quoted, he then said that a first step at the onset of research work was hardly enough to provide an immediate and concrete benefit: para 149. The phrase immediate concrete benefit the and which Jacob LJ inserted into this phrase is his own word comes from para 6 of the TBAs reasons for its decision in ZymoGenetics; see also para 21 of its reasons in the present case. Here again there is an indication that Jacob LJ was applying a different test from that applied by the TBA. The immediate concrete benefit that he was looking for was something more than that there was a reasonable expectation that the molecule would be usable for the purposes of research work. In para 27 the TBA said that, despite its long list of conditions and activities, the description of the Patent delivered sufficient technical information (namely the effect of Neutrokine on T cells and the tissue distribution of Neutrokine mRNA) to satisfy the requirement of disclosing the nature and purpose of the invention and how it could be used in industrial practice. In para 29 it rejected Eli Lillys arguments that, in view of the technical difficulties involved in measuring the co stimulation of T cells by Neutrokine and the absence of any detailed experimental information on the activities of Neutrokine listed in the Patent, the skilled person would not have been able to reproduce them without the undue burden of undertaking a research programme and that no industrial application could be directly derived from a mere co stimulation of T cells. It pointed out that there was a convincing body of post published evidence showing that, using standard assays, Neutrokine activity was indeed present on T cells, that the reference in the Patent to the presence of Neutrokine activity in lymphocytes would prompt the skilled person to look for that activity in all types of lymphocytes, including B lymphocytes as well as T lymphocytes. Contrary to Eli Lillys view, it held that these activities might represent a valid basis for a possible industrial application. The industrial application that it had in mind was the use of the molecule for research, which it must be taken to have regarded in itself as an industrial activity. Developing this point further, the TBA said in para 30: In the boards judgment, the tissue distribution of Neutrokine mRNA disclosed in the patent in suit, in particular the expression of Neutrokine mRNA in B cell and T cell lymphomas (cf paragraph [0032]), provides in itself in the context of the disclosure a valid basis for an industrial application. The presence of Neutrokine in these lymphomas, which is also confirmed by post published evidence on file (cf inter alia document D126), may be used to develop appropriate means and methods for their diagnosis and treatment based on the disclosure of the patent in suit. These passages are important not so much for the assessment of the evidence that was before the TBA, with which the national court may properly disagree if presented with evidence which it accepts to the contrary, as for the clear indication that they give as to the point in the development of an invention in the biosciences field where it may be said that the requirement that the invention shall be considered as susceptible of industrial application can be taken to have been satisfied. The concluding words of the last sentence of para 30 indicate that the test which the Board was applying, as in ZymoGenetics, para 8, was whether Neutrokine was plausibly shown to be usable. I read this as indicating that it was satisfied that the protein was a research tool which could be used to develop appropriate means and methods for the diagnosis and treatment of B cell and T cell lymphomas. In the Boards judgment that was enough for it to be susceptible of industrial application within the meaning of article 57 of the Convention. Kitchin J did not have the benefit of seeing the judgment of the TBA in this case, as it was published more than a year after he handed down his judgment on 31 July 2008. He identified the principles that had emerged from the decisions of the EPO in his judgment at [2008] RPC 29, para 226. Among them were the following (case references omitted): (vi)the purpose of granting a patent is not to reserve an unexplored field of research for the applicant nor to give the patentee unjustified control over others who are actively investigating in that area and who might eventually find ways actually to exploit it. (vii) If a substance is disclosed and its function is essential for human health then the identification of the substance having that function will immediately suggest a practical application. If, on the other hand, the function of that substance is not known or is incompletely understood, and no disease has been identified which is attributable to an excess or a deficiency of it, and no other practical use is suggested for it, then the requirement of industrial applicability is not satisfied. This will be so even though the disclosure may be a scientific achievement of considerable merit. (viii) Using the claimed invention to find out more about its activities is not in itself an industrial application. He derived these principles from the reasons that the TBA gave for its decisions in BDP1 Phosphatase/Max Planck T 0870/04 (11 May 2005) and, in the case of the second part of the principle in para (vi), from para 8 of ZymoGenetics. But he did not pick up the point made in para 8 of ZymoGenetics that a product which is definitely described and plausibly shown to be usable might be considered to have a profitable use or concrete benefit, or the point made in para 22 that computerised methods of analysis are increasingly becoming an integral part of scientific investigations and that they can often allow plausible conclusions to be made regarding the function of a product before it is actually tested. Careful though his analysis was, I think that it tended to divert attention away from points that were likely to produce an appropriately balanced decision in this case. In para 230 the judge said: I accept that the contribution made by HGS was to find Neutrokine and to identify it as a member of the TNF ligand superfamily. However it is clear from the cases to which I have referred that simply identifying a protein is not necessarily sufficient to confer industrial utility upon it. Multimeric Receptors/Salk Institute is just one example. It may be sufficient if the identification of the protein will immediately suggest a practical application, such as was the case with insulin, human growth hormone and erythropoietin. But if the function of the protein is not known or is incompletely understood and if no disease has been attributed to a deficiency or excess of it, then the position may well be different. In these cases the industrial utility must be identified in some other way. In paras 231 232 he said that he was quite satisfied that the skilled person would consider that the Patent did not by itself identify any industrial application other than by way of speculation. The range of diseases and conditions which Neutrokine and antibodies to Neutrokine might be used to diagnose and treat were astonishing and there was no data of any kind to support the claims made. But he recognised that the disclosure had to be considered in the light of the common general knowledge. Thus the skilled person would have known that TNF was involved as a primary mediator in immune regulation and the inflammatory response and had an involvement in a wide range of diseases, that all the members of the TNF ligand superfamily identified hitherto were expressed by T cells and played a role in the regulation of T cell proliferation and T cell mediated responses. Further, as Eli Lillys expert witness Professor Saklatvala accepted, the skilled person would anticipate that the activities of Neutrokine might relate to T cells, be expressed in T cells and be a co stimulant of B cell production and that it might play a role in the immune response and in the control of tumours and malignant disease and have an effect of B cell proliferation. Thus far, his analysis of the evidence matches that in paras 27 30 of the reasons which the TBA gave for its decision in this case: see paras 155 156, above. But he then went on to say in para 233 that the skilled person would also have known that the members of the family had pleiotropic actions, that some of those activities were unique to particular TNF ligands and others were shared by some or all the other TNF ligands, that no disease had been identified in which they were all involved and that the known therapeutic application of the TNF monoclonal antibody was a rather specific activity. In para 234, drawing these conclusions together, he said: Does that common general knowledge, taken as a whole, disclose a practical way of exploiting Neutrokine ? Or does it provide a sound and concrete basis for recognising that Neutrokine could lead to practical application in industry? In my judgment it does not. The fact that Neutrokine might be expected to play a role in regulating the activities of B cells and T cells and play an unspecified role in regulating the immune and inflammatory response did not reveal how it could be used to solve any particular problem. Neither the Patent nor the common general knowledge identified any disease or condition which Neutrokine could be used to diagnose or treat. Its functions were, at best, a matter of expectation and then at far too high a level of generality to constitute a sound or concrete basis for anything except a research project. In para 237 he said that he was satisfied that this was a case where the claimed inventions were not susceptible of industrial application at the date of the Patent. It was no answer to say that subsequent research had shown that they might be useful to treat diseases associated with particular B cell disorders. I think that there is here a significant drift away from the approach indicated by the TBAs reasons in ZymoGenetics as subsequently confirmed by the reasons for its decision in the present case. This is not just because the Board was working on different evidence and was using a different procedure, as Jacob LJ seems to have thought. There is a very obvious difference of view as to the test that the invention had to satisfy to be susceptible of industrial application. For the TBA, the question was whether, taking the common general knowledge into account, it had been plausibly shown that the molecule was usable. It was not necessary for a skilled person to undertake a research programme to conclude that the presence of Neutrokine in B cell and T cell lymphomas might be used to develop appropriate means and methods for their diagnosis and treatment: para 30. For the judge, this did not go far enough. For him the critical point was that neither the Patent nor the common general knowledge identified any disease or condition which Neutrokine could be used to diagnose or treat: [2008] RPC 29, para 234. In para 29 of its reasons in ZymoGenetics the TBA said that the function of a protein, and thus of the nucleic acid encoding it, could be seen at different levels: (i) its molecular function, revealed by the biochemical activity of the protein; (ii) its cellular function, in regard to cellular processes; and (iii) the influence of those cellular processes in a general and more complex network within a multicellular organism, this being its biological function in a broad sense. In para 30 it said that the elucidation of one of those particular levels of function might result in a straightforward industrial application, even though the other levels of activity remained completely unknown or only partially characterised. In ZymoGenetics the suggested role for the receptor corresponded to the biological function, and the therapeutical treatments directly derivable from it were not considered to be so vaguely defined that they did not suggest any therapeutic or diagnostic use: para 31. In the present case the role that the TBA saw for Neutrokine was in connection with activities at the level of the cellular function, and this in itself was seen to provide a valid basis for an industrial application: paras 29 30. Jacob LJ observed, I think correctly, that the Board thought that standard assays, of the kind revealed by common general knowledge, would do the job of providing an immediate concrete benefit: [2010] RPC 14, para 152. He then said that the judges finding on the facts was to the opposite effect. He quoted the following passage from para 77 of Kitchin Js judgment: In my judgment the skilled person would indeed have been able to identify or develop from his common general knowledge some assays with which to begin the study of the new ligand and start to asses at least some of its possible activities. But I am not satisfied that such studies would have produced informative results and I have no doubt that to carry out a comprehensive screening programme so as to identify the role of the ligand in the biology of any particular cell type would be an altogether more complex task, and one properly characterised as a research programme. In other words, it was necessary for the skilled person to be able to identify the role of the ligand in the biology of a particular cell type before the newly discovered molecule could be said to be susceptible of industrial application. The test which both he and the judge were applying was not that indicated by the TBA. The same approach is to be found in early parts of his judgment. In para 119 he said that the reader was faced with a research programme to see which, if any, of the possible uses of Neutrokine or its antagonists was real. In para 130, in his discussion of Gruss and Dowers assessment of the practical usefulness of the TNF ligand superfamily as a whole he said that their observations were far from saying that any member of the superfamily or its agonists had real or indeed any potential as a therapeutic or diagnostic agent. In para 142 he referred to the fact that the judge had preferred Professor Saklatvalas evidence that by 1996 only TNF had been shown to be biomedically useful to Professor Noelles comment that he would expect Neutrokine to be useful in the same way as other members of the TNF ligand superfamily. In para 145 he said that the Patent was just too speculative to provide anything of practical value other than information upon which a research programme can be based. It is clear from these passages that for him the fact that the skilled addressee would see that the molecule was usable for a programme of research work, which the TBA thought he would, was not sufficient. For these reasons I cannot agree with Jacob LJ that the differences between the conclusions reached by the judge and the TBA are attributable to the fact the Board was working on different evidence and was using a different procedure. It seems to me that they are attributable to differences of principle about the amount of information that was needed to show that the invention was susceptible of industrial application. The test to be applied to determine this issue is a question of law, not one of fact. As Jacob LJ observed, our practice is to follow any principle of law clearly laid down by the TBA: [2010] RPC 14, para 39. It is a strong thing to disagree with the concurrent findings of judges with such experience in this field. But our decision in this appeal does not depend on a re evaluation of the evidence. It turns on the principle of law which I find clearly set out by the TBA in the passages to which I have referred. In my opinion that principle leads inevitably to the conclusion that HGSs appeal on the article 57 issue must be allowed and the decision of Kitchin J that the claimed inventions were not susceptible of industrial application at the date of the Patent set aside. I would dismiss Eli Lillys cross appeal on the issue of insufficiency for the reasons given by Lord Neuberger. I too would remit the case to the Court of Appeal to deal with the outstanding issues. LORD WALKER As Lord Hope observes, this is a difficult and troublesome case. It is also an important case: not only for the parties, but also for the bioscience industry generally (as the intervention of the BioIndustry Association makes clear) and, in some measure, for the future course of patent law in the United Kingdom. I have to say that all my instincts, as an appellate judge, are for dismissing this appeal. The issue is one of multi factorial evaluation of evidence, a task which has already been carried out twice, with the same result, by a very experienced patent judge, and a division of the Court of Appeal presided over by a Lord Justice with even more experience in the field of patents. Their task was to evaluate the evidence against a statutory test expressed in simple terms, whose meaning is not necessarily made much clearer by elaborate judicial exposition (see the quotation in para 170 below). This Court has recently, in Lucasfilm Limited v Ainsworth [2001] UKSC 39, [2011] 3 WLR 487, para 45, reinforced Lord Hoffmanns much cited statement of the importance, in cases of this sort, of deference to the conclusions of the trial judge. What Lord Hoffmann said in Biogen Inc v Medeva Plc [1997] RPC 1, 45 is too well known to need repetition. It applies even more strongly in the case of concurrent findings. The same thought was expressed (in a dissenting judgment) by Justice Kirby in the High Court of Australia in Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] 212 CLR 411, para 95 (references omitted): The conclusions on obviousness in the proceedings below represented the outcome of a judicial evaluation of a mass of evidence. In the assessment of that evidence, and in the conclusion to be derived from it, the primary judge and the Full Court were better placed to perform the function of fact finding than this Court is. Unless some error is shown in the application of the relevant law, it would be a rare step for this Court to condescend to re evaluate such a factual conclusion, reached by concurrent decisions at two levels of the judicial hierarchy. Kirby J also quoted from Biogen, observing (para 97): Any exposition of judicial reasons explaining such factual findings is inherently an incomplete statement of the impression which was made upon [the judge] by the primary evidence. Judges having replaced juries in such matters in Australia, and having entangled themselves in a web of horrible verbal formulae, must do their best to explain their conclusions where, in the past, juries simply announced their verdicts. Nevertheless the powerful and sustained analysis and reasoning in the judgments of Lord Hope and Lord Neuberger has persuaded me, against my inclination, that this appeal must be allowed. There is nothing that I can usefully add to their reasoning, except to repeat that there are two strong policy arguments for allowing the appeal. The first is to reduce the risk of a chilling effect on investment in bioscience (though here the arguments are certainly not all one way). The other is to align this countrys interpretation of the European Patent Convention more closely with that of other contracting states. To my mind these considerations justify this Court in taking what would otherwise be a questionable course. LORD CLARKE Like Lord Neuberger, I was initially attracted by the submission that, as the Court of Appeal held, Kitchin J was entitled to reach the conclusion he did. Moreover, Lord Walker has expressed with clarity the correct approach of an appellate court in a case such as this. In short, where the judge, especially a judge of great experience in his field has carried out what Lord Walker calls a multi factorial evaluation of the evidence and the Court of Appeal has refused to interfere with that evaluation, it will be the rare case indeed in which this Court will be entitled to interfere. However, like Lord Walker, I have been persuaded by the detailed analysis by Lord Neuberger of the decisions in this and other cases of the Technical Board of Appeal of the European Patent Office that the appeal should be allowed. In all the circumstances I would allow the appeal for the reasons given by Lord Neuberger and Lord Hope. LORD COLLINS For the reasons given by Lord Neuberger and Lord Hope, I would allow the appeal.	Article 52(1) of the European Patent Convention (the EPC) provides that, in order to obtain a European patent, an invention must be susceptible of industrial application. Article 57 states that an invention is susceptible of industrial application if it can be made or used in any kind of industry. The primary issue in this case is the way in which the requirement of industrial applicability extends to a patent for biological material. The Appellant is the proprietor of European Patent (UK) 0,939,804 (the Patent). It describes the encoding nucleotide, the amino acid sequence, and certain antibodies of a new human protein called Neutrokine , and includes contentions as to its biological properties and therapeutic activities, as well as those of its antibodies. These contentions are predictions substantially based on the proposition that Neutrokine is a member of the THF ligand superfamily. The Patent was filed on 25 October 1996 and granted on 17 August 2005. The Respondent brought opposition proceedings in the Opposition Division of the European Patent Office (the EPO), following which the Patent was revoked. The Appellant appealed to the Technical Board of Appeal (the Board) of the EPO, which allowed the appeal and ordered that the Patent be maintained. Meanwhile, the Respondent brought parallel proceedings in the High Court for revocation of the Patent in the UK. The High Court revoked the Patent, on the basis that, in the light of the common general knowledge, the notional addressee of the Patent (a person skilled in the art) would have concluded that the functions of Neutrokine were, at best, a matter of expectation and then at far too high a level of generality to constitute a sound or concrete basis for anything except a research project. This decision was upheld by the Court of Appeal. The Supreme Court unanimously allows the appeal, dismisses the cross appeal, and remits the case to the Court of Appeal to deal with the outstanding issues. The leading judgments are given by Lord Neuberger and Lord Hope, with whom the other justices agreed. There is very little UK authority on the topic of industrial applicability, particularly as regards biological material [37] and [88], and the applicable principles are really to be found in the jurisprudence of the EPO and the Board [42]. While the reasoning in each decision of the Board is not binding upon national courts, the courts should normally follow the jurisprudence of the EPO, particularly where the Board has adopted a consistent approach to an issue in a number of decisions [84] and [87], as is the case with regard to the application of Article 57 to patents for biological material [88]. Further, there are strong policy reasons for seeking consistency of approach to patents in the biological field, as it is import for bioscience companies to be able to decide at what stage to file for patent protection, and to be able to obtain funding based on patent protection [96 102] and [141 143]. Despite the very wide ranging and generalised suggestions in the Patent as to the uses to which Neutrokine and its antibodies might be put, over and above revealing the existence and structure of the new protein and its encoding gene, the only relevant guidance in the Patent ultimately arises from its teaching as to the tissue distribution of Neutrokine , its expression in T cell and B cell lymphomas, and the fact that it is a member of the TNF ligant superfamily. The question is whether the Judge in the High Court was right, or at least entitled, to conclude that the inferences which would have been drawn from the Patent specification in 1996 would not have been enough to satisfy Article 57 [103]. That conclusion was based on the fact that the Patent neither revealed how Neutrokine could be used to solve any particular problem nor identified any disease or condition which it could be used to diagnose or treat [104] and [161]. That reasoning was not consistent with the approach adopted by the Board, from which a number of general and specific principles may be drawn [106 107]. In light of those principles, the disclosure of the existence and structure of Neutrokine and its gene, and its membership of the TNF ligand superfamily should have been sufficient, taking into account the common general knowledge, to satisfy the requirements of Article 57 [109]. This is because all known members of the TNF ligand family were expressed on T cells and were able to co stimulate T cell proliferation, and therefore Neutrokine would be expected to have a similar function [111]. The fact that the members of that superfamily were known to have pleiotropic effects is irrelevant where the value of the new member relates to the common features manifested by all known members [112 115]. Neither the Judge nor the Board considered that the unsatisfactory drafting of the Patent would actually have diverted the person skilled in the art from what their search of the literature, coupled with common general knowledge, would otherwise have led them to understand represented the teaching of the Patent [116 118]. The lower courts were wrong to focus on the speculative nature of some of the therapeutic uses of Neutrokine as disclosed in the Patent, and the degree of extra effort required to determine those uses, when the known activities of the superfamily were enough in themselves to justify patentability for the disclosure of a novel molecule (and its encoding gene) [119 121], [124 128] and [161]. For the same reason, the Respondents argument that the specification of the Patent is insufficient must fail [132 139]. The standard set by the Judge for susceptibility to industrial application was a more exacting one than that used by the Board. He was looking for a description that showed that a particular use for the product had actually been demonstrated, rather than that the product had plausibly been shown to be usable for the purposes of research work [151] and [154], which the Board must be taken to have regarded as an industrial activity in itself [155 156]. Notwithstanding the importance of deference to the findings of fact and value judgments of a court of first instance, especially where that decision is confirmed on appeal [94 95], [166], [168 170 and 172], in this case it is evident that the Judge and Court of Appeal failed to follow the principles of law clearly set out by the Board in this and previous cases. The appeal must therefore be allowed.
The issue in this case is whether Lloyds Banking Group (LBG) is entitled to redeem 3.3 billion of loan notes which would otherwise carry a relatively high rate of interest, namely over 10% per annum. The loan notes are contingent convertible securities (perhaps inevitably known as Cocos), and are formally described as enhanced capital notes, or the ECNs. The ECNs are potentially convertible into fully paid up shares in LBG, and they were issued in November 2009, at a time when LBG, like many other banks, was in dire need of recapitalisation in order to protect its capital position and to comply with regulatory requirements. Before turning to the terms on which the ECNs were issued, it is necessary to understand a little about the Regulations as at that time, and, in order to understand the issues on this appeal, it is necessary to set out some of those terms and then explain a few of the changes effected to the Regulations in 2013 and the way in which they were applied. The regulatory position when the ECNs were issued As at the time that the ECNs were issued, the capital requirements of financial institutions in the EU were governed by a 2006 Directive known as CRD I. This Directive was inevitably based on the current international banking accord, at that time the so called Basel II. The relevant regulatory authority in the United Kingdom at the time was the Financial Services Authority, the FSA. Under CRD I, the capital of financial institutions was arranged in tiers. The highest tier of capital was Core Tier 1, known as CT1; the next tier was divided into Upper Tier 2 Capital and Lower Tier 2 Capital. CT1 included, inter alia, paid up shares and retained earnings. Lower Tier 2 Capital included dated subordinated debt. The FSAs practice was to require a financial institution to maintain a minimum ratio of CT1 assets and in addition to pass certain stress tests, which involved subjecting the banks balance sheet to hypothetical challenging market situations. In November 2008, the FSA issued a Statement which described a Capital Framework which it intended to apply to all financial institutions. The November 2008 Statement explained that the FSA used as common benchmarks within this framework ratios of capital to risk weighted assets of total Tier 1 Capital of at least 8% and Core Tier 1 Capital, as defined by the FSA, of at least 4% after the stressed scenario. The November 2008 Statement also stated that the FSA will be addressing the longer term capital regime for deposit takers in a discussion paper in the first quarter of 2009, the expectation being that this document will form part of the wider review of the global regulatory environment, which the FSA along with the other regulatory authorities, will be participating in. From time to time, the FSA issued further Statements and Guidance. Thus, in May 2009, it issued a Statement indicating that it had [g]reatly increased the use of stress tests as an integral element of our ongoing supervisory approach. The May 2009 Statement also stated that the FSA expected UK banks to maintain Core Tier 1 Capital, as defined by the FSA, of at least 4% of Risk Weighted Assets after applying an FSA defined stress test. The Statement added that [t]his current framework will remain in place until the Basel accord, which is implemented through EU capital requirement directives, has been modified to reflect the lessons learned from recent events. The May 2009 Statement also explained that the stress tests look forward over five years but with greater detail over the first three and that the tests are used to identify if at any time in the next five years there is a danger that under the stress scenario the level of capital will fall below the 4% Core Tier 1 minimum. In September 2009, in response to transitional legislation issued by the EU to control the use by financial institutions of hybrid securities as capital, the FSA issued another Statement making it clear that the FSA will work to ensure the timing of the introduction of a new long term capital regime . The September 2009 Statement also stated that hybrid capital instruments must be capable of supporting Core Tier 1 by means of a conversion or write down mechanism at an appropriate trigger. Instruments with these characteristics could be seen as a form of contingent Core Tier 1 Capital. The issue of the ECNs Meanwhile, in March 2009, the FSA had stress tested LBG, and had found that it had a shortfall in its CT1 Capital, in the light of the 4% minimum requirement referred to in the November 2008 Statement. As a result, the FSA required LBG to demonstrate that it had raised at least 21 billion which could qualify as CT1 Capital. After considering alternative options, LBG decided to raise 13.5 billion by issuing new fully paid up shares through a rights issue, and 8.3 billion through the medium of the ECNs, to be issued in exchange for existing securities. These ECNs were intended to be Cocos which would satisfy what was said in the passage in the September 2009 Statement quoted at the end of para 7 above. This decision was duly implemented. The terms of the 8.3 billion ECNs were described in a so called Exchange Offer Memorandum. The exchange invited in that Memorandum was taken up, and the ECNs were issued and subscribed in a number of different series in December 2009. The ECNs were loan notes whose terms were contained in a Trust Deed, which included in Schedule 4 detailed Terms and Conditions (T&Cs). In very broad terms, the ECNs (i) carried interest at varying rates depending on the series, but averaging about 10.33% per annum, (ii) subject to points (iii) and (iv), were redeemable only at certain specified dates under clause 8(a) of the T&Cs, which, depending on the series, varied between 2019 and 2032, but (iii) could be redeemed early by LBG, albeit only on a so called Capital Disqualification Event under clauses 8(e) and 19 of the T&Cs, and (iv) were in the meantime potentially convertible into paid up shares in certain specified circumstances described in clause 7(a) of the T&Cs. Clause 7 of the T&Cs was concerned with Conversion of the ECNs. Clause 7(a) was headed Conversion upon Conversion Trigger, and clause 7(a)(i) provided that [i]f the Conversion Trigger occurs at any time, each ECN shall be converted into Ordinary Shares credited as fully paid. The Conversion Trigger was defined as occurring at any time when LBGs Consolidated [CT1] Ratio is less than 5 per cent. The 5% figure was 1% above the minimum 4% ratio required at the time by the FSA, as explained in the Statements cited in paras 5 and 6 above. The remainder of clause 7 was concerned with consequential machinery. Clause 8 of the T&Cs was headed Redemption and Purchase. Clause 8(a) provided for the ECNs to be redeemed on the relevant Maturity Date (which was a date which varied between 2019 and 2032 depending on the particular series of the ECN) [u]nless previously converted, redeemed or purchased and cancelled as provided in these Conditions. Clause 8(e) provided that [i]f a Capital Disqualification Event has occurred and is continuing, then [LBG] may redeem all, but not some only, of the ECNs at [a specified price]. Clause 19 of the T&Cs was headed Definitions. It provided that a Capital Disqualification Event is deemed to have occurred: (1) if at any time LBG is required under Regulatory Capital Requirements to have regulatory capital, the ECNs would no longer be eligible to qualify in whole or in part (save where such non qualification is only as a result of any applicable limitation on the amount of such capital) for inclusion in the Lower Tier 2 Capital of LBG on a consolidated basis; or (2) if as a result of any changes to the Regulatory Capital Requirements or any change in the interpretation or application thereof by the FSA, the ECNs shall cease to be taken into account in whole or in part (save where this is only as a result of any applicable limitation on the amount that may be so taken into account) for the purposes of any stress test applied by the FSA in respect of the Consolidated Core Tier 1 Ratio. Certain other definitions in clause 19 of the T&Cs are also of some relevance. Core Tier 1 Capital was defined as core tier one capital as defined by the FSA as in effect and applied (as supplemented by any published statement or guidance given by the FSA) as at 1 May 2009. Tier 1 Capital and Lower Tier 2 Capital were each defined as having the meaning given to it by the FSA from time to time. Regulatory Capital Requirements was defined as meaning any applicable requirement specified by the FSA in relation to minimum margin of solvency or minimum capital resources or capital. The FSA was defined elsewhere in the Trust Deed as including any governmental authority in the United Kingdom having primary supervisory authority with respect to LBG. The effect of this arrangement was that (a) the ECNs counted as Lower Tier 2 Capital so long as they were neither redeemed under clause 8 nor converted under clause 7, and (b) if the ECNs were converted under clause 7 they would count towards the CT1 Capital. That is because, as explained in para 4 above, CT1 Capital included paid up shares and Lower Tier 2 Capital included dated subordinated debt. If conversion was avoided, the current shareholders did not have their shareholdings diluted, but the ECN holders received a good rate of interest. And the conversion under clause 7 would only occur when LBGs CT1 Capital fell below 5% of risk weighted assets ie when it was getting near the minimum 4% set by the FSA. Subsequent relevant regulatory developments With effect from 1 April 2013, the FSA was replaced as the body responsible for the regulation and supervision of UK financial institutions by the Prudential Regulation Authority, the PRA (which is wholly owned by the Bank of England). So far as EU regulatory requirements are concerned, CRD I was succeeded in 2010 and 2011 respectively by CRD II and CRD III, but neither of them made any changes relevant for present purposes. However, CRD IV, which was published in June 2013, and followed the so called Basel III, made substantial changes. First, it replaced CT1 Capital with Common Equity Tier 1 capital (CET1 Capital), which is a significantly more restrictive category than was CT1 Capital. Secondly, it set the minimum core capital ratio at 4% CET1 from 1 January 2014, increasing to 4.5% CET1 from 1 January 2015. Thirdly, it introduced a new concept, Additional Tier 1 Capital, (AT1 Capital), which included contingently convertible loan stock, such as the ECNs. It provided that such stock would only qualify as AT1 Capital if the trigger for conversion was set at a CET1 ratio of at least 5.125%. In March 2013, the Financial Policy Committee of the Bank of England, the FPC, issued a news release recommending that the PRA should assess the current capital adequacy of financial institutions in accordance with the CRD IV and Basel III criteria, albeit subject to adjustments. In particular, it said that by the end of 2013, banks should hold capital falling within CET1 (as adjusted) equivalent to at least 7% of their risk weighted assets (a 7% adjusted CET1 ratio standard), which was, according to the evidence, equivalent to requiring LBG to have an unadjusted CET1 Capital ratio of 10%. In June 2013, the PRA announced that LBG needed to raise a total of 8.6 billion further capital in order to meet the new 7% adjusted CET1 ratio standard. In August 2013, the PRA published a consultation paper, which dealt with the eligibility of Cocos and other convertible instruments to count as core capital. It stated that if financial institutions issue AT1 instruments, the PRA expects them to set AT1 triggers at a level higher than 5.125% CET1. By contrast, and crucially for present purposes, the evidence in this case establishes that the effect of the terms of the ECNs is that conversion of the ECNs into fully paid up LBG shares would only be triggered if LBGs CET1 ratio fell to 1%, which is, of course, far below the minimum required by the PRA under its 2013 Regulatory regime. In December 2013, the PRA published a Supervisory Statement effectively confirming as requirements what had been trailed by the FPC and the PRA earlier that year. In anticipation of the requirements in the December 2013 Supervisory Statement, LBG had substantially strengthened its capital position by the end of 2013. This involved a number of steps, including offering to exchange up to a maximum of 5 billion of the ECNs for new Cocos which would qualify as AT1 Capital, on the basis that they would convert to paid up shares if LBGs adjusted CET1 Capital ratio fell to 7% or lower. As explained in the supporting memorandum issued by LBG, the 7% conversion trigger was selected because of statements by the PRA that a conversion trigger of 5.125% may not convert in time to prevent the failure of a firm and that it expects major UK firms to meet a 7% CET1 ratio determined in accordance with CRD IV. 5 billion of the ECNs were duly exchanged for these new Cocos in March and April 2014. In April 2014, the Bank of England announced that, in relation to stress testing, the previous CT1 4% capital ratio would be replaced by a hurdle rate of a ratio of 4.5% of CET1 to risk weighted assets, although a stress test outcome was not dependent on a simple pass/fail exercise. In December 2014, the PRA reported that LBGs CET1 ratio at the end of 2013 was 10.1% and that its minimum stressed ratio in the stress test was 5%. The ECNs were not taken into account in either assessment. That was inevitable, as Gloster LJ pointed out in her judgment in the Court of Appeal, because LBG remained above the minimum capital threshold in that stress test in that its CET1 ratio did not fall below 4.5% by reason of the strength of its capital position without any need to take into account the ECNs, the conversion trigger point for which was well below the new CET1 capital pass ratio. These proceedings On 16 December 2014, LBG announced that the ECNs had not been taken into account in the December 2014 stress test and accordingly a Capital Disqualification Event (hereafter a CDE) had occurred under para (2) of the definition in clause 19 of the T&Cs, and accordingly LBG was entitled to redeem the outstanding 3.3 billion ECNs in accordance with clause 8(e) of the T&Cs. The consent of the PRA to the redemption was required and was duly obtained. However, BNY Mellon Corporate Trustee Services Ltd (the Trustee), as trustee for the holders of the ECNs under the Trust Deed mentioned in para 10 above, challenged LBGs claim to be entitled to redeem the outstanding ECNs. Hence these proceedings, in which LBG contends that a CDE has occurred, so that it can redeem the outstanding ECNs, and the Trustee denies that a CDE has occurred. LBG argues that a CDE has occurred because para (2) of the definition of a CDE in clause 19 of the T&Cs (the Definition) is satisfied. LBGs case is that as a result of [a change] to the Regulatory Capital Requirements or any change in the interpretation or application thereof by the FSA, namely the implementation of CRD IV through the 2013 Supervisory Statement, the ECNs [have ceased] to be taken into account for the purposes of any stress test applied by the [PRA] in respect of the Consolidated Core Tier 1 Ratio, as is evidenced by the stress tests carried out in 2014 in respect of LBGs financial position as at December 2013. The Trustee raises two arguments why this contention is wrong. First the Trustee contends that the December 2014 stress test was not in respect of the Consolidated Core Tier 1 Ratio, as specified in para (2) of the Definition; rather, it was a stress test in respect of a CET1 ratio. Secondly and alternatively, the Trustee contends that the fact that the ECNs were not taken into account in the December 2014 stress test when assessing the Tier 1 Ratio is not enough to trigger a CDE; in order for para (2) of the Definition to apply, the ECNs must be disallowed in principle from being taken into account for the purposes of the Tier 1 Ratio before para (2) of the Definition can be invoked by LBG. At first instance, Sir Terence Etherton C, in a clear and careful judgment, rejected the Trustees first argument, but accepted the Trustees second argument [2015] EWHC 1560 (Ch). Accordingly, he found in favour of the Trustee and held that the ECNs were not redeemable under clause 8(e) of the T&Cs. For reasons given in a very full judgment in the Court of Appeal, Gloster LJ agreed with Sir Terence on the first argument but disagreed with him on the second argument; Briggs LJ agreed with Gloster LJ for reasons given in a short judgment, and Sales LJ agreed with Gloster LJ. Accordingly, LBG won in the Court of Appeal, who concluded that the ECNs were redeemable under clause 8(e) of the T&Cs [2015] EWCA Civ 1257. The Trustee now appeals to the Supreme Court. The proper approach to interpretation Much of the argument before us was given over to the question whether, when construing the Trust Deed, and in particular the T&Cs, the Court of Appeal had been entitled to take into account statements in the substantial Exchange Offer Memorandum and in the lengthy letter from the chairman of LBG which accompanied it, and indeed the details of the statements and other documents issued by the FSA in 2008 and 2009. Over the past 20 years or so, the House of Lords and Supreme Court have given considerable (some may think too much) general guidance as to the proper approach to interpreting contracts and indeed other commercial documents, such as the Trust Deed in this case. What, if any, weight is to be given to what was said in other documents, which were available at the time when the contract concerned was made or when the Trust Deed in question took effect, must be highly dependent on the facts of the particular case. However, when construing a contract or Trust Deed which governs the terms upon which a negotiable instrument is held, as in the present case, very considerable circumspection is appropriate before the contents of such other documents are taken into account. In this connection, it is worth repeating the remarks of Lord Collins (with whom Lord Hope and Lord Mance agreed) in In re Sigma Finance Corp (in administrative receivership) [2010] 1 All ER 571, paras 36 and 37. Having pointed out that the trust deed in that case concerned debt securities issued to a variety of creditors, who hold different instruments, issued at different times, and in different circumstances, Lord Collins, at para 37, said [c]onsequently this is not the type of case where the background or matrix of fact is or ought to be relevant, except in the most generalised way. More generally, he said: Where a security document secures a number of creditors who have advanced funds over a long period it would be quite wrong to take account of circumstances which are not known to all of them. In this type of case it is the wording of the instrument which is paramount. The instrument must be interpreted as a whole in the light of the commercial intention which may be inferred from the face of the instrument and from the nature of the debtors business. As Mr Dicker QC points out on behalf of the Trustee, the same point was made by Lord Macmillan when giving the decision of the Privy Council in Egyptian Salt and Soda Co Ltd v Port Said Salt Association Ltd [1931] AC 677, 682. Disapproving the trial judges reliance on surrounding circumstances at the time when the memorandum was framed, Lord Macmillan said that the purpose of the memorandum is to enable shareholders, creditors and those who deal with the company to know what is its permitted range of enterprise, and for this information they are entitled to rely on the constituent documents of the company and that the intention of the framers of the memorandum must be gathered from the language in which they have chosen to express it. (See also the observations of Lord Hoffmann to much the same effect in Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988, para 36, Homburg Houtimport BV v Agrosin Private Ltd [2004] 1 AC 715, para 74, and Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101, para 40). In the present case, the Trust Deed, and in particular those parts of clauses 7, 8 and 19 of the T&Cs which fall to be construed, cannot be understood unless one has some appreciation of the regulatory policy of the FSA at and before the time that the ECNs were issued. That is self evident from the provisions of clause 19 which are set out in paras 13 and 14 above. Accordingly, I consider that at least the general thrust and effect of the FSA regulatory material published in 2008 and 2009 can be taken into account when interpreting the T&Cs. That would also accord with good sense: while the individual purchasers of the ECNs may not by any means all have been sophisticated investors, it is appropriate to assume that most of them would have had advice from reasonably sophisticated and informed advisers before they purchased such moderately complex financial products. The Exchange Offer Memorandum and the letter from the LBG chairman present more difficulties, and the answer may depend on whether such documents would have been known about or in the minds of subsequent purchasers of the ECNs, a point on which there was no evidence, so far as I am aware. As it is, I do not consider that the terms of the Exchange Offer Memorandum or the letter from the LBG chairman take matters any further in this case. In my view, once one has in mind the general thrust and effect of the FSA regulatory approach in 2009, as summarised in paras 4 to 7 above, coupled with the commercial purpose of the ECNs as summarised in para 15 above, it is simply unhelpful on the facts of this case to cast ones eyes further than the T&Cs when resolving the issues on this appeal. I now turn to those two issues. The first issue: did the possibility of a CDE fall away following CRD IV? I have no hesitation in agreeing with Sir Terence Etherton and the Court of Appeal in their conclusion that the reference to the Consolidated Core Tier 1 in para (2) of the Definition should, in the events which have happened, be treated as a reference to its then regulatory equivalent ie in the current context the Common Equity Tier 1 Capital. Etherton C and the Court of Appeal considered that this conclusion involves a departure from the strictly literal meaning of the definition of Core Tier 1 Capital in clause 19, but they concluded that such a departure was justified because it was clear that something has gone wrong with the language and [it was] clear what a reasonable person would have understood the parties to have meant, applying the test laid down by Lord Hoffmann in Chartbrook, para 25. The reasons given by Gloster LJ in para 85 of her judgment for departing from what she considered was the literal meaning of the closing words of para (2) of the Definition were based on the arguments of Mr Miles QC. They were, in summary, that (i) it was notorious at the time of the issue of the ECNs that the regulatory requirements as to financial institutions capital would be strengthened and changed, (ii) it was envisaged in the T&Cs, in particular in clause 19, that expressions such as Regulatory Capital Requirements and Core Tier 1 Capital could change their meaning; (iii) indeed, it was inherent in the terms of the Definition that this was so; (iv) it was obvious that changes of substance might lead to changes of nomenclature; and (v) one of the essential features of the ECNs was that, if necessary, they could be converted into LBG core capital, whatever expression was used to define it. Gloster LJ concluded that, given these points, coupled with the existence of the ECN maturity dates, it made no commercial sense to limit the reference to Core Tier 1 Capital in para (2) of the Definition to CT1 Capital, as opposed to holding that it could, in the events which had happened (as summarised in paras 16 to 20 above), apply to CET1 Capital. She also considered that the error would have been obvious to a reasonable addressee of the Exchange Offer Memorandum. She referred in this connection to another observation of Lord Collins in Sigma, where, in para 35, he said that in complex documents such as the Exchange Offer Memorandum, there are bound to be ambiguities, infelicities and inconsistencies and had gone on to warn against an over literal interpretation of one provision without regard to the whole, which may distort or frustrate the commercial purpose. Subject to one point, I have no hesitation in agreeing with the analysis as summarised in paras 35 to 37 above. My only doubt is as to whether this conclusion really does involve a departure from the literal meaning of the closing words of para (2) of the Definition, not least in the light of the definitions of Core Tier 1 Capital and Tier 1 Capital in clause 19. It may involve a departure from the literal meaning, but, if it does, it is on the basis of a rather pedantic approach to interpretation. I do not, however, propose to discuss the point further: it is completely arid. I would add, however, that if the Trustees argument was correct, it seems to me that LBG would have had a powerful basis for saying that this appeal should be dismissed rather than allowed. That is because, as a matter of language at least, LBG could say that para (2) of the Definition applied on the grounds that the ECNs had, on any view cease[d] to be taken into account for the purposes of any stress test applied by the FSA in respect of the Consolidated Core Tier 1 Ratio, because that ratio was no longer being used by the FSA. The second issue: have the ECNs ceased to be taken into account? The critical question raised by the second issue is whether, as LBG contends, in the light of the regulatory changes and events as described in paras 17 24 above, the ECNs [have] cease[d] to be taken into account in whole or in part for the purposes of any stress test applied by the [PRA] in respect of [what I will call the Tier 1] ratio. To put the point slightly differently, the question is whether the implementation of CRD IV by the PRA through the new Capital Requirements summarised in paras 17 to 21 above, and applied as described in paras 23 and 24 above, entitle LBG to say that a CDE has occurred because para (2) of the Definition has been satisfied. The nature of the dispute on this second issue was very well expressed by Briggs LJ in para 114 in the Court of Appeal, in these terms: In order to resist early redemption of the ECNs is it sufficient that they continue to be taken into account for some purpose or purposes in the stress test now applied by the [PRA], which in my view they do, or must they play a part in enabling LBG to pass that test, which they clearly no longer do, because of the change in the Regulatory Capital Requirements which had the effect of elevating the pass ratio to a level above the Conversion Trigger. I also agree with what Briggs LJ said in the next paragraph of his judgment, namely that this is a difficult question to resolve, and I find it unsurprising that Sir Terence and the Court of Appeal took different views, and indeed that there is a difference of view in this court. LBG argues that the essential point is that the Regulatory Capital Requirements changed in 2013 with the consequence that the ECNs could no longer be taken into account in assisting LBG in passing the stress test, because the conversion trigger under the terms of the ECNs was at a level lower than the minimum required by the PRA, as explained in para 20 above, and, in any event, the PRA did not in any way rely on the ECNs when conducting its stress tests on LBG in 2014. By contrast, the Trustees argument is that, notwithstanding the regulatory changes in 2013, the ECNs can continue to be taken into account as part of the Tier 1 Capital by automatically converting into paid up shares in LBG, albeit that this would only occur when the CET1 Capital ratio fell to 1%. I prefer LBGs argument, as advanced by Mr Howard QC, for the following reasons. First, it appears to me that the Trustees argument does not give full weight to the phrase any stress test in respect of the [Tier 1] Ratio. I accept that, under the new Regulations introduced in 2013, the ECNs could be taken into account in a stress test, and I accept that there could be circumstances in which the ECNs could convert into ordinary shares so as to become part of Tier 1 capital. However, if and when a stress test is applied to see if LBG satisfies the Tier 1 Ratio, it appears to me that the vital point is that, under the Regulations introduced in 2013, the ECNs cannot be taken into account so as to do the very job for which their convertibility was plainly designed, namely to enable them to be converted before the regulatory minimum Tier 1 Ratio is reached. That, to my mind, is what the expression taken into account for the purposes of any stress test in respect of the [Tier 1] Ratio is concerned with. Secondly, the question which has to be asked under para (2) of the Definition is whether the ECNs have cease[d] to be taken into account for the specified purpose. This is in marked contrast with the wording of para (1) of the Definition, where the question is whether the ECNs are no longer eligible to qualify for the purpose specified in that paragraph. It seems to me that eligibility to qualify depends on what the Regulations say, whereas being taken into account depends more on what happens in practice no doubt pursuant to the Regulations. That view is reinforced by the fact that para (1) is based simply on the requirements of Regulatory Capital Requirements, whereas para (2) is also based on any changes to the Regulatory Capital Requirements or any change in the interpretation or application thereof. It seems to me that the way on which the Trustee puts its case, as summarised in para 44 above, is ultimately concerned with the eligibility of the ECNs for the purpose described in para (2) of the Definition, whereas LBG can fairly rely on the fact that the ECNs were not, as a matter of fact (and it does not signify whether it was due to the terms of the 2013 Regulations, or the PRAs application of those Regulations) invoked for the purpose described in para (2) see para 24 above. Thirdly, if the Trustees interpretation is correct, it is very difficult to envisage circumstances in which it could have been thought that para (2) of the Definition could ever be invoked. The notion that fully paid up share capital could ever be excluded from the definition of Tier 1 Capital (whether CT1, CET1, adjusted CET1 or any other possible definition) seems fanciful. Accordingly, it is hard to see how the parties could have envisaged that a Coco, ie a loan note which automatically converted into paid up share capital, could be excluded, in the sense that the Trustees case requires, from being taken into account for the purposes of any stress test in respect of the [Tier 1] Ratio. While some of them are not without force, the arguments which have been raised against LBGs case do not persuade me the other way. There is, I accept, some force in the point that, if LBGs reading of para (2) of the Definition is correct, it must have been foreseeable when the ECNs were issued that a CDE would be likely to occur in the not too distant future. That is because it was well known that the capital requirements of financial institutions were to be strengthened (see paras 5 to 7 above), and so, runs the argument, it must have been appreciated that the minimum permitted Tier 1 Ratio was likely to go above the equivalent of a CT1 ratio of 5%. There are, however, two answers to this point. First, it was by no means certain that the increased capital requirements would involve increasing the minimum Tier 1 Ratio above the equivalent of a CT1 ratio of 5%. Apart from anything else, the new requirements could have retained or only slightly increased this minimum, while introducing a new intermediate tier between what was CT1 and Upper Tier 2: that that is not a fanciful possibility is demonstrated by the actual introduction of the new concept of AT1 Capital (see para 17 above). Quite apart from this, the notion that it must have been perceived as likely that the ECNs would be redeemable well before their respective maturity dates is not a particularly surprising proposition, especially as clause 8(e) operated not as an automatic redemption, but merely gave rise to an option in LBG to redeem. The expression Capital Disqualification Event does not strike me as an inapt description of what has happened on LBGs case. Thus, the effect of the change in the Regulations in 2013 and the application of those changed Regulations in 2014 can fairly be said to have disqualified the ECNs from having the potentially saving effect on the Tier 1 Ratio which they were intended to have, and could properly have had under the Regulations as they stood in 2009. The argument that the 2013 Regulations have not made any difference because the ECNs might not have ensured that LBG had a sufficiently high Tier 1 Ratio even under the 2009 Regulations appears to me to involve a mischaracterisation of LBGs case. That case is not that the convertibility of the ECNs could be guaranteed to save the day under the 2009 Regulations. It is that their convertibility could be invoked to increase the Tier 1 Ratio before that ratio had fallen below the minimum under the 2009 Regulations of a CT1 Capital ratio of 4%. Thus, in 2009, the convertibility of the ECNs had the ability to enable LBG to keep above the minimum Tier 1 Ratio, whereas that was no longer possible under the 2013 Regulations. The force of the point is underlined by the PRAs requirement in 2013 that the Tier 1 Ratio conversion trigger for any qualifying Cocos should be at least 5.125% (see paras 17 and 19 above). I am also unimpressed with the point that, on LBGs argument, the ECNs may be redeemed under clause 8(e) because they have cease[d] to be taken into account on one stress test (as in 2014), notwithstanding that they might have been taken into account on a subsequent stress test. Such a possibility is inherent in para (2) of the Definition, whatever meaning one gives it. Thus, if para (2) is simply concerned with the ECNs eligibility to convert into Tier 1 Capital, as the Trustee contends, and the Regulations were changed to provide that they could no longer do so (highly improbable to say the least, as already pointed out), it could always be said that the Regulations might change back. It is said that LBGs case leads to arbitrary results, as it may depend on the practices and assumptions of the PRA when applying a particular stress test or set of stress tests. There are two answers to that. The first is that, on the facts of this case, that is not a fair charge: given that the minimum Tier 1 Ratio has changed so that the ECNs cannot convert to Tier 1 capital until that capital has fallen below, indeed substantially below, the permissible minimum as a result of the changes effected by the 2013 Regulations, para (2) of the Definition applies. Quite apart from that, given the reference to the application of the Regulations by the FSA for the purposes of any stress test applied by the FSA, it is inherent in para (2) that the PRAs practices could determine whether the paragraph is satisfied. Finally, there is also some force in the argument that the wording of para (2) of the Definition is not wholly clear and that, in the event of doubt, it should be construed against LBG, as the person responsible for drafting the Trust Deed, the proferens. The closing words in respect of the Tier 1 Ratio are inherently imprecise: identifying the precise ambit of the expression in respect of frequently leads to arguments. However, the contra proferentem rule is very much a last refuge, almost an admission of defeat, when it comes to construing a document, and, in this case, for the reasons which I have attempted to give in paras 45 52 above, I do not think that it is necessary, or indeed appropriate, to resort to it in this case. Conclusion Accordingly, I would dismiss the Trustees appeal, on the basis that I consider that a Capital Disqualification Event has arisen under para (2) of the Definition of that expression in clause 19 of the T&Cs. LORD SUMPTION: (dissenting) (with whom Lord Clarke agrees) This case is of considerable financial importance to the parties but raises no questions of wider legal significance. There is therefore no point in dissenting at any length. But since I would have held that that these securities are not redeemable, I should, however briefly, explain why. The notes are contingent share capital. Their immediate purpose as far as Lloyds Banking Group was concerned was to enable it to satisfy the FSA at the time of their issue that it would have a ratio of Consolidated Core Tier 1 Capital to risk weighted assets of at least 4% in a hypothetical stressed scenario. Consolidated Core Tier 1 Capital included ordinary shares but not loan notes. The issue of these notes did not therefore actually strengthen the Banks Tier 1 Capital. But because they would automatically convert to ordinary shares if in the hypothetical stress scenario the ratio fell to within one percentage point above the then minimum, they assisted the Bank to satisfy its regulators. The effect of the subsequent regulatory changes was that the definition of top tier capital was tightened up and the required ratio of adjusted top tier capital (Common Equity Tier 1) to risk weighted assets was increased to 7%. This meant that the notes were no longer as useful to the Bank, because if its affairs deteriorated it would fail a stress test long before the trigger for conversion was reached. From the investors point of view, however, that did not matter, provided that the Bank remained solvent. The attraction of the notes for them lay in their long maturity date and high coupon, both features that were critical to their market value. The notes are redeemable if as a result of regulatory changes they cease to be taken into account for the purposes of any stress test in respect of the Consolidated Core Tier 1 Ratio (for which, now read the Common Equity Tier 1 Capital ratio). The question is whether being taken into account means (i) that in the hypothetical stress scenario they would convert and play a part in enabling the Bank to pass the stress test; or (ii) that they must be eligible, in the sense that notwithstanding their status as Lower Tier 2 Capital the regulator would treat them as top tier capital in the hypothetical event of the Banks affairs deteriorating to the point where the conversion trigger was attained, so that the stress scenario can be modelled on that basis. The difference is that (i) depends on how the Bank fared in an actual stress test, whereas (ii) turns on the regulators rules and practices for conducting such tests. Sir Terence Etherton concluded that (ii) was correct, because the definition is not looking at the happenstance of the particular strength of LBGs capital and the particular composition of its capital at any one particular moment of time in the context of a particular stress test imposed by the regulator at that time, but at the position as a matter of principle (para 46). I think that he was right. In the first place, it was always implicit in the terms that the notes might be irrelevant to the Banks ability to pass a stress test. Whether or not there were changes to the regulatory capital requirements, the Banks capital position might be strong enough to meet the minimum top tier capital ratio even if the notes did not convert. Or it might be so weak that the notes would not save the situation even if they did convert. If the notes would not necessarily play a part in enabling the Bank to pass a stress test in the situation obtaining when they were issued, I cannot see why it should be supposed that the parties intended to allow early redemption if the same situation obtained as a result of a change in regulatory capital requirements. The situation introduced by such a change is no different in principle from the situation that existed before. The change might make it more or less likely that the notes would be critical to the outcome of a stress test, but there is no change in the way that the scheme works. Secondly, a test dependent on how the notes affected the outcome of an actual stress test would be wholly uncertain. Stress testing is not a fixed or ascertainable concept. Its outcome will depend not just on the rules and practises of the regulator, but on what the hypothetical conditions assumed in a particular stress test are, on where the regulator pitches the stress test hurdle (not necessarily the same as the minimum regulatory top tier capital ratio), and what is the value and composition of the Banks assets at the time of the test. Moreover the hypothetical stress scenario will test the strength of the Banks capital over a substantial period of time, during which it may fail the test throughout or for a day or two. The significance of that will be a question of regulatory judgment. It is not just a simple question of pass or fail. Of course, the regulatory changes which actually occurred mean that the notes will in practice make little difference to the outcome on any reasonably foreseeable view about these matters. But although it was anticipated that there would be a tightening of the capital adequacy requirements, the details were not known at the time that the securities were issued, and the terms cannot be construed in the light of the subsequent changes. Thirdly, nothing in the definition of a Capital Disqualification Event supports the suggestion that it was intended to depend on the part played by the notes in enabling the Bank to pass an actual stress. The clauses title is concerned with disqualification, ie with a state of affairs in which the notes are no longer eligible in principle to perform their function as contingent capital. As regards Lower Tier 2 Capital, dealt with in sub clause (1), this is clear from the reference to capital being eligible to qualify. The only reason why the word eligible is not used in sub clause (2) of the definition, dealing with top tier capital, is that whereas the status of Lower Tier 2 Capital depends simply on whether it satisfies the relevant regulations, the status of top tier capital depends on the practices and judgments of regulators as well, a context in which it was appropriate to speak of the securities being taken into account, rather than being eligible. These were long dated securities, which cannot have been intended to be redeemed early except in some extreme event undermining their intended function and requiring their replacement with some other form of capital. The function of the notes was to be available to boost the Banks top tier capital in the hypothetical event that the ratio of top tier capital to risk weighted assets fell below the conversion trigger. They have always served that function and still do. Whether that function remains as important to the Bank as it was in 2009 is irrelevant.	The issue in this appeal is whether Lloyds Banking Group (LBG) is entitled to redeem 3.3 billion of enhanced capital notes (ECNs) which carry an interest rate of over 10% per annum. The capital requirements for financial institutions were, at the time of the issue of the ECNs, set out in the CRD I Directive, which arranged the capital of financial institutions in tiers, the highest of which was Core Tier 1 (CT1). In March 2009, the Financial Services Authority (the FSA), having stress tested LBG and found a shortfall, required it to raise 21 billion which could qualify as CT1 Capital. LBG raised some of this amount by issuing 8.3 billion of ECNs in December 2009. The ECNs were intended to satisfy criteria set out by the FSA in a statement issued in September 2009, which provided that hybrid capital instruments capable of supporting CT1 Capital by means of a conversion or write down mechanism at an appropriate trigger could qualify as CT1 Capital. The terms of the ECNs were contained in a Trust Deed (the Trust Deed), which included detailed terms and conditions (T&Cs). The ECNs were not redeemable until specified maturity dates, unless (i) converted into shares on the occurrence of a conversion trigger, being any time when LBGs CT1 ratio fell below 5%; or (ii) redeemed early by LBG on the occurrence of a Capital Disqualification Event (CDE). One of the two circumstances in which a CDE occurs is stated in clause 19(2) to be where, as a result of any changes to regulatory capital requirements, the ECNs cease to be taken into account in whole or in part for the purposes of any stress test in respect of the Consolidated CT1 ratio. In June 2013, a new directive, CRD IV, replaced CT1 Capital with a more restrictive category, Common Equity Tier 1 Capital (CET1 Capital) and effected other changes to capital requirements. In accordance with these changes, the successor to the FSA, the Prudential Regulation Authority (the PRA), confirmed that LBG was subject to a new 7% CET1 ratio standard and that the ECNs would need to have a trigger for conversion higher than 5.125% CET1 in order to count as core capital. In March April 2014, LBG exchanged 5 billion of ECNs for instruments which satisfied the new requirements. In December 2014, the PRA reported that LBGs CET1 ratio was 10.1% and its minimum stressed ratio was 5%. The ECNs were not taken into account in either assessment. On 16 December 2014, LBG announced that a CDE had occurred under clause 19(2) and that it was entitled to redeem the outstanding 3.3 billion ECNs. BNY Mellon Corporate Trustee Services Ltd (BNY Mellon), as trustee for the holders of the ECNs, issued proceedings challenging LBGs claim and denying that a CDE had occurred. At first instance, Sir Terence Etherton found for BNY Mellon. The Court of Appeal allowed LBGs appeal. BNY Mellon now appeals to the Supreme Court. The Supreme Court dismisses BNY Mellons appeal by a 3:2 majority. Lord Neuberger gives the leading judgment, with which Lord Mance and Lord Toulson agree. Lord Sumption gives a short dissenting judgment, with which Lord Clarke agrees. The Trust Deed cannot be understood unless one has some appreciation of the regulatory policy of the FSA at and before the time that the ECNs were issued [33]. Thus, the general thrust and effect of the FSA regulatory material published in 2008 and 2009 can be taken into account when interpreting the T&Cs [33]. BNY Mellon argued that the December 2014 stress test was not in respect of Consolidated Core Tier 1 ratio as specified in clause 19(2) of the T&Cs as CT1 had by this point been replaced by CET1 Capital [27]. This argument is rejected [35]. The reference to the Consolidated Core Tier 1 Ratio should, in the events which have happened, be treated as a reference to its then regulatory equivalent, being Common Equity Tier 1 Capital [35]. BNY Mellons second argument is that, in order for it to be said that the ECNs had not been taken into account, they must be disallowed in principle from being taken into account for the purposes of the Tier 1 ratio [27, 40]. The question is whether it is sufficient that the ECNs continue to be taken into account for some purpose in the stress test, or whether they must play a part in enabling LBG to pass that test, which they no longer do [40 42]. The preferable view is that the ECNs must play a part in enabling LBG to pass the stress test [45]. Under the Regulations passed in 2013, the ECNs cannot be taken into account so as to do the very job for which their convertibility was designed, namely to enable them to be converted before the regulatory minimum Tier 1 ratio is reached [45]. This conclusion is also supported by the contrast between ceased to be taken into account, the expression in clause 19(2), and a different expression, no longer eligible to qualify, which is in clause 19(1) [46]. Further, if the contrary view were correct, it is very difficult to envisage circumstances in which it could have been thought that clause 19(2) could have been invoked [47]. Accordingly, the Trustees appeal should be dismissed, on the basis that a CDE has arisen under clause 19(2) [54]. Lord Sumption, with whom Lord Clarke agrees, dissents on this point and considers that the ECNs are not redeemable because, notwithstanding their status as lower tier capital, they would be treated by the regulator as top tier capital in the hypothetical event that LBGs affairs deteriorated to the point where the conversion trigger was attained [55 62].
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	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].
This judgment is concerned with two connected questions: (i) (ii) Is it possible in principle for the Supreme Court to adopt a closed material procedure on an appeal? If so, Is it appropriate to adopt a closed material procedure on this particular appeal? A closed material procedure involves the production of material which is so confidential and sensitive that it requires the court not only to sit in private, but to sit in a closed hearing (ie a hearing at which the court considers the material and hears submissions about it without one of the parties to the appeal seeing the material or being present), and to contemplate giving a partly closed judgment (ie a judgment part of which will not be seen by one of the parties). Open justice and natural justice The idea of a court hearing evidence or argument in private is contrary to the principle of open justice, which is fundamental to the dispensation of justice in a modern, democratic society. However, it has long been accepted that, in rare cases, a court has inherent power to receive evidence and argument in a hearing from which the public and the press are excluded, and that it can even give a judgment which is only available to the parties. Such a course may only be taken (i) if it is strictly necessary to have a private hearing in order to achieve justice between the parties, and, (ii) if the degree of privacy is kept to an absolute minimum see, for instance A v Independent News & Media Ltd [2010] EWCA Civ 343, [2010] 1 WLR 2262, and JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645. Examples of such cases include litigation where children are involved, where threatened breaches of privacy are being alleged, and where commercially valuable secret information is in issue. Even more fundamental to any justice system in a modern, democratic society is the principle of natural justice, whose most important aspect is that every party has a right to know the full case against him, and the right to test and challenge that case fully. A closed hearing is therefore even more offensive to fundamental principle than a private hearing. At least a private hearing cannot be said, of itself, to give rise to inequality or even unfairness as between the parties. But that cannot be said of an arrangement where the court can look at evidence or hear arguments on behalf of one party without the other party (the excluded party) knowing, or being able to test, the contents of that evidence and those arguments (the closed material), or even being able to see all the reasons why the court reached its conclusions. In Al Rawi v Security Service [2012] 1 AC 531, Lord Dyson made it clear that, although the open justice principle may be abrogated if justice cannot otherwise be achieved (para 27), the common law would in no circumstances permit a closed material procedure. As he went on to say at [2012] 1 AC 531, para 35, having explained that, in this connection, there was no difference between civil and criminal proceedings: [T]he right to be confronted by ones accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that. The effect of the Strasbourg Courts decisions in Chahal v United Kingdom (1996) 23 EHRR 413 and A and others v United Kingdom [2009] ECHR 301 is that Article 6 of the European Convention on Human Rights (Article 6, which confers the right of access to the courts) is not infringed by a closed material procedure, provided that appropriate conditions are met. Those conditions, in very summary terms, would normally include the court being satisfied that (i) for weighty reasons, such as national security, the material has to be kept secret from the excluded party as well as the public, (ii) a hearing to determine the issues between the parties could not fairly go ahead without the material being shown to the judge, (iii) a summary, which is both sufficiently informative and as full as the circumstances permit, of all the closed material has been made available to the excluded party, and (iv) an independent advocate, who has seen all the material, is able to challenge the need for the procedure, and, if there is a closed hearing, is present throughout to test the accuracy and relevance of the material and to make submissions about it. The importance of the requirement that a proper summary, or gist, of the closed material be provided is apparent from the decision of the House of Lords in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269. At para 59, Lord Phillips said that an excluded party must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations, and that this need not include the detail or the sources of the evidence forming the basis of the allegations. As he went on to explain: Where, however, the open material consists purely of general assertions and the case against the [excluded party] is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be. The nature and functions of a special advocate are discussed in Al Rawi [2012] 1 AC 531, by Lord Dyson, paras 36 37, and by Lord Kerr, para 94. As Lord Dyson said, the use of special advocates has limitations, despite the fact that the rule makers and the judges have done their best to ensure that they are given all the facilities that they need, and despite the fact that the Treasury Solicitor has ensured (to the credit of the Government) that they are of consistently high quality. In a number of statutes, Parliament has stipulated that, in certain limited and specified circumstances, a closed material procedure may, indeed must, be adopted by the courts. Of course, it is open to any party affected by such legislation to contend that, in one respect or another, its provisions, or the ways in which they are being applied, infringe Article 6. However, subject to that, and save maybe in an extreme case, the courts are obliged to apply the law in this area, as in any other area, as laid down in statute by Parliament. The statutory and factual background to this appeal The statute in question in this case is the Counter Terrorism Act 2008 (the 2008 Act), which, as its name suggests, is concerned with enabling steps to be taken to prevent terrorist financing and the proliferation of nuclear weapons, and thereby to improve the security of citizens of the United Kingdom. The particular provisions which apply in the present case are in Parts 5 and 6 of the 2008 Act. The first relevant provision is section 62, which is in Part 5 and confer[s] powers on the Treasury to act against terrorist financing, money laundering and certain other activities in accordance with Schedule 7. Paragraphs 1(4), 3(1) and 4(1) of Schedule 7 to the 2008 Act permit the Treasury to give a direction to any credit or financial institution, if the Treasury reasonably believes that the development or production of nuclear . weapons in [a] country poses a significant risk to the national interests of the United Kingdom. According to paras 9 and 13 of the schedule, such a direction may require the person on whom it is served not to enter into or to continue to participate in a specified description of transactions or business relationships with a designated person. Paragraph 14 requires any such direction to be approved by affirmative resolution of Parliament. Pursuant to these provisions, on 9 October 2009, the Treasury made the order the subject of these proceedings, the Financial Restrictions (Iran) Order 2009 (the 2009 Order), which, three days later, was laid before Parliament, where it was approved. The 2009 Order, which was in force for a year, directed all persons operating in the financial sector not to enter into, or continue to participate in, any transaction or business relationship with two companies, one of which was Bank Mellat (the Bank), or any branch of either of those two companies. The Bank is a large Iranian bank, with some 1800 branches and nearly 20 million customers, mostly in Iran, but also in other countries, including the United Kingdom. In 2009, prior to the 2009 Order, it was issuing letters of credit in an aggregate sum of over US$11bn, of which around 25% arose out of business transacted in this country. It has a 60% owned subsidiary bank incorporated and carrying on business here, which was at all material times regulated by the Financial Services Authority. The Order effectively shut down the United Kingdom operations of the Bank and its subsidiary, and it is said to have damaged the Banks reputation and goodwill both in this country and abroad. The first section of Part 6 of the 2008 Act is section 63, of which subsection (2) gives any person affected by a direction the right to apply to the High Court (or the Court of Session) to set it aside, and any such application is defined by section 65 as financial restrictions proceedings. The Bank issued such proceedings to set aside the Order on 20 November 2009. The Government took the view that some of the evidence relied on by the Treasury to justify the 2009 Order was of such sensitivity that it could not be shown to the Bank or its representatives. Mitting J accepted the Governments case that justice required that the evidence in question be put before the court and that it had to be dealt with by a closed material procedure. Accordingly, he gave appropriate directions as to how the hearing should proceed. The two day hearing before him was partly in open court and partly a closed hearing. The open hearing involved all evidence and arguments (save the closed material) being produced at a public hearing, with both parties, the Bank and the Treasury, seeing the evidence and addressing the court through their respective counsel, in the normal way. The closed hearing was conducted in private, in the absence of the Bank, its counsel, and the public, and involved the Treasury producing the closed material and making submissions on it through counsel. The interests of the Bank were protected, at least to an extent, by (i) the Treasury providing the Bank with a document which gave the gist of the closed material, and (ii) the presence at the closed hearing of special advocates, who had been cleared to see the material, and who made such submissions as they could on behalf of the Bank about the closed material. Following the two day hearing, Mitting J handed down two judgments on 11 June 2010. The first judgment was an open judgment, in which the Judge dismissed the Banks application for the reasons which he explained [2010] EWHC 1332 (QB). The second judgment was a closed judgment, which was seen by the Treasury, but not by the Bank, and is, of course, not publicly available. The closed judgment was much shorter than the open judgment, although it should be added that the open judgment is not particularly long. In his open judgment, Mitting J referred to his closed judgment in two passages. At [2010] EWHC 1332 (QB), para 16, the Judge considered, inter alia, the activities of one of the Banks former customers, Novin. Having referred to the fact that Novin had been designated by the [UN] Security Council as a company which operates within and has transferred funds on behalf of the Atomic Energy Organisation of Iran (AEOI), he said that [b]y reason of the designation and for reasons set out in the closed judgment I accept that Novin was an AEOI financial conduit and did facilitate Irans nuclear weapons programme. At [2010] EWHC 1332 (QB), para 18, the Judge considered the activities of another of the Banks former customers, Doostan International and its managing director, Mr Shabani. He said that [f]or reasons which are set out in the closed judgment, I am not satisfied that Mr Shabani has made a full disclosure and am satisfied that he and Doostan have played a part in the Iranian nuclear weapons programme. The Bank appealed, and the appeal was heard by the Court of Appeal largely by way of an ordinary, open, hearing. However, there was a short closed hearing at which they considered the closed judgment of Mitting J, and at which the special advocates, but not representatives of the Bank, were present. The Banks appeal was dismissed by the Court of Appeal (Maurice Kay and Pitchford LJJ, Elias LJ dissenting in part) in an open judgment, which was handed down on 13 January 2011 [2011] EWCA Civ 1. In the last paragraph of his judgment, [2011] EWCA Civ 1, para 83, Maurice Kay LJ said that although the Court held a brief closed hearing in the course of the appeal, he did not find it necessary to refer to it or to the closed judgment of Mitting J. The Bank then appealed to this Court. Before the hearing of the appeal, it was clear that the Treasury would ask this Court to look at the closed judgment of Mitting J. Therefore, it was agreed between the parties that the first day of the three day appeal should be given over to the question of whether the Supreme Court could conduct a closed hearing. At the end of that days argument, we announced that, by a majority, we had decided that we could do so and that we would give our reasons later. The second day and most of the third day of the hearing were given over to submissions made in open court by counsel for the Bank (and counsel for certain interested parties, shareholders in the Bank) in support of the appeal, and to submissions in reply on behalf of the Treasury. We were then asked by counsel for the Treasury to go into closed session in order to consider the closed judgment of Mitting J. This was opposed by counsel for the Bank and by the special advocates. While we were openly sceptical about the necessity of acceding to the application, by a bare majority we decided to do so. Accordingly, the Court had a closed hearing which lasted about 20 minutes, at which we heard brief submissions on behalf of the Treasury and counter submissions from the special advocates. We then resumed the open hearing for the purpose of counsel for the Bank making his closing submissions. Contemporaneously with this judgment, we are giving our judgment on the substantive issue, namely whether the 2009 Order should be quashed. The purpose of this judgment is (i) to explain why we decided that we had power to have a closed material hearing, and (ii) to consider the closed material procedure we adopted on this appeal, and to give some guidance for the future in relation to the closed material hearing procedure on appeals. The closed material procedure in the courts of England and Wales The practice and procedure of the civil courts of England and Wales (the County Court, the High Court and the Court of Appeal) are governed by the Civil Procedure Act 1997 (the 1997 Act). Section 1(1) of the 1997 Act provides for the practice and procedure to be set out in the Civil Procedure Rules (CPR), and states that they are to be made, and modified, by the negative statutory instrument procedure. Section 1(3) of the 1997 Act states that the power to make the CPR is to be exercised with a view to securing that the civil justice system is accessible, fair and efficient. The underlying purpose of the CPR is enshrined in the so called overriding objective in CPR 1(1), which requires every case to be dealt with justly. By CPR 1(2), this expression is stipulated to include so far as is practicable ensuring that the parties are on an equal footing [and] ensuring that [every case] is dealt with fairly. The CPR contain detailed rules with regard to procedures before, during and after trial, which seek to ensure that all civil proceedings are conducted in a way which is fair and effective, and, in particular for present purposes, in a way which achieves, as far as is possible in this imperfect, complex and unequal world, openness and equality of treatment as between the parties. In a series of provisions in Part 6 of the 2008 Act, Parliament has recognised that financial restrictions proceedings may require the rules of general application in the CPR to be changed or adapted if a closed material procedure is to be permitted. The first of those provisions is section 66(1), which explains that: The following provisions apply to rules of court relating to (a) financial restrictions proceedings, or (b) proceedings on an appeal relating to financial restrictions proceedings. Section 66(2) requires the rules of court to have regard to the need to secure that both (a) directions made under schedule 7 to the 2008 Act are properly reviewed, and (b) that information is not disclosed when [it] would be contrary to the public interest. Section 66(3) of the 2008 Act states that rules of court may make provision for various aspects of financial restrictions proceedings, including (a) the mode of proof and about evidence and (c) about legal representation. Section 66(4) states that [r]ules of court may (a) enable the proceedings to take place without full particulars of the [direction] being given to a party , (b) enable the court to conduct proceedings in the absence of any person, including a party , (c) deal with the functions of a special advocate, (d) empower the court to give [an excluded] party a summary of evidence taken in the partys absence. Section 67 of the 2008 Act is concerned with rules about disclosure in cases covered by section 66(1). Section 67(2) provides that, subject to the ensuing subsections, [r]ules of court must secure that the Treasury give disclosure on the normal principles ie that they must disclose material which (i) they rely on, (ii) adversely affects their case, and (iii) supports the case of another party. Section 67(3) states that [r]ules of court must secure that (a) the Treasury can apply not to disclose material, (b) they can do so under a closed material procedure, with a special advocate present, and (c) the court should accede to the application if it considers that the disclosure of the material would be contrary to the public interest, in which case (d) the court must consider requiring the Treasury to provide a summary of the material to every party, provided that (e) the summary should not include material the disclosure of which would be contrary to the public interest. Section 67(6) emphasises that nothing in the section should require the court to act in such a way as to contravene Article 6. Section 68 of the 2008 Act is concerned with the appointment of special advocates for the purpose of financial restrictions proceedings. Section 72 of the 2008 Act enabled the Lord Chancellor to make the original rules referred to in the preceding sections. Section 72(4) provides that (a) any such rules should be laid before both Houses of Parliament, and (b) if they are not approved within forty days, any such rules will cease to have effect. The final provision in Part 6 of the 2008 Act is section 73, the interpretation section, which states that, for the purposes of Part 6 of the 2008 Act: rules of court means rules for regulating the practice and procedure to be followed in the High Court or the Court of Appeal or in the Court of Session. Pursuant to sections 66 and 67 of the 2008 Act, the Civil Procedure (Amendment No 2) Rules (SI 2008/3085) were made by the Lord Chancellor on 2 December 2008, laid before Parliament the next day, and came into force on 4 December 2008. As a result, the CPR now include a new rule 79, which applies to Proceedings under the Counter Terrorism Act 2008. CPR 79.2 (1) modifies the overriding objective and so far as relevant any other rule, to accommodate (2) the courts duty to ensure that information is not disclosed contrary to the public interest. CPR 79 then goes on to modify, disapply or replace many of the generally applicable provisions of the CPR in relation to proceedings under the 2008 Act. Most of these variations arise from the provision for a closed material procedure in some such proceedings. Thus, the CPR are amended to take into account the potential need for (i) involvement of special advocates (in e.g. CPR 79.8, CPR 79.18 21), (ii) an application for a closed material procedure (dealt with in CPR 79.11 and CPR 79.25), (iii) directions if such a procedure is ordered (in CPR 79.26), (iv) modification of the rules in relation to evidence and disclosure, including disapplication of CPR 31 relating to public interest immunity (in CPR 79.22), and (v) the possibility of a closed judgment (in CPR 79.28). The statutory provisions and procedural rules of the Supreme Court The Supreme Court was created by the Constitutional Reform Act 2005 (the 2005 Act). Section 40(2) of the 2005 Act states that [a]n appeal lies to the Court from any order or judgment of the Court of Appeal in England and Wales in civil proceedings. The effect of section 40(3) is that the right of appeal to the Supreme Court from any Scottish court remains the same as it was in relation to appeals to the House of Lords. Section 40(5) states that the Supreme 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. Section 40(6) provides that [a]n appeal under subsection (2) lies only with the permission of the Court of Appeal or the Supreme Court . Section 45(1) of the 2005 Act provides that the President of the Supreme Court may make rules (to be known as Supreme Court Rules) governing the practice and procedure to be followed in the Court. Section 45(3) states that this power must be exercised so as to ensure that (a) the Court is accessible, fair and efficient, and (b) the rules are both simple and simply expressed. Section 46 of the 2005 Act states that these rules (1) must be submitted to the Lord Chancellor by the President of the Supreme Court (or, in the case of the initial rules, the senior Lord of Appeal in Ordinary), and then (2) must be laid before Parliament by the Lord Chancellor, and (3) are then subject to the negative resolution procedure. Pursuant to sections 45 and 46 of the 2005 Act, the Supreme Court Rules 2009 (SI 2009/1603) were duly made and laid before Parliament, and came into force on 1 October 2009, the day on which the Supreme Court opened. These rules (SCR) now govern the procedure of this Court. They are far simpler than the CPR (unsurprisingly, as they are only concerned with appeals, indeed appeals which are almost always second, or even third, appeals). SCR 2 is headed Scope and objective, and SCR 2(2) states that the overriding objective of the SCR is to secure that the Court is accessible, fair and efficient. The SCR contain no provisions which enable public interest immunity to be avoided, and no express provisions for closed procedures other than SCR 27(2), as set out in the next paragraph. Thus, SCR 22(1)(b) provides for the service by the appellant of an appendix of the essential documents which were in evidence before, or which record the proceedings in, the courts below, and SCR 28 states that a Supreme Court judgment may be delivered in open court; or promulgated by the Registrar. However, it is to be noted that SCR 29(1) begins by stating that In relation to an appeal , the Supreme Court has all the powers of the court below. SCR 27 is headed Hearing in open court, and it provides: (1) Every contested appeal shall be heard in open court except where it is necessary in the interests of justice or in the public interest to sit in private for part of an appeal hearing. (2) Where the Court considers it necessary for a party to be excluded from a hearing or part of a hearing in order to secure that information is not disclosed contrary to the public interest, the Court must conduct the hearing, or that part of it from which the party [is] excluded, in private but the Court may exclude a party only if a person who has been appointed as a special advocate to represent the interests of that party is present when the party [is] excluded. (3) Where the Court decides it is necessary for the Court to sit in private, it shall announce its reasons for so doing publicly before the hearing begins. Can the Supreme Court conduct a closed material procedure: introductory If a closed material procedure was lawfully conducted at the first instance hearing, it would seem a little surprising if an appellate court was precluded from adopting such a procedure on an appeal from the first instance judgment. As the advocate to the Court said in the course of his full and balanced argument, one would normally expect an appeal court to be entitled to have access to all the material available to the court below and to see all the reasoning of the court below. Otherwise, it is hard to see how an appeal process could be conducted fairly or even sensibly. And, if that involves the appellate court seeing and considering closed material, it would seem to follow that that court would have to adopt a closed material procedure. However, particularly in the light of the fundamental principle established in Al Rawi [2012] 1 AC 531, the question needs to be looked at with great care. In particular, it is necessary to enquire whether statute requires the Supreme Court to adopt a closed material procedure, at least in some circumstances, on an appeal from the Court of Appeal upholding (or reversing) a first instance decision on an application under section 63(2) of the 2008 Act. As was said by counsel for Liberty (interveners on this appeal), supported by counsel for the Bank, any contention that a closed material procedure in a particular court in particular circumstances is sanctioned by a statute must be closely and critically scrutinised. The case for saying that this Court can conduct a closed material procedure The contention that this court has the power to have a closed material procedure is based on section 40(2) of the 2005 Act, supported by section 40(5). The argument proceeds as follows. (i) Section 40(2) provides that an appeal lies to the Supreme Court against any judgment of the Court of Appeal; (ii) that must extend to a judgment which is wholly or partially closed; (iii) in order for an appeal against a wholly or partially closed judgment to be effective, the hearing would have to involve, normally only in part, a closed material procedure; (iv) such a conclusion is reinforced by the power accorded to the Court by section 40(5) to determine any question necessary for the purposes of doing justice, as justice will not be able to be done in some such cases if the appellate court cannot consider the closed material. The strength of this argument is reinforced when one considers the possible outcomes if the Supreme Court cannot consider a closed judgment (or the closed part of the judgment) under a closed material procedure. If that were the case, then, as I see it, there would be five possible consequences. The first possibility would be that the appeal could not be entertained: that cannot be right, because it would conflict with section 40(2), which simply and unambiguously confers on the Supreme Court the power to hear appeals from any judgment of the Court of Appeal. The Supreme Court frequently refuses permission to bring an appeal from the Court of Appeal, but that is covered by section 40(6) of the 2005 Act, which expressly provides for such permission. It is one thing to cut down section 40(2) by providing that permission to appeal can be refused on a case by case basis expressly catered for in section 40(6); it is quite another to suggest that a whole class of appeals is impliedly excluded from the wide and general words of section 40(2). The second possibility would be that the Supreme Court could consider the whole judgment, with the closed part being considered in open court. While it can be said that such a course would not involve a breach of any specific provision of Part 6 of the 2008 Act, if construed on a strictly semantic basis, it would wholly undermine its purpose, and the procedural structure it has set up. Unsurprisingly, this second possibility was not canvassed in argument. The third possibility would be that the appeal could be entertained, but only on the basis that the Supreme Court could not look at the closed material. In an extreme case, where the whole judgment of the Court of Appeal was closed, this would be impossible, and would run into the same difficulty under section 40(2) as identified in para 39 above. Even in a case where the Court of Appeal judgment was only closed in part, such a course would be self evidently unsatisfactory and would seriously risk injustice, and in some cases it would be absurd. The fourth possibility would be that the Court was bound to allow the appeal; the fifth possibility would be that, conversely, the Court was bound to dismiss the appeal. There are clearly theoretical arguments in favour of either course, but it is unnecessary to consider them, because each of those courses is self evidently equally unsatisfactory. If either of them was correct, it would mean that, when exercising its power to give permission under section 40(6) of the 2005 Act, the Supreme Court would effectively be deciding the appeal, and, indeed, would be doing so without seeing the whole of the judgment below, and without hearing oral argument. In my view, subject to any arguments to the contrary, this analysis establishes that the Supreme Court can conduct a closed material procedure where it is satisfied that it may be necessary to do so in order to dispose of an appeal. This conclusion is reinforced by section 40(5) of the 2005 Act. An appeal under section 40(2) is an appeal under any enactment. Accordingly, where an appeal is brought against a decision under the 2008 Act, the Supreme Court has power to determine any question necessary to be determined for the purposes of doing justice in such an appeal. On any appeal where the judgment is wholly or partly closed, it seems to me that this court could not do justice, or at least would run a very serious risk of not doing justice, if it could not consider the closed material, and it could only do that if it adopted a closed material procedure. It might, I suppose, be said that adopting a closed material procedure on any appeal would involve the antithesis of doing justice in that appeal. In a case where Parliament and the CPR have lawfully provided for a closed material procedure at first instance and in the Court of Appeal, I am of the view that, on the contrary, for this Court to entertain an appeal without considering the closed material would, at least in many cases, not be doing justice, either in the sense of fairly determining the appeal or in the sense of being seen fairly to determine the appeal, notwithstanding that the material will be considered in a closed hearing. The view that the Supreme Court can conduct a closed material procedure also derives some support from the provisions of SCR 27(2), and from SCR 29(1). However, if the Supreme Court would not otherwise have the power to conduct a closed material procedure, it could not, in my view, derive such a power solely from its rules. Accordingly those two rules can fairly be said to do no more than to give comfort to my conclusion. It is right to mention that on this appeal, we are not being invited to consider a closed judgment of the Court of Appeal, as they did not find it necessary to give a closed judgment or even to include a closed paragraph in their open judgment. However, the trial judge gave a closed judgment, and, if it is open to this Court to consider, in a closed material procedure, a closed Court of Appeal judgment for the reasons just discussed, it must follow that we can consider, in a closed material procedure, a closed judgment given by the trial judge. Accordingly, I conclude that, unless there are stronger arguments to the contrary, the Supreme Court has power to entertain a closed material procedure on appeals against decisions of the courts of England and Wales on applications brought under section 63(2) of the 2008 Act. The arguments that we cannot conduct a closed material procedure Having reached this provisional conclusion, it is right to acknowledge and consider the contrary arguments. Those arguments are: i. A closed material procedure is such a serious inroad into natural justice that it can only be justified by clear and unambiguous statutory words, such as are found in Part 6 of the 2008 Act, but not in the 2005 Act; ii. Parliament has plainly limited the closed material procedure under the 2008 Act to the High Court, the Court of Appeal and the Court of Session; iii. It is appropriate to exclude the Supreme Court from the courts which can have a closed material procedure, given its role as a constitutional court and ultimate guardian of the common law; iv. A closed material procedure requires a set of rules such as CPR 79 which are detailed and appropriately modify the generally applicable rules, and there is no such set of rules for the Supreme Court. None of these points meets the basic argument which persuades me that it is open to the Supreme Court to undertake a closed material procedure, but they nonetheless merit careful attention. Before discussing them, however, it is right to address Libertys understandable reliance on the fact that, in Al Rawi [2012] 1 AC 531, this Court uncompromisingly set its face against introducing a closed material procedure. The stand taken by this Court in Al Rawi [2012] 1 AC 531 remains unquestioned, but it does not amount to any sort of indication that there could be no circumstances in which those concerned with the administration of justice could reasonably introduce a closed material procedure. Indeed, at the end of the short passage quoted in para 4 above from Lord Dysons judgment, he acknowledged that Parliament can do so. Having said that, any judge, indeed anybody concerned about the dispensation of justice, must regard the prospect of a closed material procedure, whenever it is mooted and however understandable the reasons it is proposed, with distaste and concern. However, such distaste and concern do not dictate the outcome in a case where a statute provides for such a procedure; rather, they serve to emphasise the care with which the courts must consider the ambit and effect of the statute in question. At a relatively high level, in terms of constitutional principle and governmental functions, it seems to me that the following propositions apply. (i) The executive has a duty to maintain national security, which includes both stopping the financing of terrorism and nuclear proliferation and ensuring that some of the information relating to the financing of terrorism remains confidential; (ii) the rule of law requires that any steps aimed at preventing financing of terrorism which damage a person should be reviewable by the courts, and, as far as possible in open court and in accordance with natural justice; (iii) given that such reviews will often involve the executive relying on confidential material, it is for the legislature to decide and to prescribe in general how the tension between the need for natural justice and the need to maintain confidentiality is to be resolved in the national interest; (iv) in the absence of a written constitution, it is the European Convention, through Article 6, as signed up to by the executive and interpreted by the courts, which operates as a principled control mechanism on what the legislature can prescribe in this connection; (v) it is for the courts to decide, within the parameters laid down by the legislature, how the tension between the two needs of natural justice and confidentiality is to be resolved in any particular case. In the more specific context of the issues with which the 2008 Act is concerned, it would be unreasonable not to accept that (i) the Acts aims of fighting the spread of terrorist activity and nuclear proliferation, and improving the security of UK citizens, are important aspects of the most fundamental duties of the executive, and (ii) those aims would be at real risk of being severely hampered if the courts hearing financial restrictions proceedings could not adopt a closed material procedure. Point (i) is self evident: the two most fundamental functions of the executive are the maintenance of the defence of the realm and of the rule of law, and the 2008 Act appears to me to be within the scope of both those functions. In relation to point (ii), if there can be no closed material procedure, either (a) sensitive material would be seen by a person who may be supporting terrorism or nuclear proliferation, which might advance the very activities which the 2008 Act is designed to deter, or (b) such material would not be put in evidence, in which case a direction under that Act, which was appropriate and in the public interest, may be discharged for lack of evidential support. The legislature has laid down in Part 6 of the 2008 Act, as expanded by CPR 79, how challenges to a direction under schedule 7 to the 2008 Act should be dealt with by the courts, and this includes a closed material procedure, which aims to strike a balance between two competing public interests, and it is a balance which has been held by the Strasbourg Court to be compatible in principle with Article 6. Whether or not one agrees with it, the justification for the way in which the balance has been struck by the legislature in Part 6 of the 2008 Act is clear, lawful and rational. It is against that background that the issue of principle raised on this appeal must be judged. Turning now to the four arguments raised by the intervener and the Bank, there is a basic principle that fundamental rights cannot be taken away by a generally or ambiguously expressed provision in a statute see eg per Lord Hoffmann in R v Secretary of State, Ex p Simms [2000] 2 AC 115, 132. There is also a basic principle that fundamental rights can only be overridden by a statutory provision through express words or by necessary implication, not merely by reasonable implication see eg per Lord Hobhouse in R (Morgan Grenfell) v Special Commissioners [2003] 1 AC 563, para 45. While these two basic principles are of fundamental importance, they should not be applied without regard to the purpose and context of the statutory provision in issue. Section 40(2) is plainly intended to render every decision of the Court of Appeal to be capable of being appealed to the Supreme Court (unless specifically precluded by another statute), and, as explained, where it is necessary for this court to consider closed material in order to dispose of the appeal justly, this would only be achievable if a closed material procedure could be adopted. In any event, I am unconvinced that the wording of section 40(2) of the 2005 Act could be fairly described as general in the sense that that word is used in Simms [2000] 2 AC 115, 132: it would be more accurate to describe it as being broad, indeed as broad as possible, in its intended application. Further, if section 40(2) is to be given its full natural meaning, then, for the reasons discussed in the preceding section of this judgment, it necessarily means that the Supreme Court can adopt a closed material procedure. It is true that section 67, read together with section 73, of the 2008 Act only extends to the rules of the Court of Appeal, High Court and Court of Session, but there were no Supreme Court Rules when that Act was passed. Indeed, there was no Supreme Court at that time: the Judicial Committee of the House of Lords, the Law Lords, were still in place, although they had a very short life expectancy (as an institution). They sat as a committee of the House of Lords, and could have been expected to look after their own procedure. It is true that the 2005 Act had been enacted by the time that the Bill which became the 2008 Act was being considered, but those drafting and debating the Bill would have known that the 2005 Act contained sections 40(2) and (5); they would also have known that the SCR had yet to be promulgated, and could have assumed that they would provide for a closed material procedure as indeed they do in SCR 27(2), and, indirectly, in SCR 29(1). In any event, rules governing what should be done before and during a trial have to be far more detailed than those governing what should be done before and during an appeal. Given that there were to be very detailed procedures prescribed for a closed material procedure at first instance (and on the first appeal), Parliament could fairly have assumed that there would be no need for very detailed provisions for a closed material procedure in this Court: again, in the light of SCR 27(2) and 29(1), such a view would have been prescient. It is true that sections 66 73 of the 2008 Act apply to the Court of Appeal as well as to the High Court, but that is because the CPR apply to both courts. I am unimpressed by the argument that the Supreme Court was intentionally excluded from the ambit of closed material procedures in sections 66 73 of the 2008 Act, because of the Courts status. If that was the legislative intention, one would have expected it not only to have been spelt out, but to have been catered for, especially in the light of section 40(2) of the 2005 Act. It seems most unlikely that Parliament would have left section 40(2) unamended, while intending the Supreme Court to be unable to adopt a closed material procedure. If it had had such an intention, Parliament would, in my view, have provided that, in relation to cases where the courts below had adopted a closed material procedure, appeals to the Supreme Court were excluded, or could only proceed on a certain specified procedural basis. Otherwise, on this hypothesis, Parliament would have intended to leave this Court with the series of unsatisfactory options considered in paras 39 42 above. The notion that the Supreme Courts constitutional role is so important that it cannot conduct a closed material procedure has a certain appeal (particularly perhaps to a Supreme Court Justice), but I am unimpressed by it. The Supreme Court is not a special constitutional court, but it generally limits the appeals it considers to those that raise points of general public importance. If the Supreme Court were to adopt a closed material procedure on an appeal, it would be most unlikely to result in a judgment which contained any statements of general public importance, or even of general significance, which were in closed form. Almost by definition, the closed evidence will be factual (including, possibly, expert) in nature, and it will normally be specific to the particular case. It is hard to believe that there could be circumstances in which it would be impossible for the Court to provide an open judgment which dealt clearly and comprehensively with all the points of any general legal significance in the appeal, even if some of the discussion of the details of the evidence and arguments has to remain closed. And if such circumstances did arise, then the problem would be a measure of the extraordinary sensitivity of the material concerned, which would make it all the more important that it remained closed. Having read in draft the judgment of Lord Hope, I would like to record my agreement with what he says in paras 98 100 in connection with this Court giving a closed judgment. We were taken to other statutes which provide for a closed material procedure, but all that they establish, in my view, is that there is more than one drafting technique available to prescribe for such procedures. All in all, therefore, I am unpersuaded by the various arguments raised against my provisional view that it is open to this Court to adopt a closed material procedure in an appeal under the 2008 Act if justice requires it. The decision to have a closed material procedure on this appeal At the end of their open submissions in defence of the decision of the Court of Appeal that the 2009 Order should be discharged, counsel for the Treasury asked us to adopt a closed material procedure in order to consider the closed judgment of Mitting J. We were sceptical about the need to do so, for three reasons. First, the proposal was opposed on the ground that it was unnecessary, by the special advocates (who had seen the closed judgment) and by counsel on behalf of the Bank (who had not seen the closed judgment). Secondly, the Judge had referred in his open judgment to the closed judgment on two occasions; on each occasion, it was to draw support for a conclusion which was not challenged before us, and we thought it unlikely that he would have relied to any significant extent on any other part of his closed judgment without saying so in his open judgment. Thirdly, the Court of Appeal had found it unnecessary to refer to any part of the closed judgment. Nonetheless, on instructions from his clients, counsel for the Treasury told us that a closed session could make a difference to the outcome of this appeal. By a bare majority, with those in the majority (which included me) all having real misgivings, the Court decided that it should accede to the proposal to have a closed material procedure. Although we strongly suspected that nothing in the closed judgment would have any effect on the outcome of the appeal, we could not be sure in the absence of seeing the closed judgment and listening to submissions on it. And, as we all appreciated that there was a real possibility that we were going to allow the appeal, and therefore to disagree with Mitting J (who gave the closed judgment) and the Court of Appeal (who had seen the closed judgment), we felt that there would be a real risk of justice not being seen to be done, and an outside possibility of justice actually not being done, to the Treasury if we did not proceed to hold a closed hearing, as the Treasury requested. In anticipation that we might take that course, we had required counsel for the Treasury to supply the special advocates with a note summarising the Treasurys case on the closed judgment. Having decided to have a closed hearing, we proceeded to read the closed judgment and heard argument on it in a closed hearing from counsel for the Treasury, from the special advocate, and from counsel to the court (who, like us, saw the closed judgment for the first time just before the closed hearing). In my opinion, there was no point in our seeing the closed judgment. There was nothing in it which could have affected our reasoning in relation to the substantive appeal, let alone which could have influenced the outcome of that appeal. So far as it was said to have included relevant findings, the most that could be said of the closed judgment is that it put some evidential flesh on some fairly bare bones embodying some of the conclusions of fact reached in the open judgment. It is fair to say that, in two respects, Mitting J made findings in his closed judgment, which supported views he had expressed in his open judgment, over and above the two passages referred to in para 16 above. However, as with the views expressed in those two passages, the views were not ones which were challenged on this appeal. Applications for closed material hearings on appeal I draw certain conclusions from this experience. First, where a judge gives an open judgment and a closed judgment, it is highly desirable that, in the open judgment, the judge (i) identifies every conclusion in that judgment which has been reached in whole or in part in the light of points made or evidence referred to in the closed judgment, and (ii) that the judge says that this is what he or she has done. This was a point made by Carnwath LJ, in a judgment given after Mitting Js judgments in this case, in AT v Secretary of State for the Home Department [2012] EWCA Civ 42, para 51. Secondly, a judge who has relied on closed material in a closed judgment, should say in the open judgment as much as can properly be said about the closed material which he has relied on. Any party who has been excluded from the closed hearing should know as much as possible about the courts reasoning, and the evidence and arguments it received. Further, the more the judge can say about the closed material in the open judgment, the less likely it is that a closed hearing will be asked for or accorded on an appeal. In cases where judges have to give a closed judgment, they should say in their open judgment, as far as they properly can, what the closed material has contributed to the overall assessment they have reached in their open judgment. On an appeal against an open and closed judgment, an appellate court should, of course, only be asked to conduct a closed hearing if it is strictly necessary for fairly determining the appeal. So my third point is that any party who is proposing to invite the appellate court to take such a course should consider very carefully whether it really is necessary to go outside the open material in order for the appeal to be fairly heard. If the advocate for one of the parties invites an appellate court to look at the closed judgment on the ground that it may be relevant to the appeal, it is very difficult for the court to reject the application, at least without looking at the closed judgment, which involves the initiation of a closed material procedure, which should be avoided if at all possible. This puts an important onus on the legal representatives of the party asking an appeal court to look at closed material. An advocate acting for a party who wants a closed hearing should carefully consider whether the request is one which should, or even can properly, be made and advise the client whether such a course is necessary or appropriate. Advocates, perhaps particularly when acting for the executive, have a duty to the court as well as a duty to their clients, and the court itself is under a duty to avoid a closed material procedure if that can be achieved. Fourthly, if the appellate court decides that it should look at closed material, careful consideration should be given by the advocates, and indeed by the court, to the question whether it would nonetheless be possible to avoid a closed substantive hearing. It is quite feasible for a court to consider, and be addressed on, confidential material in open court. If such a course is taken, the advocates and the court must obviously take care in how they refer to the contents of the closed material, and sometimes a brief closed hearing will be necessary to set the ground rules. Sometimes, the closed material will be so sensitive or so difficult to refer to elliptically, that such a course will be impracticable. However, it should always be considered, as it is plainly less objectionable to have a brief closed procedural hearing to discuss the possibility than to have a closed hearing which considers substantive issues. I should add that, if such a course is taken, the court should order that, despite it being referred to and looked at in open court, the documents in issue cannot be shown to anyone and their contents cannot be referred to out of court. Fifthly, if the court decides that a closed material procedure appears to be necessary, the parties should try and agree a way of avoiding, or minimising the extent of, a closed hearing. This would also involve the legal representatives to the parties to any such appeal advising their clients accordingly, and, if a closed hearing is needed, doing their best to agree a gist of any relevant closed document (including any closed judgment below). Sixthly, if there is a closed hearing, the lawyers representing the party who is relying on the closed material, as well as that party itself, should ensure that, well in advance of the hearing of the appeal, (i) the excluded party is given as much information as possible about any closed documents (including any closed judgment) relied on, and (ii) the special advocates are given as full information as possible as to the nature of the passages relied on in such closed documents and the arguments which will be advanced in relation thereto. Finally, appellate courts should be robust about acceding to applications to go into closed session or even to look at closed material. Given that the issues will have already been debated and adjudicated upon, there must be very few appeals where any sort of closed material procedure is likely to be necessary. And, in those few cases where it may be necessary, it is hard to believe that an advocate seeking to rely on closed material or seeking a closed hearing, could be unable to articulate convincing reasons in open court for taking such a course. As already mentioned, the closed material procedure on this appeal added nothing. Had counsel for the Secretary of State had the benefit of the guidance set out above, and in particular in paras 70 and 71, I very much doubt that he would have felt able to contend that we should have a closed material procedure. For the future, any party or appellate court considering whether to adopt such a procedure would do well to bear in mind what Lord Hope says in paras 89 97 of his judgment, with which I agree. LORD HOPE (dissenting) This case raises some fundamental issues about the effect of provisions in Parts 5 and 6 of the Counter Terrorism Act 2008. Part 5 of the Act, which gives effect to Schedule 7, confers far reaching powers on the Treasury to deal with terrorist financing and money laundering. Part 6 creates a scheme for appeals against financial restrictions decisions by the Treasury. In a nutshell these issues can be summarised in a single sentence: how much attention should this court pay to what Parliament has, or has not, actually said as to how financial restriction proceedings are to be conducted in the courts? Parliament has set out in Part 6 of the 2008 Act provisions for the use in appeals against financial restrictions decisions of the Treasury of material that the Treasury refuse to disclose to appellants or their legal representatives, commonly referred to as closed material. Chapter 2 of Part 6 is closely modelled on the Schedule to the Prevention of Terrorism Act 2005. Section 67(3), which appears in that Chapter, requires that rules of court must provide the Treasury with the opportunity to apply to the court for permission not to disclose material otherwise than to the court and to any person appointed as a special advocate. Section 73 provides that in that Chapter the expression rules of court means rules for regulating the practice and procedure to be followed in the High Court or the Court of Appeal or in the Court of Session. But no mention is made here, or anywhere else in the 2008 Act, of the use of closed material in the court of last resort in the United Kingdom the appellate committee of the House of Lords as it then was, or the Supreme Court of the United Kingdom as it was to become. The 2008 Act received the Royal Assent on 26 November 2008. The bulk of Part 3 of the Constitutional Reform Act 2005, which made provision for the Supreme Court, was not brought into force until 1 October 2009: Constitutional Reform Act 2005 (Commencement No 11) Order 2009 (SI 2009/1604). But sections 45 and 46, which provide for the making of the Rules of the Supreme Court, were brought into force on 27 February 2006: Constitutional Reform Act 2005 (Commencement No 4) Order (SI 2006/228). These rules were already in draft and had been circulated to consultees for their comments by 28 November 2008. Yet the Treasury, by which the legislation in Parts 5 and 6 of the 2008 Act was being promoted, did not seek the views of Parliament as to whether the Rules of the Supreme Court should, like those of the other courts mentioned in section 73, make provision for the use of closed material in proceedings brought under Part 6 of the 2008 Act. In the light of this background, which leaves the issue for decision by this court uninstructed by Parliament, I am unable, with respect, to agree with the conclusions reached on it by the majority. Closed material The issue as to the use of closed material, as I see it, raises three distinct questions, although they are all interconnected. The first is an issue of principle: when, if ever, will it be open to the Supreme Court to adopt a closed material procedure? The second is whether it is necessary, in the interests of justice or in the public interest, for the closed material to be seen and considered by the court in this case. The third is whether, having done so, the court should issue a closed judgment, bearing in mind that the effect of doing this will be that the party to whom the material has not been disclosed will be unable to see the courts reasons for the conclusions that it has reached on a consideration of that material. (a) the issue of principle The issue of principle as to the use of closed material was examined by Lord Dyson in Al Rawi v Security Service [2011] UKSC 43, [2012] 1 AC 531. He concluded that a closed material procedure should only be introduced in ordinary civil procedure if Parliament saw fit to do so. I said that I agreed with the reasons that he gave, as did Lord Kerr. But we both added some further reasons of our own. It is worth noting too the width of the issue to which the argument both in the Court of Appeal and in this court was addressed: see para 71. I thought that the view which we took would resolve the issue in a case of this kind too. The crucial points that we all made can be summarised, quite briefly, in this way. The right to know and effectively challenge the opposing partys case is a fundamental feature of the judicial process. The right to a fair trial includes the right to be confronted by ones accusers and the right to know the reasons for the outcome. It is fundamental to our system of justice that, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. There may come a point where a line must be drawn when procedural choices of one kind or another have to be made. A distinction may be drawn between choices which do not raise issues of principle and choices that affect the very substance of a fair trial. There is no room for compromise where the choices are of the latter kind. The court cannot abrogate the fundamental common law right by the exercise of any inherent power. Any weakening of the laws defences would be bound to lead to state of uncertainty and, sooner or later, to attempts to widen the breach still further. The court has for centuries been the guardian of these fundamental principles. The rule of law depends on its continuing to fulfil that role. Acknowledging that closed material procedures and the use of special advocates were controversial, Lord Dyson said in para 47 of his judgment in Al Rawi that it was not for the courts to extend the procedure beyond the boundaries which had been drawn for its use by Parliament. I said in para 74 of my judgment that fundamental issues as to where the balance lay between the principles of open justice and of fairness and the demands of national security were best left for determination through the democratic process by Parliament. Lord Brown and Lord Kerr were doubtful whether it would be possible as a matter of principle for the court to be invested with jurisdiction in this way: paras 86, 99. para 48 of Al Rawi, where he said: I would, for my part, be content to agree with the way Lord Dyson put it in The common law principles to which I have referred are extremely important and should not be eroded unless there is a compelling case for doing so. If this is to be done at all, it is better done by Parliament after full consultation and proper consideration of the sensitive issues involved. It is not surprising that Parliament has seen fit to make provision for a closed material procedure in certain carefully defined situations and has required the making of detailed procedural rules to give effect to the legislation. In para 69 he agreed with the Court of Appeal that the issues of principle raised by the closed material procedure were so fundamental that a closed material procedure should only be introduced in ordinary civil litigation if Parliament saw fit to do so. He then added these words: No doubt, if Parliament did decide on such a course, it would do so in a carefully defined way and would require detailed procedural rules to be made (such as CPR Pts 76and 79) to regulate the procedure. The answer which I would give to the first of the three questions which I have identified in para 79, above, is that it will be open to the Supreme Court to adopt a closed material procedure if, but only if and only to the extent that, the use of that procedure has been expressly sanctioned by Parliament. The fact that this procedure has been sanctioned for use in the lower courts does not meet Lord Dysons point that the procedure nevertheless erodes fundamental common law principles. And the fact that it has been used in the lower courts leaves open the question whether it would be consistent with fundamental principle for it to be used in the court of last resort. It leaves open the question whether it can ever be right for the Supreme Court, of all courts, without the sanction of Parliament to hear argument on points of which one of the parties has had no notice and is unable to address in argument, and whether it can ever be right for it to have to give its reasons, in whole or in part, in a closed judgment. The word fundamental, which appears so often in Lord Dysons judgment in Al Rawi, and appears again in my own judgment in paras 72 74 and Lord Kerrs judgment in para 94, serves to emphasise the enormity of the issues that are at stake if the objections to such a procedure are to be overcome. If the procedure is to be used in this court, the issues of principle require that its use should always be carefully provided for and defined by Parliament and never be left to implication. Only then can one be confident that Parliament really has squarely confronted what it is doing. Otherwise, as Lord Hoffmann said in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 132, there is too great a risk that the full implications may have passed unnoticed in the democratic process. The absence of a direction in Part 6 of the 2008 Act that the provisions about rules of court relating to proceedings on an appeal relating to financial restrictions proceedings extend to the Supreme Court is, therefore, especially significant. This makes it plain that Parliament was not asked to address its mind to this issue at all. Nor was the Supreme Court, for its part, put on notice that the President when making the Supreme Court Rules, the provisions about which were already in force (see para 77, above), was to have regard to the matters set out in sections 63(2) (4) of the Act. The fact that rule 27(2) of the Supreme Court Rules contemplates that the court might consider it necessary for a party and that partys representative to be excluded from a hearing in order to secure that information is not disclosed contrary to the public interest does not answer this point. It was, no doubt, a wise precaution to make provision for a variety of situations of that kind that might arise. But it does not address directly the use of a closed material procedure with all the consequences that might then follow, including the possibility of having to issue a closed judgment. The question whether the Supreme Court had power to adopt such a procedure had not yet been tested in argument when the rules were made, and it was not open to the President in the exercise of his rule making function to confer on the court a power that it did not have. The argument that the provisions of sections 40(2) and (5) of the 2005 Act show that this court can conduct such a procedure to dispose of an appeal where the judgment appealed against was wholly or partly closed does not meet my point that the issue is so fundamental that it must be left to an express and carefully defined provision by Parliament. I do not think that a point of such fundamental importance can be left to implication. It is plain that the issue was not brought before Parliament when it enacted Part 3 of the 2005 Act. There is nothing in the express language of section 40 which shows that the statute must have given authority to the Supreme Court for the use of this procedure: see R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21, [2003] 1 AC 563, para 45 per Lord Hobhouse. For these reasons I was of the opinion at the end of the hearing on the first days argument that it was not open to the Supreme Court to adopt a closed material procedure in this case, as it had not been expressly authorised by Parliament. I remain of that opinion. The effect of the decision of the majority, however, is that there is now no way back on this issue. The Rubicon has been crossed. (b) should the closed material be seen and considered in this case? As the majority view was in favour of the view that it was open in principle to the court to resort to the closed material procedure, I gave careful thought to the question whether it should be resorted to in this case. It seemed to me that the onus was on the Treasury to show that this was necessary. It was not just a question of asserting, without reasons, that there was material in Mitting Js closed judgment at [2010] EWHC 1332 (QB) that was relevant to the issues in the appeal. I do not think that it would be inconsistent with the majoritys decision on the issue of principle for the court to set a high standard on the issue of necessity. Convincing reasons must be given as to why the closed material should be looked at. The Treasury submitted that the court would have to have regard to the judgment if it was to be in a position properly and fairly to exercise its jurisdiction in the appeal, unless it was prepared to dismiss the Banks case. This was because the closed reasons formed part of Mitting Js findings on the Treasurys evidence and of his conclusions as to its case. So it might be impossible for the appeal to be fairly determined if the court was not willing to have regard to them. But there are various reasons why, as it seemed to me, the Treasurys approach fell far short of what was needed to show that it was necessary for this procedure to be resorted to. First, there is the fact that the Court of Appeal, which did see and consider Mitting Js closed judgment and held a brief closed hearing in the course of the appeal to that court, did not find it necessary to refer to the closed judgment in more detail than the judge himself did: [2011] EWCA Civ 1, [2012] QB 101, para 83. That, in itself, would not be a conclusive reason for not resorting to the procedure in this court if it was necessary to do justice on the appeal. But it does point to the need for the Treasury to give convincing reasons as to why this should be done. Mitting J referred to his closed judgment in para 16 of his judgment, where he said that he accepted that Novin Energy Company was a conduit for the Atomic Energy Organisation of Iran and that it did facilitate Irans nuclear weapons programme. He referred to it again in para 18, where he said that for the reasons set out in the closed judgment, he was satisfied that Doostan International had played a part in the Iranian nuclear programme. The Court of Appeal had the opportunity to say if those findings were not justified. It did not do so, and it was not submitted for the Bank that the reasons that the judge gave for those findings should be reviewed again by this court. Second, there are the views of the special advocates to which close attention should always be paid. Mr Chamberlain drew attention to the fact that there was no closed ground of appeal in this case, and that neither of the two findings which were based on material in the closed judgment was in issue. This was because the Banks case was that those findings were not enough to justify the order made by the Treasury. His advice was that the court did not need to consider closed material in order to determine that issue. Third, there are the reasons that were set out in a note that was provided to the special advocate at the courts request by the Treasury and which the special advocates had seen when Mr Chamberlain gave the advice referred to in the previous paragraph. It was to the contents of this note that much of the discussion as to whether it was necessary for the court to see the closed judgment was directed. The first three paragraphs of the note refer to various passages in the closed judgment which, as was stated in the fourth paragraph, demonstrated the weight to be attached to the judges conclusion that the Bank had the capacity to assist proliferators, that such assistance could be afforded to a range of companies involved in proliferation and that the assistance provided was material. It did not seem to me that it was necessary to look at the closed material to reinforce this point, as its importance was already apparent from points made by Mitting J in his open judgment. In the last sentence of para 16, having described the Banks relationship with Novin, the judge said that he accepted the conclusion of the Treasurys witness Mr Robertson that Irans banking system provides many of the financial services which underpin procurement of the raw materials and components needed for its nuclear and ballistic missile programmes. The fifth paragraph of the note was in these terms: See further, the last sentence of para 5 of the closed judgment. This point is important in its own right in demonstrating the existence of the rational/proportionate connection. Mr Eicke QC for the Treasury was asked repeatedly to say what the point was to which this paragraph refers. It was made clear that the court was looking not for the details which supported whatever was said in that sentence, but simply for an indication of its subject matter. Mr Eicke declined, no doubt on instruction, to provide this information. He declined also to say what the point was to which para 6(3) was directed, where it was said that, to the extent that it was necessary to do so, the Banks case at para 60 was contradicted by the point at para 2 of the closed judgment. In para 60 of its case the Bank states that there is nothing in the judges findings to suggest that the Bank had done anything to materially increase the risk that the United Kingdom financial sector would be embroiled in proliferation related transactions. It seemed reasonable to ask how looking at the closed judgment would assist on this point, but the court was provided with no answer as to how it might do so. I was not impressed by Mr Eickes inability to answer these questions. The guiding principles seem to me to be these. Resort to the closed material procedure will result in every case in an inequality of arms between the State, which will always be the party who invokes the procedure and will always have access to that material, and the other party against whom the State has taken action and to whom access to that material is always denied. Regard must, of course, be had to the national interest which requires that some sensitive material must be kept secret. But the court must be astute not to allow the system to be over used by those in charge of that material. The need for care in this respect increases as the issues are refined at the stage of an appeal. In a case of this kind, where the judge has told the appellate courts in his open judgment how he has used the closed material and the Court of Appeal has found nothing in the closed judgment that required comment, resort to it for further information could only be justified if there was a point of real substance in it that had, in fairness to the State, to be taken into account at the stage of the appeal. The Treasurys refusal to come out of its closet and provide even the merest hint as to what these points were was as unattractive as it was unconvincing. I would therefore, if left to myself, have declined to look at the closed judgment. It seemed to me that the judge had said enough in his judgment to explain the significance of the points to which the Treasury had regard when they decided to make the Order. Any points to which emphasis had to be attached could be made sufficiently in open court in the course of the oral argument. (c) should the court issue a closed judgment? The most obnoxious feature of the closed material procedure at the stage of an appeal is the possibility that the appellate court may have to give the whole or part of its reasons for the disposal of the appeal in a judgment to which the State only, and not the other party to the appeal or anyone else, has access. As was stressed several times by Lord Dyson and those who agreed with him in Al Rawi, fundamental principles of the right to a fair trial include the right to know the reasons for the outcome: see, for example, [2012] 1 AC 531, para 45. This point loses none of its force at the stage of an appeal. And it has even more force at the stage of a final appeal, as once the Supreme Court has given its reasons in a judgment of that kind there will be no opportunity for any further review of the closed material by a special advocate or by anyone else. Secret justice at this level is really not justice at all. I very much hope that the Supreme Court will never find itself in a position when it has to resort to the giving of a closed judgment in the disposal of an appeal. A stern and steadfast resistance to the use of that procedure would go some way to redressing the unwelcome departure from the principle of open justice that the decision that the Supreme Court may in principle adopt a closed material procedure will inevitably give rise to. In itself, merely looking at a closed judgment to see whether there is anything in it that might be of significance may be thought not give rise to any unfairness to the party who does not have access to that material. A check of that kind may not seem a large step to take. It is an entirely different matter if it leads to the issuing of even more material in the form of a closed judgment that the other party cannot see. As it happened, it was not necessary to answer this question. It became clear in this case, when the judges closed judgment had been seen and considered, that there was nothing in it which required any such judgment to be issued by this court. The fact this was so reinforces my suspicion that the Treasury were being over cautious in their refusal to offer any assistance as to what the points were to which reference was made in their note to the Special Advocates and that they were over using the procedure. I am not to be taken as suggesting that it was wrong for the Treasury to make use of closed material in the lower courts, where its use has been expressly authorised by Parliament. But the attitude which they have adopted in this appeal was a misuse of the procedure, because they invited the court to look at the closed judgment when there was nothing in it that could not have been gathered equally well from a careful scrutiny of the open judgment. This experience should serve as a warning that the State will need to be much more forthcoming if an invitation to this court to look at closed material were to be repeated in the future. LORD KERR (dissenting) Two principles of absolute clarity govern the law in relation to the manner in which trials should be conducted. The first is that a party to proceedings should be informed of the case against him and should have full opportunity to answer that case in open court. The second principle is that the first principle may not be derogated from except by clear parliamentary authority. These principles received emphatic endorsement by the Supreme Court in Al Rawi v Security Service [2012] 1 AC 531. In delivering the leading judgment, Lord Dyson said this: 10. There are certain features of a common law trial which are fundamental to our system of justice (both criminal and civil). First, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. The importance of the open justice principle has been emphasised many times: see, for example, R v Sussex Justices, Ex p McCarthy [1924] r KB 256, 259, per Lord Hewart CJ, Attorney General v Leveller Magazine Ltd [1979] AC 440, 449H 450B, per Lord Diplock, and recently R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (Guardian News and Media Ltd intervening) QB 218, paras 38 39, per Lord Judge CJ. 11. The open justice principle is not a mere procedural rule. It is a fundamental common law principle. In Scott v Scott [1913] AC 417, Lord Shaw of Dunfermline (p 476) criticised the decision of the lower court to hold a hearing in camera as constituting a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security. Viscount Haldane LC (p 438) said that any judge faced with a demand to depart from the general rule must treat the question as one of principle, and as turning, not on convenience, but on necessity. 12. Secondly, trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance. The Privy Council said in the civil case of Kanda v Government of Malaya [1962] AC 322,337: If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. 13. Another aspect of the principle of natural justice is that the parties should be given an opportunity to call their own witnesses and to cross examine the opposing witnesses. As was said by the High Court of Australia in Lee v The Queen (I998) I95 CLR 594, para 32: Confrontation and the opportunity for cross examination is of central significance to the common law adversarial system of trial. The essential ratio of Al Rawi, so far as concerns the present appeal, was neatly expressed by Lord Dyson in para 35 where he said, the right to be confronted by one's accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that. The simple question which lies at the heart of this appeal is whether Parliament has done that for hearings before the Supreme Court. It was suggested that the decision in Al Rawi can be distinguished or that it has no application to the present appeal because it was concerned with a trial and not with an appeal from a decision in proceedings where there was statutory authority to conduct a closed hearing. I do not accept this argument. The principle recognised in Al Rawi is both fundamental and general. Its effect is straightforward. Courts do not have power to authorise a closed material procedure unless they has been given that power by Parliament. If Parliament has not conferred the power on this court, it matters not that those courts from which an appeal lies to this court have been empowered to conduct such a hearing. Representing as it does such a radical departure from the conventional mode of trial and, more importantly, such a drastic infringement on a centuries old right, it is to be expected that a closed materials procedure would be provided for in the most unambiguous and forthright terms or by unmistakably necessary implication. On that basis alone, section 40(5) of the Constitutional Reform Act is hardly a promising candidate. But before looking more closely at that provision, I should say something about the relevant provisions in the Counter Terrorism Act 2008, principally to examine how Parliament has in fact set about making explicit provision for closed material procedures in other courts and to point up the contrast with the route that the respondent in this case would have us take to arrive at the same destination. The first and most obvious thing to say about the Counter Terrorism Act is, of course, that it was enacted three years after the Constitutional Reform Act. We now know (not least by reason of Al Rawi) that the High Court and the Court of Appeal could not have ordered a closed material procedure in a case such as the present by recourse to an inherent power. This required the authorisation of the 2008 Act. It appears to me, therefore, that an argument that the Supreme Court did have power to hold such a hearing before 2008, when the High Court and the Court of Appeal did not, would be utterly implausible. But if section 40(5) did not empower the Supreme Court before 2008 to hold a closed material procedure hearing, how can it be said to have done so after the enactment of the Counter Terrorism Act and Rules made I thereunder, all of which conspicuously make no reference whatever to this court? shall return to this question briefly below. Bank Mellats proceedings before the High Court were brought under section 63 of the 2008 Act. Section 63(2) gives a person affected by a decision taken by the Treasury in connection with a range of asset freezing and other financial powers the right to apply to the High Court to have that decision set aside. These are known as financial restrictions proceedings section 65. Provisions as to how they are to be conducted are made in sections 66 to 72. Section 66 contains general provisions about rules of court to be made in relation to financial restrictions proceedings. Subsection (2) enjoins the person making the rules to have regard to (a) the need to secure that the decisions that are the subject of the proceedings are properly reviewed; and (b) the need to secure that disclosures of information are not made where they would be contrary to the public interest. Subsection (3) states that rules of court may make provision (a) about the mode of proof and about evidence in the proceedings; (b) enabling or requiring the proceedings to be determined without a hearing; and (c) about legal representation in the proceedings. Section 66(4) is an important provision which foreshadows rules of court authorising significant differences from the conventional mode of trial in the way that financial restrictions proceedings may be conducted. It provides: Rules of court may make provision (a) enabling the proceedings to take place without full particulars of the reasons for the decisions to which the proceedings relate being given to a party to the proceedings (or to any legal representative of that party); (b) enabling the court to conduct proceedings in the absence of any person, including a party to the proceedings (or any legal representative of that party); (c) about the functions of a person appointed as a special advocate; (d) enabling the court to give a party to the proceedings a summary of evidence taken in the party's absence. Section 67(2) provides that rules of court must secure that the Treasury is required to disclose material on which they rely; material which adversely affects its case; and material which supports the case of a party to the proceedings. This subsection is made subject to the succeeding provisions of the section, however. These include subsection (3) which introduces significant qualifications on the duties imposed in subsection (2). It provides: (3) Rules of court must secure (a) that the Treasury have the opportunity to make an application to the court for permission not to disclose material otherwise than to (i) the court, and (ii) any person appointed as a special advocate; (b) that such an application is always considered in the absence of every party to the proceedings (and every party's legal representative); (c) that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be contrary to the public interest; (d) that, if permission is given by the court not to disclose material, it must consider requiring the Treasury to provide a summary of the material to every party to the proceedings (and every party's legal representative); (e) that the court is required to ensure that such a summary does not contain material the disclosure of which would be contrary to the public interest. As the interveners, Liberty, have pointed out, section 67(3) heralded the effective disapplication of the law relating to public interest immunity. Simply stated, that law required a court, faced with a request by a party to authorise the withholding of relevant evidence, to balance the public interest which the application was said to protect against those public interests which favoured its production, including the fair administration of justice. No such weighing of competing interests could take place after the enactment of the rules which section 67(3) stipulated should secure, among other things, that the court must give permission for material not to be disclosed if it considered that its disclosure would be contrary to the public interest. That outcome was inevitable as soon as the conclusion that revelation of the material was contrary to the public interest. Countervailing interests such as the due and fair administration of justice were to be of no consequence. The effective abolition of public interest immunity in financial restrictions proceedings and the requirement that applications be entertained for evidence to be withheld from all except the court and special advocates clearly called for the protection, in some other guise, of the interests of the litigant who had been denied access to the withheld material. This was provided for in section 68. Subsection (1) of that section provides: (1) The relevant law officer may appoint a person to represent the interests of a party to (a) financial restrictions proceedings, or b) proceedings on an appeal, or further appeal, relating to financial restrictions proceedings, in any of those proceedings from which the party (and any legal representative of the party) is excluded. This is referred to in this Chapter as appointment as a special advocate. The 2008 Act had therefore set up a reasonably elaborate structure for the making of rules which would authorise, in financial restrictions proceedings, a significant departure from the system of trial that would normally obtain in most other forms of civil disputes. But section 73 of the Act made it clear that this system of trial was intended only for the High Court, the Court of Appeal and the Court of Session for it provided that rules of court, where that expression had been used in the legislation, meant rules for regulating the practice and procedure to be followed in the High Court or the Court of Appeal or in the Court of Session. The principal rules in the Civil Procedure Rules are made pursuant to section 1 of the Civil Procedure Act 1997. Section 1(3) of this Act provides that the power to make Civil Procedure Rules shall be exercised with a view to securing that the civil justice system is accessible fair and efficient. Part 79 of the Civil Procedure Rules (which was designed to implement the rules which Part 6 of the 2008 Act, dealing with financial restrictions proceedings, contemplated) was inserted in the Civil Procedure Rules by the Civil Procedure (Amendment No 2) Rules 2008/308517. As well as making detailed rules to fulfil the provisions of sections 66 and 67, Parts 79.2 and 79.13 modified the overriding objective which otherwise applies to proceedings in both the High Court and the Court of Appeal. That objective is stated in CPR Part 1.1, to be to deal with cases justly. Rule 1.1 (2) (a) provides that dealing with cases justly includes, so far as is practicable, ensuring that parties are on an equal footing. But by Parts 79.2 and 79.13 this overall objective (in so far as it related to financial restrictions proceedings) was to be read and given effect to compatibly with the court's statutory duty (in section 66(2) of the 2008 Act) to ensure that information was not disclosed contrary to the public interest. Part 79.22 disapplied in its entirety Part 31 of the CPR which had contained the procedural rules relating to public interest immunity. Again it can be seen that, in relation to financial restrictions proceedings a fairly radical re ordering of the rules that governed most forms of civil litigation was introduced. All of this is in stark contrast to the position as regards the Supreme Court. Section 40(5) of the Constitutional Reform Act 2005 provides: (5) 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. As I have said, there cannot be any plausible argument that this provision gave the Supreme Court power to conduct a closed procedures hearing before the enactment of the Counter Terrorism Act in November 2008. Is it possible that the power of the court to conduct such a hearing has been animated by the 2008 Act? One can recognise a theoretical argument that in order to determine any question in an appeal against a finding made by a lower court in a closed material procedures hearing, it is necessary for the Supreme Court to be able to conduct such a hearing. That argument must, however, immediately confront the fact that nothing in the 2008 Act refers to the Supreme Court. Notwithstanding the elaborate structure that has been put in place to govern the conduct of such a hearing in the High Court, the Court of Appeal and the Court of Session, no provision has been made as to how a closed material procedure hearing in the Supreme Court might take place. For my part, I find it inconceivable that it was intended that the Supreme Court should have power to carry out a closed materials procedure while leaving it bereft of the structure and safeguards which were deemed essential for the other courts in which such a hearing is expressly permitted. Moreover, the use of a closed materials procedure involves the suspension of the law relating to public interest immunity. Thus, for the Supreme Court to recognise that it has power to conduct a closed materials procedure hearing necessarily involves an acceptance that its power to conduct an inquiry into whether public interest immunity requires the withholding of the material is no longer available. That this should be the effect of section 40(5) would be surprising enough. But that it should have that effect for the first time three years after the Constitutional Reform Act 2005 was passed is surely wholly improbable. Section 40(5) gives the Supreme Court power to determine questions which need to be determined for the purposes of doing justice in an appeal. But the conferring of that power should not be confused with authorising the use of a wholly different procedure for the manner in which those questions are to be determined. This is particularly so when that different procedure was not in contemplation at the time the section was enacted. It is significant that the subsection confers the power for the express purpose of doing justice in an appeal. The doing of justice is conventionally understood to mean that all parties to litigation will have equal access to material which is liable to influence the outcome of the dispute. This is echoed in section 45 of the Constitutional Reform Act the provision which deals with rule making powers. Section 45(1) invests the President of the Court with the power to make rules governing the practice and the procedure to be followed in the court. Subsection (3)(a) requires that the President must exercise that power with a view to securing that the court is accessible, fair and efficient. This mirrors section 1(3) of the Civil Procedure Act 1997. And Rule 2 of the Supreme Court Rules 2009 sets out the overriding objective as being to secure that the court is accessible, fair and efficient, terms which are not dissimilar to the overall objective in CPR 1.1. There has been no modification of this overall objective such as was introduced by Part 79 of the CPR, however. Indeed, nothing in the 2009 Rules intimates an intention to accommodate a closed material procedure in any way. Rule 27(1) states that every contested appeal shall be heard in open court except where it is necessary in the interests of justice or the public interest to sit in private for part of an appeal hearing. Rule 27(2) provides: (2) Where the Court considers it necessary for a party and that party's representative to be excluded from a hearing or part of a hearing in order to secure that information is not disclosed contrary to the public interest, the Court must conduct the hearing, or that part of it from which the party and the representative are excluded, in private but the Court may exclude a party and any representative only if a person who has been appointed as a special advocate to represent the interests of that party is present when the party and the representative are excluded. In my view, it is clear that this rule was made to allow an ex parte application to be made for the withholding of material as part of a public interest immunity exercise. To suggest that it was designed to cover the holding of a closed material procedure would be farfetched, given that there is no mention in any other part of the rules of such a procedure. Indeed, the very next rule, rule 28 states that a judgment of the court may be delivered in open court or, if the court directs, be promulgated by the Registrar. But for the circumstance that the 2008 Act introduced a closed material procedure for the High Court, the Court of Appeal and the Court of Session and that appeals lie from those courts to the Supreme Court, there would be no argument that the Constitutional Reform Act and the Supreme Court rules even address, much less contemplate, the possibility of such a hearing taking place before this court. It is only by a process of ex post facto rationalisation that section 40(5) is said to permit a closed materials procedure in the Supreme Court. That cannot be said to have been its original purpose. In my view, the revised and expanded purpose which the respondent seeks to ascribe to it cannot be accepted. The contended for modification of the courts powers and procedures involves simply too important, not to say too fundamental, a transformation to be countenanced. It can be submitted that a steadfast refusal to allow some softening of the Al Rawi line in relation to appeals is unrealistic; that the failure to admit closed material in an appeal before the Supreme Court when the same material had been before the courts against whose decisions the appeal is brought creates an asymmetrical anomaly. And indeed, it has been suggested by the advocate to the court, Mr Tam QC, that advantages in recognising at least the power of the Supreme Court to receive closed material can be detected. The primary advantage he identified was the assistance which such an exercise provided in enabling the court to arrive at the correct result. For the reasons that I gave in Al Rawi and the associated case of Tariq v Home Office [2012] 1 AC 452, I consider that the assumption that a court, presented with all of what is claimed to be relevant material, will be in a better position to arrive at the right conclusion when some of that material is untested is, at least, misplaced and may prove in some cases to be palpably wrong. But I do not consider it profitable to renew the debate on that particular topic in the present case. For the sake of examining the claim that this court should recognise a power to examine closed material, let us assume that there is force in the argument that a court is, as a matter of principle and common experience, better placed to reach a more correct result if it receives all the material which one of the parties says is relevant to its decision, even though the other party is denied knowledge of its content. Does that circumstance warrant recognition of the power? In my view it does not. Pragmatic considerations can and, where appropriate, should play their part in influencing the correct interpretation to be placed on a particular statutory provision. But pragmatism has its limits in this context and we do well to recognise them. As a driver for the interpretation of section 40(5) for which the respondent contends, pragmatism might seem, at first blush, to have much to commend it. After all, this is an appeal from courts where closed material procedures took place. How, it is asked, can justice be done to an appeal if the court hearing the appeal does not have equal access to a closed material procedure as was available to the courts whose decision is under challenge? And if one proceeds on the premise that the court will be more fully informed and better placed to make a more reliable decision, why should the Supreme Court not give a purposive interpretation to section 40(5)? The answer to this deceptively attractive presentation is that this was never the purpose of section 40(5). It was not even a possible, theoretical purpose at the time that it was enacted. It was never considered that it would be put to this use. The plain fact is that Parliament introduced a closed material procedure for the High Court, the Court of Session and the Court of Appeal and did not introduce such a procedure for the Supreme Court. This court has said in Al Rawi that it does not have the inherent power to introduce a closed material procedure. Only Parliament could do that. Parliament has not done that. And to attempt to graft on to a statutory provision a purpose which Parliament plainly never had in order to achieve what is considered to be a satisfactory pragmatic outcome is as objectionable as expanding the concept of inherent power beyond its proper limits. A majority of this court has held that it does have power to hold a closed material procedure, however, and it is therefore necessary for me to address the question of whether it was right to hold a closed material procedure on this appeal. It was not in dispute between the parties, the interveners and the advocate to the court that, as Mr Chamberlain on behalf of the special advocates put it, if section 40(5) confers on the court power to consider closed material, it does so only if, and to the extent that, closed material is relevant to a question whose determination is necessary for the purposes of doing justice in the appeal. Equally, it was not disputed that the obligation to show that the closed material was relevant and the extent to which it was relevant rested with the party so asserting, in this instance the respondent. But the circumstances of this case immediately exemplified the inherent difficulty in applying that principle. In seeking to persuade the court that it was necessary to look at the closed judgment, the respondent felt unable to state what the closed judgment contained. This is, of course, a problem which will beset every application for a closed material procedure. And, ultimately, counsel for the respondent was driven to utter warnings couched in the most general terms of the danger of this court reaching a conclusion on the appeal in the appellants favour when it might have been influenced to a different view had it seen the closed material. If the principle that the closed material procedure has to be shown to be necessary is to be something more than an empty aspiration, then the party asking for a closed material procedure must surely do more than merely assert that this is necessary. Here, however, the respondent did not even do that. The Treasurys final position was that, in a certain eventuality (the appellants appeal succeeding), the material might cause the court to take a different view. That seems to me to be an impossibly far cry from showing that it was necessary that we should look at the closed judgment. The difficulty is enhanced where, as here, article 6 of the European Convention on Human Rights and Fundamental Freedoms governed the proceedings. Where that is the case, nothing in the closed material, or the judges conclusion on it, may be determinative of the outcome unless the gist of the material has been relayed to the appellant. So one must start the examination of whether it is necessary to examine the closed judgment on the basis that nothing in that judgment can have been determinative of the case against the bank. The examination of whether the necessity test has been satisfied then must include acknowledgment of Mitting Js single reference to his closed judgment in para 16 of his open judgment to the effect that there were closed reasons as well as those expressed in his open judgment for his finding that one of the banks customers, Novin Energy Company, had imported materials which could be used to produce or facilitate the production of nuclear weapons. In the first place, the fact that open reasons for that finding had been given certainly does not help the case that it was necessary to look at the closed judgment. But that case was weakened further by the judges statement that this was common ground between the parties and, in my view, it was demolished by the fact that this finding was not challenged by Bank Mellat before this court. In truth, this courts decision to look at the closed judgment depended on nothing more than the plea of counsel for the Treasury that, against the possibility that we might be inclined to find for the appellant, we should look at the closed material just in case it might persuade us to a different view. That, in my opinion, comes nowhere near to showing that it was necessary to look at the closed judgment and sadly, but all too predictably, when the closed judgment was considered in the course of a closed material procedure, it became abundantly clear that it was quite unnecessary for us to have done so. LORD REED (dissenting) This appeal has raised several points of constitutional importance. The present judgment is concerned with the questions whether this court can adopt a closed material procedure in a case of this nature, and, if so, whether it ought to do so in this particular case. I agree with the judgments` of Lord Hope and Kerr, and add some observations only in view of the importance of these issues and the division in the court. The issue of principle The first question raised is whether this court has the power, when hearing an appeal relating to financial restrictions proceedings under Part 6 of the Counter Terrorism Act 2008 (the 2008 Act), to exclude from the hearing the party challenging the Treasurys exercise of its powers, to consider a closed judgment which has not been disclosed to that party, and to give a closed judgment, containing part or all of the reasons for its decision, which is not disclosed to that party or to the public. I was of the opinion, when the issue arose at the end of the first day of the hearing, that the court has no such power. I remain of that opinion. It is a fundamental principle of justice under the common law 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 (see for example In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, 615 per Lord Mustill, and the other authorities cited in R (Roberts) v Parole Board [2005] UKHL 45; [2005] 2 AC 738, para 16 per Lord Bingham of Cornhill). That principle can only be qualified or overridden by statute. It is also a basic principle of justice that a party is entitled to be present during the hearing of his case by the court (subject to a number of established exceptions, none of which is germane to the present case), and to know the reasons for the courts decision. Section 66 of the 2008 Act, read with section 73, makes special provision for rules of court regulating the practice and procedure to be followed in appeals relating to financial restrictions proceedings in the High Court, the Court of Appeal and the Court of Session. Section 66(4) permits such rules of court to make provision for a closed material procedure. Section 67 imposes specific duties in relation to disclosure upon persons making rules of court in respect of those courts alone. The law relating to public interest immunity is by implication disapplied. It is plain beyond argument that Parliament did not apply those provisions to the court of last resort. If Parliament had intended the same procedures to be applied in this court, it would surely have said so. The general powers conferred upon this court by the Constitutional Reform Act 2005 (the 2005 Act) are silent on the matter. It is argued that they are to be construed as conferring the necessary powers, since the court cannot decide an appeal in a case where a closed judgment has been issued without knowing, and hearing argument upon, all the reasons for the decisions of the courts below, and must therefore hear argument upon the closed judgment, necessarily in a hearing from which the party challenging the Treasurys exercise of its powers is excluded. There is however a strong presumption that Parliament does not intend to interfere with the exercise of fundamental rights. It will be understood as doing so only if it does so expressly or by necessary implication (R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 574 per Lord Browne Wilkinson; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131 per Lord Hoffmann). The common law rights of a party to an appeal to be present throughout the hearing of the appeal, to see the material before the court, and to know the reasons for the courts decision of the appeal, are undoubtedly fundamental rights to which that principle applies. The argument advanced on behalf of the Treasury is directly contrary to that principle: reliance is placed upon general words to override a fundamental right. I find it particularly difficult to accept the argument against the background of the specific provision made by Parliament in respect of other courts in the 2008 Act. In so far as the argument seeks to rely upon the Supreme Court Rules made under the 2005 Act, it begs the anterior question as to the effect of the 2005 Act itself. I accept of course, as a general proposition, that it is desirable that an appellate court should be able to consider all the reasoning of the courts below, and all the material which was before them. This court has not however in the past found it either necessary or appropriate to consider closed judgments of the courts below: RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10; [2010] 2 AC 110, para 3. I do not in any event regard these pragmatic considerations as conclusive. It has to be borne in mind in the first place that it is a matter of great importance that proceedings in the highest court in the land should be conducted in accordance with the highest standards of justice: in particular, that the court should sit in public, and that all parties should be equally able to participate in the hearing. There is to my mind a very serious question whether secret justice at this level is acceptable. It also has to be borne in mind that there are other possible means of protecting national security in court proceedings besides the adoption of a closed material procedure, and that some of those means enable the court to sit in public and the parties to attend the whole of the hearing. One possibility, where a closed judgment has been issued by a lower court, is to determine the appeal on the basis of the material which that court, exercising its judgment, has set out in its open judgment. That was the procedure followed in RB (Algeria). Another is to apply the law relating to public interest immunity, as the House of Lords did in the past. Another is to follow the approach adopted in a number of European courts, such as the German courts, where the court can examine the material for itself, without its being canvassed during the hearing. A comparative analysis might disclose other possibilities. That is not to say that the alternatives to closed material procedure are necessarily preferable: they may cause equal or greater concern for other reasons. The point of these considerations, however, is that there are choices to be made. Those choices are appropriately made by Parliament after full consideration and debate. They are too important to be left to judges. The most serious difficulty with the Treasurys argument, however, is that for the court to conduct a closed hearing is contrary to a fundamental principle of the common law, and therefore requires clear statutory authority. Even interpreted as generously as possible, the 2005 Act cannot in my opinion be said to provide clear authority. Whether this court should have adopted a closed material procedure in the present The second question raised is whether, given the view of the majority of the court that it did possess such a power, that power should have been exercised in the circumstances of the present case. I am emphatically of the opinion that it should not. The Treasurys argument, which I have already summarised, was one which would apply in every case in which a closed judgment had been given. In the present case, however, Mitting J had properly indicated in his open judgment ([2010] EWHC 1332, paras 16 and 18) the two specific findings that he had made for which his reasoning was set out in the closed judgment. Neither of those findings was challenged before this court. Counsel for the Treasurys assertion that it was nevertheless necessary for this court to hear submissions on the closed judgment, and for that purpose to sit in a closed session, was unsupported by any specific reasons why such an exceptional course should be adopted. No indication was given of the nature of the closed material, contrary to the requirement that a summary should be provided (Secretary of State for the Home Department v AF [2009] UKHL 28; [2010] 2 AC 269). The plea that, if there was any possibility that the court might otherwise allow the appeal, it ought to consider the closed judgment just in case anything in it might alter the courts view, falls far short of demonstrating that a departure from the fundamental principle of open justice was truly necessary. When closed material procedure was first introduced in 1997, in proceedings before the Special Immigration Appeals Commission, it was said to be an exceptional measure justified by national security concerns. Having gained a foothold in the legal system, the procedure has spread progressively, initially to other specialist tribunals, and then to the courts. It has been used even where issues of national security are not involved (as, for example, in R (Roberts) v Parole Board [2005] UKHL 45; [2005] 2 AC 738). Now that its use has been extended to proceedings before this court, it is of great importance, if a degradation of standards of justice at the highest level is to be avoided, that it should be resorted to only where it has been convincingly demonstrated to be genuinely necessary in the interests of justice. LORD DYSON (dissenting in part) I agree with Lord Neuberger that, for the reasons that he has given, this court has the power to adopt a closed material procedure in an appeal under the Counter Terrorism Act 2008. For the reasons given by Lords Hope, Kerr and Reed, I did not favour exercising the power in this case. In my view, the power should only be exercised where it has been convincingly demonstrated that it is necessary to do so in the interests of justice. I agree with what Lord Neuberger says about this at para 69 of his judgment. The present case illustrates the danger of the court acceding too readily to an assertion by a party that a closed session could make a difference to the outcome of an appeal. That is what counsel for the Treasury asserted on instructions in the present case. He was unable to say more. As Lord Neuberger says at para 64, the court strongly suspected that nothing in the closed judgment would affect the outcome of the appeal, but we could not be sure in the absence of seeing the closed judgment and hearing submissions on it. Our strong suspicions were amply borne out. The closed judgment contained nothing that it could reasonably have been thought would or might affect the outcome of the appeal. In my view, if the court strongly suspects that nothing in the closed material is likely to affect the outcome of the appeal, it should not order a closed hearing. I remain of the view that the power should not have been exercised in the present case. A bare plea for a closed hearing should not suffice. I agree with Lord Hope that convincing reasons should be given as to why closed material should be looked at. Anything less is likely to lead to closed hearings becoming routine. In my view, they should be exceptional. Trinity Term [2013] UKSC 39 On appeal from: [2011] EWCA Civ 1 Bank Mellat (Appellant) v Her Majesty's Treasury (Respondent) (no. 2) Lord Neuberger, President Lord Hope, Deputy President JUDGMENT before Lady Hale Lord Kerr Lord Clarke Lord Dyson Lord Sumption Lord Reed Lord Carnwath 19 June 2013 JUDGMENT GIVEN ON Heard on 19, 20 and 21 March 2013 Appellant Michael Brindle QC Amy Rogers Dr Gunnar Beck (Instructed by Zaiwalla and Co) Special Advocates Martin Chamberlain QC Melanie Plimmer (Instructed by Special Advocates Support Office) Intervener Nicholas Vineall QC (Instructed by Zaiwalla and Co) Respondent Jonathan Swift QC Tim Eicke QC Robert Wastell (Instructed by Treasury Solicitors) Advocate to the Court Robin Tam QC (Instructed by Treasury Solicitors) LORD SUMPTION (with whom Lady Hale, Lord Kerr, and Lord Clarke agree in whole; Lord Neuberger and Lord Dyson agree only on the procedural grounds, Lord Carnwath only on the substantive grounds) Introduction 1. This appeal is about measures taken by H.M. Treasury to restrict access to the United Kingdoms financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Irans nuclear weapons and ballistic missile programmes. 2. The proliferation of nuclear weapons is an international issue of great importance to the security of the United Kingdom and the international community. For a number of years, Iran has had a major industrial programme which the United Kingdom, along with the rest of the international community, believes to be directed to the development of the technical capability to produce nuclear weapons and to the improvement of its ballistic missile capabilities. Between 2006 and 2008 the United Nations Security Council adopted a number of resolutions under Article 41 of the United Nations Charter, which deals with threats to international peace and security. Security Council Resolution 1737 (2006) called on Iran to suspend various proliferation sensitive nuclear activities, and called on states to take measures to control the trade in certain critical materials, components, equipment and services. Paragraph 12 of this Resolution also required states to freeze the assets in their national territory of a number of persons or organisations identified in Annex I as being involved in Irans nuclear and ballistic missile programmes. Resolution 1747 (2007) extended these provisions to a number of additional persons and organisations identified in Annex I to the new resolution. These included entities providing ancillary services to Irans nuclear and armaments industries, among them two banks. Security Council Resolution 1803 (2008) strengthened the measures required by Resolutions 1737 and 1747. In relation to the provision of banking and other financial services to support Irans weapons programmes, the new resolution called upon all states to exercise vigilance over the activities of financial institutions in their territories with all banks domiciled in Iran, in particular with Bank Melli and Bank Saderat, and their branches and subsidiaries abroad, in order to avoid such activities contributing to the proliferation sensitive nuclear activities, or to the development of nuclear weapon delivery systems. 3. There are two principal legislative instruments available to the United Kingdom government for the purpose of restricting the operations in the United Kingdom of Iranian financial institutions associated with the countrys nuclear and ballistic missiles programmes. The first, which is not directly in point in these proceedings but is an important part of the background, is the Iran (Financial Sanctions) Order 2007 SI 2007/281. This is an Order in Council made under section 1 of the United Nations Act 1946, which gives effect to the asset freeze provisions of Security Council Resolutions 1737 and 1747. Article 6 of the Order freezes the assets in the United Kingdom of the entities identified in Annex I of those resolutions. 4. The second, which is the instrument directly relevant to the present appeal, is Section 62 of the Counter Terrorism Act 2008, which gives effect to Schedule 7. Schedule 7 is not exclusively concerned with Iran or with nuclear proliferation. It empowers the Treasury to make a direction by statutory instrument in situations specified in paragraph 1, involving three categories of risk associated with a foreign country outside the European Economic Area. The relevant categories of risk are those arising from terrorist financing, money laundering and nuclear proliferation. The risk of nuclear proliferation is dealt with in paragraph 1(4), which imposes a statutory condition that . the Treasury reasonably believe that (4) the development or production of nuclear, radiological, biological or chemical weapons in the country, or the doing in the country of anything that facilitates the development or production of any such weapons, poses a significant risk to the national interests of the United Kingdom. 5. If the conditions in paragraph 1 as to the existence of a relevant risk are satisfied, the Treasury may give a direction to one or more persons operating in the financial sector (essentially credit and financial institutions) regulating their dealings with any designated person. A designated person includes any person carrying on business in or resident or incorporated in the foreign country in question: see paragraph 9(1). The direction may require the financial institutions to whom it is addressed to exercise an enhanced customer due diligence so as to obtain information about the designated person and those of its activities which contribute to the risk (paragraph 10). It may require enhanced monitoring (paragraph 11) or systematic reporting (paragraph 12) to the same end. But the most draconian provision is paragraph 13, which provides that the direction may require those to whom it is addressed not to enter into or continue to participate in. any transaction or business relationship with a designated person. Under paragraph 16(4), any direction made in the exercise of these powers expires a year after it is made. A direction made under Schedule 7 must be contained in an order: see paragraph 14(1). By section 96, any order under the Act must be made by statutory instrument. 6. It will be apparent that for designated persons with a substantial business in the United Kingdom, especially if they are banks, the exercise of the power conferred by paragraph 13 will have extremely serious and possibly irreversible consequences. The Act provides three relevant safeguards against the unwarranted use of this power. First, under Schedule 7, paragraph 14(2), if the direction contains requirements of a kind mentioned in paragraph 13 of Schedule 7 (limiting or ceasing business with a designated person) it must be laid before Parliament after being made and unless approved by affirmative resolution within 28 days will cease to have effect at the end of that period. Second, Schedule 7, paragraph 9(6) provides that the requirements imposed by a direction must be proportionate having regard, in the case within paragraph 1(4) to the risk referred to in that paragraph. This means the risk to the national interests of the United Kingdom presented by the development of nuclear weapons, radiological, biological or chemical weapons in the foreign country. Third, section 63 of the Act provides a special procedure by which a person affected by any decision of the Treasury, including a decision under Schedule 7, may apply to the High Court to set it aside, applying the principles applicable on an application for judicial review. 7. On 9 October 2009 the Treasury made an order, the Financial Restrictions (Iran) Order 2009 SI 2009/2725, which came into force three days later on 12 October. It was made under Schedule 7, paragraph 13 of the Act and required all persons operating in the financial sector not to enter into or to continue to participate in any transaction or business relationship with Bank Mellat or any of its branches or with a shipping line called IRISL. The direction was laid before Parliament on 12 October 2009. It was approved by the Delegated Legislation Committee of the House of Commons on 28 October and by the Grand Committee of the House of Lords on 2 November. 8. Under Schedule 7, paragraph 16(4), the direction expired automatically after a year, on 8 October 2010. By that time it had been effectively superseded by the extension to Bank Mellat of a general asset freeze under EU legislation, which occurred on 26 July 2010. On 29 January 2013, however, the application of the EU measures to Bank Mellat was annulled by the General Court, primarily on the ground of the insufficiency of the stated reasons for it. This decision is currently under appeal to the Court of Justice of the European Union and is suspended pending that appeal. Subject to that, there are no restrictions on Bank Mellats business currently in force. 9. The object of the direction, as the Treasury acknowledges, was to shut the Bank out of the UK financial sector, and that has been its effect. Before the direction, the Bank had a substantial international business, much of it international trade finance transacted through London. In the year to March 2009, it issued letters of credit with an aggregate value of about US$11 billion, of which about a quarter represents letters of credit in respect of business transacted through the United Kingdom. The Banks own estimate of its revenue losses is about US$25 million a year. In addition, the Bank has been prevented from drawing on 183 million euros of call and time deposits with its part owned subsidiary in London. Important banking relationships have been lost to other banks. The judge found that since the direction, the bank has been unable to make profitable use of the goodwill which it had established in the United Kingdom, which was a possession for the purpose of article 1 of the First Protocol to the European Convention on Human Rights. He held that on any view the effect has been substantial, and suffices to require all of the Banks challenges to the Order to be addressed and determined. This much is not in dispute. The present proceedings 10. On 20 November 2009, Bank Mellat applied in the High Court under section 63 of the Counter Terrorism Act 2008 to have the direction set aside on grounds which fall under two heads. In the courts below, these were called the procedural and the substantive grounds. The procedural ground is that the Treasury failed to give the bank an opportunity to make representations before making the order. The Bank had no express statutory right to such an opportunity, but it contends that such an opportunity was required at common law and by article 6 and article 1, Protocol 1 of the European Convention on Human Rights. The substantive grounds are that the decision was irrational, disproportionate and discriminatory, that the Treasury failed to give adequate reasons for making it, and that their reasons were vitiated by irrelevant considerations or mistakes of fact. In the High Court, Mitting J dismissed the banks application under both heads. The Court of Appeal (Maurice Kay, Elias and Pitchford L.JJ) dismissed the appeal, unanimously in the case of the substantive grounds, by a majority (Elias LJ dissenting) in the case of the procedural ground. The Treasurys reasons 11. Bank Mellat is the only Iranian bank to have been designated under Schedule 7 of the Act. It is, however, only part of the Iranian banking sector. According to a staff report of the International Monetary Fund put before us by the Treasury, Iran has a comparatively large banking sector. It comprises 26 banks, including eight large general commercial banks, four of which are publicly owned and the other four (among them Bank Mellat) relatively recently privatised. The Treasurys evidence is that it is difficult for Iranian banks to access the United Kingdoms financial markets directly, because few banks in the United Kingdom are willing to deal with them or hold correspondent accounts for them in view of the risks involved. It is easier for Iranian banks to do business in the United Kingdom through UK incorporated subsidiaries, which do not present the same risks for their counterparties. Five of the eight general commercial banks in Iran have wholly or partly owned subsidiaries in the United Kingdom. They are Bank Mellat, Bank Melli, Bank Sepah, Bank Saderat and Bank Tejarat. Of these, Bank Melli, Bank Sepah and Bank Saderat had wholly owned banking subsidiaries in the United Kingdom. Bank Mellat and Bank Tejarat had a jointly owned banking subsidiary, Persia International Bank Plc (PIB), through which they transacted most if not all of their United Kingdom business. At the time of the Treasury direction, some of the Iranian banks with banking subsidiaries in the United Kingdom were restricted under other legislation. Bank Sepah and its UK subsidiary Bank Sepah International Plc were included in Annex I to Security Council Resolution 1747, and were accordingly covered by the asset freeze imposed under the Iran (Financial Sanctions) Order 2007. Bank Melli and its UK subsidiary Bank Melli Plc were subject to a similar asset freeze under EU legislation. On 27 July 2010, some time after the direction relating to Bank Mellat was made, the EU asset freeze was extended to Bank Mellat and PIB as well as to Bank Saderat and its UK subsidiary Bank Saderat Plc which had previously been subject to reporting obligations only. At the same time the EU asset freeze was extended to three other Iranian banks which did not have UK branches or subsidiaries. That left, among banks with a UK presence, only Bank Tejarat, which was finally brought within the EU asset freeze on 24 January 2012. 12. It is abundantly clear from statements made to Parliament when the direction was laid before it that the reason for singling out Bank Mellat from other Iranian banks was that it had been identified as having assisted Irans weapons programmes by providing banking and financial services to entities involved with them. The explanatory memorandum which accompanied the direction explained it as follows: These restrictions are being imposed in respect of these entities because of their provision of services for Iran's ballistic missile and nuclear programmes. It is considered that a direction to cease business with these entities will contribute to addressing the risk to the UK national interests posed by Irans proliferation activities. This was expanded in a written ministerial statement. After explaining why the Treasury considered that the Iranian nuclear programme posed significant risks for the national interests of the United Kingdom, the document continued: We cannot and will not ignore specific activities undertaken by Iranian companies which we know to be facilitating activity identified by the UN as being of concern, particularly where such activities have the potential to affect the UK' s interests. Of the particular entities in question . Bank Mellat has provided banking services to a UN listed organisation connected to Iran's proliferation sensitive activities, and been involved in transactions related to financing Iran's nuclear and ballistic missile programme. The direction to cease business will therefore reduce the risk of the UK financial sector being used, unknowingly or otherwise, to facilitate Iran's proliferation sensitive activities. In response to a request from the Banks solicitors for further information about the contents of this statement, the Treasury wrote on 27 October 2009: Iran's nuclear and ballistic missile programmes clearly require financing mechanisms to underpin them, and access to the international banking system remains essential for transactions with foreign suppliers. As set out in the Written Ministerial Statement Bank Mellat has provided banking services to a UN listed organisation connected to Iran's proliferation sensitive activities, and been involved in transactions related to financing Iran's nuclear and ballistic missile programme. The direction prevents Bank Mellat from conducting transactions or business relationships with persons operating in the UK financial sector and therefore restricts the financing mechanisms available to entities involved in lrans nuclear programme and its missile programme. It also protects the UK financial sector from being unknowingly implicated in financing Iran's nuclear programme through transactions with Bank Mellat. Finally, on 17 December 2009, the Exchequer Secretary to the Treasury answered a number of questions relating to the order in the House of Commons. She said: The first question was on how the Government assess the impact on Iran's proliferation activities. International finance services underpin the actions of Bank Mellat and IRISL. Restricting their access to UK financial services will lock them out of a key financial centre, which will make their contribution to Iran's nuclear programme more difficult. Obviously, our action applies to the UK. The Hon Member for Fareham used the word sanction, but the order is not a sanction on Iran, but a direction for financial institutions in the UK. And later in the same debate: The restriction targets Bank Mellat and IRISL transactions. Other Iranian banks are not subject to the restrictions. As long as all financial sanctions and relevant risk warnings are complied with, alternative banks may be used, otherwise an application for a licence of exemption may be made to the Treasury. 13. In response to Bank Mellats proceedings, Mr James Robertson, a senior civil servant at the Treasury, made a witness statement which in its original form was dated 18 December 2009. His statement was subsequently re served with additional material, after Mitting J had required the Treasury to disclose certain material which they had initially sought to rely on as closed material. In his statement, Mr Robertson provided some of the detail behind the general allegations in the written ministerial statement about Bank Mellats dealings with a UN listed organisation connected to Iran's proliferation sensitive activities, and the transactions related to financing Iran's nuclear and ballistic missile programme. It came down to three points: (1) The UN listed organisation was Novin Energy Company, which had been identified in Annex I of Resolution 1747 as a company which operates within AEOI and has transferred funds on behalf of AEOI to entities associated with Irans nuclear programme. AEOI is the Atomic Energy Organisation of Iran. It is an umbrella organisation concerned with the coordination of the programme. It is listed in Annex I of Resolution 1737. Mr Robertsons evidence was that Bank Mellat had serviced and maintained AEOI accounts mainly through AEOIs financial conduit Novin Energy. (2) Bank Mellat was said to have provided banking services to senior officials of Irans Aerospace Industries Organisation (or AIO), including a Mr Taghizadeh and a Mr Esbati. AIO is not an organisation listed in the Annexes to the Security Council resolutions, but it is the parent of four entities which are listed. Mr Robertson alleged that senior AIO officials concerned with Irans ballistic missile programme, by inference including Mr Taghizadeh and Mr Esbati, had in 2007 and 2008 used Bank Mellat services to conduct business with companies associated with Iranian procurement attempts. (3) Between autumn 2007 and spring 2009 the Bank had a banking relationship with a company called Doostan International, which was said to be an intermediary company that had in the past been used by subsidiary organisations of AIO listed in the Security Council resolutions, and which was linked to Irans nuclear programme. In addition, Mr. Robertson said that the Treasury had been influenced by 14. two wider considerations not directly related to Bank Mellats alleged role in providing banking services to entities involved in Irans weapons programmes. One was that it might encourage the United Kingdom financial sector to wind down business with Iran more generally. The other was that it would increase pressure on the Iranian government to comply with its international obligations, by restricting the financial services available to it for procuring material required for its weapons programmes. In this context, Mr Robertson said that it was important to note that although Bank Mellat had been privatised, the government of Iran still directly controlled 20% of its shares and indirectly controlled another 60%. 15. In his open judgment Mitting J made the following findings, which represent at best a very partial acceptance of the Treasurys case on the facts: (1) Bank Mellat has in place a mechanism, which it operates conscientiously, to ensure that it does not provide banking services to Security Council designated entities and individuals. This finding reflected the Banks evidence, which described its due diligence procedures. (2) Novin Energy Company was a financial conduit for AEOI and did facilitate Irans nuclear weapons programme. But once it was designated in Security Council Resolution 1747, the Bank ran down and eventually terminated its relationship with it. (3) Doostan International had played a part in the Iranian nuclear weapons programme. The Bank holds accounts for Doostan and for its managing director Mr Shabani, but the Bank had investigated the position in good faith and found nothing unusual or suspicious. Mitting J considered that the position with regard to Doostan does not greatly matter. (4) Mitting J was not satisfied on the information available to him that the Bank had provided banking services to the two individuals said to be senior officials of the AIO. Their names are very common in Iran and it had not proved possible to identify them in the Banks records. (5) Bank Mellat is not controlled by the Iranian government, which exercises voting rights only in respect of the 20% of the shares which it owns. Nonetheless some pressure would be brought to bear on the Iranian government by the direction. In substance, therefore, Mitting J found that while the Bank had provided 16. banking services to two entities, Novin and Doostan, which were involved in the Iranian nuclear weapons and ballistic missiles programmes, this had happened without their knowledge and in spite of their conscientiously operated procedures to avoid doing so. The judge nevertheless dismissed the Banks substantive grounds of application because these very facts demonstrated the risk that is in any event obvious, that however careful the bank may be, the banks facilities are open to use by entities participating in Irans nuclear weapons programme. The judge put the point in this way at para 16: The Treasury's case is not that the bank has knowingly assisted Security Council designated entities after designation, or even that it has knowingly assisted entities liable to be designated, but which have not yet been, by providing banking facilities to them, but that it has the capacity to do so, has in one instance done so and is likely to do so in the future. The fundamental justification for the Order is that, even as an unknowing and unwilling actor, the bank is, by reason of its international reach, well placed to assist entities to facilitate the development of nuclear weapons, by providing them with banking facilities, in particular trade finance. Concealment of the true nature of imported goods paid for by a letter of credit is straight forward: all that an issuing bank sees are documents. On presentation of compliant documents describing innocent goods, the bank must pay, whatever the nature of the goods in fact imported. Access to the international financial system is, as the Financial Action Task Force reported on 18 June 2008, essential for what it describes as "proliferators". I accept Mr Robertson's conclusion, in paragraph 57 of his statement, that Iran's banking system provides many of the financial services which underpin procurement of the raw materials and components needed for its nuclear and ballistic missile programmes. In addition to his open judgment, Mitting J delivered a closed judgment, 17. which we have read. It contains nothing which alters or supplements the findings in his open judgment in any respect relevant to the present appeal. 18. The judges findings of fact were not challenged before the Court of Appeal, which endorsed his conclusions about them. The Banks substantive grounds 19. The bank now accepts, at least for the purpose of this litigation, that the statutory prerequisites in Schedule 1, paragraph 1 of the Act for the making of the direction were satisfied. In other words, the Treasury reasonably believed that Irans nuclear and ballistic missiles programmes posed a significant risk to the national interests of the United Kingdom. But that is not enough to justify the order. This is because unlike the Iran (Financial Sanctions) Order 2007, a Schedule 7 direction is not a sanctions regime. Its purpose is directly to restrict the availability of financial services which contribute to the relevant risk. Directions made under it are essentially preventative and remedial rather than punitive or deterrent. Thus Schedule 7 applies in the same way to the risk of terrorist financing and money laundering associated with a foreign country as it does to the risk of nuclear proliferation. All of the specific directions for which Schedule 7 provides are addressed to the particular risks whose existence has given rise to the direction. They require things to be done by the financial institutions to whom they are addressed with a view to directly restricting the contribution which the designated person may make to that risk, whether it be by gathering or reporting of information relating to its activities or, as in the present case, by wholly ceasing business dealings with him. Critically, paragraph 9(6) of Schedule 7 posits a functional relationship between the conduct which may be required by the direction and the particular risk which justified the making of it in the first place. It follows that the essential question raised by the Banks substantive objections to the direction is whether the interruption of commercial dealings with Bank Mellat in the United Kingdoms financial markets bore some rational and proportionate relationship to the statutory purpose of hindering the pursuit by Iran of its weapons programmes. 20. The requirements of rationality and proportionality, as applied to decisions engaging the human rights of applicants, inevitably overlap. The classic formulation of the test is to be found in the advice of the Privy Council, delivered by Lord Clyde, in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at 80. But this decision, although it was a milestone in the development of the law, is now more important for the way in which it has been adapted and applied in the subsequent case law, notably R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (in particular the speech of Lord Steyn), R v Shayler [2003] 1 AC 247 at paras 57 59 (Lord Hope of Craighead), Huang v Secretary of State for the Home Department [2007] 2 AC 167 at para 19 (Lord Bingham of Cornhill) and R (Quila) v Secretary of State for the Home Department [2012] 1 AC 621 at para 45. Their effect can be sufficiently summarised for present purposes by saying that 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. Before us, the only issue about them concerned (iii), since it was suggested that a measure would be disproportionate if any more limited measure was capable of achieving the objective. For my part, I agree with the view expressed in this case by Maurice Kay LJ that this debate is sterile in the normal case where the effectiveness of the measure and the degree of interference are not absolute values but questions of degree, inversely related to each other. The question is whether a less intrusive measure could have been used without unacceptably compromising the objective. Lord Reed, whose judgment I have had the advantage of seeing in draft, takes a different view on the application of the test, but there is nothing in his formulation of the concept of proportionality (see his paras 68 76) which I would disagree with. 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 Human Rights Convention. 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 that the making of government and legislative policy cannot be turned into a judicial process. 22. Nonetheless there are, as it seems to me, two serious difficulties about the conclusion which both Mitting J and the Court of Appeal reached in the present case. The first is that it does not explain, let alone justify, the singling out of Bank Mellat, if as both courts below agreed the problem is a general problem of international banking. The second is that the justification for the direction which they have found was not the one which ministers advanced when laying the direction before Parliament, and was in some respects inconsistent with it. 23. As I have pointed out, by reference to the various statements of Treasury ministers, the justification for the measure which was given to Parliament was that there was a particular problem about Bank Mellat which did not apply to the generality of Iranian banks. As the Exchequer Secretary pointed out on 17 December 2009, the direction was a targeted measure which did not apply to transactions with other banks. That must mean, and would certainly have conveyed to Parliament, either (i) that Bank Mellat was knowingly collaborating in transactions related to the Iranian programmes, or at least turning a blind eye to them, or else (ii) that Bank Mellat, even on the footing that it was acting in good faith had unacceptably low standards of customer due diligence, which made it especially liable to let through such transactions. The existence of special problems at Bank Mellat was also a substantial part of the justification put forward in the more detailed explanation given in Mr Robertson in his witness statement. Unfortunately, it was the part which the judge did not accept. The judge has found that Bank Mellat had a conscientiously applied policy of not providing banking facilities and banking services to entities identified in the United Nations list as being connected to the Iranian weapons programmes. He has found that it wound down and then terminated its relationship with Novin once it had been added to the list, and that an investigation into Doostan had thrown up nothing unusual or suspicious. When (after the hearing before Mitting J) Doostan was added to the list of entities connected with the Iranian weapons programmes by the United Nations Security Council, the relationship with them was terminated as it had been in Novins case. The judge made no finding about the inadequacy of Bank Mellats controls. Neither the Treasury ministers when justifying the measure to Parliament nor Mr Robertson when explaining it to the court suggested that they were particularly lax. Mr Robertson did say that in general Iranian standards of due diligence were low. This, he said, made them vulnerable to being used to channel illicit finance, and meant that UK financial institutions dealing with them could not assume that they would necessarily have procedures in place to screen out transactions of concern. Mr Robertson did not, however, suggest that Bank Mellat was especially deficient in this respect and the judges finding about their procedures suggests that they were satisfactory, at any rate in relation to the weapons programmes. Against this background, the emphasis of the Treasurys argument underwent a radical shift after the order was challenged towards a justification based on the risk that Bank Mellat might be the unwitting and unwilling channel by which the entities directly involved in the Iranian weapons programmes financed their importation of materials, services and equipment. 24. Mitting J and the Court of Appeal accepted this argument. They considered that the justification for the direction was to be found not in any problem specific to Bank Mellat but in the general problem for the banking industry of preventing their facilities from being used for purposes connected with the Iranian weapons programmes. As the judge pointed out, concealment of the true nature of the imported goods paid for by letters of credit is straightforward. However careful a bank may be, he said, the banks facilities are open to use by entities participating in Irans nuclear weapons programme. For this reason, he thought that the direction represented the only reasonably practicable means of ensuring reliably that the facilities of an Iranian bank with international reach will not be used for the purpose of facilitating the development of nuclear weapons by Iran. However, the direction made no attempt to prevent every Iranian bank with an international reach from facilitating Irans weapons programmes, but only one of them. Indeed, by emphasising that it remained open to international traders to use other banks, the Exchequer Secretary apparently invited them to use instead channels of trade finance many, perhaps all of which would be affected by precisely the same inherent problems as Bank Mellat. 25. A measure may respond to a real problem but nevertheless be irrational or disproportionate by reason of its being discriminatory in some respect that is incapable of objective justification. The classic illustration is A v Secretary of State for the Home Department [2005] 2 AC 68, another case in which the executive was entitled to a wide margin of judgment for reasons very similar to those which I have acknowledged apply in the present case. The House of Lords was concerned with a derogation from the Convention permitting the detention of non nationals whose presence in the United Kingdom was considered by the Home Secretary to be a risk to national security and who could not be deported. The House held that this was not a proportionate response to the terrorist threat which provoked it: see in particular paras 31, 43 44 (Lord Bingham of Cornhill), 132 (Lord Hope of Craighead), and 228 (Baroness Hale of Richmond). No one disputed that the executive had been entitled to regard the applicants as a threat to national security. Plainly, therefore, the legislation in question contributed something to the statutory purpose of protecting the United Kingdom against terrorism, if only by keeping some potential terrorists in prison. It was nevertheless disproportionate, principally because it applied only to foreign nationals. That was relevant for two reasons. One was that the distinction was arbitrary, because the threat posed by comparable UK nationals, to whom the legislation did not apply, was qualitatively similar, although quantitatively smaller. The other was that it substantially reduced the contribution which the legislation could make to the control of terrorism, and made it difficult to suggest that the measure was necessary. This was because if (as the Committee assumed) the threat from UK nationals could be adequately addressed without depriving them of their liberty, no reason was shown why the same should not be true of foreign nationals. As Lord Hope put it at para 132, the distinction raises an issue of discrimination, . but as the distinction is irrational, it goes to the heart of the issue about proportionality also. 26. Every case turns on its own facts, and analogies with other decided cases can be misleading. The suppression of terrorism and the prevention of nuclear proliferation are comparable public interests, but the individual right to liberty engaged in A v Secretary of State for the Home Department can fairly be regarded as the most fundamental of all human rights other than the right to life and limb. The right to the peaceful enjoyment of business assets protected by article 1 of the First Protocol, is not in the same category of human values. But the principle is not fundamentally different. 27. I would not go so far as to say that the Schedule 7 direction in this case had no rational connection with the objective of frustrating as far as possible Irans weapons programmes. On the footing that a precautionary approach is justified, the elimination of any Iranian bank from the United Kingdoms financial markets may well have added something to Irans practical problem in financing transactions associated with those programmes, just as the incarceration of some potential terrorists under Part IV of the Crime and Security Act 2001 may have made some difference to the reduction of terrorism. But I think that the distinction between Bank Mellat and other Iranian banks which was at the heart of the case put to Parliament by ministers was an arbitrary and irrational distinction and that the measure as a whole was disproportionate. This is because once it is found that the problem is not specific to Bank Mellat but an inherent risk of banking, the risk posed by Bank Mellats access to those markets is no different from that posed by the access which comparable banks continued to enjoy. Moreover, the discriminatory character of the direction must drastically reduce its effectiveness as a means of impeding the Iranian weapons programmes. As the Exchequer Secretary herself pointed out, as long as all financial sanctions and relevant risk warnings are complied with, alternative banks may be used. Nothing in the Treasurys case explains why we should accept that it is necessary to eliminate Bank Mellats business in London in order to achieve the objective of the statute, if the same objective can be sufficiently achieved in the case of comparable banks by requiring them to observe financial sanctions and relevant risk warnings. It may well be that other Iranian banks have not been found to number among their clients entities involved in Irans nuclear and ballistic missile programmes. But it follows from the fact that this is a problem inherent in the conduct of international banking business that they are as likely to do so as Bank Mellat. The direction was irrational in its incidence and disproportionate to any contribution which it could rationally be expected to make to its objective. I conclude that that it was unlawful. The Banks procedural grounds 28. I also consider that the Bank is entitled to succeed on the ground that it received no notice of the Treasurys intention to make the direction, and therefore had no opportunity to make representations. 29. The duty to give advance notice and an opportunity to be heard to a person against whom a draconian statutory power is to be exercised is one of the oldest principles of what would now be called public law. In Cooper v Board of Works for the Wandsworth District (1863) 14 CB (NS) 180, the Defendant local authority exercised without warning a statutory power to demolish any building erected without complying with certain preconditions laid down by the Act. I apprehend, said Willes J at 190, that a tribunal which is by law invested with power to affect the property of one Her Majestys subjects is bound to give such subject an opportunity of being heard before it proceeds, and that rule is of universal application an founded upon the plainest principles of justice. In R v Secretary of State for the Home Department Ex p Doody [1994] 1 30. AC 531, 560, Lord Mustill, with the agreement of the rest of the Committee of the House of Lords, summarised the case law as follows: My Lords, I think it unnecessary to refer by name or to quote from, any of the often cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer. It follows that, unless the statute deals with the point, the question whether 31. there is a duty of prior consultation cannot be answered in wholly general terms. It depends on the particular circumstances in which each direction is made. Some directions that might be made under Schedule 7 of the Act could not reasonably give rise to an obligation on the Treasurys part to consult the targeted entity, for example because there was a real problem about the implicit or explicit disclosure of secret intelligence or because prior consultation might frustrate the object of the direction by enabling the targeted entity to evade its operation, notably in a case involving money laundering or terrorism. In this case, the Treasury has raised only two practical difficulties about consulting the Bank in advance of the direction. The first was the difficulty raised by Mr Robertson that it would not have been appropriate to have notified Bank Mellat of the Treasury's intention to make the direction contained in the 2009 Order before 12 October 2009, because this would have provided it with the opportunity to rearrange business relationships or transactions with the UK financial sector to ensure (for example) that they were indirect and so not caught by the prohibitions. The judge rejected this, pointing out that the Bank could just as easily do that after the direction as before. That conclusion, which seems inescapable, has not been challenged on appeal. The second practical difficulty was raised by way of submission in the Court of Appeal and dealt with in the judgment of Maurice Kay LJ, who thought that it had some force. This was the supposed practical difficulty of permitting representations in a situation where there is closed material. I have to say that for my part I am not impressed by this difficulty. In justifying the direction in the course of these proceedings, the Treasury disclosed the gist of the closed material including the provision of banking facilities to Novin and Doostan and their alleged provision to Mr Taghizadeh and Mr Esbati. I cannot see why they should have had any greater difficulty in disclosing before the making of the direction the material that they were quite properly required to disclose afterwards. In my opinion, unless the Act expressly or impliedly excluded any relevant 32. duty of consultation, it is obvious that fairness in this case required that Bank Mellat should have had an opportunity to make representations before the direction was made. In the first place, although in point of form directed to other financial institutions in the United Kingdom, this was in fact a targeted measure directed at two specific companies, Bank Mellat and IRISL. It deprived Bank Mellat of the effective use of the goodwill of their English business and of the free disposal of substantial deposits in London. It had, and was intended to have, a serious effect on their business, which might well be irreversible at any rate for a considerable period of time. Secondly, it came into effect almost immediately. The direction was made on a Friday and came into force at 10.30 a.m. on the following Monday. It had effect for up to 28 days before being approved by Parliament. Third, for the reasons which I have given, there were no practical difficulties in the way of an effective consultation exercise. While the courts will not usually require decision makers to consult substantial categories of people liable to be affected by a proposed measure, the number of people to be consulted in this case was just one, Bank Mellat, and possibly also IRISL depending on the circumstances of their case. I cannot agree with the view of Maurice Kay LJ that it might have been difficult to deny the same advance consultation to the generality of financial institutions in the United Kingdom, who were required to cease dealings with Bank Mellat. They were the addressees of the direction, but not its targets. Their interests were not engaged in the same way or to the same extent as Bank Mellats. Fourth, the direction was not based on general policy considerations, but on specific factual allegations of a kind plainly capable of being refuted, being for the most part within the special knowledge of the Bank. For these reasons, I think that consultation was required as a matter of fairness. But the principle which required it is more than a principle of fairness. It is also a principle of good administration. The Treasury made some significant factual mistakes in the course of deciding whether to make the direction, and subsequently in justifying it to Parliament. They believed that Bank Mellat was controlled by the Iranian state, which it was not. They were aware of a number of cases in which Bank Mellat had provided banking services to entities involved in the Iranian weapons programmes, but did not know the circumstances, which became apparent only when the Bank began these proceedings and served their evidence. The quality of the decision making processes at every stage would have been higher if the Treasury had had the opportunity before making the direction to consider the facts which Mitting J ultimately found. In these circumstances, the only ground on which it could be said that the 33. Treasury was not obliged to consult Bank Mellat in advance, was that such a duty, although it would otherwise have arisen at common law in the particular circumstances of this case, was excluded by the Act in cases such as the present one. It was certainly not expressly excluded. But the submission is that it was impliedly excluded on two overlapping grounds: (i) that the statutory right of recourse to the courts after the making of the direction, which is provided by section 63 of the Act, is enough to satisfy any duty of fairness, or at least must have been intended by Parliament to be enough; and (ii) that consultation is not in law required before the making of subordinate legislation, especially when it is subject to the affirmative resolution procedure. Mitting J and the majority of the Court of Appeal rejected the Banks procedural case on both grounds. 34. the courts. 35. The duty of fairness governing the exercise of a statutory power is a limitation on the discretion of the decision maker which is implied into the statute. But the fact that the statute makes some provision for the procedure to be followed before or after the exercise of a statutory power does not of itself impliedly exclude either the duty of fairness in general or the duty of prior consultation in particular, where they would otherwise arise. As Byles J observed in Cooper v Board of Works for the Wandsworth District (1863) 14 CB(NS) 190, 194, the justice of the common law will supply the omission of the legislature. In Lloyd v McMahon 1987] 1 AC 625, 702 3, Lord Bridge of Harwich regarded it as I shall deal first with the implications of the statutory right of recourse to well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness. Like Lord Bingham in R (West) v Parole Board [2005] 1 WLR 350 at para 29, I find it hard to envisage cases in which the maximum expressio unius exclusio alterius could suffice to exclude so basic a right as that of fairness. 36. It does not of course follow that a duty of prior consultation will arise in every case. The basic principle was stated by Lord Reid forty years ago in Wiseman v Borneman [1971] AC 297, 308, in terms which are consistent with the ordinary rules for the construction of statutes and remain good law: Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard and fast rules. For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation. Cf. Lord Morris of Borth y Gest at 309B C. 37. Leaving aside, for a moment, the fact that the direction was required to be made by statutory instrument subject to Parliamentary approval, it is not in my view implicit in section 63 that the right of recourse to the courts is the sole guarantee of fairness. Nor is it implicit that what the common law would otherwise require to achieve fairness is excluded. I say this for three reasons. The first is that section 63 largely reproduces the rights which a person affected by the direction would have anyway. It confers on him the right to apply to the High Court for an adjudication based on the principles of judicial review, and on the court such powers as could be made on judicial review. The only difference which section 63 makes is that permission is not required for such an application. The express provision of a right of recourse to the courts is essentially a peg on which to hang the various procedural provisions in sections 66 72. It would I think be surprising if the mere fact that the right of persons affected to apply for judicial review had been superseded by a statutory application with substantially the same ambit, were to make all the difference to the content of the Treasurys common law duty of fairness. Whatever else Parliament may have intended by enacting section 63, it cannot in my view have intended to reduce the procedural rights of those affected by the Treasurys orders. Second, the statutory right of recourse will not be sufficient to achieve fairness in every case and is certainly not enough to achieve it in cases like this one, falling under Schedule 7, paragraph 13. This is because a direction may take effect, as it did in this case, immediately or almost immediately and, subject to Parliamentary scrutiny, will remain in effect unless and until it is set aside by the Court. An application under section 63 is likely to require evidence on both sides. With the best will in the world it is unlikely to be determined in less than three months and may take considerably longer even without allowing for appeals. In this case, some seven months elapsed before Mitting J gave judgment. This may not matter much in the case of a direction to exercise heightened customer due diligence or to monitor or report. But it matters a great deal when the direction is in the draconian terms permitted by paragraph 13. A direction to financial institutions to cease business with a designated person is apt to achieve serious and immediate damage while it remains in effect, extending well beyond transactions related to nuclear proliferation. Even if it is set aside, the impact on the designated persons goodwill may be substantial and in some cases irreversible. In some cases, where the decision impugned infringed the applicants Convention rights, damages will be recoverable after the event. Claims for damages are, however, far from straightforward, and loss can be difficult to prove to the standard which the courts have traditionally required. Third, the recognition of a duty of prior consultation would not frustrate the purpose of the statutory scheme, nor would it cut across its practical operation. Schedule 7 directions made in circumstances like these are not the kind of directions whose effectiveness depends on the ability to strike without warning. As the judge pointed out, the kind of avoiding action which a designated person might be minded to take could equally be taken after the direction had been made. 38. to be made in subordinate legislation, subject to Parliamentary approval. 39. The Treasury submit that the legislative form of a Schedule 7 direction takes it out of the area in which the courts can imply a duty of fairness or prior consultation. This is self evident in the case of primary legislation. There is not yet a statute into which such a duty of consultation can be implied. Parliament is not in any event required to be fair. Even if a legitimate expectation has been created, the courts cannot, consistently with the constitutional function of Parliament, control the right of a minister, in his capacity as a member of Parliament, to introduce a bill in either house: R (on the application of Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin.) at para 49; R (on the application of UNISON) v Secretary of State for Health [2010] EWHC 2655 (Admin). I turn, therefore, to the implications of the fact that the direction is required 40. The position in relation to secondary legislation is necessarily different, because a statutory instrument is made under powers conferred by statute. These powers are accordingly subject to whatever express or implied limitations or conditions can be derived from the parent Act as a matter of construction. In R v Electricity Commissioners Ex p London Electricity Joint Committee Company (1920) Limited [1924] 1 KB 171, 208, Lord Atkin observed at a very early stage in the development of public law that he knew of no authority which compels me to hold that a proceeding cannot be a judicial proceeding subject to prohibition or certiorari because it is subject to confirmation or approval, even where the approval has to be that of the Houses of Parliament. It has sometimes been suggested that this applies only where the ground of objection to a statutory instrument is that it is wholly outside the power conferred by the Act. This was the view expressed by Lord Jauncey and affirmed by the Inner House in City of Edinburgh District Council v Secretary of State for Scotland 1985 SC 261. He considered that where Parliament had reserved the right to consider the merits (as opposed to the vires) of a statutory instrument, it was not open to the courts to review their rationality or their procedural fairness. 41. I do not think that this distinction is sustainable. In F. Hoffman La Roche and Co v Secretary of State for Trade and Industry [1975] AC 295, the applicants objected to a statutory instrument under the Monopolies and Mergers Act 1965 regulating the prices of their medicines, which had been approved by Parliament under the affirmative resolution procedure. The relevant power was to make orders giving effect to a report of the Monopolies Commission, which the applicants alleged was vitiated by a failure to observe the rules of natural justice. The issue was about the availability of an injunction enforcing the order in circumstances where the Secretary of State was not prepared to give an undertaking in damages. Moreover, it is fair to say that the applicants case was that the Commissions report was invalid for procedural reasons, and therefore that there was no report on which the Secretary of State could found any power to make the order. But Lord Diplock considered the status of the order generally, at 365: In constitutional law a clear distinction can be drawn between an Act of Parliament and subordinate legislation, even though the latter is contained in an order made by statutory instrument approved by resolutions of both Houses of Parliament. Despite this indication that the majority of members of both Houses of the contemporary Parliament regard the order as being for the common weal, I entertain no doubt that the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the previous Act of Parliament under which the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects). 42. In R (Asif Javed) v Secretary of State for the Home Department [2002] QB 129, the Court of Appeal held that it was entitled to review the rationality of a ministers exercise of a statutory power to designate Pakistan by order as a country in which there was in general no serious risk of persecution, notwithstanding that the order had been laid before Parliament in draft under the affirmative resolution procedure and the position in Pakistan to some extent discussed. Lord Phillips of Worth Matravers MR, echoing the language of Atkin LJ, said at para 51 that there was no principle of law that circumscribes the extent to which the court can review an order that has been approved by both Houses of Parliament under the affirmative resolution procedure. The order was declared to be unlawful. 43. These statements seem to me to be correct in principle. If a statutory power to make delegated legislation is subject to limitations, the question whether those limitations have been observed goes to the lawfulness of the exercise of the power. It is therefore reviewable by the courts. In principle, this applies as much to an implied limitation as to an express one, and as much to a limitation on the manner in which the power may be exercised as it does to a limitation on the matters which are within the scope of the power. The reason why this does not intrude upon the constitutional primacy of Parliament is not simply that delegated legislation, however approved, does not have the status of primary legislation. It is that a statutory instrument is the instrument of the minister (or other decision maker) who is empowered by the enabling Act to make it. The fact that it requires the approval of Parliament does not alter that. The focus of the court is therefore on his decision to make it, and not on Parliaments decision to approve it. If that is true (as I think it is) as a matter of general principle, it is particularly true of the statutory judicial review for which section 63 of the Counter Terrorism Act provides. Under section 63(2) the application is to set aside a decision of the Treasury. The relevant decision of the Treasury is the decision under Schedule 7, paragraph 1 to give a direction. If the court sets aside that decision, it is then required by section 63(4) to quash the resulting order. 44. Where the courts have declined to review the procedural fairness of statutory orders on the ground that they have been subject to Parliamentary scrutiny, they have not generally done so on the ground that Parliamentary scrutiny excludes the duty of fairness in general or the duty of prior consultation in particular. These decisions have generally been justified by reference to three closely related concepts which for my part I would not wish to challenge or undermine in any way. First, when a statutory instrument has been reviewed by Parliament, respect for Parliaments constitutional function calls for considerable caution before the courts will hold it to be unlawful on some ground (such as irrationality) which is within the ambit of Parliaments review. This applies with special force to legislative instruments founded on considerations of general policy. Second, there is a very significant difference between statutory instruments which alter or supplement the operation of the Act generally, and those which are targeted at particular persons. The courts originally developed the implied duty to consult those affected by the exercise of statutory powers and receive their representations as a tool for limiting the arbitrary exercise of statutory powers for oppressive objects, normally involving the invasion of the property or personal rights of identifiable persons. Cooper v Board of Works for the Wandsworth District (1863) 14 CB (NS) 180 was a case of this kind, and when Willes J (at 190) described the duty to give the subject an opportunity to be heard as a rule of universal application, he was clearly thinking of this kind of case. Otherwise the proposition would be far too wide. While the principle is not necessarily confined to such cases, they remain the core of it. By comparison, the courts have been reluctant to impose a duty of fairness or consultation on general legislative orders which impact on the population at large or substantial parts of it, in the absence of a legitimate expectation, generally based on a promise or established practice. Third, a court may conclude in the case of some statutory powers that Parliamentary review was enough to satisfy the requirement of fairness, or that in the circumstances Parliament must have intended that it should be. It is particularly likely to take this view where the measure impugned is a general legislative measure. The reason is that when we speak of a duty of fairness, we are speaking not of the substantive fairness of the measure itself but of the fairness of the procedure by which it was adopted. Parliamentary scrutiny of general legislative measures made by ministers under statutory powers will often be enough to satisfy any requirement of procedural fairness. The same does not necessarily apply to targeted measures against individuals. 45. These considerations lie behind the judgments in the Court of Appeal in R on the application of BAPIO Action Limited v Secretary of State for the Home Department [2007] EWCA Civ. 1139, which both Mitting J and Maurice Kay LJ in the Court of Appeal placed at the forefront of their reasoning. BAPIO was a judicial review of the decision of the Home Secretary to amend the Immigration Rules without prior consultation so as to abolish permit free training for doctors without a right of abode in the United Kingdom. There were transitional provisions for those who had already begun their training under the old rules, which protected almost all those who might have claimed to have a legitimate expectation based on the old rules. Sedley LJ, who delivered the leading judgment, began by referring to a dictum of Lord Scarman in Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240. This was a judicial review of the Secretary of States assessment of the proper level of expenditure by a local authority. It was a classic issue of general policy, involving decisions about the use of resources and the level of taxation, potentially affecting every householder in Britain, and quite obviously exceptionally difficult to challenge on rationality grounds. Lord Scarman said, at 250, in a passage that is not always quoted in full: To sum it up, the levels of public expenditure and the incidence and distribution of taxation are matters for Parliament, and, within Parliament, especially for the House of Commons. If a statute, as in this case, requires the House of Commons to approve a ministers decision before he can lawfully enforce it, and if the action proposed complies with the terms of the statute. , it is not for the judges to say that the action has such unreasonable consequences that the guidance upon which the action is based and of which the House of Commons had notice was perverse and must be set aside. For that is a question of policy for the minister and the Commons, unless there has been bad faith or misconduct by the minister. Where Parliament has legislated that the action to be taken by the Secretary of State must, before it is taken, be approved by the House of Commons, it is no part of the judges' role to declare that the action proposed is unfair, unless it constitutes an abuse of power in the sense which I have explained. Sedley LJ rightly pointed out in BAPIO that this reasoning was predicated on the inapt nature of the subject matter public finance for judicial scrutiny, not upon a quasi immunity from judicial review of delegated legislation or rules which have been laid before Parliament. He pointed out that there was no such immunity, and that the Immigration Rules would be reviewable for want of power to make them or for irrationality. Turning to the question whether they were reviewable for procedural unfairness he said this: The real obstacle which I think stands in the appellants' way is the difficulty of propounding a principle which reconciles fairness to an adversely affected class with the principles of public administration that are also part of the common law. These are not based on administrative convenience or potential embarrassment. They arise from the separation of powers and the entitlement of executive government to formulate and reformulate policy, albeit subject to such constraints as the law places upon the process and the product. One set of such constraints in modern public law are the doctrines of legitimate expectation, both procedural and substantive. I agree with this in the cases to which Sedley LJ was referring, namely those in which delegated legislation was an expression of legislative policy. I think that it represents a more nuanced and accurate statement of the law than the more hard edged formulations of Maurice Kay LJ and Rimer LJ in the same case. 46. The present case, however, is entirely different. In point of form, a statutory instrument embodying a Schedule 7 direction is legislation. But, as Megarry J observed in Bates v Lord Hailsham of St. Marylebone [1972] 1 WLR 1373, the fact that an order takes the form of a statutory instrument is not decisive: what is important is not its form but its nature, which is plainly legislative (page 1378). The Treasury direction designating Bank Mellat under Schedule 7, paragraph 13, was not legislative in nature. There is a difference between the sovereigns legislation and his commands. The one speaks generally and impersonally, the other specifically and to nominate persons. As David Hume pointed out in his Treatise of Human Nature (Book III, Part ii, sec 2 6), all civil laws are general, and regard alone some essential circumstances of the case, without taking into consideration the characters, situations and connexions of the person concerned. The Treasury direction in this case was a command. The relevant legislation and the whole legislative policy on which it was based, were contained in the Act itself. The direction, although made by statutory instrument, involved the application of a discretionary legislative power to Bank Mellat and IRISL and nothing else. It was as good an example as one could find of a measure targeted against identifiable individuals. Moreover, as I have pointed out in dealing with the Banks substantive complaints, it singled out Bank Mellat from other Iranian banks on account of the Banks conduct or, in Humes words, its characteristics, situations and connexions. It directly affected the Banks property and business assets. If the direction had not been required to be made by statutory instrument, there would have been every reason in the absence of any practical difficulties to say that the Treasury had a duty to give prior notice to the Bank and to hear what they had to say. In a case like this, is the position any different because a statutory instrument was involved? I think not. That was simply the form which the specific application of this particular legislation was required to take. 47. With a measure such as this one, targeted against designated persons, it is not possible to say that procedural fairness is sufficiently guaranteed by Parliamentary scrutiny or to suppose that Parliament in enacting the Counter Terrorism Act ever thought it was. The justification for the direction depends on the particular character and conduct of the designated person, about which Parliament cannot have the same plenitude of information as it is assumed to have about matters of general legislative policy. Many of the essential facts about the particular target will be peculiarly within the designated persons knowledge, and even those known to the Treasury will not necessarily be publicly disclosed. 48. In some cases, the procedure might be regarded as fair even in the case of a targeted measure, and even if the target did not have an opportunity to be heard before the order was made, if he was in a position to make effective representations in the course of the passage of the affirmative resolutions through Parliament. But this was hardly a realistic alternative to prior consultation in the present case. In the first place, the Bank was not in a position to defend itself against the Treasurys allegation that they had had dealings with entities involved in the Iranian weapons programmes until the Treasury identified the entities that they were referring to. They did not identify them in the course of justifying the order in Parliament. They were first identified in correspondence with the Banks solicitors on 3 December 2009, after the present proceedings had been begun and a month after the Parliamentary processes were complete. Second, unlike other statutory instruments made under the Counter Terrorism Act, an order giving effect to a Schedule 7 direction is not laid before Parliament in draft before taking effect. It may and in this case did take effect upon being made and was capable of continuing in effect for up to 28 days in advance of an affirmative resolution. This is quite long enough to achieve substantial damage to the interests of the designated person. Third, Schedule 7, paragraph 14(5), expressly excludes the application of the hybrid instrument procedure to such an order. The hybrid instrument procedure is a procedure under the standing orders of the House of Lords which applies to certain instruments directly affecting private or local interests in a manner different from other persons or interests in the same category. Its effect is to allow the House to receive petitions from parties affected. The result is to exclude any right which a designated person might otherwise have had to make representations by petition as part of the formal Parliamentary process. In my view, these factors underline the value and the importance in the interests of fairness of the Treasury giving the Bank an opportunity to be heard before the order was made. 49. I conclude that the Treasurys direction designating Bank Mellat was unlawful for want of prior notice to them or any procedure enabling them to be heard in advance of the order being made. This makes it unnecessary to consider the more difficult question whether a duty of prior consultation arose by virtue of Article 6 of the European Convention on Human Rights or Article 1 of the First Protocol. Conclusion I would allow the appeal, set aside the decision of the Treasury to make the 50. direction and quash the order giving effect to it. LORD REED (dissenting) Introduction 51. These proceedings are brought by Bank Mellat under section 63(2) of the Counter Terrorism Act 2008 (the 2008 Act). In terms of section 63(1)(c), the section applies to any decision of the Treasury in connection with the exercise of any of their functions under Schedule 7 to the 2008 Act. Section 63(3) provides that in determining whether the decision should be set aside the court is to apply the principles applicable on an application for judicial review. In terms of section 63(5), if the court sets aside the decision of the Treasury to make an order under Schedule 7, it must quash the order. 52. Bank Mellat seeks to have a decision of the Treasury to make an order under Schedule 7 set aside, and the order quashed. Bank Mellat relies on a number of common law grounds of judicial review, including procedural unfairness and unreasonableness, and maintains that the order is also ultra vires since it fails to comply with paragraph 9(6) of Schedule 7, which stipulates that the requirements imposed by a direction under that schedule must be proportionate. Bank Mellat further contends that the making of the order was in any event unlawful by virtue of section 6 of the Human Rights Act 1998. The latter contention is based on the argument that there has been a breach of the procedural standards imposed by article 6 of the Convention and article 1 of Protocol No 1 (A1P1), and in addition that the order constitutes a disproportionate interference with Bank Mellats enjoyment of its possessions, contrary to A1P1. Procedural fairness 53. In relation to the issues of procedural fairness arising under the common law, there is much in Lord Sumptions judgment with which I respectfully agree. In particular, I agree that the fact that the decision challenged in these proceedings concerned the giving of a direction in the form of a statutory instrument, which had to be approved by Parliament within 28 days in order to remain in force, does not in itself necessarily exclude the application of common law standards of procedural fairness. I also agree that there is no fundamental distinction in principle between the jurisdiction of the court to review the legality of a statutory instrument on procedural and other grounds: see in particular F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 365 per Lord Diplock. 54. I also agree with Lord Sumption that the reason why a statutory instrument lies within the scope of the courts supervisory jurisdiction, whereas an Act of Parliament does not, is that the making of a statutory instrument is an act of the executive, exercising limited powers. This point was explained by Sir John Donaldson MR in R v Her Majestys Treasury, Ex p Smedley [1985] 1 QB 657, 666 667: Furthermore, whilst Parliament is entirely independent of the courts in its freedom to enact whatever legislation it sees fit, legislation by Order in Council, statutory instrument or other subordinate means is in a quite different category, not being Parliamentary legislation. This subordinate legislation is subject to some degree of judicial control in the sense that it is within the province and authority of the courts to hold that particular examples are not authorised by statute, or, as the case may be by the common law, and so are without legal force or effect. A similar explanation was given by Lord Phillips of Worth Matravers MR in R (Asif Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789; [2002] QB 129, para 33. Since the executive is acting under powers conferred by Parliament when it makes a statutory instrument, it can only act within the scope of those powers as determined by the courts. The subject matter of the courts supervision is the lawfulness of the decision taken by the executive: there is no question of judicial supervision of the exercise by Parliament of its power to approve the instrument or to withhold its approval. That distinction is reflected in section 63 of the 2008 Act, which, as I have mentioned, permits an application to be made to set aside the decision of the Treasury. If the court sets aside that decision, it then quashes the resulting order, but it does not review anything done by Parliament. 55. Where I part company with Lord Sumption and the majority of the court is in relation to the application of the common law principles of procedural fairness in the context of Schedule 7 to the 2008 Act. In relation to that matter, I agree with the judgment of Lord Hope, and wish to make only a few additional observations in view of the implications of the contrary approach. I also agree with Lord Hopes judgment in relation to the issues of procedural fairness arising under the Human Rights Act. 56. Lord Hope has described the provisions of Part 4 of Schedule 7 to the 2008 Act. Parliament has laid down in those provisions a detailed scheme for the making of orders such as the order with which this appeal is concerned. That scheme contains no provision entitling the person designated in the order to be given a hearing before the order is made by the Treasury or approved by Parliament. The absence of such provision does not in itself automatically entail that Parliament intended that there should be no such entitlement, but in the context of such detailed procedural provisions it is a pointer towards such an intention: if Parliament had intended that there should be consultation prior to the making of an order, one would expect that also to have been specified in the provisions. The inference that Parliament did not intend that there should be such an entitlement derives support from a number of other considerations. 57. First, it is readily understandable that no such entitlement should be provided, given the subject matter and the context in which the decision making function is exercised. Part 1 of Schedule 7 lays down in paragraph 1 the conditions which must be met in relation to a country before the Treasury may give a direction under that schedule. Put shortly, they are that the Financial Action Task Force (FATF: an inter governmental body founded by the G7 countries which sets standards for controls to prevent money laundering and the financing of terrorism) has advised that measures should be taken in relation to the country because of the risk of terrorist financing or money laundering activities being carried on there or by its government or persons resident or incorporated there (paragraph 1(2)), or the Treasury reasonably believe that there is such a risk (paragraph 1(3)), or the Treasury reasonably believe that the development or production of nuclear, radiological, biological or chemical weapons in the country poses a significant risk to the national interests of the United Kingdom (paragraph 1(4)). In the present case, it is paragraph 1(4) which is relevant. Given the nature of those conditions, prior consultation with the persons who may be affected by a direction, including for example the persons believed to be involved in terrorism, is liable to be inappropriate or impossible: it may, for example, be excluded by a need for action to be taken urgently in the national interest. That factor is reflected in the provision for the order to have effect in advance of Parliamentary approval: paragraph 14(2)(b). 58. The scope for meaningful representations by the designated person is also liable to be limited by the impossibility of disclosing, other than in broad outline, the basis upon which the conditions laid down in paragraphs 1(3) or (4) are considered to be satisfied. That factor is reflected in the provisions of sections 66 to 68 in respect of proceedings under section 63, which allow for closed material procedure. Parliament has made no provision for any analogous procedure before the order has been made or approved. In some circumstances, prior consultation could in addition reduce the 59. practical effectiveness of the requirements imposed under paragraph 13 of Schedule 7, by affording the designated person an opportunity to take avoidance action. This risk is discounted by Lord Sumption, as it was by Mitting J, but I am less confident that it can be entirely disregarded. Part of Bank Mellats complaint in the present case, for example, is that the effect of the order was to freeze accounts held by it with its UK subsidiary, in which assets of 183m were deposited. Court orders which have the effect of freezing assets are generally granted on an ex parte basis, precisely because they are liable to be ineffective if prior notice is given. 60. Lord Sumptions response to these points is that whether there is a duty of consultation depends on the particular circumstances in which a direction is made. I can see, in principle, that since the requirements of fairness vary from case to case, the need for a particular procedural step can in principle be assessed on a case by case basis. The problem with applying that approach to a statutory scheme however is that it can make it difficult in practice for decision makers (and individuals affected by decisions) to predict what is required by way of procedure in particular cases. In a context in which vital national interests are engaged, such as that in which the powers under Schedule 7 have to be exercised, it is of great importance that the Treasury should be in no doubt as to what is required. Lord Sumption addresses that point by distinguishing between targeted and other measures. That distinction draws attention to a factor of undoubted importance, but it is not the only factor relevant to an assessment of what fairness requires: as Lord Sumption acknowledges, other matters, such as the risk of disclosing intelligence material or jeopardising the effectiveness of the measure, are also relevant. I do not consider that Parliament is likely to have intended that the Treasury should have to undertake such an uncertain assessment of what fairness might require in each individual case before they could act, particularly when it would do so at the risk of judicial review (prior to the making of the order) if their conclusion, for example as to the extent of necessary disclosure, were to be challenged. In practice, that approach would leave the Treasury in an impossible position. As Taylor LJ observed in R v Birmingham City Council, Ex p Ferrero Ltd [1993] 1 All ER 530, 542, when rejecting a similar argument in relation to consumer protection legislation, if the supposed duty to consult were to depend upon the facts and urgency of each case, enforcement authorities would be faced with a serious dilemma. 61. The direction in paragraph 14(5) that the order is not to proceed in Parliament as a hybrid instrument seems to me, in agreement with Lord Hope, to be a further indication of Parliaments intention, since, as Lord Hope has explained, the practical effect of that direction is to exclude the potential application of procedures under which the designated person can participate in the Parliamentary proceedings. I appreciate that the Parliamentary procedure is distinct from the antecedent procedure under which the order is made. It nevertheless appears to me to have some bearing on the point in issue, in that, if it was intended that the designated person should be entitled to participate in the procedure leading to the making of the order, it would make little sense to enact a provision specifically preventing him from participating in the procedure leading to its approval by Parliament. 62. Finally, the provisions of sections 63 and 65 to 68 create a statutory procedure under which any person affected by a decision taken by the Treasury under Schedule 7 is entitled as of right to apply to the courts to have that decision set aside. Those provisions give such persons greater rights than those enjoyed by the ordinary applicant for judicial review (except in Scotland), insofar as the ordinary applicant has to apply for permission to make such an application. The provisions indicate that Parliament intended to ensure judicial protection of the interests of such persons after the decision had been made. In these circumstances, it appears to me that Parliament has by implication 63. excluded any duty to consult the designated person or to allow an opportunity for representations to be submitted before the order is made. There is therefore no room for the application of common law requirements of procedural fairness. No doubt, as Lord Sumption points out, a procedure involving consultation could contribute to good administration by making additional information available to the Treasury. It is however apparent that Parliament has given priority to other competing considerations. It is not the function of the courts to re write the scheme intended by Parliament. The substantive grounds of challenge I also have the misfortune to differ from the majority of the court in relation 64. to the substantive grounds on which the decision is challenged. I set out the reasons for my dissent more fully than I might otherwise have done in view of the importance of the issues, and the fact that my conclusion on this aspect of the case was also reached by all the judges of the lower courts. The relevant legal principles I am largely in agreement with Lord Sumption as to the relevant legal 65. principles: other than in relation to the ratio of A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68, and the issue discussed in paras 123 124, we differ only in relation to the application of the law to the facts. I wish first however to consider two issues which appear to me to be important and which affect the structure of the analysis to be carried out. 66. The first issue, which caused difficulty in the courts below and remains in dispute before this court, is what the principle of proportionality involves: in particular, whether it is aptly expressed in the well known dictum of Lord Clyde in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing [1999] 1 AC 69, 80. It is evident from the difficulties experienced by the lower courts in the present case, and from the differing approaches which they adopted, that some clarification is desirable. 67. The second issue concerns the meaning of paragraph 9(6) of Schedule 7 to the 2008 Act. This issue also caused difficulty in the courts below and was in dispute before this court. The provision stipulates that the requirements imposed by a direction under Schedule 7 must be proportionate having regard to the advice received from the FATF under paragraph 1(2) of Schedule 7 or, as the case may be, the risk mentioned in paragraph 1(3) or (4) to the national interests of the United Kingdom. The question is whether the requirement imposed by paragraph 9(6) is the same as the principle of proportionality as understood in the context of Convention rights. The latter principle is of course relevant to the question whether the decision of the Treasury was incompatible with A1P1 and therefore unlawful by virtue of section 6(1) of the Human Rights Act. The concept of proportionality 68. The idea that proportionality is an aspect of justice can be traced back via Aquinas to the Nicomachean Ethics and beyond. The development of the concept in modern times as a standard in public law derives from the Enlightenment, when the relationship between citizens and their rulers came to be considered in a new way, reflected in the concepts of the social contract and of natural rights. As Blackstone wrote in his Commentaries on the Laws of England, 9th ed (1783), Vol 1, p 125, the concept of civil liberty comprises natural liberty so far restrained by human laws (and not farther) as is necessary and expedient for the general advantage of the public. The idea that the state should limit natural rights only to the minimum extent necessary developed in Germany into a public law standard known as Verhltnismigkeit, or proportionality. From its origins in German administrative law, where it forms the basis of a rigorously structured analysis of the validity of legislative and administrative acts, the concept of proportionality came to be adopted in the case law of the European Court of Justice and the European Court of Human Rights. From the latter, it migrated to Canada, where it has received a particularly careful and influential analysis, and from Canada it spread to a number of other common law jurisdictions. 69. Proportionality has become one of the general principles of EU law, and appears in article 5(4) of the Treaty on European Union (TEU). 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 and others (Case C 331/88) [1990] ECR I 4023, the European Court of Justice stated (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 upon the context. 70. As I have mentioned, proportionality is also a concept applied by the European Court of Human Rights. As the court has often stated, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights (see eg Sporrong and Lnnroth v Sweden (1982) 5 EHRR 35, para 69). The court has described its approach to striking such a balance in different ways in different contexts, and in practice often approaches the matter in a relatively broad brush way. In cases concerned with A1P1, for example, the court has often asked whether the person concerned had to bear an individual and excessive burden (see eg James v United Kingdom (1986) 8 EHRR 123, para 50). The intensity of review varies considerably according to the right in issue and the context in which the question arises. Unsurprisingly, given that it is an international court, its approach to proportionality does not correspond precisely to the various approaches adopted in contracting states. 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 upon 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. 72. The approach to proportionality adopted in our domestic case law under the Human Rights Act has not generally mirrored that of the Strasbourg court. In accordance with the analytical approach to legal reasoning characteristic of the common law, a more clearly structured approach has generally been adopted, derived from case law under Commonwealth constitutions and Bills of Rights, including in particular the Canadian Charter of Fundamental Rights and Freedoms of 1982. The three limb test set out by Lord Clyde in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80 has been influential: whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective. De Freitas was a Privy Council case concerned with fundamental rights under the constitution of Antigua and Barbuda, and the dictum drew on South African, Canadian and Zimbabwean authority. The three criteria have however an affinity to those formulated by the Strasbourg court in cases concerned with the requirement under articles 8 to 11 that an interference with the protected right should be necessary in a democratic society (eg Jersild v Denmark (1994) Publications of the ECtHR Series A No 298, para 31), provided the third limb of the test is understood as permitting the primary decision maker an area within which its judgment will be respected. 73. The De Freitas formulation has been applied by the House of Lords and the Supreme Court as a test of proportionality in a number of cases under the Human Rights Act. It was however observed in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, para 19 that the formulation was derived from the judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103, and that a further element mentioned in that judgment was the need to balance the interests of society with those of individuals and groups. That, it was said, was an aspect which should never be overlooked or discounted. That this aspect constituted a fourth criterion was noted by Lord Wilson, with whom Lord Phillips and Lord Clarke agreed, in R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621, para 45. 74. 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 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, and the fourth reflects the additional observation made in Huang. I have formulated the fourth criterion in greater detail than Lord Sumption, 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 Elections Bd v Socialist Workers Party (1979) 440 US 173, 188 189); 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. In relation to the fourth criterion, there is a meaningful distinction to be 76. 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). Paragraph 9(6) of Schedule 7 77. A direction under Schedule 7 may only be given to a credit or financial institution that is a United Kingdom person or is acting in the course of a business carried on by it in the United Kingdom: paragraphs 3 and 4. The effect of the direction is to impose requirements upon such an institution or institutions. Under paragraph 9(1), the requirements may apply in relation to transactions or business relationships with (a) a person carrying on business in the country [in respect of which the conditions mentioned in paragraph 1 are satisfied]; (b) the government of the country; (c) a person resident or incorporated in the country. Under paragraph 9(2), the requirements may be imposed in relation to (a) a particular person within sub paragraph (1) [known as a designated person: paragraph 9(3)], (b) any description of persons within that sub paragraph, or (c) all persons within that sub paragraph. Under paragraph 9(4), different types of requirement may be imposed upon the institution or institutions: enhanced customer due diligence in relation to transactions or business relationships with a designated person, ongoing monitoring of such relationships, systematic reporting in respect of such transactions or relationships, or limiting or ceasing such transactions or relationships. Under paragraph 9(5), a direction may make different provision in relation to different descriptions of designated person and in relation to different descriptions of transaction or relationship. It is in that context that paragraph 9(6) provides: The requirements imposed by a direction must be proportionate having regard to the advice mentioned in paragraph 1(2) or, as the case may be, the risk mentioned in paragraph 1(3) or (4) to the national interests of the United Kingdom. In the present case, Mitting J proceeded on the basis that the word 78. proportionate was used in paragraph 9(6) in the sense in which it is used in Strasbourg and Luxembourg. He formed that view on the basis that proportionality had been introduced into English law mainly via Luxembourg and Strasbourg, and the 2008 Act would have been intended to be compliant with Convention rights. The Court of Appeal proceeded on the same basis. Lord Sumption proceeds, as I understand his judgment, on the basis that paragraph 9(6) requires there to be a relationship between the requirements imposed by the direction and the risk which justifies the making of the direction which is rational and proportionate, the latter term importing the test of proportionality set out in De Freitas, as subsequently developed in Huang. I agree with that interpretation, but think it worth spending a moment to explain why. 79. Paragraph 9(6) does not appear to me to be concerned with either EU law or the Convention. There is no necessity for Parliament to have replicated the requirements of EU law in so far as they might be relevant, bearing in mind that the power to give a direction is not exercisable in relation to an EEA state: paragraph 1(5). To the extent that the requirements of a direction might interfere with the exercise of a freedom protected by EU law, the EU rights of the person affected would in any event be directly effective. Nor is there any reason for Parliament to have singled out and replicated the proportionality element of the test of compatibility with Convention rights. That element would in any event apply along with the other elements of the test, in the event that a direction interfered with Convention rights, by virtue of the Human Rights Act. 80. As Lord Sumption has explained, paragraph 9(6) appears from its terms to be concerned with the relationship between the requirements imposed by a direction, on the one hand, and the risk to the national interests of the United Kingdom, on the other hand. The issue is whether the requirements are proportionate to the risk. That is consistent with the context in which the provision appears: the remainder of paragraph 9 sets out the various types of requirement which can be imposed upon the person to whom a direction is given, some more onerous than others. The focus of paragraph 9(6) is therefore not upon the relationship between the requirements and their effect upon the designated persons Convention rights. So, in the present case, the central question arising under paragraph 9(6) is whether the requirements imposed on the United Kingdom financial sector are proportionate having regard to the risk posed to the United Kingdoms national interests by nuclear proliferation in Iran. 81. If there were otherwise any doubt about the problem which paragraph 9(6) was intended to address, the Parliamentary history appears to me to resolve it. When the provisions in Schedule 7 were introduced, at Report Stage in the House of Lords, there was no provision in the form of paragraph 9(6). Concern was expressed about the financial cost of compliance with requirements which would be incurred by United Kingdom businesses to which directions were given (Hansard (HL Debates), 11 November 2008, col 585). The Financial Secretary to the Treasury responded to that concern at the end of the debate by stating that Ministers would seek to balance the need to take effective action against the potential impact on United Kingdom business, and gave an undertaking that the Government would table an amendment at Third Reading to include a provision giving effect to that approach (col 593). Paragraph 9(6) was subsequently tabled in accordance with that undertaking (Hansard (HL Debates), 17 November 2008, col 933). The potential problem that paragraph 9(6) was intended to guard against therefore had nothing to do with European law. 82. In stipulating that the requirements must be proportionate having regard to the risk, paragraph 9(6) reflects a principle which has roots in the common law: there are a number of cases where administrative acts of an oppressive or penal character have been quashed as being disproportionate, a well known example being R v Barnsley Metropolitan Borough Council, Ex p Hook [1976] 1 WLR 1052. In the context of legislation enacted in 2008, however, it seems to me that Parliament can be taken to have been aware of the development of a more structured approach to proportionality by United Kingdom courts, in particular following De Freitas, and to have intended that that approach should be applied. I would therefore interpret paragraph 9(6) as stipulating that the requirements must be proportionate to the risk in the sense that they meet the second, third and fourth criteria listed in para 74 (it being implicit in the legislation itself that the first criterion is met). Applying the proportionality test 83. There is no doubt that the objective of the order to reduce access by entities involved in Irans nuclear weapons programme to the UK financial sector, and thereby inhibit the development of nuclear weapons by Iran and the consequent risk to the national interests of this country is sufficiently important to justify an interference with Bank Mellats enjoyment of its possessions. The question under paragraph 9(6) of Schedule 7, and under the Human Rights Act, is whether the remaining three criteria of proportionality are satisfied. Lord Sumption identifies the central issue as being whether the singling out of Bank Mellat has been justified, and considers that issue in the context of the second and, more briefly, the third and fourth criteria: whether the measure is rationally connected to its objective, whether a less intrusive measure would have been equally effective, and whether the measure is proportionate having regard to its effects upon Bank Mellats rights. I shall proceed on the same basis. Before considering these issues, it may however be helpful to recall some aspects of the relevant background. The background 84. On 23 December 2006 the UN Security Council adopted Resolution 1737, which imposed a range of sanctions targeted at Irans nuclear and ballistic missile programmes. These included, in paragraph 12, a requirement that all States should freeze the funds owned or controlled by designated persons and entities and of other persons and entities subsequently designated as being involved in Irans nuclear or ballistic missile activities, and ensure that funds and financial assets were prevented from being made available by persons or entities within their territories to or for the benefit of those persons or entities. The UK gave effect to the resolution by the Iran (Financial Sanctions) Order 2007 (SI 2007/281) and directions made under that order. 85. On 24 March 2007 the Security Council adopted Resolution 1747, which designated Novin Energy Company (Novin), Bank Sepah and its subsidiary Bank Sepah International plc as such entities. The resolution stated in particular that Novin operated within the Atomic Energy Organisation of Iran (AEOI) and had transferred funds on its behalf to entities associated with Irans nuclear programme. Bank Sepah and Bank Sepah International were said to provide support for Irans Aerospace Industries Organisation (AIO) and its subordinates, two of which had been designated under Resolution 1737. 86. On 19 April 2007 the EC Council adopted Regulation 423/2007/EC (OJ L 103/1) concerning restrictive measures against Iran. Article 7(1) required all funds and economic resources held or controlled by persons designated under Resolution 1737 to be frozen. Those persons were listed in Annex IV. Article 7(2) imposed a similar requirement in respect of persons listed in Annex V to the regulation. The regulation was amended the following day, by Regulation 441/2007/EC (OJ L 104/28) to add a number of entities, including Novin, Bank Sepah and Bank Sepah International, to those listed in Annex IV. 87. On 25 October 2007 the assets of Bank Mellat and its subsidiaries in the United States were frozen, and US persons were prohibited from engaging in transactions with them, as the result of a designation by the US Treasury Departments Office of Foreign Assets Control. The designation was made on the basis that Bank Mellat provided banking services in support of Irans nuclear programme. 88. On 3 March 2008 the Security Council adopted Resolution 1803, paragraph 10 of which called upon all states to exercise vigilance over the activities of financial institutions in their territories with banks domiciled in Iran, and in particular with Bank Melli and Bank Saderat and their subsidiaries. 89. On 23 June 2008 the EC Council adopted Decision 2008/475/EC (OJ L 163/29), which added a number of persons to those listed in Annex V of Regulation 423/2007. They included Bank Melli and its subsidiaries, including Melli Bank plc. The reason given was that these entities had been providing or attempting to provide financial support for companies which were involved in, or procured goods for, Irans nuclear and missile programmes, including Novin. In particular, Bank Melli was said to have provided a range of financial services to such companies, including opening letters of credit and maintaining accounts. 90. On 10 November 2008 the EC Council adopted Regulation 1110/2008/EC (OJ L 300/1), which imposed obligations, including requirements of vigilance and reporting requirements, upon financial institutions in the EC in relation to their activities with financial institutions domiciled in Iran, and in particular with Bank Saderat. Similar obligations, backed by criminal penalties, were also imposed upon Bank Saderat branches and subsidiaries in the EC. 91. The provisions of the 2008 Act concerned with financial restrictions, including Schedule 7, were introduced during the passage of the Bill following a statement issued by the FATF on 16 October 2008, which called on its members, and urged all jurisdictions, to strengthen preventive measures to protect their financial sectors from risks posed by Iran, as a result of its failure to introduce measures to address the risk of terrorist financing. As I have explained, Regulation 1110/2008/EC was adopted at about the same time. Rational connection 92. 291 Wilson J observed: In Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211, The Oakes inquiry into rational connection between objectives and means to attain them requires nothing more than showing that the legitimate and important goals of the legislature are logically furthered by the means government has chosen to adopt. 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. The manner in which the courts should determine whether that test is satisfied requires careful consideration. 93. Legislation 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. In the Canadian case of RJR MacDonald Inc v Canada [1995] 3 SCR 199, for example, concerned with a legislative ban on tobacco advertising, expert evidence was led at a lengthy trial, following which the trial judge concluded that there was no reliable evidence to support the policy of banning advertising, and that there was therefore no rational connection between the ban and its objective. That conclusion was however overturned by the Supreme Court. McLachlin J, giving the judgment of the majority, stated (at para 153) that in order to establish a rational connection, the government must show a causal connection between the infringement and the benefit sought on the basis of reason or logic. She added (at para 154) that, where legislation was directed at changing human behaviour, the court had been prepared to find a causal connection on the basis of reason or logic, without insisting on proof of a relationship between the infringing measure and the legislative objective. La Forest J, giving the other principal judgment, considered that a common sense connection was sufficient to satisfy the requirement that there be a rational connection (para 86). 94. These observations found an echo, in a not dissimilar context, in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437; [2012] QB 394, concerned with a ban on the sale of tobacco from vending machines. It was argued, in the context of the proportionality of the restriction on the free movement of goods under EU law, that the ban was not suitable to achieve the objective of reducing tobacco consumption, since tobacco products could still be bought over the counter. All the members of the Court of Appeal emphasised the responsibility of elected government for the protection of public health, and the consequent need to allow a broad margin of appreciation to the decision maker. Lord Neuberger of Abbotsbury MR observed that, in considering whether the aim of the ban was achieved, at least arguably and to some extent, the court should be careful to avoid substituting itself for the decision maker or being over particular about the reasoning or evidence relied on by the decision maker (paras 232 233). He commented that the evidence and analysis in the explanatory memorandum and impact assessment which had been laid before Parliament with the draft regulations were neither very convincing nor very telling, not least because of the absence of any evidence to suggest that the ban would have any effect (para 236). Nevertheless, the Secretary of States assessment or belief that the ban would lead to some reduction in smoking did not seem unreasonable: The unsatisfactory basis for the figures and analysis in the [impact assessment] does not, in the absence of any other factor, justify concluding that the ban is disproportionate, given the wide margin of appreciation to be accorded. If one takes away one source of cigarettes, particularly one that involves no control over the identity of the purchaser, it is scarcely unreasonable to conclude that it will reduce consumption of cigarettes to some extent, although that conclusion is not one which necessarily follows ineluctably. Like La Forest and McLachlin JJ in the RJR MacDonald case, Lord Neuberger MR treated common sense and logic (paras 238, 242 and 244) as a sufficient basis for finding that the ban was rational. In the parallel litigation in the Court of Session, the court also referred to common sense as a basis for concluding that the legislation was apt to achieve its objective (Sinclair Collis Ltd v Lord Advocate 2013 SLT 100, para 62). 95. A more problematical case is that of A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68: a case which is particularly relevant to the decision of the majority in the present case, as appears from Lord Sumptions judgment. The issue was whether a derogation from article 5(1) of the Convention, so as to permit legislation providing for the indefinite detention without trial of foreign terrorist suspects, was strictly required by the public emergency represented by the threat of terrorist attacks in the United Kingdom. A majority of the House of Lords found that the derogation was not strictly required, since the legislation was disproportionate and was in addition discriminatory, contrary to article 14 of the Convention. The latter finding need not be considered in the present context, but the finding in relation to proportionality is of importance. 96. Lord Bingham of Cornhill identified the central problem (at para 43) as being: that the choice of an immigration measure to address a security problem had the inevitable result of failing adequately to address that problem (by allowing non UK suspected terrorists to leave the country with impunity and leaving British suspected terrorists at large) while imposing the severe penalty of indefinite detention on persons who, even if reasonably suspected of having links with Al Qaeda, may harbour no hostile intentions towards the United Kingdom. Lord Bingham did not explicitly apply the three De Freitas criteria or the fuller Oakes analysis (to which he referred at para 30), but in the passage cited appears to balance the severity of the effects on the rights of the persons detained against the importance of the objective: that is to say, step four in the analysis. Lord Hope of Craighead focused on the question whether there was some other way of dealing with the emergency which would not be incompatible with the Convention rights (para 124): in other words, a test of necessity. Lord Scott of Foscote also considered that the legislation failed to meet the necessity test, since it had not been shown that monitoring arrangements or movement restrictions would not suffice (para 155). That was also the approach adopted by Lord Rodger of Earlsferry, who stated that, proceeding on the same basis as the Government and Parliament, that detention of the British suspects was not strictly required to meet the threat that they posed to the life of the nation, the detention of the foreign suspects could not be strictly required either to meet the comparable threat that they posed (para 189). Baroness Hale of Richmond also focused on the question of necessity, observing that if it was not necessary to lock up the nationals it could not be necessary to lock up the foreigners (para 231). Lord Carswell agreed with Lord Bingham. 97. I have spent some time considering the basis of the decision in A v Secretary of State for the Home Department in order to clarify what the case did not decide. First, it did not decide that the legislation lacked a rational connection to its objective because it would be only partially effective. As in Sinclair Collis, the legislation would have made a contribution to the achievement of its objective. Secondly, the case did not decide that the legislation lacked a rational connection to its objective because it was discriminatory. The difference in treatment of British and foreign suspects was relevant to proportionality because it bore on the question whether the interference with the rights of the foreign suspects had been shown to be necessary. 98. In the present case, it is apparent that any judicial assessment of the rationality of a direction under Schedule 7 must recognise the need to allow the Treasury a wide margin of appreciation, for the reasons explained by Lord Sumption at para 21. 99. Lord Sumption identifies two flaws in the reasoning which led the courts below to conclude that the requirements imposed by the direction were rational and proportionate: first, their conclusion did not explain, let alone justify, the singling out of Bank Mellat; and secondly, the justification which they found was not the one which Ministers advanced before Parliament, and was in some respects inconsistent with it. The justification for making the order 100. Subject to one qualification, Mitting J accepted the Treasurys explanation of why the order had been made, as set out in paras 73 to 75 of a witness statement made by Mr James Robertson, who had been since December 2008 the head of the Financial Crime Team in the International Finance Directorate of the Treasury. 101. In his statement, Mr Robertson explained that, in exercising their functions under Schedule 7 of the 2008 Act, the Treasury worked in close collaboration with a number of government departments and agencies, including in particular those concerned with intelligence. He explained the serious risk to UK national interests which would result from Irans development of nuclear weapons: the consequent destabilising effect upon a region where the UK has personnel and installations, the potential disruption of global oil and gas supplies, the economic consequences of such disruption, the possibility of an attack on Iran, and the potential implications of such an attack. 102. Mr Robertson also explained that it was considered that Irans banking system provided many of the financial services which underpinned its nuclear and ballistic missile programmes. Irans banking system lacked the controls which existed in most other countries to prevent money laundering and the financing of terrorism, and which would also serve to identify transactions related to Irans nuclear and ballistic missile programmes. As a consequence, Iranian financial institutions were vulnerable to being used to channel illicit finance. This had been highlighted in several reports by the FATF. As a result, UK financial institutions dealing with Iranian entities could not rely on such checks having taken place in Iran. This problem was reflected in the targeting of Iranian banks in the Security Council resolutions and in the EU legislation. 103. In relation to the decision to make the order in question, Mr Robertson explained that, following the coming into force of the 2008 Act, the Treasury commissioned work on the role of Iranian banks in financing Irans nuclear and ballistic missile programmes. That work highlighted concerns about the role of Bank Mellat, and identified three particular areas of concern. First, it had provided banking services to Novin, and had maintained accounts for the AEOI, mainly through Novin, since 2003. It had managed accounts and facilitated money transfers for Novin after Novin had been designated under Resolution 1747. Secondly, senior officials of the AIO, the parent of entities which were involved in Irans ballistic missile sector and designated under Security Council Resolution 1737, had used Bank Mellats services during 2007 and 2008 to conduct business connected with Irans ballistic missile programme. Thirdly, between 2007 and 2009 Bank Mellat had provided banking services for Doostan International (Doostan), a company linked to the ballistic missile programme. 104. Mr Robertson summarised the case for making the order as follows (para 73): The Treasury was satisfied that Bank Mellat has provided financial services to companies engaged in Iran's nuclear and ballistic missile programmes. A direction to cease business with Bank Mellat would restrict the financial services available to entities involved in Iran's nuclear and ballistic missile programmes by denying them access to the UK financial sector through Bank Mellat. This would have the maximum possible adverse impact on the nuclear and ballistic missile programmes of the measures available under Schedule 7 in relation to Bank Mellat. If Bank Mellat wished to continue its activities in support of those programmes it would need to seek other sources of financial services, assuming such alternatives were actually available to it. There was also the possibility that as a bank subject to restrictions in the United Kingdom, Bank Mellat would not be in a position to access the global financial system as effectively in order to seek substitute arrangements for those no longer available to it in the UK. At the very least, this would impede the Iranian nuclear and ballistic missile programmes by imposing additional costs and delays on the programmes. 105. Mr Robertson explained at para 74 that it had been recognised that entities connected with the nuclear and missile programmes which wished to route transactions through the UK could do so by using another Iranian bank. A potential effect of the order was however that the UK financial sector would decide to wind down business with Iran more generally, which would reduce the risk of business being routed through another Iranian bank. Even if that did not occur, the order would make transactions involving the UK more difficult. Iranian banks generally experienced difficulties in dealing with UK banks as a result of the international sanctions. A small number of Iranian banks had access to the UK via their British subsidiaries. The action taken against Bank Mellat, which had a British subsidiary, narrowed access to the UK financial sector and further restricted the options available to Iranian banks. 106. Finally, Mr Robertson said at para 75 that the order would also increase pressure on the Iranian Government to comply with its international obligations. Applying such a restriction to one of Irans largest banks would reduce the financial services available to the Iranian Government. In relation to that aspect, Mr Robertson stated that the Iranian Government still controlled a significant amount of the shares in Bank Mellat, following its privatisation in February 2009: 20% of the shares were officially owned by the Government, another 20% were held by Government social security organisations for the benefit of their employees, and a further 40% were allocated to low income shareholders whose voting rights were exercised by the Government. 107. Mitting J accepted the Treasurys reasons for making the order as stated at paras 73 75 of Mr Robertsons statement. The only qualification was that, in relation to para 75, Mitting J accepted evidence that the Iranian Government only exercised voting rights over its 20% shareholding in Bank Mellat. That qualification was not considered to be of any materiality. 108. Lord Sumption states that Mitting J did not accept the part of Mr Robertsons statement which described the problems relating to Bank Mellat, which I have summarised at para 103. It appears to me however that what was said in that connection by Mr Robertson was substantially accepted, other than the allegation relating to senior officials of AIO, which Bank Mellat said it was unable to investigate without additional information. Mitting J stated that it was common ground that Bank Mellat had provided trade finance or banking facilities for an importer of materials used in the production of nuclear weapons, namely Novin. He accepted that Novin was an AEOI financial conduit and had facilitated Irans nuclear programme. He also accepted that Bank Mellat had provided banking facilities to Doostan and its managing director, Mr Shabani, who had each played a part in Irans nuclear weapons programme. 109. It is true that Mitting J accepted that, once Novin had been designated by the Security Council under Resolution 1747, Bank Mellat ran down and eventually ceased its relationship with Novin, and that it had in place a mechanism, which it operated conscientiously, to ensure that it did not provide banking facilities to entities or persons designated by the Security Council. Mitting J also accepted that Bank Mellat had investigated the accounts held by Doostan and Mr Shabani, in response to the Treasurys allegations in these proceedings, and had found nothing unusual or suspicious. Mitting J nevertheless found that Doostan and Mr Shabani had played a part in Irans nuclear programme, and rejected Mr Shabanis evidence to the contrary. 110. Lord Sumptions statement that Mitting J found that Bank Mellats provision of banking services to entities involved in the Iranian nuclear weapons and ballistic missile programmes, namely Novin and Doostan, had happened in spite of their conscientiously operated procedures to avoid doing so, appears to me, with respect, to convey a different impression from Mitting Js judgment. It was no answer to the Treasurys concerns in relation to Novin that procedures were initiated after it had been designated by the Security Council: procedures triggered by a Security Council Resolution did not sufficiently address the risk, since they operated long after objectionable banking activities had already taken place. In relation to Doostan, it was only in the course of the proceedings that Bank Mellat carried out the investigations referred to. The value of those investigations can be judged from the fact that on 9 June 2010, after the hearing before Mitting J, Doostan was designated by Security Council Resolution 1929 as an entity involved in Iranian ballistic missile activities, and was subjected to the asset freezing regime established by Resolution 1737. It was only following that designation that Bank Mellats procedures would have been applicable. In the circumstances, I am unable to agree with Lord Sumptions statement that Mitting Js finding about Bank Mellats procedures suggests that they were satisfactory, at any rate in relation to the weapons programmes. 111. Far from regarding the foregoing matters as undermining the Treasurys case, Mitting J treated them as being essentially beside the point: The Treasurys case is not that the bank has knowingly assisted Security Council designated entities after designation, or even that it has knowingly assisted entities liable to be designated, but which have not yet been, by providing banking facilities to them, but that it has the capacity to do so, has in one instance done so and is likely to do so in the future. The fundamental justification for the order is that, even as an unknowing and unwilling actor, the bank is, by reason of its international reach, well placed to assist entities to facilitate the development of nuclear weapons, by providing them with banking facilities, in particular trade finance. It was on that basis that Mitting J commented that Bank Mellats dealings with Doostan and Mr Shabani did not greatly matter. 112. Lord Sumptions criticism of the rationality of the connection between the direction and its objective is that the direction made no attempt to prevent every Iranian bank with an international reach from facilitating Irans weapons programme, but only one of them. It is said that the distinction [drawn] between Bank Mellat and other Iranian banks was an arbitrary and irrational distinction. 113. I am unable to agree with this criticism. It is true that the problems in relation to the lack of adequate controls within Irans banking system, identified by the FATF and mentioned by Mr Robertson in his statement, were not unique to Bank Mellat. It followed that UK financial institutions were at risk when dealing with Iranian entities in general, as Mr Robertson explained. The response of the UN Security Council and the EC Council had not however been to impose restrictions in respect of all Iranian banks, but in respect of particular banks where there was evidence of their involvement in the financing of Irans nuclear weapons programme: notably Bank Sepah, Bank Sepah International, Bank Melli, Bank Saderat and their subsidiaries. The Treasury followed the same approach when it obtained evidence of Bank Mellats involvement. 114. Lord Sumption states that other Iranian banks were as likely as Bank Mellat to number entities involved in Irans nuclear and ballistic missile programmes amongst their clients. As I have explained, Mr Robertson acknowledged at para 74 of his statement that entities involved in Irans nuclear weapons programme could in principle use other Iranian banks. He pointed out however that the order might lead the UK banking sector to wind down business with Iran generally, and that the order would in any event make transactions involving the UK more difficult. That was because it was difficult for Iranian banks to access UK financial markets directly, since UK banks were reluctant to deal with them. The exceptions were the small number of Iranian banks which had UK subsidiaries. Those were Bank Melli, Bank Sepah, Bank Saderat and Bank Mellat. As I have explained, the UK subsidiaries of Bank Melli and Bank Sepah were already subject to asset freezing orders. The order under challenge applied to Persia International Bank plc (PIB), which was the UK subsidiary of Bank Mellat. The UK subsidiary of the remaining Iranian bank with such a subsidiary, Bank Saderat, was subject at the time to systematic reporting requirements under Regulation 1110/2008, as I have explained. Subsequent to the making of the order under challenge, it was subjected to an asset freeze. 115. In these circumstances, an order directed specifically against Bank Mellat and its UK subsidiary was far from being pointless or arbitrary. One effect of the order was to prevent the only UK subsidiary of an Iranian bank which was not already subject to controls, namely PIB, from dealing with its parent, Bank Mellat. Lord Sumption notes that PIB was not prevented from dealing with its minority shareholder, Bank Tejarat. There is however nothing to indicate that Bank Tejarat had any involvement with entities involved in the Iranian nuclear weapons programme. If information indicating such involvement were to emerge, no doubt action would be taken. In the event, PIBs assets were subsequently frozen by Council Regulation (EU) 668/2010, made on 26 July 2010. Although Iranian banks, or Iranian entities involved in the nuclear weapons programme, could in principle seek to use non Iranian international banks, those could be expected to have compliance mechanisms in place: it was only in relation to Iran that the absence of such mechanisms had caused the FATF to call for preventive measures. 116. It is of course true that the direction would not of itself prevent the development of nuclear weapons in Iran. It could however reasonably be expected to realise the objective of hindering their development at least to some extent (to adopt the phrase used by Lord Neuberger MR in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437; [2012] QB 394). That is sufficient to establish a rational connection between the direction and its objective. 117. In the light of the foregoing, Mitting J was entitled to accept that there was a rational connection between the requirements imposed by the order and its objective, on the basis that, as he found, a direction to cease business with Bank Mellat would restrict the financial services available to entities involved in [Irans nuclear and ballistic missile] programme by denying them access to the UK financial sector through the bank; suspect entities would find it difficult to replace existing arrangements through the bank; and some pressure would be brought to bear on the Iranian Government to comply with its international obligations. Mitting J was therefore entitled to hold that he was satisfied that the requirements imposed by the order are rationally connected to the objective of inhibiting the development of nuclear weapons in Iran and, so, the risk to the national interests of the United Kingdom. Those findings were affirmed by the Court of Appeal, which commented that a contrary conclusion would resonate with navet. A different justification from that given to Parliament 118. A separate point made by Lord Sumption is that the justification for the making of the order which was accepted by Mitting J was not the one which Ministers advanced when laying the order before Parliament, and was in some respects inconsistent with it: indeed, it is said that the Treasurys argument underwent a radical shift. 119. This point does not appear to me to be well founded in fact. It does not in any event appear to me to affect the question whether the requirements imposed by the order were rationally connected to its objective. 120. Considering first the factual position, a written Ministerial statement was made on 12 October 2009, three days after the order had been made. It stated: Iran continues to pursue its proliferation sensitive nuclear and ballistic missile activities in defiance of five UN Security Council Resolutions. We cannot and will not ignore specific activities undertaken by Iranian companies which we know to be facilitating activity identified by the UN as being of concern, particularly where such activities have the potential to affect the UKs interests. On the particular entities in question, vessels of the Islamic Republic of Iran Shipping Lines (IRISL) have transported goods for both Irans ballistic missile and nuclear programmes. Similarly, Bank Mellat has provided banking services to a UN listed organisation connected to Irans proliferation sensitive activities, and been involved in transactions related to financing Irans nuclear and ballistic missile programme. The direction to cease business will therefore reduce the risk of the UK financial sector being used, knowingly or otherwise, to facilitate Irans nuclear proliferation sensitive activities. 121. An explanatory memorandum to the order was also laid before Parliament the same day. Under the heading What is being done and why, the memorandum stated: These restrictions are being imposed in respect of these two entities because of their provision of services for Irans ballistic missile and nuclear programmes. It is considered that a direction to cease business with these entities will contribute to addressing the risk to the UK national interests posed by Irans nuclear proliferation sensitive activities. Similar explanations of the thinking behind the order were also provided by Ministers during the Parliamentary proceedings leading to the approval of the order. 122. The Treasury did not in these documents and statements accuse Bank Mellat of being knowingly involved in Irans nuclear and ballistic missile programme: what was said was that it had provided banking services to a UN listed organisation, and that it had been involved in transactions related to financing that programme. Those were statements of objective fact. The objective of the order was explained as being to reduce the risk of the UK financial sector being used, unknowingly or otherwise, to facilitate Irans proliferation sensitive activities. That explanation appears to me to be consistent with the more detailed account of the Treasurys reasoning provided by Mr Robertson. As Mitting J found, the statements made to Parliament gave an adequate summary. 123. Proceeding however on the hypothesis that the reasons given to Parliament were inconsistent with the reasons put forward by Mr Robertson in his statement, that difference has no evident bearing on the answer to the question whether the measure is rationally connected to its objective. As I have explained at paras 92 94, that question poses an objective test concerned with the capacity of the measure to realise its objective, based on common sense or logic. If Parliament approved the measure on the basis of a given justification, that might affect the credibility of evidence subsequently putting forward a different justification; but that is not an issue which arises on this appeal. It could also affect the weight which the court might give to Parliamentary approval of the measure when considering its proportionality; but that is not a factor which has been taken into account in considering the question of rational connection. 124. This objective approach to the criterion of rational connection is consistent with what was said, in relation to proportionality more generally, in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, para 11: The task on an appeal on a Convention ground against a decision of the primary decision maker is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful. It is not a secondary, reviewing, function dependent on establishing that the primary decision maker misdirected himself or acted irrationally or was guilty of procedural impropriety. To similar effect, Lord Hoffmann noted in R (SB) v Governors of Denbigh High School [2006] UKHL 15; [2007] 1 AC 100, para 68: Article 9 of the Convention is concerned with substance, not procedure. It confers no right to have the decision made in any particular way. What matters is the result. In this respect, there is no difference between article 9 and other Convention rights. Less intrusive means 125. Lord Sumption concludes that the direction also fails the proportionality test at the third stage of the analysis, on the basis that it cannot be necessary to require UK financial institutions to cease dealing with Bank Mellat if less drastic measures are considered to provide sufficient protection in relation to other Iranian banks. For the reasons I have given, I do not consider that the Iranian banks in question (that is to say, the smaller banks without UK subsidiaries) are truly in a comparable position to Bank Mellat. Like the Court of Appeal, I attach importance to the evidence of Mr Robertson that the Treasury considered but rejected less intrusive measures, for reasons which he explained. In a matter of this kind, great weight must be given to the considered judgment of the Treasury. Against that background, I accept Mitting Js conclusion that there is no other reasonably practicable means of ensuring that the facilities of an Iranian bank with international reach will not be used in the UK for the purpose of facilitating the development of nuclear weapons by Iran. Proportionate effect 126. If, as I would hold, (1) the Governments objective was sufficiently important to justify limiting the rights of Bank Mellat, (2) the requirements imposed by the direction were rationally connected to that objective and (3) no less intrusive measure would have been equally effective in achieving the objective, the question remains whether (4) having regard to the severity of its effect on Bank Mellats rights, the direction was justified by the importance of the objective. Lord Sumption concludes that it was not, given that, in his view, the direction would make little if any contribution to the achievement of its objective. For the reasons I have explained, I do not agree with that assessment. On the basis that the direction would make a worthwhile contribution to the achievement of the Governments objective, I agree with Mitting J that its impact upon the rights of Bank Mellat is proportionate. 127. In that connection, I would make three observations. The first is that the effects upon Bank Mellats business cannot in my opinion be considered disproportionate to a significant reduction in the risk of very great harm to the UKs vital national interests. The Bank claims that it has suffered a revenue loss of US$25m a year, that it was prevented for the duration of the order from drawing on deposits of 183m, and that its reputation and goodwill have been damaged. The severity of those effects has however to be considered in the context of the very substantial scale of the business conducted by the Bank, illustrated by its evidence that it holds some 33 million accounts for over 19 million customers, has almost 2000 branches, and issued letters of credit in 2009 to the value of $11bn. If the contribution made by the direction towards the achievement of the Governments objective was limited, the impact upon the Bank was also limited. 128. The second is that the right in issue, under A1P1, is not of the most sensitive character; the person affected, a major international bank, does not fall into a vulnerable or marginalised category; and the order is temporary in nature. 129. The third is that the court does not possess expertise or experience in international relations, national security or financial regulation. The risks to our national interests, if the wrong judgment is made in relation to nuclear proliferation, could hardly be more serious. Democratic responsibility and accountability for protecting the citizens of this country from those risks rest upon the Government, not upon the courts. In a complex situation of this kind, where the stakes are so high, the court has to attach considerable weight to the Governments assessment that the requirements are necessary and proportionate to the risk. Conclusion 130. For these reasons, and those given by Lord Hope in relation to procedural fairness, I would dismiss the appeal. LORD HOPE (DISSENTING) 131. I find myself unable, with respect, to agree with the conclusions that the majority have reached on both the substantive and the procedural issues in this case. I, for my part, would dismiss the appeal. The substantive issues 132. I agree with Lord Reed and Lord Sumption about the formulation of the test that should be applied to the question raised by Bank Mellats objections to the direction. The more difficult issue is as to the result when that test is applied to the facts. I was inclined at the end of the argument to think that the making of the Financial Restrictions (Iran) Order 2009 (SI 2009/2725) (the Order) was disproportionate because the Bank had been singled out for special treatment, and because the distinction that was drawn between it and other Iranian banks in that respect appeared to be arbitrary and irrational. There seemed to me to be force in the arguments that Lord Sumption has given for thinking that the effect of the Order on the commercial dealings of the Bank was out of proportion to any contribution that the directions were likely to make to the statutory purpose that it was designed to serve. 133. I have however been persuaded by Lord Reeds careful analysis of the explanation that was given on the Treasurys behalf by Mr Robertson that the reasons that Mitting J and the Court of Appeal gave for coming to the contrary conclusion were sound. In matters of this kind a wide margin of appreciation must be given to the Treasury, and I am satisfied that sufficient grounds were shown for finding that an order directed only against the Bank and its UK subsidiary was rationally connected to the objective of inhibiting the development of nuclear weapons in Iran and that it was proportionate. There were good reasons for not involving all the other Iranian banks, and the facts as a whole show that the choice that was made was not arbitrary. The problem that the Order was designed to address was restricted to a small number of Iranian banks with UK subsidiaries, and the Bank was not being singled out in the pejorative sense that those words convey. I also agree with Lord Reed that the question whether the directions in the Order were rationally connected to its purpose does not depend on whether the justification that the courts below found established was the same as that which was given in the statement when the Order was laid before Parliament. Like him I would hold that the objective was sufficiently important to justify restricting the Banks activities, that the requirements imposed by the direction were rationally connected to that objective and that Mitting J was entitled to hold that there were no other reasonably practicable means of achieving it. The procedural issues 134. The question to which these issues are directed is whether there was a duty to consult the Bank before the Order was made under section 62 of the Counter Terrorism Act 2008. The powers conferred on the Treasury for the making of such a direction are set out in Schedule 7 to the Act. The procedures that are to be followed are in Part 4 of that Schedule. Paragraphs 14(1) and (2) provide that a direction is to be contained in an order made by the Treasury, that the order must be laid before Parliament after being made and that it ceases to have effect if not approved by a resolution of both Houses of Parliament within 28 days. Paragraph 14(5) states that, if apart from that sub paragraph an order under paragraph 14 would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not such an instrument. Hybrid instruments are subject to a special procedure in the House of Lords which gives those who are specially and directly affected by the instrument to present their arguments to a select committee for consideration on their merits before the instrument can be approved by either House. 135. Paragraph 15 of Schedule 7 provides that, where a direction is given to a particular person, the Treasury must give notice of the direction to that person. The direction in this case was given not to the Bank or to any other particular person, but to a description of persons operating in the financial sector in the United Kingdom: see paragraph 14(1)(a). They were directed by the Order not to enter into, or to continue to participate in, any transaction or business relationship with the Bank. The sequence in which these paragraphs appear in Part 4, as in the case of paragraph 16 which deals with publication, indicates that the direction will have already have been made by the time when notice is given under paragraph 15. Its purpose is to alert the person concerned so that steps can be taken at once to comply with the direction. 136. Here, then, is a provision which excludes the procedure which allows those directly affected to ask for an examination of the direction on its merits before the instrument is approved under paragraph 14(2). And there is another provision which provides for notice to be given, but only to a particular person to whom the direction is given and only after the making of the direction. Is it nevertheless open to the court to require the Treasury to consult with a body which will be affected by a direction which is to be given to others before the order is made, as the Bank maintains? This is a step which finds no place in the procedure which has been provided for by Parliament. Is a procedure for delegated legislation which has been approved by Parliament open to scrutiny by the courts with a view to the imposition of additional procedural safeguards? 137. The Bank submits that the Treasury were required both by domestic law and by the procedural requirements of article 6(1) of the European Convention on Human Rights and article 1 of the First Protocol to give the Bank an opportunity to make representations before they made the direction. It points to the fact that the direction imposed the most extreme form of sanction that was available to the Treasury in the exercise of these powers. It bound the entirety of the United Kingdoms financial sector and the Bank, and all its branches were designated persons with whom the financial sector was directed to cease doing business. Yet the procedure in the 2008 Act under which the Order which contained the direction was made gave no opportunity for affected persons to make representations before it was made and then laid before Parliament. 138. This challenge was dismissed by Mitting J. He said that it was readily understandable why no provision was made for affected persons to be given such an opportunity: [2010] EWHC 1332 (QB), para 5. Although in this case I am only concerned with a direction made in the circumstances set out in paragraph 1(4) of Schedule 7 in respect of a bank, there are many other circumstances in which directions could be made when Parliament cannot have intended that there should be an opportunity for affected persons to make representations. They include individuals engaged in terrorist financing or money laundering activities (paragraphs 1(3)(c) and 9(1)(c)); and governments reasonably believed to be engaged in the development or production of nuclear etc weapons (paragraphs 1(4)(a) and 9(1)(b); and the manifold persons in the UK financial sector to whom the direction is given (paragraph 3(1)). He also pointed out that a duty to permit prior representations where there was no reason to believe that avoiding action would be taken by an affected person would be judge made. Where Parliament had conferred a rule making power on the executive subject to Parliamentary control, it was not generally for the courts to superimpose additional procedural safeguards: R (Bapio) v Secretary of State for the Home Department [2007] EWCA Civ 1139. 139. In paras 6 8 the judge rejected the challenge under A1P1 on the ground that section 63 was the means by which the Bank was afforded a reasonable opportunity of effectively challenging the measures contained in the Order: Jokela v Finland (2002) 37 EHRR 581, para 45. He also rejected the challenge under article 6(1) on the ground that there was no dispute over a civil right at the time when the Order was made: Micallef v Malta (2009) 50 EHRR 920, para 74. In any event a hybrid procedure, consisting of an executive decision affirmed by Parliament which was subject to a later challenge before a court, was compatible with the article. He added that there was no claim for a declaration of incompatibility under section 4 of the Human Rights Act 1998. 140. In the Court of Appeal Maurice Kay and Pitchford LJJ rejected the Banks procedural challenge on similar grounds: [2011] EWCA Civ 1. But Elias LJ held that the Treasury had failed to comply with the common law principles of fairness and that it was also in breach of A1P1 and article 6(1). He said that the Order was of a qualitatively different character to that with which the court was concerned in the Bapio case. It was not laying down rules which affected a broad and amorphous class or classes of person. It was specifically directed at the Bank and the Treasury knew that the action of implementing the Order would damage its rights, as was its purpose. He was not persuaded that Parliament in formulating the procedures in Schedule 7 must have intended to exclude any rights to natural justice. The judges analysis of the challenge under article 6(1) that there was no dispute when the Order was made was inconsistent with the decision in R (Wright) v Secretary of State for Health [2009] 1 AC 739. As the Treasury had conceded that there was insufficient urgency to justify a failure to allow the Bank to seek to answer the allegations against it before the Order was made, the only proper conclusion was that the failure to give a hearing infringed article 6(1). It followed that the subsequent procedure was not sufficient to comply with A1P1. (a) the common law challenge 141. The Order which the Treasury made under Schedule 7 to the 2008 Act was a statutory instrument within the meaning of section 1(1) of the Statutory Instruments Act 1946. It was made in the exercise of a power to make a direction under paragraph 1(1) of the Schedule which was required by paragraph 14(1) to be given by means of an order that was to be laid before Parliament. Section 96(1) of the 2008 Act provides that orders under the Act must be made by statutory instrument. For the purposes of the definition in section 1 of the 1946 Act, a power to make, confirm or approve orders that is conferred on the Treasury is deemed to be conferred on the Minister of the Crown in charge of that department: 1946 Act, section 11(1). 142. The procedure that is laid down for Parliamentary approval of an order under Part 4 of Schedule 7 which contains a direction of the kind that was given in this case provides that the order is to be laid before Parliament before it is made, and that it ceases to have effect if not approved by a resolution of each House within 28 days: paragraph 14(2). Erskine May, Treatise on the Law, Privileges, Proceedings and Usages of Parliament (24th ed, 2011) states at p 676 that this type of affirmative procedure is frequently resorted to when delegated legislation must come into force immediately on being made without any prior consultation. It appears from that comment that it is standard practice for orders to be made under this procedure without prior consultation with those who are likely to be affected by them. Paragraph 14(5) states that, if apart from that sub paragraph it would be treated for the purposes of the standing orders of either House as a hybrid instrument, it is to proceed in that House as if it were not such an instrument. 143. Under the hybrid instrument procedure the instrument is subject to a procedure which enables those who are affected by the instrument to present arguments against it to a select committee which reports on its merits and recommends whether or not it should be approved: Erskine May, p 684. The disapplication of this procedure by an express provision of this kind is said to be relatively common in recent times: Craies on Legislation (10th ed, 2012), para 6.2.2.3. Nevertheless it is feature of the procedure under Part 4 of the Schedule that it has expressly excluded the possibility of consultation before the order is made. It excludes the possibility of presenting arguments against the order prior to its receiving approval in either House. 144. Part 4 of Schedule 7 must be read together with sections 63 and 65 68 of the Act. These sections provide for the making of an application to set aside any decision of the Treasury in connection with the exercise of their functions under Schedule 7 to the Act, with the same relief as may be made or given in proceedings for judicial review. Permission is not required for the making of an application under section 63, and there is no time limit. Provisions of the kind that appear in this group of sections are unusual. They must be taken to have been included in the Act as a counterweight to the absence of any procedure for prior consultation with affected persons or the making of representations by them at any earlier stage. The provision for a closed material procedure indicates that Parliament was aware that some at least of the reasoning for the making of a direction would be likely to require to be withheld from affected persons. 145. These provisions reinforce the impression conveyed by the provisions of paragraph 14 of Schedule 7 that Parliament cannot have intended that there should be an opportunity for representations before the decision was made or as part of the Parliamentary process. A ministerial statement was issued on the making of the order on 12 October 2012 in accordance with a prior commitment to do so by the Minister when the Bill was passing through Parliament. By this means the Treasurys reasons for making the Order were placed before each House before it was approved. The question then is whether the Bank had a common law right to be consulted before the making of the decision contained in the Order that was laid before Parliament. I readily acknowledge that the duty to give advance notice before a statutory power that may affect the subject adversely is exercised, whether by statutory instrument or otherwise, is deeply rooted in the common law. But, as Lord Sumption says in para 31 above, whether there is such a duty where the enabling statute does not deal with the point expressly must depend on the circumstances. The Bank accepts there is no authority that is on all fours with this case. Cases such as R v Secretary of State for Health, Ex p United States Tobacco International Inc [1992] QB 353, where it was held that the Secretary of State had a duty to give the applicants an opportunity to make representations on the expert advice he had received before making regulations banning oral snuff in view of the history of his dealings with them as well as the effect on their business, are far removed from the facts of this case. The closest analogy is the Bapio case, where the provisions in question were alterations by the Home Secretary to the Immigration Rules and advice given to NHS employers by the Department of Health. Elias LJ was right to draw attention to the fact that the Order in this case was of a different character as it was specifically directed at the Bank. But the reasons given by the Court of Appeal for rejecting the proposition that there was duty to consult in that case seems to me to be capable of being applied more widely and to be just as much in point here as in Bapio. First, there is the point made by Sedley LJ in para 44 that, if the Bank is right, its argument raises serious and very troublesome questions as to its implications. What limits, if any are to be placed on those to whom the duty is owed? As Mitting J pointed out in para 5 of his judgment, the conditions for the making of a direction in paragraph 1 of Schedule 7 and the requirements that may be imposed under paragraph 9 include various circumstances in which Parliament cannot have intended that there should be an opportunity to make prior representations. They include, for example, cases falling within the second condition described in paragraph 1(3) of Schedule 7, which applies where terrorist financing or money laundering activities are being carried on by persons resident or incorporated in the country which pose a significant risk to the national interests of the United Kingdom. Is the duty to notify the persons affected to apply in those cases too? The urgency that the Treasury saw in the Banks case was not as extreme as it might be in that situation, but its case must not be considered in isolation. A decision in its favour on this point will have far reaching consequences for the application of Schedule 7 generally. It will also call into question the practice referred to by Erskine May for the affirmative resolution procedure to be resorted to when delegated legislation must come into force immediately on being made without any prior consultation: see para 140. Are the majority to be understood as saying that this must never happen? If an opportunity to make prior representations is to be given, how is the exercise to be carried out, and under what conditions and subject what safeguards to ensure that any responses are properly taken into account? What information must be given to the affected party to ensure that its representations are effective? How is material that it would not be in the public interest to disclose to the affected party to be dealt with? There is also the possibility that the affected party may seek a judicial review of the way the process is being conducted before the direction is given: see R v Secretary of State for the Environment, Ex p Brent London Borough Council [1982] QB 593. This too would raise issues about the disclosure of material that in the public interest ought not to be disclosed. It could also significantly delay the whole process if, as Lord Sumption acknowledges in para 37 above, an application of the kind envisaged by section 63 would be unlikely to be determined within three months. I do not think that these questions can be ignored or left unanswered. Clear and precise guidance is needed if the procedure that the majority say must be implied into Schedule 7 is to be workable. I do not know where that guidance is to be found. Then there are the points made by Maurice Kay LJ in para 58, with whose reasons Pitchford LJ agreed in para 65. He doubted whether, as a matter of principle, a duty to consult can generally be superimposed on a statutory rule making procedure which required the intended rules to be laid before Parliament and subjected to the negative resolution procedure. And he attached some significance to the fact that the primary legislation had not provided an express duty of prior consultation as it had on many other occasions. Those points have added force in this case in view of the point made by Erskine May at p 676, as the paragraph 14 procedure requires the order to be made before it is laid and that it be approved by an affirmative resolution of each House of Parliament. The disapplication of the hybrid instrument procedure is a further factor, as is the provision in paragraph 15 for the giving of notice of the direction to a particular person after the order has been laid and the opportunity that sections 63 and 65 68 give for an application to be made to set it aside, subject to rules designed to secure that disclosures of information are not made when they would be contrary to the public interest. The structure of the legislation, the scope for its application and the sensitive nature of the information on which decisions in this area of activity are likely to have been based all point in the same direction. They indicate that there was here a deliberate decision by Parliament not to subject the Treasury to a duty to consult before making the direction. This is readily understandable, in view of the nature of the risks to the national interest that the legislation was intended to deal with. I would hold therefore that the Bank did not have a common law right to be consulted before the direction was given. Elias LJ said in para 97 that in his judgment the preconditions for supplementing the procedure to secure a right to natural justice that were identified by Lord Reid in Wiseman v Borneman [1971] AC 297, 308 were met in this case, as the statutory procedure was insufficient to achieve justice and it was not contended that complying with the basic elements of natural justice would frustrate the purpose of the legislation. But Lord Reid did not go so far as to say that the court must always intervene whenever those preconditions were satisfied. Whether it would be right for the court to do this must always depend on the circumstances. I would, for my part, respect the evident intention of Parliament that the Treasury should have power to make orders of the kind contemplated by paragraphs 1 and 9 of Schedule 7 without prior consultation, and that the basic elements of natural justice were to be met in the manner prescribed by sections 63 and 65 68. For the court to insist upon a prior duty to consult at common law would be inconsistent with the purpose of the legislation, which is to protect the national interests of the United Kingdom in circumstances where there is a significant risk to those interests, and it would contradict what I would understand to have been the will of Parliament. I do not think that it is open to this court to take that course. I would reject the challenge that is made at common law. (b) the Convention rights challenge The gravamen of this challenge is that, as the making of the direction was incompatible with the Convention rights on which the Bank founds, it was unlawful for the Treasury to make the direction: Human Rights Act 1998, section 6(1). Counsel for the Treasury did not seek to argue that this was a case to which section 6(1) did not apply because the primary legislation could not be read or given effect in a way which was compatible with the Convention rights and it was acting so as to give effect to those provisions: section 6(2)(b). It is convenient to examine the argument that was directed to article 6(1) first, as the A1P1 argument too is about the absence of a procedural protection for the Banks rights. In Jokela v Finland (2002) 37 EHRR 581, para 45 the Strasbourg court said that, in considering whether a person was afforded a reasonable opportunity of putting his case to the responsible authorities for the purposes of A1P1, a comprehensive view must be taken of the applicable procedures. The procedural challenge in both cases rests on essentially the same grounds. The Bank submitted that the Treasurys decision to make the Order was a determination of the Banks civil rights within the meaning of article 6(1), and that their failure to allow the Bank any opportunity to make representations was a plain breach of that article. It was also submitted that its case is indistinguishable from R (Wright) v Secretary of State for Health [2009] UKHL 3, [2009] AC 739, where the provisional listing of persons considered to be unsuitable to work with vulnerable adults was held to be unlawful because the workers were denied an opportunity to answer the allegations that were made against them before they were listed. As Baroness Hale of Richmond said in Wright at para 19, the article 6(1) issue raises two questions. The first is whether the case is concerned with a civil right at all. The second is whether the making of the direction amounted to a determination of a civil right. The first question is easily answered. It is not disputed that the Banks right to carry on its business was a civil right and that the effect of the direction was greatly to impede the exercise of that right. The difficult issue is whether the making of a direction amounted to a determination of the Banks civil right, given that an opportunity for the determination by an independent and impartial tribunal of its right to carry on its business unimpeded by the direction was afforded by the right to make an application to the court under section 63 after the direction was made. It is well established that decisions which determine civil rights and obligations may be made by the administrative authorities, provided that there is then access to an independent and impartial tribunal which is in a position to exercise full jurisdiction as to the issues involved: Bryan v United Kingdom (1995) 21 EHRR 342; Wright, para 23. For the provisions of article 6(1) about the determination of a civil right to be applicable there must be a dispute over a civil right which can be said, at least on arguable grounds, to be recognised under domestic law: Micallef v Malta (2010) 50 EHRR 37, para 74. The Strasbourg court also concluded that for article 6(1) to apply the result of the proceedings must be directly decisive for the right in question. As Baroness Hale said in Wright, para 21: It is one thing temporarily to freeze a persons assets, so that he cannot divest himself of them before an issue is tried; it is another thing to deprive someone of their employment by operation of law. The Order in this case was not simply an asset freezing order, but I agree with Maurice Kay LJ, para 76, that there are similarities. It can be seen, as Pitchford LJ said in para 126, as an interim preventive measure taken in a situation which, on the Treasurys view of the matter, was of some urgency. At the stage when the decision was taken there was, in my view, no directly decisive determination of the Banks civil rights. The Treasury were in no position to carry out an article 6(1) compliant determination at that stage, and they could not do so anyway as they were not an independent or impartial tribunal. But the procedure for the making of an application under section 63 was available as soon as the person could claim to be affected by the decision: section 63(2). There was then an issue about the Banks civil rights which could be determined in a manner that was compatible with article 6(1). It was, no doubt, for this purpose, that section 63 was enacted. As there was then an opportunity for the Order to be set aside without delay on an application of judicial review principles, I think that it was unnecessary for an opportunity to be provided for the Bank to be consulted before the Order was made in order to satisfy the requirements of the article. For these reasons, together with the further reasons given by Lord Reed, I would reject the Banks contention that the way in which the Order was made was incompatible with article 6(1) because it was not given an opportunity to make representations. On a comprehensive view of the applicable procedures, I would for the same reasons reject the Banks challenge to the making of the Order under A1P1. LORD NEUBERGER (dissenting in part) Introductory Bank Mellat seeks to challenge the Financial Restrictions (Iran) Order 2009, SI 2009/2725 (the Order) on two grounds. The first is substantive, namely that the reasons for which Her Majestys Treasury (the Treasury) decided to give the direction (the Direction), which resulted in the Order, were fundamentally flawed. The second ground of challenge is procedural, namely that, before giving the Direction, the Treasury should have given the Bank an opportunity to make representations. I have reached the conclusion that (i) in agreement with Lord Reed, the substantive challenge fails, but (ii) in agreement with Lord Sumption, the procedural challenge succeeds. The substantive ground of challenge The prevention of nuclear proliferation (proliferation), including impairing its funding, is an issue which is not just very important. It is an issue which has diplomatic, national security, and financial market dimensions, and which presents the executive with enormous technical and practical difficulties. Further, any attempts to prevent proliferation will almost inevitably have substantial repercussions for third parties, innocent as well as guilty. It should therefore cause no surprise that decisions and actions which are aimed by the executive at preventing proliferation throw into sharp focus the delicacy of the balance between the courts duty to uphold the rule of law and the courts duty not to trespass into areas which are properly left to the executive. Judges have no more important function than that of protecting individuals and organisations from abuse or misuse by the executive of its considerable and extensive powers even, as is almost always the case, when such abuse or misuse does not involve bad faith. The substantial adverse financial consequences for Bank Mellat of the giving of the Direction in this case provide a good example of the importance of this function. On the other hand, the judiciarys power to review decisions of the executive must be exercised bearing in mind that responsibility for the decision lies with the executive, not the judiciary, and judges do not have the relevant expertise or experience of those responsible for the decision. In the present case, the importance and relevance of expertise and experience in international relations, national security and financial regulation, is self evident. Accordingly, while the court has to apply well established legal principles when deciding whether the Direction can be substantively justified, I agree with Lord Sumption when he says in para 21 that the Treasury must be allowed a large margin of judgment, or, as Lord Reed puts it in para 92, a wide margin of appreciation, when taking steps to prevent proliferation internationally, through the means of giving a direction under Schedule 7 to the Counter Terrorism Act 2008 (the 2008 Act). Indeed, there is very little between Lord Sumption and Lord Reed as to the principles to be applied when addressing a challenge to such a direction, or to an order made pursuant to it. I agree with Lord Reeds general and far ranging observations about proportionality in his paras 69 78, and what he says in paras 79 84 about the word proportionate in para 9(6) of Schedule 7 to the 2008 Act (Schedule 7). I also agree with his observations about rational connection in paras 86 90. As Lord Reed implies in para 65, there is very little difference between what he says in those 21 paragraphs and what Lord Sumption says in paras 20, 21, 25 and 26. The only real difference arises from their interpretation of the grounds upon which the House of Lords decided A v Secretary of State for the Home Department [2005] 2 AC 68. On that issue, while there are passages in some of the opinions which support the rather wider ratio suggested by Lord Sumption in para 25, I agree with what Lord Reed says in para 95 97. The explanation for the fact that Lord Sumption and Lord Reed have reached opposing conclusions on Bank Mellats substantive challenge to the Direction largely lies in the difference between their respective analyses of the facts. Essentially, Lord Sumption concludes that the Treasurys decision to make the Direction was legally flawed for two main reasons, which he summarises in para 22. First, that there was no reason to single out Bank Mellat, as the problem [which the Treasury relies on] is a general problem of international banking; secondly, that the ground now advanced by the Treasury for the Direction is different from that advanced by Government ministers when the Order was placed before Parliament. I have concluded that, while those two points each have some force in a qualified form, neither of them amounts to a sufficiently justified criticism of the Direction to justify quashing the Order. I agree with Lord Reeds analysis in relation to the first point in paras 105 117, and, in relation to the second point, paras 119 124. However, because the issue is finely balanced, as evidenced by the division of opinion in this Court, I will briefly summarise my reasons. As to the first point, it seems to me that the Treasury considered that it was appropriate to make a direction under Schedule 7 against Bank Mellat for a combination of grounds. In summary, those grounds were (i) Bank Mellat was an Iranian bank, and Irans banking system lacked the controls to prevent the funding of proliferation, which most other countries had, (ii) Bank Mellat had, as a matter of fact, provided banking services to businesses connected with Irans nuclear weapons programme (the programme), (iii) other Iranian banks with branches or subsidiaries in London, who had helped finance the programme, were subject to asset freezing orders or to a systematic reporting requirement, and (iv) although other Iranian banks could be used for the purpose, the Order would represent a severe constraint on Irans ability to obtain banking services for the purpose of funding the programme. Ground (iii) and, to some extent, ground (iv) are defensive rather than inherently justificatory. Ground (i) is, I accept, weakened by the fact that it is very difficult for any bank or national banking system to identify the ultimate purpose for which facilities are being provided, especially where the customer wishes to conceal that purpose. Nonetheless, that does not wholly undermine ground (i), especially in relation to an Iranian bank which has supported entities connected with the programme. As to ground (ii), it is true that Bank Mellat conscientiously took steps to sever its relationship with the entities which had been involved with the programme, but that was only after UN Security Council resolution 1747 in 2007, and, even then, facilities were being provided to one such entity even after these proceedings had been initiated. Despite ground (iii), there may have been some Iranian banks which had access to the London market, but they were few and small, and there was no evidence that they were funding entities which supported the programme. Ground (iv) on its own would not be impressive, but it is, in my view, a reasonable additional factor which helps underpin the decision to give the Direction. I do not find it easy to resolve the question of whether Bank Mellats substantive challenge to the Direction should succeed. As the brief summary in the preceding two paragraphs suggests, and as is also apparent from the much fuller analysis proffered by Lord Reed, the arguments raised by the Treasury to justify the Direction are not particularly strong, and the financial consequences of the Direction and subsequent Order against the Bank, which is not suggested to have intentionally supported the programme, are very grave. The Treasurys case is further weakened by the fact that, when it gave the Direction and promulgated the Order, it believed that the great majority of the shares in Bank Mellat were owned by the Iranian government, which is, and at all material times, was not the case. It is not a major point, but it does have a little traction, given that the grounds for the Direction are not particularly strong, and that this mistake does have some bearing on the Treasurys ground (iv) in para 10. All in all, while the four grounds summarised in para 170 above, even when taken together, are not overwhelming, I have reached the conclusion that they are strong enough to justify the Treasurys contention that, despite the very serious financial consequences for Bank Mellat, the Direction was given on grounds which were unassailable as a matter of law. The Direction was in an area, and related to an issue, in respect of which the courts should accord the executive a wide margin of appreciation, and, while the grounds advanced by the Treasury for giving the Direction do not appear very strong on examination, they are rational and they have some force. In those circumstances, were it not for the grave effect of the Direction on the Bank, I would fairly readily have concluded that the Treasury had acted lawfully in giving it. However, I entertain real doubt as to whether the Direction was justifiable once one weighs the benefits it was likely to achieve, in the light of the relative weakness of the grounds, against the inevitable and substantial harm it would cause to Bank Mellat. However, in the end, I am not persuaded that a court can properly conclude that the benefit of the Direction must have been so slight that the Treasury could not reasonably have concluded that it was right to give it, notwithstanding the harm the Bank would thereby suffer. On my view of the facts on the second reason identified in para 168 above, it is unnecessary to decide the further question of principle which divides Lord Sumption and Lord Reed, which the latter discusses in paras 123 124. I prefer to leave that question open. If the Treasurys justification for giving the Direction, and Ministers explanation for it to Parliament, had been that Bank Mellat knew that it was funding entities which supported the programme, which the Treasury now accepts would not have been right, a not unfamiliar question would arise. That question is the extent to which the court should uphold a decision of the executive which was justified by one reason when it was made, but when the matter comes to court, the reason is abandoned and the decision is sought to be justified by a different reason. It is an issue on which there are a number of judicial observations in a domestic judicial review context, most famously perhaps that of Megarry J in an oft quoted passage in John v Rees [1970] Ch 345, at p 402, cited with qualified approval on a number of occasions, eg in Secretary of State for the Home Department v AF [2010] 2 AC 269, paras 61 2 and 73. I would have thought that there was room for argument as to how such a question should be approached in the present context, following the introduction of the European Convention on Human Rights into UK law, especially as this is a case where the Convention is engaged (through Article 1 of the First Protocol), where proportionality is referred to in the empowering statute, and where the decision has been put before, and approved by, Parliament. The procedural ground of challenge As Lord Sumption says in paras 29 30, where the executive intends to exercise a statutory power to a persons substantial detriment, it is well established that, in the absence of special facts, the common law imposes a duty on the executive to give notice to that person of its intention, and to give that person an opportunity to be heard before the power is so exercised. While this has been described as a rule of universal application founded upon the plainest principles of justice (per Willes J in Cooper v Board of Works for the Wandsworth District (1863) 14 CB (NS) 180, 190), it has more recently been expressed in somewhat more measured terms. In R v Secretary of State for the Home Department Ex p Doody [1994] 1 AC 531, 560, Lord Mustill said that fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations either before the decision is taken ; or after it is taken, with a view to procuring its modification. In my view, the rule is that, before a statutory power is exercised, any person who foreseeably would be significantly detrimentally affected by the exercise should be given the opportunity to make representations in advance, unless (i) the statutory provisions concerned expressly or impliedly provide otherwise or (ii) the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such an opportunity. I would add that any argument advanced in support of impossibility, impracticality or pointlessness should be very closely examined, as a court will be slow to hold that there is no obligation to give the opportunity, when such an obligation is not dispensed with in the relevant statute. For the reasons given by Lord Sumption in paras 28 49, I consider that the Direction in this case was invalid owing to the failure of the Treasury to afford Bank Mellat the opportunity of making representations prior to its being made. Because of the division of opinion on this issue, I will attempt to summarise my reasons On the face of it at least, this was a paradigm case for the giving of prior notice. (i) The Direction was targeted at just two entities, one of which was the Bank; (ii) the consequences of giving the Direction and the making of the Order would clearly be drastic so far as the Bank was concerned; (iii) there was no need for secrecy or great haste in giving the Direction; (iv) the Direction would come into effect virtually at once; (v) the reasons for the Direction and Order were all based on the Banks dealings and ownership, so there could have been little doubt but that the Bank would have had relevant things to say about the proposed direction. On this last point, the Banks knowledge of its customers activities, the Banks ability to deal with the problem of unknowingly assisting the programme, and the ownership of the Bank are all points on which the Bank would have made strong and relevant representations if it had been given the chance to do so. Despite this, Bank Mellat was given no notice of the Treasurys intention to give the Direction against it or to put the Order before Parliament, and therefore it had no opportunity to put its case as to why such a direction should not be made. The Treasury raised a number of arguments as to why it was entitled not to give notice to the Bank of its intention to give the Direction. Some of those arguments were based on provisions of the 2008 Act; others were based on impracticality. I have no hesitation in rejecting the arguments based on impracticality, namely that (i) notice would have given the Bank the opportunity to re arrange its relationships, (ii) notice would have been ineffective or difficult because of the Treasurys reliance on secret material, (iii) notice would have to have been given to all those who dealt with the Bank, which would not have been realistic. As to those arguments, I have nothing to add to what Lord Sumption says at paras 31 32. I turn then to the Treasurys arguments based on the terms of the 2008 Act. There is nothing in the express terms of the statute which assists the Treasury, and it therefore has to rely on implication. In that connection, two arguments are raised as to why no consultation was required, namely (i) the fact that the Order had to be approved by affirmative resolution in both Houses of Parliament, and (ii) section 63 of the 2008 Act (section 63) entitled Bank Mellat to challenge any direction, and thus any consequential order, after it was made, and, when taken together with other provisions of Schedule 7, it is clear that there was no duty to have prior consultation. I would reject the contention that the fact that the Direction is enshrined in, or approved by, the Order means that its validity cannot be considered by the court. I agree with what is said by Lord Sumption in paras 40 45 and by Lord Reed in para 54. The fact that the Order in the present case was confirmed by Parliament does not detract from the applicability of the rule, in so far as it applies to the actions of the executive, i.e. the Treasury decision to make the Direction, as opposed to the legislative decision to confirm the consequent Order. Consequently, if the administrative decision to make the Direction was legally flawed for failure to consult the Bank, then the consequential Order should be quashed. There is no question of such a decision of this court in any way impinging on the sovereignty of Parliament. Lord Reed, however, relies in para 61 on para 14(5) of Schedule 7, which provides that if an order under Schedule 7 would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not such an instrument. In my view, the provision takes the matter no further, as it relates to the characterisation of, and Parliamentary processes relating to the making of, an order. I do not, with respect, see how it can impinge on the lawfulness of the Treasurys processes when deciding to make the antecedent direction. If anything, the exclusion of Bank Mellat from the Parliamentary process, as illuminatingly explained by Lord Hope, seems to me to support the argument that the Bank ought to have been consulted earlier. As to the Treasurys second argument, it may be that, in some cases, the fact that the statute granting the power in question gives a specific right of challenge subsequent to its exercise can be enough to dispense with any prior obligation to consult. However, in my view, it is by no means a sufficient answer in many cases. As a matter of logic, the two rights are a long way away from being mutually inconsistent or even duplicative. Indeed, if it were otherwise, the right to be consulted would be very rare, because, as Lord Sumption points out in para 37, there is almost always a right to challenge a decision of the executive as a matter of public law. A right to be consulted before a power is exercised is very different in its nature and in its potential effect from a right to challenge it after it has been exercised. The former involves representations to the intending exerciser of the power in relatively informal and flexible circumstances with a variety of possible outcomes, whereas the latter involves arguing against the exerciser in a formal, forensic context, where the courts powers are relatively constrained. In an era where mediation is increasingly supported, not least by the executive, the desirability of prior consultation, even where subsequent challenge through the courts is possible, is at least as great as it ever was. As between the two rights, the present case provides a very good demonstration of the difference between them in terms of their effect. The right to challenge a direction under Schedule 7 has many drawbacks compared with a right to be consulted before the direction is given. Particularly as the Direction has virtually immediate effect, the time it may take to challenge any subsequent order, coupled with the uncertainty while such challenge is under way, and the costs involved in such a challenge, mean that a subsequent right of challenge would be much less valuable than a right to make representations in advance. Further, there must be a real risk of a significant adverse effect on a banks reputation if a direction is made, even if it is subsequently quashed. Ignoring the subsequent appeals, well over seven months elapsed between the giving of the Direction in this case and Mitting Js decision as to its validity. Seven months is a very long time from the Banks perspective, and, even viewed objectively, it is a long time given that the Direction was only to last for twelve months. I am unimpressed by the Treasurys reliance on section 63. It purports to grant little, if anything, more than a specific statutory right to persons against whom a direction is made than they would be accorded by public law. That is clear from subsection (3) which provides that, on any challenge to a direction the court shall apply the principles applicable on an application for judicial review. Unlike Lord Reed in para 62, I do not see section 63 as giving greater rights to a person against whom a direction is made than they would enjoy under public law; nor do I consider that sections 65 68 of the 2008 Act suggest otherwise. Those sections were included, in my view, to deal with the need to protect confidential material in any proceedings under section 63. Indeed, I suspect that section 63 was included in the Act because it was more sensible in drafting terms to link those procedures to proceedings specified in the 2008 Act. Lord Reed identifies a number of other factors in paras 58 62 of his judgment which, when taken together with sections 63, and 65 8, of the 2008 Act, persuade him that the normal duty to consult has been abrogated. I do not agree. At a high level, I consider that, while the right to be consulted in advance about the exercise of a statutory power which will cause significant harm can be abrogated by implication in the statute, the right is so important that the implication must be very clear. More specifically, I am unimpressed with the various other factors which weigh with Lord Reed. The difficulty of consulting because of the need for confidentiality does not impress me for the reason given by Lord Sumption in para 31. It may be that, where the Treasury was proposing to make a direction against another bank or banks in different circumstances, it may not be practicable to give it or them to give an opportunity to comment, but such a point must be assessed on a case by case basis and in this case it fails for the reasons given by Lord Sumption in paras 31 33. As already explained, I do not consider that para 14(5) of Schedule 7 assists. Nor do I find para 15 of Schedule 7 of much help. The 2008 Act clearly had to specify the date from which a direction took effect, and where the direction concerned a specific person, as in this case, it was obviously sensible to provide that it took effect on the date on which it was served on that person. I find it impossible to think of any other way of ensuring both clarity and fairness. Conclusion In my view, therefore, Bank Mellats appeal should be allowed, the direction made by the Treasury should be set aside, and the Order quashed. I end by pointing out that the two grounds of challenge to the Direction in this case are not entirely unrelated either in principle or in fact. The uniting principle which applies both to the Banks substantive challenge and to its procedural challenge is the fundamental public law rule that the executive must exercise a statutorily conferred power fairly. When it comes to giving a direction under Schedule 7 which will foreseeably and substantially harm an entity, fairness requires the Treasury to have good enough reasons for giving the direction. It equally requires the Treasury to give the entity notice of the intention to give the direction, so that the entity can make representations about it in advance. So far as the facts are concerned, I have explained in paras 170 174 above why there is in my view considerable force in the Banks substantive challenge to the giving of the Direction, The fact that the justification for the Direction was not very strong, coupled with the more specific facts that the Treasury was wrong about the ownership of Bank Mellat and could usefully have discovered what steps the Bank was taking to avoid inadvertently supporting the programme, provide specific and practical support for the conclusion that the Bank should have been given an opportunity to make representations before the Direction was given. LORD DYSON (dissenting in part) I agree, for the reasons given by Lord Sumption, that the appeal should be allowed on the procedural issue. I was at first persuaded by Lord Sumptions judgment that the appeal should also be allowed on the substantive issue. But, like Lord Hope and Lord Neuberger, I find Lord Reeds analysis at paras 102 to 117 and 118 to 122 more convincing. Like Lord Neuberger, I express no view on paras 123 and 124 of Lord Reeds judgment. The Treasury has explained why Bank Mellat was singled out. The explanation is summarised at paras 103 to 106 and 113 of Lord Reeds judgment. Lord Sumption accepts (para 27) that the Schedule 7 direction may well have added something to Irans practical problem in financing transactions associated with its weapons programmes. But he concludes that the direction was irrational in its incidence and disproportionate to any contribution which it could rationally be expected to make to its objective. This conclusion is based on (i) making an assessment of what effect the direction would have on Irans ability to finance the weapons programme and (ii) conducting a proportionality exercise by balancing that effect against the undoubtedly grave consequences that the direction would have for Bank Mellat. As Lord Sumption acknowledges at para 21, any assessment of the rationality and proportionality of the direction must recognise that the nature of the issue requires that the Treasury be allowed a large area of judgment or margin of appreciation. The court is in a poor position to weigh the effectiveness of a measure whose object is to reduce (if not eliminate) Irans ability to fund its weapons programmes. This is not an area in which the court has any expertise. Accordingly, it should only hold that such a measure is irrational or disproportionate if it is confident that this has been clearly demonstrated. For the reasons given by Lord Reed, I am not confident that this has been done in the present case. I would therefore dismiss the appeal on the substantive issue. LORD CARNWATH (dissenting in part) judgments in support, I do not propose to add anything of my own. It seems better that Lord Sumptions reasoning should stand as the single majority judgment on this crucial issue. On the procedural point, by contrast, I find myself clearly on the side of the minority, agreeing wholly with the reasoning of Lord Hope on what I regard as a point of considerable general importance (paras 134 159). Like the other partial dissentients my views on the substantive issue have wavered. In the end however I am persuaded by Lord Sumption that the appeal should succeed on that issue for the reasons he gives (his paras 19 27). Notwithstanding the force of Lord Reeds alternative analysis, and the other	This appeal concerns the use of a closed material procedure (CMP) in the Supreme Court. A CMP involves the production of material which is so confidential and sensitive that it requires the court not only to sit in private, but to sit in a closed hearing. At a closed hearing, the court considers the material and hears submissions about it without one of the parties to the appeal seeing the material or being present, although that partys interests are protected, at least to an extent, by the presence of special advocates who make such submissions as they can on behalf of that party. A CMP also involves the court at least contemplating giving a judgment, part of which will be closed and not be seen by one of the parties or the public. Pursuant to various provisions of the Counter Terrorism Act 2008 (the 2008 Act), the Treasury made the Financial Restrictions (Iran) Order 2009 (the 2009 Order), which Parliament subsequently approved. The 2009 Order effectively shut down the United Kingdom operations of Bank Mellat (the Bank) and its subsidiary. Section 63 of the 2008 Act gives any party affected by such an order the right to apply to the High Court to set it aside. The Bank made such an application. The Government took the view that some of the evidence relied on by the Treasury to justify the 2009 Order was of such sensitivity that it could not be shown to the Bank or its representatives. In the High Court, Mitting J accepted the Governments case that justice required that the evidence in question be put before the court and that it had to be dealt with by a CMP. The hearing before him was partly in open court and partly at a closed hearing. Mitting J handed down an open judgment, in which he dismissed the Banks application, and a shorter closed judgment, which was seen by the Treasury, but not by the Bank, and is not publicly available. In the Court of Appeal, the appeal was heard largely by way of an open hearing. However, there was a short closed hearing at which the closed judgment of Mitting J was considered. The Court of Appeal dismissed the Banks appeal in an open judgment, and while it referred in general terms to the closed material in that open judgment, the Court of Appeal found it unnecessary to give a closed judgment. Before the Supreme Court, the Banks appeal was divided into two issues. The first issue concerned the use of a CMP in the Supreme Court. The second issue concerned the Banks appeal against the Court of Appeals decision to approve Mitting Js upholding of the 2009 Order. This judgment is on the first issue. A second judgment is given on the second issue: see Bank Mellat v Her Majestys Treasury (no. 2) [2013] UKSC 39. The Supreme Court decides (i) by a majority of six to three (Lord Hope, Lord Kerr and Lord Reed dissenting), that it is possible for the Supreme Court to adopt a CMP on an appeal, (ii) by a majority of five to four (Lord Hope, Lord Kerr, Lord Dyson, and Lord Reed dissenting), that it was appropriate to adopt a CMP in this appeal. Lord Neuberger gives the judgment of the majority on both (i) and (ii). Closed material procedures in the Supreme Court Section 40(2) of the Constitutional Reform Act 2005 (the 2005 Act) provides that an appeal lies to the Supreme Court against any judgment of the Court of Appeal. That must extend to a judgment which is wholly or partially closed. It would appear to be implicit in the notion that an appeal can be brought against a closed judgment that the appellate court can consider the closed judgment, and, at least at first sight, that could only be done at a closed hearing. That view is reinforced once one considers the other alternative courses of action, all of which are patently unsatisfactory [38] [42]. The notion that the Supreme Court has power to take such a course is reinforced by section 40(5) of the 2005 Act, which gives the Court the power to determine any question necessary for the purposes of doing justice [37]. Therefore, the Supreme Court can conduct a CMP where it is satisfied that it may be necessary to do so in order to dispose of an appeal [43]. It follows that the Supreme Court has the power to entertain a CMP on appeals against decisions of the courts of England and Wales on applications brought under section 63 of the 2008 Act [47]. Where a CMP has been adopted at first instance and in the Court of Appeal, for the Supreme Court to entertain an appeal without considering the closed material would, at least in many cases, not be doing justice, either in the sense of fairly determining the appeal, or in the sense of being seen fairly to determine the appeal [44]. The minority consider that Parliament has not conferred the power to conduct a CMP on the Supreme Court [78],[134]. For the Supreme Court to conduct a CMP would be contrary to the fundamental principle of the common law right to a fair trial [103],[138]. There is a strong presumption that Parliament does not intend to interfere with the exercise of fundamental rights, and it will be understood as doing so only if it does so expressly or by necessary implication [105],[135]. In the 2008 Act, Parliament introduced a CMP for the High Court, the Court of Session, and the Court of Appeal, but did not introduce such a procedure for the Supreme Court [125]. It is inconceivable that it was intended that the Supreme Court should have the power to carry out a CMP while leaving it bereft of the structure and safeguards which were deemed essential for those courts in which such a hearing is expressly permitted [116]. There are alternatives to CMPs in the Supreme Court, and choices to be made in relation to them, which are appropriately made by Parliament after full consideration [137]. Closed material procedure in this appeal Despite strong suspicions that nothing in Mitting Js closed judgment would have any effect on the outcome of the appeal, the majority decided to grant the Treasurys request to hold a CMP to consider it. This was because they could not be sure, without seeing the closed judgment and listening to submissions on it, whether the closed judgment would have any effect on the outcome of the appeal, and there seemed to be a real risk of justice not being seen to be done to the Treasury if the Supreme Court did not proceed to hold a closed hearing [64]. Having held a closed hearing, it turned out that there had been no point in the Supreme Court seeing the closed judgment, because there was nothing in it which could have affected the Supreme Courts reasoning in relation to the substantive appeal on the 2009 Order [65] [66]. Several conclusions can be drawn from this experience, which should be considered by any appellate court considering whether to adopt a CMP and by any advocate considering inviting an appellate court to take such a course [67] [74],[89] [97]. The minority consider that the Treasury fell far short of what was needed to show that a CMP was necessary in this case [90],[130],[139],[145]. This was because (i) the Court of Appeal did not find it necessary to refer to the closed judgment in any detail [91], (ii) there was no closed ground of appeal in this case [92], and (iii) the Treasury failed to indicate how looking at the closed judgment would assist in the disposal of the appeal [93] [96]. A CMP should be resorted to only where it has been convincingly demonstrated to be genuinely necessary in the interests of justice [128],[140]. If the Court strongly suspects that nothing in the closed material is likely to affect the outcome of the appeal, it should not order a closed hearing [144].
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).	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].
The question on this appeal is whether a bingo promoter is entitled to a refund of Value Added Tax (VAT) paid to the Commissioners of Her Majestys Revenue and Customs (HMRC) over many years on fees charged to customers for the right to play bingo. The question itself has only retrospective significance, as VAT on commercial bingo operations was replaced in 2003 by a separate bingo duty. But the appellants case also raises some broader issues about the assessment of VAT. The taxpayers operations The appellant company (which I shall refer to as the taxpayer) operates bingo clubs in Scotland. A customer who wishes to play bingo at one of its clubs pays a fee which entitles the customer to take part in a number of games of bingo, forming a session. On payment of the fee, the customer receives a book of cards. Each card contains a grid of numbers for one of the games in the session. The customer does not need to participate in every game. Cash prizes are paid to those who participate in games of bingo and win. As is well known, games of bingo are presided over by a caller who draws and announces random numbers. If the number called out is on a players card, the player marks it off. The game continues until one of the players has marked off on their card all the numbers required to win and announces that fact. The bingo club manager decides, after the sale of tickets for a particular session has concluded and immediately before the session begins, what the prize money for each game in the session will be save that some games, typically the jackpot game in the session, are played for fixed prizes advertised in advance. Such prizes tend to be consistent for the same sessions from week to week. VAT on bingo VAT is a tax charged on the supply of goods or services. There is a common system of VAT for member states of the European Union established by Council Directive (EC) 2006/112 of 28 November 2006 (the Principal VAT Directive). This directive continues to have effect in the United Kingdom during the transition period following the UKs exit from the European Union. The Principal VAT Directive replaced the Sixth Council Directive (Council Directive 77/388/EEC of 17 May 1977). It is sufficient to quote the relevant provisions of the Principal VAT Directive, as it made no changes from the Sixth Council Directive which matter for present purposes. The main UK national legislation is the Value Added Tax Act 1994 (the VAT Act) and the Value Added Tax Regulations 1995 (SI 1995/2518) made under that Act (the 1995 Regulations). The national legislation must be interpreted so far as possible in conformity with the underlying directive, which also creates rights that are directly enforceable by individuals against the state in so far as the national legislation has not implemented the directive or has not done so correctly: Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (Case C 152/84) [1986] QB 401, paras 46 47. Article 73 of the Principal VAT Directive provides: In respect of the supply of goods or services, the taxable amount shall include everything which constitutes consideration obtained or to be obtained by the supplier, in return for the supply, from the customer or a third party Article 73 is implemented in the UK by section 19 of the VAT Act, which includes the following provisions: (2) If the supply is for a consideration in money its value shall be taken to be such amount as, with the addition of the VAT chargeable, is equal to the consideration. (4) Where a supply of any goods or services is not the only matter to which a consideration in money relates, the supply shall be deemed to be for such part of the consideration as is properly attributable to it. VAT is a tax on turnover, not profit. Thus, in the normal case the tax is charged on the full amount which the customer agrees to pay to the trader without any deduction for costs incurred by the trader in making the supply (although VAT on inward supplies to the trader can be deducted as input tax from the traders output tax in calculating the amount of tax payable to HMRC). In the case of commercial gambling, however, it has been recognised that it would be wrong to regard all the money received from participants by the organiser as consideration for the supply of a service. As pointed out by Jacobs AG in H J Glawe Spiel und Unterhaltungsgerate Aufstellungsgesellschaft mbH & Co KG v Finanzamt Hamburg Barmbeck Uhlenhorst (Case C 38/93) [1994] STC 543; [1994] ECR I 1679, paras 14 30, and Fischer v Finanzamt Donaueschingen (Case C 283/95) [1998] QB 833, paras 32 59, the basic activity of gambling involves money changing hands through placing bets and receiving winnings and does not involve the consumption or supply of any goods or service at all. What can be seen as a service is promoting and organising the activity and providing facilities for it. In so far as money received from customers by the promoter or organiser is paid out again to players as winnings, it cannot fairly be regarded as consideration for the supply of this service. It is therefore only the net sum retained by the promoter after deduction of winnings which may be included in the taxable amount for VAT purposes. That approach was endorsed by the court now known as the Court of Justice of the European Union (the CJEU) in the Glawe Spiel case, which concerned the application of the VAT regime to gaming machines. The machines contained two compartments. Coins inserted to play on the machine went into one compartment (the reserve), unless the reserve was full, in which case they went into the cash box. Coins paid out as winnings all came from the reserve. Coins which entered the cash box were retained by the operator for its own benefit. The machines were set up so that on average they paid out as winnings a pre determined proportion of the money inserted. The CJEU held that in these circumstances the taxable amount did not include the winnings paid out to players. To apply this principle to bingo, it is common ground that it is necessary to divide the fees charged by the promoter to customers into two components. One component is referred to as the stake. This is the contribution which each customer is treated as making towards the cash prizes paid out to the winners of games of bingo. The stake is outside the scope of the VAT regime. The other component is the participation fee. This is calculated by deducting the stake from the total fee received and is treated as the consideration obtained by the promoter in return for the supply to the customer of the right to play bingo for cash prizes. At all material times, VAT was payable on this component. The change in HMRCs guidance The background to the present dispute is a change in the guidance given by HMRC about how the participation fees on which VAT was payable should be calculated. Until 2007, leaflets and notices published by HMRC stated that bingo promoters should calculate the participation fees separately for each game in a session. This is referred to as the game by game basis of calculation. In 2007, the guidance changed. In February 2007, HMRC issued Business Brief 07/07 (the business brief), which stated that the participation fees treated as taxable turnover should instead be calculated on a session by session basis. The difference of approach matters for this reason. As mentioned, some bingo games are played for fixed prizes advertised or guaranteed in advance. If too few customers pay to attend a session, the proportion of the fee paid by each customer which is attributed to such a game may not be enough to fund the guaranteed cash prize. In that event the promoter will have to top up the prize money for that game from other funds. If participation fees are calculated on a game by game basis, the funds used to top up the prize money for any game will not reduce the taxable turnover for the session. If, on the other hand, participation fees are calculated on a session by session basis, then amounts used to top up the prize money for any game will reduce the taxable turnover for the session (unless and to the extent that the total prize money paid out in the session exceeds the total fees received). Accordingly, if the game by game basis of calculation is used, the taxable consideration will potentially be higher than where the session by session basis is used. This is because, on the game by game approach, part of the prize money given out (that part which, for any individual game, is funded by participation fees attributable to other games in the session) is subject to VAT, whereas on the session by session approach this part of the prize money is not subject to VAT. The business brief As mentioned, the change of approach by HMRC was announced in the business brief, published in 2007, which aimed to clarify HMRCs policy on how to calculate for VAT purposes participation fees paid by cash bingo players. The key parts of the business brief said this: Calculating the VAT due When a player pays to participate in all or part of a bingo session, the supply made by the promoter is the right to participate in the number of games during that session for which they have received payment. As a player cannot participate in further sessions unless they make further payment, the supply to the player is completed when the session ends. In these circumstances the amount of VAT due on participation and session charges should properly be calculated on a session by session basis by deducting the stake money arising in each individual session from the total amount (less any admission fees) paid by players to participate in that same session. Where money from other sources is added to the stake money received in the session in order to meet guaranteed prizes, that additional money cannot be used to reduce the value for VAT of the participation and session charges paid for taking part in that session. Making claims or adjustments Bingo promoters that have calculated the VAT due on participation and session charges on a game by game basis, and who now find that they have done so incorrectly, may make a claim to HMRC for a repayment of any resulting overdeclaration, subject to the conditions set out in Notice 700/45 How to correct VAT errors or make adjustments or claims. In particular, businesses should note that: where the total of previous errors does not exceed 2,000 net tax, an adjustment may be made to your current VAT return; but where the total of previous errors exceeds 2,000 net tax a separate claim should be submitted to HMRC (in these cases the errors must not be corrected through your VAT returns). HMRC may reject all or part of a claim if repayment would unjustly enrich the claimant. Notice 700/45, to which cross reference was made in the business brief, gives general guidance on how to correct errors and make other adjustments to VAT returns and how to claim refunds of any VAT paid that was not due. At the relevant time the notice stated that any such claim or adjustment was subject to a time limit of three years. The legislative basis for the guidance in Notice 700/45 on claiming a refund of VAT paid that was not due was section 80 of the VAT Act. The version of section 80 in force at the relevant time (as amended by section 3 of the Finance (No 2) Act 1995) stated: Subsections (1A) and (1B) made further provision for the crediting and repayment of amounts that were not due. Section 80 continued: (1) Where a person (a) has accounted to the Commissioners for VAT for a prescribed accounting period (whenever ended), and (b) in doing so, has brought into account as output tax an amount that was not output tax due, the Commissioners shall be liable to credit the person with that amount. (2) The Commissioners shall only be liable to credit or repay an amount under this section on a claim being made for the purpose. (3) It shall be a defence, in relation to a claim under this section by virtue of subsection (1) or (1A) above, that the crediting of an amount would unjustly enrich the claimant. (4) The Commissioners shall not be liable on a claim under this section (a) (1) or (1A) above, or (b) (1B) above, to repay an amount to a person under subsection to credit an amount to a person under subsection if the claim is made more than three years after the relevant date. (4ZA) The relevant date is (a) in the case of a claim by virtue of subsection (1) above, the end of the prescribed accounting period mentioned in that subsection (7) Except as provided by this section, the Commissioners shall not be liable to credit or repay any amount accounted for or paid to them by way of VAT that was not VAT due to them. The taxpayers claims for repayment Until 2007, the taxpayer accounted for VAT on its bingo operations on a game by game basis in accordance with HMRCs published guidance. After the business brief was issued, the taxpayer made a claim under section 80 of the VAT Act for repayment of tax that would not have been payable had it calculated its taxable turnover on a session by session basis rather than a game by game basis. Because of the time limit in section 80(4), this claim was limited to output tax paid in the previous three years. The taxpayer was repaid the amount of tax that was not due in those years applying the session by session basis. In 2011 a First tier Tribunal (Tax Chamber) heard an appeal by another bingo club operator which had made a claim to be repaid output tax going back to 1996. As with the taxpayer in this case, that operator had calculated its taxable turnover on a game by game basis until HMRC published the business brief. The argument advanced in support of its claim was afterwards adopted by the taxpayer in the present case and I will consider it in more detail soon. In short, it was said that the change to a session by session basis of calculation had brought about a decrease in the taxable consideration received by the operator during the relevant period and that the operator was entitled to make an adjustment to its VAT return to reflect this reduction which was not subject to any time limit. The First tier Tribunal accepted this argument and allowed the appeal: see Carlton Clubs plc v Revenue and Customs Comrs [2011] UKFTT 542 (TC); [2011] SFTD 1209. In the light of this decision, the taxpayer in the present case made an adjustment of output tax in its VAT return for the period ending December 2012 in a sum of 460,630.36 by way of a credit to offset output tax brought into account in the years 1996 to 2004. The credit represented the amount of output tax that would not have been brought into account in those years if the session by session basis rather than the game by game basis of calculation had been used. The taxpayer explained its reasons for making this adjustment in a letter to HMRC dated 29 January 2013. On 21 March 2013 HMRC issued a decision declining to accept the adjustment and assessing the taxpayer for what it considered to be undeclared output tax in a corresponding amount. The proceedings below The taxpayer appealed against HMRCs decision and assessment to the First tier Tribunal (Tax Chamber), which allowed the taxpayers appeal, substantially adopting the reasoning of the tribunal in the Carlton Clubs case [2016] UKFTT 508 (TC). HMRC appealed to the Upper Tribunal (Tax and Chancery Chamber), which refused the appeal [2017] STC 1895; but its further appeal to the Inner House of the Court of Session was allowed by the First Division (Lord Carloway, Lord President, Lord Drummond Young and Lord Tyre) for reasons given in an opinion dated 13 December 2018: [2018] CSIH 78; [2019] STC 368. The Inner House accordingly reinstated HMRCs assessment of VAT. However, it granted the taxpayer permission to appeal to this court, noting that there are some 14 other cases pending which raise similar or related issues and are said to have a total value in the region of 30 to 40m. The taxpayers case The taxpayers case, presented with dexterity by Mr Roderick Cordara QC, has exhibited a somewhat protean quality but can, I think, be captured in the following contentions: i) The game by game and session by session methods were both lawful and correct methods of calculating output tax due on fees charged by the taxpayer for the right to play bingo for cash prizes and, as such, the taxpayers claim is not a claim for repayment of tax paid that was not due (which would be time barred under section 80 of the VAT Act). ii) Instead, the taxpayer has made an adjustment to its VAT return (to which no time limit applies) to reflect a decrease in consideration for the relevant supplies of services which has resulted from the change in the method of calculation. iii) The taxpayer is entitled to make such an adjustment as it was required or invited to do so by HMRC in the business brief. The statutory time limit The first and fundamental obstacle which the taxpayers claim faces is the time limit imposed by section 80 of the VAT Act. It is not disputed that the UK is entitled to set a time limit for making any claim to be credited or repaid tax that has been overpaid and that the time limit imposed by section 80 is valid and effective for this purpose. Hence it is not in dispute that, if the taxpayers claim for repayment of VAT accounted for between 1996 and 2004 falls within section 80, the claim is time barred. The taxpayer is therefore in the position of having to show, in order to succeed, that the output tax for which it accounted to HMRC on a game by game basis in those years was indeed due to HMRC. That is because if the amount which the taxpayer is claiming was not VAT due to [HMRC], then pursuant to section 80(4) and (7), HMRC is not liable to credit or repay that amount. This confronts the taxpayer with a dilemma. Clearly it does not wish to argue and does not argue that the approach set out by HMRC in the business brief was wrong and that the correct basis of calculation is the game by game basis and not the session by session basis. Such a contention, if correct, would defeat the taxpayers claim for repayment as it would mean that, for the years covered by the claim, tax has been correctly accounted for on the game by game basis. Worse than that, it would also mean that, by using the session by session basis of calculation for periods after 2004, the taxpayer has underpaid VAT and therefore owes money to HMRC. On the other hand, if the taxpayer accepts that, as stated in the business brief, VAT should properly be calculated on the session by session basis and not the game by game basis, then the taxpayer is in principle entitled to be repaid the amounts of output tax that were overdeclared in past years as a result of using the game by game method of calculation on the ground that such amounts were not due to HMRC. The taxpayer has indeed made a successful claim on this basis for the years 2005 to 2007. However, if this is the correct view, then the present claim relating to earlier years is time barred. The way in which the taxpayer seeks to escape this dilemma is by arguing that both methods of calculation are, in principle, correct and consistent with the applicable legislation. Accordingly, when the taxpayer was using the game by game method, it was paying output tax that was due; but it was also complying with the legislation and paying output tax that was due when it adopted the session by session method of calculation. To develop this argument, Mr Cordara QC drew a contrast between the normal case in which ascertaining a traders taxable turnover is a straightforward question of fact and a class of cases in which evaluative judgment is required. In the normal case the consideration obtained for a supply of goods or services is ascertained by identifying what, as a matter of fact, the customer agreed to pay for the supply. Sometimes, however, a single price is charged by a supplier which comprises a taxable element and a non taxable element (or element subject to a different rate of tax). This might be, for example, because a single price covers the supply of a service which is subject to VAT and another service which is exempt. In such cases some method of apportionment is needed to determine what part of the price paid by the customer is attributable to each element. This is often not an exact process. There may be no single right method of apportionment but two or more methods each of which is reasonable and legitimate. The present case falls into the category where the amount which the customer has agreed to pay needs to be split into two separate elements, one of which is taxable and the other not. The split is not one which has been agreed between the customer and the supplier. It requires an apportionment to be made based on an enquiry into the internal financial position of the suppliers business. Mr Cordara submitted that whether to take as the accounting unit for this purpose individual games of bingo, or bingo sessions, or all the games or sessions held in a week, or in a month, or in some other period, is a question to which there may be no one right answer. In relation to the taxpayers business, he argued, both the game by game basis and the session by session basis were reasonable and valid methods to adopt. It therefore cannot be said that, by accounting for VAT using the game by game method in line with HMRCs guidance at the time, the taxpayer brought into account as output tax any amount that was not due and which it is now seeking to claim back. In their written case counsel for HMRC did not appear to dispute that there was more than one lawful method of apportionment available to the taxpayer in this case. In oral argument Mr Thomson QC clarified HMRCs position as being that, while this may be so in principle, it was not true on the agreed facts of this case. For my part I think it clear that there can be only one correct method of calculating the taxable element of fees charged to customers for playing cash bingo and that, on the facts of the present case, this was the session by session method and not the game by game method. The correct method of calculation Counsel for the taxpayer was concerned to emphasise that deciding how to apportion a unitary price charged by a supplier into two elements for the purpose of calculating VAT can involve an exercise of evaluative judgment, as to which differences of view can exist within a spectrum of what is reasonable. This is undoubtedly true. But it does not follow that there must be more than one method of apportionment which the supplier may lawfully use. Although that is a possible conclusion for a court or tribunal to reach, in most cases where such a question is raised the court or tribunal can be expected to exercise its own judgment as to which method should be used. There is good reason for this. In matters of taxation consistency of approach is of critical importance. If the same exercise of apportionment may lawfully be carried out in more than one way, the result is likely to be that different taxpayers whose situations are identical will lawfully pay different amounts of tax. That offends the principle of equal treatment. It is also capable of distorting competition between businesses. In the case of a pan European system of taxation such as VAT, there is an additional consideration that recognising more than one method of apportionment as lawful could result in inequality in competition between businesses situated in different member states. This was a matter emphasised by the CJEU in MyTravel plc v Customs and Excise Comrs (Case C 291/03) [2005] STC 1617. That case concerned the apportionment for VAT purposes of a single price charged by a tour operator to customers for a package holiday which comprised services bought in from third parties (for example, hotel owners) and services provided by the tour operator itself (for example, where it used its own airline). In an earlier decision, Customs and Excise Comrs v Madgett and Baldwin (trading as Howden Court Hotel) (Joined Cases C 308/96 and C 94/97) [1998] STC 1189, the CJEU had considered two possible methods of making such an apportionment. One method treated the consideration attributable to each component as proportional to what it cost the operator to supply the service. The other method was based on the market value of each component, if sold separately. Both methods involved assumptions which were to some extent arbitrary. The court had ruled (at para 46 of the judgment) that: a trader may not be required to calculate the part of the package corresponding to the in house services by the actual cost method where it is possible to identify that part of the package on the basis of the market value of services similar to those which form part of the package. This could be read as giving the trader, where the market value of the in house services can be established, a choice of which method to use. In the MyTravel case, however, the CJEU held that this is not the position. The court ruled that a trader may not use the market value method at its own discretion according to whether this produces a lower tax liability than would result from using the actual cost method. Rather, the trader must use the market value method whenever possible unless the trader proves that the criterion of actual costs reflects the actual structure of the package (para 35 of the judgment). The reasons given (at paras 32 33 of the judgment) for not according traders the right to choose which method to use bear quotation: 32 The grant to taxable persons of such a right could have the consequence of allowing them to increase artificially the taxable amount subject to the lowest rate and of thus creating an inequality in competition between businesses, in favour of those which have established their business or have a fixed establishment in a member state which taxes certain transactions at very low rates or even zero rates them, as in the United Kingdom in relation to passenger transport. Such an interpretation could, therefore, run counter to the principle of neutrality of VAT. 33 As is apparent from the ninth recital in the preamble to the Sixth Directive, the Community legislature wished the taxable base to be harmonised so that the application of the Community rate to taxable transactions leads to comparable results in all the member states. This harmonisation is thus intended to ensure that situations similar from an economic or commercial point of view are treated identically as regards application of the VAT system. The harmonisation thus helps to ensure the neutrality of that system. The same aim of seeking to achieve harmonisation and a uniform basis of assessment such as will eliminate, as far as possible, factors which may distort competition is reflected in the fourth, seventh and eight recitals to the Principal VAT Directive. The only case cited on this appeal which proceeded on the basis that a taxable person had a right to choose between different lawful methods of apportionment is Victoria & Albert Museum Trustees v Customs and Excise Comrs [1996] STC 1016. In that case the trustees of a museum needed to apportion input tax on goods and services purchased for use in both their business and non business activities. Guidance published by HMRC stated that for this purpose there is no special method of apportionment and that any method could be used, provided that it produced a fair result and was used with the prior agreement of the local VAT office. Having used one method of apportionment for several years, the trustees obtained the agreement of their local VAT office to use a different method which was more advantageous to them. They then claimed a refund of the tax that would have been saved if the more favourable method had been used in earlier years, relying on a regulation which allowed an error in accounting for tax or in any return to be corrected. Turner J affirmed the finding of a tribunal that the trustees had not made an error when all that had happened was that they had chosen a method of assessment which did not provide the most favourable outcome. Whether or in what circumstances it is compatible with EU law to allow taxpayers a choice between methods of apportionment when calculating VAT was not a question considered in the Victoria & Albert Museum case, nor is it necessary to explore that question further here. The argument in the Victoria & Albert Museum case proceeded on the assumption that there was more than one lawful method of apportionment in accordance with the HMRC guidance applicable in that case. What the decision shows is that, if that is the position, it does not lead to the conclusion desired by the taxpayer. Where a lawful method has been adopted, the fact that another method could lawfully have been used does not in itself provide any basis for subsequently claiming a refund of tax that would have been saved if the alternative method had been used instead. In any event the facts of this case bear no relevant similarity to those of the Victoria & Albert Museum case. It has never been suggested in guidance issued by HMRC that bingo promoters had a discretion to choose between different methods of apportionment. Furthermore, contrary to what has been urged on the taxpayers behalf, the apportionment between taxable and non taxable elements of fees charged by bingo promoters to customers does not require an evaluative judgment. It is simply a matter of arithmetic and involves no exercise of judgment at all. Before a composite or package price is apportioned between taxable and non taxable elements, it is first necessary to identify the service or services in return for which the price is being charged. On the agreed facts of the present case, there can be no doubt about this. It is an agreed fact that what a customer who wishes to play bingo at one of the taxpayers clubs receives in return for payment of the fee charged is the right to participate in a session of bingo. That is reflected in the book of cards supplied to the customer at the time of payment. Whether customers choose to use all the cards they receive and play each game included in the session is up to them: there is no suggestion that any refund is available if a customer does not take part in a game; nor are cards sold separately for the individual games in a session. I recognise that the fact that a single composite price is charged is not decisive and there may be cases in which it better reflects commercial reality to regard customers who pay a single price as intending to purchase two or more distinct services: see Card Protection Plan Ltd v Customs and Excise Comrs (Case C 349/96) [1999] 2 AC 601, paras 29 31. However, in the present case I can see no reason and none has been advanced for going behind the pricing policy adopted by the taxpayer and treating the fee charged to participate in a session of bingo as if it were a bundle of separate fees charged for the rights to play separate games. On the contrary, such a division would fail to reflect the commercial reality that what a customer purchases and intends to purchase is the right to play all or any of the games which make up the session as he or she chooses. Once the relevant supply has been identified as the right to participate in a session, the apportionment of the fee charged to the customer into the separate components referred to as the stake and the participation fee does not involve any exercise of judgment. It is a simple arithmetical calculation. All that is required is to add up the total fees received for each session and deduct the total cash value of the prizes paid out in that session to arrive at the taxable consideration. That is an exercise which can yield only one correct answer. I therefore think it clear that on the agreed facts of this case the session by session basis was the only correct method of calculating taxable turnover. The game by game basis was an incorrect method to use because it wrongly treated customers as if they were paying separate fees to participate in individual games when in fact they were not. It follows that, in so far as the taxpayer accounted for more output tax and paid more VAT between 1996 and 2007 as a result of using the game by game basis of calculation than it would have done if the session by session basis had been used, the taxpayer accounted for and paid to HMRC tax that was not due. This should be a satisfactory conclusion for the taxpayer, as it means that the taxpayer was entitled under section 80 of the VAT Act to the refund of VAT for periods after September 2004 which it claimed. But the conclusion is not as munificent as the taxpayer would like, as it also means because of the time limit in section 80(4) that the taxpayer is not entitled to any refund of tax accounted for or paid to HMRC in any earlier period. That is a complete answer to taxpayers claim in these proceedings, but I will also address the further steps in the taxpayers argument. Alleged decrease in consideration The legislative provision on which the taxpayer has sought to found a claim for repayment of VAT without falling within section 80 of the VAT Act is article 90 of the Principal VAT Directive. This states: In the case of cancellation, refusal or total or partial non payment, or where the price is reduced after the supply takes place, the taxable amount shall be reduced accordingly under conditions which shall be determined by the member states. Although a contrary opinion was expressed by Lord Drummond Young in the Inner House, it is common ground on this appeal that there is no difference in meaning between the term price in article 90 and the term consideration used in article 73: see eg Finanzamt Bingen Alzey v Boehringer Ingelheim Pharma GmbH & Co KG (Case C 462/16) EU:C:2017:1006, para 45. The mechanism in UK national law for claiming repayment of VAT in cases covered by article 90 is contained in regulation 38 of the 1995 Regulations. Regulation 38 applies where there is an increase or a decrease in consideration for a supply which includes an amount of VAT, and the increase or decrease occurs after the end of the prescribed accounting period in which the original supply took place. In such circumstances the taxable person is required to adjust his VAT account in accordance with the regulation. Unlike where a claim for repayment of tax is made under section 80, there is no time limit for making an adjustment under regulation 38. The taxpayer argues that, where there has been a change from one method of calculating its tax liability (the game by game basis) to another method (the session by session basis) which produces a lower taxable amount, the adoption of the new method at any rate where it takes place in response to a relevant communication from HMRC involves a decrease in consideration (or reduction in the price) occurring after the accounting period in which the original supply took place. This accordingly requires an adjustment to be made under article 90 of the Principal VAT Directive and regulation 38 of the 1995 Regulations to reduce the amount of tax payable. I do not consider this a tenable interpretation of the legislation, essentially for reasons given by the Inner House. As the CJEU has observed on several occasions, the provision which is now article 90 of the Principal VAT Directive embodies one of the fundamental principles of the directive, according to which the basis of assessment is the consideration actually received by the taxable person. In accordance with that principle, the provision: requires the member states to reduce the taxable amount whenever, after a transaction has been concluded, part or all of the consideration has not been received by the taxable person. See Goldsmiths (Jewellers) Ltd v Customs and Excise Comrs (Case C 330/95) [1997] ECR 1 3801; [1997] STC 1073, paras 15 16; Freemans plc v Customs and Excise Comrs (Case C 86/99) [2001] 1 WLR 1713, para 33; Grattan plc v Revenue and Customs Comrs (Case C 310/11) [2013] STC 502, para 35. This may occur because part or all of the price is not in the event paid or because some form of rebate or refund is made by the supplier which reduces the consideration received after the supply has taken place. What is required, however, is a change in the consideration actually received by the supplier. No case has been cited in which it has been held that a change in the method used to calculate the taxable proportion of the consideration received falls within the scope of article 90. It is plain, in my view, that it does not. In such a case nothing has happened since the time of the supply to reduce the consideration actually received at that time. All that has happened is that the taxpayer has had second thoughts about how the consideration received at the time of the supply should be analysed for tax purposes. The position was well summarised by Lord Drummond Young in the Inner House, when he said (at para 61 of the judgment) that what is involved when a retrospective shift is made by a bingo promoter from a game by game to a session by session basis of calculation is not a decrease in consideration in the real world, as between a supplier and its customer, but is rather a re attribution of tax liability within the taxpayers internal accounts. I agree. A case heavily relied on by the taxpayer is Elida Gibbs Ltd v Customs and Excise Comrs (Case C 317/94) [1997] QB 499. This concerned coupon schemes operated by a manufacturer of toiletries under which consumers who presented a coupon (either cut out from a newspaper or magazine or distributed by the retailer) when buying a product in a shop received a discount off the purchase price. The prices charged by the manufacturer to wholesalers, and by wholesalers to retailers, were not affected by the coupon schemes. But retailers who accepted coupons from consumers could get the value of the coupons refunded to them directly by the manufacturer. The CJEU held that in calculating its taxable turnover the manufacturer could deduct the sums which it refunded, even though there was no direct contractual relationship between the manufacturer and the retailers to whom the sums were paid. The taxpayer emphasised that the CJEU in its judgment treated the predecessor provisions to articles 73 and 90 as expressions of the same underlying principle (of neutrality) and did not make it clear, or apparently think it necessary to specify, under which of those provisions the taxable amount was to be reduced. The taxpayer further emphasised that the reduction in the taxable amount recognised in the Elida Gibbs case did not involve any amendment of the contract or refund of money between the manufacturer and its customer (the wholesaler). This was said to show that in the present case there could likewise be a reduction in the taxable amount, and hence in the amount of VAT payable by the taxpayer, without any contractual amendment or refund of money to its customers. In my opinion, the decision in the Elida Gibbs case provides no assistance to the taxpayer. Although the CJEU was not asked to and did not decide in that case whether (the predecessor to) article 73 or article 90 was the applicable provision, it is clear from later decisions that it was the latter provision which applied and that the correct analysis is that the original taxable amount (ascertained when the goods were supplied by the manufacturer to its wholesaler customer) was subsequently reduced when coupons were accepted and refunds claimed and paid: see Freemans plc v Customs and Excise Comrs (Case C 86/99) [2001] 1 WLR 1713, paras 31 33 and 36; Finanzamt Bingen Alzey v Boehringer Ingelheim Pharma GmbH & Co KG (Case C 462/16) EU:C:2017:1006, paras 37 42. The fact that the refunds were paid, not to the manufacturers own customer but to a party further down the supply chain, was held not to matter. But it was fundamental to the courts reasoning in the Elida Gibbs case that the original taxable amount was not actually received by the manufacturer because part of that amount was subsequently repaid albeit directly to retailers rather than to its own customer. In the present case the supply chain does not extend beyond the taxpayers bingo playing customers and so the possibility of refunding part of the price to someone further down the supply chain does not arise. That feature of the Elida Gibbs case is therefore of no relevance. The essential point is that, unlike in the Elida Gibbs case, there has been no refund made to anyone by the taxpayer and accordingly article 90 is not engaged. It is worth noting in this context the reason why there is no time limit for making an adjustment under regulation 38 and the fact that this reason does not justify exempting from any time limit a claim of the present kind. Until it was revoked in 2009, regulation 38 used to contain a provision which said that it did not apply to any increase or decrease in consideration which occurs more than three years after the end of the prescribed accounting period in which the original supply took place. In General Motors Acceptance Corpn (UK) plc v Revenue and Customs Comrs (2003) VAT decision 17990 a tribunal held that this provision was ineffective because it was incompatible with the predecessor to article 90 of the Principal VAT Directive the reason being that imposing a limitation period has the effect of ousting the taxable persons basic right to be taxed on the consideration received by him and no more (see para 65). This is clearly right. It is right because no adjustment can be made under regulation 38 unless and until an event occurs, however long after the original supply was made, which reduces the consideration actually received by the taxable person. It would be contrary to principle if the taxable person was barred from making the necessary adjustment to its tax liability to take account of such an event by a time limit which had expired before the event occurred and the adjustment was capable of being made. That rationale, however, has no application in a case of the present kind where what is said to constitute a decrease in consideration does not depend on any event which has occurred since the supply of services was made. All that has happened is that the taxpayer has subsequently altered the way in which it has calculated its VAT liability. All the matters, however, on which the calculation of its liability is based (the amount of fees received from customers and the amount of the prize money paid out) were established when the original supply was made indeed even before each bingo session began. Nothing has happened since then which needs to be brought into account and which the taxpayer might have been prevented from bringing into account if there were a time limit. This is consistent with the fact that regulation 38 and article 90 are concerned with actual payments or changes in the liability to make payments which occur after a supply of goods or services has taken place and not with a mere subsequent change of accounting method. The effect of the business brief It would undermine the orderly management of the tax system and subvert the policy embodied in section 80 of the VAT Act if a taxable person could insist on adjusting its tax liability for all past years, without any limit in time, simply by deciding to adopt a different method of calculating the taxable element of the price charged to its customers. I noted earlier that, even if it had been true that the game by game method and the session by session method of calculating taxable turnover were both valid and lawful methods, the fact that the taxpayer switched after 2007 from one lawful method to another would not of itself give the taxpayer any right to recover the tax that it would have saved if it had previously used the session by session method. The basis on which the taxpayer has sought to found such a right is the publication by HMRC of the business brief. That document is said to have required or invited bingo promoters in the position of the taxpayer to make a retrospective adjustment to their VAT account by re calculating their output tax for all past years (without limit in time) using the session by session basis instead of the game by game basis of calculation. The way in which the taxpayers case was put before the tribunals and the Inner House was to argue that, although both methods of calculation were consistent with the applicable legislation, the taxpayer was required to use the method set out in the guidance published by HMRC at any given time. This guidance was said to contain directions as to the method of calculation to be used. Thus, it was said that initially directions given by HMRC required the taxpayer to calculate its taxable turnover on a game by game basis. But then, when the guidance changed, the taxpayer was required to calculate its taxable turnover using the session by session basis of calculation not only going forward but also retrospectively for all past periods. It is, however, a misconception to characterise guidance of the kind issued by HMRC in this case as capable of giving directions with which taxpayers are obliged to comply. As Lewison LJ explained in Leeds City Council v Revenue and Customs Comrs [2015] EWCA Civ 1293; [2016] STC 2256, para 4: The administration and collection of VAT in this country is under the management of HMRC (formerly the Commissioners for Customs and Excise). There are many problems of interpretation arising out of the VAT code and HMRC provide the public with their own interpretation of points of difficulty; and information about the practice they adopt in various areas. These are variously contained in notices, business briefs and the VAT manual. They are not law: they are no more than HMRCs interpretation of the law. HMRC are not of course infallible, and so Parliament has legislated for a system of tribunals to decide contested points. As and when cases are decided against HMRC they will often revise their opinion and inform the public accordingly. Sometimes, of course, HMRC disagree with a tribunal decision, in which event they may choose to appeal. The fundamental point that an administrative agency, such as HMRC, has no power (in the absence of specific statutory authority) to issue guidance which has legally binding force is qualified by the doctrine which protects legitimate expectations created by such a public body. There is no doubt that guidance formally published by HMRC is capable in some circumstances of generating an expectation on the part of a taxpayer that a particular policy or practice or course of action will be followed which the law will protect by preventing HMRC from acting in a way which will frustrate that expectation: see eg R (Davies) v Revenue and Customs Comrs [2011] UKSC 47; [2011] 1 WLR 2625, paras 25 29. It is not necessary on this appeal, however, to examine the precise contours of this doctrine, as it is clear that it has no relevance to the facts of this case. The taxpayer is not seeking to prevent HMRC from frustrating an expectation said to have been created by guidance published before 2007 that the game by game method could properly be used to calculate the amount of VAT payable. Such an argument might have been advanced if the game by game method had been more favourable to the taxpayer than another method which HMRC was now contending ought to be used. But the factual situation in this case is the direct opposite of that. The taxpayer is seeking to argue that the game by game method should not be used to calculate the tax that was payable in periods before 2007. Any legitimate expectation that the taxpayer is entitled to rely on the accuracy of pre 2007 guidance does not assist that argument. Accordingly, to suggest that the business brief required bingo promoters to use the session by session basis of calculation ascribes to guidance published by HMRC a status which it does not have. Such guidance is not capable of imposing on taxpayers an obligation to calculate tax in a particular way. It represents only HMRCs view or interpretation of the law and, if a taxpayer disagrees with HMRCs view, it can appeal from a decision or assessment based on that view to a tribunal whose function it is to give authoritative interpretations of the law (subject to any further appeal). In any case it is quite impossible to read the language of the business brief as instructing bingo promoters to make retrospective adjustments to their VAT returns. The section of the business brief (quoted at para 15 above) headed Making claims or adjustments says that bingo promoters who fall into the category described may make a claim for a repayment, not that they must to do so. In oral argument on this appeal Mr Cordara for the taxpayer accepted that the business brief merely invited and did not require bingo promoters who had in past periods calculated VAT on a game by game basis to seek a repayment. His submission was that this could be done as the heading of the relevant section of the business brief indicated in either of two ways: by making a claim or by making an adjustment. If a bingo promoter made a claim for repayment on the basis that it had paid tax which was not due, this would be governed by section 80 of the VAT Act, with its time limit on recovery. If on the other hand the promoter elected to make an adjustment under regulation 38 on the basis that there had been a decrease in consideration for the supply, then (as already mentioned) such an adjustment is not subject to any time limit. Having originally availed itself only of the first option, it is the latter invitation which the taxpayer has now chosen to accept. I have explained why, as a matter of law, the only basis on which a repayment of tax could properly be claimed or made in the circumstances of the present case is that the tax was not due because it was calculated on a game by game basis when it should have been calculated on a session by session basis, and that there is no legal basis on which an adjustment under regulation 38 could properly be made. Had HMRC invited bingo promoters to make such adjustments and offered to repay tax which it was not liable to repay, it seems to me that it would have been acting outside its powers. But, in any case, the business brief cannot reasonably be read as making such an invitation or offer. The only invitation made in the business brief was to bingo promoters who have calculated VAT on a game by game basis, and who now find that they have done so incorrectly, to make a claim to HMRC for a repayment of any resulting overdeclaration. Such a claim can only reasonably be understood as a claim under section 80 the VAT Act, made on the footing that the promoter had overpaid tax because it had used the game by game method of calculation when, as advised in the business brief, the amount of VAT due should properly be calculated on a session by session basis. The sole peg on which the taxpayer seeks to hang its contention that adjustments under regulation 38 were invited is the reference to adjustments in the section heading and in the cross reference to Notice 700/45. It is true that the subject matter of Notice 700/45 included adjustments under regulation 38 (although, unhelpfully for the taxpayers case, such adjustments were said in the notice to be subject to a time limit of three years). However, the notice provided entirely general guidance about how to correct VAT errors and make adjustments or claims and was not specifically concerned with bingo. The fact that it included an explanation of how to make an adjustment under regulation 38 therefore does not mean that HMRC in the business brief were inviting bingo promoters who had previously used a game by game basis of calculation to make an adjustment under regulation 38. There was no suggestion that everything covered by the notice was relevant to the claims for repayment which bingo promoters were invited to make. Nor does the fact that the heading refers to making claims or adjustments support such an inference. The reference to adjustments in the body of the section, to which this must relate, is in the first bullet point, which states that where the total of previous errors does not exceed 2,000 net tax, an adjustment may be made to your current VAT return. This kind of adjustment to correct small errors was provided for in regulation 34 of the 1995 Regulations (and was also explained in Notice 700/45). It was quite different from the kind of adjustment to reflect a decrease in consideration provided for in regulation 38. Moreover, as the second bullet point explained, where the total of previous errors exceeds 2,000 net tax a separate claim should be submitted to HMRC. This could only be a claim under section 80 of the VAT Act for repayment of tax paid in error when it was not due. That was yet further confirmed by the statement that HMRC may reject all or part of a claim if repayment would unjustly enrich the claimant. A defence of unjust enrichment is provided by section 80(3) in relation to claims under section 80 of the VAT Act. I therefore consider that the language of the business brief is entirely inconsistent with the taxpayers case and can only reasonably be read in the way that it was originally read by the taxpayer, as inviting (only) claims from bingo promoters for repayment of VAT which had been calculated incorrectly by using the game by game basis of calculation when the session by session basis ought to have been used, subject to the statutory time limit for such claims of three years. Conclusion For these reasons I can find no merit in the taxpayers arguments and would dismiss the appeal.	The Appellant (the taxpayer) operates bingo clubs. Customers pay a fee, which entitles them to play in a number of bingo games (collectively, a session). There is no obligation to play every game in a session. Prizes are paid to those who win games. VAT is charged on the supply of goods or services. Council Directive (EC) 2006/112 of 28 November 2006 (the Principal VAT Directive), which currently still applies in the UK, establishes a common system of VAT for member states of the European Union. The main UK national legislation is the Value Added Tax Act 1994 (the VAT Act) and the Value Added Tax Regulations 1995 (the 1995 Regulations). VAT is normally charged on the full amount paid by the customer. However, exceptionally in the case of commercial gambling the taxable amount is the net sum retained by the organiser after deducting the winnings paid out. For bingo, the fees charged must therefore be divided into two components: the stake, which is the contribution each customer makes towards the cash prizes, and the participation fee, which is the total fee received minus the stake. At all relevant times VAT was payable on the participation fee and not the stake. The present dispute arises from a change in guidance given by HMRC about how participation fees should be calculated. Until 2007, the guidance stated that bingo promoters should calculate the participation fees separately for each game. In February 2007, HMRC issued Business Brief 07/07 (the business brief), which stated that participation fees should be calculated on a session by session basis. This is more favourable to the promoter than the game by game basis as it tends to produce a lower taxable amount. The business brief stated that Bingo promoters that have calculated the VAT due on participation and session charges on a game by game basis, and who now find that they have done so incorrectly, may make a claim to HMRC for a repayment of any resulting overdeclaration, subject to the conditions set out in Notice 700/45. Notice 700/45 gave general guidance and stated that a claim was subject to a time limit of three years. This time limit had a legislative basis in section 80 of the VAT Act. The taxpayer accounted for VAT on a game by game basis until 2007. After the business brief was issued, the taxpayer made a claim under section 80 of the VAT Act for repayment of sums overpaid as a result of having used this basis of calculation; because of the time limit in section 80, the taxpayer claimed and was repaid for the previous three years only. In 2011, the First tier Tribunal (Tax Chamber) heard an appeal by another bingo club operator, which argued that it was entitled to make an adjustment without any time limitation. The First tier Tribunal agreed: Carlton Clubs plc v Revenue and Customs Comrs [2011] UKFTT 542 (TC); [2011] SFTD 1209. In light of that case, the taxpayer in the current dispute sought to make an adjustment for the years 1996 HMRC declined to accept that. The taxpayer appealed. The question for the Supreme Court was whether the taxpayer was entitled to make such an adjustment. The Supreme Court unanimously dismisses the appeal. Lord Leggatt gives the sole judgment. The first obstacle facing the taxpayer was the time limit in section 80 of the VAT Act, which applied to recovery of money paid that was not VAT due to HMRC. To avoid the time limit, the taxpayer therefore had to argue that all the tax paid on a game by game basis in the years 1996 2004 was due to HMRC [24]. The taxpayer argued that both the session by session and game by game methods were legitimate methods of calculation. As such, when using the game by game method, it was paying tax that was due and therefore section 80 of the VAT Act, and its time limit, did not apply [27]. Lord Leggatt disagreed; there was only one correct method of calculating the taxable element which was the session by session method [30]. In the present case, it was an agreed fact that a customer purchased a right to participate in a session of bingo [38]. No reason was advanced for going behind the pricing policy adopted by the taxpayer [39]. It followed that if, as a result of using the game by game basis, the taxpayer had paid more VAT to HMRC between 1996 and 2007 than if it had used the session by session method, then the taxpayer had paid tax that was not due. This means that section 80 with its three year time limit applied, so that VAT paid before 2004 cannot be recovered [41]. This was sufficient to dispose of the appeal. However, Lord Leggatt went on to address the rest of the taxpayers argument. The taxpayer sought repayment by relying on article 90 of the Principal VAT Directive, which states In the case of cancellation, refusal or total or partial non payment, or where the price is reduced after the supply takes place, the taxable amount shall be reduced accordingly under conditions which shall be determined by the member states. The mechanism for adjustments under article 90 is found in regulation 38 of the 1995 Regulations, which applies where there is an increase or a decrease in consideration for a supply. There is no time limit for making such adjustments [45]. The taxpayer argued that where the method of calculation changes and produces a lower amount, there is a reduction in the price / decrease in consideration for a supply for which an adjustment can be made under regulation 38 [46]. Lord Leggatt rejected that argument [47]. Article 90 and regulation 38 apply only where there has been a change in the consideration actually received by the taxpayer, not where all that has changed is the method used to calculate the taxable amount [48]. It would subvert section 80 of the VAT Act if the taxable person could, by adopting a different method of calculation, adjust its liability for all past years. The taxpayer further argued that the business brief required or invited bingo promoters to change the calculation method and make retrospective adjustments accordingly [57]. This was also not accepted. HMRC does not generally have the power to issue binding guidance [59] and the business brief was merely HMRCs view of the law; if the taxpayer disagreed, the position would need to be resolved by a tribunal [60]. In any case, the business brief could only reasonably be read as inviting bingo promoters who found that they had incorrectly calculated VAT on a game by game basis to make a claim for repayment under section 80 [64]. It could not be read as inviting promoters to make adjustments under regulation 38 [65]. The business brief was therefore inconsistent with the taxpayers case [67].
On 26 October 2010 this Court issued its judgment in Cadder v HM Advocate [2010] UKSC 43, 2010 SLT 1125. It held that the Crowns reliance on admissions made by an accused without legal advice when detained under section 14 of the Criminal Procedure (Scotland) Act 1995 gave rise to a breach of his right to a fair trial, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421. This was because the leading and relying on the evidence of the appellants interview by the police was a violation of his rights under article 6(3)(c) read in conjunction with article 6(1) of the European Convention on Human Rights: see Cadder v HM Advocate, para 63. The evidence that was in question in Cadder had been obtained when the appellant was being questioned while in detention at a police station. The applicant in Salduz too had been taken into custody before he was interrogated during his detention by police officers of the anti terrorism branch of the Izmir Security Directorate. But the facts of those cases by no means exhaust the situations in which the prosecution may seek to rely on answers to questions that have been put to the accused by the police. The Court now has before it four references by judges of the High Court of Justiciary which have been required by the Lord Advocate under paragraph 33 of Schedule 6 to the Scotland Act 1998. Common to them all is the fact that incriminating answers were given to questions put by the police when the accused did not have access to legal advice. In three of them the evidence that is objected to was obtained by the police otherwise than by questioning at a police station following detention under section 14 of the 1995 Act. They can be grouped together and are the subject of this judgment. The fourth is concerned with the question whether the ratio of the decision in Salduz extends to lines of enquiry to which the accuseds answers to questions while in detention have given rise. That reference is dealt with in a separate judgment: P v HM Advocate [2011] UKSC 44. The issues that the first three references raise are (1) whether the right of access to a lawyer prior to police questioning, which was established by Salduz, applies only to questioning which takes place when the person has been taken into police custody; and (2) if the rule applies at some earlier stage, from what moment does it apply. The first reference is of a case which is the subject of an appeal against conviction. The second is of a case which is before the Appeal Court in an appeal against a ruling by a sheriff on the admissibility of evidence. The third is of case which is the subject of a devolution minute which was referred by the trial judge to the Appeal Court under paragraph 9 of Schedule 6 to the Scotland Act 1998. The cases that are the subject of the second and third references that have Page2 not yet gone to trial, so the names of the parties involved have been anonymised. In each case the reference has been made by the Appeal Court at the request of the Lord Advocate. The first reference The appellant in the first case, John Paul Ambrose, was prosecuted on summary complaint at Oban Sheriff Court on a charge of contravening section 5(1)(b) of the Road Traffic Act 1988 as being in charge of a motor vehicle whilst having consumed a level of alcohol in excess of the prescribed limit. He had been found by two police officers sitting in the passenger seat of a car parked by the roadside. A female was sitting in the drivers seat. A member of the public had expressed concerns to the police about them because they were thought to be drunk. As there was vomit beside the drivers door and the female was seen to be upset, the police officers decided to speak to the appellant. Having formed the view that he had been drinking, one of the police officers cautioned the appellant but did not give him any specification about the offence which he was suspected of having committed. The appellant made no reply when cautioned. He was then asked three questions, to which he gave answers, by the police. They were as follows: Q Where are the keys for the vehicle? A In my pocket. Q Do you drive the car? A Yes. Q Are you going to drive the car? A Ah, well she wisnae well or Aye, well she wisnae well. The appellant then removed the car keys from his trouser pocket. He was asked whether he had anything to drink in the last 20 minutes and replied that he had not. He was then given a roadside breath test which he failed. He was taken to Oban police station where he gave a breath/alcohol reading that was well in excess of the prescribed limit. The appellant pled not guilty to the complaint. He went to trial before a Sheriff on 31 May 2010 and 2 July 2010. The evidence of the questions and answers was led without objection from his solicitor. After the Crown had closed its case the appellants solicitor challenged the admissibility of this evidence on the ground that the police had not informed the appellant of the offence of which he was suspected before he was questioned. The sheriff repelled this submission. After hearing evidence from the appellant and a defence witness, he found the appellant guilty. He was fined 375, was disqualified from driving for two years and had his licence endorsed. The appellant then lodged an appeal against his conviction. Among the grounds on which he applied for a stated case was the submission that the act of the Lord Advocate in seeking a conviction in reliance on the evidence of the police interview was incompatible with his right to a fair trial under article 6(1). Leave to appeal having been refused at the first sift, he appealed to the second sift and then lodged a devolution minute in which it was stated that for the Lord Advocate to support the conviction would be incompatible with his rights under article 6(1) and article 6(3)(c). In a note which he lodged on 12 October 2010 in support of the appeal he submitted, with reference to the decision in Salduz, that the use of the evidence of the interview was unfair as he did not have access to legal representation before or during the police interview. On 3 November 2010 leave to appeal was granted at the second sift. Following a procedural hearing on 26 January 2011 and at the request of the Lord Advocate, the Appeal Court referred the following question to this court: Whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the appellant conducted under common law caution at the roadside and without the appellant having had access to legal advice was incompatible with the appellants rights under article 6(1) and 6(3)(c) of the European Convention on Human Rights, having regard in particular to the decision of the Supreme Court of the United Kingdom in Cadder v HM Advocate 2010 SLT 1125. The second reference The accused in the second case, referred to as M, has been indicted in the sheriff court on a charge of assault to severe injury, permanent disfigurement and permanent impairment. Shortly after the assault took place on 30 August 2008, in the course of initial inquiries, the police took the accuseds details from him but allowed him to leave the locus. On 4 September 2008 however he was traced to his home address where, after administering a common law caution to the effect that he was not required to say anything but that anything he did say might be used in Page4 evidence, a police officer asked a total of seven questions, each of which was answered by the accused. They were as follows: Q I am investigating a serious assault which happened on Saturday night there, within a bar named [X]. There was a large disturbance in there too. Were you there? A Yes, aye. Q Were you involved in the fight? A Aye. Q Who were you with? A My dad and just boys fae [Y] where I used to work. Q Were they involved too? A I think so, the other boys started it. I got punched a couple of times on the eyebrow. Its still sair. Q OK, what were you wearing? A Pale blue t shirt, jeans, trainers. Q OK [M], I will stop there. I need to speak to you further except it will be recorded in a taped interview format. Can you be at [Z] Police Office tomorrow night at 8 pm? A Yes. Q I need to take your t shirt you had on, is that OK? A Aye. At this point the police officer concluded his questions because he felt that it had become obvious that the accused had some involvement on the incident and that it was not appropriate to carry out an interview there. The accused attended the police office the next day. He was then detained and interviewed under section 14 of the 1995 Act, in the course of which he made further admissions. The accused was indicted for trial, and after sundry procedure he lodged a minute raising the issue whether the Crown had power to lead evidence of the admissions which he had made. When the minute was argued before the sheriff on 9 November 2010 the Crown conceded that the evidence of the admissions made during the section 14 interview was inadmissible. But the sheriff ruled that evidence relating to the questions and answers at the accuseds home on 4 September 2008 was admissible. The accused appealed against that decision to the High Court of Justiciary, contending that by failing to allow him access to legal advice prior to interview and there being no compelling reasons to justify this, his admissions allegedly obtained under caution had been unfairly obtained and were therefore inadmissible. Following a procedural hearing on 26 January 2011 and at the request of the Lord Advocate, the Appeal Court referred the following question to this court: Whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the accused, conducted under common law caution at his home address and without the accused having had access to legal advice would be incompatible with the accuseds rights under article 6(1) and 6(3)(c) of the European Convention on Human Rights, having regard in particular to the decision of the Supreme Court of the United Kingdom in Cadder v HM Advocate 2010 SLT 1125. The third reference The accused in the third case, referred to as G, has been indicted in the High Court of Justiciary with offences including the possession of controlled drugs under the Misuse of Drugs Act 1971 and possession of prohibited firearms and ammunition under the Firearms Act 1968. The police had obtained a search warrant under the 1971 Act for the search of a flat where on 4 June 2008, having forced entry, they found the accused. Before commencing the search in terms of the warrant the accused, who had been handcuffed following a struggle, was cautioned in these terms: A systematic search will be carried out in your presence. I must caution that you are not obliged to say anything or make any comment regarding any article that may be found, but anything you do say will be noted and may be used in evidence. The accused was then detained and searched. Prior to being searched he admitted to having drugs in his jeans pocket, from which a bag of brown powder was recovered that was later found to be heroin. He was then arrested for contravention of section 23(4) of the 1971 Act. He was not arrested or charged with any other offence in the course of the search of the premises. During the search he was asked questions about the items which were found. He was not offered access to legal advice or to a solicitor before being asked these questions. After the search was concluded he was removed to a police station where he was detained under section 14 of the 1995 Act and again interviewed by the police in connection with alleged offences involving controlled drugs and firearms. He was not allowed access to legal advice before or during this interview. The Crown does not seek to rely on answers which the accused gave while he was being interviewed in the police station, but it seeks to rely on the statements and answers which he made at the premises in the course of the search. They are set out in a schedule which was completed as the search of the flat was carried out. Without that evidence there would not be sufficient evidence to convict the accused. The accused has lodged a devolution minute in which he contends that the leading of evidence of the statements and answers which he made at the premises would be incompatible with his Convention right to a fair trial. The trial judge decided to refer this issue to the Appeal Court under paragraph 9 of Schedule 6 to the Scotland Act 1998. On 18 January 2011 at the request of the Lord Advocate the Appeal Court referred the following question to this court: Is it incompatible with the Panels Convention rights for the Lord Advocate to lead evidence of his statements and answers made during the course of the search conducted under warrant granted in terms of section 23(3) of the Misuse of Drugs Act 1971 as recorded in the Search Production Schedule? In each of these three cases the circumstances differ from those that were before the court in Cadder and before the Grand Chamber in Salduz. The evidence that is objected to was obtained, in Ambroses case before he was taken to the police station for further procedures to be carried out under section 7 of the Road Traffic Act 1988 following his failure of a road side breath test, and in the cases of M and G before they were detained and questioned at a police station under section 14 of the 1995 Act. It is precisely because the issue that the references raise was not the subject of decision in either case that the courts guidance is now sought by the Lord Advocate. His position is that three features determine whether an individual has a right to legal advice under article 6 in accordance with the principle in Salduz. These features are all taken from words used by the Grand Chambers judgment in that case: see paras 55 and 56. First, he must be a suspect. Second, he must be in police custody. Third, he must be the subject of police interrogation. Unless all three features are present, he has no right of access to legal advice under article 6. These propositions all assume, of course, that the court finds that article 6(1) was engaged when the incriminating statements were made. This is because the protection of articles 6(1) and 6(3)(c) is afforded only to those who have been charged, as that word has been interpreted by the Strasbourg court. Each of these expressions will need to be analysed in the discussion that follows. Background Two very important points need, however, to be made at the outset. The first is that the jurisdiction of this court is limited to a consideration of the devolution issue which is raised by each of these references. That is plain from the wording of paragraph 33 of Schedule 6 to the Scotland Act 1998 under which the references have been made, but it needs to be emphasised yet again. The High Court of Justiciary is the court of last resort in all criminal matters in Scotland: see section 124(2) of the Criminal Procedure (Scotland) Act 1995; McInnes v HM Advocate [2010] UKSC 7, 2010 SLT 266, para 5, Fraser v HM Advocate [2011] UKSC 24, 2011 SLT 515, para 11. It is not our function to rule on how the circumstances referred to in each case would fall to be dealt with under domestic law, although this does form part of the background. The second point is that a decision by this court that there is a rule that a person who is suspected of an offence but is not yet in custody has a right of access to a lawyer before being questioned by the police unless there are compelling reasons to restrict that right would have far reaching consequences. There is no such rule in domestic law: see para 22, below. If that is what Strasbourg requires, then it would be difficult for us to avoid holding that to deny such a person access to a lawyer would be a breach of his rights under articles 6(1) and 6(3)(c) of the Convention. But the consequences of such a ruling would be profound, as the answers to police questioning in such circumstances would always have to be held in the absence of compelling reasons for restricting access to a lawyer to be inadmissible. The effect of section 57(2) of the Scotland Act 1998 would be that the Lord Advocate would have no power to lead that evidence. I agree with Lord Matthew Clarke that this would have serious implications for the investigation of crime by the authorities: see para 116, below. This suggests that a judgment pointing unequivocally to that conclusion would be required to justify taking that step. If Strasbourg has not yet spoken clearly enough on this issue, the wiser course must surely be to wait until it has done so. Section 126(1) of the Scotland Act 1998 provides that the Convention rights has the same meaning as in the Human Rights Act 1998. Section 2(1) of the Human Rights Act requires this court in determining any question which has arisen in connection with a Convention right to take into account any relevant Strasbourg case law. In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 26 Lord Slynn of Hadley said that, although the Human Rights Act did not provide that a national court is bound by these decisions, it is obliged to take account of them so far as they are relevant: In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence. In R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20 Lord Bingham of Cornhill said that Lord Slynns observations in that case reflected the fact that the Convention is an international instrument, the correct interpretation of which can be expounded only by the Strasbourg court. From that it followed that a national court should not without strong reason dilute or weaken the effect of the Strasbourg case law. It was its duty to keep pace with it as it evolved over time. There is, on the other hand, no obligation on the national court to do more than that. As Lord Bingham observed, it is open to member states to provide for rights more generous than those guaranteed by the Convention. But such provision should not be the product of interpretation of the Convention by national courts. Lord Kerr says that it would be wrong to shelter behind the fact that Strasbourg has not so far spoken and use that as a pretext for refusing to give effect to a right if the right in question is otherwise undeniable: para 130, below. For reasons that I shall explain later, I do not think that it is undeniable that Strasbourg would hold that any questions put to a person by the police from the moment he becomes a suspect constitute interrogation which cannot lawfully be carried out unless he has access to a lawyer, which is the principle that Lord Kerr derives from his consideration of the mainstream jurisprudence: see para 146, below. But his suggestion that there is something wrong with what he calls an Ullah type reticence raises an important issue of principle. It is worth recalling that Lord Binghams observations in Ullah were not his first pronouncements on the approach which he believed should be taken to the Convention. In Brown v Stott 2001 SC (PC) 43, 59 he said: In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European Court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept. As an important constitutional instrument the Convention is 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 those limits will often call for very careful consideration. The consistency between this passage and what he said in Ullah shows that Lord Bingham saw this as fundamental to a proper understanding of the extent of the jurisdiction given to the domestic courts by Parliament. Lord Kerr doubts whether Lord Bingham intended that his discussion of the issue should have the effect of acting as an inhibitor on courts of this country giving full effect to Convention rights unless they had been pronounced upon by Strasbourg: para 128, below. I, for my part, would hesitate to attribute to him an approach to the issue which he did not himself ever express and which, moreover, would be at variance with what he himself actually said. Lord Binghams point, with which I respectfully agree, was that Parliament never intended to give the courts of this country the power to give a more generous scope to those 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. That is why, the courts task in this case, as I see it, is to identify as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies. The background in domestic law The powers of the police to detain a person and to subject him to questioning depend on the category into which the person falls at the time these powers are being exercised. They differ according to whether the person is a witness, a suspect or an accused. Where a person is not under suspicion, the police have no power to take him into custody or to compel him to submit to police questioning. Such a person is classified, at most, as a witness. A person who is in that category can be asked to provide personal information, such as his name and address. Further questions may be put as part of a routine investigation into the events that have happened. So long as he is being questioned as a potential witness rather than as a suspect, the right to protection against self incrimination is not in play. There is no obligation to advise him of his rights, such as the right to silence or his right to seek legal advice. As Lord Justice Clerk Thomson said in Chalmers v HM Advocate 1954 JC 66, 81, a person ultimately accused may be interviewed as part of the ordinary routine investigation of the police into the circumstances of the crime. It would unduly hamper the investigation of crime if the threat of inadmissibility were to tie the hands of the police in asking questions at this stage. The position changes if the stage is reached when suspicion begins to fall on the person who is being questioned. Once suspicion has begun to fall on him the need to protect him against self incrimination comes into play. As Lord Justice General Cooper explained in Chalmers v HM Advocate 1954 JC 66, 78: The theory of our law is that at the stage of initial investigation the police may question anyone with a view to acquiring information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion, or more than suspicion, has in their view centred upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous, and, if carried too far, eg to the point of extracting a confession by what amounts to cross examination, the evidence of that confession will almost certainly be excluded. It was for a time thought that this passage was to be taken to establish that answers by suspects to police questioning were inadmissible by virtue of the persons position as a person under serious consideration as the perpetrator of the crime. But, as the law has developed, the position is less easy to define: see Renton and Brown, Criminal Procedure, 6th ed looseleaf (1996), para 24 38. In Miln v Cullen 1967 JC 21 it was held that the incriminating answers which the driver of a car gave when questioned by police officers who had formed the opinion that he was under the influence of drink were admissible in evidence. Lord Justice Clerk Grant said at p 25 that the constable, in asking the simple question whether he was the driver, was not merely acting reasonably, properly and fairly but was acting in accordance with the duties incumbent upon him. Lord Wheatley said at pp 30 31 that it was difficult to define with exactitude when a person becomes a suspect in the eyes of a police officer, as it may vary from a very slight suspicion to a clearly informed one, and that what happened after that had to be judged by the test of fairness. In Lord Advocates Reference (No 1 of 1983) 1984 JC 52, 58 Lord Justice General Emslie said that Lord Wheatleys statement in Miln v Cullen, at p 31 that in each case the issue is whether the question was in the circumstances a fair one was a sound statement of the law: A suspects self incriminating answers to police questioning will indeed be admissible in evidence unless it can be affirmed that they have been extracted from him by unfair means. The simple and intelligible test which has worked well in practice is whether what has taken place has been fair or not? (see the opinion of the Lord Justice General (Clyde) in Brown v HM Advocate 1966 SLT 105 at 107). In each case where the admissibility of answers by a suspect to police questioning becomes an issue it will be necessary to consider the whole relevant circumstances in order to discover whether or not there has been unfairness on the part of the police resulting in the extraction from the suspect of the answers in question. He went on to say that, where the words interrogation and cross examination were used in the decided cases in discussing unfair tactics on the part of the police, they were to be understood to refer only to improper forms of questioning tainted with an element of bullying or pressure designed to break the will of the suspect or to force from him a confession against his will. The current position as described in Renton and Brown, para 24 39 is therefore that the fact that the accused was at the time under suspicion or even under arrest is not in itself crucial. It is merely a circumstance like any other to be taken into account in assessing the fairness of the police questioning. The legal basis for detaining and questioning a suspect was clarified by section 2 of the Criminal Justice (Scotland) Act 1980 which was consolidated as section 14 of the Criminal Procedure (Scotland) Act 1995. The background to the legislation was described with characteristic skill and attention to detail by Lord Rodger in Cadder, para 74 86. As he explained in para 86, one aim was to put an end to the doubts about the legal basis for holding suspects for questioning when they had not been arrested. Another was to clarify the law as to the power of the police to question suspects and as to the admissibility of any answers that the suspects gave to such questions. A person may be detained for the purpose of carrying out investigations where a constable has reasonable grounds for suspecting that he has committed or is committing an offence punishable by imprisonment: section 14(1). Where a person has been detained under section 14(1) a constable may, without prejudice to any relevant rule of law as regards the admissibility in evidence of any answer given, put questions to him in relation to the suspected offence: section 14(7). The effect of the decision in Cadder is that the Lord Advocate has no power to lead and rely on answers by a detainee who was subjected to questioning by the police while he was without access to legal advice. In none of the situations described in each of the references was the person who was being questioned a detainee under section 14 of the 1995 Act. The domestic law test for the admissibility of the answers that were given to the questions put by the police is whether or not there was unfairness on the part of the police. The fact that the person did not have access to legal advice when being questioned is a circumstance to which the court may have regard in applying the test of fairness, but it is no more than that. There is no rule in domestic law that says that police questioning of a person without access to legal advice who is suspected of an offence but is not in custody must always be regarded as unfair. The question is whether a rule to that effect is to be found, with a sufficient degree of clarity, in the jurisprudence of the Strasbourg court. The reasoning in Salduz The starting point for an examination of this question must be the reasoning of the Grand Chamber in Salduz. Some of the propositions that are set out in its judgment are expressed in a way that might suggest that the right of access to a lawyer is not confined to persons who are subjected to police questioning while they are in custody. Para 55 of the judgment is in these terms: Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently practical and effective article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction whatever its justification must not unduly prejudice the rights of the accused under article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction. Read on its own, and without taking full account of the context in which these sentences were written, that paragraph suggests that the features which determine whether access to legal advice is to be provided are (a) that the person is a suspect, and (b) that he is subject to police interrogation. No mention is made in this paragraph of his being in police custody. The fact is, however, that the applicant was in police custody when he was interrogated by the police. The narrative of the facts in paras 12 14 shows that it was not until after he had been taken into custody by police officers from the Anti Terrorism Branch of the Izmir Security Directorate that he was interrogated. That being so, it is necessary to look elsewhere in the judgment to see whether the court was contemplating anything other than an interrogation in police custody when it came to set out what it did in para 55 of the judgment. In Part II A of the judgment, under the heading Domestic law, the court referred to legislation in force at the time of the application which provided that anyone suspected or accused of a criminal offence had a right of access to a lawyer from the moment they were taken into police custody. The reason why this had not been provided to the applicant was that the legislation did not apply to persons accused of offences falling within the jurisdiction of the state security courts, which his offence did. The challenge, therefore, was to a systematic departure from the right of access to a lawyer which the law gave to everyone else. In its examination of recent amendments in paras 29 31 of the judgment too its focus was on provisions that deal with juveniles taken into police custody. That continued to be its focus in its examination of the relevant international law materials in Part IIB. Chapter 1 of that Part refers to materials from the Council of Europe and the United Nations dealing with procedure in juvenile cases where the child had been deprived of his liberty by means of pre trial detention. The heading of Chapter 2 is Right of access to a lawyer during police custody. Reference is made in para 37 of the judgment to rule 93 of the Standard Minimum Rules for the Treatment of Prisoners adopted by the Council of Europe Ministers, which states that an untried prisoner shall be entitled as soon as he is imprisoned to choose his legal representatives and to receive visits from his legal adviser, and, in para 38, to a recommendation of the Committee of Ministers to Member States of the Council of Europe dealing with the right of prisoners to legal advice. There is no sign here or in its examination of the United Nations materials in paras 41 42 that the Grand Chamber was interested in the position of suspects who were questioned by the police when not in custody. Nor is there any sign of an international consensus that there is a right of access to a lawyer at that stage. The part of the judgment which deals with the alleged violation of article 6 of the Convention begins at para 45. The first section, which is headed Access to a lawyer during police custody, continues to para 63. It includes para 55, which I have already quoted: see para 26, above. In para 45 it is stated that the applicants allegation was that his defence rights had been violated as he had been denied access to a lawyer during his police custody. The parties submissions, as narrated in paras 47 49 were directed to this issue. There then follows a discussion of the general principles which were applicable to the case: paras 50 55. In this passage, to which I will return, the court does not, at least in so many words, limit its scrutiny of the principles to what they require in cases where the person concerned is in police custody. But in the next section, where it applies the principles to the case of applicant, the fact that he was in police custody lies at the heart of the discussion; paras 56 62. The holding in para 80 states that there had been a violation of the applicants rights under article 6(1) in conjunction with article 6(3)(c) on account of the lack of legal assistance while he was in police custody. But for the discussion of the relevant principles in paras 50 55, which is not so limited, there would be no doubt at all that the Grand Chambers declaration in the last sentence of para 55 that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction was directed to the situation where that interrogation took place while the person was in police custody. That is the conclusion that one would naturally draw from the context. The concurring opinions of Judge Bratza and Judge Zagrebelsky lend further support to this conclusion. Judge Bratza said in para O I2 that, like Judge Zagrebelsky, he thought that the court should have used the opportunity to state in clear terms that the fairness of criminal proceedings under article 6 required that, as a rule, a suspect should be granted legal advice from the moment he is taken into police custody or pre trial detention. No mention is made in either of these opinions of any rule to the effect that the suspect should be granted legal advice at any earlier stage. It may be, as Lord Rodger suggested in Cadder, para 70, that what these judges were contemplating was legal assistance for other purposes such as support for an accused who was distressed or to check on the conditions of detention. Whatever the reason, they were plainly not addressing their remarks to situations such as those described in the references where the questioning took place before the suspect was taken into police custody. The discussion of the general principles in paras 50 55 is not limited in this way. As para 50 makes clear, the fact that the applicants case was concerned with pre trial proceedings did not mean that article 6 had no application. The point is made that the fairness of a trial may be seriously prejudiced by an initial failure to comply with its provisions. In para 51 reference is made to the right of everyone charged with a criminal offence to be effectively defended by a lawyer, the choice of means of ensuring this being left to the contracting states. The paragraph ends with a warning that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused. So far there is nothing to suggest that the Grand Chamber was searching for a basis for a ruling that the right of access to a lawyer arose at a stage before the suspect was taken into police custody. In para 52 reference is made for the first time to the attitude of the accused at the initial stages of police interrogation and to the fact that article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer at this stage. No mention is made of where he was assumed to be when he is being questioned, but the cases referred to in the footnote to this paragraph are all cases where the applicant was in custody when he was subjected to interrogation by the police: Murray v United Kingdom (1996) 22 EHRR 29, Brennan v United Kingdom (2001) 34 EHRR 507 and Magee v United Kingdom (2000) 31 EHRR 822. In para 53 it is stated that the principles outlined in the previous paragraph are also in line with the generally accepted international human rights standards which, as the footnote to this paragraph indicates, are those set out in Part B of the judgment: see para 28, above. These are said to be at the core of the concept of a fair trial. Their rationale relates in particular to the protection of an accused against abusive coercion on the part of the authorities. The language used and the international materials referred to suggest that what the Grand Chamber had in mind here was the need for protection of the accused against abusive coercion while he was in custody. In para 54 it underlined the importance of the investigation stage for the preparation of criminal proceedings and referred to the fact that the accused often finds himself in a particularly vulnerable position at that stage of the proceedings and to the fact that early access to a lawyer was part of the procedural safeguards to which the court will have particular regard. The stage in the proceedings that the court had in mind is not specified other than by reference to the accuseds vulnerability. This is said to be amplified by the fact that legislation in criminal procedure tends to become increasingly complex. It seems that what the Grand Chamber had in mind here was a stage when the accused was being subjected to detailed questioning of the kind that, under the inquisitorial systems, will invariably take place after the accused has been taken into custody. This impression is reinforced by the reference in the third last sentence of the paragraph to the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment about the right of a detainee to have access to legal advice as a fundamental safeguard against ill treatment to which, I would infer, it was thought a detainee might be vulnerable. This analysis of the reasoning of the Grand Chamber in Salduz suggests that the judgment was concerned only with establishing a rule that there was a right of access to a lawyer where the person being interrogated was in police custody. The alternative view is that in para 55 it recognised a broader principle that the rule applies as soon as the person has been charged so that article 6 is engaged. This alternative has a certain logical appeal for the reasons that Lord Kerr has identified. The prejudice suffered by the accused is the same irrespective of the stage at which an incriminating statement is made in answer to questions put by the police. But the base on which this proposition rests is not that the Convention prohibits absolutely any reliance on incriminating statements. The privilege against self incrimination is not an absolute right: Murray v United Kingdom (1996) 22 EHRR 29, para 47. It is primarily concerned with respecting the will of the person to remain silent: Saunders v United Kingdom (1996) 23 EHRR 313, para 68. Everyone is entitled to respect for the right not to incriminate himself, irrespective of whether or not he is in police custody. Nevertheless a person can confess if he is willing to do so, and his confession will be admissible if it is truly voluntary. The underlying principle therefore is that there is a right against self incrimination which in some circumstances must be protected by special measures to protect the person against the risk that a confession may be obtained from him against his will by unfair tactics by the police. That is why the court recognised in its application of those principles to Salduzs case, as it had already done in para 54, that an interview which takes place in police custody has particular features which require the provision of an especially strong protection to protect the rights of the defence against a forced confession. It is that aspect of Salduzs case which seems to have informed the whole of the courts judgment. It seems to me that the Grand Chambers judgment, when taken as a whole, does not indicate with a sufficient degree of clarity or indeed, I would suggest, in any way at all that the ruling in para 55 about incriminating statements made without access to a lawyer applies to questions put by the police before the accused is taken into custody. The context would have required this to be stated expressly if it was what was intended, as the rule which the judgment laid down can be departed from only where there are compelling reasons to justify its restriction. It would have had to have been stated precisely to what situations outside police custody the rule was to apply, and it was not. The jurisprudence since Salduz The Grand Chambers judgment has, not surprisingly, been referred to many times by the Strasbourg court since the judgment in that case was delivered. The question is whether there is an indication in any of the cases that the right of access to a lawyer arises, as a rule, as soon as a person whose rights under article 6 are engaged is subject to questioning by the police. There are passages in some of the cases which indicate that Salduz is regarded as having been concerned only with the need for legal advice while the person was in custody. In Dayanan v Turkey (application no 7377/03) (unreported) given on 13 October 2009, which is a decision of the Second Section and is available only in French, the applicant was arrested and detained as part of an operation against the Hizbullah. He was informed of his right to silence and exercised it, as he refused to answer the questions put to him by the police. It was held nevertheless that there had been a breach of article 6(3)(c) in conjunction with article 6(1) because he did not have access to a lawyer while he was being interrogated. The court said: 31. Elle estime que lquit dune procdure pnale requiert dune manire gnrale, aux fins de larticle 6 de la Convention, que le suspect jouisse de la possibilit de se faire assister par un avocat ds le moment de son placement en garde vue ou en dtention provisoire. 32. Comme le souligne les normes internationales gnralement reconnues, que la Cour accepte et qui encadrent sa jurisprudence, un accus doit, ds quil est priv de libert, pouvoir bnficier de lassistance dun avocat et cela indpendamment des interrogatoires quil subit (pour les textes de droit international pertinents en la matire, voir Salduz, prcit, paras 37 44) The proposition in para 32 that an accused must have access to a lawyer from the moment he is deprived of his liberty (un accus doit, ds quil est priv de libert, pouvoir bnficier de lassistance dun avocat) seems to go further than what the Grand Chamber itself said in Salduz. It is more in keeping with the concurring opinions of Judge Bratza and Judge Zagrebelesky. However that may be, the passages which I have quoted indicate the importance that appears to have been attached by Strasbourg to the fact that the person was in police custody when he was being interrogated. It is especially significant that this is what the court saw the international consensus (les normes internationales gnralement reconnues) to be on this issue. Three other cases from Turkey are to the same effect. In Arzu v Turkey (application no 1915/03) (unreported) given on 15 September 2009 the applicant, who was arrested and placed in custody, complained that he had been denied access to a lawyer during the initial stages of the criminal proceedings against him. The court said that Salduz had considered the grievance of a lack of access to a lawyer whilst in police custody: para 46. In Duman v Turkey (application no 28439/03) (unreported) given on 23 March 2010 the court said in para 46 that the use of statements obtained at the stage of the police inquiry and the judicial investigation is not inconsistent with article 6(1), provided that the rights of the defence are respected. On that point the court said that it relied on the basic principles laid down in its judgments, including Salduz, para 55, concerning the notion of a fair procedure. In Takin v Turkey (application no 5289/06) (unreported) given on 1 February 2011 the applicant complained that he had had no legal assistance before he made his police statement or during his interrogation before the public prosecutor while in custody. The court observed that it had already examined the issue concerning the lack of legal assistance in police custody in Salduz, paras 56 62. In all these cases, as in Salduz itself, there was a systemic restriction on access to legal advice by anyone held in police custody in connection with proceedings that were to be taken in the state security courts. In Pishchalnikov v Russia (application no 7025/04) (unreported) given on 24 September 2009 the applicant, who had been arrested, was interrogated while he was in police custody. The pattern of the First Sections judgment followed that of the Grand Chamber in Salduz. It repeated many of the propositions in paras 50 55 of Salduz in its assessment of the case under the heading Restrictions on access to a lawyer in the police custody, and referred in para 71 to the fact that the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of a fair procedure under article 6. But, as it was a custody case, it does not examine the question whether these propositions require access to a lawyer at any earlier stage. In Sharkunov and Mezentsev v Russia (application no 75330/01) (unreported) given on 10 June 2010 the question before the court was again directed to the lack of legal assistance while in police custody and the use at the trial of incriminating statements that had been made at that stage. In para 97 the court repeated the proposition that was first stated in Salduz, para 55 that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction. But once again the police interrogation in the course of which these statements were made took place while the applicant was in police custody. In Borotyuk v Ukraine (application no 33579/04) (unreported) given on 16 December 2010 the applicant was, once again, in police custody during the pre trial investigation. Here too the propositions on which the court based its judgment are closely modelled on what the Grand Chamber said in para 55 of Salduz. In para 79 it summarised the general principles that are to be found there. It stated that, as a rule, access to a lawyer must be provided as from the first questioning of a suspect by the police, unless it can be demonstrated in the light of the particular circumstances that there are compelling reasons to restrict that right. As in para 55 of Salduz, no indication is given that the principles are restricted to cases where the accused was in police custody. But, as in Salduz, that was the background against which the case was heard. Once again it is unclear whether the general propositions on which the judgment was based must equally be applied, as a rule, to cases where the accused was not in custody when the questioning took place. Zaichenko v Russia The First Section had the opportunity to clarify where the court stood on this issue in Zaichenko v Russia (application no 39660/02) (unreported) given on 18 February 2010. This appears to have been the only case to date in which the complaint was of lack of legal assistance during questioning by the police when the applicant was not in custody. He was stopped while he was driving home from work and his car was inspected by the police as there had been reports of workers stealing diesel from their service vehicles. Two cans of diesel were discovered in the car. The applicant made self incriminating statements in reply to questions put to him by the police at the roadside. He was charged with stealing the cans, and he was convicted. His complaint was that he had not been advised of the privilege against self incrimination when he made his admission to the police. His position at the trial was that he had purchased the diesel at a petrol station and that he did not give this explanation to the police because he felt intimidated and did not have a receipt to prove the purchase. In its assessment the court set out the general principles that are relevant to a consideration of whether there has been a violation of the right to a fair trial. It noted that article 6(3)(c) especially might be relevant before a case is sent to trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by a initial failure to comply with its requirements. In para 36 it recalled, as the Grand Chamber did in Salduz, the proposition that the court set out in Imbrioscia v Switzerland (1993) 17 EHRR 441, para 38 that the manner in which articles 6(1) and 6(3)(c) were to be applied during the preliminary investigation depended on the special features of the proceedings and on the circumstances of the case. Account was taken in para 37 of the principles set out in Salduz, para 55 and in para 38 of the fact that the right to silence and the right not to incriminate oneself are generally recognised standards which lie at the heart of the notion of a fair procedure. Para 38 then contains these important propositions which did not receive the same attention in Salduz: The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, J B v Switzerland, no 31827/96, para 64, ECHR 2001 III). In this sense the right is closely linked to the presumption of innocence contained in article 6(2) of the Convention. In examining whether a procedure has extinguished the very essence of the privilege against self incrimination, the Court must examine the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put (ibid). Applying these propositions to the applicants case, the court noted in para 42 that in criminal matters article 6 comes into play 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 concerned was officially notified that he would be prosecuted or the date when the preliminary investigations were opened. Eckle v Germany (1982) 5 EHRR 1, para 73 was referred to, which includes the proposition taken from cases such as Deweer v Belgium (1980) 2 EHRR 439, para 46 that the test as to whether a person has been charged for the purposes of article 6(1) is whether the situation of the person has been substantially affected. The court concluded that, given the context of the road check and the applicants inability to produce any proof of the diesel purchase at the moment of his questioning by the police, there was a suspicion of theft against him from that moment and that, although he was not yet accused of any criminal offence, his situation in the proceedings at the roadside was substantially affected. So article 6(1) was engaged at that point. But the fact that article 6(1) was engaged did not mean that a right of access to a lawyer arose at that point. The court observed in para 47 that the case was different from previous cases concerning the right to legal assistance in pre trial proceedings. This was because the applicant was not formally arrested or in police custody but was stopped for a roadside check which was carried out in the presence of two attesting witnesses. In para 48 it said: Although the applicant in the present case was not free to leave, the Court considers that the circumstances of the case as presented by the parties, and established by the Court, disclose no significant curtailment of the applicants freedom of action, which could be sufficient for activating a requirement for legal assistance already at this stage of the proceedings. In para 49 it noted that the role of the police in such a situation was to draw up an inspection record and receive the applicants explanation as to the origin of the cans in his car. Having done so, the police transferred the documents to the inquirer who submitted a report to his superior which prompted him to open a criminal case against the applicant. In para 51 it held that the absence of legal representation at the roadside check did not violate his right to legal assistance under article 6(3)(c). In a partly dissenting opinion Judge Spielmann said that the interview took place in circumstances that could in no way be compared to those normally observed during routine road checks and he could not agree that the circumstances of the case disclosed no significant curtailment of the applicants freedom of action such as to require legal assistance. He did not take issue with the principle formulated in para 48. His dissent was as to its application to the facts of the case. Mr Scott for Ambrose submitted that it was wrong to look at the courts reasoning in Salduz through what it decided in Zaichenko. Mr Shead for M submitted that Zaichenko was so out of line with the other cases, and so hard to reconcile with the basic principles that were stated in Salduz, that it should be regarded as having been wrongly decided. I would reject these arguments. The President of the Court, Judge Rozakis, was a member of the Grand Chamber in Salduz, as was Judge Spielmann. The importance of the question that the case raised, which was whether the ruling in Salduz applied to questioning where the applicant was not in police custody, would not have been overlooked. The reasoning shows that the reasoning in Salduz was fully taken into account. The finding in para 48 that the circumstances did not disclose a sufficient curtailment of the applicants freedom of action which could be sufficient for activating a requirement for legal assistance indicates that the court was well aware that it had to give reasons for reaching a different result. That it did so in the way that it did shows that this is a judgment which must be taken into account in the search for an answer to the question where the jurisprudence of the Strasbourg court stands on the question we have to decide. Abdurahman v United Kingdom The question whether the right of access to a lawyer applies at a stage before the person is taken into custody is now before the Strasbourg court in an application by Ismail Abdurahman, application no 40351/09. He was questioned by the police as a witness in connection with the attempt to detonate four bombs at separate points in the London public transport system two weeks after the bombings that took place on 7 July 2005. He had been approached by two police officers who took him to a police station. According to their evidence at the voir dire at the applicants trial, this was with a view to his assisting the police as a potential witness. They began interviewing him, but after about 45 minutes of questioning they considered that, as a result of the answers that he was giving, he was in danger of incriminating himself and should be cautioned. On instructions from a senior officer they continued nevertheless to interview him as if he were a witness. It was not until after he had completed and signed his witness statement, which contained statements that were incriminating and was made without access to legal assistance, that they were told to arrest him and he was then taken into custody. This case is still awaiting a hearing in Strasbourg. It has reached the stage of the court posing questions to the parties, which are whether there has been a violation of article 6(1) together with article 6(3)(c) arising from (a) the failure to caution the applicant before he gave his witness statement (Aleksandr Zaichenko v Russia, no 39660/02, 18 February 2010); and/or (b) the failure to provide him with legal assistance before he gave the witness statement? In particular, were the rights of the defence irretrievably prejudiced by the use of the witness statement at trial (Salduz v Turkey [GC], no 36391/02, para 55, 27 November 2008)? It is, of course, too early to say what view will be taken of this case when the facts have been assessed by the court in the light of the relevant principles. But it is at least likely that its judgment will provide some useful guidance as to the approach that is to be taken to a persons rights under article 6(1) together with article 6(3)(c) where the prosecution seeks to rely on answers given to questions by the police before he is formally taken into custody. The key issue, so far as the references that are before the court in this case are concerned, is whether, as a rule, access to a lawyer must always be provided when a person is questioned at any stage in the proceedings after he has become a suspect and must be taken to have been charged for the purposes of article 6 (see paras 62 63, below), or whether access to a lawyer is required, as a rule, only where the person has been taken into custody or his freedom of action has been significantly curtailed. The fact that this application is still pending suggests that, if there was any doubt as to where the jurisprudence of the Strasbourg court stands, it would have been wise to wait for its judgment in Abdurahman before holding that there is a rule that access must be provided in any situation that is not analogous on its facts to that which was before the court in Salduz. But that is for another day, as the delivery of the judgment in that case cannot be taken to be imminent. Miranda v Arizona The Lord Advocate placed considerable weight in support of his argument on the judgment of the Supreme Court of the United States in Miranda v Arizona 384 US 436 (1966). In that case the Supreme Court held that the prosecution may not use statements, whether incriminatory or exculpatory, stemming from custodial interrogation of a defendant unless it demonstrated the use of procedural safeguards which were sufficient to secure the privilege against self incrimination. These safeguards require that, unless other fully effective means are devised to inform the accused person of the right to silence and to assure continuous opportunity to exercise it, he must be warned that he has a right to remain silent, that any statement that he does make may be used as evidence against him, that he has the right to consult with an attorney and that, if he cannot afford one, a lawyer will be appointed to represent him. Custodial interrogation for the purposes of this rule means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way: p 444. Miranda has been referred to in a number of individual opinions given by judges of the Strasbourg court. Judge De Meyer referred to it in his dissenting opinion in Imbrioscia v Switzerland (1993) 17 EHRR 441. The applicant in Imbrioscia had been questioned several times without access to a lawyer while he was in police custody but the court held, considering the proceedings as a whole, that there had been no breach of article 6(1) read with article 6(3)(c). Judge De Meyer said that the court had failed to recognise the rules governing the right to legal advice during custodial interrogation which the Supreme Court has summarised in its Miranda judgment and which he said belonged to the very essence of fair trial. In Murray v United Kingdom (1996) 22 EHRR 29 the applicant had been denied legal advice for 48 hours after he had been taken into custody. The court held that there had been a violation of article 6(1) read with article 6(3)(c). The partly dissenting judges, Judge Pettiti, joined by Judge Valticos, and Judge Walsh, joined by Judges Makarczyk and Lhmus, also referred to the Miranda judgment in this context. Judge Walsh pointed out that the Supreme Court had affirmed that the constitutional protection against self incrimination contained in the Fifth Amendment guarantees to the individual the right to remain silent unless he chooses to speak in the unfettered exercise of his own free will whether during custodial interrogation or in court. Much more recently, but prior to the Grand Chambers decision in Salduz, Judge Fura Sandstrm joined by Judge Zupani referred to Miranda in Galstyan v Armenia (2007) 50 EHRR 618 when, in para 0 I5, she described the right to be assisted by a lawyer as a bright line rule which nobody should cross and said that its purpose was to neutralise the distinct psychological disadvantage that suspects are under while dealing with the police. The Strasbourg court has not referred to Miranda in any of its judgments, and Imbrioscia, Murray and Galstyan are the only cases where it has been referred to in a dissenting opinion in the context of what is described in Miranda as custodial interrogation. But it can be assumed that the court will not have overlooked it in its search for generally accepted international human rights standards. The dissenting judgments in Imbrioscia and Murray which drew attention to it were given before the Grand Chamber considered the issue in Salduz, and those cases were cited to it in that case. As T A H M van der Laar and R L de Graaf, Salduz and Miranda: is the US Supreme Court pointing the way? [2011] 3 EHRLR 304, 315 have pointed out, the test that the Strasbourg court described in paras 47 and 48 of Zaichenko when it considered that the applicant was neither formally arrested nor interrogated in police custody and that there was no significant curtailment of his freedom of action echoes the statement in Miranda, p 477 that the rule of access to a lawyer that it describes applies when the suspect is subjected to police interrogation while in custody or otherwise deprived of his freedom of action in any significant way. It is not unreasonable to think that Miranda and subsequent cases that the ruling in that case have given rise to in the United States will influence the thinking of the Strasbourg court as it develops the principles described in Salduz. The significance of Miranda is that it follows the custodial approach to the question as to when access to a lawyer is required. The core of that decision, as der Laar and de Graaf have described it in [2011] EHRLR 304, 310, is that a suspects statement made as a result of interrogation initiated by the interrogating authorities while he is in custody cannot be used in evidence unless the prosecutor can prove that the procedural safeguards that were used were effective enough to secure the suspects right not to incriminate himself. The underlying reason is that the circumstances in which such an interrogation takes place are inherently intimidating. As Chief Justice Warren explained at p 445, an understanding of the nature and setting of the in custody interrogation was essential to the courts decision: incommunicado interrogation in a police dominated atmosphere. But it was noted that an interpretation of the requirement that the right to legal advice arose at an earlier stage would hamper the traditional function of the police in investigating crime. General on the scene questioning as to facts surrounding the crime or other general questioning of citizens was not affected. The right to legal advice was held not to extend that far because the compelling atmosphere inherent in the process of in custody interrogation was not necessarily present: Miranda, pp 477 478. The accused in that position is protected by the rule that only statements voluntarily made are admissible. I think that there is an indication here about the way the Strasbourg courts jurisprudence may develop, if there are doubts as to the significance of the courts decision in Zaichenko. Miranda shows that reasons can be given which, at the very least, the court has not yet said are irrelevant for thinking that it would be going too far to hold that there is a rule that there must be access to a lawyer irrespective of whether the person who is being questioned by the police is being held in custody. The basis for the ruling in Miranda is that police custody or its equivalent creates particular pressures which mean that the persons will is more likely to be overcome when he is being questioned under conditions of that kind. The observation in Salduz, para 53 that the rationale of the generally recognised international human rights standards relates in particular to the protection of the accused against abusive coercion on the part of the authorities fits in with this line of reasoning. This feature is likely to be absent when questions are being put at the locus or in the persons home simply with a view to deciding whether the person being questioned is to be treated as a suspect and, as such, to be subjected to further procedures. The case for police custody or its equivalent I should like, before stating my conclusions, to say a bit more about why I would hold that in principle the line as to when access to legal advice must be provided before the person is questioned should be drawn as from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed as it was put in Zaichenko, para 48. I return to the points I made in para 34, above. The privilege against self incrimination is not an absolute right: Murray v United Kingdom (1996) 22 EHRR 29, para 47; Brown v Stott 2001 SC (PC) 43, 64, per Lord Steyn. At p 60 Lord Bingham said that while it could not be doubted that such a right must be implied, there is no treaty provision which expressly governs the effect or extent of what is to be implied. At p 74 I said that implied rights are open, in principle, to modification or restriction so long as this is not incompatible with the right to a fair trial. We do know however that the right is primarily concerned with respecting the will of the person to remain silent: see Saunders v United Kingdom (1996) 23 EHRR 313, para 68. A person is therefore free to speak to the police and to answer questions if he is willing to do so, even after he has been cautioned. He can provide them with self incriminating answers if he is willing to do this, and his answers will be admissible if they are truly voluntary. This approach to the problem is familiar in domestic law: see para 22, above. So long as it is applied the fundamental right under article 6 to a fair trial will be guaranteed. The test is whether the will of the person to remain silent, if that is his will, has been respected. Answers cannot be extracted from him by unfair means, and he must be protected against the risk that they may be forced out of him. It is well understood that in some circumstances merely to caution the person that he has the right to remain silent will not be enough to protect him against the risk of a forced confession. The paradigm case is where he is in police custody. In such a situation the circumstances surrounding his questioning are likely to be oppressive and intimidating. The questioning is likely to be prolonged, and the atmosphere is likely to be coercive. In such circumstances it is reasonable to assume that he will be vulnerable to having a confession extracted from him against his will and to insist that special measures are needed to ensure that his rights are respected. As Lord Kerr points out, common experience tells us that a coercive atmosphere can exist independently of custody: para 147, below. That is why it was recognised in Miranda and in Zaichenko that a persons freedom of action to act as he wishes may be significantly impaired in other circumstances. But it does not follow that this will be so in every case when the police engage in conversation with a suspect. Circumstances will vary, and questioning which may become objectionable as the process continues may not be so during its initial stages. That is why I believe that a more flexible approach to the problem is called for than the rigid principle that Lord Kerr would adopt, which would involve laying down a rule that access to lawyer must always be provided before any police questioning can take place: see para 146, below. Lord Kerr says in para 148 that there is no reason to suppose that a person questioned by the police while not in detention would not experience the same need to acquiesce in the power of the police to require answers to potentially highly incriminating questions. The important question, he says, is whether the questions asked are liable to be productive of incriminating answers, not the circumstances in which they are being asked. That leads him to say that whenever questions of that kind are being put to a suspect they must be asked in the presence of a lawyer. I do not think that there is any support in the Strasbourg cases, or in such international authorities as we have been shown, for that proposition. The point that was being made in the Canadian case of R v Grant 2009 SCC 32; [2009] 2 SCR 353 to which he refers in para 147 was that there are situations in which psychological constraint amounting to detention have been recognised: the majority judgment of McLachlin CJ and LeBel, Fish, Abella and Charron JJ at para 30. These are where the subject is legally required to comply with a direction or command and where there is no such obligation but a reasonable person in the subjects position would feel so obligated. Not every conversation that takes place between the police and a suspect in which questions are asked is of that character. A demand or direction by a police officer is one thing. Questioning under caution is another. It is understandable that a person who is confronted by a direction or a demand by a police officer to provide information will feel that he has to comply with it. It is understandable too if the circumstances are such that he feels that he has no real choice in the matter. That is why the law requires that before questions are put to him by the police the suspect must be cautioned. In that way a fair balance is struck between the interests of the individual and the public interest in the detection and suppression of crime. The search for that balance is inherent in the whole of the Convention: Sporrong and Lnnroth v Sweden (1982) 5 EHRR 35, para 69. The whole point of the caution is to make it clear to the person that he is under no obligation to answer the questions that are being put to him. The requirement would be pointless if it is to be assumed that he will nevertheless feel, whatever the circumstances, that he has no alternative but to answer them. Whether the caution is enough to ensure that the person will have a fair trial will depend on the circumstances. Conclusion I return to the Lord Advocates submission that three features determine whether an individual has a right to legal advice under article 6 in accordance with the principle in Salduz. First, he must be a suspect. Second, he must be in police custody. Third, he must be the subject of police interrogation. The submission is that, unless all three features are present, he has no right of access to legal advice under article 6. 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 on 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 an criminal offence, as it was put in Eckle, para 73, it may in some instances take the form of other measures which carry the implication of such an allegation. In ubinski v Slovenia (application no 19611/04) (unreported) given on 18 January 2007, paras 62 63 the court said that a substantive approach, rather than a formal approach, should be adopted. It should look behind the appearances and investigate the realities of the procedure in question. This suggests that the words official notification should not be taken literally, and that events that happened after the moment when the test is to be taken to have been satisfied may inform the answer to the question whether the position of the individual has been substantially affected. It is obvious that the test will have been satisfied when the individual has been detained and taken into custody. It must be taken to have been satisfied too where he is subjected to what Salduz, para 52 refers to as the initial stages of police interrogation. This is because an initial failure to comply with the provisions of article 6 at that stage may seriously prejudice his right to a fair trial. The moment at which article 6 is engaged when the individual is questioned by the police requires very sensitive handling if protection is to be given to the right not to incriminate oneself. The mere fact that the individual has been cautioned will not carry the necessary implication. But, when the surrounding circumstances or the actions that follow immediately afterwards are taken into account, it may well do so. 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): Shabelnik v Ukraine, para 57. The Lord Advocate submitted that the protection of article 6(3)(c) was not engaged until the individual was actually taken into custody. But this cannot withstand the emphasis that the Strasbourg court puts on the consequences of an initial failure to comply with its provisions, as in Salduz, para 50; see also Zaichenko v Russia, para 42. As for the requirement that the individual must be in police custody, I would hold that the Strasbourg court has not said, or at least has not said with a sufficient degree of clarity, that a person who has become a suspect and is not in custody must, as a rule, have access to a lawyer while he is being questioned. I would attach particular importance to the judgment in Zaichenko v Russia, for the reasons given in para 46, above. That is not to say that the fact that the individual had no access to legal advice in that situation is of no consequence. If it was practicable for access to legal advice to be offered, this will be one of the circumstances that should be taken into account in the assessment as to whether the accused was deprived of a fair hearing, as he is entitled to respect for the right not to incriminate himself. But it is no more than that. The fact that the incriminating statements were made without access to a lawyer does not of itself mean that the rights of the defence are irretrievably prejudiced, as was held to be the case in Salduz on account of the lack of legal assistance while the applicant was in custody. The phrase police interrogation appears frequently in the cases where the applicant was detained in custody. It was suggested that, for the purposes of the rule about access to a lawyer, it means something more than just asking questions of an individual. These words are, however, extremely fact sensitive. Any questioning of an individual who has been detained in custody by persons who are referred to in the Strasbourg cases as representing the investigating authorities with the aim of extracting admissions on which proceedings could be founded will amount to interrogation for the purposes of the rule: for a statement to that effect in England, see R v Absolam (1989) 88 Cr App R 332, 336, per Bingham LJ. The same could be said of questioning that takes place at the roadside or in the persons home, depending on the circumstances. It is not necessary, if access to a lawyer is needed for the right to a fair trial to remain practical and effective (see Salduz, para 55), that the questioning should amount to an interrogation in the formal sense. It need not be a detailed and sustained course of questioning. Questions that the police need to put simply in order to decide what action to take with respect to the person whom they are interviewing are unlikely to fall into this category. But they are likely to do so when the police have reason to think that they may well elicit an incriminating response from him. With that introduction, I now turn to the questions that have been referred to this court. As I understand them, they invite us not only to deal with the situations that they describe as raising issues of principle but also to express our own view as to the answers that the Appeal Court should give on the facts as presented to us in each case. The answers to the questions referred The question in Ambroses case is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the appellant conducted under common law caution at the roadside and without the appellant having had access to legal advice was incompatible with the appellants rights under article 6(1) and 6(3)(c). I would answer this question in the negative. Applying the test that I have described in para 62, above, I would hold that Ambrose was charged for the purposes of article 6 when he was cautioned and that the police officer had reason to think that the second and third questions were likely to elicit an incriminating response from him. This conclusion is supported by the way the question whether the applicant was charged was dealt with in Zaichenko v Russia, para 41, where the court said that, given the context of the road check and the applicants inability to produce proof that he had purchased the diesel, there should have been a suspicion of theft against the applicant at the moment of his questioning by the police. The context in Ambroses case was that, when he was approached by the police, he was drunk and sitting in the car. Suspicion that he was committing an offence fell on him as soon as he told the police that the keys were in his pocket. But I would hold it would be to go further than Strasbourg has gone to hold that the appellant is entitled to a finding that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being subjected to this form of questioning at the roadside. This leaves open the question whether taking all the circumstances into account it was fair to admit the whole or any part of this evidence. There may, perhaps, still be room for argument on this point. So I would leave the decision as to how that question should be answered to the Appeal Court. The question in Ms case is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the accused, conducted under common law caution at his home address and without the accused having had access to legal advice was incompatible with the accuseds rights under article 6(1) and 6(3)(c). I would hold that M was charged for the purposes of article 6 when he was cautioned by the police officer at his home address. Although he did yet not have enough information as that stage to detain him as a suspect under section 14 of the 1995 Act, his actions were sufficient to carry the implication that the purpose of his visit was to establish whether M was in that category. Even if that was not so at the moment when M was cautioned, the first question which the police officer put to him carried that implication. I also think that the police officer had reason to think that the second question that he asked (Were you involved in the fight?) was likely to elicit an incriminating response from him. But I would answer the question in this reference also in the negative, as it would be to go further than Strasbourg has gone to hold that the accused is entitled to a ruling that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being asked these preliminary questions in his own home with a view to determining what further steps should be taken to deal with him in connection with the offence. As in Ambroses case, this leaves open the question whether, taking all the circumstances into account, it would be fair to admit the whole or any part of this evidence. I would leave it to the sheriff to answer that question. The question in Gs case is whether it is incompatible with the Panels Convention rights for the Lord Advocate to lead evidence of his statements and answers made during the course of the search conducted under warrant granted in terms of section 23(3) of the Misuse of Drugs Act 1971 as recorded in the Search Production Schedule. The Lord Advocate conceded that G was a suspect from the time of his first admission to possession of a quantity of heroin in his jeans. In must follow that he had been charged for the purposes of article 6 by the time the police began their search. The feature of this case which distinguishes it from the other two is that, although G had not yet been formally arrested and or taken into police custody, there was a significant curtailment of his freedom of action. He was detained and he had been handcuffed. He was, in effect, in police custody from that moment onwards. So I would answer the question in the affirmative. The circumstances were sufficiently coercive for the incriminating answers that he gave to the questions that were put to him without access to legal advice about the items to be found to be inadmissible. I would hold however that the same result need not follow in every case where questions are put during a police search to a person who is to be taken to have been charged for the purposes of article 6. It would be to go further than Strasbourg has gone to hold that a person has, as a rule, a Convention right of access to a lawyer before answering any questions put to him in the course of a police search. It is not because there is a rule to this effect that I would answer the question in the affirmative. Rather it is because it is plain from the particular circumstances of the case that G was, in effect, a detainee when he was being questioned by the police. In the absence of such indications of coercion the question, as in the other cases, will be whether, taking all the circumstances into account, it would be fair to admit the whole or any part of the evidence. I am in full agreement with Lord Hopes judgment in this case and there is LORD BROWN comparatively little that I want to say in addition. Cadder is authority for an absolute rule, derived from the European Court of Human Rightss decision in Salduz v Turkey (2008) 49 EHRR 421, that the Crown cannot lead and rely upon evidence of anything said by an accused without the benefit of legal advice during questioning under detention at a police station. For convenience I call this the Cadder rule and refer to it as absolute notwithstanding the Courts recognition in Salduz itself (at para 55) that compelling reasons may exceptionally justify denial of access to a lawyer (providing always that such a restriction does not unduly prejudice the defence) since for present purposes those possible exceptional cases can safely be ignored. The critical issue arising for our determination on these references is whether the Cadder rule applies equally to anything said by an accused in answer to police questioning even before he is detained at a police station, providing only that at the time of such questioning he is already a suspect and charged within the meaning of article 6(1) of the Convention (his situation substantially affected as explained by Lord Hope at para 39). Although these are, of course, Scottish references and, rather to my regret, we have not had the benefit of any intervention on behalf of English and Welsh prosecuting authorities to assist us as to the legal position south of the border, I cannot but notice that on their face the statutory provisions governing the position in England and Wales sit a little uneasily even with the absolute rule in Cadder, let alone with the substantial extension to that rule now proposed by the respective accused in these references. Section 76(2) of the Police and Criminal Evidence Act 1984 (PACE) provides: If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid. By section 82(1) of PACE, confession is defined to include any statement wholly or partly adverse to the person who made it and by section 76(8) oppression is defined to include torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture). The only absolute statutory rule, therefore, is that confessions are inadmissible under PACE if obtained by oppression or in consequence of anything said or done likely to render them unreliable. Generally speaking the court would not regard a confession elicited during questioning under detention at a police station as unreliable merely because the suspect had not at the time had the benefit of legal advice (unless, of course, by reason of youth or mental frailty or for any other reason the suspect may be regarded as having been particularly vulnerable to such questioning see, for example, R v McGovern (1990) 92 Cr App R 228). Nevertheless the principle established in Salduz that underlies the Cadder rule is, I apprehend, properly given effect in England and Wales by the appropriate application of sections 58 and 78 of PACE which provide respectively: 58(1) A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time. 78(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Consistently, therefore, with the operation of the Cadder rule in Scotland, the discretion to exclude evidence under section 78(1) is, I apprehend, routinely exercised in England and Wales in the case of significant and substantial breaches of the right to legal advice conferred by section 58 and the related rights arising under Code C of the Codes of Practice established under PACE. In England and Wales, however, suspects do not, as I understand it, have a right to free legal advice before their arrest and admission into custody. The polices only obligation at this earlier stage is to caution the suspect before questioning begins. Once, however, a decision to arrest is made and once grounds for arrest exist it cannot then be delayed so as to defer the suspects right to legal advice the police are required to stop the questioning and to resume it only at the police station. On arrival at the police station the detainee must be advised about his right to free legal advice, including a right to speak to a solicitor on the telephone, and he must be asked if he wishes to do so. Once the interview begins he must again be reminded of his right to free legal advice. So much for the position obtaining under English law. Somewhat to my surprise, my own brief judgment in Cadder is sought to be prayed in aid in support of the respondents contention on these references that the principle against self incrimination requires a suspect to be given access to legal advice before he is first questioned whatever may be the circumstances of that questioning providing only that article 6(1) is engaged (as indeed it was held to be engaged even in the situation that arose in Zaichenko v Russia (application no 39660/02) (unreported) (judgment given 18 February 2010) see paras 41 44 of Lord Hopes judgment). With the best will in the world, however, I cannot recognise my judgment in Cadder as offering the least support for any such contention. On the contrary, the whole context of that judgment was interrogation in a police station and in the last sentence I was endeavouring to explain the principal considerations which seem to me to underlie the principle against self incrimination, namely the importance of guarding against both inadequate police investigation and the exploitation of vulnerable suspects. Strasbourgs evident core concern in Salduz (see in particular para 53 of the Courts judgment) is that suspects should be protected against abusive coercion and that miscarriages of justice should be prevented. Quintessentially such risks arise in the very situation under consideration in Salduz: the interrogation of a terrorist suspect in police custody. Small wonder that the court (at para 53) saw its decision as in line with the generally recognised international human rights standards, standards which may be seen from the instruments referred to in the footnotes to relate specifically to rights of access to a lawyer during, rather than before, suspects are taken into police custody. Another decision relied upon by the respondents is that of the Supreme Court of Canada in R v Grant [2009] 2 SCR 353 and true it is that the court there, having given a wide meaning to the concept of detention, concluded on the particular facts of that case (which involved the kerbside questioning of a suspect leading to his being searched and found to be carrying a loaded firearm) that the police had breached section 10(b) of the Canadian Charter of Rights and Freedoms by failing before questioning the suspect to advise him of his right to speak to a lawyer. Section 10(b) provides: Everyone has the right on arrest or detention . (b) to retain and instruct counsel without delay and to be informed of that right . Importantly, however, the Supreme Court concluded that, the breach of section 10(b) notwithstanding, the trial judge had been entitled pursuant to section 24(2) of the Charter to admit the incriminating evidence and in the result upheld the conviction. Section 24(2) provides: Where . a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. For present purposes, two paragraphs only from the head note to the courts immensely long judgments must suffice: When faced with an application for exclusion under section 24(2), a court must assess and balance the effect of admitting the evidence on societys confidence in the justice system having regard to: (1) the seriousness of the Charter infringing state conduct, (2) the impact of the breach on the Charter protected interests of the accused, and (3) societys interest in the adjudication of the case on its merits. At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. At the third stage, a court asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crowns case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. Here, the gun was discovered as a result of the accuseds statements taken in breach of the Charter. When the three stage inquiry is applied to the facts of this case, a balancing of the factors favours the admission of the derivative evidence. The Charter infringing police conduct was neither deliberate nor egregious and there was no suggestion that the accused was the target of racial profiling or other discriminatory police practices. The officers went too far in detaining the accused and asking him questions, but the point at which an encounter becomes a detention is not always clear and the officers mistake in this case was an understandable one. Although the impact of the Charter breach on the accuseds protected interests was significant, it was not at the most serious end of the scale. Finally, the gun was highly reliable evidence and was essential to a determination on the merits. The balancing mandated by section 24(2) is qualitative in nature and therefore not capable of mathematical precision. However, when all these concerns are weighed, the courts below did not err in concluding that the admission of the gun into evidence would not, on balance, bring the administration of justice into disrepute. The significant impact of the breach on the accuseds Charter protected rights weighs strongly in favour of excluding the gun, while the public interest in the adjudication of the case on its merits weighs strongly in favour of its admission. However, the police officers were operating in circumstances of considerable legal uncertainty, and this tips the balance in favour of admission. In short, the position in Canada, just as in England and Wales, is that no absolute rule applies to exclude incriminating evidence obtained in breach of a constitutional right to legal advice although it may be supposed that in flagrant cases equivalent to those where the Cadder rule itself would apply directly (where a suspect in police custody is denied access to a lawyer during interrogation) the Canadian courts would invariably strike the section 24(2) balance in the accuseds favour. It follows from all this that I share Lord Hopes view that the court in Salduz ought not to be understood to be laying down an absolute rule of exclusion with regard to admissions made without the opportunity to take legal advice irrespective of whether or not the suspect was at the time actually in police custody. The contention that Salduz requires the Cadder rule to be extended in this way to my mind founders on a proper understanding both of what the Strasbourg Court was there saying in the particular factual context of that case, and of the recognised international human rights standards underlying that decision. It also seems to me inconsistent both with the terms of Judge Bratzas concurring opinion in that case (implicit in which was a recognition that under the majority judgment the very earliest time at which a suspect could be found entitled to legal advice is when he is taken into police custody or pre trial detention) and with Strasbourgs post Salduz jurisprudence (helpfully analysed by Lord Hope in great detail), most notably the judgment in Zaichenko v Russia itself. Also like Lord Hope (see paras 50 53 above) I find some assistance here in the decision of the Supreme Court of the United States in Miranda v Arizona 384 US 436 (1966). As Lord Hope observes (at para 53), the significance of Miranda is that it adopts a custodial approach to the question as to when access to a lawyer is required, the fundamental reason being that it is at that point that the circumstances in which [the suspects] interrogation takes place are inherently intimidating, because [of] the compelling atmosphere inherent in the process of in custody interrogation. As, however, Lord Hope also observes: It was noted that an interpretation of the requirement that the right to legal advice arose at an earlier stage would hamper the traditional function of the police in investigating crime. I have already indicated (at para 80 above) my own understanding of the central considerations underlying the principle against self incrimination: the importance of guarding against the exploitation of vulnerable suspects and also against inadequate police investigation. In the intimidating circumstances of custodial interrogation there are undoubtedly some suspects who confess to crimes of which in truth they are innocent. And undoubtedly too, once a suspect has confessed, the police are likely to become less inclined to pursue other useful avenues of investigation that may identify the actual offender. Thus it is that miscarriages of justice can occur. As Miranda suggests, however, the introduction of a right to legal advice (and what, of course, is being contended for here is an absolute right to free legal advice) at some pre custodial stage, so far from encouraging proper police investigation into crime, would in fact tend to inhibit it. It is, in short, one thing to require of the police that they caution a suspect before questioning him, quite another to require that he be provided with legal assistance as a precondition of any self incriminating answers later becoming admissible in evidence against him. This is the critical distinction which Zaichenko v Russia so clearly illustrates. The Court there considered quite separately the applicants article 6 complaints as to (i) legal assistance and (ii) the privilege against self incrimination and the right to remain silent and in the event it found no violation of article 6 (3)(c) in respect of the former but a violation of article 6(1) in respect of the latter (the applicants self incriminatory answers to the polices roadside questioning having been elicited without his first being cautioned). Like Lord Hope, I too would in the present context give full weight to what has come to be known as the Ullah principle see para 20 of Lord Binghams judgment in R (Ullah) v Special Adjudicator [2004] 2 AC 323. It would seem to me quite wrong for this court now to interpret article 6 of the Convention as laying down an absolute exclusory rule of evidence that goes any wider than Strasbourg has already clearly decided to be the case. And whatever else one may say about the Strasbourg jurisprudence, it can hardly be regarded as deciding the present issue clearly in the respondents favour. In the result I agree with the answers proposed by Lord Hope to the questions posed in the respective references. Essentially it comes to this. In the cases of Ambrose and M there is no absolute rule such as that laid down in Cadder which precludes reliance on the evidence in question. Rather it must be for the trial court to decide just as an English court must decide under section 78(1) of PACE whether the evidence ought fairly to be admitted or excluded. In Gs case, however, because he was, as Lord Hope puts it (para 71), in effect, in police custody from the time when, following his arrest, he was handcuffed and detained, the Cadder rule should be held to apply to his questioning during the subsequent search. That said, I also agree with Lord Hope (para 72) that the Cadder rule would by no means routinely apply to exclude answers to questions put to a suspect without his having been given the opportunity to seek legal advice during a search. That too would be to go further than Strasbourg has yet gone. LORD DYSON I agree with the answers proposed by Lord Hope for the reasons that he gives as well as those given by Lord Brown. In Salduz v Turkey (2008) 49 EHRR 421 (applied by this court in Cadder v HM Advocate [2010] UKSC 43, [2010] SLT 1125), the ECtHR decided that article 6 of the European Convention on Human Rights (the Convention) requires that, as a rule, access to a lawyer should be provided to a suspect when he is interrogated by the police while he is in detention; and that there will usually be a violation of article 6 if incriminating statements made by a suspect during a police interrogation in such circumstances are relied on to secure a conviction. I shall refer to this as the Salduz principle. The central question that arises in the present proceedings is whether the Salduz principle also applies to interrogations of a suspect that are conducted before he is placed in detention. Lord Hope says that there is no sufficiently clear indication in the Strasbourg jurisprudence of how the ECtHR would resolve this question and that we should not apply the Salduz principle to situations to which the ECtHR has not clearly stated that it applies. Lord Kerr says that (i) even if the ECtHR has not clearly decided whether article 6 requires the Salduz principle to be applied to statements obtained from a suspect when he is not in detention, that is not a sufficient reason for this court to refuse to do so (paras 126 to 130); (ii) to draw a distinction between evidence obtained before and after a suspect is detained is not only arbitrary, it is illogical (para 136); and (iii) in any event, an analysis of the Strasbourg jurisprudence clearly shows that it draws no distinction between the two cases (paras 146 and 148). It is convenient to start with explaining why I cannot accept Lord Kerrs third proposition, since, if it is clear from the Strasbourg jurisprudence that the Salduz principle applies whether or not the evidence is obtained from the suspect while he is in detention, then the premise on which the judgments of Lord Hope and Lord Brown are based falls away. As Lord Hope explains at paras 26 to 33, the judgment in Salduz was concerned with whether there was or should be a rule that there was a right of access to a lawyer where the person being interrogated was in police custody. On its facts, it was a case about a suspect who had been interrogated by the police while he was in custody. The references in para 53 to generally recognised international human rights standards (which are concerned with the position of suspects who are in custody) and to abusive coercion strongly suggest that the court was only considering the position of suspects who are in custody. Paras 37 to 44 contains a discussion of the international law materials relating to a suspects right of access to a lawyer during police custody. Unsurprisingly, the judgment says nothing explicitly about the position of a suspect who is not in custody. I agree with Lord Hope that the concurring opinions of Judge Bratza and Judge Zagrebelski lend further support to the conclusion that the court was only considering the position of suspects who are in custody. Lord Kerr says that Salduz is authority for the broad proposition that a suspect is entitled to have access to a lawyer at the investigation stage (because he is in a particularly vulnerable position at that stage of the proceedings) and that there is nothing in the reasoning of the decision to indicate that the investigation stage only begins after the suspect has been detained. But the judgment should be read as a whole. In my view, the better interpretation is that, for the reasons I have already given, the court was only addressing the issue of police interrogation of a suspect in custody. It was making the point that for such a suspect the investigation stage takes place while he is in custody, where there is the risk of abusive coercion and he is in a particularly vulnerable position of making self incriminating statements. Further, the decision of the First Section in Zaichenko provides clear support for the view that the Strasbourg jurisprudence draws a distinction between the fruits of police questioning of a suspect who is in detention and one who is not. I agree with the reasons given by Lord Hope at para 46 for rejecting the arguments that Zaichenko was wrongly decided. I note that Lord Kerr does not suggest that it was wrongly decided. He analyses the reasoning of Zaichenko closely at paras 24 to 40. He says that the basis for the courts decision that there had not been a violation of article 6(3)(c) is the cumulative effect of a number of factors (which he identifies at para 33) and that none of them, if taken in isolation, would have been sufficient to support the courts conclusion. I cannot accept this interpretation of the courts reasoning in Zaichenko. It is true that at para 46, the court notes at the outset that the applicant waived his right to a lawyer. But the court went on to give other reasons for its decision at para 47. It said that the present case is different from previous cases concerning the right to legal assistance in pre trial proceedings (see Salduz. .) because the applicant was not formally arrested or interrogated in police custody. He was stopped for a roadcheck. (emphasis added). The court was, therefore, fully alive to the difference between police questioning of a suspect at the roadside and police questioning of a suspect who has been taken into custody. It was in the context of this difference that the court made express reference to Salduz. Plainly and explicitly it did not apply the Salduz principle and it gave its reasons for not doing so. The principal reason was given at para 48 which Lord Kerr has set out at para 160 below. I agree with Lord Kerr that this paragraph is not easy to follow. But what is clear is that the court considered that, whatever restrictions faced the suspect when he was being questioned at the roadside, they did not amount to a significant curtailment of [his] freedom of action sufficient to entitle him to legal assistance at this early stage of the proceedings. This is an essential part of the courts reasoning. It is clear that the court considered that the fact that the questioning took place before the suspect had been formally arrested or detained was critical. I conclude, therefore, that the Strasbourg jurisprudence does not clearly show that the Salduz principle applies to statements made by a suspect who is not in detention when he is questioned by the police. The only case to which our attention has been drawn in which the Salduz principle has been considered in relation to statements made by a suspect who is not in detention is Zaichenko. For the reasons that I have given, Zaichenko strongly suggests that the Salduz principle does not apply in that situation. I turn to Lord Kerrs second proposition. He says that the animation of the right under article 6(1) cannot be determined in terms of geography (para 133) and that it is arbitrary and illogical to hold that a suspect has no right to access to a lawyer if he is questioned by the police until he is taken into custody: the suspect is as likely to make incriminating statements outside as inside a police station and is therefore in equal need of the protection of article 6(3)(c) in both situations. The essential question is at what stage of the proceedings access to a lawyer should be provided in order to ensure that the right to a fair trial is sufficiently practical and effective for the purposes of article 6(1). What fairness requires is, to some extent, a matter of judgment. I accept that opinions may reasonably differ on whether the line for providing a suspect with access to a lawyer should be drawn at the point when the person being questioned becomes a suspect or at the point when he is taken into custody. I do not doubt that being interrogated by the police anywhere can be an intimidating experience and that a person may make incriminating statements to the police wherever the interrogation takes place. This can occur in a situation of what the majority of the Canadian Supreme Court described as psychological detention in R v Grant 2009 SCC 32 ; [2009] 2 SCR 353, at para 30. On the other hand, the arresting of a suspect and placing him in custody is a highly significant step in a criminal investigation. The suspect cannot now simply walk away from the interrogator. For most suspects, being questioned after arrest and detention is more intimidating than being questioned in their home or at the roadside. The weight of the power of the police is more keenly felt inside than outside the police station. As was said in Miranda v Arizona 384 US 436 (1966) at p 478, there is a compelling atmosphere inherent in the process of in custody interrogation. No doubt, it is also present to the mind of the suspect that the possibility of abusive coercion is greater inside than outside the police station. Whether the difference between interrogation inside and outside the police station is sufficient to justify according the suspect access to a lawyer in one situation but not the other is a matter on which opinions may differ. But I do not see how it can be said to be arbitrary or illogical to recognise that there is a material difference between the two situations. I can agree with Lord Kerr (para 167) that one should be careful about making assumptions about the Miranda experience or believing that it can be readily transplanted into European jurisprudence. But this counsel of caution is hardly consistent with the assertion that the adoption of the distinction made in Miranda is arbitrary and illogical. So what should this court do in these circumstances? This brings me to Lord Kerrs first proposition. As I have said, to the extent that the ECtHR has spoken on the question at all, Zaichenko contains a clear statement that the Salduz principle does not apply to statements made by a suspect during police questioning while the suspect (i) is not in custody or (ii) is not deprived of his freedom of action in any significant way. I derive (ii) from para 48. That paragraph echoes the language of p 477 of Miranda: The principles announced today deal with the protection which must be given to the privilege against self incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way (emphasis added). I accept, however, that there is no clear and constant Strasbourg jurisprudence on the point. So the obligation in section 2 of the Human Rights Act 1998 to take account of judgments of the ECtHR does not compel a decision one way or the other: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295 para 26. Nor is this a case where, although Strasbourg has not expressly decided the point, it can nevertheless clearly be deduced or inferred from decisions of the ECtHR how the court will decide the point if and when it falls to be determined. Lord Kerr has referred to para 20 of Lord Binghams speech in R (Ullah) v Special Adjudicator [2004] 2 AC 323 and the dictum that the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less. Lord Brown extended this in R (Al Skeini and others) v Secretary of State for Defence [2008] 1 AC 153 at para 106 by saying that Lord Binghams dictum could as well have ended: no less, but certainly no more. At para 107 Lord Brown said that the Convention should not be construed as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach. Lady Hale said much the same at para 90. This approach was explicitly endorsed in R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29; [2011] 1 AC 1 by Lord Phillips at para 60, Lord Hope at para 93 and Lord Brown at para 147. But these statements are not entirely apposite where Strasbourg has spoken on an issue, but there is no clear and constant line of authority. That is the case here because there is only one case in which the ECtHR has expressly decided that the Salduz principle does not apply in relation to the interrogation of a suspect who is not in detention (Zaichenko). Moreover, despite the view I have expressed earlier in this judgment, I accept that it is arguable that the language of para 55 of the judgment in Salduz can and should be interpreted as holding that the Salduz principle does apply in such circumstances. So what should a domestic court do in this situation? Recognising that it is our duty to give effect to the domestically enacted Convention rights, I think that the correct approach was suggested at para 199 of the judgment of Lord Mance in Smith: However, it is our duty to give effect to the domestically enacted Convention rights, while taking account of Strasbourg jurisprudence, although caution is particularly apposite where Strasbourg has decided a case directly in point or, perhaps, where there are mixed messages in the existing Strasbourg case law and, as a result, a real judicial choice to be made there about the scope or application of the Convention. The position here is that Strasbourg has decided a case which is directly in point (Zaichenko). The most that can be said on behalf of the accused in these three cases is that by reason of (i) the broad terms in which para 55 of the judgment in Salduz is expressed and (ii) the decision in Zaichenko, it is arguable that there are mixed messages in the Strasbourg case law as to whether the Salduz principle applies to evidence obtained from a suspect who has been interrogated without access to a lawyer outside the police station. To use the words of Lord Mance, it follows that there is a real judicial choice to be made. Whether fairness requires the Salduz principle to apply in both situations raises questions of policy and judgment on which opinions may reasonably differ and as to which there is no inevitable answer. To demonstrate this, it is sufficient to contrast the approach of the US Supreme Court in Miranda with that of the Canadian Supreme Court in Grant. In these circumstances, I consider that caution is particularly apposite and that the domestic court should remind itself that there exists a supranational court whose purpose is to give authoritative and Europe wide rulings on the Convention. If it were clear, whether from a consideration of the Strasbourg jurisprudence or otherwise, that the Salduz principle applies to statements made by suspects who are not detained or otherwise deprived of their freedom of action in any significant way, then it would be our duty so to hold. But for the reasons that I have given, it is not clear that this is the case. In these circumstances, we should hold that the Salduz principle is confined to statements made by suspects who are detained or otherwise deprived of their freedom in any significant way. LORD MATTHEW CLARKE I refer to Lord Hopes judgment for his detailed description of the references and the background to them which I gratefully adopt. In R v Samuel [1988] QB 615 at p 630 Hodgson J, delivering the judgment of the Court of Appeal, described the right of a suspect to consult and instruct a lawyer as one of the most important and fundamental rights of a citizen. His Lordship did so in the context of section 58(1) of the Police and Criminal Evidence Act 1984 (PACE). The present references have raised the question as to when, and in what circumstances, such a right emerges as part of Scots law by virtue of the application of Article 6 ECHR. The Grand Chamber of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421 held that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (para 55). In Cadder v HM Advocate 2010 SLT 1125 this court applied that decision to the existing law of Scotland and, in particular, to the operation of the powers of detention of persons then contained in sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. As a result of the courts decision in Cadder the Scottish Parliament enacted certain provisions in the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. In particular a new section 15A to the 1995 Act was enacted which is in the following terms: 15A Right of suspects to have access to a solicitor (c) (a) (a) (b) (1) This section applies to a person (the suspect) who is detained under section 14 of this Act, attends voluntarily at a police station or other premises or place for the purpose of being questioned by a constable on suspicion of having committed an offence, or is (i) arrested (but not charged) in connection with an offence, and (ii) being detained at a police station or other premises or place for the purpose of being questioned by a constable in connection with the offence. (2) The suspect has the right to have intimation sent to a solicitor of any or all of the following the fact of the suspects (i) detention (ii) attendance at the police station or other premises or place, or (iii) arrest (as the case may be), (b) the police station or other premises or place where the suspect is being detained or is attending, and (c) that the solicitors professional assistance is required by the suspect. (3) The suspect also has the right to have a private consultation with a solicitor (a) before any questioning of the suspect by a constable begins, and (b) at any other time during such questioning. (4) Subsection (3) is subject to subsections (8) and (9). (5) In subsection (3), consultation means consultation by such means as may be appropriate in the circumstances, and includes, for example, consultation by means of telephone. (6) The suspect must be informed of the rights under subsections (2) and (3) (a) without delay, or (b) (a) on arrival at the police station or other premises or place, and (b) in the case where the suspect is detained as mentioned in subsection (1)(a), or arrested as mentioned in subsection (1)(c), after such arrival on detention or arrest, (whether or not, in either case, the suspect has previously been informed of the rights by virtue of this subsection). (7) Where the suspect wishes to exercise a right to have intimation sent under subsection (2), the intimation must be sent by a constable if some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is necessary. (8) In exceptional circumstances, a constable may delay the suspects exercise of the right under subsection (3) so far as it is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders that the questioning of the suspect by a constable begins or continues without the suspect having had a private consultation with a solicitor. (9) Subsection (3) does not apply in relation to the questioning of the suspect by a constable for the purpose of obtaining the information mentioned in section 14(10) of this Act. Prior to that enactment, and the decision in Cadder, the position was that the courts in Scotland had never recognised a suspects right to have access to a solicitor before or during questioning of him by the police. The position was, as stated in pre Cadder versions of Renton and Browns Criminal Procedure, 6th edition at para 24 39 as follows: any statement by a suspect in answer to police questions will be inadmissible in evidence at the subsequent trial of that suspect unless it has been obtained fairly, and that all the circumstances of the questioning (apart from whether or not a caution was given to a person accused of a crime) are relevant in so far, and only in so far, as they indicate the presence or absence of unfairness. That passage continued later: The current situation is that the fact that the accused was at the same time under suspicion or even under arrest is not in itself crucial, but is merely a circumstance like any other to be taken into account in assessing the fairness of the police, in the same way as the fact that he.did not have the services of a solicitor Reference was made to, inter alia, Law v McNicol 1965 JC 32, HM Advocate v Whitelaw 1980 SLT (Notes) 25 and HM Advocate v Anderson 1980 SLT (Notes) 104. As was also noted in Renton and Brown at para 24 39 There are no legal rules in Scotland governing the questioning of a suspect such as the Judges Rules and Administrative Directions issued by the Home Office. Nor were there, until the 2010 Act, any provisions similar to those provided in England and Wales under PACE. In HM Advocate v Cunningham 1939 JC 61 Lord Moncrieff at page 65 noted that after the accused had been charged and had replied, he subsequently received an incidental intimation that he might, if he so desired, require and obtain the assistance of a law agent. His Lordship continued: I think it would have been desirable that that intimation should have been made formally and should have been made at the very outset before the making of any charge, but I am satisfied that, in not making it, the police officers followed their usual practice and acted with an intention of complete fairness. Nonetheless, any such practice, in my opinion, ought to be reformed The later full bench decision in Chalmers v HM Advocate 1954 JC 66 gave some support for the view that all answers given by a suspect to a police officer were inadmissible and nothing was said about a suspects right to have a solicitor present when he was being questioned. Although that decision was never over ruled its influence was considered to have been virtually removed by subsequent case law, concerned, it seems, with rising crime rates, which made the criterion of admissibility, fairness see Lord Advocates Reference (no. 1 of 1983), 1984 JC 52. The decision in the case of Cadder, in applying the law as set out in Salduz, can be seen as truly innovative as regards what had been understood to be the domestic law of Scotland up until that time. The present references raise, in the first place, the question as to how far the innovation goes having regard to the relevant Strasbourg jurisprudence. The focus of the hearing before this court was concerned, to a significant extent, with how the suspects right to access to a lawyer has been defined to date by the Strasbourg court, either expressly, or by necessary implication, whatever other arguments there may be in principle, or policy, for defining it otherwise. The defence in the cases before us sought to take from the language of the ECtHR, in discussing the right in the decided cases on the topic, a broad approach to its nature and its extent. They had some basis for doing so having regard to how the court expressed itself in Salduz at para 55 where the Grand Chamber was to the effect Article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police. At para 52 of the judgment one finds the following Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. That language, it was submitted, focused on the status of the person as a suspect when determining his rights rather than his position being that of a person in custody. Similar language can be seen in previous judgments of the Court. For example in Panovits v Cyprus (Application No 4268/04) (unreported) given 11 December 2008 the Court, at para 66, observed that the concept of fairness enshrined in Article 6 requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation see also Borotyuk v Ukraine (Application No 33579/04) (unreported) given 16 December 2010 at para 79. It should, however, be noted that Panovits was a case which concerned the questioning of a child when the child had gone to the police station with his father, as requested by the police, and was thereafter arrested. Borotyuk was also a custody case. In Panovits, at para 65, the court, having said that it was reiterating that the right to silence and the right not to incriminate oneself were generally recognised international standards, which lay at the heart of the notion of a fair procedure under Article 6, went on to say: Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. In Salduz similar remarks were made by the court at paragraph 53: These principles, outlined at para 52 above, are also in line with the generally recognised international human rights standards which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused. Those remarks would tend, in my judgement, to support the contention that the focus of the courts concern in Salduz, and other cases, has been in relation to those situations where methods of coercion or oppression might be more readily, and effectively, employed upon a suspect person, namely when his liberty has been curtailed by the authority detaining him. Significant support for that being the focus of such a rule is to be found in the jurisprudence of the United States, and particularly the seminal decision of the US Supreme Court in Miranda v State of Arizona 384 US 436 (1966), where at p 467, para 23 the court said: Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individuals will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honoured. The court then at pp 478 479, paras 66, 67 defined the right and its extent, together with its rationale in the following way: To summarise, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning the privilege against self incrimination is jeopardised. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honoured, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. The Miranda decision has informed international legal discussion of the right of the suspect to have access to a lawyer, since the decision was given. Another factor pointing towards the more restrictive extent of the right in question is that the Strasbourg court, in defining it, has done so by referring to the context of what are described as pre trial proceedings, see para 50 of the Salduz judgment. The person taken into detention who, in due course, may face being tried for a crime, might well be said to be involved, at the stage of any questioning, while detained, to be in pre trial proceedings for the purposes of Article 6. That that is the context in which the Strasbourg court has been considering the right in question under Article 6 is, I think, supported by what the court had to say recently in Affaire Brusco c France (Requete No 1466/07) (unreported) given 14 October 2010, at para 45: La Cour rappelle galement que la personne place en garde vue a le droit dtre assiste dun avocat ds le dbut de cette mesure ainsi que pendant les interrogatoires, et ce a fortiori lorsquelle na pas t nforme par les autorits de son droit de se taire. That passage also, to my mind, points to the phrases in Salduz early access to a lawyer and from the first interrogation of a suspect by the police as being references to the earliest point in time after the person is taken into custody with his liberty having been restricted by the investigating authorities. The reference by the Strasbourg court to equality of arms, at para 53 of its judgment in Salduz, also, in my opinion, supports that approach. Once a persons liberty is curtailed by the authorities, the balance of power between him and the representatives of the state shifts significantly and, it might be said, requires to be redressed by his having access to a lawyer. All of these considerations, taken together, with what Lord Hope has to say in his analysis of the Salduz decision, and other Strasbourg jurisprudence, ultimately persuades me that the proper understanding of those decisions is that the right to have access to a lawyer emerges at the point when the suspect is deprived of his liberty of movement, to any material extent, by the investigating authorities and is to be questioned by them. It follows that I am in agreement with Lord Hope that the Strasbourg jurisprudence, to date, does not support the defence contention in these references that the ECtHR has gone as far as to say that the right emerges as soon as a suspect is to be questioned by the police in whatever circumstances. As to whether this court should go further than the ECtHR seems to have gone so far, certain important considerations lead me to the conclusion that it should not. The first is the difficulty that can arise in relation to defining precisely at what point in time someone becomes a suspect, as opposed to being a witness or a detained person. The second is that the broader version of the right, contended for by the defence in these cases, could have serious implications for the proper investigation of crime by the authorities. If the police are to be required to ensure that a person who they wish to question about the commission of a crime (in a situation where the circumstances point to the person being a possible suspect) should have access to a lawyer, if he so wishes, then such a requirement could hamper proper and effective investigations in situations which are often dynamic, fast moving and confused. The unfortunately regular street brawls in city and town centres, or disturbances in crowded places like night clubs, which, on occasions, result in homicide, are simply examples of situations which highlight the problems that might be involved. In relation to the first of these considerations I note that the limits of the Miranda rights have been, very recently, (16 June 2011) re visited by the US Supreme Court in JDB v North Carolina 564 US 2011. That case involved the questioning of a 13 year old. The majority of the court held that the childs age was a relevant factor to be taken into account in addressing the question as to whether he had been in custody at the time of questioning. The majority did not depart from the test being whether or not the person was in custody at the relevant time and at page 18 of the opinion of the court they directed the state court to address that question, taking account of all of the relevant circumstances of the interrogation, including the childs age at the time. The disagreement between the majority and minority was with regard to the relevance of the childs age in judging of the question as to whether or not he was in custody at the relevant time. In giving the dissenting judgment, with which the rest of the minority concurred, Alito J at pp 1 2 said Mirandas custody requirement is based on the proposition that the risk of unconstitutional coercion is heightened when a suspect is placed under formal arrest or is subjected to some functionally equivalent limitation on freedom of movement. Alito J, then, at page 8 of his judgment, under reference to previous authorities remarked that a core virtue of the Miranda rule has been the clarity and precision of its guidance to police and courts. Again at page 13 he remarked that a core virtue of Miranda was the ease and clarity of its application. I am persuaded that the value of clarity and certainty in this area are relevant factors in deciding the extent of the right. As to the second consideration, I recall what was said by Lord Wheatley in Miln v Cullen 1967 JC 21 at pp 29 30: While the law of Scotland has always very properly regarded fairness to an accused person as being an integral part of the administration of justice, fairness is not a unilateral consideration. Fairness to the public is also a legitimate consideration, and in so far as police officers in the exercise of their duties are prosecuting and protecting the public interest, it is the function of the Court to seek to provide a proper balance to secure that the rights of individuals are properly preserved, while not hamstringing the police in their investigation of crime with a series of academic vetoes which ignore the realities and practicalities of the situation and discount completely the public interest. That dictum is, of course, of its time and pre dates the experience of examples of convictions obtained on false confessions which have caused justifiable public concern. Nevertheless it is difficult, even now, to contradict the substance of what his Lordship said. As was said by Binnie J in the Canadian case of R v Grant 2009 SCC 32 [2009] 2 SSC 353 at para 180 It is not controversial that in the early stages of a criminal investigation the police must be afforded some flexibility before the lawyers get involved. The police do have the right to ask questions and they need to seek the co operation of members of the public, including those who turn out to be miscreants. It seems to me that the balancing of legitimate interests referred to by Lord Wheatley is a further justification for restricting the right to have access to a lawyer to situations in which the suspect is in custody. The law in formulating a right designed to protect and support a legitimate interest, such as the right to silence, should seek to avoid defining that right in such a way, as to damage, or unduly inhibit another legitimate interest such as the efficient investigation of crime. The task, which may be a delicate and difficult one, is to produce a result which strikes a rational balance between the two interests. I consider the balance struck in the US Miranda jurisprudence achieves that end. For the foregoing reasons I agree entirely with Lord Hope as to the way in which references in the cases of Ambrose and M should be answered. In relation to these two cases the admissibility or otherwise of the replies to questioning will fall to be determined by the Appeal Court and the trial judge respectively in accordance with the rules as to fairness. In the passage in his judgment in Miln v Cullen, cited above, Lord Wheatley continued: Even at the stage of routine investigations, where much greater latitude is allowed, fairness is still the test, and that is always a question of circumstances. As regards Gs case I consider that the right to access to a lawyer, before questioning, arises not only when the suspect is taken into the physical surroundings of a police station. The focus should be on whether, at the commencement of the proposed questioning, the individuals liberty is significantly restricted by the police. The location where that occurs is not in itself conclusive. In relation to rights of this kind matters should be judged in accordance with what the substance of the position is rather than its form. It follows that I, therefore, also agree with Lord Hope in the way in which the reference in Gs case should be answered. I also agree with Lord Hope, for the reasons given by him, that the Cadder rule would not necessarily routinely apply to exclude answers to questions, put to a suspect, without his having been given the opportunity to seek legal advice, during a search. There is no justification in the Strasbourg jurisprudence, as I read it, for the right to be so interpreted. By way of a footnote I would add this. Our attention was drawn by the defence, in support of their position, to a Proposal for a Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest recently published by the European Commission Brussels, XXX COM (2011) 326/3. Article 3(1) of the draft of the proposed Directive, attached to that document is in the following terms: 1. Member States shall ensure that suspects and accused persons are granted access to a lawyer as soon as possible and in any event: (a) before the start of any questioning by the police or other law enforcement authorities; (b) upon carrying out any procedural or evidence gathering act at which the persons presence is required or permitted as a right in accordance with national law, unless this would prejudice the acquisition of evidence; (c) from the outset of deprivation of liberty. The proposed Article 3 appears to envisage three discrete situations where the right of access to a lawyer should arise. The authors of the proposal appear to believe that those draft provisions reflect the settled jurisprudence of the Strasbourg court see para 13. It follows from what I have said above that their apparent understanding of the Strasbourg jurisprudence does not coincide with my own. LORD KERR Introduction The well known aphorism of Lord Bingham in para 20 of R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 that the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less has been given a characteristically stylish twist by Lord Brown in R (Al Skeini and others) v Secretary of State for Defence [2007] UKHL 26; [2008] 1 AC 153 at para 106 where he said that the sentence could as well have ended: no less, but certainly no more. In keeping with this theme, some judges in this country have evinced what might be described as an Ullah type reticence. On the basis of this, it is not only considered wrong to attempt to anticipate developments at the supra national level of the Strasbourg court, but there is also the view that we should not go where Strasbourg has not yet gone. Thus, in the present case Lord Hope says that this courts task is to identify where the jurisprudence of the Strasbourg court clearly shows that it currently stands and that we should not expand the scope of the Convention right further than the current jurisprudence of that court justifies. Lord Binghams formulation of the principle expressed in para 20 of Ullah was prompted by his consideration of the effect of section 2 of the Human Rights Act 1998 by which the courts of this country are enjoined to take into account Strasbourg case law. Therefore, said Lord Bingham, although such case law was not strictly binding, where a clear and constant theme of jurisprudence could be detected, it should be followed because the Convention, being an international instrument, had as the authoritative source of its correct interpretation the Strasbourg court. A refusal to follow this would dilute or weaken the effect of the Strasbourg case law. I greatly doubt that Lord Bingham contemplated much less intended that his discussion of this issue should have the effect of acting as an inhibitor on courts of this country giving full effect to Convention rights unless they have been pronounced upon by Strasbourg. I believe that, in the absence of a declaration by the European Court of Human Rights as to the validity of a claim to a Convention right, it is not open to courts of this country to adopt an attitude of agnosticism and refrain from recognising such a right simply because Strasbourg has not spoken. There are three reasons for this, the first practical, the second a matter of principle and the third the requirement of statute. It is to be expected, indeed it is to be hoped, that not all debates about the extent of Convention rights will be resolved by Strasbourg. As a matter of practical reality, it is inevitable that many claims to Convention rights will have to be determined by courts at every level in the United Kingdom without the benefit of unequivocal jurisprudence from ECtHR. Moreover, as a matter of elementary principle, it is the courts duty to address those issues when they arise, whether or not authoritative guidance from Strasbourg is available. The great advantage of the Human Rights Act is that it gives citizens of this country direct access to the rights which the Convention enshrines through their enforcement by the courts of this country. It is therefore the duty of this and every court not only to ascertain where the jurisprudence of the Strasbourg court clearly shows that it currently stands but to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view. Finally, section 6 of the Human Rights Act leaves no alternative to courts when called upon to adjudicate on claims made by litigants to a Convention right. This section makes it unlawful for a public authority, including a court, to act in a way which is incompatible with a Convention right. That statutory obligation, to be effective, must carry with it the requirement that the court determine if the Convention right has the effect claimed for, whether or not Strasbourg has pronounced upon it. In this context, it would be particularly unsatisfactory, I believe, if, because of an Ullah type reticence, we should feel constrained not to reach a decision on the arguments advanced by the respondents to these references just because those very arguments are likely to be ventilated on behalf of the applicant in ECtHR in Abdurahman v United Kingdom application no 40351/09 and we cannot say how Strasbourg will react to them. If the much vaunted dialogue between national courts and Strasbourg is to mean anything, we should surely not feel inhibited from saying what we believe Strasbourg ought to find in relation to those arguments. Better that than shelter behind the fact that Strasbourg has so far not spoken and use it as a pretext for refusing to give effect to a right that is otherwise undeniable. I consider that not only is it open to this court to address and deal with those arguments on their merits, it is our duty to do so. The nature of the right under article 6(1) taken in conjunction with article 6(3)(c) The true nature of the right under article 6(1), taken in conjunction with article 6(3) (c), can only be ascertained by reference to its underlying purpose. What is its purpose? The respondents argue that its purpose is that when a person becomes a suspect, because of the significant change in his status that this entails; because of the potential that then arises for him to incriminate himself or to deal with questions in a way that would create disadvantage for him on a subsequent trial; and because of the importance of these considerations in terms of his liability to conviction, the essential protection that professional advice can provide must be available to him. The right, it is argued, should not be viewed solely as a measure for the protection of the individuals interests. It is in the interests of society as a whole that those whose guilt or innocence may be determined by reference to admissions that they have made in moments of vulnerability are sufficiently protected so as to allow confidence to be reposed in the reliability of those confessions. For reasons that I will develop, I consider that these arguments should prevail. If it has taught us nothing else, recent experience of miscarriage of justice cases has surely alerted us to the potentially decisive importance of evidence about suspects reactions to police questioning, whether it is in what they have said or in what they have failed to say, and to the real risk that convictions based on admissions made without the benefit of legal advice may prove, in the final result, to be wholly unsafe. The role that a lawyer plays when the suspect is participating in what may be a pivotal moment in the process that ultimately determines his or her guilt is critical. Thus understood, the animation of the right under article 6(1) cannot be determined in terms of geography. It does not matter, surely, whether someone is over the threshold of a police station door or just outside it when the critical questions are asked and answered. And it likewise does not matter whether, at the precise moment that a question is posed, the suspect can be said to be technically in the custody of the police or not. If that were so, the answer to a question which proved to be the sole basis for his conviction would be efficacious to secure that result if posed an instant after he was taken into custody but not so an instant before. That seems to me to be a situation too ludicrous to contemplate, much less countenance. Two supremely relevant, so far as these appeals are concerned, themes run through the jurisprudence of Strasbourg in this area. The first is that, in assessing whether a trial is fair, regard must be had to the entirety of the proceedings including the questioning of the suspect before trial see, for instance, Imbrioscia v Switzerland (1993) 17 E.H.R.R. 441, Murray v United Kingdom (1996) 22 E.H.R.R. 29; Averill v United Kingdom (2000) 31 E.H.R.R. 839; Magee v United Kingdom (2000) 31 E.H.R.R. 822; and Brennan v United Kingdom (2001) 34 E.H.R.R. 507. The second theme is that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial Poitrimol v France (1993) 18 E.H.R.R. 130 and Demebukov v Bulgaria (Application No 68020/01) (unreported) given 28 February 2008 at para 50. Taken, as they must be, in combination, these features of a fair trial lead inexorably to the conclusion that where an aspect of the proceedings which may be crucial to their outcome is taking place, effective defence by a lawyer is indispensable. When one recognises, as Strasbourg jurisprudence has recognised for quite some time, that the entirety of the trial includes that which has gone before the actual proceedings in court, if what has gone before is going to have a determinative influence on the result of the proceedings, it becomes easy to understand why a lawyer is required at the earlier stage. There is no warrant for the belief that vulnerability descends at the moment that one is taken into custody and that it is absent until that vital moment. The selection of that moment as the first occasion on which legal representation becomes necessary is not only arbitrary, it is illogical. The need to have a lawyer is not to be determined on a geographical or temporal basis but according to the significance of what is taking place when the later to be relied on admissions are made. This much, I believe, is clear from paras 54 and 55 of the judgment in Salduz v Turkey (2008) 49 EHRR 421. It is worth setting out para 54 to examine its constituent parts and in order to draw together the various strands of guidance that it contains. This is what the court said in that para: the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the tria1. At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self incrimination. In this connection, the Court also notes the recommendations of the CPT [European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment], in which the committee repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies. The first question that arises from this passage concerns the meaning of the investigation stage. That stage is stated to be particularly important for two related reasons. The first is that evidence obtained at that stage determines the framework in which the offence with which the defendant is charged will be considered at trial. In other words, evidence obtained during the investigation stage can significantly influence the outcome of the proceedings and on that account it requires close attention as to its reliability. The second reason is that at that very time (viz when evidence capable of influencing the trials outcome is being obtained) the accused finds himself in a vulnerable position. It may seem trite to ask why he should be vulnerable at that time but the answer, it seems to me, is both plain and significant. He is vulnerable because at this investigation stage, evidence which may be instrumental in securing a finding of guilt against him is being obtained and collated. The way that he reacts during the collection of that evidence may prove to be of critical importance in his subsequent trial. His vulnerability may be enhanced, moreover, because increasingly complex legislation permits the evidence to be obtained and used in ways that were not previously possible. I return then to the anterior question. What is meant by the investigation stage? It must surely include any point or juncture at which evidence which is potentially inculpatory of an accused is being obtained. This is of especial importance when the investigation stage provides the setting for a statement by the accused person that might incriminate him. ECtHR recognised in para 54 of Salduz that an incriminating statement might occur at an early stage of the investigation and it was for this reason that early access to a lawyer was considered to be necessary. That early access is expressly required so that the very essence of the right not to incriminate oneself is not destroyed. But extinction of the essence of the right, it seems to me, is precisely what may happen if statements tending to incriminate, made without the benefit of legal advice, are admitted in evidence against their maker on his or her trial. And that conclusion reinforces my view that it is not the place at which admissions are made nor whether the individual making the statements has been detained that is important. What is important is the use to which such statements may subsequently be put. The same message is provided by the opening words of para 55 of Salduz: Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently practical and effective" article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Once more, it is noteworthy that the court here does not refer to the place at which the first interrogation takes place nor whether the person who is answering questions has been detained. It is from the moment of the first interrogation that the need for the presence of a lawyer is deemed to be required and that point is chosen because that is precisely when self incriminating statements may begin to be made. In this connection I should say that I do not construe the judgments of Judge Bratza and Judge Zagrebelsky in Salduz as seeking to link the need for a lawyers presence inextricably with the moment that a suspect is taken into custody. At O I2 Judge Bratza said: At para 55 of the judgment, the Court states as a general principle that in order for the right to a fair trial to remain sufficiently, practical and effective, article 6 requires that, as a rule, access to a lawyer should be provided, as from the first interrogation of a suspect by the police. This principle is consistent with the Court's earlier case law and is clearly sufficient to enable the Court to reach a finding of a violation of article 6 on the facts of the present case. However, I share the doubts of Judge Zagrebelsky as to whether in appearing to hold that the right of access to a lawyer only arises at the moment of first interrogation, the statement of principle goes far enough. Like Judge Zagrebelsky, I consider that the Court should have used the opportunity to state in clear terms that the fairness of criminal proceedings under article 6 requires that, as a rule, a suspect should be granted access to legal advice from the moment he is taken into police custody or pre trial detention. It would be regrettable if the impression were to be left by the judgment that no issue could arise under article 6 as long as a suspect was given access to a lawyer at the point when his interrogation began or that article 6 was engaged only where the denial of access affected the fairness of the interrogation of the suspect. The denial of access to a lawyer from the outset of the detention of a suspect which, in a particular case, results in prejudice to the rights of the defence may violate article 6 of the Convention whether or not such prejudice stems from the interrogation of the suspect. It is immediately obvious from this passage that Judge Bratzas concern was that the judgment of the court did not go far enough. It is clear that his assumption was that the first interrogation of a suspect would normally take place after he had been taken into custody. He felt that to prescribe that the presence of a lawyer was only then required might not be sufficient. Statements could be made or events could occur which might prove incriminating after the suspect was taken into custody but before the first formal interrogation began. That was why Judge Bratza suggested that a lawyer was required when the accused was taken into custody. But his statement to that effect does not betoken a view that the moment that custody begins should be invested with some special significance. On the contrary, it reflects concern that the suspects vulnerability and his need for a lawyer should not be seen as inevitably coincident with the opening of the formal interview. Statements made or events occurring before that time are just as likely to require the presence of a lawyer if the fairness of the trial is to be assured. The cases decided in Strasbourg post Salduz and discussed by Lord Hope in paras 36 40 of his judgment do not appear to me, with respect, to contribute much to the debate except for the case of Borotyuk v Ukraine (Application no. 33579/04). All of the cases concerned suspects who were already in custody when the questioning began. Lord Hope has suggested that importance was attached by Strasbourg in some of these cases to the fact that the person was in custody when he was being interrogated. I do not so read them. It seems to me that the cases are at least as consistent with the view that the important factor in play was that the interrogation was the occasion when inculpatory statements might be made and on that account a lawyers presence was considered an indispensable concomitant of a fair trial. In Borotyuk an interesting passage appears at para 79. There the court said: The Court emphasises that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of fair trial (see Poitrimol, cited above, para 34). As a rule, access to a lawyer should be provided as from the first questioning of a suspect by the police, unless it can be demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used to secure a conviction (see Salduz vs Turkey [(2008) 49 EHRR 421], para 55. Quite apart from the observation that access to a lawyer was deemed necessary as from the first questioning of a suspect, the emphasis in this passage seems to be on the inevitable prejudice that will occur if questioning takes place at a time and in circumstances where incriminating statements might be made. This, as it seems to me, is entirely consonant with the underlying philosophy of article 6(1) taken in conjunction with article 6(3)(c). The essential question is: when the questioning is taking place, is the suspect in a position where the advice of a lawyer is essential if a fair trial is to occur. If he is liable to incriminate himself at that time, a lawyers presence is required so that he may be fully advised as to how he may or should respond to the interrogation. Likewise, if he requires advice as to how he should react to questioning, for example by giving information that may subsequently emerge at the trial, he needs to have proper guidance. Remaining silent when a perfectly innocent explanation is available may fatally undermine a subsequently proffered defence. I would therefore express the principle, to be derived from a consideration of the mainstream Strasbourg jurisprudence, in this way: where a person becomes a suspect, questions thereafter put to him or her that are capable of producing inculpatory evidence constitute interrogation. Before such interrogation may be lawfully undertaken, the suspect must be informed of his or her right to legal representation and if he or she wishes to have a lawyer present, questions must be asked of the suspect, whether or not he or she is in custody, in the presence of a lawyer. The Lord Advocate in the present appeal submitted that the touchstone should be the taking into custody of the individual because this marked the start of the coercive atmosphere in which the vulnerability of the suspect was aroused. I cannot accept that argument. Common experience tells us that a coercive atmosphere can exist independently of custody. The subject was also helpfully considered, albeit in a different context, in the Canadian case of R v Grant 2009 SCC 32; [2009] 2 S.C.R. 353. In that case the Supreme Court of Canada held that what it described as psychological detention such as to give rise to rights under section 9 of the Canadian Charter of Rights and Freedoms was established where an individual has a legal obligation to comply with a restrictive request or demand, or where a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. Although the right under section 9 of the Charter is one that entitles an individual not to be arbitrarily detained or imprisoned, as opposed to the right not to incriminate oneself, the relevance of the decision to the present appeal lies in the courts analysis of when the interaction between a police officer and the person he has stopped and questioned assumes a coercive quality. At para 30 of the majority judgment of McLachlin CJ and LeBel, Fish, Abella and Charron JJ it was stated: we find that psychological constraint amounting to detention has been recognized in two situations. The first is where the subject is legally required to comply with a direction or demand, as in the case of a roadside breath sample. The second is where there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the subject's position would feel so obligated. The rationale for this second form of psychological detention was explained by Le Dain J. in [R v Therens [1985] 1 SCR 613, 644] as follows: In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist. There is no reason to suppose that a person questioned by police while not in detention would not experience the same need to acquiesce in the power of the police to require answers to potentially highly incriminating questions. In as much, therefore, as a coercive atmosphere is required in order to stimulate the need for the protection that a lawyers presence brings, I consider that it is just as likely that this will occur outside a police station as within. As I have said, the important question is whether the circumstances in which questions are asked are liable to be productive of incriminating answers, not whether those questions are being asked in a police station or whether the suspected person can be said to be in custody. Zaichenko v Russia This decision needs to be examined because of the possibly discordant note that it strikes in what I consider to be the clear message of what I have described as the mainstream European jurisprudence on the subject. The applicant had been stopped by police when driving away from his place of work on 21 February 2001. He was asked to account for two cans of diesel that were discovered in his car. He replied that he had poured the fuel from the tank of a service vehicle that he drove as an employee into the containers that the police had found in his car. He said that he intended to use it for his own personal purposes in other words, he admitted to having stolen it. A vehicle inspection record was prepared by a police officer at the scene in which it was stated that the applicant had explained that he had poured out the fuel from the company premises. The applicant signed that document. He also signed another document entitled explanations in which his statement to the following effect was recorded: Since 1997 I have been employed as a driver by a private company. On 21 February 2001 I arrived to my workplace at 9 am. During the day I was repairing my service vehicle. In the evening I poured out thirty litres of fuel from the tank of my service vehicle. I have previously brought the cans, ten and twenty litres each, from home. After work, at around 8 pm, I was driving home in my car and was stopped by the police. The car was inspected in the presence of the attesting witnesses. I poured out the fuel for personal use. On 2 March 2001 an official known as an inquirer compiled a report on the events of 21 February 2001. It was recorded that the applicant had intentionally stolen thirty litres of diesel from his service vehicle. The report was stated to have been based on, among other things, the inspection record compiled by the police at the scene and the applicant's written statement. The accusation section of this statement read, At 8 pm on 21 February 2001 [the applicant] . being at work intentionally stole from his service vehicle the diesel in the amount of thirty litres. Thereby, he caused to the company pecuniary damage in the amount of 279 roubles. The applicant appended his signature to the following certificates that appeared at the foot of the statement: I have been informed of the nature of the accusation, the right to have access to the case file, the right to legal representation, the right to make requests and challenge the inquiring authorities' actions. and I have studied the case file and have read this document. I have no requests or motions. I do not require legal assistance; this decision is based on reasons unrelated to lack of means. I will defend myself at the trial. At his trial the applicant retracted the confession and instead advanced a defence that he had purchased the fuel. He maintained that evidence of his admissions to police officers when his car was stopped should not have been admitted because he had not been informed of his right against self incrimination. At para 19 of ECtHRs judgment it is recorded that the appeal court in Russia had decided that the applicant's allegation of self incrimination had been rightly rejected by the trial court as unfounded. At paras 42 and 43 of its judgment, ECtHR dealt with the question of whether the applicant had been charged during the events of 21 February 2001. As to that the court said this: 42. The Court reiterates that in criminal matters, Article 6 of the Convention comes into play as soon as a person is charged; 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 concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened (see Eckle vs Germany, 15 July 1982, 73, Series A no. 51, and more recently, O'Halloran and Francis vs the United Kingdom [GC], nos. 15809/02 and 25624/02, 35, ECHR 2007. ). Charge, for the purposes of Article 6 1, may be defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence, a definition that also corresponds to the test whether the situation of the [person] has been substantially affected (see Shabelnik vs Ukraine, no. 16404/03, 57, 19 February 2009; Deweer vs Belgium, 27 February 1980, 46, Series A no. 35; and Saunders vs the United Kingdom, 17 December 1996, 67 and 74, Reports of Judgments and Decisions 1996 VI). Given the context of the road check and the applicant's inability to produce any proof of the diesel purchase at the moment of his questioning by the police, the Court considers that there should have been a suspicion of theft against the applicant at that moment. 43. Applying these principles to the facts of the case, the Court notes that the trial court's use made of the admissions made on 21 February 2001, which led to the institution of criminal proceedings against the applicant and then served for convicting him of theft, is at the heart of the applicant's complaints under Article 6 of the Convention (compare Saunders, cited above, 67 and 74; and Allen vs the United Kingdom (dec.), no. 76574/01, 10 September 2002). It is also noted that the inspection record itself indicated Article 178 of the RSFSR Code of Criminal Procedure as the legal basis for the inspection (see paragraph 26 above). Thus, although the applicant was not accused of any criminal offence on 21 February 2001, the proceedings on that date "substantially affected" his situation. The Court accepts that Article 6 of the Convention was engaged in the present case. Nor was there any disagreement on this point between the parties. The substantial effect which prompted the finding that article 6 was engaged appears to comprise the suspicion which the court felt the police must have had that the applicant had been guilty of theft and the fact that the events that occurred at the roadside check led to his subsequent prosecution and conviction. On that basis the same conclusion (that article 6 is engaged) is irresistible in the three cases involved in these references. In each of the cases it is clear that, at the time that the relevant admissions were made, the police either did have or should have had a suspicion that the persons to whom they were posing questions were guilty of the offences that were under investigation and that the statements made in answer to those questions were or were likely to be highly incriminating of all three. But why in Zaichenko, if article 6 was engaged, was the applicant not entitled to the protection of article 6(3)(c), taken in conjunction with article 6(1)? For an answer to this, one must conduct a probe of the later passages of the judgment which, I should confess in advance, has not led me to an entirely clear understanding of the rationale underlying the courts conclusion on the issue. At para 46 the court said this: 46. The Court notes at the outset that the applicant only complained that he had not been afforded enough time to contact a lawyer in a nearby town. The Court cannot but note that, as confirmed by the applicant's representative in his letter to the European Court dated 26 July 2002, both on 21 February and 2 March 2001 the applicant chose not to exercise his right to legal representation with the hope that the court would give him a fair trial even without counsel. It is difficult to be sure that, in using the phrase, the court cannot but note, the judgment at this point was indicating that, because the applicant had elected not to have legal representation, this was a basis on which it could be concluded that there had not been a violation of article 6(3)(c). Observations that appear later in the judgment would tend to support that view, however. In the first instance, the para following (para 47) opens with the word moreover which suggests that the decision of the applicant not to seek legal representation was, at least, one of a number of reasons for the finding that article 6(3)(c) had not been breached. Secondly, at para 50 of the judgment, the court refers to the applicants election not to seek legal assistance either on 21 February or on 2 March 2001 as a waiver of his right to legal assistance. Some of the other reasons for finding that there had not been a violation of article 6(3)(c) appear in para 47: 47. Moreover, the Court observes that the present case is different from previous cases concerning the right to legal assistance in pre trial proceedings because the applicant was not formally arrested or interrogated in police custody. He was stopped for a road check. This check and the applicant's self incriminating statements were both carried out and made in public in the presence of two attesting witnesses. It is true that the trial record contains a statement by the applicant suggesting that the writing down of the inspection record and/or his subsequent statement were started on the spot but were completed in the village of Birofeld. Nevertheless, the Court concludes on the basis of the materials in the case file that the relevant events, namely the drawing of the inspection record and the taking of the applicant's explanation, were carried out in a direct sequence of events. The distinction between Zaichenkos case and earlier decisions that is highlighted here viz that the applicant had not been arrested or interrogated while in police custody is not expressly stated to be a reason that alone would warrant a finding that there had not been a violation of article 6(3)(c) taken in conjunction with article 6(1). It seems to me impossible to say, on the basis of the statements in this paragraph, that ECtHR has concluded that formal arrest and interrogation in custody are essential prerequisites to the invocation of the right. Rather, it appears that the court treated the cumulative effect of factors that were peculiar to this particular case as the basis for the finding that there had not been a violation of article 6(3)(c). These factors can be enumerated as follows: (1) the applicant had waived his right to a lawyer and had explicitly stated that he did not want a lawyer to represent him despite having been told on 2 March 2001 that he was entitled to legal representation; (2) he had not been formally arrested or interrogated in police custody; (3) the initial questioning of the applicant took place at a road check and not in any formal setting; (4) the applicant was questioned in a public place with other witnesses present who could attest to a lack of coercion on the part of the police; and (5) the checking of the applicants car and his questioning as to the source of the diesel all occurred as part of a seamless process. I do not believe that any one of these factors can be elevated to a position of pre eminence nor does it appear to me that it can be said with confidence that any single factor, taken in isolation, would be sufficient to support the finding that there had not been a breach of article 6(3)(c). The succeeding paragraphs in the judgment repeat the matters dealt with in paras 46 and 47 or expand on them to some extent. It is not necessary to consider these in any detail but I should mention para 48, if only to say that I have had a little difficulty in following the reasoning that it contains. It reads: Although the applicant in the present case was not free to leave, the Court considers that the circumstances of the case as presented by the parties, and established by the Court, disclose no significant curtailment of the applicant's freedom of action, which could be sufficient for activating a requirement for legal assistance already at this stage of the proceedings. It is not immediately clear why someone who was not free to leave the scene could be said not to have had any significant curtailment of his freedom of action. Be that as it may, it appears to be the case that if the court had found that there had been a significant curtailment of the applicants freedom of action, it would have regarded this as a sufficient basis for a finding of a violation of article 6(3)(c). What would constitute such a curtailment of freedom of action has not been made clear, however. Altogether, it is not easy to distil any obvious principle from this paragraph and I would be reluctant to ascribe to it any significance beyond that relevant to the circumstances of the case of Zaichenko itself. Although ECtHR concluded that Mr Zaichenko had waived his right to legal assistance, it decided that there had not been a waiver of his right not to incriminate himself. At para 52 the court held that it was incumbent on the police to inform the applicant of the privilege against self incrimination and the right to remain silent. Their failure to do so at the roadside check before putting questions to him constituted a violation of article 6(1), therefore. In a partly dissenting opinion, Judge Spielmann (who, as Lord Hope pointed out in para 46 of his judgment, was a member of the Grand Chamber in Salduz) addressed forthrightly the question of when the right to legal representation arose and, relating it directly to the decision in Salduz, came down firmly in favour of what I believe to be the logical position, namely, that it began when police questioning started. In para 3 of his opinion, Judge Spielmann said: 3. In Salduz vs Turkey the Court held that as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police (see Salduz vs Turkey [GC], no. 36391/02, 55, ECHR 2008 . ). The Court also held that the lack of legal assistance during a suspect's interrogation would constitute a restriction of his defence rights and that these rights would in principle be irretrievably prejudiced when incriminating statements, made during police interrogation without access to a lawyer, were used for a conviction. The Court took a similar approach in the equally important judgment in Panovits (Panovits vs Cyprus, no. 4268/04, 66 and 70 73, 11 December 2008). (original emphasis) Judge Spielmann also questioned the reasoning of the majority that is contained in para 48 of the courts judgment. At para 6 he said: 6. Contrary to what is said in para 48 of the judgment, I cannot agree that the circumstances of the case disclose no significant curtailment of the applicant's freedom of action. I am of the opinion that those circumstances were sufficient to activate a requirement for legal assistance. I do not understand Judge Spielmanns dissent necessarily to indicate that there was a divergence of views between him and the majority about the nature of the principle at stake. The principle which I believe can be said to be common to both is that when a suspect is interrogated by police he is entitled to legal assistance. Where Judge Spielmann parted company with the majority was in its conclusion as to whether the principle applied. Because of the accumulation of factors that the court had identified (see para 158 above) and because it concluded that there had not been a curtailment of Mr Zaichenkos freedom of action, it held that the principle did not apply. Judge Spielmann, by contrast, did not attach the weight to the factors that the majority had considered militated against a finding of violation of article 6(3)(c) and he disagreed (in my view, quite properly) with the suggestion that someone who was not free to leave the scene nevertheless had not suffered any curtailment of his freedom of action. Miranda v Arizona As Lord Hope has said in para 52, curtailment of freedom of action carries echoes from Miranda v Arizona 384 US 436 (1966). And as Lord Hope suggests, it may well be that Miranda will influence the thinking of Strasbourg, it having featured in a number of prominent dissenting judgments in that court already. But I question whether this will lead to the adoption of the custodial approach to the question as to when access to a lawyer is required. Curtailment of an individuals freedom of action can arise even when he has not been taken into custody. The important question must surely be whether the suspect feels constrained to answer the questions posed to him by the police officer. As the Grant case illustrates, this can arise either because of the manner in which the police officer manages the exchange with the suspect or because of the latters belief that he has no option but to answer the questions put to him. Quite apart from these considerations, however, I believe that one must be careful about making assumptions about the Miranda experience or believing that it can be readily transplanted into European jurisprudence in any wholesale way. The implications of that decision must be considered in the context of police practice in the United States of America. Nothing that has been put before this court establishes that it is common practice in America to ask incriminating questions of persons suspected of a crime other than in custody. Indeed, it is my understanding that as soon as a person is identified as a suspect, police are trained that they should not ask that person any questions until he or she has been given the Miranda warnings. Custody was identified in Miranda as one of the features necessary to activate the need for legal representation but custody has been held to mean either that the suspect was under arrest or that his freedom of movement was restrained to an extent associated with a formal arrest Stansbury vs California, 511 US 318 (1994); New York vs Quarles, 467 U.S. 649, 655 (1984). So it is clear that the rule that custody is required before entitlement to legal representation arises is not inflexible or static and that its underlying rationale is closely associated with the question whether the person questioned feels under constraint to respond. Hampering police investigation One of the principal practical arguments advanced against the requirement that a suspect be informed that he is entitled to legal representation before incriminating questions are put to him is that this will hamper police investigations. The argument is a venerable one. It has been deployed in reaction to various proposals for safeguards intended to protect suspects rights including the right to have a solicitor present during interviews and the audio recording or the videotaping of interviews. There is no evidence that the introduction of those measures brought about any widespread impediment to police investigations nor is there, in my view, any convincing evidence that this would be the result of recognising the right of a suspect to be informed that he or she is entitled to legal representation before being required to provide potentially incriminating answers to police questioning. As the respondents have pointed out, in the final analysis, these cases are about the admissibility of evidence. There is no legal prohibition on police asking questions of a suspect that may produce incriminating answers. The legal consequence of doing so without first informing the suspect of his or her right to be legally represented will be, in my opinion, that the answers produced will be inadmissible in evidence unless compelling reasons such as were discussed in para 55 of Salduz exceptionally justify denial of access to a lawyer. One can anticipate, therefore, that police may decide in appropriate circumstances to proceed with questions in order to further the investigation but have to accept that if they are capable of producing incriminating answers from someone who is a suspect, the replies will be inadmissible. A balance will always have to be struck between unfettered police investigatory powers and the complete safeguarding of suspects rights. The history of criminal jurisprudence shows how that balance has been struck in different ways and at different times, reflecting, no doubt, changing attitudes as to what properly reflects contemporary standards. It is my belief that the proper balance to strike for our times is the one that I have suggested in para 146 above. Conclusions For the reasons given in para 153 above, I consider that article 6 of ECHR was engaged in each of the respondents cases at the time that the relevant questions were asked. I have no doubt that when they were asked those questions each of them was suspected of having committed an offence. I agree with Lord Hope that the administration of a caution is not necessarily determinative of this issue but, in the particular circumstances of these cases, I do not believe that any other conclusion is possible. The second and third questions that were put to the respondent, Ambrose, were clearly capable of producing incriminating responses. In fact they did so and it is evident that the answers have been relied on in order to establish his guilt, (although that might well have been possible simply by proving that he was in the car and in possession of the keys). In these circumstances, I am of the view that he had a right under article 6(3)(c) taken in conjunction with article 6(1) of ECHR to be informed, after his reply to the first question, that he was entitled to legal representation before answering further questions, and that, absent such a warning, the incriminating answers given by him to the second and third questions were not admissible. The questions put to the respondent who has been referred to as M, apart from the first question, were also clearly capable of producing incriminatory replies although whether they would in fact be probative of guilt would be a matter for trial, if indeed the answers were held to be admissible. Since they clearly had the capacity of producing inculpatory responses, however, I consider that the questions put to M at his home, apart from the first question, are inadmissible. In the case of the respondent referred to as G, for the reasons given by Lord Hope (with which I agree), it is indisputable that, at the time the impugned questions were put to him, he was in custody and, whatever view one takes of the effect of the European jurisprudence, the incriminating answers that he gave are inadmissible. But, for the same reasons that I have given in the cases of Ambrose and M, I would have held that they were inadmissible, regardless of whether G was in custody at the time that the answers were given.	In Cadder v HM Advocate [2010] UKSC 43, the Supreme Court held, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421, that the Crowns reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee at a police station was a violation of his rights under Article 6(3)(c), read with Article 6(1) of the European Convention on Human Rights. The issues in these cases are whether the right of access to a lawyer prior to police questioning, which was established by Salduz, applies only to questioning which takes place when the person has been taken into police custody; and, if the rule applies at some earlier stage, from what moment does it apply. The accused in the first case, John Paul Ambrose, was prosecuted on a charge of contravening section 5(1)(b) of the Road Traffic Act 1988 as being in charge of a motor vehicle while over the alcohol limit. He was questioned by two police officers by the roadside, who cautioned him but did not give him any specification about the offence he was suspected of having committed. In response to their questions, he confirmed that he was in possession of the car keys, and that he might be intending to drive the car. Breath tests indicated that he was substantially over the prescribed limit. In his trial the Crown led evidence of the questions and answers at the roadside. In M, the accused was charged with assault to severe injury, permanent disfigurement and permanent impairment. A few days after the incident, the police visited him at his home, cautioned him, and asked him a number of questions, in response to which he confirmed his attendance at the locus on the night in question and his involvement in the fight. He was detained the following day, and questioned further while he was in custody. At trial, he objected to the Crowns reliance upon the admissions he had made in his home, on the basis that he had not had access to legal advice prior to interview. In G, the accused was indicted with offences including the possession of controlled drugs under the Misuse of Drugs Act 1971 and possession of prohibited firearms and ammunition under the Firearms Act 1968. The police had obtained a warrant to search the accuseds flat. They forced entry and found him there. He struggled, and was handcuffed and cautioned. He admitted to having drugs in his pocket, and responded to a number of questions about items found in the flat. He was subsequently arrested and taken to a police station where he answered further questions. He objected to the Crowns reliance at trial on the statements he made during the course of the search of the flat. In each of the three cases, the Appeal Court of the High Court of Justiciary referred to this Court the question whether the act of the Lord Advocate in leading and relying on the evidence in question would be incompatible with the appellants rights under Article 6(1) and (3)(c) of the European Convention on Human Rights. The Supreme Court, by a majority of 4 to 1, finds that, in the cases of Ambrose and M, the act of the Lord Advocate in leading and relying at the trial on the evidence that was obtained from them in response to police questioning without having had access to legal advice was not incompatible with the Article 6(1) and (3)(c) right; and in the case of G that it was incompatible. In Ambrose and M, the question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for decision by the Appeal Court and Sheriff Court respectively. Lord Hope gives the leading judgment. Lord Kerr gives a separate dissenting judgment finding in all three cases that the evidence would be inadmissible. In each of these three cases, the circumstances differ from those before the Supreme Court in Cadder and before the Grand Chamber in Salduz, in that the evidence in question was obtained through police questioning before the individuals were detained at a police station. The Supreme Court notes, firstly, that the jurisdiction of this court is limited to a consideration of the devolution issue which is raised by each of these references, and does not extend to ruling on how the circumstances referred to in each case would fall to be dealt with under domestic law. Secondly, it notes that a decision by this court that there is a rule that a person who is suspected of an offence but is not yet in custody has a right of access to a lawyer before being questioned by the police would have far reaching consequences for the investigation of crime by the authorities. Therefore, if Strasbourg has not yet spoken clearly on this issue, the court would be wise to wait until it has done so [14 15]. The duty of the domestic court in interpreting the Convention is to keep pace with the Strasbourg case law as it evolves over time. There is no obligation upon domestic courts to do more than that (R (Ullah) v Special Adjudicator [2004] UKHL 26, para 20 per Lord Bingham of Cornhill) [17]. The courts task in this case is to identify where the Strasbourg court stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies [20]. In domestic law, where an individual has not yet been detained under section 14 of the Criminal Procedure (Scotland) Act 1995, the test for the admissibility of answers given to questions put by police is whether or not there was unfairness on the part of the police. The fact that the person did not have access to legal advice when being questioned is a circumstance to which the court may have regard in applying the test of fairness, but it carries no more weight than that. There is no rule in domestic law that provides that police questioning of a person without access to legal advice who is suspected of an offence but is not in police custody must always be regarded as unfair. The question is whether a rule to that effect is to be clearly found in the jurisprudence of the Strasbourg court [25]. The Grand Chamber in Salduz had in mind the need to protect an accused against abusive coercion while in custody. The judgment appears to have been concerned only with establishing a rule that there was a right of access to a lawyer where the person being interrogated was in police custody [33]. That assessment is supported by subsequent Strasbourg case law, in particular Zaichenko v Russia (Application no.39660/02), the only case to date in which the complaint was of lack of legal assistance during police questioning when the applicant was not in custody [46]. If the Salduz judgment were to apply to statements made by a person in response to police questioning before being taken into custody, the court would have had to have said so expressly. It did not do so [35]. The privilege against self incrimination is not an absolute right (Murray v United Kingdom (1996) 22 EHRR 29, para 47). It is primarily concerned with respecting the will of the person to remain silent (Saunders v United Kingdom (1996) 23 EHRR 313, para 68), and a person is free to confess if he is willing to do so. Police custody or its equivalent creates a need for protection of the accused against abusive coercion. The same is not the case for questioning at the locus or in a persons home [54]. In principle, the line as to when access to legal advice must be provided before the person is questioned should be drawn as from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed [55]. The correct starting point when considering whether the persons Convention rights have been breached is to identify the moment at which he is charged for the purposes of Article 6(1); that is whether his situation is substantially affected (Deweer v Belgium (1980) 2 EHRR 439, para 46; Eckle v Germany (1982) 5 EHRR 1, para 73). That will be the case as soon as the suspicion against him is being seriously investigated and the prosecution case compiled [62]. The fact that a person who has become a suspect and is not in custody is questioned without access to legal advice will be a relevant factor in the assessment whether the accused was deprived of a fair hearing, but it will be no more than that. In Ambrose and M, the question is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning, conducted under common law at the roadside or at the accuseds home, without the accused having had access to legal advice, was incompatible with Article 6(1) and (3)(c). This is answered in the negative. Ambrose was charged for the purposes of Article 6 when he was cautioned. Suspicion that he was committing an offence fell on him as soon as he told the police that the keys were in his pocket [67]. M was charged when he was cautioned by the police officer at his home [69]. But it would be to go further than Strasbourg has gone to hold that the appellants are entitled to a finding that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being subjected to questioning at the roadside [68 & 70]. The question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for the Appeal Court and Sheriff Court respectively. In G, the question whether it is incompatible with his Convention rights for the Lord Advocate to lead evidence of his statements made during the course of the search is answered in the affirmative. He was charged for the purposes of Article 6 by the time the police began their search. The difference with this case was that there was a significant curtailment of Gs freedom of action. He was detained and had been handcuffed, and was, in effect, in police custody from that moment onwards. The circumstances were, therefore, sufficiently coercive for the incriminating answers that he gave to the questions that were put to him without access to legal advice to be inadmissible [71]. The same result need not, however, follow in every case where questions are put during a police search to a person who is to be take to have been charged for the purposes of Article 6; that, again, would be going further than Strasbourg has gone [72]. Lord Kerr would have found the evidence in question to be inadmissible in all three cases. It is not open to courts of this country to refrain from recognising a claim to a Convention right simply because Strasbourg has not spoken clearly on the matter [128]. In practice, it is inevitable that many claims to Convention rights will have to be determined by the UK courts without the benefit of unequivocal jurisprudence from Strasbourg. It is the duty of every domestic court to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view [129]. As regards the right of access to a lawyer, the selection of the moment of being taken into custody as the first occasion on which legal representation becomes necessary is both arbitrary and illogical. The judgment in Salduz indicates that the need to have a lawyer is not to be determined on a geographical or temporal basis but according to the significance of what is taking place when the admissions in question are made [136]. The essential question is: when the questioning is taking place, is the suspect in a position where the advice of a lawyer is essential if a fair trial is to occur. If he is liable to incriminate himself at that time, a lawyers presence is required [145]. The judgment in Zaichenko is not clear, but does not indicate that formal arrest and interrogation in custody are essential prerequisites to the invocation of the right to legal assistance [158].
The appellants, Mr Francis John Wilson and his wife, Mrs Annette Wilson, are the proprietors of a house at 100 Dalum Grove, Loanhead, which is also now their home. On 12 July 1991 they granted a standard security over the house in favour of the respondent, the Royal Bank of Scotland (the Bank). The standard security was recorded in the Register of Sasines on 3 December of the same year. The appellants, Mr John Patrick McCormack Wilson and Mrs Norma Wilson, are the proprietors of the neighbouring house at 98 Dalum Grove, Loanhead, which is also now their home. On 28 November 1991 they granted a standard security over the house in favour of the Bank. The standard security was recorded in the Register of Sasines on 4 December 1991. Since it is accepted that material circumstances in the two appeals are the same, for the sake of convenience, I shall concentrate on the appeal by Mr Francis John Wilson and Mrs Annette Wilson (Mr and Mrs Wilson), the result in which will be determinative of the appeal by Mr John McCormack Wilson and his wife. The standard security granted by Mr and Mrs Wilson included the personal obligation in respect of which it was granted, in accordance with Form A in Schedule 2 to the Conveyancing and Feudal Reform (Scotland) Act 1970 (the 1970 Act). The personal obligation was in these terms: WE, FRANCIS JOHN WILSON and MRS ANNETTE WILSON, residing at Sixty Three Park Avenue, Loanhead, Midlothian (hereinafter referred to as the Obligant) hereby undertake to pay to THE ROYAL BANK OF SCOTLAND plc (hereinafter referred to as the Bank, which expression includes its successors and assignees whomsoever) on demand all sums of principal, interest and charges which are now and which may at any time hereafter become due to the Bank by the Obligant whether solely or jointly with any other person, corporation, firm or other body and whether as principal or surety. The deed went on to declare that the interest was to be at the rate(s) agreed between the Bank and the Obligant or (failing such agreement) determined by the Bank and shall be payable at such dates as may be so agreed or determined by the Bank. After further declarations, the deed continued: For which sums the said Francis John Wilson and Mrs Annette Wilson hereby grant a Standard Security in favour of the Bank over the house at Dalum Grove. It is worth noting that the deed contained a declaration in terms of which the expression, the Obligant, was to mean both the persons who granted the security together and/or any one or more of them; and in all cases the obligations hereby undertaken by the Obligant shall bind all person(s) included in the expression the Obligant and his, her or their executors and representatives whomsoever all jointly and severally without the necessity of discussing them in their order. It follows that Mr Wilson, as an individual, and Mrs Wilson, as an individual, were undertaking both a joint and a several obligation to pay the sums in question. In particular, Mrs Wilson was undertaking to pay any indebtedness of her husband to the Bank. I refer to the discussion by the House of Lords of a comparable term in AIB Group (UK) Ltd v Martin [2002] 1 WLR 94. But, in addition, together with her husband, Mrs Wilson was granting the standard security in respect of both her own indebtedness under the personal obligation and the indebtedness of her husband under that obligation. By a partnership letter dated 8 October 1992 Mr Wilson, along with his brother and his son, became jointly and severally responsible to the Bank for the repayment of any indebtedness or liability of the firm of F J Wilson Associates, and interest and charges thereon. By a further partnership letter dated 15 October 1993 Mr Wilson, along with his brother, became jointly and severally responsible to the Bank for the repayment of any indebtedness or liability of the firm of Wilson Brothers, and interest and charges thereon. On 20 June 1995 Mr Alistair Henderson, Assistant Recoveries Manager in the Banks Insolvency Unit, wrote to Mr Wilson in these terms: Our Penicuik Branch I regret to learn that your indebtedness to the Bank as undernoted at our above Branch is not being repaid in accordance with arrangements and I have therefore to advise that unless within ten days from the date of this letter you effect repayment of the whole sums due to the Bank or, alternatively, make a substantial payment to account within that period coupled with acceptable proposals to take care of the remaining indebtedness I shall have no alternative but to institute proceedings against you for recovery. Such proceedings will involve expense for which you will be liable and it is therefore in your own interest to give this matter your immediate attention. The note showed that the Business Current Account of Wilson Brothers was overdrawn in the sum of 22,250.61 excluding accrued interest and charges, while the equivalent sum for the Business Current Account of F J Wilson Associates was 26,211.88. There was a further indebtedness of 854.07 on a Business Term Loan to F J Wilson Associates. Mr McIlvride, who appeared for the Bank, accepted that, when they sent this letter, the Bank were demanding payment of Mr Wilsons debt under his personal obligation in the standard security and were intending to exercise their powers under the standard security, to take possession of the house at Dalum Grove and to eject Mr Wilson and his family, if the debt were not paid. But the sheriff found that, when Mr Wilson received and read the letter, he did not understand this. He thought that the Bank were merely seeking the sums of money from him. Mrs Wilson did not see the letter until early in 2007 and no similar letter was ever sent to her. No part of any of the sums mentioned in the letter of 20 June 1995 has been repaid to the Bank. A certificate of default dated 3 February 2006 indicates that, by then, the indebtedness in respect of Wilson Brothers had reached 141,247.52, including accrued interest of 1,865.85, and in respect of F J Wilson Associates it had reached 99,172.81, including accrued interest of 1,310.05. These proceedings In April 1998 the Bank began proceedings in Edinburgh Sheriff Court against Mr and Mrs Wilson. Besides the usual crave for expenses, the initial writ contained two craves. In the first crave, which constituted an application under section 24(1) of the 1970 Act, the Bank asked the court: To grant warrant to the pursuers in terms of section 24(1) of the Conveyancing and Feudal Reform (Scotland) Act 1970 to enter into possession of [the house at Dalum Grove] being the subjects described in the Standard Security by Francis John Wilson and Mrs Annette Wilson for all sums of money due and that may become due to The Royal Bank of Scotland plc and to exercise in relation to the said subjects all powers competent to a creditor in lawful possession of the security subjects including the power of sale of the said security subjects. In the initial writ as originally drafted the Bank went on to crave removing of Mr and Mrs Wilson with a view to selling the subjects. But in the course of the hearing of an earlier appeal relating to a defence raised by Mrs Wilson, the Second Division granted leave to Mr McIlvride for the Bank to amend the crave to one for ejection: Royal Bank of Scotland v Wilson 2004 SC 153, 157, para 14. The second crave is now in these terms: To grant warrant to officers of court summarily to eject the defenders, and their family, goods, gear, and effects, from the said subjects, and to make the same void and redd, that the pursuers, or others in their name, may enter thereto and peaceably possess and enjoy the same. On 27 April 1998 the initial writ was served on Mr and Mrs Wilson. This was the first time that she became aware that the Bank were seeking to repossess her home and eject herself and the family. The action has been in one court or another for over twelve years. After Mrs Wilsons particular defence was rejected by the Second Division in Royal Bank of Scotland v Wilson 2004 SC 153, a proof before answer was allowed. Eventually, it took place in February 2007 and on 2 May 2007 Sheriff Stoddart assoilzied Mr and Mrs Wilson. The Bank appealed to the Court of Session and on 5 May 2009 an Extra Division (Lord Nimmo Smith, Lord Reed and Lord Drummond Young) allowed the appeal and granted decree as craved: Royal Bank of Scotland Plc v Wilson 2009 SLT 729. In effect, therefore, the Bank were granted a decree for the ejection of Mr and Mrs Wilson from their home. The Wilsons appeal against that interlocutor. As is immediately apparent from the fact that Mr and Mrs Wilson have not paid any of their indebtedness to the Bank, the appeal relates to rather technical legal issues which are said to stand in the way of the Bank enforcing their security. Moreover, both Mr and Mrs Wilson have for many years been aware of the debt and of the steps which the Bank are taking to enforce their security. But a striking feature of the case is that the letter which the Bank sent to Mr Wilson on 20 June 1995 did not make any express reference to the standard security. Indeed, as already mentioned, at the time Mr Wilson did not realise that the Bank were indicating that they would, if necessary, take steps to enforce their security. The steps taken to alert Mrs Wilson were even less satisfactory. Although, by virtue of the personal obligation in the standard security, she was personally liable for her husbands indebtedness under the partnership letters, the Bank have never sought to enforce that liability against her. Had they done so, they would have required to demand payment from her and she would have become aware of the situation. But presumably the Bank thought that there would be no point in trying to enforce her liability to pay the debt since she would not have had the resources to do so. What the Bank did, however, was to take steps which they considered would be sufficient to enforce the standard security that she and Mr Wilson had granted as proprietors of their home at Dalum Grove. The Bank wrote to Mr Wilson to demand payment. When he did not pay, they treated him as being in default and chose to enforce their security by applying to the court under section 24(1). This meant that the Bank did not contact Mrs Wilson at any stage before they launched these proceedings by serving the initial writ. This Court has to decide whether the Bank were entitled to enforce their standard security and obtain a decree of ejection of Mr and Mrs Wilson in this way. The 1970 Act In Multi-Link Leisure Developments v North Lanarkshire Council 2010 SC 302, 308, para 24, Sir David Edward QC, giving the opinion of an Extra Division of the Inner House, indicated that their Lordships were more familiar with the mindset of the Scots conveyancer than with the mindset of the man on the Jubilee line on his way to Canary Wharf. But even if the man on the Glasgow underground on his way to Buchanan Street were familiar with the mindset of the Scots conveyancer, he would often find his language and approach somewhat challenging. As its title suggests, the 1970 Act deals with matters of conveyancing. Moreover, it does so in a manner which makes few concessions to those not steeped in the article Indeed, even Professor Gretton and Professor Reid have felt moved to warn that The law about the enforcement of standard securities is a subject of great and unnecessary complexity: it is a veritable maze: Conveyancing (third edition, 2004), para 19-32. The Court must try to find a way through that maze. Part II of the 1970 Act created a brand new form of security over heritable property, the standard security. Although securities granted in the old forms remained valid, all new securities had to take the form of a standard security. But, as Mr Summers QC emphasised on behalf of Mr and Mrs Wilson, Part II of the 1970 Act did not create a comprehensive code to regulate the way that the standard security was to operate. Rather, Parliament created the new form of security and laid down certain rules as to its operation but, for the rest, slotted it into a modified version of the existing statutory and common law regulating heritable securities. To see this, it is sufficient to refer to section 20(1), which provides that the creditors rights are to be in addition to any right conferred by any enactment or by any rule of law, and to section 32: The provisions of any enactment relating to a bond and disposition or assignation in security shall apply to a standard security, except in so far as such provisions are inconsistent with the provisions of this Part of this Act, but, without prejudice to the generality of that exception, the enactments specified in Schedule 8 to this Act shall not so apply. It may therefore be necessary to travel outside the 1970 Act to see how the standard security works in particular situations. The scheme of the 1970 Act is sometimes confusing, since it requires the reader to go backwards and forwards between the provisions contained in the body of Part II and the contents of Schedules 2 to 9. For example, section 9(2) provides that it is to be competent to grant and record a standard security to be expressed in conformity with one of the forms prescribed in Schedule 2 to the Act. Schedule 2 contains two forms of standard security, Form A, to be used where the personal obligation is included in the deed, and Form B, which is to be used where the personal obligation is constituted in a separate instrument or instruments. Appended to Schedule 2 are various notes telling the conveyancer what to do in certain situations. But, in order to discover the meaning of Form A, the reader has to return to section 10. That section explains what is meant by the personal obligation in Form A, thus avoiding the need for the draftsman of the standard security to spell it all out. The technique is familiar from, say, section 119 of the Titles to Land Consolidation (Scotland) Act 1868, with its (1594-word) commentary on Form No 1 of Schedule FF to that Act. The effect of recording a standard security under section 9(2) is to be found in section 11. But, to discover the conditions which are to regulate the standard security (subject to any variations validly agreed by the parties), section 11(2) directs the reader to Schedule 3. This schedule contains the Standard Conditions, the first six of which impose various obligations on the debtor, e g, to maintain and repair the security subjects and to insure them. Conditions 7 to 10 relate to powers of the creditor, while 11 concerns the exercise of the debtors right of redemption. For present purposes conditions 8, 9 and 10 are of importance. They must therefore be set out, so far as relevant: 8. The creditor shall be entitled, subject to the terms of the security and to any requirement of law, to call-up a standard security in the manner prescribed by section 19 of this Act. 9. (1) The debtor shall be held to be in default in any of the following circumstances, that is to say (a) where a calling-up notice in respect of the security has been served and has not been complied with; (b) where there has been a failure to comply with any other requirement arising out of the security; (c) where the proprietor of the security subjects has become insolvent. 10. (1) Where the debtor is in default, the creditor may, without prejudice to his exercising any other remedy arising from the contract to which the standard security relates, exercise, in accordance with the provisions of Part II of this Act and of any other enactment applying to standard securities, such of the remedies specified in the following sub-paragraphs of this standard condition as he may consider appropriate. (2) He may proceed to sell the security subjects or any part thereof. (3) He may enter into possession of the security subjects and may receive or recover feuduties, ground annuals or, as the case may be, the rents of those subjects or any part thereof. (4) Where he has entered into possession as aforesaid, he may let the security subjects or any part thereof. (5) Where he has entered into possession as aforesaid there shall be transferred to him all the rights of the debtor in relation to the granting of leases or rights of occupancy over the security subjects and to the management and maintenance of those subjects. (6) He may effect all such repairs and may make good such defects as are necessary to maintain the security subjects in good and sufficient repair, and may effect such reconstruction, alteration and improvement on the subjects as would be expected of a prudent proprietor to maintain the market value of the subjects, and for the aforesaid purposes may enter on the subjects at all reasonable times. (7) He may apply to the court for a decree of foreclosure. It is not the practice of conveyancers to set out these conditions in the standard security itself. So the debtor cannot discover the conditions regulating the security simply from reading it. To set them out would, of course, increase the length of the deed and so defeat one of Parliaments aims in devising this form of shorthand deed. But, further than that, listing the contents of standard condition 10 would be potentially misleading, unless, at the very minimum, various sections in Part II of the Act were also reproduced. For example, it is only by consulting section 20 that the reader finds confirmation that, when a debtor fails to comply with a calling-up notice under section 19, the creditor can indeed exercise any appropriate power under standard condition 10. Equally, it is only by consulting section 23 that the reader discovers that by contrast if the debtor fails to comply with any other requirement arising out of the security after the service of a notice of default under section 21, the creditor can actually only exercise his powers under standard condition 10(2), (6) and (7) unless he makes an application to the court under section 24 for a warrant giving him other powers. Bearing in mind the structure of Part II of the Act, I turn to look more closely at the way that the legislation operates in the present case. The application under section 24(1) As already explained, the Bank set events in train by writing to Mr Wilson in June 1995. Although he did not understand their letter in this way, by sending it, the Bank intended to warn him that they would take steps to enforce their standard security if he did not pay. Since his personal obligation under the standard security was to pay on demand, his liability to pay was not triggered until this demand was made. In other words he was not in default until he failed to comply with the demand. The question is: what steps does the 1970 Act envisage that a creditor in the position of the Bank will take in those circumstances? As Lord Walker pointed out at an early stage in the hearing, subsections (1) and (2) of section 19 seem to provide a clear answer, that the creditor shall serve a calling-up notice: (1) Where a creditor in a standard security intends to require discharge of the debt thereby secured and, failing that discharge, to exercise any power conferred by the security to sell any subjects of the security or any other power which he may appropriately exercise on the default of the debtor within the meaning of standard condition 9(1)(a), he shall serve a notice calling-up the security in conformity with Form A of Schedule 6 to this Act (hereinafter in this Act referred to as a calling-up notice), in accordance with the following provisions of this section. (2) Subject to the following provisions of this section, a calling-up notice shall be served on the person last infeft in the security subjects and appearing on the record as the proprietor, and should the proprietor of those subjects, or any part thereof, be dead then on his representative or the person entitled to the subjects in terms of the last recorded title thereto, notwithstanding any alteration of the succession not appearing in the Register of Sasines. Form A in Schedule 6 is in these terms: TAKE NOTICE that CD (designation) requires payment of the principal sum of with interest thereon at the rate of .................. per centum per annum from the .................. day of ........................ (adding if necessary, subject to such adjustment of the principal sum and the amount of interest as may subsequently be determined) secured by a standard security by you (or by EF) in favour of the said CD (or of GH to which the said CD has now right) recorded in the Register for .................. on .................. And that failing full payment of the said sum and interest thereon (adding if necessary, subject to any adjustment as aforesaid), and expenses within two months after the date of service of this demand, the subjects of the security may be sold. If the Bank had served a calling-up notice, by virtue of section 19(2), it would have had to be served on Mrs Wilson, as one of the proprietors of the security subjects. Under a calling-up notice Mr Wilson would have had two months in which to pay the full amount due to the Bank after which he would have been in default within the meaning of standard condition 9(1)(a). By virtue of section 20(1) and (2), the Bank would then have been entitled to exercise any of their rights under the security and, in particular, their right to enter into possession and to sell the house. In fact, however, the Bank did not proceed under section 19, but took an entirely different course. The Bank treated Mr Wilson as having failed to comply with a requirement arising out of the security, other than a requirement under a calling-up notice. So they treated him as being in default under standard condition 9(1)(b). Assuming, for the moment, that this was permissible, when Mr Wilson failed to comply with the demand to pay the debt, the Bank would have been entitled to serve a notice of default under section 21, calling on him to purge his default by paying the debt within one month. If Mr Wilson had been aggrieved by the requirement to pay, he could have applied to the court under section 22. If he had not objected, or his objection had been rejected and the notice of default upheld, then Mr Wilson would have been required to comply with the requirement in the notice. Failing which, the Bank would have been entitled to exercise their powers under standard condition 10(2), (6) and (7). As explained already, the Bank did not go down this route. Instead, eventually, in April 1998 still on the basis that Mr Wilson was in default under standard condition 9(1)(b) they made an application to the court under section 24, which provides: (1) Without prejudice to his proceeding by way of notice of default in respect of a default within the meaning of standard condition 9(1)(b), a creditor in a standard security, where the debtor is in default within the meaning of that standard condition or standard condition 9(1)(c), may apply to the court for warrant to exercise any of the remedies which he is entitled to exercise on a default within the meaning of standard condition 9(1)(a). (2) For the purposes of such an application as aforesaid in respect of a default within the meaning of standard condition 9(1)(b), a certificate which conforms with the requirements of Schedule 7 to this Act may be lodged in court by the creditor, and that certificate shall be prima facie evidence of the facts directed by the said Schedule to be contained therein. As the first crave (at para 9 above) shows, the Bank asked the court to grant warrant to enter into possession of the house at Dalum Grove (standard condition 10(3)) and to exercise in relation to the house all powers competent to a creditor in lawful possession, including the power of sale (standard condition 10(2)). By granting decree in terms of the first crave, the Extra Division granted the Bank warrant to exercise those powers. The Banks crave for ejection In the Inner House and in the hearing before this Court much of the argument was directed, however, to the Banks second crave as amended, which, it will be recalled, is a crave for the ejection of Mr and Mrs Wilson and their family from their home. Assuming that the Bank were granted the power under standard condition 10(3) to enter into possession of the subjects, under standard condition 10(1) they could only exercise this power in accordance with the provisions of Part II and of any other enactment applying to standard securities. Paragraphs 18 to 24 of Schedule 8 to the 1970 Act show that section 5 of the Heritable Securities (Scotland) Act 1894 (the 1894 Act) is among the provisions of that Act which apply to standard securities. Section 5 provides: Where a creditor desires to enter into possession of the lands disponed in security, and the proprietor thereof is in personal occupation of the same, or any part thereof, such proprietor shall be deemed to be an occupant without a title, and the creditor may take proceedings to eject him in all respects in the same way as if he were such occupant: Provided that this section shall not apply in any case unless such proprietor has made default in the punctual payment of the interest due under the security, or in due payment of the principal after formal requisition. As counsel for the Bank accepted, this section applies in the present case where the Bank wish to enter into possession of security subjects which are in the personal occupation of the proprietors, Mr and Mrs Wilson. In that situation section 5 allows the creditor to take summary proceedings for ejection, provided that the proprietor has made default in the punctual payment of the interest due under the security, or in due payment of the principal after formal requisition. (The language of the section is not well adapted to a case where only one of the proprietors is in default.) Mr McIlvride acknowledged that the Bank had not established that Mr Wilson had failed to make punctual payment of any interest due under the security. So they have to show that there has been default by Mr Wilson in due payment of the principal after formal requisition (emphasis added). For his part, Mr Summers accepted that, if the Bank had served a calling-up notice in Form A in Schedule 6, this would have met the requirement of a formal requisition. He pointed out that the terms of such a calling-up notice were comparable in their material respects to the Form of Schedule of Intimation, Requisition, and Protest, which is Form No 2 in Schedule FF to the Titles to Land Consolidation (Scotland) Act 1868 the form that would have been in use at the time when section 5 of the 1894 Act was enacted. But, he submitted, since the Bank had proceeded under section 24 of the 1970 Act, they had never served any kind of notice which could constitute a formal requisition for purposes of section 5 of the 1894 Act. So they were not entitled to ask the court for decree of eviction. The Extra Division dealt with this point in para 44 of their judgment, 2009 SLT 729, 738: We agree with the submission by counsel for the Bank that the Sheriff erred in holding that warrant for ejection can only be granted if a formal requisition of payment has been made in terms of section 5 of the 1894 Act. For the reasons given above, warrant for ejection may competently be granted where the debtor in a standard security is in default in terms of standard condition 9(1)(b). The only voucher that is required is a Schedule 7 certificate. No separate requisition is required. The effect of section 24 of the 1970 Act is that such a certificate constitutes a formal requisition for the purposes of section 5. In any event, there is no difference between these provisions. The requirement in a notice of default is the same as a requisition. The word formal means no more than that it must be made in the statutory form. Moreover, the comma in the proviso to section 5, and the absence of further words such as in either case, make it clear that the phrase after formal requisition only applies to payment of principal and not to interest. As already explained, the point about payment of interest does not arise in this case since the Bank have not established that there has been a failure in that respect. So far as the Division proceeded on the basis that a Schedule 7 certificate can constitute a formal requisition for the purposes of section 5 of the 1894 Act, Mr McIlvride explained that he had not advanced that argument before the Division and felt unable to support this aspect of their reasoning. A Schedule 7 certificate contains no requirement of any kind: it is simply a piece of evidence which is created for, and used in, the proceedings. It cannot therefore constitute the formal requisition which must precede the proceedings for ejection. Moreover, even if the requirement in a notice of default in the form in Form B in Schedule 6 would count as a formal requisition, as the Extra Division argued, that is irrelevant in the present case since the Bank did not serve such a notice. It respectfully appears to me that the reasoning of the Extra Division on this point cannot be upheld. Counsel preferred to base his argument on part of the wording of section 24(1) of the 1970 Act. He argued that, if the court did indeed grant the Bank warrant to exercise any of the remedies which a creditor is entitled to exercise on a default within the meaning of standard condition 9(1)(a), then the Bank would be in the same position as if they had served a calling-up notice with which Mr Wilson had not complied. In other words, the Bank must be treated as having, in effect, served a calling-up notice which as Mr Summers accepted would constitute a formal requisition for purposes of section 5 of the 1894 Act. So the court could grant decree to eject Mr and Mrs Wilson, who had no substantive defence to the Banks claim. The argument certainly has its attractions, not least because as Mr McIlvride stressed Mr and Mrs Wilson know perfectly well what they have been asked to pay and they have had ample opportunity to put forward their defence. Nevertheless, I would not accept the argument since the simple fact is that section 5 of the 1894 Act only allows the creditor to take proceedings for ejection if they have been preceded by a formal requisition. Mr Summers referred to a number of authorities, including Inglis Trs v Macpherson 1911 2 SLT 176, to show that section 5 was passed in order to introduce a new summary procedure for obtaining the drastic remedy of ejection. Mr McIlvride accepted this. That being so, it would, in my view, be wrong to water down the precondition imposed by Parliament for using that summary procedure. In more concrete terms, if a formal notice had been given, Mrs Wilson would have been warned about the situation and about the danger of being ejected from her home, before any proceedings were started. Which seems only reasonable. Approaching the matter on this footing, I would have allowed the appeal. Mr McIlvrides cri de coeur that to impose a requirement on the Bank to make a formal requisition is tantamount to requiring them to serve a calling-up notice really brings us back to the fundamental point. Were the Bank actually, all along, obliged to serve a calling-up notice if they wanted to require payment of the debt and, failing payment, to sell the Wilsons house? I must retrace my steps to see if there is another way through the maze. Must a creditor serve a calling-up notice when section 19(1) applies? The terms of section 19(1) are quoted at para 23 above. It is not disputed that the subsection applies to the situation in this case: undoubtedly, therefore, the Bank could have served a calling-up notice, with the result that any default would be under standard condition 9(1)(a). The question is: were they bound to do so? Section 19(1) (he shall serve a notice calling up the security) appears to say that they were. But, in practice, it has not been treated as requiring a creditor to serve a calling-up notice in these circumstances. Rather, it has been treated as permitting a creditor to use the calling-up procedure, but as also permitting him, in the alternative, to treat the debtor as being in default within the meaning of standard condition 9(1)(b). On that approach, the creditor can serve a calling-up notice under section 19, or serve a notice of default under section 21, or simply apply to the court for a warrant under section 24. Section 19(1) is simply one option for the creditor: he can use it if he wants, but he can also choose to use one of the other remedies, if he wants. Such, we were told, is the way the legislation has been interpreted in practice. Counsel mentioned that at the hearing in the Inner House one of the judges questioned whether this was the correct interpretation of these sections. But, understandably, the point was not pursued after their Lordships were referred to the decision of the Extra Division (Lord Sutherland, Lord MacLean and Lord Allanbridge) in Bank of Scotland v Millward 1999 SLT 901. This decision would certainly have been well known to Lord Drummond Young who had been counsel for the Bank of Scotland. It is not binding on this Court, however, and its reasoning must be scrutinised. A footnote to another report of the case, 1998 SCLR 577, 585, suggests that an appeal to the House of Lords may have been contemplated. If so, it was not pursued. In Millward Lord MacLean gave the courts decision, which is summarised at p 903H-I: In our opinion the law is correctly stated in Hallidays Conveyancing Law and Practice (2nd ed), that the creditor may serve a calling up notice where a creditor in a standard security intends to require repayment of the principal sum and interest, but he is not required to do so. He may, alternatively, serve a notice of default. As this summary suggests, their Lordships appear to have been much influenced by their perception that the late Professor Halliday, whom they rightly described as the architect of the Act, considered that a creditor who intends to require repayment of the principal sum and interest is not obliged to serve a calling-up notice under section 19(1) and has the alternative of serving a notice of default under section 21(1). It is noticeable that they make no mention of an application to the court under section 24(1). Before looking more closely at what Professor Halliday said, I must examine an assumption that apparently underlies the Extra Divisions approach in Millward. In outlining the parties arguments Lord MacLean recorded, 1999 SLT 901, 903B-C, that counsel for the Bank had acknowledged that section 19 of the Act applied only when there was a requirement of discharge of the entire debt. In the present case the Bank required Mr Wilson to repay the entire debt and so it is strictly speaking unnecessary to decide whether that view is correct. Moreover, the point may be unlikely to arise very often in practice since most banks and building societies will include an acceleration clause entitling them to require repayment of the entire loan if the debtor fails to pay any part of the total debt when it becomes due. Nevertheless, it should not be assumed that it is only where the creditor requires repayment of the entire sum that serving a calling-up notice under section 19(1) is competent. Presumably no reasoning is given in Millward the view that this is the position is based on the opening words of section 19(1): Where a creditor in a standard security intends to require discharge of the debt thereby secured. The suggestion must be that the combination of the debt thereby secured and discharge indicates that Parliament is referring to the situation where the creditor requires the debtor to pay the whole of the debt or perform the whole of the obligation ad factum praestandum for which the security has been granted. As Lord Clarke pointed out in the course of the argument, however, section 9(8)(c) provides that debt means any obligation due, or which will or may become due, to repay or pay money and any obligation ad factum praestandum. An obligation to repay 50K of a loan of 100K must fall within the words any obligation due to repay money and the debtor who repays 50K discharges that obligation, which is secured by the standard security. Moreover, where Parliament wishes to refer to the whole of the debt due from the debtor, it uses the expression whole amount due. See sections 18(4), 27(1)(c), 28(2) and 30(1) and standard condition 11(4) and (5) in Schedule 3. For these reasons, it seems difficult to restrict the scope of section 19(1) to situations where the creditor intends to recover the entire debt. It may be worth mentioning another point about the opening words of section 19(1). They refer to the creditor in a standard security intending to require discharge of the debt thereby secured. That expression aptly describes the debtors liability under any personal obligation, irrespective of whether it is constituted by a separate instrument (Form B in Schedule 2) or in the deed itself (Form A). So a calling-up notice applies to both. It is much less clear that the same can be said of a notice of default or of the procedure in section 24(1). Both of those procedures apply where the debtor is in default within the meaning of standard condition 9(1)(b) and, reading short, that standard condition applies where there has been a failure to comply with a requirement arising out of the security. Where the debtor fails to comply with a personal obligation constituted by a separate instrument, he fails to comply with a requirement under that instrument. But it is hard to see how he can properly be said to have failed to comply with a requirement arising out of the security. It is true that, when Parliament refers to the whole amount due under the security in section 28(4), for example, this must refer to standard securities in Form B as well as Form A. But, by section 30(2), that expression has to be read in the light of the definition of whole amount due in section 18(4). So read, the expression provides no basis for ignoring the specific words used in standard condition 9(1)(b). There is therefore a difficulty in holding that a notice of default could apply to a failure to pay a sum due under a separate instrument. This tends to support the view that serving a calling-up notice under section 19(1) is the only competent route in the circumstances, since it is hard to see why Parliament would have intended to distinguish between Form A and Form B standard securities in this respect. Other complications can be envisaged, but it is unnecessary to explore them. I can now return to the reasoning of the court in Bank of Scotland v Millward 1999 SLT 901. The Extra Division appear to have been influenced by their perception that conveyancing practitioners used notices of default even in situations where they could use calling up notices: 1999 SLT 901, 903G. In particular, they had been told, at p 903C-D, that the Bank of Scotland tended to use calling-up notices for residential property and notices of default for commercial property, apparently on the view that commercial debtors did not need to be given so long to pay. But the facts of this case suggest that other financial institutions do not follow that policy. In any event the practice of even the most distinguished conveyancers cannot prevail if it is irreconcilable with the provision enacted by Parliament. Against the background of the perceived practice of conveyancers, the Extra Division suggested, at p 903G-H, that, if a creditor had to use the calling-up procedure in section 19(1), this would mean that the creditor could use a notice of default where 99% of the debt had been demanded, but would have to use a calling-up notice where 100% had been demanded. They did not consider that the statutory framework in sections 19 to 22 necessarily led to that conclusion. Indeed it does not: the substance of the supposed objection dissolves if, contrary to the Divisions assumption, a calling-up notice can be served in cases where the creditor has asked for payment of less than the whole debt. The Extra Division really based their conclusion, that a calling-up notice and a notice of default are alternatives, on their understanding of Professor Hallidays view. They referred to his Conveyancing Law and Practice Vol 2 (second edition, 1997), para 54-05: Where a creditor in a standard security intends to require repayment of the debt thereby secured and, failing such repayment, to exercise any of his powers in respect of a security, he may serve a calling up notice. The court emphasised the word may. But the simple fact is that Parliament used the word shall in section 19(1). Although their Lordships must have accepted the submission of counsel for the bank that shall had to be read in a permissive and not a mandatory sense, they do not explain what there is in the Act, or indeed in authority, to justify that interpretation of section 19(1). For my part, I can see nothing. Moreover, I very much doubt whether Professor Halliday actually intended to say otherwise. It is noticeable that, while the Division emphasised the word may in the passage which they quoted, the author did not. Nor did he say that, alternatively, the creditor may serve a notice of default in such cases. The Division cited the second (posthumous) edition of his Conveyancing Law and Practice (revised by Mr I J S Talman), but the same applies to the first edition, published during his lifetime: Conveyancing Law and Practice Vol 3 (first edition, 1987), paras 39-03, and 39-19 and 39-20. The same also goes for his commentary on the 1970 Act, the first edition of which was published very shortly after the Act was passed. In The Conveyancing and Feudal Reform (Scotland) Act (first edition, 1970), para 1-27; (second edition, 1977), para 1-26, Professor Halliday who was in a position to know said that the provisions for the enforcement of the standard security had posed the most difficult questions of policy for the legislature. In his view sections 19 to 29 incorporated a compromise solution which permits considerable flexibility in procedures but affords reasonable protection to the debtor on essential matters. He went on to describe the calling-up procedure (first edition, para 1-28; second edition, para 1-27), before continuing in the next paragraph: A new additional remedy is provided which permits the creditor to proceed in certain circumstances by way of serving a notice of default. While Professor Halliday was pointing to the wider range of remedies which the new statute made available to the creditor to cater for different situations, there is nothing to show that he considered that serving a notice of default was an alternative to serving a calling-up notice far less, that the section 24(1) procedure was also such an alternative. What Professor Halliday did emphasise and rightly emphasise was the quite different point that a calling-up notice and a notice of default are not mutually exclusive. In other words, a creditor can use both, if that is appropriate. Lord MacLean refers, 1999 SLT 901, 903E-F, to the relevant passage in Professor Hallidays Conveyancing Law and Practice Vol 2, para 54-22. Passages to a similar effect are found in his earlier works. There may indeed be situations where the creditor will want to exercise both rights at the same time and, as section 21(1) shows, there is nothing to prevent this. For example, if the security subjects were deteriorating, the creditor might well wish to serve both a calling-up notice requiring the debtor to pay the debt and a notice of default requiring him to fulfil his repairing obligation. Although the Extra Division drew attention to this point, it does nothing to support their view that a notice of default can be used as an alternative to the calling-up notice. That is an altogether different matter. The auctoritas of Professor Halliday among conveyancers was, and is, immense. But, for judges at least, in the end even a word from Professor Halliday would have to yield to the words of Parliament. In that event it would also be worth bearing in mind the observation of the Earl of Halsbury LC, that the worst person to construe a statute is the person who was responsible for its drafting, since he is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed: Hilder v Dexter [1902] AC 474, 477. Happily, however, in my view there is no sufficient reason to conclude that Professor Halliday intended to say anything that is inconsistent with the text of the statute. Finally, it is noticeable that serving a calling-up notice under section 19 entitles the creditor to exercise a wider range of powers on default than those that are available on default after service of a notice of default under section 21. Compare section 20(1) with section 23(2). The disparity is instructive: if Parliament had really intended that the two remedies should operate as alternatives in this particular situation, it might have been expected to align the rights and powers available to the creditor to deal with it. For these reasons I would overrule the decision in Bank of Scotland v Millward 1999 SLT 901 on this point and hold that, in a case falling within the scope of section 19(1), the creditor must serve a calling-up notice. That interpretation ensures that all debtors are treated alike and, in particular, that they are all given the two-month period in which to pay, that is specified in the calling- up notice. Professor Halliday stressed that, in enacting the enforcement powers, Parliament had been concerned to strike the right balance between creditors and debtors. Interpreting section 19(1) in this way ensures that Parliaments policy on this important matter is given effect. Conclusion In these cases case the Bank did not serve a calling-up notice back in 1998. Mr McIlvride was unable to say why. He was also unable to say why they had not done so at some later stage when the cases had become bogged down in technical arguments about section 24 of the 1970 Act and section 5 of the 1894 Act. Unfortunately, for all the reasons which I have given, the Bank have pursued the wrong course. I would therefore allow the appeals, recall the interlocutor of the Extra Division, sustain the first plea-in-law for the first defender and the plea-in- law for the second defender and assoilzie both defenders in each of the appeals. It is only right that I should acknowledge the assistance that I have derived from the excellent submissions of counsel on both sides. I agree with Lord Rodger that these appeals must be allowed and I would make the orders that he proposes. I also agree with him that, on a correct analysis of the relevant provisions of the Conveyancing and Feudal Reform (Scotland) Act 1970 (the 1970 Act), the Bank pursued the wrong course when they decided to enforce these securities. It has to be recognised however that this conclusion runs counter to the way these provisions have been widely understood and applied in practice for the past four decades. So I should add some words of my own to explain why I too have come to be of that view. The 1970 Act was the product of a movement for reform of conveyancing law and practice which had been embodied in a series of reports, of which the relevant one for present purposes was the Report of the Halliday Committee (Cmnd 3118) which was published in December 1966. It contained proposals for the modernisation and simplification of the existing system which formed the basis for the measures enacted in Parts II to IV of the 1970 Act. Among the proposals in the Halliday Report was the introduction of a new statutory security. It was to be incompetent to create a heritable security by any other means after 29 November 1970, when the relevant provisions were to come into force six months after the Act was passed: section 54(2)(a). The new standard security was to follow one of the forms prescribed in Schedule 2. Form A was for use where the personal obligation was included in the deed. It contains an obligation to pay the debt. Form B was for use where the personal obligation was included in a separate instrument or instruments. It contains no obligation to pay the debt and is limited to creating the security, but the nature of the debt and the instrument or instruments constituting it must be referred to and sufficiently identified. The introduction to the commentary on the Act in Current Law Statutes noted that a valuable innovation under section 11 was the incorporation in the new security of the standard conditions prescribed in Schedule 3, unless conventionally varied. They were to regulate every standard security. The import of the form of bond and disposition in security prescribed was much more limited. Absent special agreement to the contrary, the creditor could insure the subjects against all loss by fire and recover the premiums from the debtor, but it was not until he had entered into possession that he was given any statutory powers of management: Conveyancing (Scotland) Act 1924, section 25(1)(a). It has been suggested that the creditor was entitled to object to any act which diminished the security: Gordon, Scottish Land Law (2nd ed, 1999), para 20- 12. Where the security was constituted by way of ex facie absolute disposition, a back letter would typically contain obligations on the debtor such as to keep the subjects in good repair or to observe title conditions. It would also set out the terms on which the ex facie absolute owner was entitled to enter into possession in the event of the debtors default in the fulfilment of any of his obligations: Gordon, para 20-100. But the benefit of incorporating the standard conditions was that everything that was relevant to the maintenance and enforcement of the security was set out in the statute. It is plain that much thought was given to the design of the forms, which were supplemented by the seven notes annexed to Schedule 2, and to the content of the standard conditions. These were matters of particular interest to the conveyancer, whose expertise lies the framing of deeds that give effect to the transaction that the client wishes to enter into and will meet the requirements for registration. A conveyancer in practice deals mainly with the sale and purchase of heritable property: Sinclair, Handbook of Conveyancing Practice in Scotland (3rd ed, 1995), para 1.1. His task is usually complete when the deed that transfers title to the purchaser or the deed that creates the heritable security is registered. What to do if a creditor has to enforce his security because the debtor has failed to perform his obligations under it has normally passed to someone else. The draftsman of the 1970 Act had to consider this problem, however, and the relevant provisions are to be found in sections 19 to 28 and in standard conditions 8 to 11. Section 19 provides for the calling-up of the security, and section 20 sets out the rights of the creditor if the debtor is in default in failing to comply with the calling-up notice. Section 21 introduces what the commentator in Current Law Statutes described as an entirely new remedy, the notice of default. These provisions need to be read in the light of standard condition 9(1), which provides: The debtor shall be held to be in default in any of the following circumstances, that is to say (a) where a calling-up notice in respect of the security has been served and has not been complied with; (b) where there has been a failure to comply with any other requirement arising out of the security; (c) where the proprietor of the security subjects has become insolvent. The circumstances listed in standard condition 9(1) are not presented as alternatives which are exclusive of each other. Necessarily so, as all three circumstances could be present in the event of the debtors insolvency. But, as the wording indicates, they are distinct circumstances. The question that these appeals give rise to is whether a creditor who wishes to enforce the security to obtain performance of the debt for which security was given can choose whether to proceed by way of a calling-up notice or may proceed instead on the basis that the debtor is in default under standard condition 9(1)(b). Finding the right answer to this question is important if the creditor wishes, as the Bank does in this case, to obtain an order to eject a debtor who is in personal occupation of the subjects of the security under section 5 of the Heritable Securities (Scotland) Act 1894, which applies to standard securities by virtue of section 32 of the 1970 Act. That section applies if the debtor has made default in due payment of the principal after formal requisition. It is not in doubt that a calling-up notice which is served under section 19 of the 1970 Act is a formal requisition for the purposes of section 5 of the 1894 Act. But the kind of default referred to in standard condition 9(1)(b), which is the route that the Bank has chosen to enforce the securities in this case, does not require the service of a calling-up notice. The requirements of section 5 could have been met by serving a notice of default which was appropriately worded, but the Bank did not regard this as a step that needed to be taken. Mr Summers QCs case for Mr and Mrs Wilson was that the Bank had failed to serve on them a document that could be described as a formal requisition for the purposes of section 5 of the 1894 Act. He set out his argument in this way. Summary ejection by a heritable creditor of a proprietor with a valid and subsisting title is not possible apart from section 5: Inglis's Trustees v Macpherson 1911 2 SLT 176, 177-178, per Lord President Dunedin; Craigie, Scottish Law of Conveyancing; Heritable Rights (1899), p 949. If there is no formal requisition within the meaning of that section, the proprietor cannot be ejected. The word formal is not defined in the 1894 Act, but it should be understood as requiring the creditor to provide full details of the security to the proprietor so that the basis for the demand is made clear. What will be required to achieve that clarity will depend on the circumstances of the case. In this case the absence of any reference to the security in the Banks demand letters gave the misleading impression that this was a demand that was made of the husbands only, in respect of their obligations as partners for partnership debt: see para [6] where their terms are set out by Lord Rodger. No such letter was sent to the wives, and there was no mention in the letters of their obligations under the standard securities. In the Inner House this argument was rejected by the Extra Division (Lords Nimmo Smith, Reed and Drummond Young): 2009 SLT 729, paras 39-44. In para 44, delivering the opinion of the court, Lord Nimmo Smith said: We agree with the submission by counsel for the bank that the sheriff erred in holding that warrant for ejection can only be granted if a formal requisition of payment has been made in terms of section 5 of the 1894 Act. For the reasons given above, warrant for ejection may competently be granted where the debtor in a standard security is in default in terms of standard condition 9(1)(b). The only voucher that is required is a Schedule 7 certificate. No separate requisition is required. The effect of section 24 of the 1970 Act is that such a certificate constitutes a formal requisition for the purposes of section 5. In any event there is no difference between these provisions. The requirement in a notice of default is the same as a requisition. The Schedule 7 certificate referred to in this passage is the certificate that the creditor may lodge in court under section 24(2) of the 1970 Act. If it contains the information required by the Schedule, which includes specification of the standard security in respect of which the default is alleged to have occurred and full details of the default, it will be prima facie evidence of the facts founded on as the default. These details were given in the certificates of default that the Bank lodged in January and February 2006, long after the actions were served in April 1998. They were not to be found in the demand letters which were sent to the husbands in June 1995. The propositions which I have quoted from the Extra Divisions opinion do not fit easily with the concept of a formal requisition as an essential preliminary for the taking of proceedings for ejection under section 5 of the 1894 Act. This was explained by Gloag and Irvine, Law of Rights in Security (1897), p 98. After noting that a creditor was entitled to remove the debtor by an action of removing in the Court of Session (see, eg, Blair v Galloway 1853 16 D 291), the authors said that no-one was entitled to make rules by contract which tend to establish a diligence different from that established by law and that extreme powers in a bond, although consented to by the debtor, will not be enforced: Thus where it was stipulated that in the event of the debtor falling into arrears for two months with monthly instalments of the debt it should be in the power of the creditor to remove him without any warning or legal process whatever, it was held that such extreme powers could not be legally enforced, and that a petition to the sheriff for summary removal of the debtor from the occupation of the subjects was incompetent. But the powers of a creditor in this respect have been enlarged by the Heritable Securities Act, 1894. It is there provided that where a debtor is in the natural possession of the lands covered by the security, or a part thereof, and has made default in payment of the interest under the security, or of the principal after a formal requisition for payment, the creditor may take proceedings to eject him as if he were an occupant without title. That is to say, it is presumed, he may bring a summary action of removing in the sheriff court. The requirement that there should be a formal requisition or demand for payment was not new. Section 119 of the Titles to Land Consolidation (Scotland) Act 1868 made provision for the service of a demand for payment in the form of No 2 of Schedule FF, which is headed Form of Schedule of Intimation, Requisition and Protest. The essential requirement of the formal requisition referred to in section 5 of the 1894 Act is that the proprietor should be put on notice before summary proceedings for possession are brought against him that the principal sum due under the bond and disposition in security is due for payment and that, in the event of non-payment by a given date, the creditor may proceed to take proceedings against him. The reference to default in payment after formal requisition in section 5 makes it clear that the requisition must come first. The default occurs if, and only if, the demand that it sets out is not complied with. The Extra Divisions conclusion that the requirement for a formal requisition was met by the lodging of the Schedule 7 certificates eight years after the raising of these actions seems hard to understand in the light of that background. But the point is the same however long or short the interval was between the raising of the actions and the lodging in court of the certificates. Unless there was clear wording in the 1970 Act to support it, it would seem that the Extra Division ought to have held that the statutory requirement was not satisfied because Mr and Mrs Wilson were not put on notice before the actions were raised that the Bank was proposing to enforce the security. Section 5 of the 1894 Act was not amended by the 1970 Act, so that section is left to speak for itself. It cannot be said that the change in the timing of the requirement that follows from the Extra Divisions decision has been addressed directly. Section 32 of the 1970 Act provides, however, that the provisions of any enactment relating to a bond and disposition or assignation in security shall apply to a security, except in so far as such provisions are inconsistent with the provisions of Part II of that Act. This makes it necessary to look more closely at the wording of these provisions. It has to be said that it was no part of Mr Summerss argument that the Bank had pursued the wrong course by relying on a standard condition 9(1)(b) default and applying to the sheriff court under section 24 instead of serving a calling-up notice. He concentrated on the Banks failure to serve a further document which could be regarded as a formal requisition before the actions were raised. It was Mr McIlvrides attempt, in a very able argument, to answer this point that led to the scrutiny of the provisions of Part II which has led in turn to the conclusion that the Banks error can be traced back to their choice of remedy and to the conclusion, too, that the passage in Lord MacLeans opinion in Bank of Scotland v Millward 1999 SLT 901, 903 on which the Extra Division relied to the effect that there was a choice of remedies was unsound. It is perhaps worth noting that the point that Lord MacLean made in Bank of Scotland v Millward had already been considered in the sheriff court. In United Dominions Trust Ltd v Site Preparations Ltd (No 1) 1978 SLT (Sh Ct) 14 and United Dominions Trust Ltd v Site Preparations (No 2) 1978 SLT (Sh Ct) 21 it was argued that a failure to pay interest was not a failure to comply with any other requirement arising out of the security as required by standard condition 9(1)(b). It was said that the liability to pay interest arose out of the existence of the debt and that the appropriate procedure to follow was the calling-up procedure. In the first case Sheriff DB Smith said at p 16 that it would be a very strained interpretation of standard condition 9(1)(b) to hold that a failure to pay interest was not a failure to comply with the requirement arising out of the security. In the second Sheriff Wm C Henderson said at p 23 that the requirements to pay interest and/or capital were every bit as much requirements arising out of the security as the other standard conditions incorporated by reference in the security documents. These cases are cited in Gloag and Henderson, Law of Scotland (12th ed, 2007), para 37-09, fn 137 for the proposition that failure to pay interest under a loan secured is a failure to comply with a requirement of the security for the purposes of standard condition 9(1)(b): see also Cusine and Rennie, Standard Securities (2nd ed, 2002), para 8.21. The Extra Division in Bank of Scotland v Millward 1999 SLT 901 relied for its conclusion that standard conditions 9(1)(a) and 9(1)(b) were alternative and not mutually exclusive on Professor Hallidays statements in his Conveyancing Law and Practice (2nd ed, 1997), para 54-05 that where a creditor in a standard security intends to require repayment of the debt thereby secured and, failing such payment, to exercise any of his powers in respect of a security he may serve a calling up notice and in para 54.22 that the remedies of serving a calling-up notice and serving a notice of default were not mutually exclusive. It also relied on a passage in the latter paragraph where Professor Halliday said that where there was serious default in payment of interest and capital and the debtor has abandoned the subjects, which are deteriorating, service of a notice of default may be the quickest approach to a sale of the security subjects. Lord Rodger doubts whether, when he used the word may, Professor Halliday intended to indicate that the word shall in section 19(1) was to be read in a permissive, and not a mandatory, sense. But a further indication that it was indeed Professor Hallidays view that this word was to be read in the permissive sense is to be found in a passage from his commentary on the 1970 Act, The Conveyancing and Feudal Reform (Scotland) Act 1970 (2nd ed, 1977), at para 10.19, where he discussed the circumstances in which a notice of default could be used: Any failure by the debtor to implement an obligation enforceable under a standard security will entitle the creditor to serve a notice of default. Default in payment of interest or of a periodical instalment of capital and interest, or breach of an obligation under standard conditions 1, 2, 3 or 5, or failure to implement an obligation undertaken in the personal obligation or in a variation of the standard conditions, are obvious examples. The only qualification is that the failure should be remediable. Professor Halliday is not alone in failing to notice the distinction between circumstances in which a calling-up notice is required and those where recourse must be had instead to a notice of default or a section 24 application to the sheriff court. Cusine and Rennie say in their introduction to para 8.14 that there is some doubt about what condition 9(1)(b) means, the question being whether a failure to comply with any other requirement arising out of the security is wider than a failure to comply with something mentioned in a notice of default. In their view this phrase means a failure to comply with any condition of the standard security, or the standard conditions, ie anything except failure to comply with a calling-up notice. But I understand them to accept that the passage which they quote from Professor Hallidays Commentaries is an accurate statement of the effect of the 1970 Act. This is certainly the predominant view that is taken in the textbooks. The approach is to view the Act as providing the creditor with a basket of remedies and then providing him with the calling-up notice, the notice of default and the application to the sheriff court for a warrant as different routes by which they can be obtained. In The Laws of Scotland: Stair Memorial Encyclopaedia: Conveyancing (2005), paras 223-224 it is stated that a calling-up notice is to be used where the creditor wants payment of all the debt, and that a notice of default is used where there has been failure to comply with any requirement of a security. The word other which the statute uses in standard condition 9(1)(b) is omitted from the reference to the notice of default, suggesting that this is a mechanism that can be used for any failure to comply with a requirement of the security. Cusine and Rennie, Standard Securities, para 8.03 say that a creditor who wishes the debt to be discharged by payment of the amount due or performance of an obligation ad factum praestandum may serve a calling-up notice, but that it would also be appropriate to serve a calling-up notice in respect of a default which cannot be remedied. The editors of the 12th edition of Gloag and Henderson, Law of Scotland, in their carefully re-written chapter on Rights in Security, para 37.09 say that where the creditor in a standard security intends to require discharge of the debt secured and, failing discharge, to exercise any power conferred by the security to sell the subjects, the creditor may serve a calling-up notice. They too omit the word other before the word requirement when they summarise the circumstances when a notice of default may be used. Gretton and Reid, Conveyancing (3rd ed, 2004), para 19.36, referring to Bank of Scotland v Millward 1999 SLT 901, say that the calling-up procedure and the notice of default procedure are often alternatives, and that in practice there is a certain tendency amongst institutions to use the former for residential standard securities and the latter for commercial ones. They do however note that the law in this area is of labyrinthine complexity: Conveyancing 2009, p 179. There may indeed be cases where the calling-up procedure and the notice of default procedure are both available as alternatives. The example given by Professor Halliday in Conveyancing Law and Practice, para 54.22, where there has been serious default in payment of interest and capital and the debtor has abandoned the subjects, which are deteriorating, may be such a case. But a case such as the present, where the creditor is faced with a defaulting debtor who is in personal possession of the subjects and intends to seek an order for the debtors summary ejection under section 5 of the 1894 Act, cannot be dismissed so easily. Treating a calling-up notice and a notice of default as alternatives between which the creditor may choose at his option runs into serious difficulty when this is tested against the section 5 requirement that ejection is a remedy that may only be sought where the debtor is in default after formal requisition. The calling-up procedure satisfies that requirement. The notice of default procedure and the warrant procedure referred to in section 24, without more, do not. The answer to the problem is to be found in the words of the statute, to which all too frequently insufficient attention appears to have been given. The word default is used in standard condition 9 to describe three quite different circumstances. In Laird v Securities Insurance Co Ltd 1895 22 R 452,461 Lord Adam said that this meant nothing more or less than that the debtor had failed to pay. But the word takes its meaning from its context. Each of the circumstances referred to in standard condition is treated as a default for the purposes of Part II of the 1970 Act. There is a default for these purposes where the proprietor of the subjects has become insolvent, even though there has not yet been any failure in payment of any part of the debt which is secured by the standard security: standard condition 9(1)(c). That there is a difference between the defaults contemplated by standard conditions 9(1)(a) and 9(1)(b) is indicated by the word other which appears before the words requirement arising out of the security in standard condition 9(1)(b). In other words, standard condition 9(1)(a) refers to the kind of requirement which is to be dealt with by serving a calling-up notice. Standard condition 9(1)(b) refers to any requirement which is not to be so dealt with. To understand the difference between them it is necessary to refer back to section 19, in which the calling-up procedure is described. Section 19(1) states that when a creditor in a standard security intends to require discharge of the debt thereby secured and, failing that, to exercise any of the powers which he may appropriately exercise on the default of the creditor within the meaning of standard condition 9(1)(a), he shall serve a notice calling- up the security. The word debt is widely defined in section 9(8)(c), which must be read together with section 9(3) which provides that the grant of any right over land or an interest in land for the purpose of securing any debt by way of a heritable security shall only be capable of being effected by standard security. It includes any obligation due, or which will become due, to pay or repay money. It also includes any obligation ad factum praestandum. No distinction is drawn between obligations to pay the whole or part of the principal, the payment of the principal by instalments or the payment of interest or capital. So the word debt in section 19(1) refers to anything and everything that is secured by the grant of the interest referred to in the standard security. Where the Act means to refer to the whole amount due it says so: see section 18(4). The word debt is not so limited. Section 21(1) introduces the valuable innovation referred to in the introduction to the commentary on the Act in Current Law Statutes. It applies where the debtor is in default within the meaning of standard condition 9(1)(b) and the default is remediable. As standard condition 9(1)(b) refers to a failure to comply with any other requirement arising out of the security, this section must be taken to refer to defaults other than in respect of the debt secured by the standard security. Content for its application is to be found in the requirements that are set out in standard condition 1 (maintenance and repair), standard condition 2 (completion of buildings), standard condition 3 (observance of conditions in title) and standard condition 5 (insurance) and any other similar conditions that may have been included by way of variation to maintain the value of the security subjects. It was a weakness of the previous law that the steps that might be taken to achieve this were not clearly spelled out in the statutes. The innovation is broadened by giving the creditor the right under section 24(1) to apply to the court for a warrant to exercise any of the remedies which he is entitled to exercise on a default within the meaning of standard condition 9(1)(a). The Bank is this case has been seeking all along to require discharge of the debt secured by the standard security. Mr McIlvride said that its position was that a calling-up notice was appropriate for use where the property had been abandoned and the creditor could exercise the powers referred to in standard condition 10 immediately. If the debtor was still in occupation it was preferable to proceed under section 24 and apply to the court for a warrant to exercise them. Unfortunately this approach overlooks the fact that the summary process of ejection, to which resort may be needed in these circumstances, is available only under section 5 of the 1894 Act and then only if the proprietor is in default after a formal requisition has been served on him. Section 19(1), properly understood according to its own terms and read together with standard condition 9(1)(a), addresses this problem. The route that standard condition 9(1)(b) indicates does not, as it is designed to deal with requirements arising under the standard security other than the discharge of the debt secured by it. So even if the Bank had taken the further step of serving a notice that met the requirements of section 5, it would not have been entitled to the order it seeks as it did not serve a calling-up notice as required by section 19(1). I agree with the judgments of Lord Hope and Lord Rodger. I agree that this appeal should be allowed, for two reasons. The first formed no part of counsel for the appellants argument but emerged during the hearing before us. Section 19(1) of the Conveyancing and Feudal Reform (Scotland) Act 1970 requires that a creditor in a standard security who intends to require the discharge of the debt secured and, failing that, to exercise any of his enforcement powers shall serve a calling up notice. Although we were referred to textbooks and authorities since the Act which have assumed that shall means may, we were not referred to anything in the Report of the Halliday Committee (Cmnd 3118), which led to the Act, suggesting that it was intended that a creditor could by-pass the calling up procedure required by section 19(1), either by serving a notice of default under section 21 or by applying to the court for a warrant under section 24. If practice south of the border is anything to go by, the policy makers whose decisions lead to legislation are not actually responsible for the words which Parliamentary counsel use in translating their instructions into statutory language. I would therefore be surprised if Professor Halliday were responsible for the words used in the Act. This makes the absence of any prior recommendations on this point the more telling. Without them, we need only focus on the actual language of the Act. Although section 24 says that a creditor may apply to the court for a warrant if the debtor is in default within the meaning of standard condition 9(1)(b) or (c), it does not say that a default within the meaning of standard conditions 9(1)(b) or (c) is to be equated with a default within the meaning of standard condition 9(1)(a) or vice versa. In other words, it does not displace the requirements of section 19(1). In policy terms, it would be very surprising if it did. Why provide for the calling up procedure at all, if it can simply be got round by going to court under section 24? There is obvious good sense in a policy which requires prior notice to the proprietors that a creditor intends to call in his security if the debt is not paid. This case is a good example. We do not know whether these debtors could have found a way of discharging their debts had they and their wives been told at the outset that their homes were at risk. In some cases, no doubt, it would be quite impossible. But in others, there might be enough surplus value (what we south of the border would call equity) in the home to raise alternative finance to pay off the loan or the home might be sold to do this before the debt had escalated to astronomical proportions as it has done here. The Bank, of course, has every interest in allowing the debt to mount up until it gets close to the value of the home. Without the calling up procedure the creditor can simply allow the debt to escalate without suffering any disadvantage. There has to be something to make him declare his hand at a time when the debtor may be able to do something about it. Secondly, in cases like this, there has to be power actually to get the occupiers out of the premises. Without this the other remedies, such as the power of sale, will not work. As I understand it, the only way in which this can now be done is under section 5 of the Heritable Securities (Scotland) Act 1894. This requires a formal requisition, at least for repayment of the principal. The calling up procedure supplies this, although no doubt there are other ways. The policy is the same. A debtor should be given an opportunity of remedying his default before he is dispossessed. It is not much to ask. Who knows whether these wives had sums in their own bank accounts which might have enabled them to discharge these debts had they been told? It is sexist simply to assume that they did not. It is such an injustice to deprive these wives of their homes without even asking whether they might have had the resources to discharge their husbands debts that I cannot believe that, even in 1970, Parliament could have contemplated it. We have been given no reason to think that it did. These reasons are simply a supplement to the reasons given by Lord Hope and Lord Rodger. In agreement with them both, therefore, I would allow this appeal. I agree that this appeal should be allowed on the simple basis that, as Lord Rodger has demonstrated, Bank of Scotland v Millward 1999 SLT 901 was wrongly decided. The effect of section 19(1) of the Conveyancing and Feudal Reform (Scotland) Act 1970 is that a creditor in a standard security who intends to require discharge of the secured debt and, failing that discharge, intends to exercise any power conferred by the security to sell any subjects of the security or any other power which he may appropriately exercise on the default of the debtor within the meaning of standard condition 9(1)(a) shall serve a calling up notice. (My emphasis.) In Bank of Scotland v Millward the Inner House construed shall as if it said may. However, it gave no convincing reason for doing so and there is in my opinion no warrant for construing the word shall in that way in the context of the Act. As I see it, the purpose of the subsection was to ensure that the proprietors of secured property should be given proper notice of the creditors intention to take possession of or to sell the property. The giving of such a notice is a simple step and would have saved years of litigation in this case. The Bank did not give such a notice on the facts of this case. It follows that, although this point was not taken on behalf of the appellants until it arose in the course of the argument in this appeal, for the reasons given by Lord Rodger, I would allow the appeal on that ground.	This appeal raises questions as to the proper construction of provisions of the Conveyancing and Feudal Reform (Scotland) Act 1970 (the 1970 Act) which establish and regulate the form of security over heritable property known as a standard security. In particular, the appeal addresses the circumstances in which a creditor is entitled to eject the debtor from the property over which the security was granted. The Appellants, two married couples, are proprietors and occupiers of their homes, which are subject to a standard security granted by each couple to the respondent bank in 1991. In each case the amount secured was any sum which the husband and wife owed or might owe to the bank, whether jointly or as individuals. In 1992 and 1993, the husbands, who are brothers, undertook to repay to the bank any indebtedness of the two firms in which they were involved. In 1995 the bank wrote to each of the brothers demanding repayment of the amounts which were then overdrawn on current accounts of the firms. When the sums were not paid, the bank took steps which were intended to allow it to sell the couples homes. In particular, in 1998 the bank treated the debtors as being in default and applied for, and was granted, warrant to exercise the powers available to creditors under standard condition 10 in Schedule 3 to the 1970 Act. This was the first time that the wives knew that their homes were at risk of repossession by the bank. The bank then applied to Edinburgh Sheriff Court for an order to eject the couples from their homes. Under section 5 of the Heritable Securities (Scotland) Act 1894 (section 5), however, a creditor can only do so if the proprietor has failed to repay the sum in question after formal requisition. The sheriff declined to grant an order for ejection, on the basis that the bank had not made a formal requisition for payment. The bank appealed to the Court of Session. An Extra Division held that a certificate of default which the bank had lodged in court, in accordance with section 24(2), constituted such formal requisition. The couples appealed to the Supreme Court. The Supreme Court unanimously allowed the appeal and held that the bank is not entitled to the remedies sought. Lord Rodger held that a certificate of default is simply a piece of evidence created for use in proceedings and, contrary to the opinion of the Extra Division, cannot constitute a formal requisition for the purposes of section 5, since that requisition has to be made before any proceedings are begun: [31]. Having observed that service of a calling up notice would satisfy section 5 ([30]), Lord Rodger also rejected the banks argument that, on a proper interpretation of section 24(1) of the 1970 Act, the bank should be treated as if it had served a calling up notice. In Lord Rodgers opinion such an interpretation of section 24(1) would water down an important precondition to the ejection procedure, which was intended as a protection for debtors: [32] [33]. Lord Rodger further held that the language of section 19(1) of the 1970 Act is mandatory, not permissive: [46] [47]. Therefore a creditor, like the bank in this case, who seeks repayment of the debt and, failing repayment, to sell the security subjects must serve a calling up notice: [51]. The bank had not done so and, for that reason also, Lord Rodger would have allowed the appeal. Lord Clarke agreed with Lord Rodger on this point: [85]. Lord Hope said that he agreed with Lord Rodger, but that the decision that the bank had pursued the wrong course when they decided to enforce these securities ran counter to the way the provisions of the Act had been understood and applied for decades: [54]. A certificate of default lodged eight years after raising the action cannot satisfy section 5 because, logically, a formal requisition must occur before any default by the debtor: [63] [64]. Where a creditor seeks discharge of the debt (in whole or in part), the section 19(1) procedure has to be followed and a calling up notice must be served: [73] [74], so that even if the bank had met the requirements of section 5, it would not have been entitled to the remedies sought as it had not served the calling up notice: [75]. Both Lord Rodger and Lord Hope held that a calling up notice and a notice of default are not mutually exclusive and that in certain circumstances a creditor can serve both: [48], [71]. Lord Walker agreed with Lord Rodger and Lord Hope: [76]. Lady Hale held that section 19(1) procedure is mandatory, observing that the policy of requiring a creditor to give notice of its intention to call in the security to all proprietors makes good sense: [80]. Lady Hale also held that the formal requisition requirement under section 5 had not been complied with as the wives did not have notice of the banks repayment demand until the proceedings began and thus were not given an opportunity to remedy their husbands default until it was too late: [81].
The Investigatory Powers Tribunal (IPT) is a special tribunal established under the Regulation of Investigatory Powers Act 2000 (RIPA) with jurisdiction to examine, among other things, the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters (the intelligence services). Section 67(8) provides: Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court. The genesis of this subsection can be traced back to the Interception of Communications Act 1985. Section 7(8) provided in relation to the tribunal established by that Act (the predecessor of the IPT): The decisions of the Tribunal (including any decisions as to their jurisdiction) shall not be subject to appeal or liable to be questioned in any court. There is an obvious parallel with the ouster clause considered by the House of Lords in the seminal case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (Anisminic). Section 4(4) of the Foreign Compensation Act 1950 provided: The determination by the commission of any application made to them under this Act shall not be called in question in any court of law. The House of Lords decided by a majority that these words were not effective to exclude review by the courts of the legal basis of the Commissions decision. In summary they held (in the words of the headnote): that the word determination in section 4(4) of the Act of 1950 should not be construed as including everything which purported to be a determination but was not in fact a determination because the commission had misconstrued the provision of the Order defining their jurisdiction. Accordingly, the court was not precluded from inquiring whether or not the order of the commission was a nullity. It will be necessary later to examine in more detail the reasoning in Anisminic, and its treatment in later cases, culminating in the major reappraisal of the relationship of courts and tribunals by the Supreme Court in R (Cart) v Upper Tribunal (Public Law Project intervening) [2012] 1 AC 663 (Cart). Reduced to its core the central issue in the present case is: what if any material difference to the courts approach is made by any differences in context or wording, and more particularly the inclusion, in the parenthesis to section 67(8), of a specific reference to decisions relating to jurisdiction? The statutory provisions The legislative scheme established by RIPA replaced three earlier statutes dealing with the oversight of the security services. Its enactment was closely linked to that of the Human Rights Act 1998 (HRA), which was brought into force at the same time. The Explanatory Notes stated (paras 3 4): The main purpose of the Act is to ensure that the relevant investigatory powers are used in accordance with human rights. These powers are: the interception of communications; the acquisition of communications data (eg intrusive surveillance (on residential premises/in billing data); private vehicles); operations; covert surveillance in the course of specific the use of covert human intelligence sources (agents, informants, undercover officers); access to encrypted data. For each of these powers, it was said, the Act would ensure that the law would clearly cover the purposes for which they could be used, by whom and with whose authority, the use that could be made of the material gained, and also independent judicial oversight, and means of redress for individuals. The statutory provisions governing the composition, jurisdiction and procedures of the IPT are complex. There is a comprehensive account in the judgment of Sir Brian Leveson P in the Divisional Court (paras 5 to 15) ([2017] EWHC 114 (Admin)). For present purposes it is enough to note the principal features. Section 65(1) and Schedule 3 deal with its composition. The number of members is set by Her Majesty by Letters Patent (section 65(1)). The President must have held high judicial office, and the other members must have held high judicial office or meet specified legal qualifications. In the present case the tribunal consisted of five members presided over by Burton J (President) and Mitting J (Vice President), the others all being leading counsel. As to its jurisdiction section 65(2) provides: (2) The jurisdiction of the tribunal shall be (a) to be the only appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section; (b) to consider and determine any complaints made to them which, in accordance with subsection (4), are complaints for which the tribunal is the appropriate forum; (c) to consider and determine any reference to them by any person that he has suffered detriment as a consequence of any prohibition or restriction, by virtue of section 17, on his relying in, or for the purposes of, any civil proceedings on any matter; and (d) to hear and determine any other such proceedings falling within subsection (3) as may be allocated to them in accordance with provision made by the Secretary of State by order. The remainder of section 65 provides further details of these four categories of jurisdiction, which are not material in the present case. It is to be noted that the jurisdiction of the IPT may depend on uncertain issues of law or fact. For example, in C v The Police IPT/03/32/H the IPT considered a complaint by a retired police officer alleging that there had been unlawful covert surveillance in breach of article 8 of the European Convention on Human Rights (the Convention) by his former police force. The essential facts were agreed, but the IPT held that it had no jurisdiction to consider his complaint because there was no directed surveillance which satisfied the definition of conduct to which Chapter II of Part I of RIPA applied (see para 74 of the determination; RIPA section 65(3)(d), (5)(c)). In some cases the jurisdiction of the IPT may overlap with that of the ordinary courts: see, for example, AKJ v Comr of Police of the Metropolis [2014] 1 WLR 285 (parallel claims under HRA section 7, and in tort, in respect of damage suffered as a result of the actions of two undercover police officers). Section 67 is headed Exercise of the Tribunals jurisdiction. Subsection (1) provides that it shall be the duty of the Tribunal to hear and determine proceedings, or to consider and determine complaints or references, brought before it under section 65(2). Subsections (2) and (3) provide, among other things, that the tribunal shall apply the same principles as would be applied by a court on an application for judicial review. Subsections (4) (6) make provision in relation to frivolous and vexatious claims, limitation, and the power to make interim orders. Subsection (7) sets out the powers of the tribunal on determining any proceedings, complaint or reference to make any such award of compensation or other order as they think fit. It also gives examples of such orders, including (a) an order quashing or cancelling any warrant or authorisation, and (b) an order requiring the destruction of any records of information which (i) has been obtained in exercise of any power conferred by a warrant or authorisation; or (ii) is held by any public authority in relation to any person. Subsection (8) has been set out above (para 1). As there seen, it allowed for an appeal to be provided for by order of the Secretary of State, but that power has never been exercised. Subsection (9) goes further, imposing a duty on the Secretary of State to secure an order allowing for an appeal to a court against any exercise by the tribunal of their jurisdiction under section 65(2)(c) or (d); but that subsection has not been brought into force. Subsections (10) (12) make provision as to the contents of, and procedure for making, such an order were the power ever to be exercised. After the commencement of these proceedings there was enacted (by section 242 of the Investigatory Powers Act 2016) a new section 67A providing for an appeal on a point of law to the Court of Appeal or Court of Sessions against certain decisions of the tribunal. That was brought into force on 31 December 2018 by regulation 2 of the Investigatory Powers Act 2016 (Commencement No 10 and Transitional Provision) Regulations 2018/1397, but it does not apply to any decision or determination of the IPT made before this date. It is therefore not material to the present appeal. Until 31 December 2018, when they were replaced by the Investigatory Powers Tribunal Rules 2018 (SI 2018/1334), the procedure before the IPT was governed by the Investigatory Powers Tribunal Rules 2000 (SI 2000/2665) (made under section 69(1)). Notable are the power to conduct proceedings in private and at certain stages in the absence of the complaining party (rule 9), and the duty under rule 6(1): The Tribunal shall carry out their functions in such a way as to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well being of the United Kingdom or the continued discharge of the functions of any of the intelligence services. The European Court of Human Rights has held that the Act and the rules provide an effective and compliant remedy for complaints in respect of interception with communications, for the purposes of article 13 of the Convention (Kennedy v United Kingdom (2011) 52 EHRR 4). The proceedings below The background of the present proceedings was described in the judgment of the IPT dated 12 February 2016. It was a hearing of preliminary issues of law, whose purpose was to establish: whether, if the Second Respondent (GCHQ) carries on the activity which is described as CNE (Computer Network Exploitation), which may have affected the claimants, it has been lawful. The Tribunal described the now well established procedure for it to make assumptions as to the significant facts in favour of claimants and reach conclusions on that basis, and thereafter, if the assumed facts were held to render the respondents conduct unlawful, to consider the position in closed session. This procedure, it was said, had enabled the tribunal on a number of occasions: to hold open inter partes hearings, without possible damage to national security, while preserving, where appropriate, the respondents proper position of Neither Confirmed Nor Denied (NCND). The issue arises under section 5 of the Intelligence Services Act 1994 which empowers the Secretary of State to issue a warrant authorising the taking of such action as is specified in the warrant in respect of any property so specified if he considers, among other things, that such action is necessary for the purpose of assisting the intelligence services in carrying out their functions. According to the appellants case, the significance of that provision became apparent when the Intelligence Services Commissioner (Sir Mark Waller) disclosed in his 2014 Report that the intelligence services were using it to authorise CNE activity, and expressed concern that this interpretation of the section might arguably be too broad. Their case before the tribunal was that section 5 did not permit the issue of so called thematic warrants authorising activity in respect of a broad class of property. They argued, inter alia, that the section needed to be construed against the background of the long established aversion of the common law to general warrants, recognised in cases going back to Entick v Carrington (1765) 2 Wils KB 275. The tribunal heard inter partes oral argument at a public hearing in early December 2015, and gave judgment on 12 February 2016 dismissing the claim (Privacy International v SSFCA [2016] UKIP Trib 14_85 CH). Their discussion of the interpretation of section 5 comes at paras 31 to 47 of the judgment. In relation to the argument based on general warrants they said: 18th century abhorrence of general warrants issued without express statutory sanction is not in our judgment a useful or permissible aid to construction of an express statutory power given to a Service, one of whose principal functions is to further the interests of UK national security, with particular reference to defence and foreign policy. The issue as to whether the specification is sufficient in any particular case will be dependent on the particular facts of that case . (paras 37 38) They concluded on this aspect: In our judgment what is required is for the warrant to be as specific as possible in relation to the property to be covered by the warrant, both to enable the Secretary of State to be satisfied as to legality, necessity and proportionality and to assist those executing the warrant, so that the property to be covered is objectively ascertainable. (para 47) Sales LJ in the Court of Appeal [2017] EWCA Civ 1868; [2018] 1 WLR 2572 commented on the significance of this question: This is potentially of legal significance in two ways. First, if action of GCHQ to interfere with property is not protected by a warrant issued under section 5, it is likely that GCHQ would commit torts of interference with that property which would sound in damages. Secondly, if GCHQ takes such action to hack computers in circumstances where it is not protected by a warrant, it is likely that it would be liable in law for breaches of its obligation under section 6 of the Human Rights Act 1998 to act compatibly with Convention rights, since it would not be able to show that any interferences with rights to respect for the home, correspondence and private life were in accordance with the law, as required by article 8(2) of the European Convention on Human Rights (as scheduled to the Human Rights Act as a Convention right). (para 16) This passage again highlights the extent to which issues arising before the IPT may overlap with the common law or human rights jurisdictions of the ordinary courts. On 17 June 2016 Lang J granted the appellant permission to apply for judicial review, while expressing doubts whether the High Court had jurisdiction to determine the substantive claim. She directed that the issue of jurisdiction should be heard as a preliminary issue. On 2 February 2017 the Divisional Court gave judgment answering that question in the negative for reasons given by the President. He held that section 67(8) prohibited judicial review of the decision. Since (by contrast with Anisminic) the tribunal was already exercising a supervisory jurisdiction over the actions of public authorities and exercising powers of judicial review, he saw no compelling reasons for insisting that a decision of the tribunal is not immune from challenge (para 42). Further, the legislation authorised the Secretary of State to create a right of appeal (albeit that the power had never been exercised), so that the presumption that Parliament could not have intended to make a statutory tribunal wholly immune from judicial oversight was not engaged (paras 43, 45). Leggatt J, while not formally dissenting, was inclined to a different view. He thought that the case was governed by the reasoning in Anisminic: The only potentially relevant difference in the wording of section 67(8) is that it contains the words in brackets (including as to whether they have jurisdiction). But I find it hard to see how these words can make a critical difference in the light of Anisminic. It seems to me that on a realistic interpretation that case did not decide that every time a tribunal makes an error of law the tribunal makes an error about the scope of its jurisdiction. Rather, it decided that any determination based on an error of law, whether going to the jurisdiction of the tribunal or not, was not a determination within the meaning of the statutory provision. That reasoning, and the underlying presumption that Parliament does not intend to prevent review of a decision which is unlawful, is just as applicable in the present case and is not answered by pointing to the words in brackets. (para 55) The Court of Appeal gave judgment on 23 November 2017 dismissing the appeal. Sales LJ (with whom Floyd and Flaux LJJ agreed) considered that both the language and the context were materially different from Anisminic. As to the language he said: the drafter of section 67(8) has expressly adverted to the possibility of the IPT making an error of law going to its jurisdiction or power to act, by the words in parenthesis in that provision: including decisions as to whether they have jurisdiction. Therefore, at least so far as the word decision is concerned, it is not tenable to apply the simple distinction relied upon in Anisminic in the context of section 4(4) of the 1950 Act between a determination and a purported determination, in the sense of a determination made without jurisdiction. In section 67(8), the word decision is stated to include a decision which (if judicial review or an appeal were available) might be found to have been made without jurisdiction because of an error of law on the part of the IPT that is to say, if one wants to use this phrase, a purported decision. (para 34) In support of this view, he noted the very high quality of the IPT in terms of judicial expertise and independence (para 38), and the statutory context: It is clear that Parliaments intention in establishing the IPT and in laying down a framework for the special procedural rules which it should follow, including the Rules, was to set up a tribunal capable of considering claims and complaints against the intelligence services under closed conditions which provided complete assurance that there would not be disclosure of sensitive confidential information about their activities. (para 42) Finally he relied by analogy on the decisions of the Court of Appeal and Supreme Court in R (A) v Director of Establishments of the Security Service [2009] EWCA Civ 24; [2009] UKSC 12; [2010] 2 AC 1 (R (A)). It was held that section 65 of RIPA conferred on the IPT exclusive jurisdiction to hear claims under section 7 of the HRA against any of the intelligence services. In the Court of Appeal Dyson LJ noted that the rules were carefully drafted to achieve a balance between fairness to a complainant and the need to safeguard the relevant security interests; he thought it inherently unlikely that Parliament, having provided for such an elaborate set of rules to govern proceedings against an intelligence service, yet contemplated that such proceedings might be brought before the courts without any rules (para 48). That approach was approved in the Supreme Court. Although the effect of section 67(8) was not in issue, Lord Brown, giving the leading judgment, in the course of a review of this part of the Act, spoke of it as an unambiguous ouster of the courts jurisdiction. While accepting that this expression of view was obiter Sales LJ considered it to fit closely with Lord Browns analysis of the regime. He added: Unless section 67(8) is interpreted as Lord Brown indicated, it would permit the special procedural regime established for the IPT to be bypassed at the stage when judicial review proceedings in respect of its decisions are brought in the High Court, as explained above. That would undermine the coherence of Lord Browns reasoning at para 14 of his judgment. In my view, Lord Browns view at para 23 about the proper interpretation and effect of section 67(8) is of powerful persuasive authority. I agree with it. (para 48) The submissions in this court Two issues are identified in the agreed statement: i) whether section 67(8) of RIPA 2000 ousts the supervisory jurisdiction of the High Court to quash a judgment of the Investigatory Powers Tribunal for error of law? ii) whether, and, if so, in accordance with what principles, Parliament may by statute oust the supervisory jurisdiction of the High Court to quash the decision of an inferior court or tribunal of limited statutory jurisdiction? On the first issue, counsel for the appellant led by Dinah Rose QC (with Professor Sir Jeffrey Jowell QC) rely principally on the long established principle that a statute should not be interpreted as ousting judicial review of a statutory tribunal of limited jurisdiction if there is a tenable construction which would preserve the supervisory jurisdiction of the High Court. In the present case, the formula used in section 67(8) is not materially different from that which the House of Lords held not to oust judicial review in Anisminic, and must be taken to have the like effect. Lord Browns comment in R (A) was obiter, against the background of a concession by the appellant that judicial review was not available (R (A) at p 23D). This did not mean that the reference in parenthesis to jurisdiction was without effect. Ms Rose refers for example to the distinction drawn in the cases depending on whether the legislature has or has not entrusted to the tribunal the power to determine the existence of the preliminary state of facts necessary to its jurisdiction (see R v Comrs for Special Purposes of the Income Tax (1888) 21 QBD 313, 319, per Lord Esher MR). At the time of the drafting of what became the 1985 Act, the difference between issues of fact and law in the context of jurisdiction had been highlighted by the House of Lords in R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74. It was held that the power of the Home Office to remove an illegal entrant did not depend simply on the reasonable belief of the immigration officer that the person was an illegal entrant. As Lord Scarman said (at p 110): where the exercise of executive power depends upon the precedent establishment of an objective fact, the courts will decide whether the requirement has been satisfied. The words in parenthesis in section 67(8), it is submitted, can be read as designed, as respects the IPT, to put such decisions on issues of fact going to jurisdiction beyond the scope of review, but not issues of law. She submits that the Court of Appeals reliance on the security and intelligence context to support their view was mistaken. The High Court has ample powers on judicial review to ensure that sensitive information is protected (see now R (Haralambous) v Crown Court at St Albans [2018] UKSC 1; [2018] AC 236). Similar concerns might have been said to arise in respect of the Special Immigration Appeals Commission (SIAC), but neither that factor, nor the relatively high status of the judges of that Commission, was held sufficient to oust judicial review (R (U) v SIAC [2011] QB 120 DC, paras 82 86 per Laws LJ). Furthermore, the tribunals jurisdiction is not limited to sensitive claims against the intelligence services. Ms Rose gives as examples such issues as the use by local authorities of CCTV and checks by directed surveillance on whether a child lives in the catchment area of a local school. She also points out that the issue can work both ways. For example, if the Tribunal were unlawfully to order the security and intelligence services to disclose material (such as the identity of an agent) which would risk harming national security, they would have no remedy. More generally, it cannot have been intended that the IPT should be immune from challenge even where it blatantly disregarded limits to its powers: for example, if it decided not to follow a binding decision of the Supreme Court on the interpretation of the RIPA, or if it purported to determine a claim for unfair dismissal allocated by statute exclusively to the Employment Tribunal. These submissions were supported by Mr Chamberlain QC (with Mr Heaton), appearing for the intervener Liberty. He emphasised the very broad jurisdiction of the IPT, not limited to reviewing the conduct of the intelligence services, but extending to surveillance and other activities undertaken for policing, economic and other purposes by a range of public authorities. It is, he submitted, objectionable in principle, and inimical to the rule of law, that a body with such broad jurisdiction should be entirely immune from challenge, save only in the Strasbourg court in respect of compliance with the Convention. He also pointed to the considerable overlap between the jurisdiction of the IPT and that of the ordinary courts. As he submits it could be a question of happenstance whether a determination on a particular issue is immune from review by the UK courts, if determined by the IPT, or subject to appeal through the appellate courts, if determined by the ordinary courts. Counsel for the interested parties, led by Sir James Eadie QC, generally supported the reasoning of the Court of Appeal. In agreement with Sales LJ, he submitted that the language of section 67(8), by the words in parenthesis, and in contrast to the section under consideration in Anisminic, was designed in terms to address the possibility of the IPT making an error of law going to its jurisdiction or power to act. He drew attention to particular features of the statutory context, including the special allocation of judicial responsibility to the IPT in the national security context under a single legislative regime together with the HRA; the bespoke nature of the IPT system set up by RIPA, with provision to make its own rules and procedures, allowing the IPT to deal with sensitive national security matters through closed material procedures not available at common law; the placing of the IPT on equal footing with the High Court in respect of judicial review; and the provision for the possibility of a right of appeal from IPT decisions in specified cases. The fact that the latter provisions had not been brought into effect did not detract from their relevance to the presumed intention of Parliament at the time of enactment (see Bennion on Statutory Interpretation (6th ed), p 654). He relied also on the continuing endorsement of the IPT by the Strasbourg court, most recently in Big Brother Watch v United Kingdom (2018) (Application Nos 58170/13, 62322/14 and 24960/15), in which the court commented for example on the special role of the IPT as the sole body capable of elucidating the general operation of a surveillance regime (and) the sole body capable of determining whether that regime requires further elucidation. (para 255) More generally he submitted that there was nothing constitutionally offensive about legislative arrangements whereby Parliament reallocates the High Courts judicial review jurisdiction to a judicial body that is both independent of the Executive and capable of providing an authoritative interpretation of the law. Judicial supervision of inferior courts and tribunals The authorities Before considering these submissions, it is necessary to set them in the context of the historical development through the authorities of the relationship between the High Court and other adjudicative bodies, culminating for present purposes in the Supreme Court judgments in Cart. The Kings (or Queens) Bench The supervisory role of the Kings court (curia regis), or the Kings or Queens Bench Division of the High Court as it became, has a long history. A scholarly account, tracing it back to the time of William I, is given in the judgment of Laws LJ in the Divisional Court in Cart ([2011] QB 120, paras 44ff). As he says (para 45) the Kings Bench was established by the end of the 13th century, and remained at the centre of the English judicial system until its powers were transferred to the High Court in 1873. As to its status, he cites, for example (paras 48 49), Groenwelt v Burnell (1700) 1 Salk 144, 90 ER 1000 per Holt CJ: no court can be intended exempt from the superintendency of the King in this Court of Kings Bench. It is a consequence of every inferior jurisdiction of record, that their proceedings be removable into this court, to inspect the record, and see whether they keep themselves within the limits of their jurisdiction; To similar effect he quotes Blackstones Commentaries on the Laws of England book III, Chapter 4, p 41 2 (written in 1768), describing the Kings Bench as the supreme court of common law in the kingdom, and as keeping all inferior jurisdictions within the bounds of their authority. It is of interest to note also a later passage (op cit p 112), in which Blackstone discussed the writ of prohibition, including its use to ensure general conformity with the law of the land. He described the wide variety of courts subject to this supervision (ranging from inferior courts of common law, to the courts Christian or the university courts, the court of chivalry, or the court of admiralty) and its application: where they concern themselves with any matter not within their jurisdiction or if in handling matters clearly within their cognizance they transgress the bounds prescribed to them by the laws of England else the same question might be determined different ways, according to the court in which the suit is depending: an impropriety which no wise government can or ought to endure, and which is, therefore, a ground of prohibition. That supervisory role was preserved by section 16 of the Judicature Act 1873 which vested the common law powers of the Queens Bench in the newly created High Court. Those powers were in turn preserved by section 19 of the Senior Courts Act 1981. Ouster clauses Authorities dating back at least to the 17th century (see eg Smith, Lluellyn v Comrs of Sewers (1669) 1 Mod 44, 86 ER 719) leave no doubt as to the hostile attitude of the High Court to attempts by statute to restrict its supervisory role. In such cases, conventional principles of statutory interpretation, based on the ordinary meaning of the words used by Parliament, have yielded to a more fundamental principle that no inferior tribunal or authority can conclusively determine the limits of its own jurisdiction. It is difficult, for example, to think of a statutory ouster clause in clearer terms than that considered in R v Cheltenham Comrs (1841) 1 QB 467, 113 ER 1211. The case concerned a challenge to a decision of the Quarter Sessions on an appeal against a rate set by the respondent Commissioners. The Commissioners objection to the admission of certain evidence had been rejected by a majority of 11 magistrates to eight. The decision was challenged on the grounds of apparent bias (in modern terms), in that three of the 11 magistrates were partners in a company which owned a property affected by the rate. The statute provided That no order, verdict, rate, assessment, judgment, conviction, or other proceeding touching or concerning any of the matters aforesaid, or touching or concerning any offence against this Act, or any by law or order to be made in pursuance thereof, shall be quashed or vacated for want of form only, or be removed or removable by certiorari, or any other writ or process whatsoever, into any of His Majestys Courts of Record at Westminster; any law or statute to the contrary thereof in anywise notwithstanding. Upholding the challenge, Lord Denman CJ said of the ouster clause: the clause which takes away the certiorari does not preclude our exercising a superintendence over the proceedings, so far as to see that what is done shall be in pursuance of the statute. The statute cannot affect our right and duty to see justice executed: and, here, I am clearly of opinion that justice has not been executed. (p 1214) A possible justification of that principle was given by Farwell LJ in R v Shoreditch Assessment Committee, Ex p Morgan [1910] 2 KB 859, 880: Subjection . to the High Court is a necessary and inseparable incident to all tribunals of limited jurisdiction; for the existence of the limit necessitates an authority to determine and enforce it: it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure such a tribunal would be autocratic, not limited and it is immaterial whether the decision of the inferior tribunal on the question of the existence or non existence of its own jurisdiction is founded on law or fact (Emphasis added) This passage was cited with approval in Anisminic itself by both Lord Pearce ([1969] 2 AC 147, 197), and Lord Wilberforce (ibid pp 208 209), the latter describing it (perhaps somewhat grudgingly) as language which, though perhaps vulnerable to logical analysis, has proved its value as guidance to the courts, He put the same idea in his own words: The courts, when they decide that a decision is a nullity, are not disregarding the preclusive clause. For, just as it is their duty to attribute autonomy of decision of action to the tribunal within the designated area, so, as the counterpart of this autonomy, they must ensure that the limits of that area which have been laid down are observed . In each task they are carrying out the intention of the legislature, and it would be misdescription to state it in terms of a struggle between the courts and the executive. What would be the purpose of defining by statute the limit of a tribunals powers if, by means of a clause inserted in the instrument of definition, those limits could safely be passed? (p 208B) More recent authority has affirmed the continuing relevance of this strong interpretative presumption against the exclusion of judicial review, other than by the most clear and explicit words (Cart [2011] QB 120, para 31, per Laws LJ; citing Denning LJ in R v Medical Appeal Tribunal, Ex p Gilmore [1957] 1 QB 574, 583, and Lord Phillips MR in R (Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 475, para 44). As those cases show, this presumption has been applied without distinction to decisions of inferior courts (such as the County Court) and of tribunals, even if designated as superior courts of record (like the Upper Tribunal). Errors of law In so far as those authorities were concerned with errors going to jurisdiction in the traditional sense, they were relatively uncontroversial. The review of errors of law was more problematic. Professor Paul Craig (Administrative Law 8th ed (2016), para 16 001) identifies three phases in the extension of the inherent powers of the High Court to review of decisions for error of law: The courts from the 16th to the 20th century used either the collateral fact doctrine or the theory of limited review to determine the extent of control. Both theories were premised on a distinction between jurisdictional and non jurisdictional issues, although they drew the divide differently. The assumption was that a jurisdictional error of law was reviewable, but a non jurisdictional error of law was not, unless the error of law was on the face of the record. The divide between jurisdictional and non jurisdictional error was, however, always fraught with difficulty The modern approach, which dates from the latter part of the 20th century, rejected the jurisdictional/non jurisdictional divide. The starting assumption is that all errors of law are subject to judicial review and that the reviewing court will substitute judgment for that of the primary decision maker on such issues. This approach avoids the difficulties of the jurisdictional/non jurisdictional divide. There are, however, difficulties with the modern approach. It is based on the twin assumptions that reviewing courts should substitute judgment on all such legal issues and that this is the only way to maintain control over the organs of the administrative state. The courts have more recently signalled variation in the test for review primarily in the context of decisions made by tribunals. The first phase is now of no more than historical interest. The second refers to the major change brought about by Anisminic itself, as interpreted in later cases. The last sentence, as I understand it, refers to the evolution of a more nuanced approach exemplified by the Supreme Courts decision in Cart. I will consider them in turn in the next sections of this judgment. Before doing so, I should note the important difference between control respectively of administrative action and of the functions of lower courts or tribunals. As Robert Craig points out in an article in Public Law (Ouster clauses, separation of powers and the intention of Parliament [2018] PL 570, 572), separation of powers dictates that administrative bodies should not be determining the answers to questions of law that frame their decision making process. He cites the succinct statement of the proper constitutional relationship of the executive with the courts by Nolan LJ in M v Home Office [1992] QB 270, 314H 315A: the courts will respect all acts of the executive within its lawful province, and the executive will respect all decisions of the courts as to what its lawful province is. That simple contrast cannot readily be applied to control of courts or tribunals. Craig distinguishes: the conceptually different question of what the attitude of the courts is and should be, to the entirely separate category of cases where there are ouster clauses protecting the exercise of judicial functions. Accordingly, where an ouster clause can be interpreted as not excluding judicial supervision but reallocating its exercise to a different form of court or tribunal, a different constitutional analysis may be required. That indeed was the view taken of RIPA section 65(2)(a) (in relation to claims under the HRA) by Lord Brown in R (A) para 23, when dismissing a suggested parallel with Anisminic: Nor does Anisminic assist A. The ouster clause there under consideration purported to remove any judicial supervision of a determination by an inferior tribunal as to its own jurisdiction. Section 65(2)(a) does no such thing. Parliament has not ousted judicial scrutiny of the acts of the intelligence services; it has simply allocated that scrutiny (as to section 7(1)(a) HRA proceedings) to the IPT . That passage was concerned solely with the allocation of the special jurisdiction under the HRA, and against the background of clear Strasbourg authority that article 6 of the Convention does not guarantee a right of appeal (see Bochan v Ukraine (No 2) (2015) 61 EHRR 14, paras 44 45). It says nothing about the correct approach to the IPTs jurisdiction more generally. From Anisminic to Cart Anisminic the decision The claim in Anisminic arose from the sequestration of the claimants property by the Egyptian authorities at the time of the Suez crisis in 1956. Their claim under the relevant Foreign Compensation Order (under the Foreign Compensation Act 1950) was rejected by the Commission on the grounds that they had subsequently sold their property to an Egyptian institution, which was to be regarded as their successor in title within the meaning of the Order. On its face, at least to modern eyes, that was a straightforward issue of interpretation of the Order. It was ultimately decided in the claimants favour by the House of Lords. However, the process by which the case arrived at that point was far from straightforward. The procedural and legal background is described in an illuminating discussion of the case by Professor Feldman (Anisminic in perspective, in Juss and Sunkin (ed) Landmark cases in public law (Oxford 2017) pp 63ff). He explains in particular (p 70) the significance, in the absence of a reasoned decision by the Commission, of the choice of an action for a declaration, rather than certiorari: to challenge Anisminic decided the provisional determinations in an action in the High Court seeking various declarations to the effect that they were erroneous in law and nullities. Unlike an application for certiorari, this did not require the court's leave, which would almost certainly have been refused because Anisminic was unable to point to any evidence that the Commission had erred in law. The action compelled the Commission to plead its defence, which eventually disclosed an error of law. There were disadvantages to Anisminic in pursuing a declaration rather than certiorari. First, there was no precedent for using a declaration as a remedy in such a case; the Commission argued that allowing declarations to be used in that way might make certiorari redundant Secondly, it forced Anisminic to argue that any unlawfulness the company could assert made the determination void, not merely voidable, as a voidable determination would be effective unless quashed by certiorari By the time the case came to the courts, as Lord Pearce noted (p 199F), the problem of showing an error of law on the record had been overtaken by the production by the Commission of a minute of adjudication relied in the particulars of the defence. There were differences of emphasis between the various speeches in the House of Lords. However, for modern purposes they are less important than the interpretation of the decision in later cases. Looked at from that perspective, the case can be taken as confirming or establishing three distinct but related propositions: i) That there is (at the least) a strong presumption against statutory exclusion of review by the High Court of any decision of an inferior court or tribunal treated as made without jurisdiction and so a nullity. ii) That for this purpose there is no material distinction between an excess of jurisdiction at the outset, and one occurring in the course of proceedings. iii) That a decision which is vitiated by error of law (whether or not on the face of the record) is, or is to be treated as, made without jurisdiction and so a nullity. The first proposition, as apparent from the cases referred to above, was little more than a confirmation of well established principles. The second could be seen as a logical step forward, or at least a clarification of the previous law (see Wade & Forsyth Administrative Law 11th ed, p 217: The original jurisdiction fallacy). The third, however, was a much more radical development, in so far as a mere error of law came in due course to be treated as an excess of jurisdiction which rendered the decision not simply open to legal challenge but void or a nullity. Hitherto it had generally been assumed that a mere error of law by a court or tribunal in respect of an issue otherwise falling within its jurisdiction might be subject to correction on appeal, but did not take the decision outside its powers. For example, Lord Reid himself had said in a recent case: If a magistrate or any other tribunal has jurisdiction to enter on the inquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision. If he has jurisdiction to go right he has jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction. (R v Governor of Brixton Prison, Ex p Armah [1968] AC 192, 234 emphasis added) In Anisminic (at p 171E F) he implicitly acknowledged an apparent discrepancy between that statement and the reasoning in instant case, which he sought to explain by reference to differences between narrow and broader meanings of the word jurisdiction. Consideration of Lord Reids judgment is best begun by reference to his own summary of the respective arguments and his response to them (pp 169 170): The respondent maintains that these are plain words only capable of having one meaning. Here is a determination which is apparently valid: there is nothing on the face of the document to cast any doubt on its validity. If it is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute. The appellants maintain that that is not the meaning of the words of this provision. They say that determination means a real determination and does not include an apparent or purported determination which in the eyes of the law has no existence because it is a nullity. Or, putting it in another way, if you seek to show that a determination is a nullity you are not questioning the purported determination you are maintaining that it does not exist as a determination. It is one thing to question a determination which does exist: it is quite another thing to say that there is nothing to be questioned. Lord Reid considered the application of such an ouster provision to the simple case of an order made by someone appointed on the basis of a forged qualification, and asked whether the court would be required to treat the order as valid. He continued: It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court. Statutory provisions which seek to limit the ordinary jurisdiction of the court have a long history. No case has been cited in which any other form of words limiting the jurisdiction of the court has been held to protect a nullity. If the draftsman or Parliament had intended to introduce a new kind of ouster clause so as to prevent any inquiry even as to whether the document relied on was a forgery, I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court of law. Undoubtedly such a provision protects every determination which is not a nullity. But I do not think that it is necessary or even reasonable to construe the word determination as including everything which purports to be a determination but which is in fact no determination at all. And there are no degrees of nullity. There are a number of reasons why the law will hold a purported decision to be a nullity. I do not see how it could be said that such a provision protects some kinds of nullity but not others: if that were intended it would be easy to say so. He went on to give a list of examples of the ways in which a decision of a tribunal, acting within its original jurisdiction may be treated as a nullity: It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word jurisdiction has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly (p 171B E) It is noteworthy that the list did not include a simple error of law or misconstruction of the statute. It must have been a misconstruction of the provisions giving it power to act, as a result of which it has decided some question which was not remitted to it or based its decision on some matter which it had no right to take into account. Later in the speech he applied that approach to the instant case. The Commission had construed the order (wrongly as it was held) as requiring them, having identified the original owner, to inquire whether he had a successor in title. Lord Reid explained how that error of law could render the decision a nullity: But if, on a true construction of the Order, a claimant who is an original owner does not have to prove anything about successors in title, then the commission made an inquiry which the Order did not empower them to make, and they based their decision on a matter which they had no right to take into account if they reach a wrong conclusion as to the width of their powers, the court must be able to correct that not because the tribunal has made an error of law, but because as a result of making an error of law they have dealt with and based their decision on a matter with which, on a true construction of their powers, they had no right to deal. they are doing something which they have no right to do and, if the view which I expressed earlier is right, their decision is a nullity (pp 173H 174E emphasis added) Lord Pearce adopted a similar approach. As he put it: If the commission by misconstruing the Order in Council which gave them their jurisdiction and laid down the precise limit of their duty to inquire and determine, exceeded or departed from their mandate, their determination was without jurisdiction (p 201C) Lord Wilberforce, who gave the only other substantive speech on this issue, also looked for something beyond a simple error of law. This was against the background that, as he put it: In every case, whatever the character of a tribunal, however wide the range of questions remitted to it, however great the permissible margin of mistake, the essential point remains that the tribunal has a derived authority, derived, that is, from statute: at some point, and to be found from a consideration of the legislation, the field within which it operates is marked out and limited.(p 207D) The error had to be one which took the tribunal outside its permitted field, leading to the decision being a nullity (a term which he thought convenient as a word of description rather than as in itself a touchstone) and so outside the reach of the ouster clause (p 208A B). In the instant case the statute had enabled the Order in Council to make provision for defining the persons qualified to make applications for the purpose of establishing claims and prescribing the matters to be established by them. Such definitions and prescribed matters, in his view, would be architectural directions binding the commission, departure from which would mean that it would be acting beyond its powers (p 211D G). Having examined the Order in detail, and explained why, on a proper construction, all the relevant conditions had been satisfied, he concluded: As all these conditions were fulfilled to the satisfaction of the commission, the appellants claim was in law established; the commission by seeking to impose another condition, not warranted by the Order, was acting outside its remitted powers and made no determination of that which alone it could determine. (p 214E) Anisminic interpretation and comment As Professor Feldman observes (op cit pp 92 93), the significance later attached to the decision in Anisminic, and in particular to the statement in Lord Reids judgment of the matters leading to nullity, may not have been apparent at the time: The ratio of the House of Lords decision was relatively narrow , but what landmark cases decide and what they are later regarded as authority for may be very different. Lord Reids statement had been particularly influential as the basis for extending the theory and practice of judicial review well beyond anything justified by the ratio. He also argues with some force that the passage reflects an uncharacteristic gap in logic: Lord Reid leapt, apparently without noticing, from uncontroversial general propositions about circumstances in which certiorari would be available to quash a decision in the absence of any provision excluding the courts jurisdiction, to a judgment about the effect of a very particular sort of error (denying eligibility for compensation for failing to comply with a condition which the legislation had not imposed) in a case where, because a declaration rather than certiorari was sought and, because of the effect of section 4(4) of the 1950 Act, it was essential to show that the challenged determination was not merely erroneous but null. Whatever doubts there may have been initially or since as to the interpretation or practical implications of Lord Reids words, and of the other majority speeches in Anisminic, such doubts have been dispelled by a series of statements in subsequent cases at the highest level, led by Lord Diplock. Professor Feldman (p 94) notes that at an early stage Lord Diplocks own views of the case, as expressed extra judicially, had progressed from a relatively cautious response in 1971 to a much more absolute view, as expressed in a 1974 lecture, that the decision had render(ed) obsolete the technical distinction between errors of law which go to jurisdiction and errors of law which do not. He also notes the influence of successive Junior Treasury Counsel in set(ting) the tone for arguments advanced to the courts on behalf of Government Departments (see also para 80 below). Sir Stephen Sedley has spoken in similar terms of the contribution of Treasury Counsel, and of the process by which a consensus has emerged: It has come about neither by legislation nor by precedent but by an organic process in which the laws practitioners and its exponents have agreed on which way the common law should be travelling and have found a serviceable if not particularly suitable vehicle to transport it. (Sedley The lion behind the throne: the law as history [2016] JR 289, paras 14, 22) The problem is that this move outside the limitations carefully set by the Anisminic speeches may have undermined much of their conceptual basis. I shall return to this problem when addressing the second issue. OReilly v Mackman and after It was not until 1982 that the broader view was given unambiguous judicial endorsement by the House of Lords, when Lord Diplock summarised the effect of Anisminic in OReilly v Mackman [1983] 2 AC 237, 279) in a speech agreed by the other members of the House: The breakthrough that the Anisminic case made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, ie, one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported determination, not being a determination within the meaning of the empowering legislation, was accordingly a nullity. In other words, a determination arrived at on an erroneous view of the relevant law was not a determination within the meaning of an ouster clause such as in Anisminic. Arguments about differences between jurisdictional and non jurisdictional errors of law had become redundant. Later cases have confirmed this interpretation. Thus in R v Hull University Visitor, Ex p Page [1993] AC 682, concerning a challenge to the decision of a University Visitor, Lord Browne Wilkinson said (at pp 701 702): Anisminic rendered obsolete the distinction between errors of law on the face of the record and other errors of law by extending the doctrine of ultra vires. Thenceforward it was to be taken that Parliament had only conferred the decision making power on the basis that it was to be exercised on the correct legal basis: a misdirection in law in making the decision therefore rendered the decision ultra vires. To similar effect, in Boddington v British Transport Commission [1999] 2 AC 143, 158D E, which related to the validity of a by law, Lord Irvine LC said: The Anisminic decision established, contrary to previous thinking that there might be error of law within jurisdiction, that there was a single category of errors of law, all of which rendered a decision ultra vires. No distinction is to be drawn between a patent (or substantive) error of law or a latent (or procedural) error of law. An ultra vires act or subordinate legislation is unlawful simpliciter and, if the presumption in favour of its legality is overcome by a litigant before a court of competent jurisdiction, is of no legal effect whatsoever. Lord Browne Wilkinson agreed (p 164), subject to reservations as to the legal consequences of such an ultra vires act during the period between the doing of that act and the recognition of its invalidity by the court (as to which see De Smiths Judicial Review 8th ed (2018), paras 4 067ff: The effect of a judgment that a decision is unlawful). More recently, Lord Irvines words were in turn cited by Lord Dyson (Lumba v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245, para 66) to support the statement: The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires. It is right to note the reservations expressed about this simple statement by some other members of the court in Lumba. Thus Lord Walker (para 193), while acknowledging Anisminic as a seminal case in the development of modern public law, observed that its full implications are still open to debate. However, his main concern was the extension of that concept to the far removed context of a private law claim for damages for false imprisonment, as was in issue in Lumba. I do not read his remarks as throwing doubt on Lord Dysons summary, when applied to review of the legality of subordinate decisions as in the present case. It must be acknowledged in any event that the Anisminic principle, however defined, has not been treated as necessarily applicable outside its particular context. An example is In re McC [1985] AC 528. The issue was whether the justices, in deciding to detain a juvenile without first informing him of his right to legal aid, had acted without jurisdiction or in excess of jurisdiction within the meaning of section 15 of the Magistrates Courts (Northern Ireland) Act 1964, so as to remove their immunity from civil liability for false imprisonment. Although this question was answered in the affirmative on the facts of the case, this did not depend on any application of Anisminic. Lord Bridge commented on the many different shades of meaning in different contexts acquired by the word jurisdiction, noting at one end of the spectrum the majority decision in Anisminic (p 536B H). He regarded it as irrelevant to the section before him, however valuable it might be in ensuring that the supervisory jurisdiction of the superior courts over inferior tribunals is effective to secure compliance with the law (p 546G). The evolving role of the High Court In considering the development of the law since Anisminic it is necessary to take account both of the major changes in the supervisory role of the High Court as respects public bodies of all kinds (both administrative and judicial or quasi judicial), including the 1979 reforms which established judicial review in its modern form; and also of the changes in the relationship between the traditional courts and specialist tribunals. The development in this period of judicial review is well described in De Smith op cit para 4 006 7: Over the last 40 years its scope has developed dramatically. It has grown from being little more than a method of correcting the errors of law of inferior courts to its present eminence as the remedy for protecting individuals against unlawful action by the Government and other public bodies. In the early 1970s this was the staple diet of the Divisional Court of the Bench Division of the High Court. This Court alone had the power to grant the prerogative remedies of certiorari, mandamus and prohibition. The importance attached to this power was demonstrated by the fact that the Divisional Court was usually presided over by the Lord Chief Justice of the day sitting with two other High Court Judges. The Court had direct historical links to the role of the High Court Judges of the Queens Bench Division who, from the Middle Ages, exercised the authority of the monarch to keep the peace and uphold law and order. The prerogative writs together with inherent jurisdiction derived from their association with the monarch gave them wide discretionary powers. Those powers still play a role in claims for judicial review today. As a result of reforms in 1979, in addition to the prerogative orders being available to the judges of the new Court, the judges hearing cases on the Crown Office List (the progenitor of the Administrative Court created in 2000) were also able to grant the declarations and injunctions which were the tools used by the judges of the Chancery Division when supervising the activities of public bodies. Declarations and injunctions, like the prerogative orders, were discretionary remedies. The powers to provide both sets of remedies meant that judicial review became a very effective method of upholding the rights of the individual against public bodies. This also meant that the technicalities relating to the grant of the prerogative remedies receded in importance. Anisminic also proceeded against the background of a reasonably clear division in the legal hierarchy between, on the one hand, the unlimited supervisory jurisdiction of the High Court, exercised by the Divisional Court usually presided over by the Lord Chief Justice, and, on the other, the limited jurisdictions of inferior courts or tribunals (or other adjudicative bodies, such as the Foreign Compensation Commission). For this purpose, no distinction was drawn in the authorities between the different forms of limited jurisdiction, or in particular between courts below the High Court and statutory tribunals. However, the period between Anisminic and the decision of the Supreme Court in Cart saw major changes in this traditional relationship between the High Court and other adjudicative bodies. Racal Communications It is convenient at this point to refer to the decision of the House of Lords in In re Racal Communications Ltd [1981] AC 374 (Racal), to which Lord Sumption attaches some importance. As I understand it, he sees it and related cases as illustrating the proposition, which he derives from Lord Wilberforces speech in Anisminic (at p 207), that the key issue when considering the scope of an ouster clause is to define the the permitted field of the relevant adjudicative body, that being identified by a careful analysis of the interpretative power conferred by the enabling Act. Racal itself concerned a challenge to the decision of a High Court judge exercising a statutory jurisdiction (under the Companies Act 1948 section 441) to authorise inspection by the Director of Public Prosecutions of company books for the purpose of investigating a suspected offence. Section 441(3) provided that the decision of the High Court judge on such an application shall not be appealable. The judge had dismissed an application by the Director on legal grounds, but the Court of Appeal had reversed his decision holding that it was entitled to do so because he had made an error of law which went to his jurisdiction. The House of Lords allowed the companys appeal. The case has attracted some attention for the distinction drawn by Lord Diplock in the context of ouster clauses between, on the one hand, administrative tribunals and authorities and, on the other, courts of law. Having confirmed that as respects the former the decision in Anisminic had effectively abolished the old distinction between errors of law that went to jurisdiction and errors of law that did not, he continued: But there is no similar presumption that where a decision making power is conferred by statute upon a court of law, Parliament did not intend to confer upon it power to decide questions of law as well as questions of fact. Whether it did or not and, in the case of inferior courts, what limits are imposed on the kinds of questions of law they are empowered to decide, depends upon the construction of the statute unencumbered by any such presumption (p 383) He went on to refer more specifically to the position of the High Court, as in the instant case. There was an obvious distinction between such a jurisdiction conferred by statute on a court of law of limited jurisdiction, and one conferred on the High Court or a judge of the High Court acting in his judicial capacity: The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judges decision shall not be appealable, they cannot be corrected at all. (p 384) As I see it, this distinction is of no assistance to the case of the Interested Parties, since there is nothing to suggest that Lord Diplock would have regarded the IPT, notwithstanding its distinguished composition, as anything more than an administrative tribunal within his classification. On that assumption Lord Diplocks speech supports the widest reading of the Anisminic decision as later confirmed in OReilly v Mackman. In any event I do not see that part of his reasoning as having majority support. As I read the speeches overall, it was the latter point, turning on the position of the High Court, rather than of courts more generally, which provided the ratio of the Houses decision. Although Lord Keith agreed without qualification with Lord Diplocks reasoning, his suggested distinction between courts in general and tribunals was not expressly endorsed by the other members of the House. Lord Edmund Davies made no specific reference to this point. Lord Salmon spoke of the decision in Anisminic as confined to decisions made by commissioners, tribunals or inferior courts, drawing no distinction between them. He based his decision on the fact that the jurisdiction of the Court of Appeal was defined by statute, which gave it no jurisdiction to make a judicial review of a decision of the High Court (p 386). To similar effect, Lord Scarman (at p 393) relied on the fact that the Court of Appeals jurisdiction over the High Court was the creature of statute, and in no way analogous to the supervisory jurisdiction of the High Court over inferior tribunals. Ms Rose goes as far as to submit that this part of the speech was not only obiter but per incuriam. There is force in this submission. As far as appears from the Appeal Cases report, the suggested distinction between courts and tribunals was not raised in argument and no relevant authorities were referred to in support, either by counsel or by Lord Diplock. His approach seems out of line with the long series of authorities cited by Laws LJ in his historical review in Cart, where it was emphasised that the jurisdiction of the Kings Bench Division extended to all inferior jurisdictions without distinction, including courts: a view well illustrated by Blackstones description of the range of courts within the scope of the writ of prohibition (paras 31 32 above). As Laws LJ said (commenting in terms on the speeches in Racal): The true contrast is between the High Court of the one hand and courts of limited jurisdiction on the other (Cart [2010] 2 WLR 1012 at para 68) On this approach no principled distinction can be drawn between the Foreign Compensation Commission and the IPT, or indeed the Upper Tribunal in Cart. All were or are inferior jurisdictions, equally subject to the supervision of the High Court. It is true that this part of Lord Diplocks speech has been cited with approval in later cases: see per Lord Browne Wilkinson in R v Hull University Visitor, Ex p Page [1993] AC 682, 703 (relating to University Visitors), and more recently per Lord Mance in Lee v Ashers Baking Co Ltd [2018] 3 WLR 1294, paras 85 87. But this point was not essential to the reasoning in either case. In Page, Lord Browne Wilkinson held that the High Court could not review a university visitors decision for a non jurisdictional error of law. However, he did so on the basis of common law principles that treat the visitor as equivalent to an arbitrator designated by the internal governance arrangements of a university (p 607, citing Holt CJ in Philips v Bury, (1694) Holt 715, 723 726). Lee also was concerned with a quite different issue: that is, the finality of the statutory appellate jurisdiction of the Northern Ireland Court of Appeal on appeal from the County Court. It had nothing to do with the exclusion of the original jurisdiction of the High Court in respect of inferior courts or tribunals. As Lord Mance explained (para 88) it turned on the construction of article 61(1) and (7) of the County Courts (Northern Ireland) Order 1980, which provided for the decision of the Court of Appeal on a case stated relating to the correctness of the decision of a county court judge upon any point of law to be final wording which was focused on the decision on the point of law, not on the regularity of the proceedings leading to it. He therefore found no difficulty in holding that the exclusion would not extend to a challenge to the fairness or regularity of the courts process. Lord Sumption also attaches importance to the fact that in Racal there was majority approval (Lords Diplock, Keith and Edmund Davies) of the dissenting judgment of Geoffrey Lane LJ in Pearlman v Keepers and Governors of Harrow School [1979] QB 56, 76C D. The same passage had recently been cited with approval by the Privy Council (including Lord Edmund Davies) in South East Asia Fire Bricks Sdn Bhd v Non Metallic Mineral Products Manufacturing Employees Union [1981] AC 363. In Pearlman the Court of Appeal by a majority allowed an appeal from the County Court in a case turning on the construction of a particular phrase (structural alteration or addition) in the Housing Act 1974. This was in the face of a provision of that Act by which the decision of the County Court was to be final and conclusive, and a provision (section 107) of the County Courts Act 1959 that no judgment or order of any judge of county courts . shall be removed by appeal, motion, certiorari or otherwise into any other court whatever It is a difficult case, not least because the majority judgments seem to have borne little relationship to the arguments as presented. The scope of the argument, as Geoffrey Lane LJ noted, had been constrained by concessions made on either side (without specific reference to Anisminic): on the one hand by counsel for the landlord that the section did not affect the power of the High Court to quash a decision of the county court made in excess of jurisdiction, although it did exclude the power to quash for errors of law on the record; and on the other by counsel for the tenant that the particular decision had been made within the judges jurisdiction (see pp 60G, 62D, 74A, 76H). There seems therefore to have been only limited reference to Anisminic in argument (see p 64G). However, in the leading judgment, Lord Denning MR took his own view of the construction of the no certiorari clause in the County Courts Act, holding that it applied only to decisions under jurisdiction conferred by that Act (p 68H). He also took the opportunity for an extended discussion of the difficulties of interpretation arising from Anisminic, concluding: The way to get things right is to hold thus: no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it. (p 70E) Eveleigh LJ (pp 76ff) gave a judgment in substance agreeing with Lord Denning MRs interpretation of Anisminic and of the no certiorari clause in the County Courts Act. It was in this context (evidently in response to the judgments of his colleagues rather than the arguments of counsel) that Geoffrey Lane LJ reviewed the speeches in Anisminic, and concluded (in the passage later cited with approval by the Privy Council and the House of Lords): I am, I fear, unable to see how that determination, assuming it to be an erroneous determination, can properly be said to be a determination which he was not entitled to make. The judge is considering the words in the Schedule which he ought to consider. He is not embarking on some unauthorised or extraneous or irrelevant exercise. All he has done is to come to what appears to this court to be a wrong conclusion upon a difficult question. It seems to me that, if this judge is acting outside his jurisdiction, so then is every judge who comes to a wrong decision on a point of law. (p 76C D) These references do not in my view materially assist the arguments in the present case on either side. All three cases (Pearlman, South East Asia and Racal) were products of their time. They came at a relatively early stage in the evaluation by the courts of the Anisminic principle. They also reflected a degree of tension between different levels of the judiciary as to the way forward. In this respect Lord Dennings proposed interpretation seems closer to subsequent authority than that of the dissenting judgment, although his interpretation of the ouster clause seems more questionable, and the minority view might be supported on other grounds (discussed below, under the second issue). Specialist tribunals By the time of Racal it was in any event difficult to make a principled distinction between courts and tribunals by reference only to nomenclature. Parliament had already blurred the distinction when establishing in 1975 the Employment Appeal Tribunal presided over by a High Court judge, with a jurisdiction limited to appeals on points of law (Employment Protection Act 1975 sections 87 88). It was designated in terms as a superior court of record (Schedule 6 paragraph 10). In this respect as in others it followed the precedent of the National Industrial Relations Court (Industrial Relations Act 1971 Schedule 3 paragraph 13). As is apparent from the authorities cited by Laws LJ in Cart (paras 61 62) the accepted wisdom for many years, indeed until the decision of the Divisional Court in that case, was that such designation as a superior court of record was in itself sufficient to exclude judicial review by the High Court. He cites, for example, R v Regional Office of the Employment Tribunals (London North), Ex p Sojirin (unreported) 21 February 2000, in which Sedley LJ (with whom Brooke LJ and Sir Christopher Staughton agreed) stated: So far as the Employment Appeal Tribunal is concerned, it is a superior court of record against which judicial review simply does not lie. The same thinking was initially assumed to apply to the Upper Tribunal. Laws LJ cited De Smith Judicial Review 6th ed (2007), para 1 093: The Administrative Court will have no role at all in relation to decisions of the Upper Tribunal, which as [a] superior court of record falls entirely outside the supervisory jurisdiction. Indeed, (as Lord Dyson noted in Cart in the Supreme Court [2012] 1 AC 663 at para 117), Sir Andrew Leggatt in his report Tribunals for Users One System, One Service (2001) (at para 6.31 34), had identified this as one possible means of excluding judicial review. This was not his preferred solution, principally because he saw it as an artificial way of tackling the problem, which would blur the clear distinction we wish to achieve between the courts and the Tribunals System. His preference was for exclusion of judicial review by express statutory provision. It was not until Cart itself in the Divisional Court that this view of designation as a superior court of record was rejected as a constitutional solecism, when set against the principle that the supervisory jurisdiction of the High Court (if it can be ousted at all) can only be ousted by the most clear and explicit words (para 37 above). Laws LJ did however accept that the Upper Tribunal was for relevant purposes, an alter ego of the High Court, and that as such it: satisfies the material principle of the rule of law: it constitutes an authoritative, impartial and independent judicial source for the interpretation and application of the relevant statutory texts. (para 94) This led him to propose a limited form of judicial review not extending to a mere legal mistake by the tribunal within the field ascribed to it. As will be seen, this solution was not adopted by the Supreme Court. However, the proposition that designation as a superior court was sufficient in itself to exclude judicial review was not further pursued in this appeal. Laws LJs rejection of that proposition was accepted as correct by this court (see per Lady Hale para 30). I shall return to other passages in Laws LJs judgment in the context of the second issue in the appeal. Error of law and nullity in the modern law The process of refinement of the Anisminic principle discussed above raised serious questions as to the need for continued reliance on concepts such as ultra vires or nullity as justifications for the intervention by the court. As Lord Reid himself had recognised (pp 170 171), the approach adopted in that case might be thought difficult to reconcile with a case such as Smith v East Elloe Rural District Council [1956] AC 736. That related to a statutory right within six weeks to challenge the confirmation of a compulsory purchase order on the grounds that it was not empowered to be granted, subject to which the order shall not be questioned in any legal proceedings whatsoever . It was held that the ouster clause was effective even where there was an allegation of fraud. In an often cited passage, Lord Radcliffe (pp 769 770) commented on the argument that an order made in bad faith was a nullity and therefore incapable of having any effect: But this argument is in reality a play on the meaning of the word nullity. An order even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. In R v Secretary of State for the Environment, Ex p Ostler [1977] QB 122 the Court of Appeal held that it was bound by this decision; the availability of a statutory right to challenge within a specified time limit, among other points, provided a sufficient basis for distinguishing Anisminic. This case also provides an interesting example of the influence of successive Junior Treasury Counsel in moulding the law (noted by Professor Feldman: above para 52 above). Lord Denning MR treated the statutory expression not within the powers of this Act as in effect embracing the familiar Wednesbury grounds, including error of law. This approach, following that of Lord Radcliffe (dissenting) in Smith v East Elloe Rural District Council, had been adopted by the Court of Appeal on the basis of a concession by counsel for the Minister (Nigel Bridge) in Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320; and in Ostler itself was not disputed by counsel for the Secretary of State (Harry Woolf). As Lord Denning said: It has been repeatedly followed in this court ever since and never disputed by any Minister. So it is the accepted interpretation (p 133G 134A) The concession was no doubt well advised, since without it there might have been difficulty in defending a time limited right of challenge confined to excess of powers in the narrower sense. On the relevance of the concept of nullity as used in Anisminic, Professor Paul Craig (op cit para 16 015) refers to the extra judicial observations of Sir John Laws (Illegality: The Problem of Jurisdiction in Supperstone and Goudie Judicial Review 1st ed (1992)): Sir John Laws argued that once the distinction between jurisdictional and non jurisdictional errors was discarded, there was no longer any need for the ultra vires principle as such, since the courts were in reality intervening to correct errors of law. The rationale for the judicial persistence with the principle is that it provides a legitimating device for the exercise of the courts power. Sir John Laws captures this idea Ultra vires is, in truth, a fig leaf; it has enabled the courts to intervene in decisions without an assertion of judicial power which too nakedly confronts the established authority of the Executive or other public bodies. The fig leaf was very important in Anisminic; but fig leaf it was. And it has produced the historical irony that Anisminic, with all its emphasis on nullity, nevertheless erected the legal milestone which pointed towards a public law jurisprudence in which the concept of voidness and the ultra vires doctrine have become redundant. (This important chapter, written in 1992 at about the time of the authors transition from Junior Treasury Counsel to High Court judge, also marked the beginning of a lively academic debate over the place of nullity and ultra vires in judicial review: see the corresponding chapter in the 6th ed of the same work (2017), and De Smith op cit, para 4 050 1.) I see considerable force in these observations, at least as applied to review for errors of law. Taking the present case, it is highly artificial, and somewhat insulting, to describe the closely reasoned judgment of this eminent tribunal as a nullity, merely because there is disagreement with one aspect of its legal assessment. I will return to this point later in connection with the second issue. Professor Craig concludes that the scope of judicial review is not self defining and it is not capable of being answered by linguistic or textual analysis of the statute alone. The critical question, he says, is whose relative opinion on the relevant question should be held to be authoritative, and the answer must ultimately be based on a value judgment, the precise content of which will not necessarily be always the same (para 16 016). To similar effect, but adopting a different metaphor, the editors of De Smith 8th ed comment: The distinction between jurisdictional and non jurisdictional error is ultimately based upon foundations of sand. Much of the superstructure has already crumbled. What remains is likely quickly to fall away as the courts rightly insist that all administrative action should be simply, lawful, whether or not jurisdictionally lawful. (De Smith para 4 054) The same passage in a previous edition was cited with approval by Lord Dyson in Cart para 111, who described the distinction between jurisdictional error and other error as artificial and technical. I agree. As will be seen in the next section, the reasoning of the Supreme Court in Cart does not turn on such sharp distinctions, but reflects a more evaluative approach, such as envisaged by Professor Craig, but starting from certain fundamental principles. Cart in the Supreme Court I now turn to the judgments in the Supreme Court in Cart, which in my view provide the essential background to the resolution of the issues in the present appeal. The reform of the tribunals system, under the Tribunals, Courts and Enforcement Act 2007, effected a fundamental change in the traditional relationship between courts and tribunals. The background to the reforms, and the nature of the changes made by and under the Act, were described in Lady Hales leading judgment (agreed by the other members of the court). She noted in particular the new judicial structure, presided over by the Senior President (normally a Lord Justice of Appeal), and including not only the specialist tribunal judges, but also all the judges of the ordinary courts, up to and including the Court of Appeal (para 22). She also noted the designation by section 3(5) of the Upper Tribunal as a superior court of record (para 24); the major innovation of the power of the Upper Tribunal to exercise a jurisdiction equivalent to judicial review (para 25); and probably most important the right of appeal with permission to the Upper Tribunal from the First tier Tribunal on points of law (para 26). The principal decision under review in Cart was one by the Upper Tribunal (as it happens, presided over by myself as Senior President of Tribunals) giving the claimant only limited permission to appeal against a decision of the First tier Tribunal relating to child maintenance. It was the common view of the courts at all three levels that the decision itself was unimpeachable on its merits, but the case gave the opportunity for detailed consideration of the principles which should govern such review in future cases. As Lady Hale explained (paras 31 34), both the Divisional Court and the Court of Appeal, albeit by slightly different legal routes, had held that, while judicial review was in principle available, its exercise should be narrowly confined. Under the heading The field of choice for this court (paras 37ff), Lady Hale regarded three points as clear from the oral arguments: first, that there was nothing in the 2007 Act to exclude judicial review of unappealable decisions of the Upper Tribunal; secondly, that it would be inconsistent with the new structure to draw a distinction for this purpose between different jurisdictions there gathered together; and thirdly that: the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law that is to ensure that, within the bounds of practical possibility, decisions are taken in accordance with the law, and in particular the law which Parliament has enacted, and not otherwise. Both tribunals and the courts are there to do Parliaments bidding. But we all make mistakes. No one is infallible Against the background the question as she saw it was what machinery is necessary and proportionate to keep such mistakes to a minimum? In particular, should there be any jurisdiction in which mistakes of law are, either in theory or in practice, immune from scrutiny in the higher courts? Three possible approaches had been identified in the course of oral argument: First, we could accept the view of the courts below in the Cart and MR (Pakistan) cases that the new system is such that the scope of judicial review should be restricted to pre Anisminic excess of jurisdiction and the denial of fundamental justice (and possibly other exceptional circumstances such as those identified in the Sinclair Gardens case [2006] 3 All ER 650). Second, we could accept the argument, variously described in the courts below as elegant and attractive, that nothing has changed. Judicial review of refusals of leave to appeal from one tribunal tier to another has always been available and with salutary results for the systems of law in question. Third, we could adopt a course which is somewhere between those two options namely that judicial review in these cases should be limited to the grounds upon which permission to make a second tier appeal to the Court of Appeal would be granted. (para 38) Earlier in the judgment (para 27) she had recorded that the Lord Chancellor had exercised the power under section 13(6) to apply the second appeal criteria as already applied in the Court of Appeal, to the effect that permission shall not be granted unless: (a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the relevant appellate court to hear the appeal. She considered the three options in turn. The first (the exceptional circumstances approach) would she thought lead back to the distinction between jurisdictional and other errors which had been effectively abandoned after Anisminic. She saw a number of other objections. In particular (echoing in some ways the concerns of Blackstone in the 18th century: para 32 above) she saw a risk of specialist tribunals, in contrast to the ordinary courts, developing their own local law, a risk which was increased by the power of the Upper Tribunal to set precedent often in a highly technical and fast moving area of law, combined with its ability to refuse permission to appeal, and the likelihood that the same question of law will not reach the High Court or the Court of Appeal by a different route: There is therefore a real risk of the Upper Tribunal becoming in reality the final arbiter of the law, which is not what Parliament has provided. Serious questions of law might never be channelled into the legal system (as Sedley LJ put it at [2011] QB 120, para 30) because there would be no independent means of spotting them. High Court judges may sit in the Upper Tribunal but they will certainly not be responsible for all the decisions on permission to appeal, nor is it possible for the Upper Tribunal to review its own refusals, even when satisfied that they are wrong in law. (para 43) In respect of the second (The status quo ante but which?) she noted that the courts had already adopted principles of judicial restraint when considering decisions of expert tribunals. She referred (inter alia) to her own comments (Cooke v Secretary of State for Social Security [2001] EWCA Civ 734; [2002] 3 All ER 279, paras 15 17) on the need for appropriate caution in giving permission to appeal from the Social Security Commissioners because of their particular expertise in a highly specialised area of the law, but observed that other contexts (such as asylum) might require a different approach. The real question was: what level of independent scrutiny outside the tribunal structure is required by the rule of law There must be a principled but proportionate approach. (para 51) As to the third option (The second appeals criteria), having noted the possible objections, she said: But no system of decision making is perfect or infallible. There is always the possibility that a judge at any level will get it wrong. Clearly there should always be the possibility that another judge can look at the case and check for error. That second judge should always be someone with more experience or expertise than the judge who first heard the case. But it is not obvious that there should be a right to any particular number of further checks after that. The adoption of the second tier appeal criteria would lead to a further check, outside the tribunal system, but not one which could be expected to succeed in the great majority of cases. (para 56) She concluded that the adoption of the second tier appeals criteria would be a a rational and proportionate restriction, which would recognise that the new tribunal structure deserved: a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected. It was a test which the courts were now very used to applying, and one which was capable of encompassing: both the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual (para 57) Of the other judgments I note that Lord Phillips (paras 91 92) was a relatively late convert to the need for even a restricted form of judicial review: My initial inclination was to treat the new two tier tribunal system as wholly self sufficient. It is under the presidency of a judge who is likely to be a member of the Court of Appeal, and High Court judges can and will sit in the Upper Tribunal. There is considerable flexibility in the system in relation to the administration and composition of the Upper Tribunal. Can it not be left to the Senior President, in consultation with the President of the Queens Bench Division and other judicial colleagues to ensure that the tribunal judiciary is so deployed as to ensure the appropriate degree of judicial scrutiny of decisions of the lower tier? However, having considered the other judgments he had been persuaded that, at least until we have experience of how the new tribunal system is working in practice, there was a need for some overall judicial supervision of the decisions of the Upper Tribunal to guard against the risk that errors of law of real significance slip through the system (para 92). Lord Brown, agreeing with the other judgments, saw nothing contrary to principle in the proposed limitation on the scope of review. As he said: The rule of law is weakened, not strengthened, if a disproportionate part of the courts resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff. (para 100) To similar effect Lord Clarke agreed that the real question was the level of independent scrutiny required by the rule of law, adding: It is, as I see it, a matter for the courts to determine what that scrutiny should be. I am not persuaded that judicial review requires the same degree of scrutiny in every case. All depends upon the circumstances. (para 102) Lord Dyson, also agreeing with Lady Hale, noted that Parliament had not accepted the Leggatt recommendation to exclude judicial review. He commented: The fact that Parliament did not accept the recommendation to exclude judicial review of unappealable decisions of the Upper Tribunal does not mean that it rejected the committees view that there had been a significant change in the structure of the tribunal system such as might justify a reappraisal of the scope of the judicial review jurisdiction. It merely means that Parliament was not willing to adopt the controversial suggestion that judicial review should be excluded altogether. (para 118) He referred to the Government White Paper: Transforming Public Services: Complaints, Redress and Tribunals presented to Parliament in July 2004 (Cm 6243), which (at para 7.28) had described complete exclusion of the courts from their historic supervisory role (as) a highly contentious constitutional proposition. Instead there was said to be merit in providing as a final form of recourse a statutory review on paper by a judge of the Court of Appeal. Lord Dyson agreed with the Leggatt report and the 2004 White Paper that the strategic reorganisation of the tribunals system demanded a reappraisal of the scope of judicial review. Parliament having refused to undertake it, the task of deciding the scope of the judicial review jurisdiction, and the extent of any restrictions fell to be performed by the courts. Accepting that any restrictions called for justification, he said: there is no principle more basic to our system of law than the maintenance of [the] rule of law itself and the constitutional protection afforded by judicial review. But the scope of judicial review should be no more (as well as no less) than is proportionate and necessary for the maintaining of the rule of law. (paras 119 122) Having discussed the implications of the second appeals criteria, and experience of their use in the courts since 2000, he concluded: Parliament has shown a liking for the second appeal criteria in second appeals and in particular in the tribunal context of appeals from the UT to the Court of Appeal. It can at least be said that to import those criteria into the judicial review jurisdiction in the present context does not go against the grain of the TCEA. More positively, in my view the second tier appeals approach provides a proportionate answer to the question: what scope of judicial review of unappealable decisions of the UT is required to maintain the rule of law? (para 133) Finally, for completeness I note that all the justices expressed agreement with the corresponding reasoning of Lord Hope in the linked Scottish case of Eba v Advocate General [2012] 1 AC 710. Comment on Cart I have referred at some length to the judgments in Cart because they represented a major reappraisal of the approach of the supervisory functions of the High Court as respects specialist tribunals. The case has attracted some academic controversy (see the discussion in Joanna Bell, Rethinking the Story of Cart v Upper Tribunal and its implications for Administrative Law Oxford Journal of Legal Studies Vol 39 No 1 (2019) pp 74 99). For example, Professor Forsyth describes the reasoning of the court as pragmatic but not principled, adding: It may portend the abandonment of jurisdiction as the organising principle of administrative law and its replacement by the court allowing judicial review on discretionary basis when it is rational and proportionate to do so (which would be a revolutionary change) (Wade & Forsyth, pp 222 223) Certainly the judgments show how far the law has evolved since the somewhat technical debates in Anisminic itself. In particular, against the background of the Divisional Court judgment, they reaffirm in no uncertain terms the continuing strength of the fundamental presumption against ousting the supervisory role of the High Court over other adjudicative bodies, even those established by Parliament with apparently equivalent status and powers to those of the High Court. Instead such status (as adjudicative bodies rather than executive agencies) is to be respected and taken into account, not by exclusion of review, but by the careful regulation of the courts power to grant or refuse permission for judicial review. Furthermore, setting the principles by which that is to be done, in the absence of specific statutory provision, is a matter properly within the province of the appellate courts. I shall return below, under the second issue, to the question in what circumstances if any Parliament could exclude review altogether. There is no doubt that, if it is to be done, nothing less than the clearest wording will suffice (see De Smith para 1 027). As has been seen, that principle has been a central theme of the authorities since well before Anisminic, and was reaffirmed in emphatic terms by the Divisional Court in Cart (para 37 above). The principle can be seen as an application of the principle of legality as explained by Lord Hoffmann in R (Simms) v Secretary of State for the Home Department [2000] 2 AC 115 at p 131F: the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. The practical importance of that principle was vividly illustrated by the fate of perhaps the most extreme form of ouster clause promoted by government in modern times: clause 11 of the Asylum and Immigration (Treatment of Claimants etc) Bill 2003. Not content with an express prohibition (in proposed clause 108A(1) and (2)) of any form of supervisory jurisdiction or questioning by the courts of tribunal decisions, the drafter had gone on to spell out precisely the intended consequence: Subsections (1) and (2) (a) prevent a court, in particular, from entertaining proceedings to determine whether a purported determination, decision or action of the Tribunal was a nullity by reason of (i) lack of jurisdiction, (ii) irregularity, (iii) error of law, (iv) breach of natural justice, or (v) any other matter The clause attracted powerful objections from within and outside Parliament. The reaction of the Constitutional Affairs Committee was typical: An ouster clause as extensive as the one suggested in the Bill is without precedent. As a matter of constitutional principle some form of higher judicial oversight of lower Tribunals and executive decisions should be retained. (Second Report of the 2003 2004 Session para 708) In response to this pressure the clause was withdrawn. Other common law jurisdictions For completeness I should make clear that I have not overlooked the many authorities to which we have been helpfully referred from other common law jurisdictions, where similar issues have been discussed at the highest level, not always with the same results. All these decisions need to be read within the differing legal and constitutional arrangements of the jurisdictions concerned. For that reason, and without disrespect to the depth of learning and analysis there shown, I have not been persuaded that they add materially to the assistance available in the present context from the relevant domestic authorities and textbooks. For example, the High Court of Australia has arrived at similar results by a broadened concept of jurisdiction (see Boughey and Burton Crawford Reconsidering [Cart] and the rationale for jurisdictional error [2017] Public Law 1). Thus, in Kirk v Industrial Court of New South Wales [2010] HCA 1, the court held that an ouster clause expressed in apparently far reaching terms was ineffective to exclude review in relation to a particular error of law held to be jurisdictional. The court took an expansive view of the concept of jurisdiction, quoting the opinion expressed in an article by Professor Jaff (Judicial Review: Constitutional and Jurisdictional Fact (1957) 70 Harvard Law Review pp 953, 963): that denominating some questions as jurisdictional is almost entirely functional: it is used to validate review when review is felt to be necessary. If it is understood that the word jurisdiction is not a metaphysical absolute but simply expresses the gravity of the error, it would seem that this is a concept for which we must have a word and for which use of the hallowed word is justified. The court noted the line of House of Lords authorities under which the difficulties had been overcome by holding that any error of law by a decision maker rendered the decision ultra vires, commenting: But that is a step which this court has not taken (para 64). More generally the court observed that there can be no automatic transposition of principles from one jurisdiction to the other because the constitutional context is too different (para 66). The present appeal the first issue Against that background I can state my conclusions on the first issue relatively briefly. I remind myself of the terms of section 67(8): Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court. The provision for the Secretary of State to provide a route of appeal adds nothing to the arguments, in my view. Not only has it not been exercised, but in any event a power entirely in the gift of the executive does nothing to weaken the case for ultimate control by the courts. As Ms Rose submits, our interpretation of the subsection, whether in its present form or as originally drafted in 1985, must be informed by the close parallel with the provision under review in Anisminic. At least by that date, following Lord Diplocks explanation in OReilly v Mackman (1983), the drafter can have had no serious doubt about the far reaching effect of that decision. A determination vitiated by any error of law, jurisdictional or not, was to be treated as no determination at all. It therefore fell outside the reference in the ouster clause to a determination of the commission. In other words, the reference to such a determination was to be read as a reference only to a legally valid determination. On the other side, Sir James Eadie submits that the task of interpretation is to be approached, by reference, not simply to a general presumption against ouster clauses of any kind, but rather to careful examination of the language of the provision, having regard to all aspects of the statutory scheme, and the status or the body in question, in order to discern the policy Parliament intended in the legislation (R (Woolas) v Parliamentary Election Court [2012] QB 1, para 54 per Thomas LJ). The special character and functions of the IPT, combined with the specific references to decisions relating to jurisdiction, show a clear intention to protect it from any form of review by the ordinary courts, even in cases to which the Anisminic principle would otherwise have applied. The main flaw in this argument, in my view, is that it treats the exercise as one of ordinary statutory interpretation, designed simply to discern the policy intention of Parliament, so downgrading the critical importance of the common law presumption against ouster. In that respect it echoes the unsuccessful argument of the Commission in Anisminic. Lord Reid did not dispute that the plain words of the subsection in that case were apt to exclude any form of challenge in the courts; but this ordinary meaning had to yield to the principle that such a clause will not protect a nullity and that there are no degrees of nullity (see paras 46 47 above). Following OReilly v Mackman the concept of nullity for these purposes is extended to any decision which is erroneous in law, and in that sense legally invalid. If one applies that approach to section 67(8), ignoring for the moment the words in parenthesis, the exclusion applies, not to all determinations, awards or other decisions whatever their status, but only to those which are legally valid in that sense. Thus, if the IPTs decision in the present case were found to have been reached on an erroneous interpretation of section 5 of the Intelligence Services Act 1994, those words would not save it from intervention by the courts. Does the specific reference to decisions as to whether they have jurisdiction make any difference? It would be odd if it did. As has been seen the relevant decision in this case raised a short point of law, turning principally on the reading of the word specified in section 5. On no ordinary view could it be regarded as a decision as to whether [the IPT] had jurisdiction, nor even as a decision as to jurisdiction under the apparently broader language of the 1985 Act. Although the arguments before us have proceeded on the basis that the change of wording made no material difference, the present wording seems designed if anything to emphasise that the exclusion is directed specifically at decisions about jurisdiction made by the IPT itself. If, however, those words are read in the language of Anisminic there is no problem. The exclusion applies only to a legally valid decision relating to jurisdiction. In the parenthesis, as in the remainder of the subsection, a decision which is vitiated by error of law, whether as to jurisdiction or otherwise, is no decision at all. While of course respect is due to the contrary view expressed obiter by Lord Brown in the A case (para 19 above), the point was not in issue and there was no argument on it. This does not necessarily mean that the words in parenthesis are otiose. As Ms Rose points out, at the time of the 1985 Act, the potential significance of the distinction between issues of fact and law, in the context of jurisdiction, had been highlighted by the House of Lords in R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74. Closer to home the decision of the IPT itself in C v The Police (see para 7 above) is an example of the kind of decision as to jurisdiction which might well involve issues of fact to which the exclusion could be said to apply without engaging the presumption against ouster. However, whether that is a likely interpretation of Parliaments intentions, or indeed whether or not the parenthesis is redundant, is in my view beside the point. Judicial review can only be excluded by the most clear and explicit words (Cart, para 31). If Parliament has failed to make its intention sufficiently clear, it is not for us to stretch the words used beyond their natural meaning. It may well be that the promoters of the 1985 Act thought that their formula would be enough to provide comprehensive protection from jurisdictional review of any kind. (If so, as Lord Wilson observes, they would have gained support from the distinguished author of the notes to the 1985 Current Law Statutes.) But one is entitled to ask why they did not use more explicit wording. With OReilly v Mackman in mind, the natural focus of attention would have been, not on potential challenges to the tribunals own decisions as to jurisdiction, but on jurisdictional or legal challenges to its substantive decisions generally. A more explicit formula might perhaps have anticipated the extreme wording of the bill presented in 2003 (para 101 above), excluding challenges to any determination or purported determination as a nullity by reason of lack of jurisdiction, error of law, or any other matter. The reason for not adopting that course may simply be that, as in 2003, it might not have been expected to survive Parliamentary scrutiny. So far as concerns the features of the IPT regime on which the Court of Appeal relied, I agree generally with Ms Roses responses (paras 24 25 above). I am unimpressed by arguments based on the security issues involved in many (though not all) of the IPTs cases. As this case shows, the tribunal itself is able to organise its procedures to ensure that a material point of law can be considered separately without threatening any security interests. The Administrative Court can also ensure that the grant of permission is limited to cases raising points of general significance, and that its proceedings are conducted without risk to security concerns. Further, in the case of the IPT, the potential for overlap with legal issues which may be considered by the ordinary courts (see paras 7 and 14 above) makes it all the more important that it is not able to develop its own local law without scope for further review. The second issue The second issue poses the question whether, and, if so, in accordance with what principles, Parliament may by statute oust the supervisory jurisdiction of the High Court to quash the decision of an inferior court or tribunal of limited statutory jurisdiction? The conclusion I have reached on the first issue makes it strictly unnecessary to go further in this appeal. However, as is apparent from the submissions under the second issue, the principles discussed in this judgment have important implications beyond the form of ouster clause under consideration in this case, on which some comment may be of value. The essence of Ms Roses submission can be simply stated. It is in short that a clause purporting to oust the supervisory role of the High Court to correct errors of law cannot properly be upheld because it would conflict with the rule of law, a principle which is as fundamental to our constitution as the principle of Parliamentary sovereignty. She emphasises that she does not in this appeal seek to question the principle of Parliamentary sovereignty itself, but rather to explain its boundaries, and why the laws of a sovereign Parliament require an independent interpreter of unlimited jurisdiction to ensure those laws are faithfully implemented. That independent arbiter must she says be a court of unlimited jurisdiction, such as the High Court in England and Wales, or the Court of Session in Scotland; and its decisions must in turn be capable of correction by the appellate courts. For the interested parties, Sir James Eadie does not question the need for an independent, authoritative interpreter of legislation, as a fundamental requirement of the rule of law (in his words); but he submits that the High Court is not the only body capable of performing that function. The IPT is of equivalent judicial status. Nor is there any absolute constitutional requirement for a right of appeal to the higher courts (see per Lord Brown in R (A), para 24). The balance between the correction of judicial error and the policy considerations in favour of finality is a judgement properly for the legislature. Both parties find support in the judgment of Laws LJ in Cart [2011] QB 120, paras 36 40 (a passage cited with approval by Lady Hale in the Supreme Court: [2012] 1 AC 663, para 30). Ms Rose relies on his affirmation of the need under the rule of law for statute law to be mediated by an authoritative source, the paradigm being the High Court as the principal constitutional guardian of the rule of law , and further that the need for such an authoritative judicial source cannot be dispensed with by Parliament. This is not a denial of legislative sovereignty, but an affirmation of it (para 38) On the other side, Sir James relies on Laws LJs acceptance in Cart that Parliament could entrust that supervisory role to a body properly regarded as the alter ego of the High Court, such as in that case the Upper Tribunal (paras 39, 94). He also relies on Laws LJs acknowledgment in the same passage (at para 40) of Parliaments power to modify, sometimes radically the procedures by which statute law is mediated; exemplified by the many cases in which Parliament has, without objection, replaced the High Courts common law powers with time limited statutory powers of review (as seen in Ex p Ostler: para 80 above). Thus, he says, there is no constitutional principle to preclude such legislative choices about which such judicial body is to have the power to make final decisions, and subject to what limitations. As will be seen from these summaries, the area of disagreement even on the second issue is relatively narrow, but of considerable constitutional significance. It is useful to start by identifying those matters which appear not presently to be in dispute. First, both parties start from the premise that the relationship between Parliament and the courts is governed by accepted principles of the rule of law. Unsurprisingly, there is no challenge to the proposition (per Lord Dyson, quoted at para 96 above) that there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review. We are not therefore concerned with the difficult constitutional issues which might arise if Parliament were to pass legislation purporting to abrogate or derogate from those accepted principles: see eg Jackson v Attorney General [2005] UKHL 56; [2006] 1 AC 262, para 102 per Lord Steyn; and the succinct but masterly discussion of the competing views, academic and judicial, by Lord Bingham in The Rule of Law (2010): Chapter 12 The Rule of Law and the Sovereignty of Parliament. Further, as noted earlier in this judgment (para 33), Parliament itself has affirmed (most recently in the Senior Courts Act 1981) the long established common law powers of the High Court, as a court of unlimited jurisdiction, including its role in keeping inferior courts and tribunals within the law. Equally important, though of more recent origin, is the express statutory recognition of the rule of law in section 1 of the Constitutional Reform Act 2005. That provides: The rule of law This Act does not adversely affect the existing constitutional principle of the rule of (a) law This court has recognised the special status of such constitutional statutes, in particular their immunity from implied repeal: a status which (in the words of Laws LJ in another case) preserves the sovereignty of the legislature and the flexibility of our uncodified constitution. It accepts the relation between legislative supremacy and fundamental rights is not fixed or brittle: rather the courts (in interpreting statutes and, now, applying the Human Rights Act 1998) will pay more or less deference to the legislature, or other public decision maker, according to the subject in hand. (Thoburn v Sunderland City Council [2003] QB 151, paras 63 64, approved in Miller v Secretary of State for Exiting the European Union [2018] AC 61, para 66) In his introduction to The Rule of Law, Lord Bingham underlined the significance of section 1 of the 2005 Act to his general discussion of the concept. He attributed the absence of a statutory definition to the probable recognition by parliamentary counsel of the extreme difficulty of devising a pithy definition suitable for inclusion in a statute, and their wish instead to leave it to the judges to rule on what the term means if and when the question arises for decision, so enabling the concept to evolve over time in response to new views and situations (op cit pp 7 8). Whatever the explanation, Parliament having recognised this existing constitutional principle, and provided no definition, there is nothing controversial in the proposition that it is for the courts, and ultimately the Supreme Court (created by the same Act), to determine its content and limits. Secondly, it is not I believe in dispute, and indeed was clearly established by the time of Anisminic, that there are certain fundamental requirements of the rule of law which no form of ouster clause (however clear and explicit) could exclude from the supervision of the courts. The first relates to what I would call excess of jurisdiction: that is, a decision arrived at by a tribunal of limited jurisdiction through a process which goes outside those limits whether at the inception or at any stage of the proceedings. On this category there was no disagreement in Anisminic. It is sufficient to quote Lord Morris, who dissented on the main issue: The control cannot be exercised if there is some provision (such as a no certiorari clause) which prohibits removal to the High Court. But it is well settled that even such a clause is of no avail if the inferior tribunal acts without jurisdiction or exceeds the limit of its jurisdiction. (p 182C emphasis added) The conceptual basis for this rule is not far to seek. As Lord Wilberforce said in Anisminic (see para 36 above): What would be the purpose of defining by statute the limit of a tribunals powers if, by means of a clause inserted in the instrument of definition, those limits could safely be passed? The same approach can in my view be applied to what I would term abuse of jurisdiction: that is, a decision made within the limits prescribed by Parliament but in breach of basic principles governing the making of such decisions. In Anisminic, Lord Wilberforce spoke of certain fundamental assumptions, which without explicit restatement in every case, necessarily underlie the remission of power to decide such as the requirement that a decision must be made in accordance with principles of natural justice and good faith. The principle that failure to fulfil these assumptions may be equivalent to a departure from the remitted area must be taken to follow from the decision of this House in Ridge v Baldwin [1964] AC 40. (p 207E) It can be seen as a short step from excess of jurisdiction to abuse in this sense. To deny the effectiveness of an ouster clause is again a straightforward application of existing principles of the rule of law. Consistently with those principles, Parliament cannot entrust a statutory decision making process to a particular body, but then leave it free to disregard the essential requirements laid down by the rule of law for such a process to be effective. Clear and long established authority to that effect is to be found in R v Cheltenham Comrs (para 35 above, in relation to a decision affected by apparent bias); see also Attorney General v Ryan [1980] AC 718 PC at p 730 per Lord Diplock (decision in breach of natural justice). I note that in the present case Sales LJ treated section 67(8) as excluding review in certain cases of alleged unfairness, such as a decision of the IPT as to whether a member of the panel should recuse himself for appearance of bias, or as to what fairness or natural justice requires in relation to some aspect of its procedure. He commented: It is implicit in reading section 67(8) in this way that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it. There is nothing implausible about this. The quality of the membership of the IPT in terms of judicial expertise and independence is very high, as set out in Schedule 3 to RIPA, so it is a fair inference that Parliament did intend that this should be the position. (paras 37 38) Sir James Eadie cited this passage as an illustration of the courts proper function of interpreting such ouster provisions with regard to their statutory context. I do not read this passage as suggesting that the residual jurisdiction in respect of the rules of natural justice would be wholly excluded, however gross the breach. Nor did I understand Sir James to go so far. There are useful parallels with Laws LJs discussion (Cart, paras 96ff) of the exceptional circumstances in which a county court judgment may be reviewable, under the principles established in R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738; [2003] 1 WLR 475. As Laws LJ said, complaints of unfairness in the course of a hearing are legion, and very various, and need to be approached with caution. Citing an earlier judgment of his own (R (Strickson) v Preston County Court [2007] EWCA Civ 1132, para 32) he drew a distinction between a case where the judge simply gets it wrong and one where the judicial process itself has been frustrated or corrupted, including substantial denial of the right to a fair hearing or in other words a wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of the tribunal. In the Court of Appeal in the present case there appears to have been no reference to this part of Laws LJs judgment, nor to the kind of cases that he was discussing. However, I would be surprised if Sales LJ, even on his interpretation of section 67(8), would have treated it as excluding altogether the possibility of review in such extreme cases, however unlikely they might be in a tribunal of the distinction of the IPT. In accordance with established principles, the ultimate safeguard of judicial review remains essential if the rule of law is to be maintained. The special status of the IPT (like that of the Upper Tribunal) may be a reason for restricting the grant of permission for judicial review, but not for excluding it altogether. I turn to the area of dispute in the present appeal. We are concerned, not with excess or abuse of jurisdiction in any of the senses discussed above, but with a straightforward question of legal interpretation on a point directly within the apparent scope of the IPTs statutory remit. There is no disagreement as to the need for independent judicial interpretation of such a question. The dispute is as to the power of the legislature, consistently with the rule of law, to entrust that task to a judicial body such as the IPT, free from any possibility of review by the ordinary courts (including the appellate courts). In that respect in my view the discussion needs to move beyond the legal framework established by Anisminic, and the cases which followed it. Those decisions established the principle that, if a tribunal goes wrong on any such question of law, it exceeds its jurisdiction, so that the resulting decision is a nullity, and (subject to an effective ouster clause) liable to be so declared by the High Court. Although this principle is now unquestioned, its conceptual basis, 35 years on from OReilly v Mackman, remains obscure. Anisminic itself does not assist. As has been seen (paras 48 50), the majority judgments did not go as far as to treat simple mistake of law as a cause of nullity. For Lord Reid the mistake must have been such as to lead the tribunal to (fail) to deal with the question remitted to it, or to (decide) some question which was not remitted to it. For Lord Wilberforce the mistake must have related to the architecture of the provisions. They were both able, after elaborate analysis, to find that the Commissions mistake of law satisfied these tests. Whether the same could be said of the alleged error in the present case is at best doubtful. As already observed, the nullity analysis seems highly artificial, as applied to a legal decision such as that of the IPT in this case. It is also difficult to reconcile with the acceptance by the courts of the familiar statutory ouster of challenges to planning and similar decisions after a six week time limit (as in Smith v East Elloe, and Ostler: see para 81 above), leading to the anomaly that such a nullity is mysteriously validated at the end of that period. Nor has the expanded understanding of the Anisminic principle been consistently applied in other statutory contexts, as In re McC [1985] AC 528 illustrates (para 58 above). These examples show that the courts have not adopted a uniform approach, but have felt free to adapt or limit the scope and form of judicial review, so as to ensure respect on the one hand for the particular statutory context and the inferred intention of the legislature, and on the other for the fundamental principles of the rule of law, and to find an appropriate balance between the two. Even if this was not always the way in which the decisions were justified at the time, it may be seen as providing a sounder conceptual basis. Thus in the planning cases, it having been accepted that the statutory grounds cover all the traditional ground of judicial review, there is no difficulty in holding that the six week time limit provides a proportionate balance between effective judicial review, and the need for certainty to enable such decisions to be acted on with confidence. That more flexible approach to the relationship between the legislature and the courts is in my view wholly consistent with the modern constitutional settlement, as confirmed by the 2005 Act, and recognised by this court in Miller. Against that background, the judgments of this court in Cart point the way to an approach which (pace Professor Forsyth see para 98 above) is both pragmatic and principled. The critical step taken by this court in Cart was to confirm, what was perhaps implicit in some of the earlier cases, that it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review. This proposition should be seen as based, not on such elusive concepts as jurisdiction (wide or narrow), ultra vires, or nullity, but rather as a natural application of the constitutional principle of the rule of law (as affirmed by section 1 of the 2005 Act), and as an essential counterpart to the power of Parliament to make law. The constitutional roles both of Parliament, as the maker of the law, and of the High Court, and ultimately of the appellate courts, as the guardians and interpreters of that law, are thus respected. The question in any case is the level of scrutiny required by the rule of law, set on a basis which as stated in Cart is both principled and proportionate (para 51 per Lady Hale), or in Lord Dysons words (para 133): what scope of judicial review is required to maintain the rule of law; it being a matter for the courts to determine what that scrutiny should be (para 102 per Lord Clarke). Some forms of ouster clause may readily satisfy such a test, as in the planning cases mentioned above. Similarly, in Racal, review limited to a High Court judge could reasonably have been justified as providing a sufficient and proportionate level of protection in the narrow statutory context of the grant of authority to inspect company books. In a different context a similarly balanced assessment could be used to support the outcome of the dissenting judgment in Pearlman. Here again judicial thinking has moved on, recognising that the division between fact and law is not always clear cut, and that a more pragmatic approach may sometimes be required (per Lord Hope, Jones v First tier Tribunal [2013] UKSC 19, para 16). The assessment of whether particular works involve a structural alteration or addition is substantially a factual issue, which can properly and economically be left to the trial judge at County Court level. An ouster provision designed to achieve that effect should be respected. On the other hand such a clause should not be treated as excluding the possibility of review in an exceptional case where the judge can be shown (in Geoffrey Lane LJs words) to have been embarking on some unauthorised or extraneous or irrelevant exercise. It is significant that this judgment (later approved by the Privy Council), like that of the Court of Appeal in Sivasubramaniam (para 125 above), implicitly recognised that even in a very restrictive statutory context the possibility of judicial review could not be excluded altogether in an exceptional case. Lord Sumption finds support for his contrary view in a part of Lady Hales judgment in Cart, where she said: as Lord Wilberforce pointed out (Anisminic at p 207) it does of course lie within the power of Parliament to provide that a tribunal of limited jurisdiction should be the ultimate interpreter of the law which it has to administer: the position may be reached, as the result of statutory provisions, that even if they make what the courts might regard as decisions wrong in law, these are to stand. But there is no such provision in the 2007 Act. There is no clear and explicit recognition that the Upper Tribunal is to be permitted to make mistakes of law (para 40, emphasis added) I do not believe with respect that this passage bears the weight which Lord Sumption places on it. It comes as part of a section of the judgment (para 39) in which Lady Hale was explaining her reasons for not following the courts below by reintroducing the distinction between jurisdictional and other errors, which had been effectively abandoned in Anisminic. She was not addressing the present issue as to the circumstances in which review could be excluded altogether. Similarly, the relevant passage of Lord Wilberforces speech was not a considered treatment of the subject. It was no more than part of his introduction to the more detailed discussion, in which he was explaining the high legal standing of the Commission, and its consequences for his approach to interpretation. The full passage reads as follows: It is now well established that specialised tribunals may, depending on their nature and on the subject matter, have the power to decide questions of law, and the position may be reached, as the result of statutory provision, that even if they make what the courts might regard as decisions wrong in law, these are to stand. The Foreign Compensation Commission is certainly within this category; its functions are predominantly judicial; it is a permanent body, composed of lawyers, with a learned chairman. and there is every ground, having regard to the number and the complexity of the cases with which it must deal, for giving a wide measure of finality to its decisions. There is no reason for giving a restrictive interpretation to section 4(4) which provides that its determinations are not to be called in question in courts of law. (p 207B D, emphasis added) The italicised words to which Lady Hale referred did not purport to be a reasoned discussion. Further, they must be read in the context of the common assumption at the time (not dispelled until OReilly v Mackman) that the ouster clause in that case would be effective in respect of an error of law which was not in some sense jurisdictional. Returning to the present case, Sir James Eadie accepts the need for judicial review by a court or tribunal which is both independent and authoritative, but submits that the IPT is well suited to perform that role. The test of such independence and competence, he submits, is not the source of the powers of review, but rather the institutional features of the body created to exercise the power of review. In my view that is too narrow a focus. It pays no regard to the need to ensure that the law applied by the specialist tribunal is not developed in isolation (a local law), but conforms to the general law of the land. At least since the time of Blackstone (para 32 above), this has been a central part of the function of the High Court as constitutional guardian of the rule of law. It formed an important part of the reasoning of the Supreme Court in Cart. It applies with particular force in the present context where there is a significant overlap between jurisdictions of the IPT and of the ordinary courts. The present case is a good example. The legal issue decided by the IPT is not only one of general public importance, but also has possible implications for legal rights and remedies going beyond the scope of the IPTs remit. Consistent application of the rule of law requires such an issue to be susceptible in appropriate cases to review by ordinary courts. It may seem anomalous that the route to review by the ordinary courts is the grant of permission by the High Court, whose judges may arguably be less well equipped for this purpose than the judges of the IPT. But the same could have been said of the relationship between the Upper Tribunal and the High Court in Cart itself. Although Lady Hale acknowledged (para 56) that the review should in principle be by a judge with more experience or expertise, this would be met by the possibility that, if the case were channel(ed) into the legal system, it would enable where appropriate onward transmission to the appellate courts. The high status of the Upper Tribunal was a reason for a restricted approach to the grant of permission, but not for excluding it altogether. It also has to be remembered that until the 1979 reforms the review jurisdiction would have been exercised by the full Divisional Court of the Queens Bench, generally presided over by the Lord Chief Justice. In the modern system, the courts powers of case management can ensure that the matter comes before a court of suitable composition (as happened in this case). There is a distinct issue whether the rule of law requires such decisions to be susceptible to review also by the appellate courts. Unlike the original common law jurisdiction of the High Court, the jurisdictions of the Court of Appeal, and now of the Supreme Court, are the creation of statute. In Racal it was assumed that if the relevant statutes provided that the decision of the High Court was unappealable, it could not be corrected at all (see para 64 above). In R (A) Lord Brown accepted as correct the concession that there is no constitutional (or article 6) requirement for any right of appeal from an appropriate tribunal (para 23). As applied to article 6 of the Convention, which was in issue in R (A), that proposition may be uncontroversial, given that the ultimate arbiter of Convention law is in Strasbourg rather than the courts of this country. In the context of a domestic law challenge, it is more debatable. Arguably, following the logic of the reasoning in Cart, it may be thought implicit in the constitutional framework for the rule of law, as established by the Senior Courts Act 1981 and the Constitutional Reform Act 2005, that legal issues of general importance should be reviewable by the appellate courts; and that an ouster clause which purports to exclude that possibility cannot, consistently with the rule of law, be upheld. The only authority referred to by Lord Brown was Farley v Secretary of State for Work and Pensions (No 2) [2006] 1 WLR 1817. That case was concerned with a provision that, on an application by the Secretary of State to the magistrates court to enforce a maintenance assessment, the assessment itself was immune from challenge. The effectiveness of that ouster was upheld, but that depended on it being shown that there was another suitable means of challenging the assessment. The issue does not arise directly in the present context. If the decisions of the IPT are in principle susceptible to judicial review by the High Court, there is nothing in RIPA or any other statute to exclude onward appeal from the decisions of the High Court itself in the ordinary way. We have not heard detailed argument on this aspect, and I decline therefore to express a concluded view. In conclusion on the second issue, although it is not necessary to decide the point, I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law. Conclusion Accordingly, for the reasons given under the first issue, I would allow the appeal and hold, in answer to the preliminary issue, that the judicial review jurisdiction of the High Court is not excluded by section 67(8). Although that is the limit of the issue before the court, it will be clear from what I have said about the significance of the substantive legal issue, that this is a case where, if judicial review is available, permission should be granted. LORD LLOYD JONES: Two issues arise on this appeal. The first is the specific issue whether section 67(8) of the Regulation of Investigatory Powers Act 2000 (RIPA 2000) must be taken as purporting to oust the supervisory jurisdiction of the High Court to quash a judgment of the Investigatory Powers Tribunal (the IPT) for error of law. The second is the more general issue of whether, and, if so, in accordance with what principles, Parliament has the power by statute to oust the supervisory jurisdiction of the High Court to quash the decision of an inferior court or tribunal of limited statutory jurisdiction. On the first issue, I agree with the judgment of Lord Carnwath. In view of the importance of the issue, I add some brief comments of my own. The IPT was created by section 65(1) of RIPA 2000. Its jurisdiction and procedures are described in the judgment of Lord Carnwath and I simply draw attention to the following matters. Section 65(2) includes provision that it is the only appropriate tribunal for hearing proceedings falling within section 65(3) (which includes proceedings against any of the intelligence services) for actions incompatible with Convention rights under section 7 of the Human Rights Act 1998 (section 65(2)(a)). Section 67 provides that it shall be the duty of the Tribunal to hear and determine proceedings or to consider and determine complaints or references, brought before it under section 65(2). Section 67(2) provides that where the IPT hears any proceedings by virtue of section 65(2)(a), they shall apply the same principles for making their determination in those proceedings as would be applied by a court on an application for judicial review. At all material times the Investigatory Powers Tribunal Rules 2000 govern procedure before the IPT. It has the power to conduct proceedings in private and, in certain circumstances, in the absence of the complaining party. Rule 6(1) provides: The Tribunal shall carry out their functions in such a way as to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well being of the United Kingdom or the continued discharge of the functions of any of the intelligence services. Section 67(8) of RIPA 2000 provided at the relevant time: Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court. An earlier version of this provision was section 7(8) of the Interception of Communications Act 1985 (the 1985 Act) which provided in relation to the Tribunal which it created and which was a predecessor of the IPT: The decisions of the Tribunal (including any decisions as to their jurisdiction) shall not be subject to appeal or liable to be questioned in any court. Considered with the benefit of hindsight, it can be seen that Anisminic initiated a process of fundamental change in the approach of the courts to judicial review which was to lead to their abandoning the distinction between errors of law going to jurisdiction and those that did not. Whereas previously an error of law was reviewable only if it was a jurisdictional error or if it was an error on the face of the record, all errors of law were to become reviewable. However, as Professor Feldman has observed (Anisminic Ltd v Foreign Compensation Commission [1968]: In Perspective, in Juss and Sunkin (eds) Landmark Cases in Public Law (Oxford, 2017) pp 92 93), this was not immediately apparent from the speeches in Anisminic [1969] 2 AC 147 itself. On the contrary, they maintained the distinction between jurisdictional and non jurisdictional errors of law and the decision turns on a particularly broad notion that the tribunal did not have the power to take certain decisions. Thus, for example, Lord Reid (at p 171B F) distinguished between those errors of law or procedure by a tribunal which render a decision a nullity and other cases where its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law. Similarly, Lord Wilberforce (at p 210D E) considered that a tribunal may quite properly validly enter upon its task and in the course of carrying it out may make a decision which is invalid not merely erroneous and referred to a crucial distinction which the court has to make between doing something which is not in the tribunals area and doing something wrong within that area. By addressing whether the appellants had a successor in title and its nationality, the Foreign Compensation Commission had asked the wrong question and had taken account of irrelevant considerations with the result that its decision was a nullity. In the cases which followed Anisminic, however, the implications of the extremely broad approach to jurisdictional error of law taken in that case soon became apparent. If, as Anisminic suggests, addressing the wrong question renders the decision a nullity, it is possible to present almost any error of law as the result of such an error of approach. Different views on this subject were aired in the judgments in the Court of Appeal in Pearlman v Keepers and Governors of Harrow School [1979] QB 56. Lord Denning MR (at pp 69G 70E) considered that the resulting distinction between jurisdictional and non jurisdictional error was very fine, was being eroded and should be abandoned. In his view the correct approach was to hold that no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. Geoffrey Lane LJ, however, (at p 76C), assuming for this purpose that the judge had made an error of law in concluding that the works did not constitute structural alterations, considered this an error within jurisdiction. It could not be said to be a determination the judge was not entitled to make. Although the approach of Geoffrey Lane LJ was approved by the Judicial Committee of the Privy Council in South East Asia Fire Bricks Sdn Bhd v Non Metallic Mineral Products Manufacturing Employees Union [1981] AC 363 and by the House of Lords in In re Racal Communications Ltd [1981] AC 374, Lord Dennings approach was to prevail. In Racal, Lord Diplock acknowledged the true significance of Anisminic, observing that the break through made by Anisminic had been that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not had for practical purposes been abolished. Accordingly, any error of law that could be shown to have been made by administrative tribunals or authorities in the course of reaching a decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity (at p 383C D). Two years later, in OReilly v Mackman [1983] 2 AC 237 Lord Diplock referred in similar vein to: the landmark decision of this House in Anisminic Ltd v Foreign Compensation Commission , and particularly the leading speech of Lord Reid, which has liberated English public law from the fetters that the courts had theretofore imposed upon themselves so far as determinations of inferior courts and statutory tribunals were concerned, by drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction, and errors of law committed by them within their jurisdiction. The breakthrough that the Anisminic case made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, ie, one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported determination, not being a determination within the meaning of the empowering legislation, was accordingly a nullity. (at p 278D F) Thereafter, a series of decisions in the House of Lords established that there is a single category of errors of law, all of which render a decision ultra vires (R v Hull University Visitor, Ex p Page [1993] AC 682 per Lord Browne Wilkinson at p 701; Boddington v British Transport Police [1999] 2 AC 143, at p 158D E per Lord Irvine of Lairg LC; R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 per Lord Dyson JSC at para 66). In R (Cart) v Upper Tribunal (Public Law Project intervening) [2012] 1 AC 663 Baroness Hale considered (at para 18) that in Anisminic the House of Lords effectively removed the distinction between error of law and excess of jurisdiction. It is, however, necessary to consider whether the Anisminic principle applies equally to decision making by both administrative and judicial bodies. Anisminic itself had been concerned with a decision of the Foreign Compensation Commission (FCC). It is significant that in that case Lord Wilberforce considered that the functions of the FCC were predominantly judicial, with the power to decide questions of law and he observed that there was every ground, having regard to the number and the complexity of the cases with which it must deal, for giving a wide measure of finality to its decisions. Accordingly, there was no reason for giving a restrictive interpretation to section 4(4) which provided that its determinations were not to be called into question in any court of law (at p 207C D). Nevertheless, he came to his conclusion on the basis that, as he put it, the decision was made outside the permitted field. By contrast, in Racal Lord Diplock observed (at p 382G) that in Anisminic the House of Lords had been concerned with decisions of administrative tribunals. He explained that Anisminic proceeds on the presumption that where Parliament confers on an administrative tribunal or authority, as distinct from a court of law, power to decide particular questions defined by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been so defined (at pp 382H 383A). Furthermore, while Parliament could confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact and administrative policy, this requires clear words because there is a presumption that, where a decision making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so (at p 383B C). He then proceeded to contrast the position of a court of law. But there is no similar presumption that where a decision making power is conferred by statute upon a court of law, Parliament did not intend to confer upon it power to decide questions of law as well as questions of fact. Whether it did or not and, in the case of inferior courts, what limits are imposed on the kinds of questions of law they are empowered to decide, depends upon the construction of the statute unencumbered by any such presumption. In the case of inferior courts where the decision of the court is made final and conclusive by the statute, this may involve the survival of those subtle distinctions formerly drawn between errors of law which go to jurisdiction and errors of law which do not that did so much to confuse English administrative law before Anisminic ; but upon any application for judicial review of a decision of an inferior court in a matter which involves, as so many do, interrelated questions of law, fact and degree the superior court conducting the review should not be astute to hold that Parliament did not intend the inferior court to have jurisdiction to decide for itself the meaning of ordinary words used in the statute to define the question which it has to decide. (at p 383E G) In this way, Lord Diplock raised the possibility that the distinction between jurisdictional and non jurisdictional errors of law may survive in the case of decisions by judicial bodies and that, in the latter case, they may be immune from judicial review. (It should be noted that the decision that judicial review was not available in Racal is also explicable on Lord Diplocks alternative ground: because the body concerned was the High Court, not a court of limited jurisdiction, there was no room for error going to jurisdiction.) The decision of the House of Lords in R v Hull University Visitor, Ex p Page lends support to the approach followed by Lord Diplock in Racal. On the other hand, however, it should be noted that Lord Diplocks formulation of the Anisminic principle in OReilly v Mackman, two years after the decision in Racal, cited above, appears to be applicable without distinction to inferior courts and statutory tribunals. Furthermore, in R v Greater Manchester Coroner, Ex p Tal [1985] QB 67 Robert Goff LJ, delivering the judgment of the Divisional Court concluded (at p 81G 83B) that Lord Diplock in Racal had not intended to say that the Anisminic principle did not extend to inferior courts as well as tribunals. Goff LJ considered that, historically, inferior courts had always been subject to what was now called judicial review, although originally only in cases of error going to the jurisdiction and error of law within the jurisdiction which appeared on the face of the record: Since Anisminic, the requirement that an error of law within the jurisdiction must appear on the face of the record is now obsolete. It follows that today, in principle, inferior courts as well as tribunals are amenable to the supervisory jurisdiction of the High Court under sections 29 and 31 of the Supreme Court Act 1981. (at p 82D E) Referring to Lord Diplocks statement of the law in OReilly v Mackman, he concluded that inferior courts as opposed to tribunals are not excluded from the Anisminic principle. There is, moreover, no trace of such a distinction in the Supreme Courts consideration of the Upper Tribunal in Cart where there is no suggestion that courts of limited jurisdiction might have power to err as to law within their jurisdiction. This leads Professor Forsyth to observe: This suggests that all courts except presumably the High Court as a court of unlimited jurisdiction stray outside their jurisdiction when they make errors of law and are, in principle, subject to judicial review, save that the Supreme Court will determine, as it did in Cart, the actual extent of judicial review allowed. (Wade and Forsyth, Administrative Law, 11th ed, (Oxford: 2014), p 223.) The distinction between administrative tribunals and courts of law suggested by Lord Diplock in Racal is likely to be an arid one in the present context. Quite apart from the difficulties which are likely to be encountered in drawing such a distinction in individual cases, what matters here is whether a body is charged with performing a judicial function. If it is, then, as Laws LJ observed in the Divisional Court in Cart (at para 68), the true contrast is between the High Court on the one hand and courts of limited jurisdiction on the other. In the present case the IPT is undoubtedly charged with performing a judicial function. The issue for decision in this case must therefore be approached on the basis that the statute makes provision as to the status of decisions of a judicial body. I wholeheartedly endorse the exposition by Laws LJ in the Divisional Court in Cart (at paras 36 40) of the principle that it is a necessary corollary of the sovereignty of Parliament that there should exist an authoritative and independent body which can interpret and mediate legislation made by Parliament: The interpreters role cannot be filled by the legislature or the executive: for in that case they or either of them would be judge in their own cause, with the ills of arbitrary government which that would entail. Nor, generally can the interpreter be constituted by the public body which has to administer the relevant law: for in that case the decision makers would write their own laws. The interpreter must be impartial, independent both of the legislature and of the persons affected by the texts application, and authoritative accepted as the last word, subject only to any appeal. Only a court can fulfil the role. (at para 37) He goes on to explain that this is not a denial of legislative sovereignty but an affirmation and a condition of it. The paradigm for such an authoritative source is the High Court but it is not the only possible source: To offer the same guarantee of properly mediated law, any alternative source must amount to an alter ego of the High Court; (at para 39) and he identifies as examples the Courts Martial Appeal Court and the Restrictive Practices Court. In the same way Parliament may modify the procedures by which statute law is mediated, inter alia by the creation of new judicial bodies. It seems to me that central to the first issue in the present appeal is whether it was the intention of Parliament to do precisely this in the case of the IPT. I accept that in the case of a judicial body, by contrast with a purely administrative body, there is no presumption that Parliament did not intend to confer a power to decide questions of law as well as questions of fact. (See Racal per Lord Diplock at p 383E.) It is, rather, a matter of the interpretation of the legislation concerned in each case, unencumbered by such a presumption. Nevertheless, if the jurisdiction of the High Court is to be displaced or varied in some way, this is a matter of great importance and clear words will be required to achieve that result. Notwithstanding the disapproval by the House of Lords in Racal of the decision of the majority in the Court of Appeal in Pearlman, the following observation of Lord Denning MR (at p 70D) remains valid as a general proposition: The High Court has, and should have, jurisdiction to control the proceedings of inferior courts and tribunals by way of judicial review. When they go wrong in law, the High Court should have power to put them right. Not only in the instant case to do justice to the complainant. But also so as to secure that all courts and tribunals, when faced with the same point of law should decide it in the same way. This jurisdiction cannot be varied by implication. Once again, I turn to the judgment of Laws LJ in the Divisional Court in Cart where it was submitted that the judicial review jurisdiction of the High Court was impliedly excluded by provisions designating the Upper Tribunal and Special Immigration Appeals Commission respectively a superior court of record. 31. In my judgment the proposition that judicial review is excluded by sections 1(3) and 3(5) is a constitutional solecism. The supervisory jurisdiction (to the extent that it can be ousted at all: itself a question to which I will return) can only be ousted by the most clear and explicit words: see per Denning LJ in R v Medical Appeal Tribunal, Ex p Gilmore [1957] 1 QB 574, 583. The learning discloses a litany of failed attempts to exclude judicial review. In R (Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 475, after citing Lord Dennings dictum in Ex p Gilmore, Lord Phillips of Worth Matravers MR giving the judgment of the court continued, at para 44: All the authorities to which we have been referred indicate that this remains true today. The weight of authority makes it impossible to accept that the jurisdiction to subject a decision to judicial review can be removed by statutory implication. I need not multiply citations. A conspicuous case is the 32. seminal authority of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 which abolished (for most purposes) the distinction between errors of law within and without jurisdiction, ushering in the modern constitutional rule that any error of law by a public decision maker is beyond his jurisdiction. Older instances include Cardiffe Bridge (1700) 1 Salk 146; Berkley v Bragge (1754) 1 Keny 80; R v Cheltenham Comrs (1841) 1 QB 467 and R v Bradlaugh, Ex p (1878) 3 QBD 509. More recent instances include R v Secretary of State for the Home Department, Ex p Al Fayed (No 1) [1998] 1 WLR 763, 771B 773C. Against this background it cannot be supposed that judicial review may be ousted by an implication, far less one contained in a formula which amounts in effect to a deeming provision. But that is the sum of the defendants case. It has been suggested, on the basis of Racal, that while section 67(8) does not exclude judicial review on other grounds such as a lack of subject matter jurisdiction or want of natural justice, that section excludes the jurisdiction of the High Court to entertain a challenge to the Tribunals decisions on the merits ie it excludes judicial review on grounds which would be tantamount to an appeal on the merits. It seems to me, however, that this places more weight on Racal than that authority can bear. It provides an insecure foundation because, as is demonstrated by the later decisions referred to above, at the date of Racal the legal principles in play were still evolving. As a result, it is not appropriate to allow the reasoning of Lord Diplock in Racal to influence the issue of interpretation in the present case. Turning to the issue of interpretation of section 67(8), I accept that the role of the IPT is judicial. As a result, there is no presumption in favour of restricting its field or of restricting its power to decide issues of law. However, if the jurisdiction of the High Court can be excluded at all, it requires the most clear and explicit words. As Lord Reid observed in Anisminic (at p 170C D): It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court. Subject to one point, the wording of section 67(8) closely resembles that of section 4(4) of the Foreign Compensation Act 1950 which was the subject of Anisminic: The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law. There, the House of Lords held that determination in section 4(4) did not include everything which purported to be a determination, but which was not in fact a determination because the Commission had misconstrued the statutory provision defining its jurisdiction. Reference has been made above to the way in which the law subsequently developed so as to remove the distinction between jurisdictional and non jurisdictional errors of law. By 1985, when section 7(8) of the Interception of Communications Act 1985 was enacted, it would have been entirely clear from the judgment of Lord Diplock in OReilly v Mackman that a determination founded on an error of law, whether it would previously have been characterised as jurisdictional or not, was not to be regarded as a determination at all. Having regard to this ground breaking development at common law, if it had been the intention of Parliament to exclude the jurisdiction of the High Court in respect of such decisions, it could be expected to have employed language which excluded jurisdiction not only in respect of determinations, awards and other decisions of the Tribunal but also in respect of purported determinations, awards and other decisions. It is a striking feature of section 67(8) and its predecessor that it failed to do so. The one point of distinction between section 4(4) of the Foreign Compensation Act 1950, on the one hand, and section 67(8) on the other, is the inclusion in the latter of the words in parenthesis (including decisions as to whether they have jurisdiction). To my mind, however, these words are not apt to extend the exclusion of the jurisdiction of the High Court to what purport to be decisions but in law are not to be so regarded. While it is now established that a decision based on an error of law is not to be regarded as a decision for this purpose, this notion does not easily fit within the description of a decision as to whether it has jurisdiction. If the IPT takes a decision which is founded on an error of law, it is not in any real sense taking a decision as to whether it has jurisdiction. If the intention was to exclude the jurisdiction of the High Court from purported decisions founded on an error of law, it was necessary to say so in clear terms. Clause 11 of the Asylum and Immigration (Treatment of Claimants etc) Bill 2003, to which Lord Carnwath refers at para 101 of his judgment, is a more recent example of an attempt to achieve the required degree of clarity if such a provision is to be effective. That provision, which was not enacted, can at least be said to have squarely confronted what it sought to achieve as required by the principle of legality. To my mind, section 67(8) does not satisfy this requirement. It may be that the explanation of the words in parenthesis is, as submitted by Ms Dinah Rose QC on behalf of the appellant, that they were intended to refer to determinations of precedent fact, a matter which was highly topical in 1985 following the decision of the House of Lords in R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74. On this basis the words in parenthesis in section 67(8) could be considered to have the effect that decisions of the IPT on issues of precedent fact going to its jurisdiction, but not issues of law, would be beyond the scope of review. However, it is not necessary to come to a concluded view on this point. For present purposes it is sufficient that the words employed in section 67(8) do not make provision with sufficient clarity for the exclusion of the review jurisdiction of the High Court in respect of errors of law. In coming to this conclusion, I have taken full account of the various features of the statutory scheme to which Sir James Eadie QC has drawn attention in support of the respondents case. He is correct in his submission that there is here a special allocation of judicial responsibility to the IPT in the national security context (section 67(3)(a)). Similarly, the IPTs rules and procedures create a bespoke system particularly well suited to the adjudication of controversial issues in the context of national security and directed to protecting the public interest. Furthermore, there can be no doubt as to the outstanding judicial quality of the members of the IPT. However, the exclusion of the review jurisdiction of the High Court in cases of error of law, if achievable at all, would require a provision of much greater clarity making abundantly clear that that was what it sought to achieve. For these reasons, I would allow the appeal against the decision of the Court of Appeal on the first issue. It is, accordingly, unnecessary to express any view on the second issue. LORD SUMPTION: (dissenting) (with whom Lord Reed agrees) The Investigatory Powers Tribunal is a specialist tribunal established in 2000 under the Regulation of Investigatory Powers Act 2000. Its principal functions are to determine proceedings against the intelligence services in respect of breaches of human rights and complaints about the interception of communications, in a way which enables these claims to be examined judicially without the risk of disclosure of secret matters. The Tribunal effectively replaced the Interception of Communications Act Tribunal, the Security Services Act Tribunal and the Intelligence Services Act Tribunal, which had been established under earlier enactments, as well as taking over the operation of the complaints provisions of Part III of the Police Act 1997. The appellant, Privacy International, complained that Government Communications Headquarters (GCHQ), one of the intelligence services, had carried out unlawful computer hacking. Computer hacking by the intelligence services requires the authority of a warrant of the Secretary of State under section 5 of the Intelligence Services Act 1994. The relevant activities of GCHQ were said to be unlawful on the ground that the warrants authorising them included what has been called (not entirely accurately) thematic warrants. A thematic warrant means a warrant authorising a class of activity in respect of a class of property. The appellants case before the Tribunal was that section 5(2) of the Intelligence Services Act 1994 empowered the Secretary of State to issue a warrant authorising specified acts in respect of specified property, and did not extend to thematic warrants. Alternatively, they submitted that if the Act did authorise such warrants, it was in that respect incompatible with articles 8 and 10 of the Human Rights Convention. The Tribunal held an open hearing to determine a number of preliminary issues of law. In a judgment issued on 12 February 2016, it held that thematic warrants were lawful. The appellant began proceedings for judicial review, seeking an order quashing that decision on the ground that the Tribunals construction of section 5(2) of the Act of 1994 was wrong in law. Section 67(8) and (9) of the Regulation of Investigatory Powers Act 2000 provide: (8) Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court. (9) It shall be the duty of the Secretary of State to secure that there is at all times an order under subsection (8) in force allowing for an appeal to a court against any exercise by the Tribunal of their jurisdiction under section 65(2)(c) or (d). The Secretary of State has not exercised his power to make exceptions from subsection (8) and the duty referred to in subsection (9) has not arisen because section 65(2)(c) and (d) has not been brought into force. The present position, therefore, is that subsection (8) stands unqualified. Section 242 of the Investigatory Powers Act 2016 has changed that by amending the Act of 2000 so as to introduce a new section 67A, allowing for appeals to the Court of Appeal in England and Wales or the Court of Session in Scotland. That section came into force on 31 December 2018, but will not apply to the Tribunals determination in these proceedings. The question at issue on this appeal is whether an application for judicial review on the ground that the Tribunal has decided an issue on a wrong view of the law, is available having regard to section 67(8) of the Act. The Divisional Court and the Court of Appeal have both held that it is not. I agree with them. I shall need to examine the law in some detail, but my reason can be shortly summarised. The effect of section 67(8) is simply to exclude the jurisdiction of the High Court to entertain a challenge to the Tribunals decisions on the merits. In other words, it excludes judicial review on grounds which would be tantamount to an appeal. The Investigatory Powers Tribunal acts as a court. Its function is to exercise powers of judicial review over (among others) the intelligence services, which would otherwise have been exercisable by the High Court, and to do so on the same basis as the High Court. The purpose of judicial review is to maintain the rule of law. But the rule of law is sufficiently vindicated by the judicial character of the Tribunal. It does not require a right of appeal from the decisions of a judicial body of this kind. For this reason section 67(8) is not an ouster of any jurisdiction which constitutional principle requires the High Court to have. Ouster clauses: origins Historically, the legal basis of judicial review was the concept of excess of jurisdiction. Bodies deriving their powers from statute or grant under the royal prerogative were amenable to certiorari in the Kings Bench if they exceeded the formal or implicit limits of the grant. Strictly speaking, excess of jurisdiction was confined to want of legal competence. But the limitations of this approach led the courts in some cases artificially to expand the concept of jurisdiction to cover varieties of public law wrong that did not readily fall within established categories. In particular, it was extended to broad categories of unreasonable conduct which the grant of the relevant power was assumed not to have authorised without specific words: for example, bad faith or disregard of the rules of natural justice. The artifice became unnecessary after the decision of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, in which the majority of the Appellate Committee put the grounds of judicial review on a broader basis and held that it extended generally to the exercise of justiciable public powers, including those which were not the subject of any statutory or other grant. But the historical roots of English public law have continued to influence its development, notably in the area of ouster clauses. It has been recognised since the 17th century that a statute can remove the supervisory jurisdiction of the courts over inferior tribunals and administrative bodies only by clear words. In Smith, Lluellyn v Comrs of Sewers (1669) 1 Mod 44, the Commissioners purported to exercise a penal power to impose fines which they did not have. Sir John Kelynge, Chief Justice of Kings Bench, declined to treat a statutory provision that orders of the Commissioners should be valid unless revoked by the Commissioners themselves as excluding the jurisdiction of the courts to issue certiorari. You cannot oust the jurisdiction of this court without particular words in Acts of Parliament, he said; there is no jurisdiction that is uncontrollable by this court. Lord Mansfield made the same point, nearly a century later, in R v Moreley (1760) 2 Bur 1041, when he said that the jurisdiction of this court is not to be taken away unless there be express words to take it away. In the course of the 19th century, this proposition was applied so as to treat a statutory exclusion of the High Courts power to issue certiorari to inferior tribunals as inapplicable to cases in which the tribunal had purported to exercise a power which it did not have, or a condition precedent to the existence of a power was absent, or the court was not properly constituted. In keeping with the jurisdictional approach to judicial review, these were all cases in which the court lacked legal competence, with the result that its acts were nullities. Cases of this kind give rise to a conceptual problem that goes beyond mere construction of the statute. Where a statute confers a power on an administrative or judicial body to do some class of acts, and ousts the jurisdiction of the High Court to review its acts, the threshold question is always whether it is a body or an act to which the statute applies. If not, then the ouster clause can have no application to it. As Cockburn CJ observed in Ex p Bradlaugh (1878) 3 QBD 509, 513, the section does not apply where the application for the certiorari is on the ground that the inferior tribunal has exceeded the limits of its jurisdiction. Otherwise, a body exercising limited statutory powers would be at liberty to determine what its limits were. As Mellor J pointed out in the same case, a metropolitan magistrate could make any order he pleased without question. If a superior court is precluded from deciding whether the statute applies to the relevant body or act, it would follow, as Lord Justice Clerk Boyle pointed out in the early Scottish case of Campbell v Young (1835) 13 S 535, that because a party says that he acts under the statute, he is to do as he pleases. His description of that suggestion as monstrous would be adopted by any modern public lawyer. Implicit in this approach was a distinction between excesses of jurisdiction ascertained at the point where a public body embarks on the relevant function, and errors of fact or law committed in the course exercising it; and a related distinction between errors of law or fact going to the decision makers legal competence, and errors within competence. Lord Coleridge CJ expressed the orthodoxy of his time when he observed in R v Justices of the Central Criminal Court (1886) 17 QBD 598, 602, that where a Court has jurisdiction to entertain an application, it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in point of law or of fact. The only power to quash a decision within jurisdiction was the ancient and sui generis power of the Kings Bench to quash for error of law on the face of the record in a case where the error was disclosed in decision makers reasons, if he gave any. Anisminic v Foreign Compensation Commission [1969] 2 AC 147 The Foreign Compensation Commission was a statutory body created by the Foreign Compensation Act 1950. The Act empowered Her Majesty in Council to make provision for the Commission to distribute money received by the Crown under the royal prerogative from foreign governments under international law, by way of compensation for losses suffered by British subjects in the territory of those governments. Section 4(4) of the Act provided: The determination by the commission of any application made to them under this Act shall not be called in question in any court of law. An Order in Council provided for the Commission to distribute compensation payments made by the Egyptian government after the Suez crisis. It was held to have misconstrued the provisions of the order governing Anisminics eligibility, and thus erroneously treated Anisminics claim as ineligible. The decision is a landmark in the development of English public law, for three reasons. First, it reaffirmed the principle, which had been well established since the 17th century, that a statutory ouster clause such as section 4(4) of the Foreign Compensation Act 1950, if sufficiently clearly expressed, was effective to oust judicial review of any decision that was not a nullity. But it was not effective to prevent the courts from quashing a decision which was in law a nullity, ie one which, in Lord Reids words, does not exist as a determination, unless the clause was framed in terms which were incapable of meaning anything else. Secondly, it established that a tribunal acts without jurisdiction not only where it lacks legal competence to enter upon the inquiry in question at all, but also where although the tribunal had jurisdiction to enter upon the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity: per Lord Reid at p 171. Thirdly, the acts or omissions which served to make the decision a nullity include errors of law if they led the tribunal to conduct an enquiry which differed from the one that it was empowered to conduct, for example by making its decision dependent on the answer to a legally irrelevant question. This was what the Commission was found to have done in Anisminics case. It had dismissed Anisminics claim because it considered that those who claimed to have lost their property in Egypt as a result of acts of the Egyptian state during the Suez crisis had to show that not only they but their successors in title were British. Since Anisminic had been forced to sell their Egyptian assets at an undervalue to an Egyptian company, its claim had been rejected. In the view of the Appellate Committee, the status of successors in title was, on the true construction of the Order in Council, irrelevant. Lord Reid, at p 171, gave some illustrations of errors on the part of the tribunal which, without going to legal competence in its strict sense, would nevertheless invalidate the decision: It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word jurisdiction has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. I understand that some confusion has been caused by my having said in R v Governor of Brixton Prison, Ex p Armah [1968] AC 192, 234 that if a tribunal has jurisdiction to go right it has jurisdiction to go wrong. So it has, if one uses jurisdiction in the narrow original sense. If it is entitled to enter onthe inquiry and does not do any of those things which I have mentioned in the course of the proceedings, then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law The question what had been remitted to the Commission by Parliament depended on the construction of its enabling Act and of Orders in Council made pursuant to it. So, turning to Anisminics complaint, Lord Reid concluded, at p 174: If, on a true construction of the Order, a claimant who is an original owner does not have to prove anything about successors in title, then the commission made an inquiry which the Order did not empower them to make, and they based their decision on a matter which they had no right to take into account. If one uses the word jurisdiction in its wider sense, they went beyond their jurisdiction in considering this matter. It cannot be for the commission to determine the limits of its powers if they reach a wrong conclusion as to the width of their powers, the court must be able to correct that not because the tribunal has made an error of law, but because as a result of making an error of law they have dealt with and based their decision on a matter with which, on a true construction of their powers, they had no right to deal. If they base their decision on some matter which is not prescribed for their adjudication, they are doing something which they have no right to do and, if the view which I expressed earlier is right, their decision is a nullity. Lord Morris of Borth y Gest was at one with his colleagues on the test to be applied, although he dissented on its application to the facts. At p 182, he expressed it in this way: In all cases similar to the present one it becomes necessary, therefore, to ascertain what was the question submitted for the determination of a tribunal. What were its terms of reference? What was its remit? What were the questions left to it or sent to it for its decision? What were the limits of its duties and Lord Pearce made the same distinction between errors of law which led the tribunal to address questions which it was not within their powers to determine, and other errors. At p 195, he observed: powers? Were there any conditions precedent which had to be satisfied before its functions began? If there were, was it or was it not left to the tribunal itself to decide whether or not the conditions precedent were satisfied? If Parliament has enacted that provided a certain situation exists then a tribunal may have certain powers, it is clear that the tribunal will not have those powers unless the situation exists. The decided cases illustrate the infinite variety of the situations which may exist and the variations of statutory wording which have called for consideration. Most of the cases depend, therefore, upon an examination of their own particular facts and of particular sets of words. It is, however, abundantly clear that questions of law as well as of fact can be remitted for the determination of a tribunal. Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage while engaged on a proper inquiry the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry whichParliament did direct. Any of these things would cause its purported decision to be a nullity The courts have, however, always been careful to distinguish their intervention whether on excess of jurisdiction or error of law from an appellate function. If the tribunal is intended on a true construction of the Act to inquire into and finally decide questions within a certain area, the courts supervisory duty is to see that it makes the authorised inquiry according to natural justice and arrives at a decision whether right or wrong. They will intervene if the tribunal asks itself the wrong questions (that is, questions other than those which Parliament directed it to ask itself). But if it directs itself to the right inquiry, asking the right questions, they will not intervene merely because it has or may have come to the wrong answer, provided that this is an answer that lies within its jurisdiction. Common to all the speeches in Anisminic was the view that the extent to which the decision makers errors amount to an excess of his jurisdiction depended on the breadth of the power committed to it by the statute as a matter of construction. Lord Wilberforce agreed but proposed, at p 207, a more nuanced analysis of the effect of ouster clauses, which eschewed the language of jurisdiction and nullity with its binary test, and is perhaps more in keeping with the modern laws aversion to rigid categorisation: It is now well established that specialised tribunals may, depending on their nature and on the subject matter, have the power to decide questions of law. and the position may be reached, as the result of statutory provision, that even if they make what the courts might regard as decisions wrong in law, these are to stand. The Foreign Compensation Commission is certainly within this category; its functions are predominantly judicial; it is a permanent body, composed of lawyers, with a learned chairman, and there is every ground having regard to the number and the complexity of the cases with which it must deal, for giving a wide measure of finality to its decisions. There is no reason for giving a restrictive interpretation to section 4(4) which provides that its determinations are not to be called in question in courts of law. In every case, whatever the character of a tribunal, however wide the range of questions remitted to it, however great the permissible margin of mistake, the essential point remains that the tribunal has a derived authority, derived, that is, from statute: at some point, and to be found from a consideration of the legislation, the field within which it operates is marked out and limited. There is always an area, narrow or wide, which is the tribunals area; a residual area, wide or narrow, in which the legislature has previously expressed its will and into which the tribunal may not enter. Equally, though this is not something that arises in the present case, there are certain fundamental assumptions, which without explicit restatement in every case, necessarily underlie the remission of power to decide such as (I do not attempt more than a general reference, since the strength and shade of these matters will depend upon the nature of the tribunal and the kind of question it has to decide) the requirement that a decision must be made in accordance with principles of natural justice and good faith. The principle that failure to fulfil these assumptions may be equivalent to a departure from the remitted area must be taken to follow from the decision of this House in Ridge v Baldwin [1964] AC 40. Although, in theory perhaps, it may be possible for Parliament to set up a tribunal which has full and autonomous powers to fix its own area of operation, that has, so far, not been done in this country. The question what is the tribunals proper area is one which it has always been permissible to ask and to answer, and it must follow that examination of its extent is not precluded by a clause conferring conclusiveness, finality, or unquestionability upon its decisions. These clauses in their nature can only relate to decisions given within the field of operation entrusted to the tribunal. They may, according to the width and emphasis of their formulation, help to ascertain the extent of that field, to narrow it or to enlarge it, but unless one is to deny the statutory origin of the tribunal and of its powers, they cannot preclude examination of that extent. It is sometimes said, the argument was presented in these terms, that the preclusive clause does not operate on decisions outside the permitted field because they are a nullity. There are dangers in the use of this word if it draws with it the difficult distinction between what is void and what is voidable, and I certainly do not wish to be taken to recognise that this distinction exists or to analyse it if it does. But it may be convenient so long as it is used to describe a decision made outside the permitted field, in other words, as a word of description rather than as in itself a touchstone. He added, at pp 209 210: The extent of the interpretatory power conferred upon the tribunal may sometimes be difficult to ascertain and argument may be possible whether this or that question of construction has been left to the tribunal, that is within the tribunals field, or whether, because it pertains to the delimitation of the tribunals area by the legislature, it is reserved for decision by the courts. Sometimes, it will be possible to form a conclusion from the form and subject matter of the legislation. I think that we have reached a stage in our administrative law when we can view this question quite objectively, without any necessary predisposition towards one that questions of law or questions of construction, are necessarily for the courts. In the kind of case I have mentioned there is no need to make this assumption. In another type of case it may be apparent that Parliament is itself directly and closely concerned with the definition and delimitation of certain matters of comparative detail and has marked by its language the intention that these shall accurately be observed. Lord Wilberforce considered that the Commissions error of law lay outside the permitted field assigned to it by Parliament. The reason, in summary, was that the Act in terms required the Commission to act in accordance with rules governing limitations laid down in the Order in Council regarding the definition of proper claimants and the matters to be established in support of their claims: see p 211F H. Implicit in the decision of the House in Anisminic was that invalidity for error of law no longer depended on the error being patent on the face of the record. But it will be apparent from all of the speeches that the Appellate Committee did not reject in principle the distinction between errors of law going to jurisdiction and errors of law within jurisdiction. Instead, they broadened the concept of jurisdiction to embrace not just legal competence but also legal relevance, ie addressing the right questions. All of them recognised that there would be some errors of law which did not go to jurisdiction even in this enlarged sense, and which would not therefore invalidate the decision. However, dicta of high authority in subsequent cases have consistently interpreted the decision as authority for an approach to errors of law which is both broader and more absolute than the speeches themselves warrant. In particular, they suggested that all errors of law were to be regarded as beyond jurisdiction. Thus in OReilly v Mackman [1983] 2 AC 237, 278, Lord Diplock regarded Anisminic as authority for the proposition that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, ie one into which it was not empowered to inquire and so had no jurisdiction to determine. In R v Hull University Visitor, Ex p Page [1993] AC 682, 701 702, Lord Browne Wilkinson, endorsing this summary, took it that thenceforth, it was to be taken that Parliament had only conferred the decision making power on the basis that it was to be exercised on the correct legal basis: a misdirection in law in making the decision therefore rendered the decision ultra vires. In R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2012] 1 AC 245, para 66, Lord Dyson considered that it established that there was a single category of errors of law, all of which rendered a decision ultra vires. Finally, in R (Cart) v Upper Tribunal [2012] 1 AC 663, para 18, Baroness Hale observed that in Anisminic the House of Lords effectively removed the distinction between error of law and excess of jurisdiction. Although none of these statements were part of the ratio of judgments in which they appeared, they have been followed by the courts for many years and have been assumed to state the modern law by Parliamentary draftsmen including (as I shall show) the draftsman of the Regulation of Investigatory Powers Act 2000. In my opinion, it is now too late to revert to the subtler distinctions in the speeches in Anisminic, even if it were thought desirable to do so. However, the speeches in Anisminic remain authority for the proposition, which may be thought self evident, that the extent of a tribunals jurisdiction depends on the construction of its enabling Act or, in Lord Wilberforces words, on the breadth of its permitted field. Errors of law by judicial bodies The categorisation of errors of law as excesses of jurisdiction is the result of the unsystematic way in which English public law has developed over the past three centuries. Its effect is to create what is nominally a power of review, but is in substance a right of appeal on points of law going to the merits. The implications of this are very different, according as the decision under review was made by an administrative or executive body on the one hand or a judicial one on the other. A right of access to a court or similar judicial body to review the lawfulness of administrative or executive acts is an essential part of the rule of law. But the rule of law does not require a right of appeal from such a body or a right to call for a review of its decisions. In England, appellate jurisdiction is wholly statutory, and may be absent, restricted or wholly excluded. This is well established as a matter of both law and legislative practice: see R (A) v Director of Establishments of the Security Service [2010] 2 AC 1, para 24 (Lord Brown of Eaton under Heywood). It has also been persistently recognised in the case law of the European Court of Human Rights: see Bochan v Ukraine (No 2) (2015) 61 EHRR 14, paras 44 45. For this reason the development since Anisminic of a legal principle which made excesses of jurisdiction of all errors of law has been accompanied by a recognition that the reasons for strictly construing ouster clauses may be more or less powerful, depending on the nature of the decision and the decision maker. In particular, the principle may have to be adapted to the decisions of judicial bodies. This is because a judicial body, depending on its status and functions, is more likely to have a wider permitted field, extending to the conclusive resolution of issues of law (or indeed fact) and including an unrestricted interpretative power. The analysis starts with the speech of Lord Wilberforce in Anisminic itself, from which I have already quoted. Lord Wilberforce regarded the Foreign Compensation Commission as a body whose functions were predominantly judicial (p 207C), from which it followed that there was no reason to give a restricted interpretation to section 4(4) of the Foreign Compensation Act 1950. That, however, was not the end of the matter. In his view, the effectiveness of the ouster clause depended on the extent of the interpretatory power which, as a matter of construction, Parliament must be taken to have conferred on the decision maker. Only errors of law lying outside what he called the permitted field were reviewable in the face of an ouster clause such as section 4(4): see pp 208A B, 209F G, 210C E. As I have pointed out, Lord Wilberforces view that the Foreign Compensation Commissions error of law lay outside the permitted field was based on a careful analysis of the interpretative power conferred on it by its enabling Act, which was limited to applying the Order in Council according to its true legal meaning. In South East Asia Fire Bricks Sdn Bhd v Non Metallic Mineral Products Manufacturing Employees Union [1981] AC 363, the Privy Council had to consider whether the decision of the Industrial Court of Malaysia, a judicial body, could be reviewed in the High Court on the ground of error of law on the face of the record. The statute from which the Industrial Court derived its jurisdiction provided that its awards shall be final and conclusive, and no award shall be challenged, appealed against, reviewed, quashed or called in question in any court of law. The Board held the judicial review did not lie. Lord Fraser of Tullybelton, delivering the advice of the Privy Council, distinguished Anisminic, at p 370, on the ground that if the inferior tribunal has merely made an error of law which does not affect its jurisdiction, and if its decision is not a nullity for some reason such as breach of the rules of natural justice, then the ouster will be effective. The Board did not expressly address the distinction between judicial and other decision makers, but since the judicial character of the Industrial Court was the only distinction between the case before them and Anisminic, that must have been the basis of the decision. Some light is thrown on this question by the speeches in In re Racal Communications [1981] AC 374, which addressed this very question, and were delivered a week later by an Appellate Committee comprising two of the same law lords, Lord Edmund Davies and Lord Keith. In re Racal Communications arose out of an application to the High Court under section 441 of the Companies Act 1948 to inspect the books of a company. Section 441(3) provided that the decision of the High Court on such an application shall not be appealable. The Court of Appeal had received the appeal on the ground that the ouster of its appellate jurisdiction was ineffective, relying on the decision in Anisminic. The House of Lords held that the Court of Appeal had been wrong to receive it in the face of the statutory exclusion of appeals. The leading speech was delivered by Lord Diplock. Having concluded that the House was bound by the statutory exclusion of appeals, he then turned to: the question of the availability of judicial review instead of appeal as a means of correcting mistakes of law made by a court of law as distinct from an administrative tribunal or other administrative authority, however described, when it is exercising quasi judicial functions. It is important to appreciate that Lord Diplock gave two independent reasons for holding that judicial review was not available. The first and principal reason was that the presumption against a statutory ouster of judicial review did not apply to the decisions of a judicial body. The second was that it could not in any event apply to decisions of the High Court. It is with the first reason that we are presently concerned. Unlike Lord Wilberforce, who had regarded the Foreign Compensation Commission as a body exercising judicial functions, Lord Diplock considered it to be an administrative tribunal. He distinguished (pp 382 383) between the two on the basis that the presumption against the ouster of judicial review depended on the scope of the decision makers functions, as a matter of construction of its enabling statute. The essential question was therefore the same as the one posed by Lord Wilberforce in Anisminic. Has the enabling Act conferred on the tribunal in question a general power to decide the questions in issue, or is its power limited to answering the questions defined in the Act? This did not mean that Anisminic had no application to the decisions of judicial bodies, only that the question of construction was not burdened by the same presumptions in their case. The law, he said: proceeds on the presumption that where Parliament confers on an administrative tribunal or authority, as distinct from a court of law, power to decide particular questions defined by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been so defined. By comparison, there is no similar presumption that where a decision making power is conferred by statute upon a court of law, Parliament did not intend to confer upon it power to decide questions of law as well as questions of fact. Whether it did or not and, in the case of inferior courts, what limits are imposed on the kinds of questions of law they are empowered to decide, depends upon the construction of the statute unencumbered by any such presumption. In the case of inferior courts where the decision of the court is made final and conclusive by the statute, this may involve the survival of those subtle distinctions formerly drawn between errors of law which go to jurisdiction and errors of law which do not, that did so much to confuse English administrative law before Anisminic [1969] 2 AC 147; but upon any application for judicial review of a decision of an inferior court in a matter which involves, as so many do, interrelated questions of law fact and degree the superior court conducting the review should not be astute to hold that Parliament did not intend the inferior court to have jurisdiction to decide for itself the meaning of ordinary words used in the statute to define the question which it has to decide. Lord Diplocks reasoning on his first point does not depend on the fact that the decision sought to be reviewed was a decision of the High Court, and thus of a court of coordinate jurisdiction. Nor can it be brushed aside as depending on a distinction between a court and a judicial body of some other kind. The relevant distinction was between a judicial and an administrative body, Parliament being in principle more likely to confer on a judicial body a power to decide wider questions of law. Of particular interest in this context are the grounds on which the Appellate Committee overruled the decision of the Court of Appeal in Pearlman v Keepers and Governors of Harrow School [1979] 1 QB 56. In that case, the Court of Appeal, by a majority, had quashed a decision of an inferior court, namely the county court, on an application under the Housing Act 1974 to adjust the rateable value of tenanted premises, holding that the judge had erroneously construed the adjustment provisions of the Act. It had held, citing Anisminic in support, that a provision that the county courts decision should be final and conclusive was ineffective to oust judicial review. Lord Diplock (p 384) approved the dissenting judgment of Geoffrey Lane LJ, in which he had said (p 76): I am, I fear, unable to see how that determination, assuming it to be an erroneous determination, can properly be said to be a determination which he was not entitled to make. The judge is considering the words in the Schedule which he ought to consider. He is not embarking on some unauthorised or extraneous or irrelevant exercise. All he has done is to come to what appears to this court to be a wrong conclusion upon a difficult question. It seems to me that, if this judge is acting outside his jurisdiction, so then is every judge who comes to a wrong decision on a point of law. Accordingly, I take the view that no form of certiorari is available to the tenant. This analysis represents the majority view of the Appellate Committee. Lord Edmund Davies appears to have agreed with Lord Diplock on both of his grounds. Critically for present purposes, he agreed that Pearlman was wrongly decided and expressly endorsed the dissenting judgment of Geoffrey Lane LJ, from which I have cited. Lord Keith agreed generally with Lord Diplock. Only Lord Salmon and Lord Scarman may be thought to have decided the matter on narrower grounds. Lord Salmon decided it solely on the second of Lord Diplocks two grounds, and Lord Scarman decided it only on the question whether the decision was appealable without considering the availability of judicial review. I decline to accept that these judgments can be explained away on the ground that a tribunal is to be distinguished from a court. The Appellate Committee was concerned with a court, but the distinctive feature of a court which made its observations pertinent was that it was a judicial body. Almost all tribunals are obliged in some respects to act judicially, for example in acting fairly and without bias. But not all tribunals are judicial bodies. What matters is not the nomenclature of the decision maker but its statutory functions. On an issue which is agreed on all sides to turn on the requirements of the rule of law, it would in my view be absurd to suggest that there is no distinction to be made between a statute providing for an administrative authoritys decisions to be conclusive and a statute making corresponding provision for the decisions of a judicial body. As I shall explain, the Investigatory Powers Tribunal is indistinguishable from a court in every respect that matters to the present issue. More recently, in Lee v Ashers Baking Co Ltd [2018] 3 WLR 94, Racal was considered and applied by this court. The issue was whether a statutory provision making the decision of the Court of Appeal of Northern Ireland final, precluded a further appeal when the Court of Appeal had failed to refer a devolution issue to the Supreme Court as it had been bound to do. That question was answered by Lord Mance (with whom the rest of this court agreed). His judgment is relevant for two reasons. First, at para 86, he adopted Lord Diplocks analysis, in particular his distinction between the presumptions to be applied to an ouster clause where the decision is that of a judicial body and those which apply where the decision is that of administrative tribunal. Secondly, he held that as a matter of construction the same language could in principle be sufficient to exclude an appeal on the merits but not an appeal on the ground that the court below had committed a procedural error or failed to perform the function with which Parliament had charged it. At para 88, he said: The Court of Appeal in Northern Ireland is a superior court, but the underlying question of construction remains, whether the legislature has by article 61(7) of the 1980 Order, set out in para 63 above, excluded any right of appeal in circumstances such as the present. Article 61(1) and (7), read together, provide for the decision of the Court of Appeal on a case stated relating to the correctness of the decision of a county court judge upon any point of law to be final. They contemplate the finality of the Court of Appeals decision with regard to the correctness of the county court judges decision on the point of law raised by the case stated. The finality provision in article 61(7) is therefore focused on the decision on the point of law, not on the regularity of the proceedings leading to it. It would require much clearer words and they would, clearly, be unusual and surprising words to conclude that a focused provision like article 61(7) was intended to exclude a challenge to the fairness or regularity of the process by which the Court of Appeal had reached its decision on the point of law. Suppose the Court of Appeal had refused to hear one side, or the situation was one where some apparent bias affected one of its members. This sort of situation cannot have been contemplated by or fall within article 61(7). R (Cart) v Upper Tribunal [2011] QB 120 and [2012] 1 AC 663 In view of the weight placed on this decision by the appellants, it is necessary to analyse the judgments with some care, although it must be borne in mind throughout that it is not direct authority on the question before us because it was not a case about ouster clauses. There was no ouster clause in the relevant statutes. In the Divisional Court the issues were (i) whether the mere designation of a judicial body (in that case the Special Immigration Appeals Tribunal and the Upper Tribunal) as a superior court of record took it outside the scope of the High Courts review jurisdiction even in the absence of an ouster; and (ii) whether the scheme of the statutes from which these bodies derived their powers was inconsistent with its decisions being reviewable in the High Court even in the absence of an ouster. In an impressive judgment, Laws LJ, delivering the judgment of the Divisional Court held that the answer to (i) was No and the answer to (ii) was Yes. On issue (i), he held that the special status of the High Court as exercising a jurisdiction to keep other bodies within their powers meant that a superior court of record other than the High Court was not, simply by virtue of that status, immune from the review jurisdiction of the High Court. For present purposes, however, what matters is Laws LJs treatment of issue (ii). He accepted that some courts and tribunals might be immune from the High Courts review jurisdiction. He expressed the basic principle as follows: 37. The principle I have suggested has its genesis in the self evident fact that legislation consists in texts. Often and in every case of dispute or difficulty the texts cannot speak for themselves. Unless their meaning is mediated to the public, they are only letters on a page. They have to be interpreted. The interpreters role cannot be filled by the legislature or the executive: for in that case they or either of them would be judge in their own cause, with the ills of arbitrary government which that would entail. Nor, generally, can the interpreter be constituted by the public body which has to administer the relevant law: for in that case the decision makers would write their own laws. The interpreter must be impartial, independent both of the legislature and of the persons affected by the texts application, and authoritative accepted as the last word, subject only to any appeal. Only a court can fulfil the role. 38. If the meaning of statutory text is not controlled by such a judicial authority, it would at length be degraded to nothing more than a matter of opinion. Its scope and content would become muddied and unclear. Public bodies would not, by means of the judicial review jurisdiction, be kept within the confines of their powers prescribed by statute. The very effectiveness of statute law, Parliaments law, requires that none of these things happen. Accordingly, as it seems to me, the need for such an authoritative judicial source cannot be dispensed with by Parliament. This is not a denial of legislative sovereignty, but an affirmation of it: as is the old rule that Parliament cannot bind itself. The old rule means that successive Parliaments are always free to make what laws they choose; that is one condition of Parliaments sovereignty. The requirement of an authoritative judicial source for the interpretation of law means that Parliaments statutes are always effective; that is another. 39. As I have said, the paradigm for such an authoritative source is the High Court, which is independent of the legislature, the executive, and any other decision makers acting under the law; and is the principal constitutional guardian of the rule of law. In section IV(2)(a) below I discuss the historic primacy of the High Courts predecessor, the Court of Kings Bench. To offer the same guarantee of properly mediated law, any alternative source must amount to an alter ego of the High Court; and indeed there are instances where the authoritative source is another court, such as the Courts Martial Appeal Court and the Restrictive Practices Court: see the reference, at para 71, below to R v Cripps, Ex p Muldoon [1984] QB 68. But the general principle is clear. The rule of law requires that statute should be mediated by an authoritative and independent judicial source; and Parliaments sovereignty itself requires that it respect this rule. Turning to the position of the SIAC and the Upper Tribunal, he observed: 78. The answer to these questions requires a closer look at what I have described as the overriding foundation for the grant of judicial review: an excess of jurisdiction by the subject court. This concept possesses (at least) two different meanings. The first denotes the case where a court travels into territory where it has no business. Thus a court whose jurisdiction is limited to claims of a pleaded value of 5,000 or less would exceed its jurisdiction if it entertained a claim pleaded at 10,000; or if it adjudged a suit arising in Derbyshire though its jurisdiction was limited to County Durham. The second meaning of excess of jurisdiction denotes the case where, acting within the field ascribed to it, the court gets the law wrong. The first of these meanings is almost always unproblematic. The territory of a court's jurisdiction conferred by statute will depend, plainly, on the terms of the statute. (The same is of course true of the reach of executive power conferred by statute on a minister or other public decision maker.) The territorys edge will usually be sharp enough. 79. But the second meaning of excess of jurisdiction has given rise to more difficulty. A court acts in excess of jurisdiction by getting the law wrong if it is not the final judge (subject to any statutory appeal) of the law it has to apply. If it is not, it exceeds its jurisdiction if it makes a legal error, and in that case the High Court as successor to the Kings Bench may issue a certiorari (nowadays, a quashing order) to correct the error. By contrast if the court in question is the last judge of the applicable law (subject as I have said to any right of appeal) it will not exceed its jurisdiction by perpetrating a legal error, and the High Court will have no corrective or supervisory role. 81. We may see, then, that the question whether SIAC or UT is amenable to the judicial review jurisdiction has more than one layer. (1) Is either body reviewable for excess of jurisdiction in the first sense of the term (transgression beyond the boundaries of its permitted subject matter)? (2) Is either reviewable for excess of jurisdiction in the second sense, as being liable to correction for error of law, albeit committed within those proper boundaries? Or is it a court possessing the final power (subject to appeal) to interpret for itself the law it must apply? Applying that test, he held that the SIAC was but the Upper Tribunal was not amenable to judicial review in the High Court. The difference between them was that the Upper Tribunal was the alter ego of the High Court, but the SIAC was not. This was because the Upper Tribunal was itself exercising a power of judicial review equivalent to that of the High Court. The distinction is encapsulated in Laws LJs observations at para 94: In my judgment UT is, for relevant purposes, an alter ego of the High Court. It therefore satisfies the material principle of the rule of law: it constitutes an authoritative, impartial and independent judicial source for the interpretation and application of the relevant statutory texts. It is not amenable to judicial review for excess of jurisdiction in the second sense: the case where, albeit acting within the field ascribed to it, the court perpetrates a legal mistake. It is a court possessing the final power to interpret for itself the law it must apply And it must, I think, be obvious that judicial review decisions of UT could not themselves be the subject of judicial review by the High Court. In the Court of Appeal the position of the SIAC was no longer in issue. Sedley LJ, delivering the judgment of the court, rejected the suggestion that the Upper Tribunal was the alter ego of the High Court and denied that that was the test. In his view (para 20) all courts other than the High Court itself were in principle amenable to judicial review in the High Court in the absence of a sufficiently clear ouster clause. But he thought that while the Upper Tribunal was amenable to judicial review, the scope of review of a body such as the Upper Tribunal was limited, because the scheme of the Tribunals, Courts and Enforcement Act 2007 required the tribunal system to be treated as autonomous. It therefore implicitly provided (para 42) for the correction of legal error within rather than outside the system. It followed that judicial review extended only to what Sedley LJ called outright excess of jurisdiction, ie the exercise of powers that the tribunal did not have. At paras 36 37, he expressed the distinction thus: 36. It seems to us that there is a true jurisprudential difference between an error of law made in the course of an adjudication which a tribunal is authorised to conduct and the conducting of an adjudication without lawful authority. Both are justiciable before the UT if committed by the FTT, but if committed by the UT will go uncorrected unless judicial review lies. The same of course is true of errors of law within jurisdiction; but these, in our judgment, reside within the principle that a system of law, while it can guarantee to be fair, cannot guarantee to be infallible. Outright excess of jurisdiction by the UT and denial by it of fundamental justice, should they ever occur, are in a different class: they represent the doing by the UT of something that Parliament cannot possibly have authorised it to do. 37. Thus if for some reason the UT made an order giving a money judgment which it had no power to give, with the possibility of enforcement under its section 25 powers, it would be inimical to the rule of law if the High Court could not step in, should the appellate system for some reason not do so. Similarly if a member of the UT were to sit when ineligible or disqualified by a pecuniary interest, or if the UT conducted a hearing so unfairly as to render its decision a nullity, the High Court ought to be able to quash the determination. We do not mean this list to be exhaustive but to be illustrative of the kind of error, rare as it will be, which would take the UT outside the range of its decision making authority. Such a division is, we consider, one of legal principle which can properly form the basis of judicial policy. It applies only to the UT, since it is the role of the UT itself to correct errors of every kind, including outright excesses of jurisdiction and fundamental denials of justice, in the FTT. The Court of Appeal accepted that this might mean that the Upper Tribunal had the potential to develop a legal culture which is not in all respects one of lawyers law. In the Supreme Court the sole issue was whether this implicit limitation on the scope of the jurisdiction to review decisions of the Upper Tribunal was justified. As Baroness Hale pointed out at para 37 (and again at paras 29 and 40), the starting point was that there is nothing in the 2007 Act which purports to oust or exclude judicial review of the unappealable decisions of the Upper Tribunal. Clear words would be needed to do this and they are not there. Any limitation therefore had to be implicit, as the Court of Appeal had held it was. The Supreme Court accepted that a restrained approach should be taken to the granting of leave, but rejected the Court of Appeals distinction between errors of law and outright excess of jurisdiction. It is important to appreciate that both the Court of Appeal and the Supreme Court regarded the question whether there was an implicit limitation of the scope of judicial review as a question of judicial policy. The difference between them was about what the relevant policy considerations were. In the Supreme Courts view, the main policy consideration was the undesirability of allowing the Upper Tribunal to become (in Lady Hales words) the final arbiter of the law, in case inferior courts should undermine the coherence of the law by developing their own local law (para 43). This concern, which was mentioned by the Court of Appeal but had not troubled them, was central to the reasoning of this court. Nothing in this courts analysis suggests that policy considerations of this kind would have been relevant, let alone decisive, if the issue had been the meaning and effect of an ouster clause. Nothing in the judgments promotes the undesirability of local laws from an interpretative presumption to a constitutional principle. The real significance for present purposes of this courts decision in Cart lies in its recognition that the rule of law does not necessarily require that the decisions of an inferior tribunal be subject to a power of review, even where they are unappealable: see in particular paras 89 90 (Lord Phillips of Worth Matravers), and paras 122 124 (Lord Dyson). Lord Dyson (with whom the rest of the court all agreed) referred to the status of the Upper Tribunal as a court performing functions equivalent to those of the High Court, and observed at para 122: Prima facie, judicial review should be available to challenge the legality of decisions of public bodies. Authority is not needed (although much exists) to show that there is no principle more basic to our system of law than the maintenance of rule of law itself and the constitutional protection afforded by judicial review. But the scope of judicial review should be no more (as well as no less) than is proportionate and necessary for the maintaining of the rule of law. The status and functions of the Upper Tribunal to which I have already referred are important here. The Investigatory Powers Tribunal It follows from the modern authorities that the approach to be taken to section 67(8) of the Regulation of Investigatory Powers Act 2000 depends on the character of the Tribunals functions, the nature of the error of law of which it is accused by the appellant, and the construction of section 67(8) as applied to alleged errors of that kind. The functions of the Investigatory Powers Tribunal are defined by section 65 of the Act. Section 65(2) is in the following terms: (2) The jurisdiction of the Tribunal shall be (a) to be the only appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section; to consider and determine any complaints made (b) to them which, in accordance with subsection (4) are complaints for which the Tribunal is the appropriate forum; (c) to consider and determine any reference to them by any person that he has suffered detriment as a consequence of any prohibition or restriction, by virtue of section 17, on his relying in, or for the purposes of, any civil proceedings on any matter; and (d) to hear and determine any other such proceedings falling within subsection (3) as may be allocated to them in accordance with provision made by the Secretary of State by order. The jurisdiction invoked by the present appellant is founded on sections 65(2)(a) and (b). Proceedings falling within subsection (2)(a) are, in summary, proceedings in respect of alleged contraventions of the Human Rights Convention against the intelligence services or those acting on their behalf, or against the authorities empowered to require the disclosure of electronic encryption keys. It also applies to the authorisation under statutory powers of what would otherwise be unlawful conduct by such bodies. The Tribunal has exclusive jurisdiction in respect of these proceedings and, under section 67(1)(a), a duty to hear and determine them. Complaints under subsection (2)(b) are, in summary, proceedings challenging the interception of communications by the intelligence services and other investigatory authorities, or warrants authorising such interception. Under section 67(1)(b), the Tribunal has a duty to consider and determine them, but its jurisdiction in respect of these complaints is not exclusive. Section 67 regulates the manner in which the Tribunals jurisdiction is to be exercised. It provides, so far as relevant: (2) Where the Tribunal hear any proceedings by virtue of section 65(2)(a), they shall apply the same principles for making their determination in those proceedings as would be applied by a court on an application for judicial review. (3) Where the Tribunal consider a complaint made to them by virtue of section 65(2)(b), it shall be the duty of the Tribunal (a) to investigate whether the persons against whom any allegations are made in the complaint have engaged in relation to (i) the complainant, (ii) any of his property, (iii) any communications sent by or to him, or intended for him, or (iv) his use of any postal service, telecommunications or telecommunication system, service in any conduct falling within section 65(5); (b) to investigate the authority (if any) for any conduct falling within section 65(5) which they find has been so engaged in; and in relation to the Tribunals findings from their (c) investigations, to determine the complaint by applying the same principles as would be applied by a court on an application for judicial review. The importance of ensuring the confidentiality of secret material is implicit in the kind of matters with which it deals, and is reflected in a number of provisions of the Act. In the first place, section 69(3) imposes a duty on the Tribunal to carry out its own investigation of complaints brought before it, and section 68 empowers it to call for the assistance of the services in question and their officials. This is an inquisitorial power in whose exercise the complainant does not participate. Secondly, section 69 empowers the Secretary of State to make rules for the Tribunal, having regard in particular to the need to secure that they are properly heard and considered and that information is not disclosed to an extent or in a manner which is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well being of the United Kingdom or the continued discharge of the functions of any of the intelligence services. Thirdly, section 66 empowers the Secretary of State by order to allocate further proceedings to the Tribunal, having regard in particular to the same matters. Fourthly, section 68(4) provides that in notifying to the complainant its determination of any proceedings or complaints, the Tribunal is to say only that they have made a determination in his favour or that they have not done so. It is plain that Parliament considered that ordinary proceedings in the High Court presented an unacceptable risk that secret material would be disclosed, contrary to the public interest, and that a major factor in the decision to allocate proceedings to the Tribunal was that its special procedures would reduce that risk. It was submitted to us that Parliaments concerns on this score were unjustified, because as the law was (wrongly) understood in 2000, closed material procedure was available in High Court proceedings. This submission is in my view misconceived. For the purpose of construing the Act, what matters is whether Parliament had those concerns, not whether they were justified. The terms of the Act are themselves enough to show that it did. The Investigatory Powers Tribunal is a judicial body. Schedule 3 to the Act provides that its President must hold or have held high judicial office, and its other members must either have held high judicial office or have had a relevant legal qualification for at least seven years. It is a tribunal of limited jurisdiction which enjoys neither the status nor all of the powers of the High Court. But for this purpose, as I have observed, what matters is not the label but the statutory functions of the Tribunal. Those functions are judicial in an altogether more significant sense than those of the Foreign Compensation Commission. The critical point is that the Tribunal exercises a power of judicial review which would otherwise be exercised by the High Court. By section 67(2), it is required to apply the principles which would be applied by the High Court on an application for judicial review. In relation to proceedings under section 65(2)(a) complaining of a contravention of human rights, this jurisdiction is exclusive, displacing that of the High Court. In relation to complaints under section 65(2)(b), it is a concurrent jurisdiction, but is likewise required by section 67(3)(c) to apply the principles which would be applied by the High Court on an application for judicial review. In these respects the Tribunal is not an inferior tribunal. Its adjudicative jurisdiction is coordinate with that of the High Court. In R (A) v Director of Establishments of the Security Service, supra, at para 23, Lord Brown of Eaton under Heywood, observed of the provision of section 65(2)(a) conferring exclusive jurisdiction on the Tribunal over human rights claims that the exclusion of the High Courts review jurisdiction has not ousted judicial scrutiny of the intelligence services; it has simply allocated that scrutiny (as to section 7(1)(a) HRA proceedings) to the IPT. Lord Brown adopted the statement of Laws LJ in the Court of Appeal that section 65 was among a class of: statutory measures which confide the jurisdiction to a judicial body of like standing and authority to that of the High Court, but which operates subject to special procedures apt for the subject matter in hand, may well be constitutionally inoffensive. The IPT . offers . no cause for concern on this score. This was also the essence of the reasoning of Laws LJ in Cart. He regarded the Upper Tribunal as an alter ego of the High Court, in the sense that while lacking the status of the High Court, it performed within its subject area the same functions in the same judicial fashion as the High Court. It therefore satisfied the material principle of the rule of law: see para 94 of his judgment. The Court of Appeal and the Supreme Court regarded that as insufficient to warrant implying a limitation of the scope of judicial review, and nothing that I say is intended to undermine their view. But Laws LJs analysis is an illuminating explanation of the difference between an ouster of judicial review and a limitation of its scope to controlling the purported exercise of powers that the decision maker did not have. That analysis is of considerable value in a case (unlike Cart) where an express statutory provision excludes judicial review of the legal merits of a tribunals decisions, without impinging on the High Courts traditional jurisdiction to review outright excesses of jurisdiction. The next question, to which I now turn, is whether that is the effect of section 67(8) of the Regulation of Investigatory Powers Act. Section 67(8) It is agreed on all sides that the meaning of this provision is a question of construction. It is also agreed that clear words are required if it is to be regarded as ousting the review jurisdiction of the High Court. However, we must not lose sight of the reason why clear words are required. The reason is, as all the authorities (and indeed Lord Carnwath in his judgment in the present case) agree, that Parliament is presumed not to legislate contrary to the rule of law. As Lord Hoffmann pointed out in R (Simms) v Secretary of State for the Home Department [2000] 2 AC 115, p 131, that Parliament must squarely confront what it is doing and accept the political cost. The degree of elaboration called for in a statutory provision designed to achieve a given effect must depend on how anomalous that effect would be. In this case, the words must be sufficiently clear to authorise a departure from the normal state of affairs, which is that the High Court has jurisdiction by way of review over the acts of lower courts. That is not the same as saying that the words must be such as to authorise a departure from the rule of law. There is nothing inconsistent with the rule of law about allocating a conclusive jurisdiction by way of review to a judicial body other than the High Court. The presumption against ouster clauses is concerned to protect the rule of law, which depends on the availability of judicial review. It is not concerned to protect the jurisdiction of the High Court in some putative turf war with other judicial bodies on whom Parliament has conferred an equivalent review jurisdiction. It was because Lord Brown found nothing constitutionally offensive in the allocation of specified disputes to the Investigatory Powers Tribunal that he had no difficulty in recognising in R (A) v Director of Establishments of the Security Service, supra, at para 23, that section 67(8) was an ouster (and indeed unlike that in Anisminic, an unambiguous ouster) of any jurisdiction of the courts over the IPT. This was no more than a dictum, on a point which was not argued. But in my opinion what Lord Brown said as a matter of impression was also correct as a matter of analysis, at any rate as applied to challenges to the Tribunals determinations on the merits. My reasons are as follows. In the first place, the jurisdiction of the Tribunal defined in section 65(2) is to adjudicate on proceedings, complaints, references and on other matters allocated to them by the Secretary of State. By adjudicate I refer compendiously to the various expressions used in sections 65(2) and 67(1) (3) to describe the Tribunals resolution of matters before it (hear and determine, consider and determine, determine, etc). The Tribunals permitted field (to use Lord Wilberforces phrase) plainly extended to determining questions of law arising in the course of any proceedings or complaint. In particular, it extended to determining the construction of the various enactments, such as the Intelligence Services Act 1994, under which the bodies subject to review by the Tribunal operated. There is nothing in the Act which lays down the test to be applied to any of these matters. Nor is there anything corresponding to the prescriptive regime in the Order in Council considered in Anisminic. The Act simply confers on the Tribunal the adjudicatory powers which would otherwise be exercised by the High Court acting as a court of review. Secondly, turning to the language of section 67(8) itself, it is common ground that it falls to be construed against the background of the law declared in Anisminic and in subsequent decisions interpreting and applying it. The draftsman has deliberately chosen substantially the same formula as was considered in Anisminic (shall not be liable to be questioned in any court). But it is clear that the draftsman did not intend the same result as in Anisminic. This is because he has modified the formula by adding the bracketed words (including decisions as to whether they have jurisdiction). The effect of the bracketed words is to extend the ouster to the precise class of decisions which the House of Lords in that and subsequent cases had held not to be covered by the Anisminic formula, namely decisions in excess of jurisdiction. I do not, however, think that the intention was to extend it to all such decisions. The key lies in another addition to the Anisminic formula, namely the reference to an appeal. The Tribunals decisions shall not be subject to appeal or be liable to be questioned in any court. At common law, it was well established that the fact that a judicial decision was unappealable did not bar judicial review on all the usual grounds: see R (Cart) v Upper Tribunal [2012] 1 AC 663, paras 16 21 (Baroness Hale). In framing section 67(8) as it did, Parliaments concern was plain. It was to ensure that the barring of appeals was not rendered nugatory by applications for judicial review on grounds which amounted to the same thing. Because the courts, in interpreting Anisminic, had categorised error, at any rate of law, as an excess of jurisdiction, this could be achieved only by extending the ouster clause so as to cover errors in the treatment of the merits notwithstanding that they were treated in Anisminic as an excess of jurisdiction. Thirdly, it is true that a right to apply for judicial review is conceptually different from an appeal even if, in relation to an alleged error of law, they amount in practice to the same thing. But the concept of a judicial review by the High Court of a tribunal which is itself exercising a power of judicial review equivalent to that of the High Court, might be thought surprising. The rational course for Parliament to have adopted, if it intended to allow judicial review on the ground of error, would have been to provide for an appeal. Parliament has in fact made such provision. But under section 67(9) it has done so unconditionally only in relation to cases falling within section 65(2)(c) and (d), which are not yet in force. In other cases, including those relevant to the present proceedings, the introduction of a right of appeal is left to the discretion of the Secretary of State under section 67(8). It would in my view be wrong in principle to construe the Act as allowing for judicial review on grounds indistinguishable from an appeal on the merits, when Parliament has so carefully circumscribed the conditions on which an appeal is available. Fourthly, as Lord Wilberforce observed in Anisminic (p 209), conclusions about the Tribunals permitted field may be derived from the form and subject matter of the legislation. The main subject matter of this legislation is secret intelligence whose disclosure would be contrary to an obvious and powerful public interest. I have drawn attention above (at para 196) to the numerous indications to that effect in the Act. Its provisions, as Lord Brown of Eaton under Heywood pointed out in R (A) v Director of Establishments of the Security Service [2010] 2 AC 1, para 14, are designed to ensure that, even in the most sensitive of intelligence cases, disputes can be properly determined. The public interest engaged was pointed out in forceful terms by Sales LJ in his judgment in the Court of Appeal: see, in particular, para 7. It needs no further emphasis from me. There is accordingly an entirely rational reason, whose significance is apparent throughout the relevant parts of the Act, why Parliament should have wished to confine the examination of these matters to a secure Tribunal and to prevent resort to the High Court, whether by way of appeal or review. The whole object of the Act in creating the Tribunal was to make resort to the High Court unnecessary by providing an alternative but equivalent right of recourse to a judicial body performing the same function. It is right to add that section 68(4), which requires the Tribunal to give an unreasoned Yes or No answer to the questions before it, would make judicial review by the High Court exceptionally difficult in most cases. In future cases, governed by the Investigatory Powers Act 2016, there will be a right of appeal, in specified circumstances, and section 68(4) will be modified so as to be subject to the Tribunal Rules. Rules made under that Act allow for more extensive disclosure of the Tribunals reasons. But by the time that the 2016 Act was passed the position regarding the security of information deployed in forensic litigation had been transformed by the Justice and Security Act 2013, with its elaborate provisions for closed material procedure in civil proceedings in the High Court. The courts below regarded this as a decisive consideration. I think that there are a number of decisive considerations, but this is certainly one of them. Finally one is bound to ask forensically, if section 67(8) when read as a whole does not exclude a challenge to the merits of the Tribunals decisions by way of judicial review, then what else can it mean? Ms Rose implicitly accepted that if it is to have any effect at all it must oust judicial review in relation to something. She was driven to arguing that it did so only in relation to alleged errors of fact. She referred to R v Secretary of State for the Home Department, Ex p Khawaja [1984] 1 AC 74, as authority for the proposition that the factual basis of the challenged decision would otherwise have been open in principle to challenge by way of judicial review, and suggested that that was the problem to which section 67(8) was directed. I do not accept this. The question is always whether the tribunals decision falls within its permitted field. If, as Ms Rose submits, the Act on its true construction does not allow the Tribunal to err, then there is no reason to distinguish between errors of law and fact. They are both in excess of jurisdiction. In In re Racal Communications [1981] AC 374, Lord Diplock (with whom Lord Keith agreed) explicitly rejected (p 382C) a similar distinction which had been suggested by Lord Denning MR in Pearlman. Analysing that decision (at pp 383 384) he deprecated attempts to read into ouster clauses an implicit dissection of propositions of law from their application to facts. Lord Edmund Davies made the same point at p 390. Judicial review commonly involves interrelated questions of fact and law, and such distinctions tend to lead to arbitrary and technical subtleties of a kind which Parliament is unlikely to have intended. Certainly, there is no trace of such a distinction in section 67(8) or anywhere else in the Act. Ms Roses principal argument, however, was a reductio ad absurdum. If, she said, section 67(8) excludes judicial review, then the Tribunals decisions could not be reviewed even if it embarked on a dispute which was not within its subject matter competence, or was improperly constituted, or affected by the grossest bias. This submission would require us to take an all or nothing view of section 67(8) which I regard as wrong in principle. The process of construction involved in identifying a judicial bodys permitted field depends, as the House of Lords pointed out in Anisminic, on an analysis of the enabling legislation to ascertain the breadth of the interpretative power conferred on it. The legislation may be more prescriptive in some respects than in others. Or it may be silent on some points, thus implicitly leaving unaffected basic common law principles such as natural justice. The Regulation of Investigatory Powers Act 2000 contains express provisions governing the constitution of the Tribunal and its subject matter competence. It contains rules governing the Tribunals procedure, and authorises the making of further rules by the Secretary of State. Nothing that I have said should be taken to suggest that breach of these requirements is unreviewable. The terms of the Act place them outside the Tribunals permitted field. The same is true of principles of natural justice (such as those relating to bias), so far as they are not modified in terms by the Act. Lord Diplock in Racal, at pp 382 383, envisaged that in the case of a court charged with the resolution of questions of law it was necessary to distinguish between errors of law going to jurisdiction in the pre Anisminic sense and errors of law within jurisdiction. As Lord Mance pointed out, applying this principle in Lee v Ashers Baking Co Ltd [2018] 3 WLR 1294, para 88 (cited above), a statutory ouster clause may be clear enough to oust review of a judicial bodys substantive decisions but not its procedural failings. In my opinion, section 67(8) is a provision of that kind. It ousts any kind of merits review of the Tribunals decisions but nothing more than that. This is the narrowest meaning consistent with the language and manifest purpose of the subsection. It does not oust review of those procedural failings which if made out would deprive the Tribunal of its adjudicatory competence. The appellants complaint is that the Tribunal misconstrued section 5(2) of the Intelligence Services Act 1994 by holding that it authorised thematic warrants. If this was an error, then it seems to me to be clear that it was an error within the permitted field of interpretative power which Parliament has conferred on the Tribunal. Whether or not it is correctly described as an excess of jurisdiction is not the point, for the statute empowers the Tribunal to act within its permitted field irrespective of whether or not its act is so described. I conclude that the effect of section 67(8) of Investigatory Powers Act 2000 is that the High Court had no jurisdiction to entertain a challenge to the Tribunals decision in the present case, whether by way of appeal or judicial review. The alternative case: unconstitutionality In the Statement of Facts and Issues, the alternative case is formulated as follows: whether, and, if so, in accordance with what principles, Parliament may by statute oust the supervisory jurisdiction of the High Court to quash the decision of an inferior court or tribunal of limited statutory jurisdiction. As framed, the alternative case seeks an answer to an examination question posed in wholly general terms. I do not think that it would be either appropriate or wise for this court to answer it in wholly general terms, for the answer may vary according to the statutory context. We have to address the question in the context of the particular statute before us. For that purpose, it is important to be clear about the assumption on which the issue arises. The assumption is that as a matter of construction section 67(8) of the Regulation of Investigatory Powers Act excludes judicial review of the Tribunals decisions on the merits of matters coming before it. That is the only point on which the decision of the Tribunal is sought to be reviewed in these proceedings, and section 67(8) is the only basis on which such a review is said to be excluded. The appellants case is that if section 67(8) is clear enough to oust judicial review of the Tribunals decisions on the law, then not even Parliament could effectually enact it. An argument of this kind may take one or other of two forms. In its more radical form, the argument limits the sovereignty of Parliament in the name of a higher law, ascertained and applied by the court. What is said is that the rule of law is the foundation of the constitution and the source of the legitimacy of all legislation and that judicial review is its procedural embodiment. For this reason, Parliament is not competent to legislate contrary to the rule of law. This was the view tentatively expressed in an obiter dictum of Lord Steyn in R (Jackson) v Attorney General [2006] 1 AC 262, para 102, and less tentatively by Lord Hope in his observations, also obiter, in the same case, at paras 104 108. It was robustly rejected by Lord Bingham in the same case (para 9) and more fully in Chapter 12 of his book The Rule of Law (2010). I did not understand Ms Rose to be arguing that case. In its less radical form, the argument is that judicial review is necessary to sustain Parliamentary sovereignty. This is because Parliament can express its will only by written texts, to which effect can be given only if there is a supreme interpretative and enforcing authority. That authority by its nature resides in courts of law. This is the view suggested by Laws LJ in the Court of Appeal in R (Cart) v Upper Tribunal [2011] QB 120, paras 34 38. Like the principle that Parliament cannot bind itself, Parliaments lack of competence to oust judicial review is on this view conceptual rather than normative. The point was well put by Farwell LJ in R v Shoreditch Assessment Committee, Ex p Morgan [1910] 2 KB 859 when he observed, at p 880, that it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure such a tribunal would be autocratic, not limited. The rule of law applies as much to the courts as it does to anyone else, and under our constitution, that requires that effect must be given to Parliamentary legislation. In the absence of a written constitution capable of serving as a higher source of law, the status of Parliamentary legislation as the ultimate source of law is the foundation of democracy in the United Kingdom. The alternative would be to treat the courts as being entitled on their own initiative to create a higher source of law than statute, namely their own decisions. In R (Miller) v Secretary of State for Exiting the European Union (Birnie intervening) [2018] AC 61, at para 20, the Divisional Court accepted that: the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow that to happen. In this court, sitting in banc for the first and only time, the proposition was common ground between the majority and the dissenting minority. The joint judgment of the eight judges of the majority recognised (para 43) that Parliamentary sovereignty was a fundamental principle of the UK constitution, and adopted the celebrated statement of A V Dicey (Introduction to the Study of the Law of the Constitution, 8th ed (1915), 38, that it comprised the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. Ms Rose would therefore have had a mountain to climb if she had based her alternative case on the more radical form of the argument. In fact, she was wise enough not to do this. Her case was firmly based on the conceptual inconsistency between an ouster clause and the existence of limits on the jurisdiction of the Investigatory Powers Tribunal. I therefore turn to the less radical version of the argument as it was addressed to us. I would accept it up to a point. In reality, it is a variant of the appellants primary case about Parliamentary intention. If Parliament on the true construction of an enactment has created a tribunal of legally limited jurisdiction, then it must have intended that those limits should have effect in law. The only way in which a proposition can have effect in law, is for it to be recognised and applied by the courts. Parliaments intention that there should be legal limits to the tribunals jurisdiction is not therefore consistent with the courts lacking the capacity to enforce the limits. Ms Rose, correctly to my mind, described this as giving effect to the sovereignty of Parliament, not limiting it. In order to escape this conceptual difficulty, Parliament would have to create a tribunal of unlimited jurisdiction or one with unlimited discretionary power to determine its own jurisdiction. A sufficiently clear and all embracing ouster clause might demonstrate that Parliament had indeed intended to do that. But it would be a strange thing for Parliament to intend, and although conceptually possible, it has never been done. These theoretical considerations are, however, a long way from the problem presently before us. No one contends that section 67(8) of Act makes Investigatory Powers Tribunal a tribunal of unlimited jurisdiction or that it has an unlimited discretionary power to determine its own jurisdiction. The question is how to reconcile the limited character of its jurisdiction with the language of section 67(8). For the reasons which I have given, the reconciliation is that section 67(8) does no more than exclude review by the High Court of the merits of decisions made by a tribunal performing, within its prescribed area of competence, the same functions as the High Court. It is in substance an exclusion of appeals on the merits and other proceedings tantamount to an appeal on the merits. The bracketed words referring to jurisdiction have been added because the draftsman intended that the decisions of the tribunal on the merits should be treated as within its jurisdiction notwithstanding that it was erroneous. The intention was that the exclusion of appeals on the merits and equivalent proceedings should apply notwithstanding that Anisminic had categorised some errors going to the merits as excesses of jurisdiction. None of this gives rise to the conceptual problem described above. Section 67(8) does not exclude or limit the jurisdiction of the High Court to enforce the statutory limits on the Tribunals powers or subject matter competence, or the statutory and other rules of law regarding its constitution. In my opinion, Parliament does not contradict itself by enacting that notwithstanding Anisminic a decision on the merits by a judicial tribunal of limited jurisdiction exercising the same review function as the High Court is to be conclusive. As Baroness Hale put it in Cart (para 40), adopting the approach of Lord Wilberforce in Anisminic: it does of course lie within the power of Parliament to provide that a tribunal of limited jurisdiction should be the ultimate interpreter of the law which it has to administer: the position may be reached, as the result of statutory provisions, that even if they make what the courts might regard as decisions wrong in law, these are to stand. But there is no such provision in the 2007 Act. There is no clear and explicit recognition that the Upper Tribunal is to be permitted to make errors of law. Disposal I would accordingly dismiss the appeal. LORD WILSON: (dissenting) There are two questions: (1) Does section 67(8) of RIPA (the 2000 Act) mean that there can be no judicial review of the determinations of the IPT? (2) determinations? If so, is it open to Parliament to exclude judicial review of its The second question, which questions the legality of part of an Act of our Parliament, supreme under our constitutional arrangements, could scarcely be of greater fundamental importance and sensitivity. So there is a temptation to insinuate into the answer to the first question matters which in truth are relevant only to the answer to the second question, with a view to answering no to the first question and thus avoiding the need to answer the second question. In my respectful view this is the temptation to which in analogous circumstances in the Anisminic case the appellate committee gave way in 1968. I agree with Sir John Laws see para 81 above that the committee there picked a fig leaf with which it attempted to hide the essence of its reasoning. For proper recourse to the presumed intention of Parliament cannot justify straining the meaning of statutory words too far. The committee thereby set up 50 years of linguistic confusion for all of us who have been heirs to its decision. We should finally dispel that confusion but, in doing so, should, in answer to the first question, strive not to set up other strained meanings productive of different confusion for those who will wrestle with todays judgments. Omitting at this stage its strengthening words in parenthesis, section 67(8) says that, save as the Secretary of State may by order otherwise provide, decisions of the IPT should not be subject to appeal or be liable to be questioned in any court. On the face of it, what could be clearer? The obvious place for them to be questioned is the High Court in the exercise of its jurisdiction to conduct judicial review. Those words appear to exclude judicial review. Parliament recognised, however, that, contrary to their appearance, they alone were not enough to exclude it. The problem was the decision in the Anisminic case. Section 4(4) of the Foreign Compensation Act 1950 (the 1950 Act) provided, in terms which were to that extent identical to those in section 67(8), that the determination by the [Foreign Compensation Commission] of any application made to them under this Act shall not be called in question in any court of law. The commission had made a determination that the company was not entitled to compensation for the sequestration of its property in Egypt because of its failure to have complied with one of the perceived conditions of entitlement prescribed by an Order in Council. A majority of the appellate committee held that the commission had misconstrued the condition and upheld a declaration that the company was entitled to compensation. With respect to the distinguished members who formed the majority of the committee, I find it impossible to disagree with the dissenting conclusion of Lord Morris of Borth y Gest at p 194 that the commissions error, albeit one of law, was not in excess of its jurisdiction as properly understood. In what follows it will be convenient to describe that sort of error as an ordinary error of law. The majority, however, held otherwise. Relying heavily on the policy reasons in favour of judicial supervision of some of the commissions determinations, they worked backwards to the meaning of the word determination in section 4(4). As Lord Carnwath, borrowing a point made by Professor Feldman, observes in para 42 above, the companys claim was only for a declaration rather than for an order of certiorari to quash the commissions determination; so, if the claim was to prevail, the majority needed to conclude that the determination was a nullity and could thus be so declared. At all events they held that the word determination in the subsection did not include a mere purported determination. In describing it they deployed different terms which in my view amount to the same thing. Lord Reid at pp 170, 174 and 175 preferred to describe it as a nullity. He observed at p 171 that it was preferable not to use the word jurisdiction except in the narrow sense of a disentitlement to embark on the inquiry but then at p 174 he used that word in the wide sense in holding that the commission had exceeded it. Lord Pearce described it at pp 195 and 201 as a determination made in excess of jurisdiction, as did Lord Pearson at p 215. Lord Wilberforce suggested at p 207 that the words jurisdiction, error and nullity created problems and at p 208 he expressed a preference for describing it as a decision made outside the permitted field. There is no difficulty in understanding the decision of the majority in the Anisminic case that, by section 4(4), Parliament had not precluded review of determinations which were truly nullities, in excess of jurisdiction or outside the permitted field. They might well have reached that conclusion irrespective of the meaning of the words in the subsection: see para 236 below. Had they studied in greater detail the institutional features of the commission, they might also have held that, again irrespective of the meaning of the subsection, Parliament had not even precluded review of its ordinary errors of law, such as the one before them: see paras 237 to 252 below. The problems arise from the fact that they chose to reach their decision by construction of the word determination in the subsection; and from the way in which they strained the meaning of the words null, in excess of jurisdiction and outside the permitted field so as to extend them to ordinary errors of law which, on no previous understanding of those words, would have fallen within them. Lord Pearce at p 195 gave examples of lack of jurisdiction which demonstrate the strain: or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction [and] would cause its purported decision to be a nullity. Some have welcomed the extended meaning. I deprecate it. On 25 November 1982 the appellate committee decided the appeals in OReilly v Mackman [1983] 2 AC 237. For present purposes the facts are irrelevant. The relevance of the decision lies in the part of the speech of Lord Diplock quoted in para 54 above. The decision in the Anisminic case, he said, was that, if a statutory tribunal made an error of law, it must have asked itself the wrong question, ie one which it had no jurisdiction to determine. I, for my part, do not regard Lord Diplock as having there significantly misconstrued or oversimplified that decision. He praised it. No doubt in one sense anything which enables a judicial system to overcome obstacles to its elimination of legal error deserves praise. And he evidently saw no reason to temper his praise by reference to the confusing use of language in which the decision in the Anisminic case had been cast. On 14 February 1985 the Bill which became the Interception of Communications Act 1985 (the 1985 Act) was published. By section 7, Parliament established a tribunal to investigate complaints that a communication sent to or by a complainant had been unlawfully intercepted. There was an ouster of judicial supervision of the tribunals decisions but in terms more comprehensive than those in section 4(4) of the 1950 Act which had failed to exclude the supervision that the majority in the Anisminic case had held to have survived. For section 7(8) provided: The decisions of the Tribunal (including any decisions as to their jurisdiction) shall not be subject to appeal or liable to be questioned in any court. The IPT has replaced the tribunal set up by the 1985 Act; but, subject to the exception added to the beginning of it, section 67(8) of the 2000 Act is in terms which, for practical purposes, are identical to those of section 7(8) of its predecessor. We can now address the specific question central to the overall answer to the first question: what is the meaning of the words including decisions as to whether they have jurisdiction, written in parenthesis in section 67(8), in effect by way of repetition of words introduced by Parliament in an analogous provision in 1985? I, for my part, am in no doubt about the answer to the specific question. In 1985 Parliament, including its drafter of the 1985 Act, was aware that its attempted ouster of judicial oversight in section 4(4) of the 1950 Act had failed. In the Anisminic case the majority of the appellate committee had used different terms to describe the sort of decisions of which judicial oversight survived the ouster. But they had been collected by Lord Diplock in the OReilly case into one word, namely decisions made without jurisdiction. Lord Diplock had delivered his speech less than three years prior to publication of the bill which became the 1985 Act. Necessarily considered in their context, the meaning of the words in parenthesis in section 7(8) of the 1985 Act, now replicated in section 67(8) of the 2000 Act, is surely to encompass within the exclusion of judicial supervision all the decisions of the IPT in relation to its jurisdiction; and to ascribe to that word the strained extension of its effect adopted in the Anisminic case so as to cover ordinary errors of law as well, of course, as errors in the proper sense of it. The initial presumption that Parliament did not intend such an exclusion and the need in consequence for a strict construction of the subsection have to yield to what I consider to be the only reasonable meaning of its words, which is to the contrary. Support for the above comes from a distinguished source. At the time of the passing of the 1985 Act Professor David Foulkes wrote the notes to it for Current Law Statutes. Of section 7(8), he wrote: This subsection will be of interest. It is intended to and appears to be effective in making the Tribunal decisions wholly judge proof. The reference to jurisdiction excludes even the Anisminic line of argument. It follows that, with regret, I cannot subscribe to the interpretation of the words in parenthesis in section 67(8) favoured by Lord Carnwath. His argument is in the alternative. His first argument, set out in para 108 above, is predicated on what I have described as the proper sense of the word jurisdiction in the words in parenthesis. He says correctly that the appellants contention is that the IPT made an ordinary error of law. So, he says, it escapes the exclusion of decisions in relation to jurisdiction provided by the words in parenthesis. But why would it escape the exclusion in the earlier words of the subsection? Where would be the logic in excluding from judicial oversight errors of jurisdiction in the proper sense, but not ordinary errors of law? Lord Carnwaths alternative argument, set out in para 109 above, with which Lord Lloyd Jones agrees in para 165 above, is predicated on the extended sense ascribed to the word jurisdiction in the Anisminic case. Here his argument is that decisions made without jurisdiction in that extended sense are not decisions at all so are not excluded from judicial oversight by a subsection which refers both inside and outside the parenthesis only to decisions. In my opinion the argument is characteristically ingenious but too strained. It also proves too much, as becomes clear when in para 110 above Lord Carnwath seeks to ascribe some meaning to the words in parenthesis. He cites a decision of the IPT, namely C v The Police IPT/03/32/H in which, as I agree, the applicant failed because he failed to establish a fact upon which the existence of its jurisdiction depended (a jurisdictional fact). Lord Carnwath suggests that the words in parenthesis might exclude judicial oversight of the IPTs determination of the absence (or presence?) of a jurisdictional fact. But why would that not be a decision made without jurisdiction in the extended sense of that word, as well of course as in its proper sense? In any event I see no basis for confining the wide words in parenthesis to that narrow area of the IPTs decision making. Indeed why should such a determination have been singled out as fit for exclusion from any judicial inquiry into the existence of evidence which entitled the IPT to make it? Then, in para 111 above, Lord Carnwath observes that, irrespective of whether either of his constructions of section 67(8) is correct or whether the words in parenthesis are redundant, the words of the subsection are insufficiently clear to exclude judicial review of the IPTs errors of law; and his observation echoes his earlier suggestion in paras 107 and 108 above that the only clear exclusion achieved by the subsection is of legally valid determinations. With respect, I consider the words of the subsection to be totally clear in excluding judicial review of all the IPTs decisions; and an exclusion of judicial review in relation only to legally valid determinations seems to me to make no sense. It also follows that, with equal regret, I cannot subscribe to the interpretation of the words in parenthesis in section 67(8) favoured by Lord Sumption in para 201 above, which he had foreshadowed in para 172 above. The effect of Lord Sumptions interpretation is in my view further to extend the meaning of the word jurisdiction beyond that favoured in the Anisminic case. The effect of that case had been to draw into the concept of an absence of jurisdiction ordinary errors of law as well, of course, as errors of jurisdiction in the proper sense. Lord Sumption interprets the word jurisdiction in the words in parenthesis so as to relate only to ordinary errors of law and so as no longer to include errors of jurisdiction in the proper sense. His argument depends upon the words which immediately follow the parenthesis, namely the words shall not be subject to appeal. He observes that ordinary errors of law could in principle be the subject of an appeal and, by some alchemy if I may respectfully say so, he reasons that these words which exclude an appeal therefore limit the meaning of the word jurisdiction in the parenthesis to ordinary errors of law. In my opinion the argument is again characteristically ingenious but too strained. Had Parliaments intention been to allow judicial review of the IPTs errors of jurisdiction in the proper sense, it would not have borrowed from the 1985 Act words in parenthesis which, on any conventional construction of them, so obviously appear to exclude it. It is worth noting that the exclusion of an appeal achieved by the words upon which Lord Sumption relies is subject to the exception in the opening words of section 67(8), namely the words Except to such extent as the Secretary of State may by order otherwise provide . It is significant that, even prior to its recent insertion into the 2000 Act of section 67A, Parliament considered that there should be, or at least could properly be, a facility for appeal against the decisions of the IPT, including no doubt against its jurisdictional decisions as well as its ordinary decisions of law. Parliament recognised however that any facility for appeal required the establishment of a confined structure apt to the sensitivity of the subject matter of the IPTs decisions. It thus provided in section 67(10) that any order made by the Secretary of State pursuant to the opening words of section 67(8) might include various types of provision. These include provisions at (a) for establishing a body to hear such appeals or at (c) for conferring jurisdiction to hear them on an existing court or tribunal and, in either event, at (d) for making rules in relation to the conduct of the appeals corresponding to the rules of the IPT. At that time, however, Parliament decided, as the opening words make plain, to confer upon the Secretary of State a discretion whether to establish the structure which would have enabled the appeals to be brought; and, for reasons unexplained, he has never exercised his discretion to do so. Nevertheless, for the drafter of section 67(8), it was important not to permit an appeal from the IPT to be brought outside the confined structure which Parliament envisaged. So it was essential first to retain the general exclusion of an appeal which had been provided in section 7(8) of the 1985 Act and then to subject it to the limited exception reflected in the opening words of the subsection. I find it hard to imagine that Parliament countenanced the facility for some other review of the decisions of the IPT outside the confined structure for which it was making provision. Driven, as I am, to the view there is no defensible escape from giving to the first question the answer yes, I am required to proceed to address the second question; and, in doing so I must exercise a degree of caution apt to its constitutional delicacy. At this stage, however, it is crucial to bear in mind that the complaint of which the appellant seeks judicial review is that the IPT made an ordinary error of law. The appellant does not complain that the IPT lacked jurisdiction (in its proper sense) to determine its claim. Nor does it complain that the IPT denied to it the right to a fair hearing. A denial of a fair hearing, in particular of natural justice, is either an example of an absence of jurisdiction (Attorney General v Ryan, cited in para 123 above, p 730) or should at any rate be placed in that class for present purposes (the Cart case, Supreme Court, [2011] UKSC 28, [2012] 1 AC 663, para 38). Had the complaint been one of lack of jurisdiction, it would have been necessary for me to undertake, albeit more slowly, the journey which Lord Carnwath valuably, albeit for his purposes unnecessarily, undertakes in paras 114 to 126 above. The modern signpost most helpful to me would surely have been found in the classic judgment of Laws LJ in the Cart case, Divisional Court, [2009] EWHC 3052 (Admin), [2011] QB 120, in particular in para 38, which Lord Sumption sets out in para 190 above. In section 65(2) of the 2000 Act Parliament has specified the limits of the IPTs jurisdiction. So the question would have become whether, when it chooses to make a law which sets the limits of a jurisdiction, Parliament can elsewhere deprive it of an essential element of a law, namely that observance of its limits will be enforced in the courts. At first sight there is much to be said for Lord Carnwaths answer in paras 119 to 126 above that it cannot do so. But in my view such an answer is far less easily given to the second question if recast so as to address only Parliaments exclusion of judicial review of an ordinary error of law. In relation to this more limited question Lord Carnwath, albeit for his purposes again unnecessarily, reasons in para 131 above that it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review; and he observes in para 144 above that it should remain ultimately a matter for the court to determine the extent to which, in the light of its purpose and context and the nature and importance of the legal issue in question, a statutory ouster of review of an ordinary error of law should be upheld. One objection to Lord Carnwaths observation might be that, although constructed upon the rule of law, it fails to identify any robust criterion by reference to which the courts decision in any particular case could be foretold. At all events, for the more fundamental reasons which follow, I respectfully disagree with it. Every legal system has to identify some end point beyond which there can be no challenge or further challenge to a judicial decision; and it may well identify different end points for decisions in different areas of the law and, within any one area of it, perhaps different end points for challenges to decisions of fact, to decisions allegedly vitiated by an ordinary error of law and to decisions allegedly made in excess of jurisdiction in the proper sense. Our system will usually provide for some, perhaps circumscribed, right to bring an appeal against, or to seek other review of, an initial judicial decision (in other words not one made on appeal or review). But it will not always do so. There is no constitutional requirement that such a right should exist: see Lord Brown of Eaton under Heywood in R (A) v Director of Establishments of the Security Service, cited in para 19 above, para 23. Nor is it required as part of the right to a fair trial conferred by article 6 of the European Convention on Human Rights: Delcourt v Belgium (1970) 1 EHRR 355. In In re Racal Communications Ltd, cited in para 62 above, the appellate committee addressed a statute which empowered a judge of the High Court both to authorise inspection and to require production of company books reasonably believed to contain evidence of the commission of a criminal offence. The statute also provided that the judges decision should not be appealable. The complaint was that the judge had made an ordinary error of law: see the speeches of Lord Diplock at p 384 and of Lord Edmund Davies at p 388. The committee held that the Court of Appeal had had no power to reverse the judges decision on appeal. Lord Diplock said at p 384: Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judges decision shall not be appealable, they cannot be corrected at all. In Pearlman v Keepers and Governors of Harrow School, cited in para 69 above, the Court of Appeal had addressed a statute which empowered a county court judge to determine whether improvements made by a tenant to his leasehold property qualified for adjustment of its rateable value. The statute also provided that the determination should be final and conclusive. The Court of Appeal, by a majority, allowed an appeal by the tenant. But in the Racal case its decision was overruled: see the speeches of Lord Diplock at p 384 and of Lord Edmund Davies at p 390. In the Pearlman case it is therefore the dissenting judgment of Geoffrey Lane LJ which, so the appellate committee there held, provides the correct analysis of it. He said at p 74: the only circumstances in which the court can correct what is to my mind the error of the judge is if he was acting in excess of his jurisdiction as opposed to merely making an error of law in his judgment And he explained at p 76 that the tenants complaint was that the county court judge had made no more than an ordinary error of law. In R v Hull University Visitor, Ex p Page, cited in para 55 above, the appellate committee considered a complaint by a lecturer at Hull University that his dismissal had contravened its statutes and so been unlawful. The Queen, who was the visitor of the university and was acting by the Lord President of the Privy Council, had rejected his complaint. The appellate committee decided by a majority that the Divisional Court, which had quashed Her Majestys decision in the course of conducting a judicial review, had lacked jurisdiction to entertain it. Lord Browne Wilkinson, for the majority, explained at p 702 that the university statutes were not the general law of the land. But his conclusion at p 704 remains useful and was as follows: Judicial review does not lie to impeach the decisions of a visitor taken within his jurisdiction (in the narrow sense) on questions of either fact or law. Judicial review does lie to the visitor in cases where he has acted outside his jurisdiction (in the narrow sense) or abused his powers or acted in breach of the rules of natural justice. Lord Griffiths, at pp 693 694, gave a wide interpretation to the decision in the Racal case. He said that it shows that Parliament can by the use of appropriate language provide that a decision on a question of law whether taken by a judge or by some other form of tribunal shall be considered as final and not be subject to challenge either by way of appeal or judicial review. [Emphasis supplied] In the Cart case the challenge was to a refusal on the part of the Administrative Appeals Chamber of the Upper Tribunal to grant permission to appeal to it. Parliament, which had designated the tribunal as a superior court of record, had excluded a right of appeal against its refusal of permission. Could there, however, be a judicial review of it? Parliament had not expressly excluded it. The complaint was of an ordinary error of law on the part of the tribunal. The Divisional Court, cited in para 116 above, and the Court of Appeal, [2010] EWCA Civ 859; [2011] QB 120, had both held, for slightly different reasons, that the institutional features of the Upper Tribunal were such that its unappealable decisions could be the subject of judicial review when, but only when, they were said to be in excess of jurisdiction. By the time when the case reached the Supreme Court, cited in para 76 above, the government had accepted that analysis: see Lord Dyson, para 108. So by that time the only remaining question was whether judicial review could extend to ordinary errors of law alleged to have been perpetrated by the tribunal in making unappealable decisions. This courts answer was that there could be judicial review of such errors in limited circumstances not present in the case before it. For current purposes the great importance of the decision lies in the observations of Lady Hale, in a judgment with which all the other members of the court agreed, at para 40. Lord Sumption has quoted them in para 211 above. Lady Hale there recognised that, although it had not done so, Parliament might successfully have ousted judicial review of ordinary errors of law made by a tribunal of limited jurisdiction such as the Upper Tribunal. We therefore see that the High Court judge in the Racal case, the county court judge in the Pearlman case and the Upper Tribunal in the Cart case can, in the course of making unappealable decisions, make ordinary errors of law of which Parliament has power to exclude judicial review. Does the IPT stand so differently from them as to mandate a different conclusion? The answer is to be collected from examination of its institutional features, of which I now offer a brief summary. The President of the IPT must hold or have held high judicial office: the 2000 Act, Schedule 3, paragraph 2(2). At present the incumbent is Singh LJ. Its other members must either hold or have held high judicial office or must be UK lawyers of at least seven years standing: Schedule 3, paragraph 1(1). At present the other members are two High Court judges in England and Wales, a former High Court judge in Northern Ireland, and six other distinguished Queens Counsel including a practitioner in Scotland. In exercising its jurisdiction the IPT is required to apply the principles which a court would apply on an application for judicial review: section 67(2) and (3)(c) of the 2000 Act. So the function of judicial review of the lawfulness of the actions of the intelligence services has therefore been allocated to it and, so this court held in the A case, exclusively so. The need for the allocation reflects the sensitivity of any inquiry into the lawfulness of such actions and therefore the unique raft of provisions devised for the conduct of the IPT, as set out in section 68 of the 2000 Act and in the Investigatory Powers Tribunal Rules, first those dated 2000 (2000 No 2665) and now those dated 2018 (2018 No 1334), made under section 69 of it. These provisions reflect its investigative duty under section 67(3)(a) and (b) and include, by section 68(1), a right, subject to the rules, to determine its own procedure and thus to adopt an inquisitional process and, by rule 13(1) of the current rules, freedom from rules of evidence. Disclosure of the nature of the complaint and of any information or document provided to it from any source is closely circumscribed by what is now rule 7, as is the content of the notification to the complainant of its ultimate determination under section 68(4) and what is now rule 15. In the Big Brother Watch case, cited in para 28 above, the European Court of Human Rights said at para 255: the IPT, as the only tribunal with jurisdiction to obtain and review below the waterline [ie closed] material, is not only the sole body capable of elucidating the general operation of a surveillance regime: it is also the sole body capable of determining whether that regime requires further elucidation. The IPT does not form part of Her Majestys Courts and Tribunal Service. In effect it has total autonomy. In his Report of the Review of Tribunals dated March 2001 Sir Andrew Leggatt said at para 3.11 that the IPTs concern with security required it to be separate from all other tribunals and that the Senior President of Tribunals would not be in a position to take charge of it. Parliament has therefore conferred both independence and authority upon the IPT. In the A case Lord Brown, with whom all other members of the court agreed, endorsed at para 23 the conclusion of Laws LJ in the court below that the IPT was a judicial body of like standing and authority to that of the High Court. In the above circumstances I conclude that Parliament does have power to exclude judicial review of any ordinary errors of law made by the IPT. My answer to the second question posed at the outset of this judgment, if limited to the sort of determination relevant to this case, namely to an ordinary determination of law, is yes. So I would have dismissed the appeal.	The Investigatory Powers Tribunal (IPT) is a specialist tribunal established under the Regulation of Investigatory Powers Act 2000 (RIPA). It has jurisdiction to examine, among other things, the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters. Section 67(8) of RIPA provides: Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court. On a preliminary issue in a claim brought by the appellant, the IPT ruled that section 5(2) of the Intelligence Services Act 1994 (the 1994 Act), which empowers the Secretary of State to issue a warrant authorising the taking of such action as is specified in the warrant in respect of any property so specified, extends to warrants authorising a class of activity in respect of a class of property so called thematic warrants. The appellants applied for judicial review, but the High Court ruled that section 67(8) of RIPA prohibits judicial review of that decision. The Court of Appeal dismissed the appellants appeal against that ruling. The two issues before the Supreme Court are: i) Whether section 67(8) of RIPA ousts the supervisory jurisdiction of the High Court to quash a judgment of the IPT for error of law. ii) Whether, and, if so, in accordance with what principles, Parliament may by statute oust the supervisory jurisdiction of the High Court to quash the decision of an inferior court or tribunal of limited statutory jurisdiction. The Supreme Court allows the appeal by a majority. Lord Carnwath gives the lead judgment, with which Lady Hale and Lord Kerr agree. Lord Lloyd Jones gives a separate concurring judgment. The majority allow the appeal on the first issue, as they conclude that section 67(8) does not oust the supervisory jurisdiction of the High Court for errors of law. Lord Sumption (with whom Lord Reed agrees) and Lord Wilson give dissenting judgments. (i) Whether section 67(8) of RIPA ousts the supervisory jurisdiction of the High Court Lord Carnwath holds that the interpretation of section 67(8) must be informed by the close parallel with the provision under review by the House of Lords in Anisminic v Foreign Compensation Commission [1969] 2 AC 14. By the time the predecessor to RIPA was drafted in 1985, following Lord Diplocks explanation in OReilly v Mackman [1983] 2 AC 237, the drafter can have had no doubt that a determination vitiated by any error of law, jurisdictional or not, was to be treated as no determination at all. The reference to a determination was to be read as a reference only to a legally valid determination [105]. The exercise is not one of ordinary statutory interpretation, as there is a common law presumption against ousting the jurisdiction of the High Court. The plain words of the subsection must yield to the principle that such a clause will not protect a decision that is legally invalid. Therefore the exclusion in section 67(8) of RIPA applies only to determinations, awards or other decisions that are not erroneous in law [107]. The relevant decision in this case raised a short point of law, which on no ordinary view could be regarded as a decision as to whether [the IPT] had jurisdiction [108]. If read in the context of Anisminic, those words in parenthesis in section 67(8) apply only to a legally valid decision relating to jurisdiction [109]. This does not mean the words in parenthesis are otiose, as some decisions as to jurisdiction will involve issues of fact to which the exclusion could be said to apply without engaging the presumption against ouster [110]. Moreover, judicial review can only be excluded by the most clear and explicit words. A more explicit formula might have excluded challenges to any determination or purported determination [111]. The features of the IPT regime, on which the Court of Appeal relied, do not change the interpretation of section 67(8). As this case shows, the IPT can organise its procedures to ensure that a material point of law can be considered without threatening any security interests. Further, the potential for overlap with legal issues considered by ordinary courts makes it important that the IPT is not able to develop its own local law without scope for further review [112]. Lord Lloyd Jones agrees with Lord Carnwath. He adds that it is a necessary corollary of the sovereignty of Parliament that there should exist an authoritative and independent body which can interpret and mediate legislation made by Parliament. Central to the appeal is whether it was the intention of Parliament to modify the procedures by which statute law is mediated [160]. He finds it a striking feature of section 67(8) and its predecessor that it failed to exclude purported determinations, awards and other decisions, in light of the judgment of Lord Diplock in OReilly v Mackman [164]. The words in parenthesis do not extend the exclusion of the jurisdiction of the High Court to what purport to be decisions but in law are not to be so regarded [165]. Lord Sumption, dissenting, concludes that the effect of section 67(8) is to exclude the jurisdiction of the High Court to entertain a challenge to the IPTs decisions on the merits. The rule of law is sufficiently vindicated by the judicial character of the IPT and it does not require a right of appeal from the decisions of a judicial body of this kind [172]. If the IPTs construction of section 5(2) of the 1994 Act was an error, then it was an error within the permitted field of interpretive power which Parliament has conferred on the IPT. Therefore, the effect of section 67(8) is that the High Court had no jurisdiction to entertain a challenge to the IPTs decision in the present case [206]. Lord Wilson, dissenting, concludes that the meaning of the words in parenthesis in section 67(8) encompass within the exclusion of judicial supervision all the decisions of the IPT in relation to its jurisdiction. He ascribes to that word the strained extension of its effect adopted in Anisminic, such that the exclusion in section 67(8) covers both ordinary errors of law as well as errors of jurisdiction in the proper sense of the word. The presumption that Parliament did not intend such an exclusion has to yield to the only reasonable meaning of its words [224]. (ii) Whether Parliament may by statute oust the supervisory jurisdiction of the High Court Lord Carnwath states that his conclusion on the first issue makes it strictly unnecessary to consider the second issue [113]. He nonetheless comments that it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review [131]. This proposition is a natural application of the constitutional principle of the rule of law and an essential counterpart to the power of Parliament to make law. The question in any case is the level of scrutiny required by the rule of law [132]. Some forms of ouster clause may readily satisfy such a test, as in the six week time limit for planning cases [133]. Lord Carnwath sees a strong case for holding that binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. It should remain a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question [144]. Lord Sumption does not think it would be appropriate or wise to answer the second issue in wholly general terms. It should be addressed in the context of the statute in this case, and of the assumption that section 67(8) excludes judicial review of the IPTs decisions on merits [207]. He accepts that Parliaments intention that there should be legal limits to a tribunals jurisdiction is not consistent with the courts lacking the capacity to enforce those limits [210]. The question here, however, is how to reconcile the limited character of the IPTs jurisdiction with the language of section 67(8). The reconciliation is that section 67(8) does no more than exclude review by the High Court of the merits of decisions made by a tribunal performing the same functions as the High Court. It is in substance an exclusion of appeals on the merits and other proceedings tantamount to an appeal on the merits [211]. Lord Wilson recasts the second issue to address only Parliaments exclusion of judicial review of an ordinary error of law [237]. He concludes that Parliament has conferred both independence and authority upon the IPT and, in those circumstances, Parliament does have the power to exclude judicial review of any ordinary errors of law made by it [252 253].
The issue in this case is whether a woman who has temporarily left work because of the late stages of pregnancy and early aftermath of childbirth is to be treated as a worker for the purpose of the right of free movement enshrined in article 45 of the Treaty on the Functioning of the European Union (TFEU) and more specifically the right of residence conferred by Article 7 of Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the Citizenship Directive). Upon this depends her entitlement to income support, a non contributory, means tested benefit. Under UK domestic law, a pregnant woman within 11 weeks of her expected date of confinement is not required to be available for, or actively to seek, work. However, a national of another EU state will be excluded as a person from abroad unless, in this case, she falls within Article 7. The facts The claimant is a Frenchwoman (and qualified teacher) who came to the United Kingdom on 10 July 2006. She worked in various jobs, mostly as a teaching assistant, from 1 September 2006 until 1 August 2007. She then enrolled on a Post Graduate Certificate in Education course in the University of London, the envisaged period of study being from 17 September 2007 until 27 June 2008. She became pregnant with an expected date of confinement of 2 June 2008. She therefore withdrew from her course as of 1 February 2008. She undertook agency work from 22 January 2008, hoping to find work in secondary schools. As none was available, she took agency positions working in nursery schools. By 12 March 2008, when she was nearly six months pregnant, the demands of caring for nursery school children became too strenuous and she stopped this work. She looked for lighter work for a few days but none was available. On 18 March 2008, she made a claim for income support. Her evidence is that, as it was now 11 weeks before her expected date of confinement, she was advised by her general practitioner to do so. On 4 May 2008, the Secretary of State refused her claim. Her baby was born prematurely on 21 May 2008 and she returned to work three months later. On 4 September 2008, the First Tier Tribunal allowed the claimants appeal against the refusal of income support. But on 7 May 2010, the Upper Tribunal allowed the appeal of the Secretary of State. On 13 July 2011, the Court of Appeal dismissed the claimants appeal: see [2011] EWCA Civ 806. She now appeals to the Supreme Court of the United Kingdom. Relevant domestic law The relevant domestic legislation is complex. By virtue of regulation 4ZA of and paragraph 14 of Schedule 1B to the Income Support (General) Regulations 1987 (SI 1987/1967), a woman who . is or has been pregnant but only for the period commencing 11 weeks before her expected week of confinement and ending fifteen weeks after the date on which her pregnancy ends falls within a prescribed category of person for the purpose of section 124(1)(e) of the Social Security Contributions and Benefits Act 1992 and is thus eligible for income support. Unlike the closely related Jobseekers Allowance, there is no requirement for such a person to be available for work or actively seeking employment. A pregnant woman who is available for or actively seeking work may claim Jobseekers Allowance until six weeks before her expected date of confinement, but from then until two weeks after she ceases to be pregnant, she is deemed incapable of work and so cannot do so: see regulation 14 of the Social Security (Incapacity for Work) (General) Regulations 1995. Thus without other sources of income (including stutory maternity pay and other social security benefits for which some but not all pregnant women are eligible) she will be left destitute unless income support is available. However, a person from abroad is effectively excluded from entitlement to income support because the applicable amount prescribed for such a person is nil: see the 1992 Act, section 124(1)(b) and paragraph 17 of Schedule 7 to the 1987 Regulations. Regulation 21AA of those Regulations tells us what a person from abroad means. By regulation 21AA(1), it means a claimant who is not habitually resident in the United Kingdom . By regulation 21AA(2), No claimant shall be treated as habitually resident in the United Kingdom . unless he has a right to reside in . the United Kingdom . This is subject to various exclusions in regulation 21AA(3) which do not concern us. However, by regulation 21AA(4): A claimant is not a person from abroad if he is (a) a worker for the purposes of Council Directive No 2004/38/EC; (b) a self employed person for the purposes of that Directive; (c) a person who retains a status referred to in sub paragraph (a) or (b) pursuant to article 7(3) of that Directive; (d) a person who is a family member of a person referred to in sub paragraph (a), (b) or (c) within the meaning of article 2 of that Directive; (e) a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive. Thus EU citizens who are workers in the United Kingdom within the meaning of EU law are put in the same position as habitually resident citizens of the UK for the purpose of entitlement to income support (and indeed other benefits, such as housing benefit and child benefit, to which it is the passport or which have a similar rule of entitlement). European Union law The relevant provisions of European Union law are article 45 of the TFEU and Article 7 of the Citizenship Directive. Article 45 enshrines the principle of freedom of movement for workers and requires the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. Neither Article 45 TFEU nor Article 7 of the Directive defines worker. The central issue in this case is whether a pregnant woman who temporarily gives up work because of her pregnancy remains a worker for this purpose. Article 7 of the Citizenship Directive, so far as relevant, provides as follows: 1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self employed persons in the host Member state; . 3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self employed person shall retain the status of worker or self employed person in the following circumstances: (a) he/she is temporarily unable to work as the result of an illness or accident; (b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job seeker with the relevant employment office; (c) he/she is in duly recorded involuntary unemployment after completing a fixed term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job seeker with the relevant employment office. In this case the status of worker shall be retained for no less than six months; (d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment. It is noted that not all of the persons covered by Article 7(3) will be involuntarily unemployed or unable to work. Reference was also made in the course of argument to Articles 16(3) and 24. Article 16(3) provides that the continuity of residence required to obtain the right of permanent residence in the host Member State is not affected by a temporary absence of up to twelve months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training. Article 24(1) requires that Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The parties arguments It is common ground between the parties that the term worker includes (i) a person who currently has a contract of employment with an employer, but who is on paid or unpaid maternity leave; and (ii) in certain circumstances, a person who does not currently have a contract of employment but is actively seeking work in the host country: see R v Immigration Appeal Tribunal, Ex p Antonissen (Case C 292/89) [1991] ECR I 745. It is also common ground between the parties that the claimant does not fall within any of the categories of person specified in Article 7(3) who are to retain the status of worker for the purpose of Article 7(1)(a). In particular, although she had understandable reasons for not continuing to work or look for work, there is no finding that she was in fact unable to do work of any kind, nor would such inability have been the result of illness or accident. Pregnancy on its own is not an illness: Webb v EMO Air Cargo (UK) Ltd (Case C 32/93) [1994] ECR I 3567. The claimant, with the support of the AIRE (Advice on Individual Rights in Europe) Centre, submits that an EU citizen who travels to another Member State in order to work there, does work there, but temporarily ceases work owing to the demands of pregnancy, remains a worker. They rely upon the long standing and well settled approach of the CJEU giving a broad and purposive interpretation to the term worker having regard to social as well as economic considerations. Examples given are Levin v Secretary of State for Justice (Case 53/81) [1982] ECR 1035, at para 13; Kempf v Staatssecretaris van Justitie (Case 139/85) [1986] ECR 1741, at para 13; Lair v Universitt Hannover (Case 39/86) [1988] ECR 3161; Antonissen, above; and Orfanopoulos v Land Baden Wrttemberg (Joined Cases C 482/01 and C 493/01) [2004] ECR I 5257. In Lair, in particular, at para 31, the Court observed that the rights guaranteed to migrant workers do not necessarily depend on the actual or continuing existence of an employment relationship. In Ninni Orasche v Bundesminister fr Wissenschaft, Verkehr under Kunst (Case C 413/01) [2003] ECR I 13187, it was held that a person might retain her worker status after the ending of a fixed term contract. Furthermore, they argue that the Court has on a number of occasions given significant weight to the prospect of EU citizens being deterred from exercising their free movement rights if these are too narrowly interpreted: examples are R v Immigration Appeal Tribunal and Surinder Singh, Ex p Secretary of State for the Home Department (Case C 370/90) [1992] ECR I 4265 and Metock v Minister for Justice, Equality and Law Reform (Case C 127/08) [2009] QB 318. If a pregnant woman loses the status of worker she may also lose her right to reside in the host state (there is even a risk that she might be threatened with removal). It would be a substantial deterrent to the free movement of female workers if they were faced with the prospect of being left destitute, and threatened with removal to their home country, should they become pregnant and temporarily give up work in the later stages of pregnancy. After all, there comes a point in any pregnancy where a woman has to give up actual work for a short while just in order to give birth, but she will not fall within the literal wording of article 7(3)(a). It is argued that it would be wrong to place decisive weight on the continuation of a contract of employment in such circumstances. In CIS/1042/2008, the Secretary of State conceded to the Social Security Commissioner that a self employed woman who takes a break for reasons of maternity remains a self employed person for the purpose of Article 7. It would be particularly unjust if a woman who is wrongfully dismissed from her employment because of her pregnancy, which is contrary to both EU and domestic law, loses her character as a worker unless she registers as a job seeker. There is, it is said, no logical basis for treating an agency worker without the protection of maternity leave differently from an employee who takes maternity leave or a self employed woman who gives herself a break. None of them has left the labour market in any permanent sense. Further, it would be anomalous if a pregnant woman who gave up work and returned to her home country for up to a year did not lose her continuity of residence for the purpose of Article 16, while a pregnant woman who gave up work for up to six months but remained in the host country would do so. The latter retains a significantly closer connection with the host country but would have to start her qualifying period of residence all over again. The Secretary of State, on the other hand, points to the mention of codification of existing Community instruments in recital (3) to the Directive. He argues that Article 7 was intended to be a codification of the existing law. Thus worker in Article 7(1) should be taken to have the meaning that it had acquired in 2004 and Article 7(3) is an exhaustive list of the people who then fell outside that meaning but were nevertheless to be treated as if they were workers. The fact that a person might have good reasons for giving up work or looking for work for a while does not mean that he or she retains the status of worker. In support of that proposition he relies, in particular, on Secretary of State for Work and Pensions v Dias [2009] EWCA Civ 807, [2010] 1 CMLR 112; (Case C 325/09) [2011] 3 CMLR 1103. According both to the English Court of Appeal and to the Advocate Generals opinion, endorsed by the Court, the status of worker was lost when, at the end of her period of maternity leave, a mother decided not to return to work but to continue to care for her son, albeit that she might return to work in the future. This was consistent with the decision in Johnson v Chief Adjudication Officer (Case C 31/90) [1991] ECR I 3723 that a mother was not a member of the working population when devoting herself to looking after her children. Leaving because of the late stages of pregnancy, it is argued, is no different from leaving to take care of a child. The Secretary of State further submits that the claimants case leaves it uncertain whether and for how long a pregnant women who has no continuing employment contract and is not self employed remains a worker and points out that some women, once pregnant, may never return or intend to return to work. The claimant in response submits that, on the analogy with maternity leave, she should be regarded as a worker for the period during which national law regards it as reasonable that she be absent from work because of the late stages of pregnancy and the immediate aftermath of childbirth, that is for up to 11 weeks before her expected date of confinement and up to 15 weeks after the pregnancy ends (see paragraph 4 above). Both parties rely upon the Courts statement in Martinez Sala v Freistaat Bayern (Case C 85/96) [1998] ECR I 2691, at para 32: Once the employment relationship has ended, the person concerned as a rule loses his status of worker, although that status may produce certain effects after the relationship has ended, and a person who is genuinely seeking work must also be classified as a worker. The Secretary of State argues that that encapsulates the meaning of worker, characterised by the continuation of an employment relationship or by genuinely seeking work. The claimant argues that as a rule indicates that other analogous situations are not excluded and this is such an one. The claimant makes a separate but related argument, that if Article 7 were not to encompass the situation under discussion, this would constitute direct discrimination against women and be therefore contrary to the fundamental principle of equal treatment. It is well established that, where pregnancy is the ground for less favourable treatment, there is no need to identify a male comparator: see Webb v EMO Air Cargo (UK) Ltd [1994ECR I 3567. This goes further than saying that inability to work because of pregnancy should be equated with inability to work for other reasons. As the Advocate General said in that case, at para AG 14, Nor does it seem to me to be possible a fortiori to draw comparisons . between a woman on maternity leave and a man unable to work because, for example, he has to take part in a sporting event, even if it were the Olympic Games. Other considerations apart, a sportsman, even a champion (whether a man or a woman) is confronted with a normal choice reflecting his needs and priorities in life; the same cannot reasonably be said of a pregnant woman, unless the view is taken but it would be absurd that a woman who wishes to keep her job always has the option of not having children. Pregnancy is not just a lifestyle choice. Equal treatment encompasses the reasonable response of a working woman to the physical demands and limitations of late pregnancy and childbirth. UK law gives sensible recognition to these, not only for the sake of the mother but also for the sake of her child, by not requiring that she seek or be available for work from 11 weeks before the expected date of confinement until 15 weeks after her pregnancy has ended (whether with a live or a still birth). Excluding a woman who makes that choice from the right of residence which she would have retained had she not become pregnant is, it is argued, direct discrimination on grounds of sex. The Secretary of State argues that there is no sex discrimination. The claimant was refused income support because she does not have a right to reside in the UK as required by regulation 21AA(2) or Article 7 of the Citizenship Directive. Any discrimination is on grounds of her nationality and, as the Supreme Court held in Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11, [2011] 1 WLR 783, is indirect and justified. In any event, even if it were sex discrimination, this would not constitute a ground for the Court of Justice to strike down Article 7, which is plainly lawful as far as it goes. If there is a lacuna, it is for the EU legislature to rectify. The Courts view The Supreme Court is not persuaded that the case of either side is acte clair. We believe it likely that the Council and Parliament did think, when enacting the Citizenship Directive, that the Directive was codifying the law as it then stood. But we are not persuaded that in doing so it was precluding further elaboration of the concept of worker to fit situations as yet not envisaged. The Court has developed the concept of EU citizenship in a number of ways: see, for example, Collins v Secretary of State for Work and Pensions [2004] ECR I 2703. We are further conscious that pregnancy and the immediate aftermath of childbirth are a special case. Equal treatment of men and women is one of the foundational principles of EU law. Only women can become pregnant and bear children. Thus in this respect they cannot be compared to men. Pregnancy is not to be equated with illness or disability. But unless special account is taken of pregnancy and childbirth, women will suffer comparative disadvantage in the workplace. There are also good reasons in health and social policy for allowing women to take a reasonable period of maternity leave without losing the advantages attached to their status as workers. This is different from leaving the workforce in order to look after children. Both men and women may do this and there is no sex discrimination involved in denying them both the status of worker for the time being. We do not see the sex discrimination argument as invalidating Article 7, but as indicating that it would be consistent with the fundamental general principles of EU law for the Court to develop the concept of worker to meet this particular situation. The questions referred Is the right of residence conferred upon a worker in Article 7 of the Citizenship Directive to be interpreted as applying only to those (i) in an existing employment relationship, (ii) (at least in some circumstances) seeking work, or (iii) covered by the extensions in article 7(3), or is the Article to be interpreted as not precluding the recognition of further persons who remain workers for this purpose? (i) If the latter, does it extend to a woman who reasonably gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy (and the aftermath of childbirth)? (ii) If so, is she entitled to the benefit of the national laws definition of when it is reasonable for her to do so? 1. 2. Hence we refer the following questions to the CJEU:	The issue in this appeal is whether the appellant retained her right to reside in the United Kingdom as a worker pursuant to Article 7 of Directive 2004/38/EC (the Directive) during the period when she temporarily ceased to be employed by reason of the late stages of her pregnancy and early aftermath of childbirth. The appellant is a Frenchwoman who came to the UK in 2006. She worked in various jobs, mostly as a teaching assistant, enjoying the right of residence as a worker conferred by Article 7 of the Directive. By 12 March 2008 she was six months pregnant and she ceased taking agency positions working in nursery schools because the demands of this work were too strenuous. After a short period looking for lighter work she made a claim for income support on the advice of her doctor. It was refused by the respondent on the basis that she no longer held the status of worker, and was therefore a person from abroad who did not qualify for the benefit. Had she retained her right to reside as a worker under the Directive, she would have been entitled to income support under UK domestic law, which does not require a pregnant woman within 11 weeks of her expected date of confinement and for 15 weeks after the birth to be available for work. The appellants baby was born on 21 May 2008 and she returned to work three months later. Under Article 7(3) of the Directive, an EU citizen who is no longer working retains the status of worker in certain specified circumstances, including illness or accident, but these circumstances do not include ceasing to work by reason of late pregnancy or the immediate aftermath of childbirth. The appellant argued that under EU law a broad interpretation was given to the term worker, which did not necessarily depend on the actual or continuing existence of an employment relationship, and that it would be a substantial deterrent to the free movement of female workers, and amount to direct discrimination on grounds of sex, if they lost the right to reside around the time of giving birth. The respondent asserted, however, that Article 7 was intended to be a codification of the existing EU law on workers and women in the appellants position fell outside it. Any discrimination was on grounds of nationality, was indirect and was justified. The appellants appeals against the respondents refusal of income support were dismissed by the Upper Tribunal and the Court of Appeal. An appeal was made to the Supreme Court. The Supreme Court is obliged to refer questions of EU law to the Court of Justice for the European Union (the CJEU) if the application of the Directive in the circumstances of this case is not clear. The Supreme Court unanimously decides to refer two questions to the CJEU. The terms of the reference are set out by Lady Hale. The Supreme Court is not persuaded that the case of either appellant or respondent is clearly right and is therefore under a duty to refer the questions in issue to the CJEU. It considers it likely that the Directive codified the law as it then stood but that did not necessarily preclude further elaboration of the concept of worker to fit situations which had not been envisaged. Pregnancy and the immediate aftermath of childbirth (as opposed to leaving the workplace to look after children) are a special case, affecting only women, who will suffer comparative disadvantage in the workplace unless special account is taken of them. Equal treatment of men and women is one of the fundamental general principles of EU law and may lead to the development of the concept of worker by the CJEU to meet this particular situation. The following questions are therefore referred to the CJEU: 1. 2. Is the right of residence conferred upon a worker in Article 7 of the Citizenship Directive to be interpreted as applying only to those (i) in an existing employment relationship, (ii) (at least in some circumstances) seeking work, or (iii) covered by the extensions in Article 7(3), or is the Article to be interpreted as not precluding the recognition of further persons who remain workers for this purpose? (i) If the latter, does it extend to a woman who reasonably gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy (and the aftermath of childbirth)? (ii) If so, is she entitled to the benefit of the national laws definition of when it is reasonable for her to do so?
The Rugby Football Union (the RFU) is the governing body for rugby union in England. It owns the famous Twickenham stadium, the home ground of the England rugby football team. The RFU alone is responsible for issuing tickets for international and other rugby matches played at the stadium. As one would expect in light of the growing popularity of rugby union football, demand for tickets for home international games at Twickenham regularly greatly outstrips the number of tickets available, notwithstanding that the stadium has a capacity of 82,000. The RFU does not allow this circumstance to inflate the cost of tickets, however. On the contrary, it is their deliberate policy to allocate tickets so as to develop the sport of rugby and enhance its popularity. Most tickets for international matches are therefore distributed by the RFU to participants in the sport, via affiliated rugby clubs, referee societies, schools and other bodies which organise rugby. The distribution of the tickets thereafter depends on the nature of the body in question. Schools, for instance, are permitted to distribute tickets to "any member of staff, pupil or genuine sponsor. Member clubs are permitted to sell some or all of their ticket allocation (up to a combined maximum of 4,837 tickets per match across all member clubs) to official licensed operators who then use those tickets to provide official hospitality packages. The RFU's share of the profit from this goes towards the player accident and liability insurance scheme. The RFU's terms and conditions stipulate that any resale of a ticket or any advertisement of a ticket for sale at above face value will constitute a breach of contract rendering the ticket null and void, so that all rights evidenced by the ticket are extinguished. Applicants for tickets indicate agreement to these terms and conditions when submitting ticket application forms and the condition is printed on the tickets themselves. The terms on which tickets are supplied also include a condition that the ticket remains the property of the RFU at all times. Consolidated Information Systems Limited, a firm in liquidation, was formerly known as Viagogo Limited (Viagogo). Viagogo operated a website which provided the opportunity for visitors to the site to buy tickets online for a number of different sporting and other events at various venues. Included among these were tickets for rugby matches at Twickenham. The way in which these transactions took place was that prospective sellers of tickets could use the website to register tickets that they intended to sell and interested purchasers could then buy the tickets from those who wished to sell them. The website provided a means by which persons were able anonymously to sell event tickets at the going market price. A price based on current market data was suggested by Viagogo's website to potential sellers when they registered a ticket for sale. Viagogo received a percentage of the price paid for the ticket. The website carried a privacy policy. This was accessed through a link at the bottom of the website page. It was accompanied by the words, Use of this website constitutes acceptance of the Terms and Conditions and Privacy Policy. The privacy policy was also brought to the attention of a prospective seller when he registered on the site. The steps taken by the RFU to protect its policy The RFU contends that arguable wrongs are involved in the advertisement and sale of tickets at above face value through the website. The sale of tickets at above face value, it is argued, impinges directly on the RFUs policy of promoting the sport of rugby by allowing tickets to be sold at affordable prices. It is no longer disputed that the sale of tickets in the manner facilitated by Viagogos website arguably constitutes an actionable wrong. Previously, the RFU has sought injunctions against ticket touts and unlicensed corporate hospitality providers who were selling tickets in breach of the conditions on which tickets had been supplied. It has also taken disciplinary action against clubs that had distributed tickets other than as stipulated by the conditions. In order to take these actions, of course, the RFU had to discover the identity of the individuals or clubs involved in the sale of the tickets. It engaged in a system of monitoring the websites of secondary sellers of tickets in an attempt to discover whether tickets were being sold above face value and, if so, by whom. This effort was frustrated in many instances, however, because of the anonymity offered by websites including that of Viagogo. In the run up to the autumn international rugby matches in 2010 and the home matches for the six nations tournament in 2011, the RFU not only continued to monitor websites, including Viagogos, it also conducted a series of test purchases from the Viagogo website. It discovered that Viagogo had been used to advertise thousands of tickets for the seven games that were to be played at Twickenham. Tickets with a face value of 20 to 55 were being advertised for sale at up to some 1,300. Blocks of tickets up to 24 were offered for sale. On making these discoveries, the RFUs legal advisers wrote to Viagogo seeking information about the identity of those involved in the sale and purchase of the tickets. This was resisted. The RFU therefore issued proceedings seeking the disclosure of the information which it considered was required in order to take the action that it considered was necessary to protect its policy in relation to the sale of the tickets. The proceedings On 21 March 2011 the RFU issued proceedings seeking disclosure, under the Norwich Pharmacal principles, of the identity of those who had advertised for sale or sold tickets for the autumn international and six nations matches. Tugendhat J acceded to the application, finding that there was a good arguable case that those who had received tickets from the RFU and the subsequent sellers and buyers of the tickets had been guilty of breach of contract and/or conversion [2011] EWHC 764 (QB). He also held that those who entered the stadium by use of a ticket obtained in contravention of RFU conditions were arguably guilty of trespass. The judge found that the RFU was seeking redress for these arguable wrongs by obtaining the order that it had applied for; that the information was necessary to achieve that redress; and that it was appropriate to exercise his discretion to grant the relief sought. Viagogo appealed the judges order. A short time before the hearing of the appeal, it sought and was granted leave to introduce a new ground for resisting the grant of a Norwich Pharmacal order. This was to the effect that the making of such an order would constitute an unnecessary and disproportionate interference with the rights of those who, arguably, were wrongdoers. Those rights derived from article 8 of the Charter of Fundamental Rights of the European Union which guarantees the protection of personal data. The Court of Appeal dismissed Viagogos appeal [2011] EWCA Civ 1585. It confirmed the findings of Tugendhat J that the RFU had an arguable case on the ground of breach of contract and trespass. It decided that the RFU had no readily available alternative means of discovering who the possible wrongdoers were other than by means of a Norwich Pharmacal order. On the argument that such an order would constitute unacceptable interference with the personal data rights of those involved in the sale and purchase of the tickets, the Court of Appeal held that such interference as would be involved by the issue of the order was proportionate in light of the RFUs legitimate objective in obtaining redress for the arguable wrongs. Before this court, the appellants argument was effectively confined to the claim that the grant of the order would involve a breach of article 8 of the Charter. The Norwich Pharmacal order The jurisdiction to allow a prospective claimant to obtain information in order to seek redress for an arguable wrong was recognised by the House of Lords in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133. Its scope was described by Lord Reid at p 175: . if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co operate in righting the wrong if he unwittingly facilitated its perpetration. Later cases have emphasised the need for flexibility and discretion in considering whether the remedy should be granted: Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033, para 57 per Lord Woolf CJ; Koo Golden East Mongolia v Bank of Nova Scotia [2008] QB 717, paras 37 38 per Lord Clarke MR. It is not necessary that an applicant intends to bring legal proceedings in respect of the arguable wrong; any form of redress (for example disciplinary action or the dismissal of an employee) will suffice to ground an application for the order: British Steel Corporation v Granada Television Ltd [1981] AC 1096, 1200 per Lord Fraser of Tullybelton. The need to order disclosure will be found to exist only if it is a necessary and proportionate response in all the circumstances: Ashworth at paras 36, 57 per Lord Woolf CJ. The test of necessity does not require the remedy to be one of last resort: R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2009] 1 WLR 2579, para 94. The essential purpose of the remedy is to do justice. This involves the exercise of discretion by a careful and fair weighing of all relevant factors. Various factors have been identified in the authorities as relevant. These include: (i) the strength of the possible cause of action contemplated by the applicant for the order: Norwich Pharmacal at p 199F G per Lord Cross of Chelsea, Totalise plc v The Motley Fool Ltd [2001] EMLR 750 at first instance para 27 per Owen J, Clift v Clarke [2011] EWHC 1164 (QB) paras 14, 38 per Sharp J; (ii) the strong public interest in allowing an applicant to vindicate his legal rights: British Steel at 1175C D per Lord Wilberforce, Norwich Pharmacal at p 182C D per Lord Morris of Borth y Gest, 188E F per Viscount Dilhorne; (iii) whether the making of the order will deter similar wrongdoing in the future: Ashworth at para 66 per Lord Woolf CJ; (iv) whether the information could be obtained from another source: Norwich Pharmacal at 199F G per Lord Cross, Totalise plc at para 27, President of the State of Equatorial Guinea v Royal Bank of Scotland International [2006] UKPC 7 at para 16 per Lord Bingham of Cornhill; (v) whether the respondent to the application knew or ought to have known that he was facilitating arguable wrongdoing: British Steel per Lord Fraser at 1197A B, or was himself a joint tortfeasor, X Ltd v Morgan Grampian (Publishers) Ltd [1991] 1 AC 1, 54 per Lord Lowry; (vi) whether the order might reveal the names of innocent persons as well as wrongdoers, and if so whether such innocent persons will suffer any harm as a result: Norwich Pharmacal at 176B C per Lord Reid; Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405, 434 per Lord Cross; (vii) the degree of confidentiality of the information sought: Norwich Pharmacal at 190E F per Viscount Dilhorne; (viii) the privacy rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of the individuals whose identity is to be disclosed: Totalise plc at para 28; (ix) the rights and freedoms under the EU data protection regime of the individuals whose identity is to be disclosed: Totalise plc v The Motley Fool Ltd at paras 18 21 per Owen J; (x) the public interest in maintaining the confidentiality of journalistic sources, as recognised in section 10 of the Contempt of Court Act 1981 and article 10 ECHR: Ashworth at para 2 per Lord Slynn of Hadley. Many of these factors are self evidently relevant to the question of whether the issue of a Norwich Pharmacal order is proportionate in the context of article 8 of the Charter. The Data Protection Directive The principal instrument of the EU data protection regime is Directive 95/46/EC (the Directive). Article 1(1) of the Directive provides: In accordance with this Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data. Article 6 of the Directive requires that Member States should make provision to ensure that personal data is processed fairly and lawfully. The concept of processing is wide. The regime enacted by the Directive thus applies to electronic databases as well as hard copy article 3(1). Article 7 of the Directive prescribes criteria for making data processing legitimate, stating in relevant part: Member States shall provide that personal data may be processed only if: (a) the data subject has unambiguously given his consent; or (c) processing is necessary for compliance with a legal obligation to which the controller is subject; or (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1(1). Article 13 of the Directive deals with exemptions and restrictions. The relevant provisions for present purposes are these: (1) Member States may adopt legislative measures to restrict the scope of the obligations and rights provided for in Articles 6(1), 10, 11(1), 12 and 21 when such a restriction constitutes a necessary measure to safeguard (g) the protection of the rights and freedoms of others In Case C 275/06 Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU [2008] 2 C.M.L.R. 465, para 53 the Court of Justice of the European Union (CJEU) held that the provisions of article 13, as referred to in article 15(1) of Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector ([2002] OJ L201/37) must be interpreted as expressing the Community legislatures intention not to exclude from their scope the protection of the right to property or situations in which authors seek to obtain that protection in civil proceedings. From this it is clear that it is open to member states to make provision in domestic legislation that there should be disclosure of personal data in civil proceedings, where that is necessary to enable a person with a viable cause of action to pursue it in the courts. The Data Protection Act 1998 The United Kingdom implemented the Directive by the Data Protection Act 1998. Relying on article 13(1)(g) of the Directive the government chose to exempt from the nondisclosure provisions all disclosures of personal data which were required by law or made in connection with legal proceedings. The relevant section of the 1998 Act is section 35, which provides: (1) Personal data are exempt from the non disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court. (2) Personal data are exempt from the non disclosure provisions where the disclosure is necessary (a) for the purpose of or in connection with, any legal proceedings (including prospective legal proceedings), or (b) for the purpose of obtaining legal advice, or is otherwise necessary for the purposes of establishing, exercising or defending legal rights. Before a Court makes an order requiring disclosure of personal data, which would attract the exemption under section 35(1), it must first take into account and weigh in the balance the right to privacy with respect to the processing of personal data which is protected by article 1(1) of the Directive: Totalise plc v The Motley Fool Ltd [2002] 1 WLR 1233 in the Court of Appeal at para 24 per Aldous LJ. The Charter The European Charter was proclaimed by the European Parliament, Council and Commission at Nice in December 2000. Its purpose was expressed to be the assembly in a single instrument of those fundamental rights which European Union law had previously identified in legislation or in decisions of the CJEU. In its initial incarnation the Charter had persuasive value: the CJEU referred to and was guided by it (see, for instance, Promusicae at paras 61 70). The Charter was given direct effect by the adoption of the Lisbon Treaty in December 2009 and the consequential changes to the founding treaties of the EU which then occurred. Article 6(1) of the Treaty on European Union (TEU) now provides: 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 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. Although the Charter thus has direct effect in national law, it only binds member states when they are implementing EU law article 51(1). But the rubric, implementing EU law is to be interpreted broadly and, in effect, means whenever a member state is acting within the material scope of EU law: see e.g. R (Zagorski) v Secretary of State for Business, Innovation and Skills [2011] HRLR 6 140, paras 66 71 per Lloyd Jones J. Moreover, article 6(1) of TEU requires that the Charter must be interpreted with due regard to the explanations that it contains. Article 8 of the Charter provides: 1. Everyone has the right to the protection of personal data concerning him or her; 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law . The relevant explanation about article 8 and to which regard must be had is in the following terms: This Article has been based on Article 286 of the Treaty establishing the European Community and Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data Reference is also made to Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data The above mentioned Directive and Regulation contain conditions and limitations for the exercise of the right to the protection of personal data. Article 52(1) of the Charter sets out the circumstances in which an interference with the rights expressed in the Charter may be justified: 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. The appeal The RFU accepts that the High Court, when making the order, can be regarded as implementing Union law. Since article 2(a) of the Directive defines personal data as meaning any information relating to an identified or identifiable natural person (data subject), the names and addresses of individuals covered by the order qualify as personal data" under this definition. That being so, the order of the High Court involved the disclosure of personal data and was thus within the material scope of EU law. The appellants challenge to the Court of Appeals decision rests exclusively on the claim that it applied the wrong test in assessing the proportionality of the making of the Norwich Pharmacal order. Put succinctly, the appellant claims that, in assessing whether the order is proportionate, the court should evaluate the impact that the disclosure of the information will have on the individual concerned against the value to the applicant of the information that can be obtained about that particular individual. Expressed in simple terms which reflect the circumstances of this case, the court, according to the appellant, should confine its consideration to the individual transaction and ask, What value will the information about this particular individual have to the RFU? Mr Howe QC, who appeared for the appellant, submitted that Longmore LJ in the Court of Appeal had been wrong to suggest that it would generally be proportionate to make a Norwich Pharmacal order once it had been shown that there was arguable wrongdoing and that there was no realistic way of discovering the identity of the arguable wrongdoers other than by obtaining an order. Rather, Mr Howe claimed, the court should have asked whether obtaining information about a particular person who had sold a ticket at more than face value would benefit the RFU to an extent that outweighed that individuals right to have his or her personal data protected from disclosure. It was suggested that the way in which the Court of Appeal had formulated the test involved a presumptive approach. On that basis it was to be assumed that the need to obtain the information in order to prosecute an action to vindicate the right to property would in virtually every instance trump any claim to privacy and protection of personal data. The appellant contended that this assumption was misplaced. The proportionality of the interference could only be assessed by concentrating the examination on the particular circumstances of the individual transaction. In this way, the appellant claimed, the weighing exercise involved assessing how much benefit would derive from obtaining information about a single individual as against the infringement of that particular persons right to have his or her personal data protected. particular paras 65 70 of the CJEUs judgment in that case: In advancing this case Mr Howe relied first on the Promusicae case and in 65 The present reference for a preliminary ruling thus raises the question of the need to reconcile the requirements of the protection of different fundamental rights, namely the right to respect for private life on the one hand and the rights to protection of property and to an effective remedy on the other. 66 The mechanisms allowing those different rights and interests to be balanced are contained, first, in Directive 2002/58 itself, in that it provides for rules which determine in what circumstances and to what extent the processing of personal data is lawful and what safeguards must be provided for, and in the three directives mentioned by the national court, which reserve the cases in which the measures adopted to protect the rights they regulate affect the protection of personal data. Secondly, they result from the adoption by the Member States of national provisions transposing those directives and their application by the national authorities (see, to that effect, with reference to Directive 95/46, Lindqvist at [82]). 67 As to those directives, their provisions are relatively general, since they have to be applied to a large number of different situations which may arise in any of the Member States. They therefore logically include rules which leave the Member States with the necessary discretion to define transposition measures which may be adapted to the various situations possible (see, to that effect, Lindqvist at [84]). 68 That being so, the Member States must, when transposing the directives mentioned above, take care to rely on an interpretation of the directives which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality (see, to that effect, Lindqvist at [87]; and Ordre des Barreaux Francophones and Germanophone v Conseil des Ministres (C 305/05) [2007] 3 C.M.L.R. 28 at [28]). 69 Moreover, it should be recalled here that the Community legislature expressly required, in accordance with Art.15(1) of Directive 2002/58, that the measures referred to in that paragraph be adopted by the Member States in compliance with the general principles of Community law, including those mentioned in Art.6(1) and (2) TEU. 70 In the light of all the foregoing, the answer to the national courts question must be that Directives 2000/31, 2001/29, 2004/48 and 2002/58 do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings. However, Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality. Mr Howe suggested that in these passages the CJEU had prescribed a clear principle that national courts, in dealing with a claim for disclosure of personal data must weigh the potential value to the party seeking the material against the interests of the data subject. This unexceptionable claim can be readily accepted; it is its refinement and development that causes greater difficulty. Mr Howe argues that in making that assessment, the court must conduct the examination solely by reference to the particular benefit that obtaining the information relating to an individual data subject might bring. Its value as part of a broader context is not to be considered. Thus, for instance, the fact that obtaining the information might deter others from selling or buying tickets for rugby internationals could not be taken into account. I find this approach somewhat artificial, not to say contrived. It is unrealistic to fail to have regard to the overall aim of the RFU in seeking this information. It is not simply to pursue individuals. It obviously includes an element of active discouragement to others who might in the future contemplate the flouting of rules which the RFU seeks to enforce. There is nothing, in my opinion, in the cited passages from the CJEUs judgment that supports a restriction of the matters to be considered by a national court in the manner suggested. It was submitted, however, that the later case of C/461 10 Bonnier Audio AB v Perfect Communication Sweden AB made it even clearer that the inquiry as to proportionality was directed to the particular facts of each case and that, in consequence, broader considerations, extending beyond the specific circumstances of the data subject, were not to be taken into account. In the Bonnier Audio case the applicants were publishing companies holding exclusive rights to the reproduction, publishing and distribution to the public of works in the form of audio books. They claimed that their exclusive rights had been infringed by the public distribution of the works without their consent by means of a file transport protocol server which allowed file sharing and data transfer between computers connected to the internet. The applicants applied to a district court for an order for disclosure of data for the purpose of communicating the name and address of the person using the IP address from which it was assumed that the files in question had been sent. In that case the national measure under consideration permitted an internet service provider to be ordered to give a copyright holder information on the subscriber to whom the internet service provider had supplied a specific IP address which was used in the infringement of the copyright. The principal issue for the CJEU was whether this was precluded by Directive 2006/24. Particular reliance was placed on paras 59 and 60 of the judgment of the CJEU: 59 Thus [the Swedish domestic legislation] enables the national court seised of an application for disclosure of personal data, made by a person who is entitled to act, to weigh the conflicting interests involved, on the basis of the facts of each case and taking due account of the requirements of the principle of proportionality. 60 In those circumstances, such legislation must be regarded as likely, in principle, to ensure a fair balance between the protection of intellectual property rights enjoyed by copyright holders and the protection of personal data enjoyed by internet subscribers or users. Mr Howe suggested that the use of the expression, the facts of each case in para 59 of the courts judgment betokened a conclusion that the individual transaction between the internet provider and the subscriber was to be considered without reference to broader considerations that might motivate the applicant for disclosure of the information. I do not accept that submission. Of course the facts of each case must be considered. But this does not mean that they should be placed in a hermetically sealed compartment so that their possible impact on issues going well beyond their significance to the person whose personal data are sought is ignored. There is no logical or sensible reason to disregard the wider context in which the RFU wants to have access to this information. Their desire to prevent the future sale of tickets for international matches at inflated prices is intimately connected to the application for the Norwich Pharmacal order. The ability to demonstrate that those who contemplate such sale or purchase can be detected is a perfectly legitimate aspiration justifying the disclosure of the information sought. There is no coherent or rational reason that it should not feature in any assessment of the proportionality of the granting of the order. Mr Howe referred finally to the case of Goldeneye (International) Ltd v Telefonica UK Ltd [2012] EWHC 723 (Ch). In that case Golden Eye and 13 other claimants sought a Norwich Pharmacal order against Telefonica UK Ltd trading as O2, one of the six largest retail internet service providers in the UK. The object of the claim was to obtain disclosure of the names and addresses of customers of O2 who were alleged to have committed infringements of copyright through peer to peer file sharing. At paras 118 and 119 Arnold J set out the respective rights of the claimants and those whose personal data would be disclosed if a Norwich Pharmacal order was made: The Claimants rights 118. The Claimants position can be summarised as follows. They are owners of copyrights which have been infringed on a substantial scale by individuals who have been engaged in file sharing. The only way in which they can ascertain the identity of those individuals and seek compensation for past infringements is by (i) obtaining disclosure of the names and addresses of the Intended Defendants, (ii) writing letters of claim to the Intended Defendants seeking voluntary settlements and (iii) where it is cost effective to do so, bringing proceedings for infringement. The Intended Defendants rights 119. The Intended Defendants are not, of course, before me. With the assistance of Consumer Focus submissions, however, it seems to me that the position of the Intended Defendants can be summarised as follows. It is likely that most of the Intended Defendants are ordinary consumers, many of whom may be on low incomes and without ready access to legal advice, particularly specialised legal advice of the kind required for a claim of this nature. The grant of the order sought will invade their privacy and impinge upon their data protection rights. Furthermore, it will expose them to receiving letters of claim and may expose them to proceedings for infringement in circumstances where they may not be guilty of infringement, where the subject matter of the claim may cause them embarrassment, where a proper defence to the claim would require specialised legal advice that they may not be able to afford and where they may not consider it cost effective for them to defend the claim even if they are innocent. The situation in the Goldeneye case can be readily distinguished from the present case. There, unwitting customers of O2 might find themselves identified as possible downloaders of pornography and demands made of them for payment of the service. As was pointed out during argument on this appeal, some customers who had not engaged at all in downloading the material might feel constrained to make the payment demanded in order to avoid the embarrassment of being accused of that activity. In the present case, by contrast, all that is sought is the names and addresses of persons who have sold or bought tickets for international rugby matches in contravention of unambiguously stated rules that they should not do so. Mr Howe commended the test adumbrated by Arnold J in para 117 of his judgment as follows: In my judgment the correct approach to considering proportionality can be summarised in the following propositions. First, the Claimants copyrights are property rights protected by Article 1 of the First Protocol to the ECHR and intellectual property rights within Article 17(2) of the Charter. Secondly, the right to privacy under Article 8(1) ECHR/Article 7 of the Charter and the right to the protection of personal data under Article 8 of the Charter are engaged by the present claim. Thirdly, the Claimants copyrights are rights of others within Article 8(2) ECHR/Article 52(1) of the Charter. Fourthly, the approach laid down by Lord Steyn where both Article 8 and Article 10 ECHR rights are involved in In re S [2004] UKHL 47, [2005] 1 AC 593 para 17 is also applicable where a balance falls to be struck between Article 1 of the First Protocol/Article 17(2) of the Charter on the one hand and Article 8 ECHR/Article 7 of the Charter and Article 8 of the Charter on the other hand. That approach is as follows: (i) neither Article as such has precedence over the other; (ii) where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary; (iii) the justifications for interfering with or restricting each right must be taken into account; (iv) finally, the proportionality test or ultimate balancing test must be applied to each. I have no difficulty in accepting this as a correct statement of the approach to the question of proportionality in the Norwich Pharmacal context. But I do not accept that its application to the present appeal leads to the conclusion that the order should not be granted. An intense focus on the rights being claimed in individual cases does not lead to the conclusion that the individuals who will be affected by the grant of the order will have been unfairly or oppressively treated. On the contrary, all that will be revealed is the identity of those who have, apparently, engaged in the sale and purchase of tickets in stark breach of the terms on which those tickets have been supplied by the RFU. The entirely worthy motive of the RFU in seeking to maintain the price of tickets at a reasonable level not only promotes the sport of rugby, it is in the interests of all those members of the public who wish to avail of the chance to attend international matches. The only possible outcome of the weighing exercise in this case, in my view, is in favour of the grant of the order sought. In suggesting that it would generally be proportionate to make an order where it had been shown that there was arguable wrongdoing and there was no other means of discovering the identity of the arguable wrongdoers, Longmore LJ might be said to have somewhat overstated the position, although it is to be noted that this was not expressed as a presumption in favour of the grant of an order. The particular circumstances affecting the individual whose personal data will be revealed on foot of a Norwich Pharmacal order will always call for close consideration and these may, in some limited instances, displace the interests of the applicant for the disclosure of the information even where there is no immediately feasible alternative way in which the necessary information can be obtained. But, in the present case, the impact that can reasonably be apprehended on the individuals whose personal data are sought is simply not of the type that could possibly offset the interests of the RFU in obtaining that information. I would therefore dismiss the appeal. Consent Lord Pannick QC, who appeared for the RFU, deployed, as an alternative to the claim that the grant of the Norwich Pharmacal order was proportionate, the argument that the persons whose personal data were sought had given their consent to the disclosure of that information. In light of my conclusion as to the proportionality of the order, it is not strictly necessary to deal with this argument. It can, in any event, be disposed of briefly. Article 7(a) of the Directive provides that member states must provide that personal data may be processed if the data subject has given his unambiguous consent to its disclosure. Article 2(h) defines consent for this purpose. It provides that the data subjects consent shall mean any freely given, specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed. As part of the registration process a visitor to the Viagogo website was informed that use of the website constituted acceptance of the terms of the privacy policy referred to in para 5 above. A condition of registration was agreement to the Viagogo terms and conditions and the privacy policy. The privacy policy contains the following statement: You should be aware that in addition to the circumstances described above, Viagogo may disclose your financial or personal information if required to do so by law, court order, as requested by other government or law enforcement authority, or in the good faith belief that disclosure is otherwise necessary or advisable including, without limitation, to protect the rights or properties of Viagogo or its affiliated companies or when we have reason to believe that disclosing the information is necessary to identify, contact or bring legal action against someone who may be causing interference with our rights or properties, whether intentionally or otherwise, or when anyone else could be harmed by such activities. Lord Pannick suggested that this constituted an unambiguous consent sufficient to satisfy the requirements of articles 2(h) and 7(a). Even if the disclosure was disproportionate, therefore, by accepting Viagogos terms and conditions, the data subject had given unequivocal consent to the disclosure of his or her personal data. The short but, in my view, conclusive answer to this argument is that such consent as may have been given by acceptance of the terms and conditions did not include an agreement to disclose personal data other than when it was proportionate to do so. Viagogo could not be required by law to disclose personal data other than when it was concluded that it was proportionate to require it to do so. A court order requiring its disclosure could not be made without the necessary underpinning of proportionality. It follows that the person who registered on the Viagogo website consented at most to the disclosure of his or her personal data when it was established that this was a proportionate response to a request for its release. In my view, therefore, RFUs alternative argument based on consent must be rejected. It should be made clear, however, that the argument based on consent was, in the manner of its presentation, very much subsidiary to the principal submissions on the proportionality of the order, and my conclusions on it are, on that account, entirely incidental to the primary findings on the appeal.	The Rugby Football Union (RFU) is the governing body for Rugby Union in England. It also owns the Twickenham stadium and alone is responsible for issuing tickets for all international and other matches played at the stadium. It is the RFUs deliberate policy to allocate tickets so as to develop the sport of rugby and enhance its popularity. Most tickets are distributed via affiliated rugby clubs, referee societies, schools and other bodies. The distribution thereafter is subject to different rules depending on the nature of the body in question. Member clubs are permitted to sell some or all of their ticket allocation (up to a combined maximum of 4,837 tickets per match across all member clubs) to official licensed operators for use in corporate hospitality packages. The RFUs terms and conditions stipulate that any resale of a ticket or any advertisement of a ticket for sale at above face value will constitute a breach of contract rendering the ticket null and void. This condition is printed on the tickets and applicants are warned of it on ticket application forms. A further term stipulates that the tickets are property of the RFU at all times. Viagogo (now in liquidation) operated a website which provided the opportunity for visitors to the site to buy tickets online for a number of sporting and other events. Sellers would register their tickets with Viagogo and a price would be suggested based on current market data. Viagogo received a percentage of the sale. The RFU monitors ticket re sale websites in an attempt to discover whether and by whom tickets were being sold above face value. This effort was frustrated, however, in many instances by the anonymity offered by websites including Viagogo. In the run up to the international rugby matches in autumn 2010 and the six nations tournament, the RFU discovered that Viagogo had been used to advertise thousands of tickets for the matches at Twickenham. Tickets with a face value of 20 to 55 were being advertised for sale at up to 1300. After a request for information about the identity of those selling the tickets was refused, the RFU issued proceedings against Viagogo seeking information which it required in order to take action to protect its policy in relation to tickets. The High Court granted the RFU a Norwich Pharmacal order requiring Viagogo to disclose the identities of those involved in the sales. The order was made on the grounds that the RFU had a good arguable case that those selling and purchasing the tickets had been guilty of breach of contract and that it was appropriate to grant the order for them to obtain redress. Before the Court of Appeal, Viagogo introduced a new ground of appeal to the effect that granting the order represented a disproportionate interference with the rights of the potential wrongdoers under article 8 of the Charter of Fundamental Rights of the European Union. Article 8 guarantees the protection of personal data. The Court of Appeal upheld the decision of the High Court and decided that the RFU had no readily alternative means of pursuing the wrongdoers. On the new ground the Court of Appeal held that interference with the personal data rights of the individuals was proportionate in light of the RFUs legitimate objective in obtaining redress for arguable wrongs. The issue before the Supreme Court was whether the grant of the order involved a breach of article 8 of the Charter. The Supreme Court unanimously dismisses the appeal. Lord Kerr gives the judgment of the court. Lord Kerr considered the principles involved when making a Norwich Pharmacal order [14 18]. The need for an order for disclosure will only be found to exist if it is necessary and proportionate in all the circumstances [16]. The essential purpose of an order was to do justice in the case. This involved a careful weighing of all the relevant factors including the strength of the cause of action, whether those who have committed the alleged wrong knew or would have been likely to know that what they were doing was unlawful and the privacy rights of those whose identities were to be revealed [16 17]. Many of the factors involved in deciding whether to make a Norwich Pharmacal order are relevant to an assessment of whether disclosure is proportionate in the context of article 8 of the Charter [18]. Article 8 of the Charter was applicable as the order of the High Court involved disclosure of private data and thus was in the material scope of European Law [32]. Lord Kerr held that the appropriate test of proportionality under article 8 of the Charter involved weighing the benefit of the information being sought by the RFU against the impact that disclosure was likely to have on the individual concerned [33 36]. The appellant was wrong to suggest, however, that the assessment had to be carried out solely by reference to the particular benefit that obtaining information in relation to an individual might bring [36 37]. It was artificial and unrealistic to suggest that the RFUs aim of discouraging others in the future from flouting its rules should not be considered [37]. The facts of each case must be considered individually but there was nothing in the European cases cited or otherwise which supported the notion that the wider context for which the RFU wished to have the information should be left out of account.[40]. While there should be an intense focus on the rights claimed by the individuals concerned, this was not a case where disclosure would result in oppressive or unfair treatment. The only information sought was the names and addresses of individuals who had bought and sold tickets in clear breach of the RFUs ticket policy [43 45]. The particular circumstances affecting a person whose data were sought may in some limited cases displace the interests of the applicant for disclosure even where there was no feasible alternative way of getting the information. This was not such a case, however. [46].
These appeals raise the question as to the test which is to be applied when considering whether a gay person who is claiming asylum under the Convention relating to the Status of Refugees 1951, as applied by the 1967 Protocol (the Convention) has a well founded fear of persecution in the country of his or her nationality based on membership of that particular social group. The need for reliable guidance on this issue is growing day by day. Persecution for reasons of homosexuality was not perceived as a problem by the High Contracting Parties when the Convention was being drafted. For many years the risk of persecution in countries where it now exists seemed remote. It was the practice for leaders in these countries simply to insist that homosexuality did not exist. This was manifest nonsense, but at least it avoided the evil of persecution. More recently, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right wing evangelical Christian churches indulge in throughout much of Sub Saharan Africa is another. The death penalty has just been proposed in Uganda for persons who engage in homosexual practices. Two gay men who had celebrated their relationship in a public engagement ceremony were recently sentenced to 14 years imprisonment in Malawi. They were later pardoned in response to international pressure by President Mutharika, but he made it clear that he would not otherwise have done this as they had committed a crime against the countrys culture, its religion and its laws. Objections to these developments have been greeted locally with derision and disbelief. The fact is that a huge gulf has opened up in attitudes to and understanding of gay persons between societies on either side of the divide. It is one of the most demanding social issues of our time. Our own government has pledged to do what it can to resolve the problem, but it seems likely to grow and to remain with us for many years. In the meantime more and more gays and lesbians are likely to have to seek protection here, as protection is being denied to them by the state in their home countries. It is crucially important that they are provided with the protection that they are entitled to under the Convention no more, if I may be permitted to coin a well known phrase, but certainly no less. Background The appellants are both gay men. HJ, who is 40 years old, is an Iranian. He claimed asylum on arrival in the United Kingdom on 17 December 2001. He practised homosexuality in Iran and has continued to do so in the United Kingdom. HT, who is 36 years old, is a citizen of Cameroon. He claimed asylum following his arrest at Gatwick on 19 January 2007. He had presented a false passport while in transit to Montreal. He too is a practising homosexual. Both appellants claim that they have a well founded fear that they would be persecuted if they were to be returned to their home countries. The Secretary of State for the Home Department (the respondent) refused asylum in both cases. HJs appeal against that decision was dismissed by the Asylum and Immigration Tribunal on 15 August 2005. On 26 July 2006 the Court of Appeal remitted his case to the Tribunal for reconsideration: J v Secretary of State for the Home Department [2006] EWCA Civ 1238, [2007] Imm AR 73. On 8 May 2008, following reconsideration, his appeal remained dismissed. HTs appeal to the Tribunal was dismissed on 29 October 2007. Reconsideration was ordered on 14 November 2007 on the ground that the Tribunal might have made an error of law in the test to be applied to a gay person seeking asylum. But on 5 June 2008 Senior Immigration Judge Warr held that the earlier determination was not flawed, and he did not proceed to a reconsideration of the evidence. The appellants appealed against these decisions to the Court of Appeal. On 10 March 2009 the Court of Appeal (Pill and Keene LJJ and Sir Paul Kennedy) dismissed both appeals: [2009] EWCA Civ 172. The Secretary of State accepted that practising homosexuals are a particular social group for the purposes of article 1A of the Convention. The issue was how those who had a well founded fear of persecution could be identified. It was said by counsel for the appellants to be whether it was an answer to a claim for refugee status for the applicant to be required to conceal his sexual identity in order to avoid harm of sufficient severity as to amount to persecution the proposition being that to impose such a requirement was incompatible with the Convention. For the Secretary of State it was submitted that the issue always was whether the applicant could reasonably be expected to tolerate the need for discretion on return: para 7. The Court of Appeal applied the test stated by Maurice Kay LJ in J v Secretary of State for the Home Department [2007] Imm AR 73, para 16, where he said that the tribunal would have to ask itself whether discretion was something that the applicant could reasonably be expected to tolerate, not only in the context of random sexual activity but in relation to matters following from, and relevant to, sexual identity in the wider sense. In HJs case the Court of Appeal held that the Tribunal were entitled to conclude on the evidence that HJ could reasonably be expected to tolerate conditions in Iran: [2009] EWCA Civ 172, para 31. In HTs case there was finding that he would be discreet on return to Cameroon. The question whether he could reasonably be expected to tolerate a life involving discretion was not raised. The Court of Appeal held that there were no facts on which a decision on that matter could be based but that the Tribunal were entitled to find that HT had not established that there was a real risk of persecution in the future: paras 44, 45. In this court Mr Bourne for the Secretary of State submitted that the test of whether the appellants should have refugee status was correctly stated by the Court of Appeal in J v Secretary of State for the Home Department [2007] Imm AR 73, that it was correctly applied by the Tribunal in both cases and that the Court of Appeal was right to dismiss the appeals. Mr Husain QC for HJ said that the test as stated in J v Secretary of State for the Home Department is misconceived. He submitted that it is contrary to the ordinary meaning of the definition of refugee in the Convention, and the objects and purposes of the treaty, to deny a refugees claim on the basis that he was required to suppress or surrender his protected identity to avoid the persecution that would ensue if that identity were to be disclosed. Miss Carss Frisk QC for HT too disputed the test in Js case. She submitted that if the applicant could show that he had a well founded fear of persecution he was entitled to refugee status. He should not be required to demonstrate that concealment of his identity was something that he could not reasonably be expected to tolerate. She also said that HT ought to succeed on the facts in any event because of what happened to him in Cameroon. Background Article 1A(2) of the Convention provides that a refugee is a person who owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country Amongst the benefits that a person who satisfies that definition enjoys under the Convention is the prohibition of expulsion or return. Article 33(1) provides: No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. To a large extent the meaning of the definition in article 1A(2) is common ground. It treats membership of a particular social group as being in pari materia with the other Convention reasons for persecution: Fornah v Secretary of State for the Home Department [2006] UKHL 46, [2007] 1 AC 412, para 20, per Lord Bingham of Cornhill. There is no doubt that gay men and women may be considered to be a particular social group for this purpose: Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 643 644, per Lord Steyn. As Lord Rodger points out in para 42, regulation 6(1)(e) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525) recognises as clearly as can be that a group based on a common characteristic of sexual orientation may be included in a particular social group that is in need of international protection. The group is defined by the immutable characteristic of its members sexual orientation or sexuality. This is a characteristic that may be revealed, to a greater or lesser degree, by the way the members of this group behave. In that sense, because it manifests itself in behaviour, it is less immediately visible than a persons race. But, unlike a persons religion or political opinion, it is incapable of being changed. To pretend that it does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are of the right to do simple, everyday things with others of the same orientation such as living or spending time together or expressing their affection for each other in public. The Convention does not define persecution. But it has been recognised that it is a strong word: Sepet and Bulbul v Secretary of State for the Home Department [2003] UKHL 15, [2002] 1 WLR 856, para 7, per Lord Bingham. Referring to the dictionary definitions which accord with common usage, Lord Bingham said that it indicates the infliction of death, torture or penalties for adherence to a belief or opinion, with a view to the repression or extirpation of it. Article 9(1)(a) of the EC Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees (the Qualification Directive) states that acts of persecution must (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, para 40, McHugh and Kirby JJ said: Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. To constitute persecution for the purposes of the Convention the harm must be state sponsored or state condoned. Family or social disapproval in which the state has no part lies outside its protection. As Professor J C Hathaway in The Law of Refugee Status (1991), p 112 has explained, persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community. The Convention provides surrogate protection, which is activated only upon the failure of state protection. The failure of state protection is central to the whole system: Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495. The question is whether the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals. The reference in the preamble to the Universal Declaration of Human Rights of 1948 shows that counteracting discrimination was a fundamental purpose of the Convention. Article 2 states: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Lord Steyn emphasised this point in Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 639. He also drew attention to the first preamble to the Declaration, which proclaimed the inherent dignity and the equal and inalienable rights of all members of the human family. No mention is made of sexual orientation in the preamble or any of its articles, nor is sexual orientation mentioned in article 1A(2) of the Convention. But coupled with an increasing recognition of the rights of gay people since the early 1960s has come an appreciation of the fundamental importance of their not being discriminated against in any respect that affects their core identity as homosexuals. They are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self expression in matters that affect their sexuality, as people who are straight. The guarantees in the Universal Declaration are fundamental to a proper understanding of the Convention. But the Convention itself has, as the references in para 12 show, a more limited purpose. It is not enough that members of a particular social group are being discriminated against. The contracting states did not undertake to protect them against discrimination judged according to the standards in their own countries. Persecution apart, the Convention was not directed to reforming the level of rights prevailing in the country of origin. Its purpose is to provide the protection that is not available in the country of nationality where there is a well founded fear of persecution, not to guarantee to asylum seekers when they are returned all the freedoms that are available in the country where they seek refuge. It does not guarantee universal human rights. So the conditions that prevail in the country in which asylum is sought have no part to play, as matter of legal obligation binding on all states parties to the Convention, in deciding whether the applicant is entitled to seek asylum in that country: Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426, paras 16, 46. As Laws LJ said in Amare v Secretary of State for the Home Department [2005] EWCA Civ 1600, [2006] Imm AR 217 para 31: The Convention is not there to safeguard or protect potentially affected persons from having to live in regimes where pluralist liberal values are less respected, even much less respected, than they are here. It is there to secure international protection to the extent agreed by the contracting states. Thus international protection is available only to those members of the particular social group who can show that they have a well founded fear of being persecuted for reasons of their membership of it who, owing to that fear, are unwilling to avail themselves of the protection of their home country. Those who satisfy this test cannot be returned to the frontiers of a territory where their life or freedom would be threatened on account of their membership of that group: article 33(1). To be accorded this protection, however, the test that article 1A(2) sets out must first be satisfied. As Lord Bingham of Cornhill said in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, para 5, the words owing to well founded fear of being persecuted for reasons of membership of a particular social group in the definition of refugee express a causative condition which governs all that follows. Well founded fear: the causative condition In situations such as those presented by these appeals the fact that members of the particular social group are persecuted may not be seriously in issue. In Iran, where the death penalty exists, persons have been hanged simply because they are gay. In Cameroon homosexuality is illegal and the sanctions for it include sentences of up to five years imprisonment. Although prosecutions are rare, homosexuals are liable to be denounced and subjected to acts of violence and harassment against which the state offers no protection. But the situation in the country of origin is only the beginning, not the end, of the inquiry. The Convention directs attention to the state of mind of the individual. It is the fear which that person has that must be examined and shown to be well founded. In cases where the fear is of persecution for reasons of religion or political opinion, it may be necessary to examine the nature and consequences of any activity that the applicant claims he or she may wish to pursue if returned to the country of nationality. It will not be enough for the person merely to assert that persons who are of that religion or political opinion are liable to be persecuted. The question is, what will the applicant actually do, and does what he or she will in fact do justify the fear that is complained of? INLR 1, 7 8 Simon Brown LJ said: In Ahmed (Iftikhar) v Secretary of State for the Home Department, [2000] In all asylum claims there is ultimately a single question to be asked: is there a serious risk that on return the applicant will be persecuted for a Convention reason? The critical question [is]: if returned, would the asylum seeker in fact act in the way he says he would and thereby suffer persecution? If he would, then, however unreasonable he might be thought for refusing to accept the necessary restraint on his liberties, in my judgment he would be entitled to asylum. Nobody has suggested that there is anything wrong with these observations, as far as they go, and I would respectfully endorse them. They contain two propositions which the Secretary of State in this case accepts, and which I do not think can be disputed. The first is that attention must be focused on what the applicant will actually do if he is returned to his country of nationality. The second is that the fact that he could take action to avoid persecution does not disentitle him from asylum if in fact he will not act in such a way as to avoid it. That is so even if to fail or to refuse to avoid it would be unreasonable. In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, para 40, per McHugh and Kirby JJ said that persecution does not cease to be persecution for the purposes of the Convention because the harm can be avoided by taking avoiding action within the country of origin. I am inclined to think that this proposition, as stated, expresses the point too broadly. But I would accept it as accurate if at the end there were added the words which the applicant will in fact not take. Of course, I do not mean by this that persecution ceases to be persecution if those at risk of being persecuted can and do eliminate the harm by taking avoiding action. That is a different point, with which their Honours go on to deal later in the same paragraph. How to define the test for its application is the issue in this case: see paras 21 and 22. It has been recognised, of course, that an applicant may be required to live in a place of relocation within his country of origin so long as it would not be unduly harsh for him to be required to do so: Januzi v Secretary of State for the Home Department [2006] 2 AC 426. As Lord Bingham explained in para 7, the Convention does not expressly address the situation where, within his country of nationality a person has a well founded fear of persecution at place A, where he lived, but not at place B, where he could reasonably be expected to relocate. But that situation may reasonably be said to be covered by the causative condition to which he referred in para 5. A person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country. Persons seeking refuge from the process known as ethnic cleansing, for example, may be refused asylum on the basis that there are other parts of the country of their nationality where they may live without being persecuted: see also R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36, [2003] 1 AC 920, para 40; the UNHCR Handbook, para 91. Mr Bourne suggested that an analogy could be drawn between internal relocation, or internal flight as it is sometimes less happily called: see R (Yogathas) v Secretary of State for the Home Department [2003] 1 AC 920, para 6. Mr Husain submitted in his written case that applicants who are gay and who avoid persecution by a modification of their behaviour may be said on return to have taken internal flight within the self to avoid persecution. Mr Bourne submitted that any such analogy supported the respondent. The analogy, as he expressed it in his written case, was put this way. A person to whom geographical internal flight is available is not a refugee unless it would be unduly harsh to take such flight. So a person who will, if necessary, take the metaphorical flight of hiding his sexuality is not a refugee unless it would be intolerable for him to do so. Examples were referred to of situations that might demonstrate the logic of this approach. They were said to include situations where the applicant would be discreet, there would be no real risk that he would come to the attention of the authorities and suffer persecution and the consequences of his discretion were objectively reasonable for him to be expected to tolerate. He would have no well founded fear of persecution and not be a refugee even if the reason why he would be discreet was because, or partly because, he feared persecution. This submission takes me to the core of the issue between the parties and to the question whether the test in para 16 of J v Secretary of State for the Home Department [2007] Imm AR 73 stands up to examination. But I think that the suggested analogy with internal relocation can be dismissed at once as incompatible with the principles of the Convention. The objection to it is that it assumes that the applicant will be prepared to lie about and conceal his sexual orientation when he moves to the place of relocation. Unless he does this he will be no better off than he would be if he did not relocate at all. The misconception lies in the idea that he will be willing and able to make a fresh start when he moves to somewhere where he is not known. In Hysi v Secretary of State for the Home Department [2005] EWCA Civ 711, [2005] INLR 602 the Court of Appeal held that the tribunal had not assessed the consequences of expecting the applicant to lie and dissemble in the place of relocation about his ethnic origins. He would have to be a party to the long term deliberate concealment of the truth, living in continuing fear that the truth would be discovered: para 37. There is no place, in countries such as Iran and Cameroon, to which a gay applicant could safely relocate without making fundamental changes to his behaviour which he cannot make simply because he is gay. The submission that it is proper to examine the question whether it would be objectively reasonable for the applicant to be expected to tolerate some element of concealment I would prefer not to use the word discretion, as this euphemistic expression does not tell the whole truth when he is returned to the country of his nationality cannot be dismissed so easily. Behaviour which reveals ones sexual orientation, whether one is gay or straight, varies from individual to individual. It occupies a wide spectrum, from people who are naturally reticent and have no particular desire to establish a sexual relationship with anybody to those who wish, for various reasons, to proclaim in public their sexual identity. Social and family disapproval of overt sexual behaviour of any kind, gay or straight, may weigh more heavily with some people than others. Concealment due to a well founded fear of persecution is one thing. Concealment in reaction to family or social pressures is another. So one must ask why the applicant will conduct himself in this way. A carefully nuanced approach is called for, to separate out those who are truly in need of surrogate protection from those who are not. The test in J's case In J v Secretary of State for the Home Department [2007] Imm AR 73 the applicant was of Iranian nationality. The Asylum and Immigration Tribunal found that he was a practising homosexual, but that his relationship with his partner in Iran was discreet and that his homosexual practices there had never been such that his own homosexual activity was reasonably likely to result in adverse attention from the authorities. It was held that the tribunal had fallen into error by not asking why the applicant had acted discreetly, especially as the appellant said in his witness statement that he was forced to hide his relationship and was not able to live openly with his partner as he wanted to do. The case was remitted to the tribunal for further reconsideration. In para 16 Maurice Kay LJ gave the following directions to the tribunal: It will have to address questions that were not considered on the last occasion, including the reason why the appellant opted for discretion before his departure from Iran and, by implication, would do so again on return. It will have to ask itself whether discretion is something that the appellant can reasonably be expected to tolerate, not only in the context of random sexual activity but in relation to matters following from, and relevant to, sexual identity in the wider sense recognised by the High Court of Australia (see the judgment of Gummow and Hayne JJ at para 83). This requires consideration of the fact that homosexuals living in a stable relationship will wish, as this appellant says, to live openly with each other and the discretion which they may feel constrained to exercise as the price to pay for the avoidance of condign punishment will require suppression of many aspects of life that related to, or informed by, their sexuality (ibid, para 81). This is not simply generalisation; it is dealt with in the appellants evidence. [Emphasis added] Buxton LJ, making the same point, said in para 20 that the applicant might have to abandon part of his sexual identity in circumstances where failure to do so exposed him to the extreme danger that the country guidance indicated: The Tribunal may wish to consider whether the combination of those two circumstances has an effect on their decision as to whether the applicant can be expected to tolerate the situation he may find himself in when he returns to Iran. [Emphasis added] The passages which I have italicised lie at the heart of the argument. For the Secretary of State, Mr Bourne submitted that there were two major questions that had to be addressed: (1) what will the situation be on return, and (2) in these circumstances is there a real risk of persecution? The inquiry in regard to the first question was directed to how the applicant will conduct himself and how others will react to this. He accepted that a finding that the applicant will in fact be discreet on return to the country of his nationality is not the end of the inquiry. The question that then had to be asked, he said, was whether opting for discretion itself amounted to persecution. The threshold between what was and was not persecution was marked by what he could reasonably be expected to tolerate. As in the case of internal flight, it was what he could not reasonably be expected to tolerate that amounted to persecution. As the references to it in para 16 of J v Secretary of State for the Home Department [2007] Imm AR 73 indicate, the Court of Appeal in that case sought guidance from the decision of the High Court of Australia in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. Among the passages from that judgment that are quoted is para 40, where (setting out the paragraph in full) McHugh and Kirby JJ said: The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution. Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps reasonable or otherwise to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a particular social group if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality. [Emphasis added] It was the appearance in this paragraph of the sentence which I have italicised that led Maurice Kay LJ to use almost the same words when he was framing his directions in para 16. This can be seen from his quotation of it in para 11 of his judgment, where he said that it had been adopted in Z v Secretary of State for the Home Department [2005] Imm AR 75, para 12, Amare v Secretary of State for the Home Department [2006] Imm AR 217, para 27 and RG (Colombia) v Secretary of State for the Home Department [2006] EWCA Civ 57, [2006] Imm AR 297, para 16. Para 40 of the judgment in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 is not entirely easy to follow. The Convention does not permit, or indeed envisage, applicants being returned to the countries of their nationality on condition that they take steps to avoid offending their persecutors. The use of the phrase a condition of protection seems to overlook the fact that it is the country in which asylum is sought that is being appealed to for protection, not the country of the applicants nationality. But the flaw in the sentence in para 16 of J v Secretary of State for the Home Department [2007] Imm AR 73 to which the appellants take objection is indicated by the sentence that immediately follows it. It makes the point that persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. In para 50, which the Court of Appeal did not quote in Js case, McHugh and Kirby JJ said: In so far as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed. The same point was made with perhaps greater force by Gummow and Hayne JJ in para 82, where they said: Saying that an applicant for protection would live discreetly in the country of nationality may be an accurate description of the way in which that person would go about his or her daily life. To say that a decision maker expects that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is expected to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The references in the judgments of Maurice Kay and Buxton LJJ in J v Secretary of State for the Home Department [2007] Imm AR 73, paras 16 and 20 to what the applicant could be expected to do when he returned do not fit happily with the approach indicated in some parts of the judgment in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 which they said they were following. The explanation for this may perhaps lie in para 10 of the judgment in Js case, where Maurice Kay LJ said: In our jurisdiction Buxton LJ demonstrated in Z v SSHD [2005] Imm AR 75 that the approach of the High Court of Australia had in turn been influenced by English authority, particularly Ahmed v SSHD [2000] INLR 1. Having referred to the judgment of Simon Brown LJ in Ahmed, he said at para 16: It necessarily follows from that analysis that a person cannot be refused asylum on the basis that he could avoid otherwise persecutory conduct by modifying the behaviour that he would otherwise engage in, at least if that modification was sufficiently significant to place him in a situation of persecution. In para 11 Maurice Kay LJ added this comment: That brief extract is particularly helpful because it brings together the principle articulated by the High Court of Australia and the underlying need for an applicant to establish that his case contains something significant in itself to place him in a situation of persecution. The principle which the Court of Appeal should have taken from the judgment of the High Court of Australia is that it would be wrong to say that an applicant for protection was expected to live discreetly if it was intended as a statement of what the applicant must do: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, para 82. The test of whether the situation he may find himself in on return was one that he could reasonably be expected to tolerate was introduced to address the high threshold that has to be crossed between what does and what does not amount to persecution. But the way the test was expressed in para 16 of Js case suggests that the applicant will be refused asylum if it would be reasonable to expect him to be discreet even if he is unwilling or unable to do this. That is a fundamental error. It conflicts with Simon Brown LJs observation in Ahmed (Iftikhar) v Secretary of State for the Home Department [2000] INLR 1, 8 that, however unreasonable the applicant might be thought for refusing to accept the necessary restraint on his liberties, he would be entitled to asylum. I would hold that the test in para 16 of Js case is not accurately expressed and should no longer be followed. For the reasons that Sir John Dyson gives, I would reject the reasonably tolerable test. As this was the test that the Court of Appeal applied to these appeals, its decision to dismiss them was mistaken and must be set aside. Comparative jurisprudence The Court was referred to a number of decisions in Australia, New Zealand, South Africa, the United States and Canada. I do not think that they reveal a consistent line of authority that indicates that there is an approach which is universally accepted internationally. The Australian cases that are of interest are those that post date the decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. They are NALZ v Minister for Immigration and Multicultural Affairs [2004] FCAFC 320; NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29, (2005) 79 ALJR 1142, and SZATV v Minister for Immigration and Citizenship [2007] HCA 40, (2007) 233 CLR 18. In NALZ the Federal Court was divided on the question how the principles set out S395/2002 should be applied. The applicant was an Indian national who was refused refugee status by the tribunal because he could avoid future arrest by not engaging in the activity that would attract persecution. The majority, Emmett and Downes JJ, held that this was not an impermissible approach. Madgwick J thought that the tribunal had fallen into the error identified in S395/2002 because it had not asked itself what the applicant would in fact do. In NABD the High Court was again divided in its identification of the relevant legal principles. It did not reach the question whether a test of what was reasonably tolerable could be applied. It is worth noting however that McHugh J stressed the need for a rigorous and careful examination of the applicants specific characteristics and circumstances. In SZATV the question was whether the tribunal was right to deny asylum on the ground that it would be reasonable for the applicant, a journalist whose fear was of persecution on grounds of political opinion, to relocate to another part of the country of his nationality and do construction work there. The High Court on this occasion was unanimous in holding that the tribunal had failed to address itself to what might reasonably be expected of the applicant with respect to his relocation if he were to be returned. I think that the single most important message to emerge from these cases is the need for a careful and fact sensitive analysis. The New Zealand case is Refugee Appeal No 74665/03 [2005] INLR 68, in which the judgment of the New Zealand Refugee Status Appeals Authority was written by Rodger Haines QC. It contains an impressive analysis of the relevant principles, and it is impossible to do full justice here to what it contains. The passages that are of particular interest are to be found from paras 92 and following. The point made by Sachs J in National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6, para 130 that to require an applicant to engage in self denial was to require him to live in a state of self induced oppression was approved and adopted: para 114. The decision of the High Court of Australia in S395/2002 is analysed in paras 116 124. Haines is critical of its approach on the ground that it concentrates on an evaluation of the risk rather than being, as it is put in para 124, located in the persecution element. The New Zealand approach, it is said, places international human rights standards at the centre of the being persecuted analysis in the belief that this provides a principled and disciplined framework for analysis. The significance of this distinction becomes apparent at the end of the judgment when, without any detailed analysis of the causative condition by examining what will actually happen on return, the conclusion is reached in a few sentences that the applicant was at risk of serious harm simply because he was gay: para 132. In Karouni v Gonzales (2005) 399 F 3d 1163 the US Court of Appeals upheld an appeal by an applicant who claimed that he had a well founded fear of persecution on return to Lebanon because he was gay. It applied the principle, which the Secretary of State in this case accepts, that he should not be required to change his sexual identity, as it was a fundamental characteristic and an integral part of human freedom. Several Canadian cases were referred to by Mr Bourne in support of his proposition that the tribunal must look at what the applicant will, rather than could, do if he were to be returned: Case no 02751 of 9 January 2007 (unreported) 16 February 2007; Atta Fosu v Canada (Minister of Citizenship and Immigration) [2008] FC 1135 and Okoli v Minister of Citizenship and Immigration [2009] FC 332. In Atta Fosu, for example, the Federal Court held that it was impermissible to require a person to deny or hide his sexuality when there was no evidence that he could, or was even prepared to, keep it secret. What is missing from these cases, especially those from Australia and New Zealand, is clear and consistent guidance as to the way the fact finding tribunals should go about their task. Useful advice is set out in A Guide to Refugee Law in Australia, prepared by the Legal Service Section of the Refugee Review Tribunal and the Migration Review Tribunal, pp 10.25 10.26. But it is not authoritative. The test as stated in para 16 of J v Secretary of State for the Home Department [2007] Imm AR 73 does not fit well with some of the dicta in these cases, and with the recommendation in the Guide that asylum seekers are not required, and cannot be expected, to take reasonable steps to avoid persecutory harm or to live discreetly so as to avoid it. But I have already concluded that it should be departed from. The test This brings me to the test that should be adopted by the fact finding tribunals in this country. As Lord Walker points out in para 98, this involves what is essentially an individual and fact specific inquiry. Lord Rodger has described the approach in para 82, but I would like to set it out in my own words. It is necessary to proceed in stages. (a) The first stage, of course, is to consider whether the applicant is indeed gay. Unless he can establish that he is of that orientation he will not be entitled to be treated as a member of the particular social group. But I would regard this part of the test as having been satisfied if the applicants case is that he is at risk of persecution because he is suspected of being gay, if his past history shows that this is in fact the case. (b) The next stage is to examine a group of questions which are directed to what his situation will be on return. This part of the inquiry is directed to what will happen in the future. The Home Offices Country of Origin report will provide the background. There will be little difficulty in holding that in countries such as Iran and Cameroon gays or persons who are believed to be gay are persecuted and that persecution is something that may reasonably be feared. The question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does. Those others will include everyone with whom he will come in contact, in private as well as in public. The way he conducts himself may vary from one situation to another, with varying degrees of risk. But he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it. If he fears persecution as a result and that fear is well founded, he will be entitled to asylum however unreasonable his refusal to resort to concealment may be. The question what is reasonably tolerable has no part in this inquiry. (c) On the other hand, the fact that the applicant will not be able to do in the country of his nationality everything that he can do openly in the country whose protection he seeks is not the test. As I said earlier (see para 15), the Convention was not directed to reforming the level of rights in the country of origin. So it would be wrong to approach the issue on the basis that the purpose of the Convention is to guarantee to an applicant who is gay that he can live as freely and as openly as a gay person as he would be able to do if he were not returned. It does not guarantee to everyone the human rights standards that are applied by the receiving country within its own territory. The focus throughout must be on what will happen in the country of origin. (d) The next stage, if it is found that the applicant will in fact conceal aspects of his sexual orientation if returned, is to consider why he will do so. If this will simply be in response to social pressures or for cultural or religious reasons of his own choosing and not because of a fear of persecution, his claim for asylum must be rejected. But if the reason why he will resort to concealment is that he genuinely fears that otherwise he will be persecuted, it will be necessary to consider whether that fear is well founded. (e) This is the final and conclusive question: does he have a well founded fear that he will be persecuted? If he has, the causative condition that Lord Bingham referred to in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, para 5 will have been established. The applicant will be entitled to asylum. It should always be remembered that the purpose of this exercise is to separate out those who are entitled to protection because their fear of persecution is well founded from those who are not. The causative condition is central to the inquiry. This makes it necessary to concentrate on what is actually likely to happen to the applicant. As Lord Walker says in para 88, the inquiry is directed to what will happen in the future if the applicant is returned to his own country. An approach which disregards what is in fact likely to occur there in the case of the particular applicant is wrong and should not be adopted. The facts of these cases Applying the guidance in J v Secretary of State for the Home Department [2007] Imm AR 73 to HJs case, the Asylum and Immigration Tribunal said that the issue was whether the need for him to live discreetly would itself constitute persecution. The evidence of suppression of aspects of his life in Iran was limited. It concluded that to live a private life discreetly would not cause significant detriment to his right to respect for private life and that it would not involve suppression of many aspects of his sexual identity. Noting that enforcement of the law against homosexuality in Iran is arbitrary, it said that the evidence did not show a real risk of discovery or of adverse action against homosexuals who conduct their homosexual activities discreetly. It found on the evidence that the level of seriousness for international protection had not been reached. HJ could reasonably be expected to tolerate the position in Iran on any return: para 46. In the Court of Appeal Pill LJ said that in his judgment the test stated in para 16 of Js case by reference to S395/2002 complied with the standard required by the Convention and that the findings of the tribunal were findings that they were entitled to make on the evidence: para 31. In HTs case the Tribunal found that he would be discreet on return to Cameroon. In the Court of Appeal Pill LJ said that the groundwork for a further finding that he could not reasonably be required to be discreet in Cameroon or to tolerate a life involving discretion there was not established: para 44. He upheld the Tribunals decision on the ground that it was entitled to find that the first panel did not err in law in finding that a single attack on HT followed a one off incident of him being seen by a neighbour kissing another man with whom he had a three year relationship in his garden. Miss Carss Frisk pointed out that there was no finding that his behaviour with the other man was a one off incident. He was the victim of a single attack involving serious violence by way of mob justice following the garden incident. Instead of helping him, the police joined in the assault. But he had had two homosexual relationships. The second had lasted for a period of five years. The problem had started when neighbours spotted what he and his partner were doing in the garden. The Tribunal said that he could move to another part of Cameroon where his sexual identity was unknown. But it is plain that to be effective against the risk of persecution, which is present everywhere in that country, he would have to lie about and conceal his sexuality. The Tribunal did not assess the effects on him of suppressing his sexual identity. Conclusion I am not confident that the tribunals would have come to the same conclusion if they had approached the facts in the way I have suggested in paras 35 36. It was suggested by the appellants that this court should make a reference of a question arising under the Qualification Directive to the Court of Justice of the European Union under article 267 TFEU (formerly article 234 EC). But the point that was said to require a reference was not clearly identified, and I would reject that suggestion. I would allow these appeals and set aside the orders of the Court of Appeal. I would remit both cases to the Tribunal, for further reconsideration in HJs case and for reconsideration in the case of HT, in the light of the guidance given by this Court. LORD RODGER A gay man applies for asylum in this country. The Secretary of State is satisfied that, if he returns to his country of nationality and lives openly as a homosexual, the applicant will face a real and continuing prospect of being beaten up, or flogged, or worse. But the Secretary of State is also satisfied that, if he returns, then, because of these dangers of living openly, he will actually carry on any homosexual relationships discreetly and so not come to the notice of any thugs or of the authorities. Is the applicant a refugee for purposes of the United Nations Convention relating to the Status of Refugees 1951 (the Convention)? The answer is Yes. Article 1A(2) of the Convention declares that a refugee is a person who, owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. The appellants, HJ, from Iran, and HT, from Cameroon, are gay men who both claim to be outside their country of nationality owing to a well founded fear of being persecuted for reasons of being gay. At one time there would have been debate as to whether homosexuals constitute a particular social group for the purposes of the Convention. But, in more recent years, it has come to be accepted that, at least in societies which discriminate against homosexuals, they are indeed to be regarded as a particular social group. See, for instance, R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 644G 645A, per Lord Steyn, and at p 663, per Lord Millett (dissenting). Indeed regulation 6(1)(e) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525) really puts the point beyond doubt by providing that, subject to an exception which is not relevant for present purposes, a particular social group might include a group based on a common characteristic of sexual orientation. The Secretary of State therefore accepts that, in the case of Iran and Cameroon, homosexuals do indeed form a particular social group, of which HJ and HT are members. The approach in HJ In the case of HJ, the Asylum and Immigration Tribunal observed, at para 9 of its determination, that It is accepted that for a person to be openly gay in Iran would attract a real risk of persecution (see in particular RM and BB (Homosexuals) Iran [2005] UKAIT 00117). The issue therefore is whether the need for the appellant to be discreet about his sexuality on return to Iran would itself constitute persecution within the meaning of the Refugee Convention. The Tribunal went on to hold, at para 25, that It remains clear, as it was at the time of RM and BB, that those who confess to homosexual acts or are convicted by whatever means are at real risk as they face condign punishment. But, in its view, the evidence fell well short of showing that surveillance had reached such levels that Iranian citizens who engaged in homosexual activities in private ran a real risk of discovery. It remained the case, as the Tribunal had concluded in RM and BB, at para 124, that, given the legal context in which homosexuals operate in Iran, it can be expected that they would be likely to conduct themselves discreetly for fear of the obvious repercussions that would follow. The Tribunal in the present case summarised the position at para 44: We acknowledge that the way in which he is able to live as a gay man in the UK is preferable for him and we are satisfied that this informs his view that it is impossible for him to return to Iran. We acknowledge too that the appellant is now much more aware of the legal prohibitions on homosexuals in Iran and the potential punishments for breach of those prohibitions. On any return, to avoid coming to the attention of the authorities because of his homosexuality he would necessarily have to act discreetly in relation to it. We are satisfied that as a matter of fact he would behave discreetly. On the evidence he was able to conduct his homosexual activities in Iran without serious detriment to his private life and without that causing him to suppress many aspects of his sexual identity. Whilst he has conducted his homosexual activities in the UK less discreetly, we are not persuaded that his adaptation back to life in Iran would be something he could not reasonably be expected to tolerate. We consider that as a matter of fact he would behave in similar fashion as he did before he left Iran and that in doing so he would, as before, be able to seek out homosexual relationships through work or friends without real risk to his safety or serious detriment to his personal identity and without this involving for him suppression of many aspects of his sexual identity. Having analysed the evidence in more detail in para 45, the Tribunal referred to the test laid down by Buxton LJ in J v Secretary of State for the Home Department [2006] EWCA Civ 1238, [2007] Imm AR 73, at para 20. (The test is set out at para 48 below.) The Tribunal added, at para 46: The circumstances to be tolerated are the inability to live openly as a gay man as the appellant can in the UK. The part of sexuality to be abandoned is on the evidence also the ability to live openly as a gay man in the same way the appellant can do elsewhere. To live a private life discreetly will not cause significant detriment to his right to respect for private life, nor will it involve suppression of many aspects of his sexual identity. Enforcement of the law against homosexuality in Iran is arbitrary but the evidence does not show a real risk of discovery of, or adverse action against, homosexuals who conduct their homosexual activities discreetly. The position has not deteriorated since RM and BB [2005] UKAIT 00117. On the evidence we find the appellant can reasonably be expected to tolerate the position on any return. The approach in HT In the case of HT it is agreed that, following an occasion when he was seen kissing his then (male) partner in the garden of his home, the appellant was attacked by a crowd of people when leaving church. They beat him with sticks and threw stones at him. They pulled off his clothes and tried to cut off his penis with a knife. He attempted to defend himself and was cut just above the penis and on his hand. He was threatened with being killed imminently on the ground that you people cannot be changed. Police officers arrived and demanded to know what was going on and why the crowd were assaulting him. They were told it was because he was gay. One of the policemen said to the appellant How can you go with another man? and punched him on the mouth. The policemen then kicked him until he passed out. As a result of the injuries which he received he was kept in hospital for two months. After that, he was taken home by a member of his church who told him that he feared for his life and safety if he remained in Cameroon. This man made travel arrangements for HT who flew to the United Kingdom via another European country. In HTs case the Tribunal was of the view that in some respects the position in Cameroon was not dissimilar from the position in Iran and it was the view of the Tribunal that there might be difficulties for someone openly professing his homosexuality. A homosexual relationship carried on in private, however, was considered by the Tribunal not to create a reasonable degree of likelihood of persecution. (The Tribunals information about the position in Iran appears to have been taken from the admissibility decision of the European Court of Human Rights in F v United Kingdom (Application No 17341/03), 22 June 2004, unreported.) Because people in the area where he lived before leaving Cameroon knew that he was gay, the Tribunal contemplated that, in addition to conducting any relationship in private, HT would move to another part of the country where he would not be known. On reconsideration, the Senior Immigration Judge held, at para 15 of his determination, that Should the appellant choose to relocate it would be relatively safe for him to practice [sic] his sexual orientation in private and not come to the attention of the authorities. In both cases, therefore, the findings of the Tribunal are to the effect that, if the appellant were to return to his country of origin, he would be at risk of persecution if he were openly homosexual, but he would be unlikely to come to the attention of the authorities or to suffer harm, if he were to conduct any relationship in private. The test adopted by the Court of Appeal The question, whether in such circumstances an applicant has a well founded fear of persecution, seems to have been considered by the Court of Appeal for the first time in Z v Secretary of State for the Home Department [2004] EWCA Civ 1578, [2005] Imm AR 75. The court had been referred to the decision of the High Court of Australia in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473. Buxton LJ accepted that the judgments in that case contained a number of statements to the effect that, if an applicants way of life would be subjected to persecution in his home country, he cannot be denied asylum on the basis of a conclusion that he could avoid that persecution by modifying that way of life. Having referred to paras 40 and 43 of the judgment of McHugh and Kirby JJ, Buxton LJ continued, at paras 15 16: 15. Mr Kovats for the Secretary of State pointed out that where avoiding action is forced on the subject, that case only falls under the Refugee Convention if it results in a condition that can properly be called persecutory, in that imposes on the subject a state of mind or conscience that fits with the definition of persecution given by McHugh and Kirby JJ in paragraph 40 of their judgment, and in line with English authority already quoted: Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. That no doubt is the level of interference that McHugh and Kirby JJ had in mind when speaking of threats and menaces in the passage cited in para 14 above. 16. Although S395 was presented to the court that granted permission in this appeal as a new departure in refugee law, and for that reason justifying the attention of this court, in truth it is no such thing. McHugh and Kirby JJ, at their paragraph 41, specifically relied on English authority, Ahmed v SSHD [2000] INLR 1. It has been English law at least since that case, and the case that preceded it, Danian v SSHD [1999] INLR 533, that, in the words of the leading judgment of Simon Brown LJ at pp 7G and 8C D: in all asylum cases there is ultimately a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason.the critical question: if returned, would the asylum seeker in fact act in the way he says he would and thereby suffer persecution? If he would, then, however, unreasonable he might be thought for refusing to accept the necessary restraint on his liberties, in my judgment he would be entitled to asylum. It necessarily follows from that analysis that a person cannot be refused asylum on the basis that he could avoid otherwise persecutory conduct by modifying the behaviour that he would otherwise engage in, at least if that modification was sufficiently significant in itself to place him in a situation of persecution. If the IAT in our case refused Mr Z asylum on the basis that he was required to avoid persecution they did not respect the jurisprudence of Ahmed. Buxton LJs formulation of the position, as he derived it from Simon Brown LJs statement in Ahmed v Secretary of State for the Home Department [2000] INLR 1, 7, was quoted by Maurice Kay LJ in J v Secretary of State for the Home Department [2007] Imm AR 73, at para 11. He added that it was particularly helpful because it brings together the principle articulated by the High Court of Australia and the underlying need for an applicant to establish that his case contains something sufficiently significant in itself to place him in a situation of persecution. Maurice Kay LJ went on to say, at para 16, that the Tribunal will have to address questions that were not considered on the last occasion, including the reason why the appellant opted for discretion before his departure from Iran and, by implication, would do so again on return. It will have to ask itself whether discretion is something that the appellant can reasonably be expected to tolerate, not only in the context of random sexual activity but in relation to matters following from, and relevant to, sexual identity in the wider sense recognised by the High Court of Australia (see the judgment of Gummow and Hayne JJ at para 83). This requires consideration of the fact that homosexuals living in a stable relationship will wish, as this appellant says, to live openly with each other and the discretion which they may feel constrained to exercise as the price to pay for the avoidance of condign punishment will require suppression in respect of many aspects of life that related to or informed by their sexuality (Ibid, para 81). Buxton LJ added, at para 20: The question that will be before the AIT on remission will be whether the applicant could reasonably be expected to tolerate whatever circumstances are likely to arise were he to return to Iran. The applicant may have to abandon part of his sexual identity, as referred to in the judgment of Gummow and Hayne JJ in S, in circumstances where failure to do that exposes him to the extreme danger that is set out in the country guidance case of RM and BB. The Tribunal may wish to consider whether the combination of those two circumstances has an effect on their decision as to whether the I would accept both submissions. applicant can be expected to tolerate the situation he may find himself in when he returns to Iran. In his judgment on the present appeals Pill LJ held, at para 31, that the test stated in para 16 of Maurice Kay LJs judgment in J v Secretary of State complies with the standard required by the Refugee Convention. He added that it is an appropriate and workable test. Pill LJ considered that in the case of HJ the Tribunal had plainly understood the test and that their conclusion that he could reasonably be expected to tolerate conditions in Iran was firmly based on the evidence in the case, considered in the context of the in country evidence. On that ground he dismissed the appeal. Keene LJ and Sir Paul Kennedy agreed. The appellants take this fairly well established case law of the Court of Appeal head on. They contend that the Court of Appeal test is incompatible with the definition of refugee in article 1A(2) of the Convention and is based on a misunderstanding of the decision of the High Court of Australia in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473. The rationale of the Convention For someone to be a refugee within the terms of article 1A(2) of the Convention, he must be outside his country of nationality owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. In effect, the Convention proceeds on the basis that people should be allowed to live their lives free from the fear of serious harm coming to them because of their race, religion, nationality, membership of a particular social group or political opinion. Countries which sign up to the Convention recognise, however, that we do not live in an ideal world and that, in fact, there are many countries where persecution for these reasons does indeed take place. In such countries either agents of the state carry out the persecution themselves or, at least, the state does not offer adequate protection against individuals and groups who carry it out. Of course, diplomatic and other pressures may be exerted on states in the hope of improving the situation. But, in the meantime, the signatories to the Convention do not wash their hands of those at risk: in effect, they agree that, by giving the victims asylum, they will afford them the protection from persecution which their country of origin should have afforded them but did not. See, for example, La Forest J in Canada (Attorney General) v Ward [1993] 2 SCR 689, 709: At the outset, it is useful to explore the rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination. International refugee law was formulated to serve as a back up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. In Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495D G, Lord Hope of Craighead quoted this passage with approval and adopted Professor Hathaways description of the protection as surrogate or substitute protection. At the risk of repetition, the importance of this analysis for present purposes is that it proceeds on the basis that, so far from permitting or encouraging its agents to persecute the applicant for one of the protected grounds, the home state should have protected him from any persecution on that ground. The underlying rationale of the Convention is therefore that people should be able to live freely, without fearing that they may suffer harm of the requisite intensity or duration because they are, say, black, or the descendants of some former dictator, or gay. In the absence of any indication to the contrary, the implication is that they must be free to live openly in this way without fear of persecution. By allowing them to live openly and free from that fear, the receiving state affords them protection which is a surrogate for the protection which their home state should have afforded them. The applicant who would not take steps to avoid persecution The Secretary of State accepts accordingly that an applicant is entitled to the protection of the Convention if he could avoid suffering any actual harm by modifying his behaviour (say, by conducting himself discreetly) on his return to his home state but would not in fact choose to do so. English authority for this approach in the field of religion is to be found in the judgment of Simon Brown LJ in Ahmed (Iftikhar)v Secretary of State for the Home Department [2000] INLR 1. The applicant was an Ahmadi, who, if returned to Pakistan, would still have been vocal in his proclamation of Ahmadi beliefs, for which he would have suffered persecution. Simon Brown LJ observed, at p 7: It is one thing to say that it may well be reasonable to require asylum seekers to refrain from certain political or even religious activities to avoid persecution on return. It is quite another thing to say that, if in fact it appears that the asylum seeker on return would not refrain from such activities if, in other words, it is established that he would in fact act unreasonably he is not entitled to refugee status. The same point is made, with considerably more elaboration, in the judgment of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473. They begin by pointing out, at p 489, para 40, that persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. In the remainder of para 40 they point out that, if the position were otherwise, the Convention would not protect those who chose to exercise their right, say, to express their political opinion openly. Similarly, the Convention would not protect those who chose to live openly as gay men rather than take the option of living discreetly. Their Honours added, 216 CLR 473, 489 490, para 41: History has long shown that persons holding religious beliefs or political opinions, being members of particular social groups or having particular racial or national origins are especially vulnerable to persecution from their national authorities. The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention. They concluded the paragraph by citing the passage from Simon Brown LJ in Ahmed v Secretary of State for the Home Department [2000] INLR 1, 7, which I have quoted at para 54 above. The applicant who would conduct himself discreetly In Ahmed Simon Brown LJ was tackling the case of an applicant who could take steps to avoid persecution on his return, but who would not do so. The present appeals concern a completely different kind of applicant: the applicant who, on his return, would act discreetly to avoid the harm which would come to him if he were to live openly as a gay man. In the passage from Ahmed which I cited at para 54 above, Simon Brown LJ appears to have envisaged that it might, in some sense, be reasonable to require applicants to refrain from certain political or even religious activities to avoid persecution on return. But, in his conspicuously clear argument on behalf of the Secretary of State in the present case, Mr Bourne accepted that neither the Secretary of State nor a tribunal had any power to require a gay applicant to act discreetly on his return to his country of nationality in order to avoid persecution. Both of them might, of course, purport to decide the case on the assumption that the applicant would do so. But counsel accepted that neither the Secretary of State nor any tribunal could reject an application for asylum on the basis of an assumption that the gay applicant would act discreetly and so avoid, say, being beaten up or worse. He might or might not. It would be a question of fact, depending on the circumstances of the individual case. Although counsel for the Secretary of State was at pains to draw this distinction between assuming that the applicant would act discreetly to avoid persecution and finding that this is what he would in fact do, the distinction is pretty unrealistic. Unless he were minded to swell the ranks of gay martyrs, when faced with a real threat of persecution, the applicant would have no real choice: he would be compelled to act discreetly. Therefore the question is whether an applicant is to be regarded as a refugee for purposes of the Convention in circumstances where the reality is that, if he were returned to his country of nationality, he would have to act discreetly in order to avoid persecution. The question is not confined to cases where fear of persecution is the only reason why the applicant would act discreetly. In practice, the picture is likely to be more complicated. A fear of persecution is by no means the only reason why an applicant might behave discreetly if he were returned to his country of nationality. For example, he might not wish to upset his parents or his straight friends and colleagues by revealing that he is gay; in particular, he might worry that, if the fact that he was gay were known, he would become isolated from his friends and relatives, be the butt of jokes or unkind comments from colleagues or suffer other discrimination. Indeed, in a society where gay men are persecuted, it is quite likely that the prevailing culture will be such that some of an applicants friends, relatives and colleagues would react negatively if they discovered that he was gay. In these circumstances it is at least possible that the only real reason for an applicant behaving discreetly would be his perfectly natural wish to avoid harming his relationships with his family, friends and colleagues. The Convention does not afford protection against these social pressures, however, and so an applicant cannot claim asylum in order to avoid them. So if, having considered the facts of any individual case, the Secretary of State or a tribunal concluded that the applicant would choose to behave discreetly on his return simply to avoid these social pressures, his application for asylum would fall to be rejected. He would not be a refugee within the terms of article 1A(2) of the Convention because, by choosing to behave discreetly in order to avoid these social pressures, the applicant would simultaneously choose to live a life in which he would have no well founded fear of being persecuted for reasons of his homosexuality. A similar point arose, in the context of religion, in NABD of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142, discussed at para 70 below. Having examined the relevant evidence, the Secretary of State or the tribunal may conclude, however, that the applicant would act discreetly partly to avoid upsetting his parents, partly to avoid trouble with his friends and colleagues, and partly due to a well founded fear of being persecuted by the state authorities. In other words the need to avoid the threat of persecution would be a material reason, among a number of complementary reasons, why the applicant would act discreetly. Would the existence of these other reasons make a crucial difference? In my view it would not. A Jew would not lose the protection of the Convention because, in addition to suffering state persecution, he might also be subject to casual, social anti semitism. Similarly, a gay man who was not only persecuted by the state, but also made the butt of casual jokes at work, would not lose the protection of the Convention. It follows that the question can be further refined: is an applicant to be regarded as a refugee for purposes of the Convention in circumstances where the reality is that, if he were returned to his country of nationality, in addition to any other reasons for behaving discreetly, he would have to behave discreetly in order to avoid persecution because of being gay? It is convenient to use a phrase such as acting or behaving discreetly to describe what the applicant would do to avoid persecution. But in truth he could do various things. To take a few examples. At the most extreme, the applicant might live a life of complete celibacy. Alternatively, he might form relationships only within a circle of acquaintances whom he could trust not to reveal to others that he had gay relationships. Or, he might have a gay partner, but never live with him or have him to stay overnight or indulge in any display of affection in public. Or the applicant might have only fleeting anonymous sexual contacts, as a safe opportunity presented itself. The gradations are infinite. Suppose the Secretary of State or the tribunal were satisfied that, if the applicant took some such precautions, he would be unlikely to suffer any actual harm. Would the applicant then have no well founded fear of persecution by reason of being gay and so be unable to claim asylum under the Convention? Surely not. As already explained in para 53 above, so far as the social group of gay people is concerned, the underlying rationale of the Convention is that they should be able to live freely and openly as gay men and lesbian women, without fearing that they may suffer harm of the requisite intensity or duration because they are gay or lesbian. Their home state should protect them and so enable them to live in that way. If it does not and they will be threatened with serious harm if they live openly, then most people threatened with persecution will be forced to take what steps they can to avoid it. But the applicants country of nationality does not meet the standard of protection from persecution which the Convention envisages simply because conditions in the country are such that he would be able to take, and would in fact take, steps to avoid persecution by concealing the fact that he is gay. On the contrary, the fact that he would feel obliged to take these steps to avoid persecution is, prima facie, an indication that there is indeed a threat of persecution to gay people who live openly. His country of nationality is therefore not affording him the necessary level of protection. So the receiving country should. For this reason, in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473, 493, para 51, McHugh and Kirby JJ emphasise that a tribunal will fall into error if it fails to ask why an applicant would act discreetly if he were returned to his home state. That question will be particularly important where the evidence shows that, before leaving his country and applying for asylum, the applicant lived discreetly. Their Honours explained, at p 490, para 43: In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many perhaps the majority of cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. Their Honours went on to apply that approach to the decision of the tribunal in that case, at p 493, paras 51 53: 51. Central to the Tribunals decision was the finding that the appellants had not suffered harm in the past because they had acted discreetly. Because the Tribunal assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws of Bangladesh society, the Tribunal failed to determine whether the appellants had acted discreetly only because it was not possible to live openly as a homosexual in Bangladesh. Because of that failure, the Tribunal, unsurprisingly, failed to give proper attention to what might happen to the appellants if they lived openly in the same way as heterosexual people in Bangladesh live. 52. The Tribunal did find, however, that to attempt to live openly as a homosexual in Bangladesh would mean to face problems ranging from being disowned by ones family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police. That finding appears to be based on an acceptance of the evidence of Mr Khan, the Executive Director of the Naz Foundation. In its reasons, the Tribunal recorded Mr Khan as saying: [T]he consequences of being identified as homosexual vary enormously, from acceptance and tolerance, to harassment, physical abuse or expulsion from the community. Most of the harassment of males who have sex with males takes the form of extortion by local police and hustlers who threaten to expose them to their families if they do not cooperate. 53. The Tribunals findings on the attitude of Bangladesh society and the statements of the appellants indicate that they were discreet about their relationship only because they feared that otherwise they would be subjected to the kinds of discrimination of which Mr Khan spoke. If the Tribunal had found that this fear had caused them to be discreet in the past, it would have been necessary for the Tribunal then to consider whether their fear of harm was well founded and amounted to persecution. That would have required the Tribunal to consider what might happen to the appellants in Bangladesh if they lived openly as a homosexual couple. Would they have suffered physical abuse, discrimination in employment, expulsion from their communities or violence or blackmail at the hands of police and others, as Mr Khan suggested were possibilities? These were the sorts of questions that the Tribunal was bound to consider if it found that the appellants discreet behaviour in the past was the result of fear of what would happen to them if they lived openly as homosexuals. Because the Tribunal assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws of Bangladesh society, however, the Tribunal disqualified itself from properly considering the appellants claims that they had a real fear of persecution if they were returned to Bangladesh. In short, the fact that the applicants would act discreetly and so not be subjected to violence if returned to Bangladesh did not mean that they did not have a well founded fear of persecution on their return. Rather, the tribunal had to go on to ask itself why they would act discreetly. If it was because they would suffer serious harm if they lived openly as a homosexual couple, then they would have a well founded fear of persecution since it is the right to live openly without fear of persecution which the Convention exists to protect. The other justices in the majority, Gummow and Hayne JJ, described the tribunals error in this way, 216 CLR 473, 503, para 88: The Tribunal did not ask why the appellants would live discreetly. It did not ask whether the appellants would live discreetly because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention. That the Tribunal was diverted in that way is revealed by considering the three statements in its reasons that are referred to earlier: first, that it is not possible to live openly as a homosexual in Bangladesh; secondly, that [t]o attempt to [live openly] would mean to face problems; and, thirdly, that Bangladeshi men can have homosexual affairs or relationships, provided they are discreet. Nowhere did the Tribunal relate the first and second of these statements to the position of the appellants. It did not consider whether the adverse consequences to which it referred sufficed to make the appellants fears well founded. All that was said was that they would live discreetly. Again, the point is that the tribunal should have considered why the appellants would live discreetly if they were returned to Bangladesh. In particular, it should have asked whether they would live discreetly because that was the way they would hope to avoid persecution. If so, then the tribunal should have considered whether the adverse consequences sufficed to make the appellants fears of persecution well founded. The decision of the High Court is accordingly powerful authority, which I would respectfully follow, for the proposition that, if a person has a well founded fear that he would suffer persecution on being returned to his country of nationality if he were to live openly as a gay man, then he is to be regarded as a refugee for purposes of the Convention, even though, because of the fear of persecution, he would in fact live discreetly and so avoid suffering any actual harm. The High Court has followed the same line of reasoning in subsequent cases. Application of the High Courts approach in Appellant S395/2002 In NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142 the appellant, who had converted to Christianity, would face persecution if he returned to Iran. He argued that the tribunal had fallen into the same kind of error as the tribunal in S395/2002 v Minister for Immigration by attaching significance to a supposed difference between discreet and confrontational behaviour. By a majority (McHugh and Kirby JJ dissenting), the High Court dismissed his appeal. In doing so, they did not reject the approach in S395/2002 v Minister for Immigration. Rather, applying that approach, they held that the appeal failed on the facts. As Hayne J (one of the majority in S395/2002) and Heydon J explained, at para 168: At no point in its chain of reasoning did the Tribunal divert from inquiring about whether the fears which the appellant had were well founded. It did not ask (as the Tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran. Based on the material the Tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practise his faith in the way he chose to do so, there was not a real risk of his being persecuted. In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 the appellant had worked as a journalist in Chernovtsy in Ukraine. Due to his political views he had been subjected to a systematic campaign of harassment, including physical maltreatment. The Refugee Review Tribunal none the less rejected his claim for asylum on the ground that he could return to a different part of Ukraine where he would not be known, and work in the construction industry. He would not then come to the notice of the authorities. Allowing his appeal, at p 28, para 28, Gummow, Hayne and Crennan JJ referred to the analysis in para 40 of the judgment of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473, 489, where they had criticised the idea that an applicant would not suffer persecution for his homosexuality if he could avoid it by living discreetly. Similarly, in SZATV, the tribunal had gone wrong by approaching the issue on the footing that it would not be unreasonable for the appellant to relocate within Ukraine and obtain work which would not involve the expression to the public of his political opinions. In other words, he would avoid persecution by giving up the very right to express his political opinions without fear of persecution which the Convention is designed to protect. Again, the decision is consistent with the approach in Appellant S395/2002 v Minister for Immigration. The same approach has been followed in New Zealand. In Refugee Appeal No 74665/03, [2005] INLR 68 at para 124, the New Zealand Refugee Status Appeals Authority considered that its own approach and the approach of the High Court of Australia in Appellant S395/2002 converged on the same point, namely that refugee status cannot be denied by requiring of the claimant that he or she avoid being persecuted by forfeiting a fundamental human right. The difference between the High Court and the Authority which the Authority considered could be important in certain cases was that it preferred to use a human rights framework in order to determine the limits of what an individual is entitled to do and not to do. That approach might, for instance, be relevant if an applicant were claiming asylum on the ground that he feared persecution if he took part in a gay rights march. I respectfully see the attractions of that approach. But no such issue arises in the present appeals and I prefer to leave the point for consideration in a case where it might be of practical effect. For present purposes I take the decision of the Authority, based on a particularly full and impressive analysis of the relevant materials, as clear support for the High Court of Australias approach that an applicant cannot be denied asylum on the basis that he would, in fact, take effective steps, by suppressing his sexual identity, to avoid the harm which would otherwise threaten him. The Court of Appeal: living discreetly as persecution Under reference to the case law of the Court of Appeal set out above at paras 47 49, the Secretary of State argued, however, that if the applicant would actually live discreetly and avoid the danger, then he would have no real fear of persecution unless he could not reasonably be expected to tolerate that situation, viz, having to conceal his sexual identity, and all the restrictions which that would entail, in circumstances where failure to do so would expose him to extreme danger. In other words the basis for claiming asylum would be a well founded fear that he would find it intolerable to live discreetly to avoid the danger. Something of the same idea can be seen in the argument which Mosley J considered in Sadeghi Pari v Canada (Minister of Citizenship and Immigration) 2004 FC 282, para 29: The meaning of persecution is generally defined as the serious interference with a basic human right. Concluding that persecution would not exist because a gay woman in Iran could live without punishment by hiding her relationship to another woman may be erroneous, as expecting an individual to live in such a manner could be a serious interference with a basic human right, and therefore persecution (internal citations omitted). In my view, the approach adopted by the Court of Appeal is unsound. I leave on one side my reasoning so far and also the obvious point that the Court of Appeals test seems to require the applicant to establish a form of secondary persecution brought on by his own actions in response to the primary persecution. In my view the core objection to the Court of Appeals approach is that its starting point is unacceptable: it supposes that at least some applications for asylum can be rejected on the basis that the particular applicant could find it reasonably tolerable to act discreetly and conceal his sexual identity indefinitely to avoid suffering severe harm. The New Zealand Refugee Status Appeals Authority observed in Re GJ [1998] (1995) INLR 387, 420 that sexual orientation is either an innate or unchangeable characteristic or a characteristic so fundamental to identity or human dignity that it ought not be required to be changed (emphasis in the original). So, starting from that position, the Convention offers protection to gay and lesbian people and, I would add, bisexuals and everyone else on a broad spectrum of sexual behaviour because they are entitled to have the same freedom from fear of persecution as their straight counterparts. No one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution. Nor would anyone proceed on the basis that a man or woman could find it reasonably tolerable to conceal his or her race indefinitely to avoid suffering persecution. Such an assumption about gay men and lesbian women is equally unacceptable. Most significantly, it is unacceptable as being inconsistent with the underlying purpose of the Convention since it involves the applicant denying or hiding precisely the innate characteristic which forms the basis of his claim of persecution: Atta Fosu v Canada (Minister of Citizenship and Immigration) 2008 FC 1135, para 17, per Zinn J. At the most basic level, if a male applicant were to live discreetly, he would in practice have to avoid any open expression of affection for another man which went beyond what would be acceptable behaviour on the part of a straight man. He would have to be cautious about the friendships he formed, the circle of friends in which he moved, the places where he socialised. He would have constantly to restrain himself in an area of life where powerful emotions and physical attraction are involved and a straight man could be spontaneous, impulsive even. Not only would he not be able to indulge openly in the mild flirtations which are an enjoyable part of heterosexual life, but he would have to think twice before revealing that he was attracted to another man. Similarly, the small tokens and gestures of affection which are taken for granted between men and women could well be dangerous. In short, his potential for finding happiness in some sexual relationship would be profoundly affected. It is objectionable to assume that any gay man can be supposed to find even these restrictions on his life and happiness reasonably tolerable. It would be wrong, however, to limit the areas of behaviour that must be protected to the kinds of matters which I have just described essentially, those which will enable the applicant to attract sexual partners and establish and maintain relationships with them in the same way as happens between persons who are straight. As Gummow and Hayne JJ pointed out in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473, 500 501, para 81: Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts or, indeed, to any particular forms of physical conduct. It may, and often will, extend to many aspects of human relationships and activity. That two individuals engage in sexual acts in private (and in that sense discreetly) may say nothing about how those individuals would choose to live other aspects of their lives that are related to, or informed by, their sexuality In short, what is protected is the applicants right to live freely and openly as a gay man. That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. Mutatis mutandis and in many cases the adaptations would obviously be great the same must apply to other societies. In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution. This is not to give any false or undue prominence to the applicants sexuality or to say that an individual is defined by his sexuality. It is just to accept that sexual identity is inherent to ones very identity as a person: Hernandez Montiel v Immigration and Naturalisation Service, 225 F 3d 1084, 1093 (9th Cir 2000), per Tashima J. A E Housman showed many of the hallmarks of genius both as a textual critic and as a poet; Alan Turing was a mathematical genius. Not only may these talents have been at least as significant to their identity as their homosexuality, but the individuals themselves may well have thought so too. That does not matter in the context of persecution. As the Nazi period showed all too clearly, a secular Jew, who rejected every tenet of the religion and did not even think of himself as Jewish, was ultimately in as much need as any Orthodox rabbi of protection from persecution as a Jew. Similarly, an applicant for asylum does not need to show that his homosexuality plays a particularly prominent part in his life. All that matters is that he has a well founded fear that he will be persecuted because of that particular characteristic which he either cannot change or cannot be required to change. Another way of pointing to essentially the same basic defect in the approach of the Court of Appeal is to say that a tribunal has no legitimate way of deciding whether an applicant could reasonably be expected to tolerate living discreetly and concealing his homosexuality indefinitely for fear of persecution. Where would the tribunal find the yardstick to measure the level of suffering which a gay man far less, the particular applicant would find reasonably tolerable? How would the tribunal measure the equivalent level for a straight man asked to suppress his sexual identity indefinitely? The answer surely is that there is no relevant standard since it is something which no one should have to endure. In practice, of course, where the evidence showed that an applicant had avoided persecutory harm by living discreetly for a number of years before leaving his home country, the tribunal would be tempted to fall into error. The tribunal would be liable to hold that the evidence showed that this applicant, at least, must have found his predicament reasonably tolerable in the past and so would find it reasonably tolerable if he were returned to his country of nationality. But, in truth, that evidence would merely show that the applicant had put up with living discreetly for fear of the potentially dire consequences of living openly. I would therefore hold that the tests formulated by Maurice Kay LJ and Buxton LJ in J v Secretary of State for the Home Department [2007] Imm AR 73, at paras 16 and 20, and applied by Pill LJ in this case, are wrong in principle, unworkable and inconsistent with the way that article 1A(2) of the Convention has been interpreted and applied in other authorities. As can be seen from the passage from Z v Secretary of State for the Home Department [2005] Imm AR 75 quoted at para 47 above, Buxton LJ seems to have thought that he was following the approach of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473. That was, quite simply, a misunderstanding. As the cross heading above para 40 of their judgment showed, at this point in their judgment their Honours were considering the position of a gay person who would live openly. They first explained that persecution could take a variety of forms, and then observed, in the sentence quoted by Buxton LJ, that to count as persecution the harm had to be intolerable. But this is just a general description of what counts as persecution. As I have explained, in paras 55 and 56 above, the remainder of para 40 of their Honours judgment contains not the slightest hint of the approach favoured by the Court of Appeal. That approach should not be followed in future. The approach to be followed by tribunals When an applicant applies for asylum on the ground of a well founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality. If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicants country of nationality. If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country. If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well founded fear of persecution even if he could avoid the risk by living discreetly. If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so. If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay. If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him. The Secretary of State should, of course, apply the same approach when considering applications of this type. Although I have, for the most part, concentrated on the position of gay men, the Secretary of State and tribunals should approach applications concerning lesbian women in the same way. These appeals I add a comment on the case of HT. The tribunal rejected his application on the ground that, on his return to Cameroon, he could go to live in another part of the country and live discreetly there. In that event he would have no real fear of persecution. But there appears to have been nothing in the evidence to suggest that there was any area of Cameroon where gay men could live openly without any fear of persecution. So in no sense would the applicant be returning to a part of the country where the state would protect him from persecution. In effect, therefore, the tribunal was simply saying that his application should be rejected because, on return, he could take steps to avoid persecution by conducting himself discreetly. For the reasons which I have given, that approach is inconsistent with the very aims of the Convention. In effect, the tribunal made the same error as the tribunal in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, discussed at para 71 above. For these reasons I would allow both appeals and remit matters to the respective tribunals for reconsideration in the light of the approach which I have outlined. LORD WALKER I agree with the reasoning and conclusions in Lord Rodgers judgment. But in view of the importance of this appeal I will add some observations in my own words. After all the carefully researched debate that the Court has heard and participated in (we have had 23 bundles of authorities containing 250 different items) there is, as has often been noted, ultimately a single question: does the claimant asylum seeker have a well founded fear of being persecuted, if returned to his own country, for reasons falling within article 1A(2) of the Convention? As it was put by Simon Brown LJ in Secretary of State for the Home Department v Iftikar Ahmed [2000] INLR 1, cited by McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (2003) 216 CLR 473 para 42 : [I]n all asylum cases there is ultimately but a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason? If there is, then he is entitled to asylum. This single question is however complex (McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 256) described it as a compound conception which nevertheless needs to be interpreted as a totality). It is not directed at ascertaining past facts (though findings as to events asserted by the claimant to have happened in the past will always be relevant, and often crucial). Instead it is directed at predicting what would or might happen in the future if (contrary to his wishes) the claimant is returned to his own country. Here too his evidence as to his own state of mind (in particular his intentions and his apprehensions in an eventuality which he earnestly hopes to avoid) will always be relevant. But his evidence may have to be treated with caution because of his strong personal interest in the outcome of his claim. Moreover the inquiry is by no means wholly subjective. The need for the claimants fear to be well founded introduces a very important objective element. Different jurisdictions have taken different approaches to evaluating what Professor James C Hathaway has called the threshold of concern (Hathaway, The Law of Refugee Status (1991) pp 75 80). When that work was published the test approved by the House of Lords in R v Secretary of State for the Home Department Ex p Sivakumaran (and conjoined appeals) [1988] AC 958 was that there should be a reasonable degree of likelihood (Lord Keith at p 994) or real and substantial danger (Lord Templeman at p 996) or a real and substantial risk (Lord Goff at p 1000) of persecution for a Convention reason. This remains the test. The editors of Macdonald, Immigration Law and Practice 7th ed (2008) prefer the expression real risk, citing the Court of Appeal in MH (Iraq) v Secretary of State for the Home Department [2007] EWCA Civ 852, a real as opposed to a fanciful risk. Risk is in my view the best word because (as explained in the next paragraph) it factors in both the probability of harm and its severity. In understanding the practical implications of the test it is important to note that in Sivakumaran Lord Keith quoted Lord Diplocks remarks in R v Governor of Pentonville Prison, Ex p Fernandez [1971] 1 WLR 987, 994 (an extradition case) as to the relative gravity of the consequences of the courts expectation being falsified either in one way or in the other and Lord Templeman referred to his own similar remarks in R v Secretary of State for the Home Department Ex p Bugdaycay [1987] AC 514, 537. Where life or liberty may be threatened, the balance of probabilities is not an appropriate test. As Sedley LJ said in Batayav v Secretary of State for the Home Department [2003] EWCA Civ 1489, [2004] INLR 126 para 38: If a type of car has a defect which causes one vehicle in ten to crash, most people would say that it presents a real risk to anyone who drives it, albeit crashes are not generally or consistently happening. Getting away from metaphor, I suppose that it may be debatable whether a gay man would be at real risk of persecution (in the Convention sense) if, on returning to his own country, he would face a one in ten risk of being prosecuted and made to pay a fine, or sent to prison for a month. But if he would face a one in ten risk of being prosecuted and sentenced to death by public hanging from a crane there could be only one answer. The notion that a gay man could (and so, some might say, should) avoid trouble by adopting a discreet lifestyle (or leading an entirely celibate life) is not limited to the context of asylum law. It is the way in which hundreds of thousands of gay men lived in England before the enactment of the Sexual Offences Act 1967. But it has assumed particular importance in asylum law since gays and lesbians have become generally recognised as a particular social group for Convention purposes. Jenni Millbank has described this development (which she terms discretion reasoning) in From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom (2009) 13 IJHR 391, 393 394 (most references omitted): At its baldest, discretion reasoning entailed a reasonable expectation that persons should, to the extent that it is possible, co operate in their own protection, by exercising self restraint such as avoiding any behaviour that would identify them as gay; never telling anyone they were gay; only expressing their sexuality by having anonymous sex in public places; pretending that their partner is a flatmate; or indeed remaining celibate. This approach subverted the aim of the Refugees Convention that the receiving state provide a surrogate for protection from the home state by placing the responsibility of protection upon the applicant: it is he or she who must avoid harm. The discretion approach also varied the scope of protection afforded in relation to each of the five Convention grounds by, for example, protecting the right to be openly religious but not to be openly gay or in an identifiable same sex relationship. The idea of discretion reflects broader social norms concerning the proper place of lesbian and gay sexuality, as something to be hidden and reluctantly tolerated, a purely private sexual behaviour rather than an important and integral aspect of identity, or as an apparent relationship status. The discretion approach explicitly posited the principle that human rights protection available to sexual orientation was limited to private consensual sex and did not extend to any other manifestation of sexual identity (which has been variously characterised as flaunting displaying and advertising homosexuality as well as inviting persecution). Thus for example in 2001 the Federal Court of Australia held that the Iranian Penal Code prohibiting homosexuality and imposing a death penalty did place limits on the applicants behaviour; the applicant had to avoid overt and public, or publicly provocative homosexual activity. But having to accept those limits did not amount to persecution. (Nezhadian v Minister for Immigration and Multicultural Affairs [2001] FCA 1415, para 12). On appeal, the full Federal Court endorsed the view that public manifestation of homosexuality is not an essential part of being homosexual (WABR v Minister for Immigration and Multicultural Affairs [2002] FCAFC 124, para 23). The discretion approach thus has had wide reaching ramifications in terms of framing the human rights of lesbians and gay men to family life, freedom of association and freedom of expression as necessarily lesser in scope than those held by heterosexual people. This approach has been brought to an end, for the purposes of Australian asylum law, by the majority decision of the High Court of Australia in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. The High Court divided by four to three in favour of allowing the appeal and remitting the case (though the tribunal to which the case was remitted decided that S395/2002 and his co applicant S396/2002 were not gay after all this fact, recorded by Jenni Millbank in her article, is reflected in its title). The minority (Gleeson CJ and Callinan and Heydon JJ) considered that the tribunal had not erred in law. The majority consisted of McHugh and Kirby JJ who joined in one judgment, and Gummow and Hayne JJ who joined in another. I find the joint judgment of Gummow and Hayne JJ illuminating and compelling. Lord Hope and Lord Rodger have quoted parts of paras 81 and 82 but I think it helpful to set out the whole section (paras 78 83) which appears under the heading Discretion and being discreet: The central question in any particular case is whether there is a well founded fear of persecution. That requires examination of how this applicant may be treated if he or she returns to the country of nationality. Processes of classification may obscure the essentially individual and fact specific inquiry which must be made. The dangers of arguing from classifications are particularly acute in matters in which the applicants sexuality is said to be relevant. Those dangers lie within the notions of discretion and being discreet: terms often applied in connection with some aspects of sexual expression. To explain why use of those terms may obscure more than they illuminate, it is useful to begin by considering Convention reasons other than membership of a social group defined in terms of sexual identity. If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be discreet about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicants fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences. It is important to recognise the breadth of the assertion that is made when, as in the present case, those seeking protection allege fear of persecution for reasons of membership of a social group identified in terms of sexual identity (here, homosexual men in Bangladesh). Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts or, indeed, to any particular forms of physical conduct. It may, and often will, extend to many aspects of human relationships and activity. That two individuals engage in sexual acts in private (and in that sense discreetly) may say nothing about how those individuals would choose to live other aspects of their lives that are related to, or informed by, their sexuality. Saying that an applicant for protection would live discreetly in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision maker expects that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is expected to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well founded fear of persecution. It has asked the wrong question. Addressing the question of what an individual is entitled to do (as distinct from what the individual will do) leads on to the consideration of what modifications of behaviour it is reasonable to require that individual to make without entrenching on the right. This type of reasoning, exemplified by the passages from reasons of the Tribunal in other cases, cited by the Federal Court in Applicant LSLS v Minister for Immigration and Multicultural Affairs, leads to error. It distracts attention from the fundamental question. It leads to confining the examination undertaken (as it was in LSLS) merely to considering whether the applicant had a well founded fear of persecution if he were to pursue a homosexual lifestyle in [the country of nationality], disclosing his sexual orientation to the extent reasonably necessary to identify and attract sexual partners and maintain any relationship established as a result. That narrow inquiry would be relevant to whether an applicant had a well founded fear of persecution for a Convention reason only if the description given to what the applicant would do on return was not only comprehensive, but exhaustively described the circumstances relevant to the fear that the applicant alleged. On its face it appears to be an incomplete, and therefore inadequate, description of matters following from, and relevant to, sexual identity. Whether or not that is so, considering what an individual is entitled to do is of little assistance in deciding whether that person has a well founded fear of persecution. Lord Rodger, in paras 78 80 of his judgment, adds a vivid commentary which illustrates and brings to life the general message conveyed by this part of the judgment of Gummow and Hayne JJ. There is a similar message in the joint judgment of McHugh and Kirby JJ (especially paras 40 43). But I have to say, with great respect to those two very distinguished judges, that I have difficulty with some of the reasoning in para 43, and in particular the sentence, It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. I think that this sentence (together with the unexceptionable comment in para 40 that harm is persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it) have contributed to the Court of Appeal straying into error in J v Secretary of State for the Home Department [2006] EWCA Civ 1238, [2007] Imm AR 1 paras 16 and 20, an error which was followed in this case: [2009] EWCA Civ 172, paras 11, 12, 31 and 44. In the present case Pill LJ referred, at para 10 of his judgment, to what counsel had described as the Anne Frank principle. That is of course a reference to the Jewish girl who was hidden in an attic in Amsterdam for more than two years, but ultimately discovered by the Nazis and sent to a concentration camp, where she died. The conditions which she had to endure, confined in an attic away from the normal pleasures of childhood and in constant fear of discovery, were certainly severe enough to be described as persecution. But in the context of a claim to asylum under the Convention this approach may be an unnecessary complication, and lead to confusion. The essential question in these cases is whether the claimant has a well founded fear of persecution as a gay man if returned to his own country, even if his fear (possibly in conjunction with other reasons such as his familys feelings) would lead him to modify his behaviour so as to reduce the risk. There are some countries in which a gay couple who lived together quite openly, and made no attempt to conceal their affection, even in public places, would be inviting persecution (an expression used in R v Secretary of State for the Home Department, Ex p Binbasi [1989] Imm AR 595, p 4). That is an unfortunate expression. Some people who risk martyrdom have complex motivation and appear to others to be stubborn and wrong headed. (John Donne, who was born a Catholic and knew a lot about persecution from his own familys experiences, wrote a prose work entitled Pseudo Martyr, published in 1610, deploring the intransigence of some loyal Catholics.) But neither the most courageous nor the most timorous forfeit protection as asylum seekers if, in their different ways, they satisfy the test of a well founded fear of persecution because of their sexuality. I respectfully concur in para 82 of Lord Rodgers judgment, setting out the approach to be followed by tribunals in cases of this sort. It involves (as Gummow and Hayne JJ put it in S395, para 78) an essentially individual and fact specific inquiry. It will often be a difficult task since much of the relevant evidence will come from the claimant, who has a strong personal interest in its outcome. For these reasons, and for the fuller reasons given by Lord Rodger, I would allow both appeals and remit them to the tribunal for reconsideration in the light of Lord Rodgers judgment. LORD COLLINS I agree that the appeal should be allowed for the reasons given by Lord Rodger and that the approach to be followed by tribunals should be as he proposes in paragraph [82] of his judgment. In the context of cases such as this, the use of the words discretion and discreetly tends to obscure the point that what is really involved is concealment of sexual orientation. The relevant question is whether the applicant has a well founded fear of being persecuted for reasons of membership of a particular social group: Refugee Convention, article 1A(2). Persecution is sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community, or an affront to internationally accepted human rights norms, and in particular the core values of privacy, equality and dignity: Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495; Amare v Home Secretary [2005] EWCA Civ 1600, [2006] Imm AR 217, [17]. The test of reasonable tolerability adopted by Buxton LJ in Z v Secretary of State for the Home Department [2004] EWCA Civ 1578, [2005] Imm AR 75 at [17], and applied by Maurice Kay LJ in J v Secretary of State for the Home Department [2006] EWCA Civ 1238, [2007] Imm AR 73 at [16], and Pill LJ in the present case at [31] was based on a misunderstanding of the passage in the judgment of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration [2003] HCA 71,(2003) 216 CLR 473, at [40], when they said: [40] Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps reasonable or otherwise to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a particular social group if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality. The idea of reasonable toleration was plainly being mentioned in the context of what amounts to persecution and not in the context of what they described as taking avoiding action or where members of the group hide their membership or modify some attribute or characteristic of the group to avoid persecution. If a person would have to conceal his sexual identity because of a well founded fear of persecution, he does not cease to have that well founded fear even if the concealment will be successful: see also NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29, (2005) 216 ALR 1; SZATV v Minister for Immigration and Citizenship [2007] HCA 40, (2007) 233 CLR 18; Refugee Appeal No 74665/03 [2005] INLR 68 (NZ Refugee Status Appeals Authority, Mr Haines QC). A similar, though not identical, approach has been adopted in Canada and the United States. Thus in Atta Fosu v Canada (Citizenship and Immigration) 2008 FC 1135 (Federal Court of Canada, Zinn J) it was held that to say that an internal flight alternative existed if the homosexual refugee claimant lived a discreet existence, was to say that it was not an internal flight alternative. The applicant was a Ghanaian citizen who claimed to fear persecution by the police and the family of his former same sex partner, on the basis of his homosexuality. The immigration board found that the applicant could live as a homosexual, discreetly, in the city of Accra, and therefore that an internal flight alternative existed for the applicant and therefore held that no determination on his identity as a homosexual needed to be made. The court held that the decision was unreasonable because it required the applicant to deny or hide the innate characteristic which formed the basis of his claim of persecution. See also Sadeghi Pari v Canada (Minister of Citizenship and Immigration), 2004 FC 282. In the United States it was said in Karouni v Gonzales, 399 F 3d 1163, 1173 (9th Cir 2005) that by arguing that the homosexual applicant could avoid persecution by living a life of celibacy in Lebanon, the Attorney General was essentially arguing that the law required him to change a fundamental aspect of his human identity. See also, for a full discussion of the suggestion that applicants could hide their religion to avoid persecution, Kazemzadeh v US Attorney General, 577 F 3d 1341 (11th Cir 2009), following Iao v Gonzales, 400 F 3d 530, 532 (7th Cir 2005), Zhang v Ashcroft, 388 F 3d 713, (9th Cir.2004); Woldemichael v Ashcroft, 448 F 3d 1000 (8th Cir 2006). These principles also answer the Anne Frank question which is discussed in the case law and which was the subject of argument on this appeal. In Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132, a political opinion case, the Minister argued that the Tribunal was only required, under the terms of the Convention, to consider whether the applicants would be punished for their political opinions; and that since the applicants had claimed to have operated clandestinely in the past and gave no indication that they would not do so in the future, it was appropriate for the Tribunal merely to ask what the prospects were that the authorities would discover their activities in the future. Madgwick J said (at [18]): upon the approach suggested by counsel for the [Minister], Anne Frank, terrified as a Jew and hiding for her life in Nazi occupied Holland, would not be a refugee: if the Tribunal were satisfied that the possibility of her being discovered by the authorities was remote, she would be sent back to live in the attic. It is inconceivable that the framers of the Convention ever did have, or should be imputed to have had, such a result in contemplation. In this case the Secretary of State argued that had Anne Frank escaped to the United Kingdom, and had it been found (improbably, as the Secretary of State recognised) that on return to Holland she would successfully avoid detection by hiding in the attic, then she would not be at real risk of persecution by the Nazis, and the question would be whether permanent enforced confinement in the attic would itself amount to persecution. Simply to re state the Secretary of States argument shows that it is not possible to characterise it as anything other than absurd and unreal. It is plain that it remains the threat to Jews of the concentration camp and the gas chamber which constitutes the persecution. SIR JOHN DYSON SCJ On the findings of the tribunals, HJ and HT would have a well founded fear of persecution if, on return to Iran and Cameroon respectively, they were to live openly as gay men. Their claims for asylum failed because it was found that on their return they would conceal their sexual orientation and live discreet lives. I agree that these appeals should be allowed for the reasons given by Lord Rodger. In view of the importance of the issues, I would like to add a few words of my own. How can a gay man, who would have a well founded fear of persecution if he were to live openly as a gay man on return to his home country, be said to have a well founded fear of persecution if on return he would in fact live discreetly, thereby probably escaping the attention of those who might harm him if they were aware of his sexual orientation? It is well established that in asylum cases it is necessary for the decision maker to determine what the asylum seeker will do on return: see Ahmad v Secretary of State for the Home Department [1990] Imm AR 61. Thus, the asylum seeker who could avoid persecution on his return, but who (however unreasonably) would not do so is in principle a refugee within the meaning of the Convention. At first sight, therefore, it might be thought that this should lead to the conclusion that, if a gay man would live discreetly on return and thereby avoid being harmed or persecuted on account of his sexual orientation, he could not have a well founded fear of persecution within the meaning of article 1A(2) of the Convention. I shall call this the prima facie interpretation. But none of the parties to this appeal argues for this interpretation, although their reasons for not doing so differ fundamentally. Reasons why the prima facie interpretation must be rejected The Convention must be construed in the light of its object and purpose, which is to protect a person who owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him. The Convention would be failing in its purpose if it were to mean that a gay man does not have a well founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country. A purposive approach to the meaning of refugee was adopted by McHugh and Kirby JJ in the S395/2002 decision (2003) 216 CLR 473, at para 41 where they said: The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention. Like Lord Rodger, I would follow this approach which has been substantially followed in Australia. I do not find it necessary to examine the Australian authorities to which we were referred. It is perhaps sufficient to refer to the paper by Jenni Millbank From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom (2009) 13 (2 3) IJHR 391 414. This paper explores the impact of the S395/2002 decision on the refugee jurisprudence of Australia and the United Kingdom five years on. It shows that the reasoning of the majority judgments is being generally applied in Australia, but that there has been a clear shift away from discretion towards disbelief as the major area of contest in decisions since S395 and S396, with a significant increase in decisions where the applicants claim to actually being gay, lesbian, or bisexual is outright rejected. The somewhat different analysis of the problem adopted in New Zealand also leads to a rejection of the prima facie interpretation and to the same overall conclusion that a persons claim to refugee status is not to be denied even if on return he will act discreetly in order to avoid being persecuted. On this analysis, which is expounded very fully in the leading case of Refugee Appeal No 74665/03 [2005] INLR 68, the emphasis is on the fact that refugee status cannot be denied to a person who on return would forfeit a fundamental human right in order to avoid persecution. Like Lord Rodger, I see the attractions of this approach. It gives due weight to the fact that the Convention must be interpreted in accordance with its broad humanitarian objective and having regard to the principles, expressed in the preamble, that human beings should enjoy fundamental rights and freedoms without discrimination and that refugees should enjoy the widest possible exercise of these rights and freedoms: see per Lord Bingham in Fornah v Secretary of State for the Home Department [2007] 1 AC 412 at para 10. An interpretation of article 1A(2) of the Convention which denies refugee status to gay men who can only avoid persecution in their home country by behaving discreetly (and who say that on return this is what they will do) would frustrate the humanitarian objective of the Convention and deny them the enjoyment of their fundamental rights and freedoms without discrimination. The right to dignity underpins the protections afforded by the Refugee Convention: see Canada (AG) v Ward [1993] 2 SCR 689, approving Professor Hathaway, Law of Refugee Status, 1991, p 108: The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard. A particular attraction of the New Zealand approach is that, as was said at [2005] INLR 68, para 120 of the decision delivered by RPG Haines QC, it facilitates a determination of: whether the proposed action by the claimant is at the core of the right or at its margins and whether the prohibition or restriction imposed by the state is lawful in terms of international human rights law. If the proposed action is at the core of the right and the restriction unlawful, we would agree that the claimant has no duty to avoid the harm by being discreet or complying with the wishes of the persecutor. If, however, the proposed activity is at the margin of the protected interest, then persistence in the activity in the face of the threatened harm is not a situation of being persecuted for the purposes of the Refugee Convention. The individual can choose to carry out the intended conduct or to act reasonably or discreetly in order to avoid the threatened serious harm. None of these choices, however, engages the Refugee Convention. It is open to question how far the distinction between harmful action at the core of the right and harmful action at its margin is of relevance in cases of persecution on grounds of immutable characteristics such as race and sexual orientation. But it is a valuable distinction and there may be more scope for its application in relation to cases concerning persecution for reasons of religion or political opinion. There is a yet further analysis that may be adopted which leads to the conclusion that the prima facie interpretation should be rejected. This is that, if a person will conceal his true identity and protected status out of a well founded fear that he will otherwise be persecuted, he will nevertheless continue to have a well founded fear of persecution even if, by concealing his true identity, he may succeed in avoiding serious harm. As McHugh and Kirby JJ said in S395/2002 at para 43: In manyperhaps the majority ofcases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constituted the persecutory conduct. In other words, the threat of serious harm and the fear of it will remain despite the avoiding behaviour. In Win v Minister for Immigration and Multicultural Attains (2001) FCA 132, at para 18 Madgwick J said: upon the approach suggested by counsel for the respondent, Anne Frank, terrified as a Jew and hiding for her life in Nazi occupied Holland would not be a refugee: if the Tribunal were satisfied that the possibility of her being discovered by the authorities was remote, she would be sent back to live in the attic. It is inconceivable that the framers of the Convention ever did have, or should be imputed to have had, such a result in contemplation. Even if it could be imagined that Anne Frank, as an asylum seeker, would not objectively have been at risk of being discovered in the attic, she would nevertheless have had a well founded fear of the threat of serious harm, a fear not eliminated by her decision to conceal her identity as a Jew and live in the attic. The Secretary of States solution: the reasonable tolerability test The Secretary of State recognises that it cannot have been intended that Convention protection should be denied to those who feel compelled to take extreme measures to avoid persecution. She does not, therefore, espouse the prima facie interpretation. Her case is that, if the measures that an asylum seeker would take on return to avoid persecution are not reasonably tolerable, then that of itself would amount to persecution. I cannot accept this. First, the phrase being persecuted in article 1A(2) refers to the harm caused by the acts of the state authorities or those for whom they are responsible. The impact of those acts on the asylum seeker is only relevant to the question whether they are sufficiently harmful to amount to persecution. But the phrase being persecuted does not refer to what the asylum seeker does in order to avoid such persecution. The response by the victim to the threat of serious harm is not itself persecution (whether tolerable or not) within the meaning of the article. Secondly, the test of what is reasonably tolerable is vague and difficult to apply. Is it a subjective test? Or does the word reasonably import the idea of the reasonable victim? If so, how for example would a decision maker determine whether it is reasonably tolerable to a person to conceal his or her sexual orientation or race? These are difficult questions which those who framed the Refugee Convention surely cannot have intended decision makers to address. On the Secretary of States test, it would seem that a person who feels compelled to conceal his or her protected status, but does not feel strongly about it and does not find the concealment intolerable is denied the protection of the Convention; whereas the person who does feel strongly about it and finds the concealment intolerable has the benefit of its protection. This differential treatment of the tolerant and the intolerant is unfair. It is an unprincipled and improper basis for deciding whether a person should or should not be accorded refugee status. The decision by the AIT in HJs case shows just how unsatisfactory the Secretary of States test is. The AIT comprised three very experienced immigration judges who endeavoured faithfully to apply the reasonable tolerability test prescribed for them by the Court of Appeal. They found at para 44 of their Determination that for 16 years HJ had been able to conduct his homosexual activities in Iran without serious detriment to his private life and without that causing him to suppress many aspects of his sexual identity (my emphasis). They concluded at para 45 that he would behave in the same way on his return to Iran and that it was difficult to see on the evidence that a return to that way of living can properly be characterised as likely to result in an abandonment of the appellants sexual identity. They said that he had been able to express his sexuality albeit in a more limited way than he can do elsewhere. Finally, they said at para 46: To live a private life discreetly will not cause significant detriment to his right to respect for private life, nor will it involve suppression of many aspects of his sexual identity. I do not understand by what yardstick the AIT measured the tolerability of these limitations and concluded that they were reasonably tolerable. True, HJ had endured them for 16 years, but that did not make them tolerable, let alone reasonably tolerable to him. He had endured them because the alternative was the real risk that he would face severe punishment at the hands of the state authorities. In short, there was no basis on which the tribunal could properly conclude that the fact that HJ had to conceal his identity as a gay man was reasonably tolerable to him. I wish to make it clear that I am not seeking to criticise the tribunal, but rather to show the nature of the task that they were asked to perform. Thirdly, the Secretary of State seeks to draw a distinction between the decision maker (i) requiring the asylum seeker to act discreetly on return and (ii) making a finding that the asylum seeker will in fact act discreetly on return. It is said that the former is impermissible and irrelevant to whether the asylum seeker has a well founded fear of persecution, whereas the latter is not only permissible but highly relevant. But as Lord Rodger points out, this is an unrealistic distinction. Most asylum seekers will opt for the life of discretion in preference to persecution. This is no real choice. If they are returned, they will, in effect, be required to act discreetly. Fourthly, the Secretary of States test, as formulated by the Court of Appeal in Z v Secretary of State for the Home Department [2004] EWCA Civ 1578, [2005] Imm AR 75 and applied in subsequent decisions of the Court of Appeal is based on a misunderstanding of two authorities. The test is founded entirely on these authorities and is not supported by any independent reasoning. The first misunderstanding is of para 40 of the judgment of McHugh and Kirby JJ in S395/2002. The sentence relied on by Buxton LJ is: Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. This sentence comes in a passage which is dealing with persecution generally. The paragraph then goes on to say that persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The sentence relied on by Buxton LJ is saying nothing about the quality or effect of action taken to avoid persecution. The second misunderstanding is of the true effect of what Simon Brown LJ said in Ahmed v Secretary of State for the Home Department. What he said at p 7 of his judgment (quoted by Lord Rodger at para 54 above) was that an asylum seeker would have a well founded fear of persecution if he could avoid persecution on his return, but would choose not to do so (case A). He did not address either expressly or by implication the question whether an asylum seeker would have a well founded fear of persecution if on his return he would act discreetly to avoid the persecution that he would suffer if he lived openly (case B). A conclusion on case A sheds no light on the correct answer to case B. Fifthly, there is no support for the Court of Appeal approach in any other jurisprudence. This is important in view of the implicit rejection of it in a number of other jurisdictions, including at least Australia and New Zealand, and the fact that it is desirable that, so far as possible, there should be international consensus on the meaning of the Convention. For all these reasons, I would reject the reasonable tolerability test. I should add that in his judgment in the present case, Pill LJ said at para 32 that in determining whether suppression was reasonably tolerable for an individual: . a degree of respect for social norms and religious beliefs in other states is in my view appropriate. Both in Muslim Iran and Roman Catholic Cameroon, strong views are genuinely held about homosexual practices. In considering what is reasonably tolerable in a particular society, the fact finding Tribunal is in my view entitled to have regard to the beliefs held there. Even if I had accepted the reasonable tolerability test, I would not have felt able to agree with this passage. It would have been necessary to conduct the assessment by reference to objective human rights standards, and not by reference to the social mores of the home country. As Lord Hoffmann said in R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 655E: The findings of fact as to discrimination have not been challenged. They cannot be ignored merely on the ground that this would imply criticism of the legal or social arrangements in another country. The whole purpose of the Convention is to give protection to certain classes of people who have fled from countries in which their human rights have not been respected. In Refugee Appeal No 74665/03, the New Zealand Status Appeals Authority stated at para 112: We do not accept that the domestic law of the country of origin or cultural relativity can override international human rights norms in the refugee determination context. I agree. Conclusion It follows that the AIT in HJs case applied the wrong test, although they are not to be criticised for having done so. His appeal must be allowed and his case remitted to a fresh tribunal. The tribunal in HTs case did not apply the reasonably tolerability test. But they dismissed HTs appeal on the basis that he could relocate to a different part of Cameroon, presumably on the basis that he would act discreetly there. Their conclusion is flawed for the simple reason that they seem to have thought that the mere fact that HT had acted discreetly in the past and would do so in the future was determinative of the issue. That was an error of law. His appeal must also be allowed and his case remitted to a fresh tribunal. As regards guidance for immigration judges in the future, I agree with what Lord Rodger has said at para 82.	The Supreme Court unanimously allows the appeal, holding that the reasonable tolerability test applied by the Court of Appeal is contrary to the Convention and should not be followed in the future. HJ and HTs cases are remitted for reconsideration in light of the detailed guidance provided by the Supreme Court. There is no dispute that homosexuals are protected by the Convention, membership of the relevant social group being defined by the immutable characteristic of its members sexuality [paras [6] and [10] per Lord Hope and para [42] per Lord Rodger]. To compel a homosexual person to pretend that their sexuality does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny him his fundamental right to be who he is. Homosexuals are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self expression in matters that affect their sexuality, as people who are straight [paras [11] and [14] per Lord Hope and para [78] per Lord Rodger]. The Convention confers the right to asylum in order to prevent an individual suffering persecution, which has been interpreted to mean treatment such as death, torture or imprisonment. Persecution must be either sponsored or condoned by the home country in order to implicate the Convention [paras [12] and [13] per Lord Hope]. Simple discriminatory treatment on grounds of sexual orientation does not give rise to protection under the Convention. Nor does the risk of family or societal disapproval, even trenchantly expressed [paras [13], [15] and [22] per Lord Hope and para [61] per Lord Rodger]. One of the fundamental purposes of the Convention was to counteract discrimination and the Convention does not permit, or indeed envisage, applicants being returned to their home country on condition that they take steps to avoid offending their persecutors. Persecution does not cease to be persecution for the purposes of the Convention because those persecuted can eliminate the harm by taking avoiding action [paras [14] and [26] per Lord Hope and paras [52] [53] and [65] per Lord Rodger]. The reasonable tolerability test applied by the Court of Appeal must accordingly be rejected [para [29] per Lord Hope and paras [50], [75] and [81] per Lord Rodger]. There may be cases where the fear of persecution is not the only reason that an applicant would hide his sexual orientation, for instance, he may also be concerned about the adverse reaction of family, friends or colleagues. In such cases, the applicant will be entitled to protection if the fear of persecution can be said to be a material reason for the concealment [paras [62], [67] and [82] per Lord Rodger]. Lord Rodger (with whom Lords Walker and Collins and Sir John Dyson SCJ expressly agreed), at para [82] and Lord Hope, at para [35], provided detailed guidance in respect of the test to be applied by the lower tribunals and courts in determining claims for asylum protection based on sexual orientation.
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.	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]
There are two appeals before the court: Rubin v Eurofinance SA (Rubin) and New Cap Reinsurance Corpn Ltd v Grant (New Cap). These appeals raise an important and novel issue in international insolvency law. The issue is whether, and if so, in what circumstances, an order or judgment of a foreign court (on these appeals the United States Bankruptcy Court for the Southern District of New York, and the New South Wales Supreme Court) in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue (avoidance proceedings), will be recognised and enforced in England. The appeals also raise the question whether enforcement may be effected through the international assistance provisions of the UNCITRAL Model Law (implemented by the Cross Border Insolvency Regulations 2006 (SI 2006/1030) (CBIR)), which applies generally, or the assistance provisions of section 426 of the Insolvency Act 1986, which applies to a limited number of countries, including Australia. In Rubin a judgment of the US Federal Bankruptcy Court for the Southern District of New York (the US Bankruptcy Court) in default of appearance for about US$10m under State and Federal law in respect of fraudulent conveyances and transfers was enforced in England at common law. In New Cap (in which the Court of Appeal was bound by the prior decision in Rubin) a default judgment of the New South Wales Supreme Court, Equity Division, for about US$8m in respect of unfair preferences under Australian law was enforced under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (the 1933 Act), and, alternatively, pursuant to powers under section 426 of the Insolvency Act 1986. In each of the appeals it was accepted or found that the party against whom they were given was neither present (nor, for the purposes of the 1933 Act, resident) in the foreign country nor submitted to its jurisdiction (which are the relevant conditions for enforceability at common law and under the 1933 Act), but that those conditions did not apply to judgments or orders in foreign insolvency proceedings. In addition to the arguments on these two appeals, the court has had the great benefit of written submissions on behalf of parties to proceedings pending in Gibraltar. Those proceedings are to enforce default judgments entered by the US Bankruptcy Court for some $247m in respect of alleged preferential payments to companies in the British Virgin Islands and Cayman Islands arising out of the notorious Ponzi scheme operated by Mr Bernard Madoff. It has been necessary to emphasise that the judgments in all three matters were in default of appearance, because if the judgment debtors had appeared and defended the proceedings in the foreign courts, the issues on these appeals would not have arisen. The reason is that the judgments would have been enforceable on the basis of the defendants submission to the jurisdiction of the foreign court. Enforcement would have been at common law, or, in the New Cap case either under the common law, or under the 1933 Act which substantially reproduces the common law principles there is a subsidiary issue on this appeal as to whether the 1933 Act applies to judgments in insolvency proceedings, dealt with in section IX below. Under the common law a court of a foreign country has jurisdiction to give a judgment in personam where (among other cases) the judgment debtor was present in the foreign country when the proceedings were instituted, or submitted to the jurisdiction of the foreign court by voluntarily appearing in the proceedings. In the case of the 1933 Act the foreign court is deemed to have jurisdiction where the judgment debtor submitted to the jurisdiction by voluntarily appearing in the proceedings otherwise than for the purpose (inter alia) of contesting the jurisdiction; or where the judgment debtor was resident at the time when the proceedings were instituted, or being a body corporate had an office or place of business there: section 4(2)(a)(i),(iv). The Dicey Rule The general principle has been referred to on these appeals, by reference to the common law rule set out in Dicey, Morris & Collins, Conflict of Laws (14th edition, 2006), as Diceys Rule 36. This was only by way of shorthand, because the rules in the 1933 Act are not quite identical, and in any event has been purely for convenience, because the Rule has no standing beyond the case law at common law which it seeks to re state. What was Rule 36 now appears (incorporating some changes which are not material on this appeal) as Rule 43 in the new 15th edition, and I shall refer to it as the Dicey Rule. So far as relevant, Rule 43 (Dicey, Morris and Collins, Conflict of Laws, 15th ed, 2012, para 14R 054) states: a court of a foreign country outside the United Kingdom has jurisdiction to give a judgment in personam capable of enforcement or recognition as against the person against whom it was given in the following cases: First CaseIf the person against whom the judgment was given was, at the time the proceedings were instituted, present in the foreign country. Second CaseIf the person against whom the judgment was given was claimant, or counterclaimed, in the proceedings in the foreign court. Third CaseIf the person against whom the judgment was given submitted to the jurisdiction of that court by voluntarily appearing in the proceedings. Fourth CaseIf the person against whom the judgment was given had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of that country. The first edition of Dicey in 1896 stated (Rule 80) that the foreign court would have jurisdiction if the defendant was resident [or present?] in the foreign country so as to have the benefit, and be under the protection, of the laws thereof. By the 6th edition in 1949 the formula was repeated by Professor Wortley (Rule 68) but without the doubt about presence as a basis of jurisdiction. In the 8th edition in 1958 Dr (later Professor) Clive Parry removed the phrase (then Rule 189) about the benefit and protection of the foreign countrys laws. The Rule, subsequently edited by Dr Morris and then by Professor Kahn Freund, remained in that form until the decision in Adams v Cape Industries plc [1990] Ch 433 (CA), which established that presence in the foreign jurisdiction, as opposed to residence, was a sufficient basis for the recognition of foreign judgments. Then, edited by myself and later by Professor Briggs, the Rule took substantially its present form in the 12th edition in 1993. The theoretical basis for the enforcement of foreign judgments at common law is that they are enforced on the basis of a principle that where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained: Williams v Jones (1845) 13 M & W 628, 633 per Parke B; Godard v Gray (1870) LR 6 QB 139, 147, per Blackburn J; Adams v Cape Industries plc [1990] Ch 433, 513; Owens Bank Ltd v Bracco [1992] 2 AC 443, 484, per Lord Bridge of Harwich. As Blackburn J said in Godard v Gray, this was based on the mode of pleading an action on a foreign judgment in debt, and not merely as evidence of the obligation to pay the underlying liability: LR 6 QB 139, 150. But this is a purely theoretical and historical basis for the enforcement of foreign judgments at common law. It does not apply to enforcement under statute, and makes no practical difference to the analysis, nor, in my judgment, to the issues on these appeals. Consequently, if the judgments in issue on the appeals are regarded as judgments in personam within the Dicey Rule, then they will only be enforced in England at common law if the judgment debtors were present (or, if the 1933 Act applies, resident) in the foreign country when the proceedings were commenced, or if they submitted to its jurisdiction. It is common ground that the judgment debtors were not present or resident, respectively, in the United States or in Australia, although there is an issue as to whether the New Cap defendants submitted to the jurisdiction of the Australian court, which is dealt with in section VIII below. Insolvency proceedings and the international dimension There are some general remarks to be made. First, from as early as the mid 18th century the English courts have recognised the effect of foreign personal bankruptcies declared under the law of the domicile: Solomons v Ross (1764) 1 H Bl 131n, where Dutch merchants were declared bankrupt in Amsterdam, and the Dutch curator was held entitled to recover an English debt in priority to an English creditor of the merchants who had attached the debt after the bankruptcy: see Nadelmann, Conflict of Laws: International and Interstate (1972), p 273; Blom Cooper, Bankruptcy in Private International Law (1954), pp 107 108. In Galbraith v Grimshaw [1910] AC 508 Lord Dunedin said that there should be only one universal process of the distribution of a bankrupts property and that, where such a process was pending elsewhere, the English courts should not allow steps to be taken in its jurisdiction which would interfere with that process (p 513): Now so far as the general principle is concerned it is quite consistent with the comity of nations that it should be a rule of international law that if the court finds that there is already pending a process of universal distribution of a bankrupts effects it should not allow steps to be taken in its territory which would interfere with that process of universal distribution. Second, in the case of corporations the English courts have exercised a winding up jurisdiction which is wider than that which at common law they have accorded to foreign courts. The court exercises jurisdiction to wind up a foreign company if there is a sufficient connection between the company and England, there are persons who would benefit from the making of a winding up order, and there are persons interested in the distribution of assets of the company who are persons over whom the court can exercise jurisdiction: see Dicey, 15th ed, para 30R 036. But as regards foreign liquidations, the general rule is that the English court recognises at common law only the authority of a liquidator appointed under the law of the place of incorporation (Dicey, 15th ed, para 30R 100). That is in contrast to the modern approach in the primary international and regional instruments, the EC Insolvency Regulation on Insolvency Proceedings (Council Regulation (EC) No 1346/2000) (the EC Insolvency Regulation) and the Model Law, which is that the jurisdiction with international competence is that of the country of the centre of main interests of the debtor (an expression not without its own difficulties). It is ultimately derived from the civil law concept of a traders domicile, and was adopted in substance in the draft EEC Convention of 1980 as a definition of the debtors centre of administration: see Report by M Lemontey on the draft EEC Bankruptcy Convention, Bulletin of the European Communities, Supp 2/82, p 58; American Law Institute, Transnational Insolvency: Global Principles for Co operation in International Insolvency Cases (2012), Principle 13, pp 83 et seq. Third, it is not only in recent times that there have been large insolvency proceedings with significant cross border implications. Even before then there were the Russian Bank cases in the 1930s (arising out of the nationalisation and dissolution of the banks by the Soviet Government) and the Barcelona Traction case in the 1940s and 1950s (see In re Barcelona Traction, Light and Power Co Ltd (second phase) (Belgium v Spain) [1970] ICJ Rep 69), but there is no doubt that today international co operation in cross border insolvencies has become a pressing need. It is only necessary to recall the bankruptcies or liquidations of Bank of Credit and Commerce International, Maxwell Communications, or Lehman Brothers, each with international businesses, assets in many countries, and potentially competing creditors in different countries with different laws. There is not only a need to balance all these interests but also to provide swift and effective remedies to combat the use of cross border transfers of assets to evade and to defraud creditors. Fourth, there is no international unanimity or significant harmonisation on the details of insolvency law, because to a large extent insolvency law reflects national public policy, for example as regards priorities or as regards the conditions for the application of avoidance provisions: the process of collection of assets will include, for example, the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme: In re HIH Casualty and General Insurance Ltd [2008] UKHL 21, [2008] 1 WLR 852, para 19, per Lord Hoffmann. Fifth, there has been a trend, but only a trend, to what is called universalism, that is, the administration of multinational insolvencies by a leading court applying a single bankruptcy law: Westbrook, A Global Solution to Multinational Default (2000) 98 Mich L Rev 2276, 2277. What has emerged is what is called by specialists modified universalism. The meaning of the expression universalism has undergone a change since the time it was first used in the 19th century, and it later came to be contrasted with the doctrine of unity. In 1834 Story referred to the theory that assignments under bankrupt or insolvent laws were, and ought to be, of universal operation to transfer movable property, in whatever country it might be situate, and concluded that there was great wisdom in adopting the rule that an assignment in bankruptcy should operate as a complete and valid transfer of all his movable property abroad, as well as at home, and for a country to prefer an attaching domestic creditor to a foreign assignee or to foreign creditors could hardly be deemed consistent with the general comity of nations [T]he true rule is, to follow out the lead of the general principle that makes the law of the owners domicil conclusive upon the disposition of his personal property, citing Solomons v Ross as supporting that doctrine: Story, Commentaries on the Conflict of Laws, 1st ed (1834), pp 340 341, para 406. Professor Cheshire, in his first edition (Cheshire, Private International Law, 1935, pp 375 376), said that although English law neglects the doctrine of unity it recognizes the doctrine of universality. What he meant was that English law was committed to separate independent bankruptcies in countries where the assets were situate, rather than one bankruptcy in the country of the domicile (the doctrine of unity), but also accepted the title of the foreign trustee to English movables provided that no bankruptcy proceedings had begun within England (universality). He cited Solomons v Ross for this proposition: The English Courts have consistently applied the doctrine of universality, according to which they hold that all movable property, no matter where it may be situated at the time of the assignment by the foreign law, passes to the trustee. In In re HIH Casualty and General Insurance Ltd [2008] UKHL 21, [2008] 1 WLR 852, para 30, Lord Hoffmann said: The primary rule of private international law which seems to me applicable to this case is the principle of (modified) universalism, which has been the golden thread running through English cross border insolvency law since the 18th century. That principle requires that English courts should, so far as is consistent with justice and UK public policy, co operate with the courts in the country of the principal liquidation to ensure that all the companys assets are distributed to its creditors under a single system of distribution. and in Cambridge Gas Transportation Corporation v Official Committee of Unsecured Creditors of Navigator Holdings plc [2006] UKPC 26, [2007] 1 AC 508, para 16 he said, speaking for the Privy Council: The English common law has traditionally taken the view that fairness between creditors requires that, ideally, bankruptcy proceedings should have universal application. There should be a single bankruptcy in which all creditors are entitled and required to prove. No one should have an advantage because he happens to live in a jurisdiction where more of the assets or fewer of the creditors are situated The US Bankruptcy Court accepted in Re Maxwell Communication Corp, 170 BR 800 (Bankr SDNY 1994) that the United States courts have adopted modified universalism as the approach to international insolvency: the United States in ancillary bankruptcy cases has embraced an approach to international insolvency which is a modified form of universalism accepting the central premise of universalism, that is, that assets should be collected and distributed on a worldwide basis, but reserving to local courts discretion to evaluate the fairness of home country procedures and to protect the interests of local creditors. International co operation and assistance Jurisdiction in international bankruptcy has been the subject of multilateral international instruments at least since the Montevideo Treaty on International Commercial Law of 1889, Title X, although bilateral treaties go back much further, and the subject of international recognition and co operation in insolvency was the subject of early discussion by the International Law Association (1879), the Institut de droit international (1888 1912) and the Hague Conference on Private International Law (1904): Nadelmann, op. cit. pp 299 et seq. In more modern times, the European Convention on Certain International Aspects of Bankruptcy (the Istanbul Convention) was concluded under the auspices of the Council of Europe in 1990, but never came into force. The European Community/Union initiative took 40 years to come to fruition. In 1960 the European Community embarked on a project for a Bankruptcy Convention, which resulted in a draft Convention in 1980, to which there was significant opposition. But the project was renewed in 1989, and this led to the tabling of a draft Convention in 1995, which provided that it would only come into force when signed by all 15 of the then member states. The United Kingdom, however, alone of the states, did not sign the Convention (for political reasons), and it never came into force. In 1999 the project was re launched as a Council Regulation, which resulted in the EC Insolvency Regulation in 2000. The United Nations Commission on International Trade Law (UNCITRAL) adopted a Model Law on cross border insolvency in 1997. The Model Law was adopted following initiatives in the 1980s by the International Bar Association and later by INSOL International (the International Association of Restructuring, Insolvency and Bankruptcy Professionals). In 1993 UNCITRAL adopted a resolution to investigate the feasibility of harmonised rules of cross border insolvencies. In 1994 an expert committee was assembled consisting of members of INSOL and representatives of the UNCITRAL Secretariat, and following a series of reports and drafts, UNCITRAL adopted the Model Law in May 1997. The Model Law provides for a wide range of assistance to foreign courts and office holders. It has been implemented by 19 countries and territories, including the United States and Great Britain (although by some states only on the basis of reciprocity). It was not enacted into law in Great Britain until 2006, by the CBIR. Apart from the EC Insolvency Regulation, none of these instruments deals expressly with the enforcement of judgments in insolvency proceedings. The question whether the Model Law does so by implication will be considered below in section IV. Consequently, there are four main methods under English law for assisting insolvency proceedings in other jurisdictions, two of which are part of regionally or internationally agreed schemes. First, section 426 of the Insolvency Act 1986 provides a statutory power to assist corporate as well as personal insolvency proceedings in countries specified in the Act or designated for that purpose by the Secretary of State. All the countries to which it currently applies are common law countries or countries sharing a common legal tradition with England. They include Australia: the Co operation of Insolvency Courts (Designation of Relevant Countries and Territories) Order 1986 (SI 1986/2123). Second, the EC Insolvency Regulation applies to insolvency proceedings in respect of debtors with their centres of main interests (COMI) within the European Union (excluding Denmark). The EC Insolvency Regulation has no role in the present appeal because none of the debtors has its centre of main interests in the European Union. Third, the CBIR came into force on 4 April 2006, implementing the Model Law. The CBIR supplement the common law, but do not supersede it. Article 7 of the Model Law provides: Nothing in this Law limits the power of a court or British insolvency officeholder to provide additional assistance to a foreign representative under other laws of Great Britain. Article 23 of the Model Law allows avoidance claims to be made by foreign representatives under the Insolvency Act 1986, and the CBIR apply to preferences after they came into force on 4 April 2006. The UNCITRAL Guide to Enactment (to which resort may be had for the purposes of interpretation of the CBIR) also emphasises that the Model Law enables enacting states to make available to foreign insolvency proceedings the type of relief which would be available in the case of a domestic insolvency (UNCITRAL Legislative Guide on Insolvency Law (2005), Annex III, Ch IV, p 311, para 20(b)): The Model Law presents to enacting states the possibility of aligning the relief resulting from recognition of a foreign proceeding with the relief available in a comparable proceeding in the national law. Fourth, at common law the court has power to recognise and grant assistance to foreign insolvency proceedings. The common law principle is that assistance may be given to foreign officeholders in insolvencies with an international element. The underlying principle has been stated in different ways: recognition carries with it the active assistance of the court: In re African Farms Ltd [1906] TS 373, 377; This court will do its utmost to co operate with the United States Bankruptcy Court and avoid any action which might disturb the orderly administration of [the company] in Texas under ch 11: Banque Indosuez SA v Ferromet Resources Inc [1993] BCLC 112, 117. In Credit Suisse Fides Trust v Cuoghi [1998] QB 818, 827, Millett LJ said: In other areas of law, such as cross border insolvency, commercial necessity has encouraged national courts to provide assistance to each other without waiting for such co operation to be sanctioned by international convention It is becoming widely accepted that comity between the courts of different countries requires mutual respect for the territorial integrity of each others jurisdiction, but that this should not inhibit a court in one jurisdiction from rendering whatever assistance it properly can to a court in another in respect of assets located or persons resident within the territory of the former. The common law assistance cases have been concerned with such matters as the vesting of English assets in a foreign officeholder, or the staying of local proceedings, or orders for examination in support of the foreign proceedings, or orders for the remittal of assets to a foreign liquidation, and have involved cases in which the foreign court was a court of competent jurisdiction in the sense that the bankrupt was domiciled in the foreign country or, if a company, was incorporated there. An early case of recognition was Solomons v Ross 1 H B1 131n, where, as I have said, the bankruptcy was in Holland, and the bankrupts were Dutch merchants declared bankrupt in Amsterdam, and the Dutch curator was held entitled to recover an English debt: see also Bergerem v Marsh (1921) B&CR 195 (English member of Belgian firm submitted to Belgian bankruptcy proceedings: movable property in England vested in Belgian trustee). One group of cases involved local proceedings which were stayed or orders which were discharged because of foreign insolvency proceedings. Thus in Banque Indosuez SA v Ferromet Resources Inc [1993] BCLC 112 an English injunction against a Texas corporation in Chapter 11 proceedings was discharged; cf In re African Farms Ltd [1906] TS 373 (execution in Transvaal by creditor in proceedings against English company in liquidation in England stayed by Transvaal court), applied in Turners & Growers Exporters Ltd v The Ship Cornelis Verolme [1997] 2 NZLR 110 (Belgian shipowner in Belgian bankruptcy: ship released from arrest); Modern Terminals (Berth 5) Ltd v States Steamship Co [1979] HKLR 512 (stay in Hong Kong of execution against Nevada corporation in Chapter 11 proceedings in United States federal court in California), followed in CCIC Finance Ltd v Guangdong International Trust & Investment Corpn [2005] 2 HKC 589 (stay of Hong Kong proceedings against Chinese state owned enterprise in Mainland insolvency). Cases of judicial assistance in the traditional sense include In re Impex Services Worldwide Ltd [2004] BPIR 564, where a Manx order for examination and production of documents was made in aid of the provisional liquidation in England of an English company. Cases involving remittal of assets from England to a foreign office holder include In re Bank of Credit and Commerce International SA (No 10) [1997] Ch 213 (Luxembourg liquidation of Luxembourg company); and In re HIH Casualty and General Insurance Ltd [2008] UKHL 21, [2008] 1 WLR 852 (the view of Lord Hoffmann and Lord Walker) (Australian liquidation of Australian insurance company); and In re SwissAir Schweizerische Luftverkehr Aktiengesellschaft [2009] EWHC 2099 (Ch), [2010] BCC 667 (Swiss liquidation of Swiss company). III The Cambridge Gas and HIH decisions The opinion of Lord Hoffmann, speaking for the Privy Council, in Cambridge Gas Transportation Corpn v Official Committee of Unsecured Creditors of Navigator Holdings plc [2006] UKPC 26, [2007] 1 AC 508 (Cambridge Gas) and his speech in the House of Lords in In re HIH Casualty and General Insurance Ltd [2008] UKHL 21, [2008] 1 WLR 852 (HIH) have played such a major role in the decisions of the Court of Appeal and in the arguments of the parties on these appeals that it is appropriate to put them in context at this point. Cambridge Gas The broad facts of Cambridge Gas were these. In 1997 a shipping business was initiated by a Swiss businessman, Mr Giovanni Mahler. The investors borrowed $300m on the New York bond market and the business bought five gas transport vessels. The venture was a failure, and ended with a Chapter 11 proceeding in the US Bankruptcy Court in New York. The question for the Privy Council on appeal from the Isle of Man was whether an order of the New York court was entitled to implementation in the Isle of Man. The corporate structure of the business was that the investors owned, directly or indirectly, a Bahamian company called Vela Energy Holdings Ltd (Vela). Vela owned (through an intermediate Bahamian holding company) Cambridge Gas, a Cayman Islands company. Cambridge Gas owned directly or indirectly about 70% of the shares of Navigator Holdings plc (Navigator), an Isle of Man company. Navigator owned all the shares of an Isle of Man company which in turn owned companies which each owned one ship. In 2003 Navigator petitioned the US Bankruptcy Court for relief under Chapter 11 of the US Bankruptcy Code, which allows insolvent companies, under supervision of the court and under cover of a moratorium, to negotiate a plan of reorganisation with their creditors. The petition was initiated by the investor interests, who proposed a plan to sell the ships nominally by auction but in fact to the previous investors, but the bondholders did not accept this and proposed their own plan under which the assets of Navigator would be vested in the creditors and the equity interests of the previous investors would be extinguished. The judge rejected the investors plan and approved the creditors plan. The mechanism which the plan used to vest the assets in the creditors was to vest the shares in Navigator in their representatives, ie, the creditors committee. That would enable them to control the shipping companies and implement the plan. The plan provided that upon entry of the confirmation order title to all the common stock of Navigator would vest in the creditors committee to enable it to implement the plan. The order of the New York court confirming the plan recorded the intention of the court to send a letter of request to the Manx court asking for assistance in giving effect to the plan and confirmation order and such a letter was sent. The committee of creditors then petitioned the Manx court for an order vesting the shares in their representatives. At this point it is necessary to emphasise two features of the case. The first feature is that Navigator was an Isle of Man company and 70% of its common stock was owned directly or indirectly by Cambridge Gas. Under the normal principles of the conflict of laws the shares would have been situate in the Isle of Man: Dicey, 15th ed, para 22 045. That is why Lord Hoffmann said, at para 6, that the New York court was aware that the order vesting title to the common stock of Navigator in the creditors committee could not automatically have effect under the law of the Isle of Man; and also why he accepted (paras 12 13) that if the judgment were a judgment in rem it could not affect title to shares in the Isle of Man. The second feature which it is necessary to emphasise is that Cambridge Gas was a Cayman Islands company which (as held by the Manx courts) had not submitted to the jurisdiction of the US Bankruptcy Court. Lord Hoffmann said, at para 8, that the position that Cambridge Gas had not submitted to the jurisdiction of the US Bankruptcy Court bore little relation to economic reality since the New York proceedings had been conducted on the basis that the contest was between rival plans put forward by the shareholders and the creditors; Vela, the parent company of Cambridge Gas, participated in the Chapter 11 proceedings; and they had been instituted by Navigator. Consequently the claim by Cambridge Gas that it had not submitted was highly technical, but there was no appeal from the decisions of the Manx courts that it had not submitted. But Lord Hoffmann also accepted that if the order of the US Bankruptcy Court were to be regarded as a judgment in personam it would not be entitled to recognition or enforcement in the Isle of Man because the New York court had no personal jurisdiction over Cambridge [Gas]: para 10. Nevertheless the Privy Council held that the plan could be carried into effect in the Isle of Man. The reasoning was as follows: first, if the judgment had to be classified as in personam or in rem the appeal would have to be allowed, but bankruptcy proceedings did not fall into either category: [13] Judgments in rem and in personam are judicial determinations of the existence of rights: in the one case, rights over property and in the other, rights against a person. When a judgment in rem or in personam is recognised by a foreign court, it is accepted as establishing the right which it purports to have determined, without further inquiry into the grounds upon which it did so. The judgment itself is treated as the source of the right. [14] The purpose of bankruptcy proceedings, on the other hand, is not to determine or establish the existence of rights, but to provide a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established. [15] [B]ankruptcy, whether personal or corporate, is a collective proceeding to enforce rights and not to establish them. Of course, as Brightman LJ pointed out in In re Lines Bros Ltd [1983] Ch 1, 20, it may incidentally be necessary in the course of bankruptcy proceedings to establish rights which are challenged: proofs of debt may be rejected; or there may be a dispute over whether or not a particular item of property belonged to the debtor and is available for distribution. There are procedures by which these questions may be tried summarily within the bankruptcy proceedings or directed to be determined by ordinary action. But these again are incidental procedural matters and not central to the purpose of the proceedings. Second, the principle of universality underlay the common law principles of judicial assistance in international insolvency, and those principles were sufficient to confer jurisdiction on the Manx court to assist, by doing whatever it could have done in the case of a domestic insolvency: paras 21 22. Third, exactly the same result could have been achieved by a scheme under the Isle of Man Companies Act 1931. Fourth, it was no objection to implementation of the plan in the Isle of Man that the shares in Navigator belonged to a person (Cambridge Gas) which was not a party to the bankruptcy proceedings for these reasons, at para 26: [A] share is the measure of the shareholders interest in the company: a bundle of rights against the company and the other shareholders. As against the outside world, that bundle of rights is an item of property a chose in action. But as between the shareholder and the company itself, the shareholders rights may be varied or extinguished by the mechanisms provided by the articles of association or the Companies Act. One of those mechanisms is the scheme of arrangement under section 152 [of the Isle of Man Companies Act 1931]. As a shareholder Cambridge is bound by the transactions into which the company has entered, including a plan under Chapter 11 or a scheme under section 152. At this point it is necessary to point out that the opinion in Cambridge Gas does not articulate any reason for holding that, in the eyes of the Manx court, the US Bankruptcy Court had international jurisdiction in either of two relevant senses. The first sense is the jurisdiction of the US Bankruptcy Court in relation to the Chapter 11 proceedings themselves. The entity which was in Chapter 11 was Navigator. The English courts exercise a wider jurisdiction in bankruptcy and (especially) in winding up than they recognise in foreign courts. At common law, the foreign court which is recognised as having jurisdiction in personal bankruptcy is the court of the bankrupts domicile or the court to which the bankrupt submitted (Dicey, 15th ed, para 31R 059) and the foreign court with corresponding jurisdiction over corporations is the court of the place of incorporation (Dicey, 15th ed, para 30R 100). Under United States law the US Bankruptcy Court has jurisdiction over a debtor, and such a debtor must reside or have a domicile or place of business, or property in the United States. From the standpoint of English law, the US Bankruptcy Court had international jurisdiction because although Navigator was not incorporated in the United States, it had submitted to the jurisdiction by initiating the proceedings. The second sense in which international jurisdiction is relevant is the jurisdiction over the third party, Cambridge Gas, and its shares in Navigator. Cambridge Gas was not incorporated in the United States, and it was held by the Isle of Man courts that it had not submitted to the jurisdiction of the US Bankruptcy Court (and this was, as I have said, accepted with evident reluctance by the Privy Council). The property which was the subject of the order of the US Bankruptcy Court was shares in an Isle of Man company. Consequently the property dealt with by the US Bankruptcy Court was situate, by Manx rules of the conflict of laws, in the Isle of Man, and the shareholder relationship was governed by Manx law. Cambridge Gas was the subject of brief comment a few months later by the Privy Council in Pattni v Ali [2006] UKPC 51, [2007] 2 AC 85. The decision in that case was simply that a Kenyan judgment deciding that A was bound to sell shares in a Manx company to B was entitled to recognition in the Isle of Man. It resulted in an order in personam against a person subject to the jurisdiction of the Kenyan court, and was not a judgment in rem against property in the Isle of Man and outside the jurisdiction of the Kenyan court, because the fact that a judicial determination determines or relates to the existence of property rights between parties does not in itself mean that it is in rem. Lord Mance, speaking for the Board, said, at para 23: In Cambridge Gas the Board touched on the concepts of in personam and in rem proceedings, but held that the bankruptcy order with which it was concerned fell into neither category. Its purpose was simply to establish a mechanism of collective execution against the property of the debtor by creditors whose rights were admitted or established. The decision in HIH does not deal with foreign judgments. HIH concerned four Australian insurance companies which were being wound up in Australia and in respect of which provisional liquidators had been appointed in England. The question was whether the English court had power to direct remission of assets collected in England to Australia, notwithstanding that there were differences between the English and Australian statutory regimes for distribution which meant that some creditors would benefit from remission whilst some creditors would be worse off. The House of Lords unanimously directed that remission should take place, but the reasons differed. The reasoning of the majority (Lord Scott of Foscote and Lord Neuberger of Abbotsbury, with Lord Phillips of Worth Matravers agreeing)) was based exclusively on the statutory power to assist foreign insolvency proceedings under section 426 of the Insolvency Act 1986, but Lord Hoffmann (with whom Lord Walker agreed) also considered that such a power existed at common law. Lord Hoffmann characterised the principle of universality as a principle of English private international law that, where possible, there should be a unitary insolvency proceeding in the courts of the insolvents domicile which receives worldwide recognition and which should apply universally to all the bankrupts assets, at para 6: Despite the absence of statutory provision, some degree of international co operation in corporate insolvency had been achieved by judicial practice. This was based upon what English judges have for many years regarded as a general principle of private international law, namely that bankruptcy (whether personal or corporate) should be unitary and universal. There should be a unitary bankruptcy proceeding in the court of the bankrupt's domicile which receives worldwide recognition and it should apply universally to all the bankrupt's assets. Other parts of Lord Hoffmanns speech have already been quoted above, and it is only necessary for present purposes to recall that he said that (a) the process of collection of assets will include, for example, the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme (at para 19) and (b) that the purpose of the principle of universality was to ensure that the debtors assets were distributed under one scheme of distribution, and that the principle required that English courts should co operate with the courts in the country of the principal liquidation to ensure that all the companys assets are distributed to its creditors under a single system of distribution: para 30. Subsequent treatment of Cambridge Gas The decision in Cambridge Gas was not applied by the Supreme Court of Ireland in In re Flightlease (Ireland) Ltd [2012] IESC 12 (to which I shall revert) and has been subject to academic criticism. Professor Briggs has expressed the view ((2006) 77 BYIL 575, 581) that the decision in [Cambridge Gas] is wrong, for it requires a Manx court to give effect to a confiscation order made by a foreign court of property belonging to a person who was not subject to the personal jurisdiction of the foreign court. That a Manx court could have done so itself is nothing to the point. I shall return to the question whether it was correctly decided. IV The cases before the court and the issues Eurofinance SA is a company incorporated in the British Virgin Islands. It was established by Adrian Roman, the second appellant on the Rubin appeal. Eurofinance SA settled The Consumers Trust (TCT) under a deed of trust made in 2002 under English law, with trustees resident in England, of whom two were accountants and two were solicitors. TCT was established to carry on a sales promotion scheme in the USA and Canada. The class of beneficiaries was made up of persons who had successfully participated in the scheme by claiming validly in certain sales promotions owned and operated by Eurofinance SA. The trustees were to hold the capital and income of TCT for the beneficiaries and subject thereto for Eurofinance SA as beneficiary in default. The promotion, known as the Cashable Voucher Programme, was entered into with participating merchants in the United States and Canada who, when they sold products or services to their customers, offered those customers a cashable voucher comprising a rebate of up to 100% of the purchase price for the product or service. Under the terms of the voucher the rebate was to be paid to customers in three years time provided that certain conditions were followed by the customer involving the completion by the customer of both memory and comprehension tests. The participating merchants paid TCT 15% of the face value of each cashable voucher issued by the merchant during a week. TCT retained 40% of the payments received (ie 6% of the face value of each cashable voucher). About one half of the 60% balance received from merchants was paid to Eurofinance SA (and so effectively to Adrian Roman) and the remainder was paid to others involved in the operation of the programme, such as solicitors, accountants and US lawyers. From about 2002 Adrian Romans sons, Nicholas Roman and Justin Roman, each began to receive about 2%. The trustees maintained bank accounts in the USA and Canada where the payments they had received from merchants were kept. Since the trustees only retained 6% of the face value of the issued vouchers, the success of the scheme necessarily involved the consumers either forgetting to redeem the vouchers or being unsuccessful in navigating the process required to be followed in order to obtain payment. When the scheme folded in 2005 the trustees held nearly US$10m in bank accounts in the United States and Canada. By about 2005 TCTs business ceased after the Attorney General of Missouri brought proceedings under Missouris consumer protection legislation which resulted in a settlement involving a payment by the trustees of US$1,650,000 and US$200,000 in costs. When it became clear that further proceedings were likely to be brought by Attorneys General in other states, that the number of consumer claims would increase, and that TCT would not have sufficient funds to meet all the valid claims of its beneficiaries, in November 2005 Adrian Roman caused Eurofinance to apply for the appointment by the High Court of the respondents on the Rubin appeal, David Rubin and Henry Lan, as receivers of TCT for the purposes of causing TCT then to obtain protection under Chapter 11 of Title 11 of the United States Code (Chapter 11). The English court was told that Chapter 11 reorganisation proceedings would result in an automatic stay of proceedings against TCT, would enable the receivers to reject unprofitable or burdensome executory contracts, and might result in the recovery as preferential payments of sums paid to consumers and to the Missouri Attorney General. In November 2005 the respondents were appointed as receivers by order of Lewison J, and in the following month, the respondents and the trustees then caused TCT to present a voluntary petition to the US Bankruptcy Court for relief under Chapter 11. TCT was placed into Chapter 11 proceedings in New York as virtually all of its 60,000 creditors were located in the United States or Canada as were its assets. As a matter of United States bankruptcy law, TCT could be the subject matter of a petition for relief under Chapter 11 as a debtor. This is because a trust such as TCT is treated under Chapter 11 as a separate legal entity under the classification of a business trust. A joint plan of liquidation for TCT was prepared, and in September 2007 Lewison J ordered that the respondents (as receivers) be at liberty to seek approval of the plan from the US Bankruptcy Court. Under the terms of the plan the respondents were appointed legal representatives of TCT and given the power to commence, prosecute and resolve all causes of action against potential defendants including the appellants. The US Bankruptcy Court approved the plan in October 2007, and appointed the respondents as foreign representatives of the debtor to make application to the Chancery Division in London for recognition of the Chapter 11 proceedings as a foreign main proceeding under the CBIR; and to seek aid, assistance and co operation from the High Court in connection with the Chapter 11 proceedings, and, in particular to seek the High Courts assistance and co operation in the prosecution of litigation which might be commenced in the US Bankruptcy Court including the enforcement of judgments of this court that may be obtained against persons and entities residing or owning property in Great Britain In December 2007 proceedings were commenced in the US Bankruptcy Court by the issue of a complaint against a number of defendants including the appellants. These claims fall within the category of adversary proceedings under the US bankruptcy legislation, and I will use this term to refer to them. The adversary proceedings comprised a number of claims including causes of action arising under the US Bankruptcy Code, which related to funds received by TCT from merchants which were paid out to the defendants (including the appellants), or to amounts transferred to the defendants within one year prior to the commencement of the TCT bankruptcy case including the appellants. The defendants were the appellants and other parties involved with the programme. The appellants were served personally with the complaint commencing the adversary proceedings but did not defend, or participate, in the adversary proceedings, although it appears from a judgment of the US Bankruptcy Court that Eurofinance SA had filed a notice of appearance in the main Chapter 11 proceedings (Order of 22 July 2008, paras 42 43). On 22 July 2008 default and summary judgment was entered against the appellants in the adversary proceedings by the US Bankruptcy Court. The US Bankruptcy Court entered a judgment against the appellants on the ten counts of the complaint. In November 2008 the respondents applied as foreign representatives to the Chancery Division for, inter alia, (a) an order that the Chapter 11 proceedings be recognised as a foreign main proceeding (b) an order that the respondents be recognised as foreign representatives within the meaning of article 2(j) of the Model Law in relation to those proceedings; and (c) an order that the US Bankruptcy Courts judgment be enforced as a judgment of the English court in accordance with CPR Pts 70 and 73. Nicholas Strauss QC, sitting as a deputy judge of the Chancery Division, recognised the Chapter 11 proceedings (including the adversary proceedings) as foreign main proceedings, and the respondents as foreign representatives, but refused to enforce the judgments in the adversary proceedings because (a) at common law the English court will not enforce a judgment in personam contrary to the normal jurisdictional rules for foreign judgments; and (b) there was nothing in CBIR, articles 21(e) (realisation of assets) and 25 (judicial co operation), which justified the enforcement of judgments in insolvency proceedings. At first instance the respondents sought to enforce the entirety of the US Bankruptcy Courts judgment, but before the Court of Appeal they sought an order for the enforcement of those parts of the judgment which were based on state or federal avoidance laws, including fraudulent conveyance under State Fraudulent Conveyance Laws, and under federal law, namely fraudulent transfers under section 548(a) of 11 USC; liability of transferees of avoided transfers under section 550; fraudulent transfers under section 548(b) and liability of transferees of avoided transfers under section 550. The Court of Appeal (Ward and Wilson LJJ and Henderson J) allowed an appeal, and held that the judgment was enforceable: [2010] EWCA Civ 895, [2011] Ch 133. New Cap In the New Cap appeal the appellants are members of Lloyds Syndicate Number 991 (the Syndicate) for the 1997 and 1998 years of account. The respondents are a reinsurance company (New Cap) and its liquidator, a partner in Ernst & Young in Sydney. New Cap is an Australian company, which was licensed as an insurance company in Australia under the Australian Corporations Act 2001 (Cth) (the Australian Act). New Cap did not conduct insurance business in any country other than Australia, and the majority of New Cap's business was generated through reinsurance brokers conducting business in Australia and the balance was generated from overseas insurance brokers. New Cap reinsured the Syndicate in relation to losses occurring on risks attaching during the 1997 and 1998 years of account under reinsurance contracts which were subject to English law, and contained London arbitration clauses and also (oddly) English jurisdiction clauses. The reinsurance contracts were placed with New Cap by the Syndicates Australian broker, which was the sub broker for the Syndicates London broker. Each reinsurance contract contained a commutation clause. The Syndicate and New Cap entered into a commutation agreement to commute the reinsurances with effect from 11 December 1998. Under the commutation agreement, New Cap agreed to make a lump sum payment to the Syndicate by 31 December 1998 in consideration for its release from liability under the reinsurance contracts. The payments were calculated on the basis of a 7.5% discount and a deduction from premium. New Cap made payment pursuant to the commutation agreements in two instalments of US$2,000,000 and US$3,980,600 in January 1999. The commutation payments were made from a bank account held by New Cap at the Sydney branch of the Commonwealth Bank of Australia to a bank account in London. The second respondent was appointed the administrator of New Cap by a resolution of its directors in April 1999. In September 1999 the creditors of New Cap resolved that New Cap be wound up and the second respondent (the liquidator) was appointed its liquidator. Under the Australian legislation, the winding up is deemed to have commenced on the day on which the administration began. In April 2002 the liquidator caused proceedings to be commenced against the Syndicate in the Supreme Court of New South Wales alleging that because New Cap was insolvent when the commutation payments were made in January 1999, and because those payments were made within the period of six months ending on the date when the administrator was appointed, they constituted unfair preferences and were thus voidable transactions under Part 5.7B of the Australian Act. The Syndicate (which does not accept that the payments were preferences) refused to accept service of the Australian proceedings. The liquidator obtained leave from the Australian court to serve the Australian proceedings on the Syndicates English solicitors in London. The Syndicate did not enter an appearance to the proceedings, but corresponded with the liquidators solicitors, including commenting on an Independent Expert's Report to be used by the respondents as evidence of New Caps insolvency in all of the avoidance proceedings including the proceedings against the Syndicate. The Australian court (White J in a judgment in September 2008, and Barrett J in a judgment in July 2009) recognised that there had been no submission by the Syndicate to the jurisdiction of the Australian court in that it did not enter an appearance, but White J held that the Australian court had jurisdiction over the Syndicate because a cause of action available under the Australian Act for the recovery of a preferential payment to an overseas party made when the company is insolvent was a cause of action which arose in New South Wales for the purposes of the New South Wales provisions for service out of the jurisdiction. Barrett J gave a reasoned judgment in July 2009 holding the Syndicate liable. After the respondents had been given leave to re open their case so that the orders made by the Australian court would more accurately reflect the differences between those appellants who were members of the Syndicate for the 1997 year of account and those appellants who were members for the 1998 year of account, the Australian court entered final judgment against the Syndicate in its absence on 11 September 2009. The Australian judgment declared that the commutation payments were voidable transactions within the meaning of part 5.7B of the Australian Act and ordered the Syndicate to repay the amount of the commutation payments to the liquidator together with interest. On the liquidators application the Australian court issued, in October 2009, a letter of request to the High Court in England and Wales requesting that the court act in aid of and assist the Australian court and exercise jurisdiction under section 426 of the Insolvency Act 1986 by: (1) ordering the Syndicate to pay the sums specified in the Australian judgment; alternatively (2) allowing the liquidator to commence fresh proceedings under the Australian Act in the English Court; (3) granting such further and other relief as the High Court may consider just; and (4) making such further or other orders as may, in the opinion of the High Court, be necessary or appropriate to give effect to the foregoing orders. On 30 July 2010, the Court of Appeal handed down judgment in Rubin. As a result, the respondents' alternative application for permission to commence fresh proceedings against the Syndicate under the Australian Act in England pursuant to section 426 of the Insolvency Act 1986 was adjourned generally, and the respondents were granted permission to seek relief at common law as an alternative to relief under section 426. In New Cap Lewison J and the Court of Appeal were bound by the decision of the Court of Appeal in Rubin. Lewison J held: (a) the judgment was not enforceable under the Foreign Judgments (Reciprocal Enforcement) Act 1933 because, although it applied to Australian judgments, it did not apply to orders made in insolvency proceedings; but (b) the judgment was enforceable under the assistance provision of section 426 of the Insolvency Act 1986 and also at common law: [2011] EWHC 677 (Ch). The Court of Appeal (Mummery, Lloyd and Macfarlane LJJ) affirmed Lewison Js judgment on these grounds: (a) the 1933 Act applied, and registration would not be set aside for lack of jurisdiction in the foreign court, because of the Rubin decision; (b) section 426 could also be used and was not excluded by section 6 of the 1933 Act; (c) but section 6 would preclude an action at common law; (d) it was not necessary to decide whether the courts power of assistance at common law was exercisable where the statutory power was available: [2011] EWCA Civ 971, [2012] 2 WLR 1095. Picard v Vizcaya Partners Ltd This court gave permission for intervention by a written submission on behalf of Mr Irving Picard (the trustee), the trustee for the liquidation in the United States under the Securities Investor Protection Act of 1970 (SIPA) of Bernard L Madoff Investment Securities LLC (Madoff), which was Bernard Madoffs broking company. The trustee is seeking to enforce at common law in Gibraltar judgments of the US Bankruptcy Court against Vizcaya Partners Ltd (Vizcaya), a BVI company, for $180m, and against Asphalia Fund Ltd (Asphalia), a Cayman Islands company, for $67m, representing alleged preferential payments. He is also seeking to enforce a US Bankruptcy Court default judgment in excess of $1 billion in the Cayman Islands in Picard v Harley International (Cayman) Ltd. The Gibraltar and Cayman Islands proceedings have been adjourned to await the outcome of the present appeals. In Picard v Vizcaya Partners Ltd proceedings have been brought in Gibraltar to enforce the default judgments against Vizcaya and Asphalia because $73m is held there on behalf of Vizcaya which the trustee maintains is available to satisfy the judgments. Vizcaya and Asphalia have also, with the permission of the court, intervened by written submission. There is no agreed statement of facts relating to this aspect of the case, and nothing which is said here about the facts should be taken as representing or reflecting any finding. According to Vizcaya and Asphalia the position is as follows. Between 2002 and 2007, a bank in Europe, acting as a custodian trustee for Vizcaya, sent $327m to Madoff for investment in securities. Unknown to the bank, or to Vizcaya, or its shareholder Asphalia, Madoff had been engaged in a Ponzi scheme for some 30 years, and their money was never invested in securities. In 2008, at the time of the credit crunch and the banking crisis, the custodian trustee withdrew $180m (leaving $147m with Madoff) and $67m of the $180m was paid to Asphalia. In late 2008, the Madoff fraud came to light, and the trustee was appointed. The trustee targeted investors who had withdrawn investments from Madoff in the two years before its collapse in December 2008 as a source for recovery of customer property for the benefit of other investors who had not withdrawn their investments. The trustee commenced adversary proceedings in the US Bankruptcy Court alleging preference and fraudulent conveyance against Vizcaya and Asphalia under SIPA and under the Bankruptcy Code, the effect of which, they say, is that (a) as the trustee argues, a person who, on the basis that he has received customer money has been required to repay a preference, does not necessarily become a customer and thereby entitled to share with other customers in the bankruptcy; and (b) the trustee may avoid a payment made by the bankrupt to a creditor 90 days before the commencement of the bankruptcy, irrespective of the intention with which the payment is made or received. The trustee obtained judgments in default, and Vizcaya and Asphalia say that they took no part in the New York proceedings because they had no connection with New York, and in particular (a) Asphalia was not a customer of Madoff but a shareholder of Vizcaya; (b) arguably Vizcaya was not a customer since it had appointed the bank to act as custodian trustee and it was the bank which entered into contracts with Madoff. The issues The principal issue on these appeals is whether the rules at common law or under the 1933 Act regulating those foreign courts which are to be regarded as being competent for the purposes of enforcement of judgments apply to judgments in avoidance proceedings in insolvency, and, if not, what rules do apply (section V below). The other issues are whether, in the Rubin appeal, enforcement may be effected through the assistance provisions of the Cross Border Insolvency Regulations 2006 (section VI) or, in the New Cap appeal, section 426 of the Insolvency Act 1986 (section VII); whether the judgments are enforceable as a result of the submission by the judgment debtors to the jurisdiction of the foreign courts (section VIII); and, in the New Cap appeal, if the judgment is enforceable, whether enforcement is at common law or under the 1933 Act (section IX). V The first issue: recognition and enforcement of foreign judgments in insolvency proceedings Reasoning of the Court of Appeal in Rubin and the issue on the appeal The Court of Appeal in the Rubin appeal decided that a foreign insolvency judgment could be enforced in England and Wales at common law against a defendant not subject to the jurisdiction of the foreign court under the traditional rule as formulated in the Dicey Rule. As I have already said, on the Rubin appeal in the Court of Appeal the receivers sought only to enforce those parts of the judgment which in effect related to the avoidance causes of action. The Court of Appeal held that the judgment (as narrowed) was enforceable at common law. The reasoning was as follows: (a) the judgment was final and conclusive, and for definite sums of money, and on the face of the orders was a judgment in personam; (b) it was common ground that the judgment debtors were not resident (this was a slip for present since the action was at common law and not under the 1933 Act) when the proceedings were instituted, and did not submit to the jurisdiction, and so at first blush had an impregnable defence; (c) Cambridge Gas decided that the bankruptcy order with which it was concerned was neither in personam nor in rem, and its purpose was simply to establish a mechanism of collective execution against the property of the debtor by creditors whose rights were admitted or established: Pattni v Ali [2006] UKPC 51, [2007] 2 AC 85, para 23; (d) bankruptcy was a collective proceeding to enforce rights and not to establish them: Cambridge Gas [2006] UKPC 26, [2007] 1 AC 508, para 15; (e) the issue was whether avoidance proceedings which could only be brought by the representative of the bankrupt were to be characterised as part of the bankruptcy proceedings, ie part of the collective proceeding to enforce rights and not to establish them; (f) the adversary proceedings were part and parcel of the Chapter 11 proceedings; (g) the ordinary rules for enforcing foreign judgments in personam did not apply to bankruptcy proceedings; (h) avoidance mechanisms were integral to and central to the collective nature of bankruptcy and were not merely incidental procedural matters; (i) the process of collection of assets will include the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme: HIH [2008] UKHL 21, [2008] 1 WLR 852, para 19; (j) the judgment of the US Bankruptcy Court was a judgment in, and for the purposes of, the collective enforcement regime of the insolvency proceedings, and was governed by the sui generis private international law rules relating to insolvency; (k) that was a desirable development of the common law founded on the principles of modified universalism, and did not require the court to enforce anything that it could not do, mutatis mutandis, in a domestic context; (l) there was a principle of private international law that bankruptcy should be unitary and universal, and there should be a unitary insolvency proceeding in the court of the bankrupts domicile which receives worldwide recognition and should apply universally to all the bankrupts assets; (m) there was a further principle that recognition carried with it the active assistance of the court which included assistance by doing whatever the English court could do in the case of a domestic insolvency; (n) there was no unfairness to the appellants in upholding the judgment because they were fully aware of the proceedings, and after taking advice chose not to participate: [2011] Ch 133, paras 38, 41, 43, 45, 48, 50, 61 62, 64. It was unnecessary to decide whether the judgment was enforceable under the CBIR: para 63. In short, Ward LJ accepted that the judgment was an in personam judgment, but he decided that the Dicey Rule did not apply to foreign judgments in avoidance proceedings because they were central to the collective enforcement regime in insolvency and were governed by special rules. The essential questions on this aspect of the appeals are these. Is the judgment in each case to be regarded as a judgment in personam within the scope of the traditional rules embodied in the Dicey Rule, or is it to be characterised as an insolvency order which is part of the bankruptcy proceedings, ie part of the collective proceeding to enforce rights and not to establish them? Is that a distinction which has a role to play? Is there a distinction between claims which are central to the purpose of the proceedings and claims which are incidental procedural matters? As a matter of policy, should the court, in the interests of universality of insolvency proceedings, devise a rule for the recognition and enforcement of judgments in foreign insolvency proceedings which is more expansive, and more favourable to liquidators, trustees in bankruptcy, receivers and other officeholders, than the traditional common law rule embodied in the Dicey Rule, or should it be left to legislation preceded by any necessary consultation? Ward LJs conclusion derives from a careful synthesis of dicta in Lord Hoffmanns brilliantly expressed opinion in Cambridge Gas and his equally brilliant speech in HIH, each of which has on these appeals been subjected to an exceptionally detailed analysis. For reasons which will be developed, I do not agree with the conclusions which Ward LJ draws. But I begin with two matters on which I accept the respondents analysis. The first is that avoidance proceedings have characteristics which distinguish them from ordinary claims such as claims in contract or tort. The second is that, if it were necessary to draw a distinction between insolvency orders and other orders, it would not be difficult to formulate criteria for the distinction, along similar lines to that drawn by the European Court in relation to the Brussels Convention, the Brussels I Regulation (Council Regulation (EC) 44/2001) and the EC Insolvency Regulation. Nature of avoidance proceedings In order to achieve a proper and fair distribution of assets between creditors, it will often be necessary to adjust prior transactions and to recover previous dispositions of property so as to constitute the estate which is available for distribution. The principle of equality among creditors which underlies the pari passu principle may require the adjustment of concluded transactions which but for the winding up of the company would have remained binding on the company, and the return to the company of payments made or property transferred under the transactions or the reversal of their effect. Systems of insolvency law use avoidance proceedings as mechanisms for adjusting prior transactions by the debtor and for recovering property disposed of by the debtor prior to the insolvency. Thus under the Insolvency Act 1986 an administrator, or liquidator, or trustee in bankruptcy may, where there has been a transaction at an undervalue, or amounting to an unlawful preference, apply for an order restoring the position to what it would have been had the transaction not taken place: sections 238 et seq and 339 et seq. Other systems of law have similar mechanisms, but they will differ in matters such as the period during which such transactions are at risk of reversal and the role of good faith of the parties to the transaction. The underlying policy is to protect the general body of creditors against a diminution of the assets by a transaction which confers an unfair or improper advantage on the other party, and it is therefore an essential aspect of the process of liquidation that antecedent transactions whose consequences have been detrimental to the collective interest of the creditors should be amenable to adjustment or avoidance: Fletcher, Law of Insolvency, 4th ed (2009), para 26 002; Goode, Principles of Corporate Insolvency Law, 4th ed (2011), para 13 03. Thus the UNCITRAL Legislative Guide on Insolvency Law (2005) says: 150. Many insolvency laws include provisions that apply retroactively from a particular date (such as the date of application for, or commencement of, insolvency proceedings) for a specified period of time (often referred to as the suspect period) and are designed to overturn those past transactions to which the insolvent debtor was a party or which involved the debtor's assets where they have certain effects. 151. It is a generally accepted principle of insolvency law that collective action is more efficient in maximizing the assets available to creditors than a system that leaves creditors free to pursue their individual remedies and that it requires all like creditors to receive the same treatment. Provisions dealing with avoidance powers are designed to support these collective goals, ensuring that creditors receive a fair allocation of an insolvent debtors assets consistent with established priorities and preserving the integrity of the insolvency estate. In In re Condor Insurance Ltd, 601 F 3d 319, 326 (5th Cir 2010), the Court of Appeals for the Fifth Circuit said that: Avoidance laws have the purpose and effect of re ordering the distribution of a debtors assets in favor of the collective priorities established by the distribution statute [and] must be treated as an integral part of the entire bankruptcy system. In different phases of the Australian proceedings in New Cap Barrett J made similar points. He said that in an action for unfair preference under the Australian legislation the liquidator might obtain an order for the payment of money, but the action did not contemplate recovery in the sense applicable to damages and debts; and the proceedings sought to remedy or counter the effects of that depletion caused by the payment by New Cap: New Cap Reinsurance Corpn v Renaissance Reinsurance Ltd [2002] NSWSC 856, paras 23, 27. The order does not vindicate property rights which the company itself would have had prior to liquidation, but statutory rights which the liquidator has under the statutory scheme in consequence of winding up. The purpose of the order for the payment of money to a company in liquidation is not to compensate the company, but to adjust the rights of creditors among themselves in such a way as to eliminate the effects of favourable treatment afforded to one or more creditors, to the exclusion of others, in the period immediately before an insolvent administration commences: New Cap Reinsurance Corpn v Grant [2009] NSWSC 662, 257 ALR 740, paras 20 21. Difference between insolvency claims and others I also accept that, if there were to be a separate rule for the recognition and enforcement of insolvency orders, it would not normally be difficult to distinguish between judgments in insolvency proceedings which are peculiarly the subject of insolvency law such as avoidance proceedings, and other judgments of the kind which are covered by the Dicey Rule. In the context of the Brussels Convention, the Brussels I Regulation and the EC Insolvency Regulation, the European Court has developed a distinction between claims which derive directly from the bankruptcy or winding up, and which are closely connected with them, on the one hand, and those which do not, on the other hand, and the distinction has been applied by the English court. In my judgment, the distinction is a workable one which could be adapted to other contexts should it be useful or necessary to do so. Claims which were regarded as bankruptcy claims have been held to include a claim under French law by a liquidator against a director to make good a deficiency in the assets of a company (Gourdain v Nadler (Case 133/78) [1979] ECR 733); or a claim under German law to set aside a transaction detrimental to creditors (Seagon v Deko Marty NV (Case C 339/07) [2009] 1 WLR 2168). Claims outside the category of bankruptcy claims have been held to include an action brought by a seller based on a reservation of title against a purchaser who was insolvent (German Graphics Graphische Maschinen GmbH v van der Schee (Case C 292/08) [2009] ECR I 8421) or a claim by a liquidator as to beneficial ownership of an asset (Byers v Yacht Bull Corp [2010] EWHC 133 (Ch), [2010] BCC 368). In Oakley v Ultra Vehicle Design Ltd [2005] EWHC 872 (Ch), [2006] BCC 57, Lloyd LJ (sitting as an additional judge of the Chancery Division) said, at para 42): it has been held that a claim by a liquidator to recover pre liquidation debts, although made in the course of the winding up and so, in a sense, relating to it, does not derive directly from it and is therefore not excluded from the Brussels Convention (and therefore now not from the [Brussels I] Regulation) by article 1.2(b): see In re Hayward decd [1997] Ch 45, and UBS AG v Omni Holding AG [2000] 1 WLR 916. By contrast, proceedings by a liquidator against a director or a third party to set aside a transaction as having been effected at an undervalue or on the basis of wrongful or fraudulent trading would be claims deriving directly from the winding up and therefore excluded from the Brussels Convention and now from the [Brussels I] Regulation. In personam or sui generis? I have already quoted the passage in Cambridge Gas in which Lord Hoffmann distinguished between judgments in rem and in personam, on the one hand, and judgments in bankruptcy proceedings, on the other, but it is necessary to repeat it at this point. He said: 13. Judgments in rem and in personam are judicial determinations of the existence of rights: in the one case, rights over property and in the other, rights against a person. When a judgment in rem or in personam is recognised by a foreign court, it is accepted as establishing the right which it purports to have determined, without further inquiry into the grounds upon which it did so. The judgment itself is treated as the source of the right. 14. The purpose of bankruptcy proceedings, on the other hand, is not to determine or establish the existence of rights, but to provide a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established. There is no doubt that the order of the US Bankruptcy Court in Cambridge Gas did not fall into the category of an in personam order. Even though the question whether a foreign judgment is in personam or in rem is sometimes a difficult one (Dicey, 15th ed, para 14 109), that was not a personal order against its shareholders, including Cambridge Gas. The order vested the shares in Navigator in the creditors committee. It did not declare existing property rights. Indeed the whole purpose of what was the functional equivalent of a scheme of arrangement was to alter property rights. But it is not easy to see why it was not an in rem order in relation to property in the Isle of Man in the sense of deciding the status of a thing and purporting to bind the world: see Jowitts Dictionary of English Law, 3rd ed (2010) (ed Greenberg), p 1249. The judgments in the Rubin and New Cap appeals were based on avoidance legislation which, with some differences of substance, performs the same function as the equivalent provisions in the Insolvency Act 1986 and its predecessors. But Ward LJ in Rubin accepted that the judgment was in personam and the Rubin respondents have not sought to argue that it was not an in personam judgment. What they say is that, even if it is in personam, it is within a sui generis category of insolvency orders or judgments subject to special rules. There can be no doubt that the avoidance orders in the present appeals are in personam. In In re Paramount Airways Ltd [1993] Ch. 223, 238, Nicholls LJ said that the remedies under section 238 of the Insolvency Act 1986, (transactions at an undervalue) were primarily of an in personam character, and that accords with the nature of the orders in these appeals. The form of judgment of the US Bankruptcy Court in the Rubin case was that plaintiffs have judgment against the defendants in the sums awarded, and the orders of the New South Wales Supreme Court in the New Cap case included orders that the defendants pay to the first plaintiff the sums due under section 588FF(1) of the Australian Corporations Act. The question of principle and policy Since the judgments are in personam the principles in the Dicey Rule are applicable unless the court holds that there is, or should be, a separate rule for judgments in personam in insolvency proceedings, at any rate where those judgments are not designed to establish the existence of rights, but are central to the purpose of the insolvency proceedings or part of the mechanism of collective execution. Prior to Cambridge Gas and the present cases, there had been no suggestion that there might be a different rule for judgments in personam in insolvency proceedings and other proceedings. There are no cases in England which are helpful. The normal rules for enforcement of foreign judgments were applied to a claim by a liquidator for moneys due to the company (Gavin Gibson & Co Ltd v Gibson [1913] 3 KB 379) and to a claim on a debt ascertained in bankruptcy under German law (Berliner Industriebank Aktiengesellschaft v Jost [1971] 2 QB 463). A judgment of the US Bankruptcy Court in Chapter 11 proceedings for repayment of a preferential transfer was enforced in Ontario on the basis of the judgment debtors submission to the New York court, without any suggestion that the normal rules did not apply: Gourmet Resources International Inc v Paramount Capital Corpn (1991) 3 OR (3d) 286, [1993] ILPr 583, app dismissed (1993) 14 OR (3d) 319 (Ont CA). The principles in the Dicey Rule have never received the express approval of the House of Lords or the UK Supreme Court and the leading decisions remain Adams v Cape Industries plc [1990] Ch 433 and the older Court of Appeal authorities which it re states or re interprets. But there can be no doubt that the references by the House of Lords in the context of foreign judgments to the foreign court of competent jurisdiction are implicit references to the common law rule: eg In re Henderson, Nouvion v Freeman (1890) 15 App Cas 1, 8; Owens Bank Ltd v Bracco [1992] 2 AC 443, 484. The Rubin respondents question whether the rules remain sound in the modern world. It is true that the common law rule was rejected in Canada, at first in the context of the inter provincial recognition of judgments. The Supreme Court of Canada held that the English rules developed in the 19th century for the recognition and enforcement of judgments of foreign countries could not be transposed to the enforcement of judgments from sister provinces in a single country with a common market and a single citizenship. Instead a judgment given against a person outside the jurisdiction should be recognised and enforced if the subject matter of the action had a real and substantial connection with the province in which the judgment was given: Morguard Investments Ltd v De Savoye [1990] 3 SCR 1077, para 45. This approach was applied, by a majority, to foreign country judgments in Beals v Saldanha [2003] 3 SCR 416 (applied to the recognition of an English order convening meetings in a scheme of arrangement in Re Cavell Insurance Co (2006) 269 DLR (4th) 679 (Ont CA)). There is no support in England for such an approach except in the field of family law. In Indyka v Indyka [1969] 1 AC 33 it was held that a foreign decree of divorce would be recognised at common law if there was a real and substantial connection between the petitioner (or the respondent) and the country where the divorce was obtained. This rule (now superseded by the Family Law Act 1986) was in part devised to avoid limping marriages, ie cases where the parties were regarded as divorced in one country but regarded as married in another country. It has never been adopted outside the family law sphere in the context of foreign judgments. The Supreme Court of Ireland in In re Flightlease (Ireland) Ltd [2012] IESC 12 declined to follow Cambridge Gas (and also the decision of the Court of Appeal in Rubin) and also held that the Dicey Rule should not be rejected in favour of a real and substantial connection test. In Flightlease the airline Swissair was in a form of debt restructuring proceeding in Switzerland, where it was incorporated. Flightlease is an Irish company in the same group as Swissair. An application was before the Swiss courts under the Swiss federal statute on debt enforcement and bankruptcy seeking the return of money paid by Swissair to Flightlease. The proceedings had reached the stage of judgment, but the liquidators of Flightlease were concerned to know whether a Swiss judgment would be enforceable in Ireland so that they could decide whether to appear in the Swiss proceedings. The Irish Supreme Court held that the judgment would not be enforceable if Flightlease did not appear in the Swiss proceedings for these reasons: (1) the effect of the Swiss order would be to establish a liability on Flightlease to repay moneys and would therefore result in a judgment in personam; (2) it would be preferable for any change in the rules relating to the enforcement of foreign judgments to take place in the context of international consensus by way of treaty or convention given effect by legislation. In particular, the Irish Supreme Court said that it would not adopt the approach in Cambridge Gas because it had resulted from legislative changes in the United Kingdom (this appears to have been based on a misapprehension), and should not be adopted in Ireland in the absence of consensus among common law jurisdictions. But there is no suggestion on this appeal that the principles embodied in the Dicey Rule should be abandoned. Instead the Rubin respondents suggest that the principles should not apply to foreign insolvency orders. The respondents accept that the Dicey Rule applies to claims which may be of considerable significance by an officeholder in a foreign insolvency, such as a claim for breach of contract, or a tort claim, or a claim to recover debts. It is clear that such claims may affect the size of the insolvent estate just as much, and often more, than avoidance claims. Like claims to recover money due to the insolvent estate such as restitutionary claims not involving avoidance, avoidance claims may establish a liability to pay or repay money to the bankrupt estate (as in the present cases). There is no difference of principle. The question, therefore, is one of policy. Should there be a more liberal rule for avoidance judgments in the interests of the universality of bankruptcy and similar procedures? In my judgment the answer is in the negative for the following reasons. First, although I accept that it is possible to distinguish between avoidance claims and normal claims, for example in contract or tort, it is difficult to see in the present context a difference of principle between a foreign judgment against a debtor on a substantial debt due to a company in liquidation and a foreign judgment against a creditor for repayment of a preferential payment. The respondents suggest that a person who sells goods to a foreign company accepts the risk of the insolvency legislation of the place of incorporation. Quite apart from the fact that the suggestion is wholly unrealistic, why should the seller/creditor be in a worse position than a buyer/debtor? The second reason is that if there is to be a different rule for foreign judgments in such proceedings as avoidance proceedings, the court will have to ascertain (or, more accurately, develop) two jurisdictional rules. There are two aspects of jurisdiction which would have to be satisfied if a foreign insolvency judgment or order is to be outside the scope of the Dicey Rule: the first is the requisite nexus between the insolvency and the foreign court, and the second is the requisite nexus between the judgment debtor and the foreign court. In Cambridge Gas Navigator was an Isle of Man company, and the jurisdiction of the United States Bankruptcy Court depends on whether the debtor resides or has a domicile or place of business, or property, in the United States. The shares in Navigator owned by Cambridge Gas (a Cayman Islands company) were, on ordinary principles of the conflict of laws, situated in the Isle of Man, and the shareholder relationship between Navigator and Cambridge Gas was governed by Manx law. The Privy Council, as noted above, did not articulate any rule for the jurisdiction of the US Bankruptcy Court over Navigator (although it had plainly submitted to its jurisdiction) or over Cambridge Gas (which, the Manx courts had held and the Privy Council accepted, had not submitted) or over Cambridge Gas Manx assets. Nor did the Court of Appeal in Rubin articulate the reasons why the English court recognised the jurisdiction of the US Bankruptcy Court over TCT, or over the appellants. The receivers appear to have proceeded originally on the basis that the United States Bankruptcy Court had jurisdiction under United States bankruptcy law because of TCTs residence and principal place of business in New York (petition, 5 December 2005), but the US Bankruptcy Court, in deciding to appoint the receivers as foreign representatives also noted that TCTs business operations were conducted primarily in the United States, the majority of its creditors, substantially all of its assets, and its centre of main interests, were all in the United States. The basis of jurisdiction of the US Bankruptcy Court under United States law over the individual defendants in Rubin was that they were subject both to the general jurisdiction of the court (ie connection of the defendant with the jurisdiction) and also to the specific jurisdiction of the court (ie connection of the cause of action with the jurisdiction) because they specifically sought out the United States as a place to do business and specifically sought out United States merchants and consumers with whom to do business. Accordingly, the exercise of jurisdiction satisfied the due process requirements of the Fifth Amendment. The basis of jurisdiction in New Cap over New Cap itself was of course that it was incorporated in Australia. The basis of jurisdiction over the Syndicate under New South Wales law was that the cause of action against the Syndicate arose in New South Wales. The respondents do not put forward any principled suggestion for rules which will deal with the two aspects of jurisdiction. They accept, as regards the jurisdictional link between the foreign country and the insolvent estate, that English law has traditionally recognised insolvency proceedings taking place in an individual bankrupts place of domicile, or, in the case of corporations, the place of incorporation, but (because the connection which the trustees of the TCT, or the TCT itself, had with the United States was that the trusts main business was there) they rely on what Lord Hoffmann said in HIH [2008] UKHL 21, [2008] 1 WLR 852, para 31: I have spoken in a rather old fashioned way of the companys domicile because that is the term used in the old cases, but I do not claim it is necessarily the best one. Usually it means the place where the company is incorporated but that may be some offshore island with which the company's business has no real connection. The Council Regulation on insolvency proceedings (Council Regulation (EC) No 1346/2000 of 29 May 2000) uses the concept of the centre of a debtor's main interests as a test, with a presumption that it is the place where the registered office is situated: see article 3.1. That may be more appropriate. They propose that each of these issues be resolved, not by a black letter rule like the common law rule for enforcement of judgments, but instead by an appeal to what was said in oral argument to be the discretion of the English court to assist the foreign court. On the second aspect, the jurisdictional link between the foreign country and the judgment debtor, they accept that it is necessary for there to be an appropriate connection between the foreign insolvency proceeding and the insolvency order in respect of which recognition and enforcement is sought. They propose that, in the exercise of the discretion, the court should adopt an approach similar to that taken by the English court in deciding whether to apply provisions of the Insolvency Act 1986, such as section 238 (transactions at an undervalue), to persons abroad, relying on In re Paramount Airways Ltd [1993] Ch 223. That case decided that there is no implied territorial limitation to the exercise of jurisdiction over any person. The Court of Appeal rejected the argument that the section applied only to British subjects and to persons present in England at the time of the impugned transaction. In particular the physical absence or presence of the party at the time of the transaction bore no necessary relationship to the appropriateness of the remedy. Nor was the test of sufficient connection with England satisfactory because it would hardly be distinguishable from the ambit of the sections being unlimited territorially: p 237. Instead, the approach was to be found in the discretion of the court, first to grant permission to serve the proceedings out of the jurisdiction, and secondly, to make an order under the section. On both aspects the court would take into account whether the defendant was sufficiently connected with England for it to be just and proper to make the order against him despite the foreign element. The Rubin respondents say that In re Paramount Airways Ltd is instructive because, if the facts of the present case were reversed such that TCT had carried on the scheme in England and had been placed into insolvency proceedings here and the appellants were resident in New York, then it can be expected that the English court would have considered that England was the correct forum in which to bring section 238 proceedings to recover payments made to the appellants and would have given permission to serve out of the jurisdiction accordingly. They go on to say that it is implicit in this that the English court would have expected the New York court then to recognise and enforce any judgment of the English court even if the appellants had remained in New York and had not contested the proceedings; and that by the same token that the court seeks and expects the recognition and enforcement abroad of its own insolvency orders, the court should recognise and enforce in England insolvency orders made in insolvency proceedings in other jurisdictions. There is no basis for this line of reasoning. There is no necessary connection between the exercise of jurisdiction by the English court and its recognition of the jurisdiction of foreign courts, or its expectation of the recognition of its judgments abroad. It has frequently been said that the jurisdiction exercised under what used to be RSC Ord 11, r. 1 (and is now CPR Practice Direction 6B, para 3.1) is an exorbitant one, in that it was a wider jurisdiction than was recognised in English law as being possessed by courts of foreign countries in the absence of a treaty providing for recognition: see The Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA [1979] AC 210, 254 per Lord Diplock; Amin Rasheed Shipping Corpn v Kuwait Insurance Co [1984] AC 50, 65 per Lord Diplock; Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460, 481 per Lord Goff of Chieveley. Outside the sphere of matrimonial proceedings (see Travers v Holley [1953] P 246, disapproved on this aspect in Indyka v Indyka [1969] 1 AC 33) reciprocity has not played a part in the recognition and enforcement of foreign judgments at common law. The English court does not concede jurisdiction in personam to a foreign court merely because the English court would, in corresponding circumstances, have power to order service out of the jurisdiction: In re Trepca Mines Ltd [1960] 1 WLR 1273. In my judgment, the dicta in Cambridge Gas and HIH do not justify the result which the Court of Appeal reached. This would not be an incremental development of existing principles, but a radical departure from substantially settled law. There is a reason for the limited scope of the Dicey Rule and that is that there is no expectation of reciprocity on the part of foreign countries. Typically today the introduction of new rules for enforcement of judgments depends on a degree of reciprocity. The EC Insolvency Regulation and the Model Law were the product of lengthy negotiation and consultation. A change in the settled law of the recognition and enforcement of judgments, and in particular the formulation of a rule for the identification of those courts which are to be regarded as courts of competent jurisdiction (such as the country where the insolvent entity has its centre of interests and the country with which the judgment debtor has a sufficient or substantial connection), has all the hallmarks of legislation, and is a matter for the legislature and not for judicial innovation. The law relating to the enforcement of foreign judgments and the law relating to international insolvency are not areas of law which have in recent times been left to be developed by judge made law. As Lord Bridge of Harwich put it in relation to a proposed change in the common law rule relating to fraud as a defence to the enforcement of a foreign judgment, if the law is now in need of reform, it is for the legislature, not the judiciary, to effect it: Owens Bank Ltd v Bracco [1992] 2 AC 443, 489. Furthermore, the introduction of judge made law extending the recognition and enforcement of foreign judgments would be only to the detriment of United Kingdom businesses without any corresponding benefit. I accept the appellants point that if recognition and enforcement were simply left to the discretion of the court, based on a factor like sufficient connection, a person in England who might have connections with a foreign territory which were only arguably sufficient would have to actively defend foreign proceedings which could result in an in personam judgment against him, only because the proceedings are incidental to bankruptcy proceedings in the courts of that territory. Although I say nothing about the facts of the Madoff case, it might suggest that foreigners who have bona fide dealings with the United States might have to face the dilemma of the expense of defending enormous claims in the United States or not defending them and being at risk of having a default judgment enforced abroad. Nor is there likely to be any serious injustice if this court declines to sanction a departure from the traditional rule. It would not be appropriate to express a view on whether the officeholders in the present cases would have, or would have had, a direct remedy in England, because there might be, or might have been, issues as to the governing law, or issues as to time limits or as to good faith. Subject to those reservations, several of the ways in which the claims were put (especially those parts of the judgment which were not the subject of these proceedings) in the United States proceedings in Rubin could have founded proceedings by trustees in England for the benefit of the creditors (as beneficiaries of the express trust). In addition there are several other avenues available to officeholders. Avoidance claims by a liquidator of an Australian company may be the subject of a request by the Australian court pursuant to section 426(4) of the Insolvency Act 1986, applying Australian law under section 426(5). In appropriate cases, article 23 of the Model Law will allow avoidance claims to be made by foreign representatives under the Insolvency Act 1986. In the cases where the insolvent estate has its centre of main interests in the European Union, judgments will be enforceable under Article 25 of the EC Insolvency Regulation. It follows that, in my judgment, Cambridge Gas was wrongly decided. The Privy Council accepted (in view of the conclusion that there had been no submission to the jurisdiction of the court in New York) that Cambridge Gas was not subject to the personal jurisdiction of the US Bankruptcy Court. The property in question, namely the shares in Navigator, was situate in the Isle of Man, and therefore also not subject to the in rem jurisdiction of the US Bankruptcy Court. There was therefore no basis for the recognition of the order of the US Bankruptcy Court in the Isle of Man. Regulations In the Rubin appeal it was argued by the respondents that the judgment should also be enforced through the CBIR, implementing the UNCITRAL Model Law. The order made by the deputy judge recognised the Chapter 11 proceeding including the Adversary Proceedings, because bringing adversary proceedings against debtors of the bankrupt is clearly part of collecting the bankrupts assets with a view to distributing them to creditors and the adversary proceedings are part and parcel of the Chapter 11 insolvency proceedings: [2010] 1 All ER (Comm) 81, paras 46, 47. The Court of Appeal was of the same view: [2011] Ch 133, para 61(2) (3). The appellants no longer maintain that the adversary proceedings should not be recognised under the Model Law. Issue 2: Rubin: Enforcement under the Cross Border Insolvency The issue which still arises in relation to the Model Law as implemented by the CBIR is whether the court has power to grant relief recognising and enforcing the relevant parts of the judgment. Article 21 provides that: 1. Upon recognition of a foreign proceeding, whether main or non main, where necessary to protect the assets of the debtor or the interests of the creditors, the court may, at the request of the foreign representative, grant any appropriate relief, including (a) staying the commencement or continuation of individual actions or individual proceedings concerning the debtor's assets, rights, obligations or liabilities, to the extent they have not been stayed under paragraph l(a) of article 20; (b) staying execution against the debtor's assets to the extent it has not been stayed under paragraph l(b) of article 20; suspending the right to transfer, encumber or otherwise (c) dispose of any assets of the debtor to the extent this right has not been suspended under paragraph 1(c) of article 20; (d) providing for the examination of witnesses, the taking of evidence or the delivery of information concerning the debtor's assets, affairs, rights, obligations or liabilities; (e) entrusting the administration or realisation of all or part of the debtor's assets located in Great Britain to the foreign representative or another person designated by the court; (f) extending relief granted under paragraph 1 of article 19; and (g) granting any additional relief that may be available to a British insolvency officeholder under the law of Great Britain, including any relief provided under paragraph 43 of Schedule B1 to the Insolvency Act 1986. The reference to relief under paragragh 43 of Schedule B1 to the Insolvency Act 1986 is a reference to a moratorium on claims in an administration. The Guide to Enactment states, at paras 154, 156: [154] The types of relief listed in article 21, paragraph 1, are typical or most frequent in insolvency proceedings; however, the list is not exhaustive and the court is not restricted unnecessarily in its ability to grant any type of relief that is available under the law of the enacting state and needed in the circumstances of the case. [156] It is in the nature of discretionary relief that the court may tailor it to the case at hand. This idea is reinforced by article 22, paragraph 2, according to which the court may subject the relief granted to conditions that it considers appropriate. Article 25 provides (under the heading Co operation and direct communication between a court of Great Britain and foreign courts or foreign representatives) that: 1. the court may co operate to the maximum extent possible with foreign courts or foreign representatives, either directly or through a British insolvency officeholder. 2. The court is entitled to communicate directly with, or to request information or assistance directly from, foreign courts or foreign representatives. Article 27 provides that the co operation referred to in article 25 may be implemented by any appropriate means, including (a) appointment of a person to act at the direction of the court; (b) communication of information by any means considered appropriate by the court; (c) coordination of the administration and supervision of the debtor's assets and affairs; (d) approval or implementation by courts of agreements concerning the coordination of proceedings; (e) coordination of concurrent proceedings regarding the same debtor. The respondents say that (a) the power under article 21 is to grant any type of relief that is available under the law of the relevant state, and that the fact that recognition and enforcement of foreign judgments is not specifically mentioned in article 21 as one of the forms of relief available, does not mean that such relief cannot be granted; (b) the recognition and enforcement of the judgments of a foreign court is the paradigm means of co operation with that court; and (c) the examples of co operation in article 27 are merely examples and are not exhaustive. But the CBIR (and the Model Law) say nothing about the enforcement of foreign judgments against third parties. As Lord Mance pointed out in argument, recognition and enforcement are fundamental in international cases. Recognition and enforcement of judgments in civil and commercial matters (but not in insolvency matters) have been the subject of intense international negotiations at the Hague Conference on Private International Law, which ultimately failed because of inability to agree on recognised international bases of jurisdiction. It would be surprising if the Model Law was intended to deal with judgments in insolvency matters by implication. Articles 21, 25 and 27 are concerned with procedural matters. No doubt they should be given a purposive interpretation and should be widely construed in the light of the objects of the Model Law, but there is nothing to suggest that they apply to the recognition and enforcement of foreign judgments against third parties. The respondents rely on United States decisions but the only case involving enforcement of a foreign judgment in fact supports the appellants argument. The Model Law has been implemented into United States law through Chapter 15 of Title 11 of the United States Code, which has in sections 1521, 1525 and 1527 provisions which are, with modifications not relevant for present purposes, equivalent to articles 21, 25 and 27 of the CBIR. In Re Metcalfe & Mansfield Alternative Investments 421 BR 685 (Bankr SDNY 2010) the US Bankruptcy Court ordered that orders made by a Canadian court in relation to a plan of compromise and arrangement under the (Canadian) Companies Creditors Arrangement Act 1985 be enforced. That decision does not assist the respondents because the US Bankruptcy Court applied the normal rules in non bankruptcy cases for enforcement of foreign judgments in the United States: pp 698 700. In my judgment the Model Law is not designed to provide for the reciprocal enforcement of judgments. VII Issue 3: New Cap: Enforcement through assistance under section 426 of the Insolvency Act 1986 In view of my conclusion in the next section (section VIII) that the Syndicate submitted to the jurisdiction of the Australian court, the issues on section 426(4) and (5) of the Insolvency Act 1986, and their relationship with section 6 of the Foreign Judgments (Reciprocal Enforcement) Act 1933 do not arise, but since the matter was fully argued I will express a view on the applicability of section 426(4) to a case such as this. Section 426(4) (5) of the Insolvency Act 1986 provides: (4) The courts having jurisdiction in relation to insolvency law in any part of the United Kingdom shall assist the courts having the corresponding jurisdiction in any other part of the United Kingdom or any relevant country or territory. (5) For the purposes of subsection (4) a request made to a court in any part of the United Kingdom by a court in any other part of the United Kingdom, or in a relevant country or territory is authority for the court to which the request is made to apply, in relation to any matter specified in the request, the insolvency law which is applicable by either court in relation to comparable matters falling within its jurisdiction. In exercising its discretion under this subsection, a court shall have regard in particular to the rules of private international law. The reference to the application of rules of private international law in section 426(5) is difficult and obscure: see Dicey, 15th ed, para 30 119; my discussion in In re Television Trade Rentals [2002] EWHC 211 (Ch), [2002] BCC 807, para 17, and the cases there cited; and Al Sabah v Grupo Torras SA [2005] UKPC 1, [2005] 2 AC 333, para 47. But nothing turns on it on these appeals. The question is whether section 426(4) of the 1986 Act provides a procedure by which a judgment of a court having jurisdiction in relation to insolvency law in a relevant country or territory may be enforced in the United Kingdom. As I have said, Australia is a relevant country. A further question arises if section 426(4) applies to the enforcement of foreign judgments and that is whether section 426 is ousted by section 6 of the Foreign Judgments (Reciprocal Enforcement) Act 1933, which provides: No proceedings for the recovery of a sum payable under a foreign judgment, being a judgment to which this Part of the Act applies, other than proceedings by way of registration of the judgment, shall be entertained by any court in the United Kingdom. Both Lewison J and the Court of Appeal [2012] 2 WLR 1095 held that section 426(4) was available as a tool for the enforcement of the judgment. Section 426(4) has been given a broad interpretation: see Hughes v Hannover Rckversicherungs Aktiengesellschaft [1997] 1 BCLC 497 (CA); England v Smith [2001] Ch 419 (CA); HIH [2008] UKHL 21, [2008] 1 WLR 852. It has been held that the fact that a letter of request has been made is a weighty factor, and public policy and comity favour the giving of assistance: Hughes v Hannover, at pp 517 518; England v Smith, at p 433. Thus in England v Smith the Australian court overseeing the liquidation of the Bond Corporation made an order for the examination of a London partner in Arthur Andersen. It issued a letter of request asking the English court to assist it by making its own order for the examination. The Court of Appeal decided that the order should be made. But, despite the respondents argument to the contrary, England v Smith was not a case of the enforcement of the Australian order, but rather the making of the courts own order in aid of the Australian liquidation. In my judgment, subsections 426(4) and (5) of the 1986 Act are not concerned with enforcement of judgments. Section 426(1) (2), by contrast, deals with enforcement of orders in one part of the United Kingdom in another part, and refer expressly to the enforcement of such orders (shall be enforced in section 426(1)). Section 426(4) deals with assistance not only for foreign designated countries such as Australia but also to intra United Kingdom assistance. If section 426(4) applied to intra United Kingdom enforcement of orders, then section 426(1) would be largely redundant, going beyond what the Court of Appeal [2012] 2 WLR 1095, para 57 described as a degree of overlap. Sections 426(1) and (4) have their origin in sections 121 and 123 of the Bankruptcy Act 1914. Section 121 of the 1914 Act provided that orders of bankruptcy courts in one part of the United Kingdom were to be enforced in other parts. Section 122 provided that the courts exercising bankruptcy and insolvency jurisdiction in the United Kingdom and every British court elsewhere were to act in aid of, and be auxiliary to, each other; and, upon a request by the non English court, could exercise the jurisdiction of either court. The Insolvency Law and Practice Report of the Review Committee (1982) (Cmnd 8558) (the Cork Report) said (paras 1909 1913) that section 122 was the vital section in this context, and recommended that the section should be extended to winding up. But, despite the respondents arguments, I do not discern any recommendation which would suggest that section 426(4) applies to the enforcement of foreign judgments. Consequently the applicability of section 6 of the 1933 Act does not arise for decision, except in a context which makes little practical difference, and to which I will revert. VIII Submission If the Dicey Rule applies the judgments in issue will be enforceable in England if the judgment debtors submitted to the jurisdiction of the foreign court. New Cap The Australian court granted leave to serve these proceedings out of the jurisdiction on the Syndicate: section IV, above. The Syndicate did not enter an appearance, but its solicitors commented in writing on evidence presented to the Australian court about New Caps insolvency and their comments were placed before the Australian judge. More relevant is the fact that from August 1999 the Syndicate submitted proofs of debt (in relation to unsettled claims and outstanding premiums for the 1997, 1998, and 1999 years of account, and not to the reinsurance contracts which are the subject of these proceedings) and attended and participated in creditors meetings. In particular at an adjourned meeting of creditors on 16 September 2009 the Syndicate had given a proxy for that meeting to the chairman, and submitted a proof of debt and proxy form for that meeting. The Syndicate voted at a meeting of creditors in favour of a scheme of arrangement. The liquidator has admitted claims by the Syndicate for the sterling equivalent of more than 650,000, although the liquidator is retaining the dividend in partial settlement of the costs incurred in these proceedings. The general rule in the ordinary case in England is that the party alleged to have submitted to the jurisdiction of the English court must have taken some step which is only necessary or only useful if an objection to jurisdiction has been actually waived, or if the objection has never been entertained at all: Williams & Glyns Bank plc v Astro Dinamico Compania Naviera SA [1984] 1 WLR 438, 444 (HL) approving Rein v Stein (1892) 66 LT 469, 471 (Cave J). The same general rule has been adopted to determine whether there has been a submission to the jurisdiction of a foreign court for the purposes of the rule that a foreign judgment will be enforced on the basis that the judgment debtor has submitted to the jurisdiction of the foreign court: Adams v Cape Industries [1990] Ch 433, 459 (Scott J); Akai Pty Ltd v Peoples Insurance Co Ltd [1998] 1 Lloyds Rep 90, 96 97 (Thomas J); see also Desert Sun Loan Corpn v Hill [1996] 2 All ER 847, 856 (CA); Akande v Balfour Beatty Construction Ltd [1998] ILPr 110; Starlight International Inc v Bruce [2002] EWHC 374 (Ch), [2002] ILPr 617, para 14 (cases of foreign judgments); Industrial Maritime Carriers (Bahamas) Inc v Sinoca International Inc (The Eastern Trader) [1996] 2 Lloyds Rep 585, 601 (a case involving the question whether the party seeking an anti suit injunction in support of an English arbitration clause had waived the agreement by submitting to the jurisdiction of the foreign court). The characterisation of whether there has been a submission for the purposes of the enforcement of foreign judgments in England depends on English law. The court will not simply consider whether the steps taken abroad would have amounted to a submission in English proceedings. The international context requires a broader approach. Nor does it follow from the fact that the foreign court would have regarded steps taken in the foreign proceedings as a submission that the English court will so regard them. Conversely, it does not necessarily follow that because the foreign court would not regard the steps as a submission that they will not be so regarded by the English court as a submission for the purposes of the enforcement of a judgment of the foreign court. The question whether there has been a submission is to be inferred from all the facts. It is in that context that Scott J said at first instance in Adams v Cape Industries plc [1990] 1 Ch 433, 461 (a case in which the submission issue was not before the Court of Appeal): If the steps would not have been regarded by the domestic law of the foreign court as a submission to the jurisdiction, they ought not to be so regarded here, notwithstanding that if they had been steps taken in an English court they might have constituted a submission. The implication of procedural steps taken in foreign proceedings must be assessed in the context of the foreign proceedings. I agree with the way it was put by Thomas J in Akai Pty Ltd v Peoples Insurance Company Ltd [1998] 1 Lloyds Rep 90, 97: The court must consider the matter objectively; it must have regard to the general framework of its own procedural rules, but also to the domestic law of the court where the steps were taken. This is because the significance of those steps can only be understood by reference to that law. If a step taken by a person in a foreign jurisdiction, such as making a counterclaim, might well be regarded by English law as amounting to a submission to the jurisdiction, but would not be regarded by that foreign court as a submission to its jurisdiction, an English court will take into account the position under foreign law. The Syndicate did not take any steps in the avoidance proceedings as such which would be regarded either by the Australian court or by the English court as a submission. Were the steps taken by the Syndicate in the liquidation a submission for the purposes of the rules relating to foreign judgments? In English law there is no doubt that orders may be made against a foreign creditor who proves in an English liquidation or bankruptcy on the footing that by proving the foreign creditor submits to the jurisdiction of the English court. In Ex p Robertson, In re Morton (1875) LR 20 Eq 733 trustees were appointed over the property of bankrupt potato merchants in a liquidation by arrangement. A Scots merchant received payment of 120 after the liquidation petition was presented, and proved for a balance of 247 and received a dividend of what is now 20p in the pound. The trustees served a notice of motion, seeking repayment of the 120 paid out of the insolvent estate, out of the jurisdiction. The respondent objected to the jurisdiction of the English court on the ground that he was a domiciled Scotsman. On appeal from the county court, Sir James Bacon CJ held that the court had jurisdiction. He said, at pp 737 738: what is the consequence of creditors coming in under a liquidation or bankruptcy? They come in under what is as much a compact as if each of them had signed and sealed and sworn to the terms of it that the bankrupt's estate shall be duly administered among the creditors. That being so, the administration of the estate is cast upon the court, and the court has jurisdiction to decide all questions of whatever kind, whether of law, fact, or whatever else the court may think necessary in order to effect complete distribution of the bankrupt's estate. [C]an there be any doubt that the Appellant in this case has agreed that, as far as he is concerned, the law of bankruptcy shall take effect as to him, and under this jurisdiction, to which he is not only subjected, but under which he has become an active party, and of which he has taken the benefit . [The Appellant] is as much bound to perform the conditions of the compact, and to submit to the jurisdiction of the court, as if he had never been out of the limits of England. The Syndicate objected to the jurisdiction of the Australian court. Barrett J in his judgment of 14 July 2009 accepted that it had made it clear that it was not submitting to its jurisdiction, and he also accepted that as a result the judgment of the Australian court would not be enforceable in England. His judgment is concerned exclusively with the preference claims, and he did not deal with the question of submission by reference to the Syndicates participation in the liquidation by way of proof and receipt of dividends. He decided that the court had jurisdiction because the New South Wales rules justified service out of the jurisdiction on the basis that the cause of action arose in New South Wales. I would therefore accept the liquidators submission that, having chosen to submit to New Cap's Australian insolvency proceeding, the Syndicate should be taken to have submitted to the jurisdiction of the Australian court responsible for the supervision of that proceeding. It should not be allowed to benefit from the insolvency proceeding without the burden of complying with the orders made in that proceeding. The position is different in the Rubin appeal. It would certainly have been arguable that Eurofinance SA had submitted to the jurisdiction of the United States District Court, for these reasons: first, it was Eurofinance SA which applied for the appointment by the High Court of Mr Rubin and Mr Lan as receivers of TCT specifically for the purpose of causing TCT then to obtain protection under Chapter 11; second, it was Eurofinance SA which represented to the English court that officeholders appointed by the United States court would be able to pursue claims against third parties; third, the judgment of the US Bankruptcy Court states that the court had personal jurisdiction over Eurofinance SA not only because it did business in the United States but also (as I have mentioned above) because it had filed a notice of appearance in the Chapter 11 proceedings (Order 22 of July 2008, paras 42 43). But the Rubin appellants did not appear in the adversary proceedings, and it was not argued in these proceedings that Eurofinance SA (or Mr Adrian Roman, who caused Eurofinance SA to make the application) had submitted to the jurisdiction of the US Bankruptcy Court in any other way and it is not necessary therefore to explore the matter further. IX New Cap: enforcement at common law or under the 1933 Act In view of my conclusion that the Australian judgment in New Cap is enforceable by reason of the Syndicates submission, a purely technical point arises on the method of enforcement. The point is whether the enforcement is to be under the 1933 Act or at common law. If insolvency proceedings are excluded from the 1933 Act, then enforcement would be at common law. If they are not excluded, then (as I have said) section 6 has the effect of excluding an action at common law on the judgment and making registration under the 1933 Act the only method of enforcement of judgments within Part I of the Act. Section 11(2) of the 1933 Act provides that the expression action in personam shall not be deemed to include (inter alia) proceedings in connection with bankruptcy and winding up of companies. But the effect of section 4(2)(c) is that in the case of a judgment given in an action other than an action in personam or an action in rem, the foreign court shall be deemed to have jurisdiction if its jurisdiction is recognised by the English court, ie at common law. Accordingly, the question whether insolvency proceedings are wholly excluded from the operation of the 1933 Act still arises. There is no other provision in the 1933 Act which throws any light on the point. The main object of the 1933 Act was to facilitate the enforcement of commercial judgments abroad by making reciprocity easier. The only reference to insolvency proceedings in the Report of the Foreign Judgments (Reciprocal Enforcement) Committee (1932) (Cmnd 4213), (the Greer Report), which recommended the legislation, is the statement (para 4): It is not necessary for our present purposes to consider the effect in England of foreign judgments in bankruptcy proceedings. The Report annexed draft Conventions which had been drawn up in consultation with experts from Belgium, France and Germany. The draft Conventions with Belgium (article 4(3), (4)) and Germany (article 4(4)) provided that the jurisdictional rules in the Convention did not apply to judgments in bankruptcy proceedings or proceedings relating to the winding up of companies or other bodies corporate, but that the jurisdiction of the original court would be recognised where such recognition was in accordance with the rules of private international law observed by the court applied to. That provision paralleled what became sections 4(2)(c) and 11(2) of the 1933 Act. The draft Convention with France did not apply to judgments in bankruptcy proceedings etc (article 2(3)), but provided that nothing was deemed to preclude the recognition and enforcement of judgments to which the Convention did not apply: article 2(4). The Conventions concluded with countries to which the 1933 Act applied adopted similar techniques. It is unnecessary to set them out in detail. But there is no reason to suppose that bankruptcy proceedings were not regarded as being civil and commercial matters. Thus the 1961 Convention with the Federal Republic of Germany of 1961 (the Reciprocal Enforcement of Foreign Judgments (Germany) Order) (SI 1961/1199) provided in article I(6) that the expression judgments in civil and commercial matters did not include judgments for fines or penalties, and had a separate provision in article II(2) that the Convention did not apply to judgments in bankruptcy proceedings or proceedings relating to the winding up of companies or other bodies corporate (although, in accordance with the usual technique, it did not rule out recognition and enforcement: Art II(3)). Other Conventions simply excluded bankruptcy proceedings from the specific jurisdictional provisions of the Convention, like the draft Conventions annexed to the Greer Report: article 4(5) of the Reciprocal Enforcement of Foreign Judgments (Austria) Order 1962 (SI 1962/1339), article 4(3) of the Reciprocal Enforcement of Foreign Judgments (Norway) Order 1962 (SI 1962/636), and article IV(3) of the Reciprocal Enforcement of Foreign Judgments (Italy) Order 1963 (SI 1973/1894). The Reciprocal Enforcement of Judgments (Australia) Order 1994 (SI 1994/1901) extended the 1933 Act to Australia, implementing the UK Australia Agreement for the reciprocal enforcement of judgments in civil and commercial matters. The Agreement is expressed in article I(c)(i) to apply to judgments in civil and commercial matters. The Order applies Part I of the Act to judgments in respect of a civil or commercial matter (article 4(a)). There is no reason to conclude that the phrase civil and commercial matters does not include insolvency proceedings, and the history of the 1933 Act and the Conventions shows that it does. The fact that insolvency was expressly excluded from the operation of the Brussels Convention, the original and revised Lugano Conventions and the Brussels I Regulation in fact suggests that otherwise they would have been within their scope. The respondents relied on a passage in the ruling of the European Court of Justice in Gourdain v Nadler (Case 133/78) [1979] ECR 733, paras 3 4, as suggesting that the exclusion of bankruptcy in article 1 of the Brussels Convention was an example of a matter excluded from the concept of civil and commercial matters. But it is clear from the context (and from the opinion of Advocate General Reischl) that the court was simply saying that because the expression civil and commercial matters in Article 1 had to be given an autonomous meaning, so also was the case with the expression bankruptcy. That the exclusion of bankruptcy proceedings does not affect their character as civil or commercial matters is confirmed by the recent ruling in F Tex SIA v Lietuvos Anglijos UAB Jadecloud Vilma (Case C 213/10) 19 April 2012, where the court said that the Brussels I Regulation was intended to apply to all civil and commercial matters apart from certain well defined matters and as a result actions directly deriving from insolvency proceedings and closely connected with them were excluded: para 29. It follows that the 1933 Act applies to the Australian judgment and that enforcement should be by way of registration under the 1933 Act. X Disposition I would therefore allow the appeal in Rubin, but dismiss the appeal in New Cap on the ground that the Syndicate submitted to the jurisdiction of the Australian court. LORD MANCE I agree with Lord Collins reasoning and conclusions in his judgment on these appeals, essentially for the reasons he gives, though without subscribing to his incidental observation (para 132) that the Privy Council decision in Cambridge Gas Transportation Corpn v Official Committee of Unsecured Creditors of Navigator Holdings plc [2006] UKPC 26, [2007] 1 AC 508 was necessarily wrongly decided. This was not argued before the Supreme Court, and I would wish to reserve my opinion upon it. Cambridge Gas is, on any view, distinguishable. The common law question central to these appeals is whether the Supreme Court should endorse or introduce a special rule of recognition and enforcement, one falling outside the scope of the Dicey Rule which Lord Collins has identified (Rule 36 in the 14th and Rule 43 in the 15th edition) and applicable to judgments in foreign insolvency proceedings setting aside voidable pre insolvency transactions. For the principal reasons which Lord Collins gives in paras 95 to 131, I agree that we should not do so. Since much weight was placed by the respondents and the Court of Appeal upon the Boards reasoning and decision in Cambridge Gas, I add some observations to indicate why, as the present appellants submitted, it concerned circumstances and proceeded upon factual assumptions and a legal analysis which have no parallel in the present case. Cambridge Gas has attracted both Irish judicial dissent and English academic criticism, to which Lord Collins refers in paras 53 and 111 112. Giving the judgment of the Board in Pattni v Ali [2006] UKPC 51, [2007] 2 AC 85, I said that the purpose of the bankruptcy order with which the Board was concerned in Cambridge Gas was simply to establish a mechanism of collective execution against the property of the debtor [Navigator] by creditors whose rights were admitted or established (para 23). This analysis, admittedly, involved treating the vesting in creditors of shares in Navigator as no different in substance from the vesting in creditors of Navigators shares in its ship owning subsidiaries. But it is clear from paras 8 and 9 and again 24 to 26 of the Boards advice in Cambridge Gas that the Board saw no difference. It did not regard Cambridge Gas as having any interest of value to advance or protect in the shares still held nominally in its name. Their vesting in Navigators creditors was no more than a mechanism for disposing of Navigators assets, which did not affect or concern Cambridge Gas. The Board was therefore, in its view (and rightly or wrongly), concerned with distribution of the insolvent companys assets in a narrow and traditional sense. Amplifying this, the Board approached the situation in Cambridge Gas as follows. The New York court had jurisdiction over Navigators assets, since Navigator had submitted to the New York proceedings. Cambridge Gass shares in Navigator (located in the Isle of Man, Navigators place of incorporation) were completely and utterly worthless: [2007] 1 AC 508, para 9. The transfer to Navigators creditors of Cambridge Gass shares in Navigator had the like effect to a transfer of Navigators assets, since Navigator was an insolvent company, in which the shareholders ha[d] no interest of any value (para 26). Cambridge Gass shares in Navigator were vulnerable in the Isle of Man, under section 152 of the Companies Act 1931, to a similar scheme of arrangement to that which the New York Court intended by its Chapter 11 order. More generally, as I noted in Stone & Rolls Ltd v Moore Stephens [2009] UKHL 39, [2009] AC 1391, paras 236 to 238, in insolvency shareholders interests yield to those of creditors. It was in this limited context that the Board concluded that the New York and Manx courts orders could be regarded as doing no more than facilitating or enabling collective execution against Navigators property. The Court of Appeal believed on the contrary that the answer to the present cases lay in the Boards general statements in Cambridge Gas at paras 19 to 21 regarding the nature of insolvency proceedings. It is true that proceedings to avoid pre insolvency transactions can be related to the process of collection of assets. That is, their general purpose and effect is to ensure a fair allocation of assets between all who are and were within some specified pre insolvency period creditors. A dictum of Lord Hoffmann in In re HIH Casualty and General Insurance Ltd [2008] UKHL 21, [2008] 1 WLR 852, para 19, quoted by Lord Collins in paras 15 and 52, is to that effect, though again uttered in a different context to the present. However, the Board did not see these considerations as answering or eliminating all questions regarding the existence of jurisdiction or at least its exercise in Cambridge Gas. On the contrary, it went on to examine in close detail in paras 22 to 26 the limits of the assistance that a court could properly give. In rejecting the argument that the interference with the shareholding held in Cambridge Gass name was beyond the Manx courts jurisdiction (para 26), the only reason it gave related to the nature of shares in an insolvent company. This meant, according to its advice, that Cambridge Gas had no interest of any value to protect and that registration of the shares in Navigators creditors name was no more than a mechanism for giving creditors access to Navigators assets. On this basis, the decision in Cambridge Gas is, as Professor Adrian Briggs noted in a penetrating case note in The British Year Book of International Law (2006) p575 581, less remarkable (although, as Professor Briggs also notes, it perhaps still poses problems of reconciliation with the Houses decision in Socit Eram Shipping Co Ltd v Hong Kong & Shanghai Banking Corp Ltd [2003] UKHL 30, [2004] AC 260). But, because the actual decision in Cambridge Gas was so narrowly focused on the nature of a shareholders rights in an insolvent company and was not directly challenged, I prefer to leave open its correctness. Whatever view may be taken as to the validity of the Boards reasoning in Cambridge Gas, it is clear that it does not cover or control the present appeal. The present cases are not concerned with shares, with situations in which shares are, or are treated by the court as, no more than a key to the insolvent companys assets or even with situations in which it is clear that those objecting to recognition and enforcement of the foreign courts orders have no interests to protect. There are, on the contrary, substantial issues as to whether there were fraudulent preferences giving rise to in personam liability in large amounts. The persons allegedly benefitting by fraudulent preferences did not appear in the relevant foreign insolvency proceedings in which judgment was given against them. They were (leaving aside any question of submission) outside the international jurisdiction of the relevant foreign courts. Lord Clarke takes a different view from Lord Collins, but does not define either the circumstances in which a foreign court should, under English private international law rules, be recognised as having jurisdiction to entertain bankruptcy proceedings or, if one were (wrongly in my view) to treat the whole area as one of discretion, the factors which might make it either unjust or contrary to public policy to recognise an avoidance order made in such foreign proceedings (see paras 193, 200 and 201 of Lord Clarkes judgment). The scope of the jurisdiction to entertain bankruptcy proceedings which English private international law will recognise a foreign court as having is described in Dicey (in para 31 064 in the 14th and 15th editions) as a vexed and controversial question. But it would include situations in which the bankrupt or insolvent company had simply submitted to the foreign bankruptcy jurisdiction. On Lord Clarkes analysis, in such a case (of which Rubin v Eurofinance is an example), it would be irrelevant that the debtor under the avoidance order had not submitted, and was not on any other basis subject, to the foreign jurisdiction. It would be enough that the judgment debtor had had the chance of appearing and defending before the foreign court. For the reasons given by Lord Collins, I do not accept that this is the common law. In the light of the above, the Court of Appeal was, in my view, in error in seeing the solution to the present appeals as lying in the advice given by the Board in Cambridge Gas. Even on an assumption that the actual decision in Cambridge Gas can be supported, it cannot and should not be treated as supporting the respondents case that fraudulent preference claims and avoidance orders in insolvency proceedings generally escape the common law rules requiring personal or in rem jurisdiction. LORD CLARKE I would like to pay tribute to the learning in Lord Collins comprehensive judgment. However, left to myself, I would dismiss the appeal in the Rubin case. Since I am in a minority of one, little is to be gained by my writing a long dissent. I will therefore try to explain my reasons shortly. In doing so, I adopt the terminology and abbreviations used by Lord Collins. I agree with Lord Collins and Lord Mance that the decision of the Privy Council in Cambridge Gas Transportation Corpn v Official Committee of Unsecured Creditors of Navigator Holdings plc [2007] 1 AC 508 is distinguishable. The facts there were quite different from those here. However, in so far as it is suggested that Cambridge Gas was wrongly decided, I do not agree. Moreover, I do not think that it would be appropriate so to hold because it was not submitted to be wrong in the course of the argument. To my mind the approach which should be adopted is presaged in the speech of Lord Hoffmann in In re HIH Casualty and General Insurance Ltd [2008] 1 WLR 852 and in his judgment in Cambridge Gas. As I see it, the issue is simply whether an avoidance order made by a foreign bankruptcy court made in the course of the bankruptcy proceedings, whether personal or corporate, which the court has jurisdiction to entertain, is unenforceable if it can fairly be said to be an order made either in personam or in rem. I would answer that question in the negative. Put another way, the question is whether the English court has jurisdiction under English rules of private international law to enforce an avoidance order made in foreign bankruptcy proceedings in circumstances where, under those rules, the foreign court has jurisdiction to entertain the bankruptcy proceedings themselves. I would answer that question in the affirmative. It is not, as I understand it, suggested here that the US court did not have jurisdiction to entertain the bankruptcy proceedings themselves. The relevant paragraphs of Lord Hoffmanns judgment in Cambridge Gas are in these terms (as quoted by Lord Collins at para 43 above): 13. Judgments in rem and in personam are judicial determinations of the existence of rights: in the one case, rights over property and in the other, rights against a person. When a judgment in rem or in personam is recognised by a foreign court, it is accepted as establishing the right which it purports to have determined, without further inquiry into the grounds upon which it did so. The judgment itself is treated as the source of the right. 14. The purpose of bankruptcy proceedings, on the other hand, is not to determine or establish the existence of rights, but to provide a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established. 15 [B]ankruptcy, whether personal or corporate, is a collective proceeding to enforce rights and not to establish them. Of course, as Brightman LJ pointed out in In re Lines Bros Ltd [1983] Ch 1, 20, it may incidentally be necessary in the course of bankruptcy proceedings to establish rights which are challenged: proofs of debt may be rejected; or there may be a dispute over whether or not a particular item of property belonged to the debtor and is available for distribution. There are procedures by which these questions may be tried summarily within the bankruptcy proceedings or directed to be determined by ordinary action. But these again are incidental procedural matters and not central to the purpose of the proceedings. The critical paragraph is para 15, which seems to me to make it clear that it is possible to have an order which is both in personam or in rem and an order of the kind referred to by Lord Hoffmann in para 14. Thus it may be incidentally necessary to establish substantive rights in the course of the bankruptcy proceedings as part of a collective proceeding to enforce rights. In such a case the order will be doing two things. It will be both establishing the right and enforcing it. This can be seen from the examples given in para 15. Proofs of debt may be rejected, which is a process which may involve determining, for example, the substantive rights of the creditor against the debtor. Or it may be necessary to determine whether or not a particular item of property belongs to the debtor and is available for distribution. As para 15 contemplates, such procedures may be tried either summarily within the bankruptcy proceedings or by ordinary action. In either such case Lord Hoffmann describes them as incidental procedures which are not central to the purpose of the bankruptcy proceedings. As I see it, in such a case, an avoidance order may be both an order in personam or in rem and an order in the bankruptcy proceedings. I agree with Lord Collins at para 103 that it is not easy to see why the order of the US Bankruptcy Court in Cambridge Gas was not an order in rem. However, that does not to my mind show that Cambridge Gas was wrongly decided but demonstrates that it is possible to have an in rem order which is made as incidental to bankruptcy proceedings but which is enforceable at common law, provided that the bankruptcy court has jurisdiction in the bankruptcy. The approach is explained by Lord Hoffmann in HIH at para 30 and in Cambridge Gas at para 16, both of which are quoted by Lord Collins at para 19 above. In HIH he said: The primary rule of private international law which seems to me applicable to this case is the principle of (modified) universalism, which has been the golden thread running through English cross border insolvency law since the 18th century. That principle requires that English courts should, so far as is consistent with justice and UK public policy, co operate with the courts in the country of the principal liquidation to ensure that all the companys assets are distributed to its creditors under a single system of distribution. In Cambridge Gas he said: The English common law has traditionally taken the view that fairness between creditors requires that, ideally, bankruptcy proceedings should have universal application. There should be a single bankruptcy in which all creditors are entitled and required to prove. No one should have an advantage because he happens to live in a jurisdiction where more of the assets or fewer of the creditors are situated. At paras 94 to 98 above Lord Collins discusses the nature of avoidance proceedings. I entirely agree with his analysis. Avoidance provisions requiring the adjustment of prior transactions and the recovery of previous dispositions of property so as to constitute the estate available for distribution are necessary in order to maintain the principle of equality among creditors. At para 15 Lord Collins notes that Lord Hoffmann said at para 19 of HIH that the process of collection of assets will include, for example, the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme. In short, avoidance proceedings, and therefore avoidance orders, are central to the bankruptcy proceedings. As Lord Collins puts it at para 98, avoidance proceedings are peculiarly the subject of insolvency law. I accept that to permit the enforcement of an avoidance order in circumstances of this kind would be a development of the common law. However, it seems to me that it would be a principled development. It would in essence be an application of the principle identified by Lord Hoffmann in the passage quoted above from para 30 of HIH that the principle of modified universalism requires that English courts should, so far as is consistent with justice and United Kingdom public policy, co operate with the courts in the country of the principal liquidation to ensure that all the companys assets are distributed to its creditors under a single system of distribution. The position of the judgment debtor in such a case would be protected by the principle that the English court would only enforce a judgment in a case like this where to do so was consistent with justice and United Kingdom public policy. All would depend upon the facts of the particular case. In the case of Rubin, there would be no injustice in enforcing the judgment against the appellants. Lord Mance notes at para 189 that I do not define either the circumstances in which a foreign court should be recognised as having jurisdiction to entertain bankruptcy proceedings or the factors which would make it unjust or contrary to public policy to recognise an avoidance order made in such foreign proceedings. As I see it, these are matters which would be worked out on a case by case basis in (as Lord Hoffmann put it in HIH at para 30) co operating with the courts in the country of the principal liquidation to ensure that all the companys assets are distributed to its creditors under a single system of distribution. It would not be irrelevant that the debtor under the avoidance order had not submitted. All would depend upon the particular circumstances of the case, including the reasons why the debtor had not submitted. In essence, on the critical question, I prefer the reasoning of the Court of Appeal, which is contained in the judgment of Ward LJ, with whom Wilson LJ and Henderson J agreed. Lord Collins has concisely summarised their reasoning in paras 88 to 90, substantially as follows: (a) the judgment was final and conclusive, and for definite sums of money, and on the face of the orders was a judgment in personam; (b) it was common ground that the judgment debtors were not present when the proceedings were instituted, and did not submit to the jurisdiction, and so at first blush had an impregnable defence; (c) Cambridge Gas decided that the bankruptcy order with which it was concerned was neither in personam nor in rem, and its purpose was simply to establish a mechanism of collective execution against the property of the debtor by creditors whose rights were admitted or established: Pattni v Ali [2007] 2 AC 85, para 23; (d) bankruptcy was a collective proceeding to enforce rights and not to establish them: Cambridge Gas [2007] 1 AC 508, para 15; (e) the issue was whether avoidance proceedings which could only be brought by the representative of the bankrupt were to be characterised as part of the bankruptcy proceedings, ie part of the collective proceeding to enforce rights and not to establish them; (f) the adversary proceedings were part and parcel of the Chapter 11 proceedings; (g) the ordinary rules for enforcing foreign judgments in personam did not apply to bankruptcy proceedings; (h) avoidance mechanisms were integral to and central to the collective nature of bankruptcy and were not merely incidental procedural matters; (i) the process of collection of assets will include the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme: HIH [2008] 1 WLR 852, para 19; (j) the judgment of the US Bankruptcy Court was a judgment in, and for the purposes of, the collective enforcement regime of the insolvency proceedings, and was governed by the sui generis private international law rules relating to insolvency; (k) that was a desirable development of the common law founded on the principles of modified universalism, and did not require the court to enforce anything that it could not do, mutatis mutandis, in a domestic context; (l) there was a principle of private international law that bankruptcy should be unitary and universal, and there should be a unitary insolvency proceeding in the court of the bankrupts domicile which receives worldwide recognition and should apply universally to all the bankrupts assets; (m) there was a further principle that recognition carried with it the active assistance of the court which included assistance by doing whatever the English court could do in the case of a domestic insolvency; (n) there was no unfairness to the appellants in upholding the judgment because they were fully aware of the proceedings, and after taking advice chose not to participate: see [2011] Ch 133, paras 38, 41, 43, 45, 48, 50, 61 62 and 64. That seems to me to be a correct summary of the views of the Court of Appeal. I agree with those views subject to this comment on point (c). I am not sure that in Cambridge Gas the Privy Council decided that the bankruptcy order with which it was concerned was neither in personam nor in rem. It held that the purpose of the order was simply to establish a mechanism of collective execution against the property of the debtor by creditors whose rights were admitted or established. As discussed above, it may well have appreciated that it was also an order in rem. However that may be, I agree with Lord Collins at para 90 that, in short, the Court of Appeal accepted that the judgment sought to be enforced in the instant cases was an in personam judgment, but decided that the Dicey Rule did not apply to foreign judgments in avoidance proceedings because they were central to the collective enforcement regime in insolvency and were governed by special rules. I agree with the reasoning of the Court of Appeal. Put another way, the Dicey Rule should in my opinion be modified to include a fifth case in which a foreign court has jurisdiction to give a judgment in personam capable of enforcement or recognition as against the person against whom it is given. That fifth case would be if the judgment was given in avoidance proceedings as part of foreign bankruptcy proceedings which the foreign court had jurisdiction to entertain. I recognise that there are other ways of achieving such a result, as for example by an equivalent provision to the EC Insolvency Regulation: per Lord Collins at paras 99 101. I also recognise that it would be possible to adopt a more radical approach not limited to avoidance proceedings. However, so limited, I respectfully disagree with the view expressed by Lord Collins at para 128 that this development would not be an incremental development of existing principles but a radical departure from substantially settled law. For the reasons given in para 198, it would in essence be an application of the principle of modified universalism. It seems to me that in these days of global commerce, the step taken by the Court of Appeal was but a small step forward. Judgment debtors are protected by the principle that no order would be made if it were contrary to justice or United Kingdom public policy. Moreover, on the facts here, I can see no basis upon which the order made by the Court of Appeal would be either unjust or contrary to public policy. Finally, I do not think that that conclusion is undermined by any absence of reciprocity. For these reasons, I would dismiss the appeal in the Rubin case on the common law point. On all other issues I agree with the judgment of Lord Collins.	The two appeals concern whether, and if so, in what circumstances, an order or judgment of a foreign court in proceedings to set aside prior transactions, such as preferences or transactions at an undervalue (avoidance proceedings), will be recognised and enforced in England and Wales. The appeals also raise the question of whether enforcement may be effected through the international assistance provision of the UNCITRAL Model Law implemented by the Cross Border Insolvency Regulations 2006, which apply generally, or the assistance provisions of s.426 of the Insolvency Act 1986 (the Insolvency Act), which applies to a limited number of countries, including Australia. In Rubin a judgment of the US Federal Bankruptcy Court for the Southern District of New York in default of appearance for around US$10m in respect of fraudulent conveyances and transfer was enforced in England at common law. In New Cap, bound by the prior decision in Rubin, a default judgment of the New South Wales Supreme Court for about US$8m in respect of unfair preferences under Australian law was enforced under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (1933 Act) and, alternatively, pursuant to the Insolvency Act. In both appeals the parties against whom the judgments were made were neither present in the foreign country nor had they submitted to the jurisdiction. Since both judgments were in personam, the essential issue was whether the existing principles were applicable or whether the Court should adopt separate rules for judgments in personam in avoidance proceedings, where the judgments were central to the purposes of the insolvency proceedings or part of the mechanism of collective execution. The Supreme Court by a majority of 4:1 (Lord Clarke dissenting) allowed the appeal in Rubin holding that there should not be special rules for avoidance judgments but dismissed the appeal in New Cap on the ground that the Syndicate submitted to the jurisdiction of the Australian Court. Lord Collins gave the leading judgement. Broadly, under both the common law and the 1933 Act, a foreign court has jurisdiction to give a judgment in personam capable of recognition and enforcement against the person whom the judgment was given if the person (i) was present in the foreign court when proceedings were instituted; (ii) was a claimant, or counterclaimed, in the foreign proceedings; (iii) submitted to the jurisdiction of the foreign court by voluntarily appearing in the proceedings; or (iv) agreed to submit to the jurisdiction of the foreign court before the commencement of the proceedings. As a matter of policy, the Court did not agree that, in the interests of the universality of bankruptcy and similar procedures, there should be a more liberal rule for judgments given in foreign insolvency proceedings for the avoidance of transactions. [115] A different rule for avoidance proceedings would mean courts would have to develop two aspects of jurisdiction: a requisite nexus between the insolvency and the foreign court and a requisite nexus between the judgment debtor and the foreign court. [117] Such a change would not be an incremental development of existing principles but a radical departure from substantially settled law, and more suitable for the legislature than judicial innovation. The restricted scope of the existing rules reflects the fact that there is no expectation of reciprocity on the part of foreign countries. [128 29] Expanding the principal would also be detrimental to United Kingdom businesses without any corresponding benefit. [130] Nor would any serious injustice result from adhering to the traditional rule. There were several other avenues open to officeholders. Rubin, for example, could have been founded on proceedings by trustees in England for the benefit of creditors under an express trust, and avoidance claims by the liquidator of an Australian company may be the subject of a request by the Australian court under the Insolvency Act. [131] Lord Collins (with the agreement of Lord Walker and Lord Sumption) held that the earlier Privy Council decision in Cambridge Gas Transportation Corporation v Official Committee of Unsecured Creditors of Navigator Holdings plc [2007] 1 AC 508 was wrongly decided as there was no basis for the recognition of the US Bankruptcy order in the Isle of Mann in that case. [132] Whilst agreeing it was distinguishable, Lord Mance reserved judgment on whether it was wrongly decided. [178] As for enforcement under the Cross Border Insolvency Regulations 2006, there was nothing expressly or by implication in the UNICTRAL Model Law that applied to the recognition or enforcement of foreign judgments against third parties. [142 44] In relation to New Cap, Lord Collins concluded that the Syndicate had submitted to the jurisdiction of Australia having chosen to prove in New Caps Australian insolvency proceedings. It should not be allowed to benefit from the insolvency proceeding in this way without the burden of complying with orders made in that proceeding. [156 167] In these circumstances, the 1933 Act would apply to the Australian judgment and enforcement should be by way of registration under the 1933 Act rather than by the common law. In view of the conclusion that the Syndicate submitted to the Australian jurisdiction, the issue of enforcement under the Insolvency Act did not arise. However, Lord Collins expressed the opinion that the relevant subsections of the Insolvency Act were not concerned with enforcement of judgements having examined their construction and the statutory history. [152 154] Lord Clarke dissented on the Rubin appeal. He relied on the principle that avoidance orders made by a foreign courts in bankruptcy proceedings (personal or corporate), which the court has jurisdiction to entertain, were enforceable if it could fairly be said to have been made in personam or in rem. [193] It was possible to have a rem order incidental to bankruptcy proceedings but which is enforceable at common law, provided that the bankruptcy court has jurisdiction in the bankruptcy [195 6]. Avoidance orders are central to bankruptcy proceedings. To allow for their enforcement was in keeping with the principle of modified universalism requiring English courts, so far as is consistent with justice and UK public policy, to co operate with the courts in the country of the principal liquidation to ensure a companys assets are distributed to the creditors under a single system of distribution [199]. This would be worked out on a case by case basis depending on the facts of the particular case. [200 1]
Since 1986, there has been legislation in this country to meet the perceived need for an effective confiscation process to deter criminal activity, especially large scale fraud and drugs related activities, which are often of a cross border nature. This concern has, unsurprisingly, not been limited to this country, as is evidenced by Conventions such as the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime 1990. The aim of such legislation is to introduce a robust process of asset recovery into the legal system of the United Kingdom. The first statute in England and Wales with this aim was the Drug Trafficking Offences Act 1986 (which was replaced by the Drug Trafficking Act 1994), which was shortly followed by the more broadly targeted Part VI of the Criminal Justice Act 1988, which in turn was amended by the Proceeds of Crime Act 1995. The provisions of Part VI of the 1988 Act (as amended by the 1995 Act) and the 1994 Act were repealed and replaced by the fuller provisions of the Proceeds of Crime Act 2002, although the 1988 Act (like the 1994 Act) still applies to crimes committed before the 2002 Act came into force. These appeals are concerned only with post conviction confiscation orders. Different provisions apply to civil recovery independent of any criminal prosecution. The two instant appeals concern the proper approach for the court to adopt, and the proper orders for the court to make, in confiscation proceedings where a number of criminals (some of whom may not be before the court) have between them acquired property or money as a result of committing an offence for which all or only some of them have been convicted in the trial which led to the proceedings. An outline of the post conviction confiscation legislation The statutory exercise of asset recovery often starts before a defendant is convicted, through the medium of an order freezing all or some of his assets, but it is only after conviction that the extent of a defendants liability is finally assessed by the court. The role of the court at that point is to determine the recoverable amount from a convicted defendant and to make an order requiring him to pay it. The extent of a defendants liability for this sum is based on the value of the property which he obtained as a result of or in connection with the conduct which gave rise to the offence or offences of which he was convicted section 71(4) of the 1988 Act and section 76(4) and (7) of the 2002 Act. The 2002 Act has widened the potential liability of a defendant who has a criminal lifestyle. Such a defendant can be made liable for a recoverable amount which is based on the proceeds not merely of the criminal activity of which he has been convicted, but on the proceeds of his general criminal conduct see section 6(4) of the 2002 Act. A defendant has a criminal lifestyle if he falls within section 75 and Schedule 2. The conditions there set out include conviction of certain specified offences, such as money laundering and drugs or arms trafficking, conviction of a minimum number of other offences, and conviction of one or more offences committed over a specified period. In a case where a defendant has a criminal lifestyle, certain rebuttable assumptions are specifically required to be made against the defendant (eg as to the source of his wealth) by section 10 of the 2002 Act when assessing the recoverable amount. Seven years before the passing of the 2002 Act, a new provision, section 72AA, was added to the 1988 Act which had a rather similar purpose albeit a narrower scope. In order to determine the recoverable amount, the judge first has to assess the value of the property obtained by the defendant through the criminal activity in question. That figure is the greater of (a) the value of that property when it was obtained, adjusted for subsequent inflation, and (b) the current value of that property or of any property which has been substituted for it see sections 71(4) and 74(5) of the 1988 Act and sections 76(2) and 80(2) of the 2002 Act. Having arrived at that figure, the judge must assess the recoverable amount at that figure, save that sections 7(1), (2) and 9(1) of the 2002 Act provide that, if the defendant can show that it is more than the total value of his assets, the judge should assess the recoverable amount as that total value. The 1988 Act had similar provisions in sections 71(6) and 74(1) (3). Confiscation hearings can take a long time. In one of the two cases before us, the confiscation hearing lasted over four weeks. Article 6.1 of the European Convention on Human Rights (the Convention) applies to all aspects of such a hearing. However, article 6.2 of the Convention does not, as the hearing is treated as part of the sentencing process rather than part of the criminal trial see Phillips v United Kingdom [2001] Crim LR 817, (2001) 11 BHRC 280, paras 34 36. In that case, the Strasbourg court rejected the contention that a mandatory statutory assumption that payments received by a convicted drug dealer were derived from drug trafficking infringed the Convention, and referred to confiscation as a weapon in the fight against the scourge of drug trafficking para 52. In the subsequent case of Grayson v United Kingdom [2009] Crim LR 200, (2008) 48 EHRR 722, the Strasbourg court held that imposing a reverse burden of proof on a convicted defendant in relation to certain issues at the confiscation hearing also did not infringe the Convention see especially para 49. In R v Silcock and Levin [2004] EWCA Crim 408; [2004] 2 Cr App R (S) 61, para 60 and R v Clipston [2011] EWCA Crim 446; [2011] 2 Cr App R (S) 101, paras 57 60, the Court of Appeal, Criminal Division explained that the character of a confiscation hearing was more civil than criminal. Thus, the judge can decide issues on the balance of probabilities, compel the defendant to disclose documents, draw adverse inferences from the absence of evidence, and rely on hearsay evidence. In our view, this is plainly right, both as a matter of principle and in the light of section 71(7A) of the 1988 Act and section 6(7) of the 2002 Act. Once the recoverable amount is determined, the judge should make an order requiring the defendant to pay it within a period which (under section 75(1) of the 1988 Act) would be the same as for a fine, or (under section 11 of the 2002 Act) must be specified by the court but cannot exceed twelve months. If and to the extent that the recoverable amount is not paid, the defendant must serve a term of imprisonment in default, fixed by the judge by reference to section 139(4) of the Powers of the Criminal Courts (Sentencing) Act 2000 see section 75(2) of the 1988 Act and sections 35 39 of the 2002 Act. Serving that default term does not, however, remove the liability to pay see section 75(5A) of the 1988 Act and section 38(5) of the 2002 Act. Confiscation hearings may take place before sentencing, or can be and often are postponed, but the postponement should not be for a period of more than six months (under the 1988 Act) or two years (under the 2002 Act) from the date of the conviction unless there are exceptional circumstances see section 72A of the 1988 Act and section 14 of the 2002 Act. The facts giving rise to these two appeals In the first appeal, the appellants, Shakeel Ahmad and Syed Ahmed (the Ahmad defendants) were convicted by a jury of fraud and sentenced by His Honour Judge Alexander QC to seven years in prison. The fraud was a so called carousel fraud, which involves criminally misusing the collection system of Value Added Tax (VAT) to extract money from the revenue authorities. The Ahmad defendants had been the sole directors and shareholders of a company known as MST, which dealt in computer central processing units (CPUs), which were zero rated for VAT purposes on import to the United Kingdom. The fraud involved five companies in Ireland, which, in a total of 32 transactions during April 2002, purported to export large quantities of CPUs to five companies in the UK, each of whom was either a registered company which went missing or a genuine company the identity of which was hijacked by the fraudsters. The missing trader then ostensibly sold the goods to a company known as GW224, which then sold the goods on to MST. GW224 was a company interposed to make it more difficult for the authorities to identify the fraud. On paper, the missing trader sold the goods to GW224 at a loss enabling everyone else in the supply chain ostensibly to sell on at a profit. The missing trader issued a VAT invoice to GW224 enabling it to deduct the amount shown as input tax from the amount due from GW224 to HM Revenue and Customs (HMRC) in respect of output tax on the onwards sale to MST. MST then sold the goods on to an exporting company, for an amount which included VAT. The exporting company then exported the goods back to the company in Ireland which had originally sold the goods. In many cases the whole chain of transactions took place on the same day. No VAT was payable on the export. The exporting company however then reclaimed the VAT which it had paid to MST. The amount of the VAT which was fraudulently reclaimed by the exporting company was about 12.6m, which represented HMRCs loss as a result of the fraud. If the transactions had been genuine and there had been no missing trader then there would have been no loss to HMRC. After the Ahmad defendants had been convicted, there was a confiscation hearing, pursuant to the 1988 Act, which lasted some thirty days before Flaux J. In a full and careful judgment, he concluded that MST made a. Payments directly to one of the Irish companies, including the first payment made in order to prime the pump for the fraud; b. Payments to GW224 to prime the pump; and c. Payments to cashing up accounts: entities which allowed their (genuine) accounts to be used for converting the proceeds of the fraud into cash or to buy gold bullion. None of the cash or gold bullion could be traced. The judge found that the vast majority of MSTs trading over the relevant period was fraudulent and that the Ahmad defendants had used MST for the purpose of crime. He also held that they controlled its property, and that as between themselves they held everything in its name jointly and equally. There was no evidence as to the means by which the Ahmad defendants had extracted their gains from the fraud, nor was there any evidence as to the number of other participants in the fraud. The judge said that nothing which either of the Ahmad defendants said could be relied upon to be truthful. They had deliberately flouted the restraint order by disposing of frozen assets. They had advanced repeated false allegations against their own lawyers, which the judge described as outrageous. They had abused the proceedings by deliberate time wasting and irrelevance. Both Ahmad defendants, Flaux J said, were unscrupulous and deeply mendacious. The Ahmad defendants contended that they had obtained no benefit at all and that MST had merely acted as an intermediary for others. The judge rejected that evidence. He concluded that, for the purposes of the 1988 Act, the benefit obtained by MST was the benefit obtained by the Ahmad defendants jointly. He assessed that benefit at a very large figure for which the Crown no longer contends. The Court of Appeal determined that benefit to be the loss suffered by HMRC, namely 12.6m, which translated to 16.1m when adjusted for inflation. The judge rejected the defendants evidence that the available amount was less, and that was the recoverable amount specified payable by each of them in the confiscation orders made by the Court of Appeal. As Hooper LJ put it, in reliance on what Lord Bingham said in R v May [2008] UKHL 28; [2008] AC 1028, para 43, where a benefit is obtained jointly, each of the joint beneficiaries has obtained the whole of the benefit and may properly be ordered to pay a sum equivalent to the whole of it, unless the circumstances were such that such a decision would infringe article 1 of the first protocol to the Convention (A1P1) see [2012] EWCA Crim 391, [2012] 1 WLR 2335, para 21. The default prison terms set by the judge were upheld at ten years in each case. In the second appeal, the three appellants, Michael Fields, Mitesh Sanghani and Karamjit Sagoo (the Fields defendants), and a fourth man, Wasim Rajput, were found guilty by a jury of conspiracy to defraud over a period between January and June 2005. The Fields defendants were each sentenced to five years in prison, and Mr Rajput was imprisoned for thirty months. The fraud was said by the prosecution to involve two other men who were acquitted, and one other man as to whose guilt the jury was unable to agree. The Fields defendants were described by the trial judge, His Honour Judge Carr, as being at the heart of the fraud, and that it was a joint operation between them, whereas Mr Rajputs position was accepted by the judge as being more peripheral. The fraudulent conspiracy involved the use of a company called Mercury Distributions Ltd (MDL), whose published accounts for the years 2002/3 and 2003/4 falsely recorded that it had over 1m in fixed assets. It was appreciated that potential customers of MDL would be likely to check the accounts before committing themselves to doing business with it and granting credit. Premises were obtained by Mr Sagoo in February 2005, with the assistance of false trade references. From then on, MDL engaged in fraudulent trading, applying to buy goods or obtain services on credit, which resulted in credit checks which indicated that it was financially healthy. As a result, credit agreements were approved, and goods and services were supplied by around 35 businesses, but no payments were ever made and, at least for the most part, the goods disappeared. The Fields defendants were each instrumental in this fraudulent activity. Mr Rajput was much less closely involved. In the subsequent confiscation proceedings, which were described by Davis LJ as protracted, it appears that the evidence on behalf of the Fields defendants was attenuated and misleading. The judge found that the total benefit, in the form of goods and services supplied, arising from the conspiracy was about 1.4m, which had been acquired jointly by the Fields defendants. Having adjusted that figure upwards to about 1.6m to allow for inflation, the judge rejected the contention that this was more than the available amount, and decided (subject to an irrelevant point) that confiscation orders under the 2002 Act should be made against each of the Fields defendants for the whole of this amount (with a default period of imprisonment of seven years). As to Mr Rajput, he was found to have received 12,000 for his involvement, but only a nominal order was made against him because he established that he had no assets. The Court of Appeal upheld the confiscation orders made against the Fields defendants. In his judgment, Davis LJ rejected the contention that the defendants had beneficial interests limited to one third each of the 1.6m and held that it was right that each should be individually liable for the whole of that sum. He did so in the light of (i) authority, in particular the decision of the House of Lords in May, and (ii) on the grounds of strong policy objections to the court recognising beneficial interests inter se amongst those who had jointly obtained the whole of the relevant property. The court held that [s]ection 79(3) of the 2002 Act is to be taken as, generally speaking, extending to making allowance for lawfully subsisting prior interests of other persons: not to the asserted beneficial interests of co conspirators whose very criminality has caused the relevant property to be obtained jointly in the first place. see [2013] EWCA Crim 2042, [2014] 2 WLR 233, paras 36 46. The issues in these appeals In neither appeal do the appellant defendants challenge the quantification of the aggregate recoverable amount, (16.1m in the case of the Ahmad defendants and 1.6m in the case of the Fields defendants) or the finding that they obtained that amount jointly. What they do challenge is the decision of the Court of Appeal that each of the appellants should be separately liable for the whole of that amount. They contend that such an outcome is arbitrary and oppressive. However, the preferred approach of the two groups of appellants was different. For the Ahmad defendants, Mr Mitchell QC accepted that it was appropriate for each of the two appellants to be liable for 16.1m, but contended that their liability should be treated as joint and several in accordance with normal common law principles, so that they should be required to pay that sum between them. In other words, if, for instance, Mr Ahmad paid 12.6m, then both he and Mr Ahmed would then continue to be liable, but only for 3.5m, and if one or both (between them) then paid the 3.5m, there would be no further liability on either of them. Mr Owen QC, for the Fields defendants, raised a more fundamental challenge to the approach adopted by the Court of Appeal, and said that it was wrong for each of the Fields defendants to be liable for 1.6m. He argued that the courts below ought to have apportioned the benefit between the three Fields defendants, and therefore assessed their individual liability accordingly. Thus, subject to any liability being attributed to other persons, and subject to any reason to think that they should not be equally liable, the Fields defendants should each be liable for 533,333. The issue raised by these appeals can be encapsulated in the question: when a number of people (all or only some of whom are before the court) have been involved in the commission of a crime which resulted in property being acquired by them together, what is the proper approach for the court to adopt, and the proper orders for the court to make, in confiscation hearings? The resolution of the issue must depend on the interpretation of the relevant legislation, taking into account (i) previous case law (including a number of decisions, more than one at the highest level, which support the approach adopted by the Court of Appeal in the instant two cases), and (ii) the practical difficulties faced by any judge carrying out a confiscation hearing. The centrally relevant statutory provisions Although the language of the 1988 and 2002 Acts is not identical, there is no material difference between them for present purposes and it is convenient to consider that issue in the context of the 2002 Act, which now applies to the great majority of cases which come before the courts. The central provisions are sections 6 (making an order), 7 (recoverable amount), 9 (available amount), 76 (conduct and benefit), 79 and 80 (value) and 84 (property). Section 6(5) of the 2002 Act requires the court to decide on the recoverable amount, and to make a confiscation order in that sum. Section 7(1) provides that the recoverable amount is the defendants benefit from the conduct concerned. Section 7(2) states if the defendant shows that that benefit is more than the available amount, then the recoverable amount is the available amount. Section 9(1) explains that the available amount is the aggregate of all the free property available to the defendant at the time of the confiscation order, subject to any obligations which have priority (and property is free if it is not subject to certain forfeiture or deprivation orders sections 82 83). Section 76(4) of the 2002 Act provides that [a] person benefits from conduct if he obtains property as a result of or in connection with the conduct, and section 76(7) states that in such a case the persons benefit is the value of the property obtained. Section 79(1) provides that the value of any property held by a person at any time is to be determined in accordance with section 79(2), which states that that value is to be the market value at that time. Section 79(3) provides that if at that time another person holds an interest in the property its value, in relation to the person mentioned in subsection (1), is the market value of his interest at that time. Section 80(1) of the 2002 Act provides that the value of property obtained for the purpose of a confiscation order is its value at the time the court makes its decision, and section 80(2) provides that that value is to be the greater of (a) the value of the property (at the time the person obtained it), adjusted for inflation, and (b) the current value of the property. Section 80(4) states that the references to the value in section 80(2) are to the value found in accordance with section 79. Section 84(1) of the 2002 Act defines property in very wide terms, and it includes real or personal property, money, and intangible or incorporeal property. Section 84(2) contains some rules, which include in para (a) that, property is held by a person if he holds an interest in it, and in para (b) that property is obtained by a person if he obtains an interest in it. The only arguably relevant difference between the 1988 and 2002 Acts relates to the treatment of the definition of property. Whereas section 80(4) of the 2002 Act specifically applies to property when obtained as well as to property when held, section 74(4) of the 1988 Act only applies to property when held. However, particularly as property is held the moment it is obtained, it seems clear that, at least in relation to the issues raised on these appeals, the outcome is the same whichever statute applies. Accordingly, it is sensible simply to concentrate on the 2002 Act when discussing these appeals, but the observations which follow apply equally to the 1988 Act. Preliminary observations As Lord Bingham pointed out in May, 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. These are separate questions, and, although a degree of consistency of approach is required to all three questions and the answer to an earlier question will affect the answer to a subsequent question, the questions themselves should not be elided. When answering each question, the court must, of course, be guided by the 2002 Act. The 2002 Act has often been described as having been poorly drafted. That is a fair criticism, as can be illustrated by the problems which have had to be faced by the courts in a number of cases, some of which are referred to below. However, it is only fair to the drafters of the statute to record that the problems are partly explained by the difficulties inherent in the process of recovering the proceeds of crime from those convicted of offences. Those difficulties are at least threefold and are particularly acute when it comes to sophisticated crimes, such as large scale financial frauds, substantial illegal drug importing operations, and people trafficking, which involve many people, often in different countries. First, there are the practical impediments in the way of identifying, locating and recovering assets actually obtained through crime and then held by the criminals. The defendants will often, indeed normally, be as misleading and uninformative as they can, and the sophistications and occasional corruptions in the international financial community are such as to render the task of locating the proceeds of crime very hard, often impossible. Secondly, again owing to the reticence and dishonesty of the defendants, there will often be considerable, or even complete, uncertainty as to (i) the number, identity and role of the conspirators involved in the crime, and (ii) the quantum of the total proceeds of the crime, or how, when, and pursuant to what understanding or arrangement, the proceeds were, or were to be, distributed between the various conspirators. Thirdly, there will be obvious difficulties in applying established legal principles to the allocation of liability under the 2002 Act, 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. The present appeals provide good examples of these problems. That is particularly true of the first appeal which, not least thanks to the full judgment of Flaux J, graphically illustrates all three difficulties, as may be appreciated from the summary in paras 11 17 above. When faced with an issue of interpretation of the 2002 Act, the court must, of course, arrive at a conclusion based both on the words of the statute and on legal principles, but it is also very important to bear in mind the overall aim of the statute, the need for practicality, and Convention rights. The overall aim of the statute is 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. Practicality involves ensuring that, so far as is consistent with the wording of the statute and other legal principles, the recovery process, both in terms of any hearing and in terms of physically locating and confiscating the assets in question, is as simple, as predictable, and as effective, as possible. Defendants are entitled to their Convention rights, in particular to a fair trial under article 6 and are only to be deprived of assets in accordance with A1P1. It is also important to bear in mind that the issues raised on these appeals have been considered by the House of Lords, the Supreme Court, and the Court of Appeal on a number of occasions. In a trio of decisions, Lord Bingham, with whom the other Law Lords agreed, gave general guidance as to the application of the 1988 Act and confiscation provisions of the Drug Trafficking Act 1994 see May, Jennings v Crown Prosecution Service [2008] UKHL 29; [2008] AC 1046 and R v Green [2008] UKHL 30; [2008] AC 1053. Also, in R v Waya [2012] UKHL 51; [2013] 1 AC 294, Lord Walker and Hughes LJ, speaking for the majority of the Supreme Court, considered aspects of the 2002 Act in some detail, and approved some decisions of the Court of Appeal concerned with valuation of obtained property, in particular R v Rose [2008] 1 WLR 2113; [2008] EWCA Crim 239; and R v Ascroft [2003] EWCA Crim 2365; [2004] 1 Cr App R (S) 326. R v Mackle [2014] UKSC 5; [2014] 2 WLR 267 was another decision of this Court concerned with the 2002 Act, and in the course of his judgment, Lord Kerr, with whom the other Justices agreed, approved the approach adopted by the Court of Appeal in cases which had provided further guidance to judges hearing confiscation claims, including R v Sivaraman [2008] EWCA Crim 1736; [2009] 1 Cr App R (S) 464 and R v Allpress [2009] EWCA Crim 8; [2009] 2 Cr App R (S) 399. It would be wrong to depart from the guidance given in these cases unless it was shown that they were plainly wrong or unless it was established that they had led to problems for courts making confiscation orders. Adherence to previous guidance from this court is mandated by the need to ensure that the law is clear and predictable as well as by the doctrine of precedent. These factors are particularly appropriate in the present circumstances, because, as mentioned, the 2002 Act and its statutory predecessors have given rise to considerable difficulties in terms of both hearings and subsequent enforcement. It has not been suggested that those difficulties have been caused or aggravated by the guidance given in the cases referred to in the preceding paragraph, and there is therefore a real risk that any departure from that guidance would serve to confuse an already inherently difficult procedure. The first question: has the defendant benefited? Section 76(4) of the 2002 Act provides that a person benefits from conduct if he obtains property as a result of or in connection with the conduct. In Jennings, para 12, Lord Bingham agreed with Laws LJ in the Court of Appeal that the essence of benefit in that phrase is given by the word obtains. Thus, one is concerned with what the particular defendant obtained, which is by no means necessarily the same as the totality of what was obtained by the criminal enterprise of which he was a party. Lord Bingham explained that obtain in this context must ordinarily mean that a defendant has obtained property so as to own it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else see Jennings, para 13 and May, para 48(6). At least in a technical, legal, sense, there are two problems with this analysis. The first involves a generally applicable point; the second applies in cases such as the present ones, where the facts are complex and there are several conspirators involved. Whilst a criminal may sometimes become the owner of property obtained through crime, in many cases he does not do so. When a person obtains a chattel, money, a credit balance or land through criminal dishonesty, he does not acquire title to, or ownership of, the item in question, although he does acquire control over it. As was pointed out by Lord Walker and Hughes LJ in Waya, para 68 a person who dishonestly obtains property has at most a possessory interest good against third parties, and thus of no significant value. When Lord Bingham spoke of obtaining something so as to own it he was doing so in the context of contrasting the position of someone who unlawfully assumes the rights of an owner (ie a power of disposition or control) with the position of a mere courier or custodian of stolen property see May at para 48(6). In Allpress at para 64 the Court of Appeal helpfully interpolated the words assumes the rights of an owner to make this clear. Unless a joint obtaining is understood in this sense, then the concept of joint ownership is difficult to marry up with the facts of most cases of financial fraud or drug importation, involving many conspirators. Lawful joint owners enjoy unity of possession, which means that each co owner is entitled to possession of the whole of the asset, unity of interest, which means that each co owner is entitled to an equal interest as against the other co owners, and unity of time, which means that each co owner acquired his interest at the same time. Joint ownership is a legal fiction. Bracton fo 430 (ed Woodbine, vol 4, 336) states that each joint owner totum tenet et nihil tenet (holds everything and holds nothing). More recently, Lord Nicholls of Birkenhead referred to the notion of each joint owner owning the whole asset as an esoteric concept remote from the realities of modern life Burton v Camden London Borough Council [2000] 2 AC 399, 404. In addition to joint ownership, the law also recognises ownership in common. Owners in common also enjoy unity of possession, but do not need to have unity of interest or of time, so they can have different interests, as between each other. Such considerations are inapposite in relation to criminals with no rights of ownership in the property obtained. Insofar as technical English property law concepts are concerned, it may be more accurate to refer to several conspirators acquiring possession in common of any asset or money, rather than jointly owning the asset or money. However, rather than invoking English property law concepts, it is more appropriate to treat such conspirators as obtaining the asset or money together, which has the same meaning as jointly, provided that the latter word is understood in its ordinary English, and not its technical, legal sense. Obtain is the statutory word, and joint reflects the criminal enterprise. While some aspects of English property law in connection with ownership may be esoteric, there is nothing remote from daily life about two burglars jointly (ie together) obtaining a television. The burglars do not become the owners of the television, and the argument about them being joint owners or owners in common proceeds on a wrong premise. Each burglar has usurped the rights of the owner. The basic point made by Lord Bingham, and discussed in paras 41 42 above, therefore appears to us to be, to put it at its lowest, sustainable, given the statutory language, which is not concerned with ownership but with obtaining. As just demonstrated, it is perfectly acceptable, as a matter of ordinary language, to describe the people involved in a criminal joint enterprise which results in the obtaining of a chattel, cash, a credit balance or land, as having jointly obtained the item concerned, in the sense of having obtained it between them. The fact that the item may have been physically taken or acquired by, or held in the name of, one of them does not undermine the conclusion that they jointly obtained it. The word obtain should be given a broad, normal meaning, and the non statutory word joint, referred to by Lord Bingham in May, paras 17 and 27 34, should be understood in the same non technical way. Accordingly, where property is obtained as a result of a joint criminal enterprise, it will often be appropriate for a court to hold that each of the conspirators obtained the whole of that property. That is the view expressed in May, para 48(6), first sentence (although the word owns is probably inappropriate), in Green, para 15, and in Allpress, para 31 (as quoted and approved in Mackle, para 65). However, that will by no means be the correct conclusion in every such case. As was said in Sivaraman, para 12 (6) and in Allpress, paras 30 31 (and approved in Mackle, paras 64 65), when a defendant has been convicted of an offence which involved several conspirators, and resulted in the obtaining of property, the court has to decide on the basis of the evidence, often relying on common sense inferences, whether the defendant in question obtained the property in the sense of assuming the rights of an owner over it, either because he received it or because he was to have some sort of share in it or its proceeds, and, in that connection, the role of a particular conspirator may be relevant as a matter of fact, but that is a purely evidential matter. In some cases, one or more of the conspirators may be able to show that he was only involved to a limited extent, so that he did not in any way obtain the property which was obtained as a result of the crime. Examples include acting as a paid hand in the enterprise eg an intermediary, a courier or a drugs mule (as considered in May, paras 15 and 17, and in Allpress, paras 80 82) or a latecomer to a conspiracy in which nothing was obtained after his arrival (as discussed in May, para 19). It is clear from May at paragraph 34 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 (any more than it can be affected by his payment out of the expenses of his criminal venture). However, 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. An example might be several obtainings by different criminals using a common form of deception which they have agreed to use, but several obtainings are not limited to such a case. Lord Bingham recognised in May at para 32 that there could be such cases, albeit that R v Gibbons [2002] EWCA Crim 3161; [2003] 2 Cr App R (S) 169 (there referred to) was in fact a case in which the Court of Appeal did no more than uphold an order for 18,000, much less than an equal share of the whole, on the basis that the defendant could not have obtained less. There has sometimes been a tendency to equiparate joint involvement in the crime with joint ownership of the fruits of the crime. But the fact that the defendants were jointly responsible for the crime in question does not automatically justify a conclusion that they jointly obtained the resulting property, a point well made by the Court of Appeal in Allpress, para 31. The tendency to conclude that property is jointly obtained by criminals may also be attributable to the fact that it is often difficult to determine how the asset(s) obtained has, or have, been distributed between the defendants. Judges in confiscation proceedings should be ready to investigate and make findings as to whether there were separate obtainings. Sometimes of course this is too difficult or impossible. In many cases the court will not have before it all the conspirators for a variety of reasons. The indictment may well name other conspirators (as well as including the usual phrase and other persons unknown). A court should never make a finding that there has been joint obtaining from convenience, or worse from laziness. Where the evidence supports a finding that the asset acquired from a crime was obtained effectively on a several basis, the judge should make it, but there are cases in which a finding of joint obtaining is the proper, indeed the only available finding, especially but not only where an inference or presumption that the defendants before the court were the only joint obtainers would be contrary to the probabilities. In the two cases before the Court, all that is known with any degree of confidence is that there was a fraud, the defendants played a major part in it, and the fraud resulted in a sum of money being obtained. Certainly in the first appeal, there were others closely involved in the crime, but it is not clear how many or who they were. There is no reliable evidence as to whether any particular person involved in the fraud received any particular portion of, or had any particular interest in or share of, the money obtained by the fraud. In these circumstances, it was fully open to Flaux J to decide that the proceeds of the criminal activity, the property, had been obtained by the conspirators, or at least all the principal conspirators, who included the defendants before him. Indeed, on the basis of the primary facts as we understand them, in each case, it is hard to see how he could have come to any other conclusion. Although the argument of Mr Owen QC does not overtly challenge the finding that the Fields defendants jointly obtained property to the value of 1.4m, it comes close to doing so and thus it applies to the first question, as well as to the second question, which is the question to which it principally applies. The argument is best examined by reference to the Ahmad defendants, in the light of the fact that Flaux J gave a much fuller judgment in the confiscation proceedings involving the Ahmad defendants than was given in the proceedings involving the Fields defendants. The argument can be analysed as amounting to a contention that Flaux J should have apportioned the 12.6m equally between the two Ahmad defendants, to justify the conclusion that the property each of them obtained under the 2002 Act was half the total sum acquired. The argument has its attractions. It can be said to accord with the presumption that, where two people lawfully own property jointly the beneficial interest belongs to the[m] in equal shares per Lord Diplock in Gissing v Gissing [1971] AC 886, 908. It also would avoid the risk of double recovery or unfair recovery. However, we would reject the argument. First, to accept that argument would involve a reversal of the law as laid down by the House of Lords six years ago, and affirmed by this Court recently. In Green the question certified by the Court of Appeal was: Where any payment or other reward in connection with drug trafficking is received jointly by two or more persons acting as principals to a drug trafficking offence does the value of each persons proceeds of drug traffickinginclude the whole of the value of such payment or reward ? The House of Lords held that the correct answer was yes. In his judgment Lord Bingham expressly approved at para 15 a passage in the judgment of Court of Appeal in which David Clarke J said: we consider that where money or property is received by one defendant on behalf of several defendants jointly, each defendant is to be regarded as having received the whole of it for the purposes of section 2(2) of the Act [Drug Trafficking Act 1994]. It does not matter that proceeds of sale may have been received by one conspirator who retains his share before passing on the remainder; what matters is the capacity in which he received them. The provisions of the statute there in question were similar to section 79(2) and (3) of the 2002 Act. Mr Owens argument in this case is essentially a re run of his argument in that case, which the House rejected. Secondly, as we have sought to explain, cases under the 2002 Act involve obtaining not ownership, and, even if they did, we are doubtful whether the ownership would be technically joint. Thirdly, Mr Owens approach would render the prospect of full recovery even more unlikely than it already is. That is because, in many multi party sophisticated crimes, it is unusual to have all the conspirators before the court, the defendants who are before the court will say that the other conspirators received all the property, and frequently many of those other conspirators will never be apprehended. Fourthly, for similar reasons, it would render the task of a judge at a confiscation hearing more difficult than it already is, and would make it correspondingly easier for an unscrupulous defendant (and most defendants in these cases appear, unsurprisingly, to be unscrupulous) to seek to avoid, or at least to minimise, his liability. In many cases it is often completely unclear how many people were involved in the crime, what their roles were, and where the money went. As a result, if the court could not proceed on the basis that the conspirators should be treated as having acquired the proceeds of the crime together, so that each of them obtained the property, it would often be impossible to decide what part of the proceeds had been obtained by any or all of the defendants. There is obvious cause for concern about having to inquire into the financial dealings between criminals who have together obtained property, especially given that the ringleaders are often not even before the court. It is one thing for the court to have to decide whether a defendant obtained any property, which the 2002 Act requires. It is another thing for the court to have to adjudicate on the respective shares of benefit jointly obtained, which the Act does not appear to require. The first appeal provides a good example of the problems which a court would face if Mr Owens approach was adopted. It is possible that the whole profit of 12.6m had passed through the hands of the two Ahmad defendants. That is unlikely, for it was paid out by HMRC to the exporting company, which could be expected to retain at least something. However, even if the whole of the 12.6m did pass through the Ahmad defendants hands, it is much more likely than not that some of it was distributed to the others who were involved, who may have been either few or numerous. The assumption that the two Ahmad defendants retained the whole of the gains between them is therefore rebutted on the balance of probabilities. But there is no material on which to judge how much was either retained by others en route to them, or distributed to others by them. Nor is there any material on which to judge whether some or all of the others were fee paid assistants (as in Allpress), or full accomplices sharing in the profits, and if the latter, in what proportions. An assumption that accomplices shared the profits equally is of no help if one cannot know how many of them there were. Thus, unless the judge could treat each of the Ahmad defendants as having obtained the whole of the 12.6m, he would either have had to make findings which have no proper basis in evidence, or he would have been unable to attribute the obtaining of any specific sum to either defendant. Fifthly, as for the risk of double recovery, it can be avoided for the reasons given in this judgment, when considering the third question. Sixthly, and more specifically to the first appeal, it would be logically incoherent to hold the two Ahmad defendants each liable for half of the property simply on the basis that it would be oppressive for each to be liable for the whole. If an argument based on oppression were right, then no order could be made unless the number of participants and the role of every participant in the fraud could be ascertained. Finally, it may be that, if the Ahmad defendants had been frank rather than dishonest in their evidence, they could have shown that the facts justified a conclusion that the property which MST obtained was limited to the share of the 12.6m which it actually received, and/or that their individual liabilities should each be held to be for a sum equal to half the property obtained by MST. (It is only right to add that it may well be that, even if they had been honest with the court, the facts would not have justified such a conclusion.) As it was, given the complete absence of any assistance from the Ahmad defendants (indeed, what they said was positively misleading), the judge had no alternative to falling back on the natural conclusion that, through the vehicle of MST, they had been major participants in the carousel fraud, and had therefore obtained the whole 12.6m, albeit together with the other participants (only some of whom could be identified). The second question: what is the value of the benefit? In a case such as the present ones, where the court has concluded that a defendant has obtained property together with others, the question which arises is how to value the property which he has obtained. It is clear from section 79(1) and (2) that it has to be the market value. The argument for apportioned valuation is that, although section 84(2)(b) contains an injunction to assume that each defendant has obtained the whole property, section 79(3) requires the valuation of the property to take into account the interests of accomplices. This is essentially the same argument, which we have rejected above when addressing the question of what has been obtained. The argument misunderstands the purpose and effect of section 79(3). A defendant who steals property or obtains it by deception does not, as explained above, acquire ownership of that property. In answering the second question, in such a case (ie putting a figure on the benefit which the thief has obtained) the court takes the market value of the goods, but not because this represents the value of the thiefs legal interest in the goods, which would be nil. As explained in Rose, approved in Waya, the court takes the market value of the property because that is the value of what the thief has misappropriated, viz what it would cost anyone to acquire it on the open market. (If the 2002 Act required the court to value the thiefs interest in the misappropriated property, section 79(3) would require it to take into account any other persons interest, which would include the owner, but that was precisely the argument which the court rejected because it would make a nonsense of the statute.) Likewise if two defendants jointly misappropriate property, neither of them obtains a legal interest in it and neither has an interest for the purpose of section 79(3). In relation to each of them, the value is the value of what they have taken, viz the market value of the misappropriated property. Thus, once a defendant has obtained the property, whether solely or jointly, that market value is the value of what he has obtained. The current effect of the authorities is that the interests of accomplices are not to be taken into account for the purposes of section 79(3) ie that they are not to be treated as interest[s] for this purpose. That is clear from Lord Binghams judgment in May, and in particular his critique of earlier cases in paras 27 29 and 31, his conclusion in para 46, and his concluding remark in para 48(6), as well as from the actual decision in Green especially paras 15 and 16. It is also part of the reasoning of this Court in Waya, (unanimous on this point) where Lord Walker and Hughes LJ, having discussed section 84(2)(b), went on to say, at para 68, that the effect of section 79(3) is that lawfully co existing interests in property are to be valued individually. In the light of that observation, it seems clear that the interests of a defendants co conspirators are not to be taken into account when valuing the property for the purpose of assessing the value of the property which the defendant obtained. Furthermore, as explained in paras 47 50 above, when one is valuing the property which a conspirator, including a defendant, has obtained, one is not normally valuing an interest at all. Even more recently, the Supreme Court effectively confirmed the correctness of this approach when, in Mackle, paras 64 65, Lord Kerr approved the Court of Appeals decision in Allpress to follow its earlier decision in Sivaraman, where the decision and reasoning of the House of Lords in Green had been correctly analysed and applied. This approach is soundly based in principle. At the first question stage (what has been obtained) it may be necessary to examine the dealings of the criminals inter se, to the extent of determining whether a particular defendant has obtained anything at all (Allpress) or to decide whether any obtainings were joint or several. However, once it has been determined that a particular defendant obtained property, whether alone or jointly, the answer to the second question is that the value of that property is its market value. The court should not be called upon to investigate unlawful claims (which do not amount to rights) as between accomplices. Accordingly, it seems to us that, at least on the basis of the approach adopted by the House of Lords in May and Green and by this Court in Waya, there is force in the view that recognis[ing] a trust in these criminal circumstances would tend to run entirely counter to the statutory aim, as Davis LJ put it in his judgment in the Fields case [2013] EWCA Crim 2042, [2014] 2 WLR 233, para 36, reflecting comments from other judges in earlier cases. This point is reinforced by the view expressed in Waya, para 21, where Lord Walker and Hughes LJ described the confiscation system as a severe regime which was intended to have a deterrent effect on at least some would be criminals, although they added that the legislations deterrent qualities are, no doubt, an incident of it, but they are not its essence. Although, in paras 53 59 above, we have considered Mr Owens argument in relation to the first question, it truly belongs in the second question. Having determined that each of the Ahmad defendants obtained the whole of the 12.6m, the argument is that the valuation exercise requires each of the appellants to be treated as having acquired an interest equal in value to half the 12.6m. As in relation to the first question, that argument has the attraction of being consistent with the ordinary cases of beneficial joint ownership, but it would have to be very persuasive before we were justified in departing from this clear and consistent approach in relation to the second question. Essentially for the reasons given above, we would reject Mr Owens argument in relation to the second question. The inappropriateness of adopting an approach which a court would consider appropriate for the rights and obligations of joint creditors and debtors is reinforced when one considers the so called Highwaymans Case of 1725, Everet v Williams, noted at (1893) 9 LQR 106. That case shows that the courts powers cannot be invoked in connection with a criminal exercise in that case to accord discovery, an account and other relief in connection with a partnership between two highwaymen. The position of joint obtainers under the 2002 Act inter se is very different from that of two lawful joint owners or joint debtors, and it is unsurprising if their rights and obligations under the 2002 Act do not follow those of such owners and debtors. Mr Owen pointed out that the valuation provisions of the 2002 Act apply both to the assessment of the value of the benefit obtained (the second question) and the assessment of the available amount (the third question), and suggested that it could not be right that the same sum in respect of the same property should be included in the amount assessed as available to each of two (or more) defendants because the same amount could not be realised from each of them. Accordingly, he said, the same sum could not be attributed to the value of benefit obtained by two defendants in relation the second question. We do not accept that the same amount may not be available to each of them at the time when the court is deciding the third question. If money is held in a joint bank account on which each defendant has a mandate to draw, it is at that stage available to each of them. A new situation will arise if and when one of them draws the money to meet the confiscation order, but that raises a different point. For those reasons, on the second question, we would reject the argument of Mr Owen and would adhere to the principles established in May, Green, Waya and Mackle, and the decisions of the Court of Appeal which they approved. In the first appeal, it therefore follows that the Court of Appeal was right to conclude that each of the Ahmad defendants obtained 16.1m (after adjusting for inflation) as property, and that that was the value of their benefit. In the second appeal, as Davis LJ noted, there was no appeal against the judges finding that the Fields defendants jointly obtained a benefit worth 1.6m (after adjusting for inflation), and in those circumstances, it follows from the above discussion, that he was right to hold that the benefit to be valued in respect of each defendant was the whole amount of the property obtained. Reflecting what is said in paras 50 51 above, it may be that this was a case where the court concluded too readily that there has been a joint obtaining where the better view may have been that the defendants have obtained different property. However, that question does not arise on these appeals. The third question: what is the sum payable? Mr Mitchell, on behalf of the Ahmad defendants, did not challenge the propriety of the finding that they had each benefited in the amount of the property jointly obtained by them, but he submitted, in reliance on A1P1, that any payment of an amount under the confiscation order by one of them should reduce or extinguish the amount payable by the other, and that the order should contain a proviso to that effect. The argument in support of his submission is simple. It is true, as has been said many times, that the legislation is directed towards the proceeds and not the profits of crime, but it would not serve the legitimate aim of the legislation and would be disproportionate for the state to take the same proceeds twice over. This Court has considered the provisions of A1P1 in the context of the 2002 Act in two recent cases: Waya and in Barnes v Eastenders Cash & Carry plc [2014] UKSC 26, [2014] 2 WLR 1269. In Waya, paras 11 13, Lord Walker and Hughes LJ summarised the requirements of A1P1 and section 3 of the Human Rights Act 1998. In Barnes, paras 53ff, Lord Toulson reviewed the Strasbourg jurisprudence. It is unnecessary to repeat the summary or the analysis in this case; the general principles are well understood. In our view Mr Mitchells argument is as compelling as it is simple. To 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. The 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. The appropriate way of avoiding such a violation would be, as Mr Mitchell has submitted, for the confiscation order made against each defendant to be subject to a condition which would prevent that occurrence. This approach may appear to risk producing inequity between criminal conspirators, on the basis that some of them may well obtain a windfall because the amount of the confiscation order will be paid by another. However, that is an inherent feature of joint criminality. If the victim of a fraud were to sue the conspirators and to obtain judgments against them, he would be entitled to enforce against whichever defendant he most easily could. The losses must lie where they fall, and there is nothing surprising, let alone wrong, in the criminal courts adopting that approach. Accordingly, where a finding of joint obtaining is made, whether against a single defendant or more than one, the confiscation order should be made for the whole value of the benefit thus obtained, but should provide that it is not to be enforced to the extent that a sum has been recovered by way of satisfaction of another confiscation order made in relation to the same joint benefit. A subsequent confiscation order made against a later tried defendant in relation to the same benefit may well be such an order. In theory a court might therefore need to consider whether to stay the enforcement of a confiscation order made against one or more defendants to await the outcome of a later criminal trial against other defendants in respect of the same criminal conspiracy. However, except perhaps when a second trial is imminent this would not normally be appropriate bearing in mind the purpose of the 2002 Act and the statutory stipulation for a speedy hearing (see para 10 above). Orders made on the basis of lifestyle assumptions will require special consideration on their facts. This conclusion is in line with the outcome in the case of R v Gangar [2012] EWCA Crim 1378; [2013] 1 WLR 147, although it is based on slightly different reasoning. In that case, the Court of Appeal held that, when assessing the available amount the court must recognise that the same asset cannot be sold and converted to cash twice. Once the solution now propounded is adopted, the confiscation order will be for the full amount obtained by the conspirators against each defendant, but its enforcement more than once will be prevented. Unlike the arguments raised by Mr Owen on behalf of the Fields defendants, this argument raised by Mr Mitchell on behalf of the Ahmad defendants does not involve calling into question any decision made or guidance given by the House of Lords or the Supreme Court. It simply involves qualifying the effect of the orders which would follow from those decisions in a way which, while not contemplated in any of the judgments, is not inconsistent with anything said in them, and on a basis which was not considered, let alone rejected, in them. We should mention that, before this judgment was handed down, our attention was drawn to the recent judgment of the Strasbourg court in Paulet v United Kingdom (Application No 6219/08) (unreported) 13 May 2014, where a violation of A1P1 was found in relation to a confiscation order. Nothing in that judgment causes us to reconsider our conclusion in these cases. Conclusion In these circumstances, we would allow the appeals by both the Ahmad defendants and by the Fields defendants, but only to the extent of directing that the confiscation order in respect of each defendant be amended along the lines indicated in the first sentence of para 74 above.	These appeals concern the proper approach for the court to adopt, and the proper orders for the court to make, in confiscation proceedings where a number of criminals, some of whom may not be before the court, have between them acquired property or money as a result of committing an offence for which all or some of them have been convicted in the trial which led to the proceedings. In the first appeal, the appellants, Shakeel Ahmad and Syed Ahmed (the Ahmad defendants) were convicted of a carousel fraud (which involves criminally misusing the collection system of VAT to extract money from the revenue authorities) and sentenced to seven years in prison. The Ahmad defendants had been the sole directors and shareholders of a company, MST, which was registered for VAT. MST participated in 32 circular transactions by which goods were purportedly sold, and later bought back by, companies in Ireland in circumstances which resulted in 12.6 million being fraudulently reclaimed from HMRC. After a confiscation hearing, Flaux J concluded that, for the purposes of the Criminal Justice Act 1988 (the 1988 Act), the benefit obtained by MST was the benefit obtained by the Ahmad defendants jointly. (While the 1988 Act has been repealed and replaced by the Proceeds of Crime Act 2002 (the 2002 Act), the 1988 Act still applies to crimes committed before the 2002 Act came into force). The Court of Appeal determined that the benefit jointly obtained by the Ahmad defendants was the loss suffered by HMRC, uplifted to 16.1m to adjust for inflation, and that each of the Ahmad defendants was liable for the whole of this amount. In the second appeal, the three appellants, Michael Fields, Mitesh Sanghani and Karamjit Sagoo (the Fields defendants), and a fourth man, Wasim Rajput, were found guilty by a jury of conspiracy to defraud. The Fields defendants were each sentenced to five years in prison. The fraudulent conspiracy involved the use of a company, MDL, whose published accounts falsely recorded that it had over 1m in fixed assets in order to secure credit agreements to buy goods or obtain services. MDL made no payments under these agreements, and the majority of the goods disappeared. In the subsequent confiscation proceedings HH Judge Carr found that the total benefit arising from the conspiracy was about 1.4m, which had been acquired jointly by the Fields defendants. This figure was adjusted upwards to about 1.6m to allow for inflation and the judge made confiscation orders under the 2002 Act against each of the Fields defendants for the whole of this amount. The subsequent appeal to the Court of Appeal was unsuccessful. The Ahmad defendants and the Fields defendants now appeal to this court. They do not challenge the quantification of the aggregate recoverable amount, or the finding that they obtained that amount jointly. What they challenge is the decision of the Court of Appeal that each of the appellants should be separately liable for the whole of that amount. The Supreme Court unanimously allows the appeal in part. Lord Neuberger, Lord Hughes and Lord Toulson, with whom Lord Sumption and Lord Reed agree, give the judgment. The confiscation orders made in respect of each defendant should be amended to provide that they can be enforced only to the extent that the same sum has not been recovered through another confiscation order made in relation to the same joint benefit. However, the orders should not be amended to apportion the benefit between the respective defendants. Although the language of the 1988 and 2002 Acts is not identical, there is no material difference between them for present purposes [28]. 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 the benefit; and the third question is what sum is recoverable from the defendant [34]. The first question: has the defendant benefited? Section 76(4) of the 2002 Act provides that a person benefits from conduct if he obtains property as a result or in connection with the conduct. As Lord Bingham held in Jennings v Crown Prosecution Service [2008] AC 1046 and R v May [2008] AC 1028, the essence of benefit in that phrase is given by the word obtains, which in this context should be given a broad, normal meaning connoting a power of disposition or control rather than ownership [41 45]. In many cases it is unclear how many people were involved in the crime, what their roles were, and where the money went. As a result, if the court could not proceed on the basis that the conspirators should be treated as having acquired the proceeds of the crime together, so that each of them obtained the property, it would often be impossible to decide what part of the proceeds had been obtained by any or all of the defendants. It is one thing for the court to have to decide whether a defendant obtained any property, which is required by the 2002 Act. It is another for the court to have to adjudicate on the respective shares of benefit jointly obtained, which is not required [56]. Where property is obtained as a result of a joint criminal exercise, it will often be appropriate for a court to hold that each of the conspirators obtained the whole of that property. However, where the evidence discloses separate obtainings, the judge should make that finding [46 51]. The second question: what is the value of the benefit? A defendant who steals property or obtains it by deception does not acquire ownership of that property. When valuing the benefit the court takes the market value of the property obtained, not because this represents the value of the thiefs legal interest in the goods, but because that is the value of what the thief has misappropriated [61]. The third question: what is the sum payable? To take the same proceeds twice over would not serve the legitimate aim of the 2002 Act and, even if that were not so, it would be disproportionate. The enforcement of an order for the confiscation of proceeds of crime that have already been paid to the state would violate Article 1 of the First Protocol the European Convention on Human Rights, which protects the right to property [71].
From time to time over many years the Secretary of State for the Home Department has been concerned to deport a foreign national on the grounds of national security. Sometimes, indeed with increasing frequency, those facing such deportation decisions have wished to contest them, either by challenging that they present a national security risk, or by invoking the European Convention on Human Rights and contending that they would be at risk of article 3 ill treatment if returned to their home country. To enable such cases to be properly heard, Parliament, by the Special Immigration Appeals Commission Act 1997 (the 1997 Act) established SIAC and, as will be very familiar to all with any interest in this area of the law, provided for an appeal system which allows where necessary for closed material procedures and the appointment of special advocates. All this has been rehearsed time and again in a succession of judgments not least, indeed, in paras 4 15 of the judgment below and no useful purpose would be served by my repeating it all here. Put very shortly, if the Secretary of State wishes to adduce evidence which, for reasons of national security or other sufficient public interest reasons, cannot safely be communicated to the appellant, SIACs rules and procedures provide for this to be done just how satisfactorily being a matter of continuing debate into which, happily, there is on this appeal no need to enter. The difficulty raised by the present case is a very different one and, it should be recognised at once, one that faces the court with what can only be regarded as the most unpalatable of choices. It is lesser evils which the court is searching for here, not perfect solutions. The difficulty and dilemma now before us can most easily be illustrated by my immediately sketching out a notional set of facts. Suppose that an appellant before SIAC (A) is a suspected terrorist whom it is proposed to return to Algeria. Such, indeed, is the position of each of the appellants now before us. Suppose this, too, is no mere supposition; it has been common ground before SIAC in a number of cases that Algeria is a country where torture is systematically practised by the DRS (Information and Security Department) and that no DRS officer has ever been prosecuted for it; and that: in the absence of [certain assurances from the Algerian Government] there would be a real risk that on his return to Algeria A (and persons in a similar position) would be tortured or subject to other ill treatment (SIACs judgment of 8 February 2007 in G v Secretary of State for the Home Department: Appeal No SC/02/05 G being one of the appellants now before us). Suppose that the Algerian authorities are hostile to any independent scrutiny of their actions in the human rights sphere: human rights organisations such as Amnesty and Human Rights Watch are not permitted to operate there; even the International Red Cross is denied access to DRS facilities. And suppose, as is also here the case, that the Secretary of State obtains assurances from the Algerian Government that As rights will be respected on return, the value of these assurances being the principal question at issue on As SIAC appeal. Suppose, then, that A wishes to adduce evidence from someone with inside knowledge of the position in Algeria asserting that, notwithstanding the Algerian Governments official assurances, those in As position on return to Algeria are in fact likely to be subject to torture or other article 3 ill treatment. Perhaps this prospective witness (W) was himself ill treated on return. Perhaps W is a whistleblower working within the Algerian prison service: an official or an interrogator or a medical practitioner. Perhaps he is a journalist or other outsider who has obtained particular information as to the fate of those like A on their return. Suppose that W (whether or not himself still in Algeria) is in a vulnerable position: he fears future torture or ill treatment either of himself or of someone near and dear to him. Perhaps at an earlier stage he had raised his concerns internally and been threatened that if ever he voiced them abroad his wife or children would suffer for it. Suppose finally that, such being the circumstances, W is not prepared to give evidence in As appeal to SIAC save only on one unalterable condition, namely that his identity and evidence will forever remain confidential to SIAC and the parties to the appeal (A and the Secretary of State). He is concerned in particular that the Secretary of State might seek to communicate something at least of his evidence to the Algerian authorities (or indeed to others in such a way as may bring him to the attention of the Algerian authorities) if only to seek to assess its veracity and reliability, and that her doing so might place him or his family in peril, something he is simply not prepared to risk. W, therefore, requires an absolute and irreversible guarantee of total confidentiality before he will permit his identity and evidence to be disclosed to the Secretary of State. Is it open to SIAC to make an order providing for such a guarantee? That, as will shortly appear, is the central question now before us. It is not, I should make clear at this stage, the appellants case that, SIAC having made an absolute and irreversible order giving W the guarantee he seeks, Ws evidence will necessarily then have to be regarded by SIAC as properly before them when finally it comes to their determining the disputed issue as to As safety on return. Rather the appellants propose an intermediate, inter partes hearing, by which time the Secretary of State must have been provided with full information as to Ws identity and intended evidence, and at which she will be able to contend that, for whatever reason, it would be wrong for SIAC to admit Ws evidence on the substantive appeal. She may suggest that in reality W has advanced no coherent case for saying that he is at risk of reprisals. Or she may say that Ws proposed evidence is inherently implausible and that, without her being afforded the least opportunity to check its authenticity or credibility or reliability it would simply not be right to afford it any weight whatever. Or she may have other arguments to advance. If, having heard them, SIAC then chooses to shut the evidence out, so be it. If, however, SIAC admits the evidence, then, reluctant though doubtless they will be to give it the weight it might have been expected to carry had the Secretary of State been permitted to check it, at least it will be before them (when ex hypothesi it would otherwise not have been) and in the result SIAC will have the benefit of the fullest possible picture on a critically important issue in the appeal: the question of As safety on return. It is on this basis and in this context that the question now arises: in such circumstances can SIAC ever properly make an absolute and irreversible order (necessarily on an ex parte application by A without the Secretary of State having an opportunity to resist it), prohibiting the Secretary of State from ever disclosing to anyone anything of Ws identity or evidence? This question the Court of Appeal on 29 July 2010 answered in the negative: [2010] EWCA Civ 898. Giving the only reasoned judgment (with which Jacob and Sullivan LJJ simply agreed), Sir David Keene (at para 27) concluded that: [I]t is not open to SIAC to make an order giving the absolute and irrevocable guarantee which is sought by the appellants. This may create a difficulty for the appellants, because of the reluctance of their potential witnesses, but it is inescapable. The adverse effect on them can be mitigated by such steps as anonymity orders and hearings in private, but irrevocable orders preventing the Secretary of State from disclosing material to a foreign state in any circumstances cannot properly be made by SIAC in advance of the Secretary of State seeing that material. As counsel for the Secretary of State said at the SIAC hearing, such a proposal is unworkable and in my view falls outside the scope of SIACs powers to give directions, broad though those powers are. Before turning to the Secretary of States objections I should observe that, although Sir David there spoke of the appellants proposals fall[ing] outside the scope of SIACs powers, he had earlier, at para 20, recorded that: Mr Tam QC, on behalf of the Secretary of State, accepts that SIAC could give directions under the Procedure Rules preventing the Secretary of State from disclosing such material to any other person, including the Algerian authorities. He acknowledges that SIACs power under rule 39 (1) to give directions relating to the conduct of any proceedings is expressed in wide and unlimited terms and could be used in conjunction with the rule 43(2) power to conduct a hearing in private for any good reason so as to prevent disclosure to other persons, including the authorities of the appellants country of origin. And that, indeed, I understand to remain the Secretary of States position. It is not for want of jurisdiction that SIAC should never make an order of the sort here contended for; rather it is because, so the Secretary of State submits, such an order could never properly be made; it can never be appropriate. Such being the case, I shall not burden this judgment with an exposition and analysis of all the various rules which arguably bear upon SIACs powers but instead shall turn at once to the Secretary of States principal reasons for saying that no order of the kind here sought should ever be made, notwithstanding that, for want of it, evidence directly going to the issue of As safety on return will on occasion not be available to SIAC when otherwise it would have been. Essentially, it seems clear, the Secretary of States fundamental objection to an order of the sort proposed is this: such an order having been made, the Secretary of State may then find herself in possession of information which (whether or not appreciated by SIAC, A or even W himself) might in one way or another suggest the existence of a terrorist threat abroad or some other risk to national security. Viewed in the context of myriad other pieces of information, it may be seen to form part of a jigsaw or mosaic (one is well familiar with the concept) whereby such risks come to be recognised. Because, however, of SIACs order, the Secretary of State will be unable to alert the foreign state to the risk, thereby gravely imperilling future diplomatic relations. True, but for the order, the Secretary of State would never have been put in possession of the information in the first place. But, runs the argument, the Secretary of State is in fact worse off with it than without it. Without it she cannot be criticised. But with it, yet bound by SIACs order to keep it to herself, she may become deeply embarrassed if the risk were then to eventuate. The court below, at paras 24 and 25 of Sir David Keenes judgment, accepted this argument: SIAC cannot, it seems to me, tie its hands in advance and say that, whatever the fresh slant on the material provided by the Secretary of State, it will in no circumstances allow disclosure to the authorities of a foreign state. How could it? It might be that the appellants material, innocuous when seen in isolation, becomes of vital diplomatic importance once combined with material in the possession of the Secretary of State. As was explored in argument, it might reveal a potential terrorist risk within the foreign state. It might indicate that, instead of the appellant having been the perpetrator of a terrorist outrage, as suspected hitherto, the true culprit remains at large in a foreign state and presents a real and immediate threat to that state. It is no answer for Mr Fordham to argue that, without the cast iron and irrevocable guarantee of non disclosure, the British Government would not even come into possession of the information. That is true, but the consequences for the United Kingdoms diplomatic relations differ radically between the two scenarios. If this countrys government is in possession of information indicating the existence of a risk of a terrorist outrage in a foreign state with which we have friendly relations and it does not warn that state, the potential impact on the United Kingdoms diplomatic relations with that state could be very serious indeed if it ever became known that our government knew of the risk. If, however, the government does not possess such information, then while the terrorist risk to the foreign state may remain the same, this country could not be accused of withholding vital information, and our diplomatic relations would not be affected. I confess to finding the argument a good deal less persuasive than did the Court of Appeal. Nor to my mind was it made good by a post hearing note submitted by the Secretary of State at our invitation giving five examples of prospective scenarios (understandably at a high level of generality) suggested to illustrate the problem. In all five examples, as it happens, the Home Secretarys stated concern is at her inability to communicate not with the country to which she proposes deporting A (here Algeria) but rather with some other foreign country (country C) to which, let us suppose, W, a known terrorist mastermind who trains suicide operatives, now says that he has moved (following torture on his return to Algeria), something about which the Secretary of State would wish to inform country C (an example in fact suggested by Lord Kerr during the hearing). Even, however, were such a scenario to play out and culminate in a terrorist atrocity in country C and it were later to emerge that the Secretary of State had known, but failed to warn country C, about Ws move there, it must surely be a substantial defence to any diplomatic complaint by country C that the Secretary of State was subject to a final and absolute court order prohibiting her from acting differently. After all, as the appellants point out, a number of recent international instruments are replete with statements urging states to ensure that witnesses are protected against ill treatment or intimidation, particularly in a human rights context see, for example, article 13 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Principle 3(b) of Annex I to the Istanbul Protocol Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; paras 3, 7, 12, 13 and 20 of the 28 July 2010 Report of the United Nations High Commissioner for Human Rights on the Right to the truth; and para 3.2.8 (under the heading, Handling reluctant Sources) of the November 2010 EU common guidelines on (Joint) Fact Finding Missions. In short, I regard the Secretary of States concerns at learning more than she is permitted to divulge as an insufficient ground on which to deny A and SIAC the possible benefits of Ws evidence. That said, I do not overlook the radical nature of orders of the sort proposed here, nor, indeed, the kinds of difficulty they may bring in their wake. In the first place, such orders could be thought to come perilously close to offending against basic principles of open justice. There is nothing novel, of course, in the making of ex parte orders. But it is difficult to think of any other situation in which a respondent would be unable to seek release from a permanent injunction in this case, not to communicate his knowledge to others. The respondent can, as indicated, object at the inter partes hearing to the material being used at the eventual substantive hearing. But that is by no means the same thing as seeking to overturn the original order. There is, moreover, as the respondent points out, the further difficulty that, even though theoretically it will be open to SIAC at the inter partes hearing to rule out Ws evidence, it may be difficult for them to ignore it entirely. SIAC are, after all, required by section 5(6)(a) of the 1997 Act and by rule 4(3) of their 2003 Rules to ensure that on the material before them they can properly determine the proceedings. And there could hardly be a more important issue in those proceedings than that of As safety on return. It is that consideration, indeed, which weighs so very heavily in As favour in justifying the making of these proposed orders in the first place, given that without them SIAC will by definition never see the material. There is the obvious further problem with regard to evidence adduced on the basis proposed that the Secretary of State will be largely unable to investigate it and will find it difficult, therefore, to explain or refute it. Accordingly, the very making of the initial order must to a degree undermine the likely weight of the evidence and devalue its overall worth. In the last analysis, however, none of these considerations to my mind outweighs the imperative need to maximise SIACs chances of arriving at the correct decision on the article 3 issue before them and their need, therefore, to obtain all such evidence as may contribute to this task. I would rule, therefore, that it is open to SIAC to make such absolute and irreversible ex parte orders as are here contended for and that on occasion it may be appropriate to do so. This is, I conclude, the least worst option open to us the lesser of two evils as I put it at the outset. But at the same time I should make plain that I am far from enthusiastic about such orders and would certainly not expect a rash of them. Rather it would seem to me that the power to make them should be most sparingly used. There is, of course, the risk that the very availability of such orders may be exploited by the unscrupulous in the hope that SIAC may thereby be induced to receive untruthful evidence which, had it in the ordinary way been subject to full investigation, would have been exposed as such. I would advocate that before making one of these proposed ex parte orders, SIAC should require the very fullest disclosure from A of (a) Ws proposed evidence (namely a detailed final statement or proof of evidence depending upon whether it is proposed to adduce the evidence orally or in writing, and if the latter why in writing), (b) the particular circumstances in which W claims to fear reprisals, and (c) how A and his legal advisers came to hear about Ws proposed evidence and what if any steps they have taken to encourage him to give that evidence in the usual way subject to the usual steps generally taken to safeguard witnesses in these circumstances, namely by anonymity orders and hearings in private. If, moreover, one of these orders is made and it does then come to appear to the Secretary of State that the information disclosed may indeed be of some importance with regard to national security concerns, whether here or abroad, it should be open to the Secretary of State to try to persuade SIAC either to seek from A and W a sufficient waiver of the ex parte order forbidding any further communication of the information to enable these national security concerns to be met or, if such waiver, unreasonably in SIACs view despite their recognition of Ws fears, proves unobtainable, to shut out (or regard with additional scepticism) the evidence submitted. This power, in other words, should be exercised sensibly as well as sensitively, there being ample room for flexibility in its operation notwithstanding the absolute and irreversible nature of whatever order may initially be made. I should perhaps add this. In striking the balance in this way, I am in no way influenced by the consideration that, as earlier stated, there are circumstances in which the Secretary of State for her part is on occasion entitled to adduce evidence in closed proceedings divulged only to a special advocate and not to A. I do not see the scope for orders of the sort contended for here as, so to speak, levelling the playing field or providing equality of arms between the parties. The plain fact is that the Secretary of State is acting in these cases in the wider public interest, not as an interested party. She is, for example, obliged (now under the rules) to search for and disclose material, both open and closed, which may possibly assist As case. (He, of course, is under no corresponding duty towards the Secretary of State.) And the special advocate will to the best of his ability serve As interests, procuring on occasion rulings which may preclude the Secretary of State from relying on material however apparently damning to As cause. As Sir David Keene observed below (at para 26): The reality is that the position of an appellant and the position of the Secretary of State are not comparable, because of the public responsibilities of the latter. Since completing this judgment I have seen in draft the judgment of Lord Dyson and agree with him also. I would accordingly allow these appeals to the extent indicated. It must, of course, now be for SIAC to consider what, if any, impact our decision has upon the outcome of these appellants individual appeals: whether there is a need now to reopen them and what, if any, orders should now be made. It is to be hoped that no further order (save as to costs as to which the parties may have 28 days for written submissions) is required from this court. LORD DYSON National security issues continue to present difficult challenges to the courts. Lord Brown has explained the problem that is raised by the facts of the present case. The appellants are all Algerian nationals whom the Secretary of State for the Home Department decided under section 3(5)(a) of the Immigration Act 1971 to deport to Algeria on the basis that their presence in the United Kingdom is not conducive to the public good on grounds of national security. They appealed to the Special Immigration Appeals Commission (SIAC) who held that they posed a risk to national security and that the decisions to deport them were lawful and compatible with the European Convention on Human Rights (the Convention). Their appeals were dismissed by the Court of Appeal. The issue in all these cases is whether, if returned to Algeria, there is a real risk that the appellants would be subjected to ill treatment at the hands of the Algerian Authorities (AAs) contrary to article 3 of the Convention. One of the appellants (Z) was in a position to put forward material from a source or sources in Algeria which was relevant to safety on return. But the source(s) feared reprisals in Algeria if there were to be any disclosure of their identity to the AAs. They were willing to tell their story to SIAC (and indeed to the Secretary of State), but only on an absolute and irrevocable assurance that there would be no onward disclosure to the AAs. Rule 4(1) of the Special Immigration Appeals Commission (Procedure) Rules 2003 (SI 2003/1034) (the SIAC Rules) provides that, when exercising its functions, SIAC shall secure that information is not disclosed in any other circumstances where disclosure is likely to harm the public interest. Rule 39(1) confers on SIAC the power to give directions relating to the conduct of any proceedings. Subrule (2) provides that the power to give directions is to be exercised subject to the obligation in rule 4(1); and subrule (5) provides that directions under rule 39(1) may in particular (e) relate to any matter concerning the preparation for a hearing. Rule 43(2) enables SIAC to conduct a hearing or part of a hearing in private for any good reason (in addition to the reason identified in rule 43(1) which is not material to the appeal). It is common ground that these rules are wide enough to give SIAC the jurisdiction to make an absolute and irrevocable order prohibiting the Secretary of State from disclosing material to any person and to do so at or after a hearing from which the Secretary of State is excluded. The question is in what circumstances (if any) it may be appropriate to make such an order (which I shall refer to as an irrevocable non disclosure order). For the appellants, Mr Fordham QC submits that SIAC has the power to make such an order although it has not received informed representations from the Secretary of State as to whether the order should be made. It is able subsequently to hear informed representations from the Secretary of State as to the admission of the material in evidence. For the Secretary of State, Mr Tam QC accepts that there may be cases where an appellant is found to have good reasons for wishing to keep certain material confidential and this might provide a sound basis for SIAC to exercise its power to hold a private hearing under rule 43 and make an irrevocable non disclosure order. But he submits that it is never appropriate to make such an order on the basis of a hearing from which the Secretary of State is excluded and she should always be given the opportunity to apply subsequently to vary or discharge the order. In testing these submissions, it should be borne in mind that, as is illustrated by the circumstances of the present appeals, two conflicting considerations are in play here. On the one hand, the appellants say that, unless the order that they seek is made, they will be unable to place material before SIAC which may be crucial to their case that, if returned to Algeria, they face a real risk of ill treatment by the AAs contrary to article 3 of the Convention. If they are able to persuade SIAC of this risk, their appeals will succeed. Thus, the appellants say that it is essential to their case that they are able to place this evidence before SIAC: the stakes could hardly be higher for them (short of a risk to life itself). They also rely on rule 4(3) of the SIAC Rules which provides that subject to paragraphs (1) and (2), SIAC must satisfy itself that the material available to it enables it properly to determine proceedings. In other words, it has a duty to ascertain all relevant facts. On the other hand, it is said on behalf of the Secretary of State that there are important countervailing considerations both in relation to the conduct of the appeals and more generally. So far as the conduct of the appeals is concerned, the ability of the Secretary of State to participate in them effectively may be seriously undermined by an irrevocable non disclosure order. There are two aspects to consider. First, the cogency and validity of the reasons asserted by the source(s) in support of the claimed need for confidentiality may be open to question, but the Secretary of State will be denied the ability to test the reasons or to obtain information and/or adduce evidence from or with the assistance of the AAs to demonstrate that the asserted reasons for the claim to confidentiality are groundless. Secondly (and of perhaps even greater importance) is the fact that the Secretary of State may be seriously disadvantaged in her ability to test and challenge the substance of the evidence of the witness(es). The effect of the order may be to deprive the Secretary of State of the ability to place before SIAC relevant evidence which it should properly consider in deciding the substantive issues arising in the appeals. This would occur, for example, if the AAs were able to provide information bearing on the issue of safety on return of the appellants, but could not do so unless the identity of the witness(es) and what they have to say are disclosed to them. Once the authorities know the identity of the witness(es) and the substance of their evidence, the authorities might be able to demonstrate that what is said about the risk to the appellants on return to Algeria is false. I should add that the SIAC Rules do not make provision for the appointment of special advocates to represent the interests of the Secretary of State and it is (rightly) not suggested that SIAC could appoint special advocates under any of the powers conferred by the general rules. It follows that the difficulties to which the Secretary of State draws attention cannot be overcome or even mitigated by the appointment of a special advocate. In addition to the problems that are likely to be suffered by the Secretary of State in relation to the appeals, she says that irrevocable non disclosure orders may also cause collateral prejudice. It became clear during the course of the argument that this prejudice is the potential risk of harm to future diplomatic relations with a friendly foreign state. This is a factor which carried considerable weight with the Court of Appeal and which Lord Brown deals with at paras 11 to 15. In weighing these competing considerations, I have no doubt that the scales come down in favour of making an irrevocable non disclosure order where SIAC is satisfied that such an order is necessary in the interests of justice. I agree entirely with what Lord Brown says at paras 19 to 21 as to how the power to make an order should be exercised. SIAC should be astute to guard against the danger of abuse and should scrutinise with great care and test rigorously the claimed need for an order. But if SIAC (i) is satisfied that a witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return and (ii) has no reason to doubt that the witness genuinely and reasonably fears that he and/or others close to him would face reprisals in Algeria if his identity and the evidence that he is willing to give were disclosed to the AAs, then in my view an irrevocable non disclosure order should be made. I accept that to make such an order is a striking step for any court to take and is contrary to the instincts of any common lawyer. It is inimical to the fundamental principles which we rightly cherish of open justice and, above all, procedural fairness. To make an order without giving the Secretary of State an opportunity to be heard is a clear breach of the principles of natural justice. Any such order requires compelling justification. Regrettably, however, the circumstances of a case sometimes call for unusual and undesirable remedies. Ultimately, the court has to decide what is demanded by the interests of justice. In weighing the prejudice that the Secretary of State may suffer in the appeal process as a result of an irrevocable non disclosure order, it should not be overlooked that the appeals themselves will be conducted entirely inter partes. In particular, no material that is placed before SIAC by the appellants will be withheld from the Secretary of State. She may be able to demonstrate that the claimed need for confidentiality is without foundation and to persuade SIAC to give the evidence little or no weight for that reason alone. She may also be able to test the evidence of the witness(es) effectively even though she has been unable to discuss it with the AAs. For example, she may be able to show on the basis of objective general material about the conditions in Algeria that the evidence of the witness is unlikely to be true; and even where the evidence is more specific, she may be able to obtain information from the AAs which will enable her to rebut the evidence without divulging the name or identity of the witness or saying anything which might lead to his or her identification. It will, of course, depend on the nature of the evidence to be given by the witness. I do not wish to suggest that the effect of an irrevocable non disclosure order may not inhibit the ability of the Secretary of State to resist the appeals. In some cases, such an order will undoubtedly have that effect. But it cannot safely be said that it is bound to do so in every case. As regards the collateral prejudice claimed by the Secretary of State, like Lord Brown I consider that this has relatively little weight for the reasons that he gives. In my view, if SIAC concludes that the two conditions to which I have referred at para 34 above are satisfied, then the countervailing considerations relied on by the Secretary of State should not outweigh the need to ensure that the appellants are able to deploy any material which might show that, on return to Algeria, they would face a real risk of treatment contrary to article 3 of the Convention. The same considerations and the same result would follow if the case raised a question under article 2 of the Convention. But if the ground on which an appellant is resisting deportation is an alleged risk of breach of some other article of the Convention, the balance will almost certainly be struck the other way. For example, in many appeals against orders for deportation, the ground of appeal is that to deport the appellant would involve a breach of his or her article 8 rights. I find it difficult to conceive of a case in which it would be appropriate to make an order in order to protect the wish for confidentiality of a witness in those circumstances. For these reasons as well as those given by Lord Brown (with which I am in entire agreement), these appeals should be allowed to the extent indicated. LORD PHILLIPS, LORD KERR AND LORD WILSON We agree with both the judgments of Lord Brown and Lord Dyson.	The appellants, all Algerian nationals, were suspected terrorists whom the Secretary of State proposed to deport to Algeria. It was common ground that Algeria was a country where torture was systematically practised by state officials and no state official had ever been prosecuted for it. The Secretary of State obtained assurances from the Algerian Government that the appellants rights not to be tortured or subjected to other ill treatment would be respected on return to Algeria. The Special Immigration Appeals Commission Act 1997 established an appeal system which allows where necessary for closed material procedures and the appointment of special advocates. If the Secretary of State wishes to adduce evidence which, for reasons of national security or other sufficient public interest reasons, cannot safely be communicated to the other party, SIACs rules and procedures provide for this to be done. In this case, however, it was one of the appellants who wished to adduce evidence from a witness (W), who had inside knowledge of the position in Algeria and asserted that, notwithstanding the Algerian Governments official assurances, those in the appellants positions were in fact likely to be subjected on return to torture or other ill treatment. W was prepared to give evidence in the appellants appeals to SIAC only on one unalterable condition: that his identity and evidence would by order remain absolutely and irrevocably confidential to SIAC and the parties to the appeals. W was concerned that the Secretary of State might otherwise seek to communicate his evidence to the Algerian authorities, if only to assess its veracity and reliability, and that her doing so would place him and/or his family in peril. The Secretary of State had two main objections to such an order being made. First, she would be unable to participate effectively in the conduct of the appeals before SIAC, being unable to test either the validity of the reasons asserted by W in support of his claimed need for confidentiality or the substance of Ws evidence itself. Secondly, the Secretary of State may find herself in possession of information pointing to the existence of a terrorist threat abroad or some other risk to national security, yet, bound by SIACs order, unable to alert the foreign state to the risk. This could gravely imperil future diplomatic relations with foreign states. The question in the appeals therefore was whether it was open to SIAC to make an order for an absolute and irreversible guarantee of total confidentiality in respect of Ws identity and evidence before the same were disclosed to the Secretary of State (in circumstances where it would nevertheless remain open to the Secretary of State to challenge the admissibility or weight of that evidence before SIAC in its determination of the substantive appeals). The Supreme Court unanimously allows the appeals. Lord Brown gives the leading judgment of the Court; Lord Dyson gives a concurring judgment. The fundamental objection of the Secretary of State to the proposed order, based on her concerns about being obliged to withhold vital information relating to national security from a foreign state, thereby imperilling future diplomatic relations, is unpersuasive [11] [13]. It must surely be a substantial defence to any diplomatic complaint by a foreign state that the Secretary of State is subject to a final and absolute court order prohibiting her from acting differently [14]. A number of recent international instruments are replete with statements urging states to ensure that witnesses are protected against ill treatment or intimidation, particularly in a human rights context [15]. The imperative need here is to maximise SIACs chances of arriving at the correct decision on the issue before them concerning the safety of the appellants on return to Algeria and, therefore, for SIAC to obtain all such evidence as may contribute to this task [18]. Accordingly, it is open to SIAC to make absolute and irreversible ex parte orders of the kind sought in this case and on occasion it may be appropriate to do so [19]. The power to make such orders should however be used most sparingly [19]. Before making one of the proposed ex parte orders, SIAC should require the very fullest disclosure from the applicant (A) of (a) the proposed evidence from As proposed witness (W), (b) the particular circumstances in which W claims to fear reprisals, and (c) how A and his legal advisers came to hear about Ws proposed evidence and what if any steps they have taken to encourage W to give that evidence in the usual way subject to the usual steps generally taken to safeguard witnesses in such circumstances (e.g. anonymity orders and hearings in private) [20]. SIAC should only then, in the interests of justice, grant such an order if it (1) is satisfied that a witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return and (2) has no reason to doubt that the witness genuinely and reasonably fears that he and/or others close to him would face reprisals if his identity and the evidence that he is willing to give were disclosed to the relevant foreign state [34]. Notwithstanding the absolute and irreversible nature of the order, it should in addition be open to the Secretary of State, upon such order being made, to try to persuade SIAC either to seek from A and W a sufficient waiver of the ex parte order forbidding any further communication of the information, or, if such waiver proves unobtainable, to exclude or regard with additional scepticism the evidence submitted [21]. The Court, in permitting the making of such ex parte orders in the circumstances of this case, has in no way been influenced by the circumstances in which the Secretary of State is on occasion entitled to adduce evidence in closed proceedings divulged only to a special advocate and not to A. The scope of the orders sought here should not be regarded as levelling the playing field between the parties: the Secretary of State in cases before SIAC acts in the wider public interest and not as an interested party [22]. The same considerations and the same result would follow if the case engaging as it does here the rights of the appellants under article 3 of the ECHR raised a question under article 2 of the same. However, if the ground on which an appellant is resisting deportation is an alleged risk of breach of some other article of the ECHR (e.g. article 8), the balance will almost certainly be struck the other way. In those circumstances it would be inappropriate to make an ex parte order to protect the confidentiality of a witness [38].
The appellant is Nat Gordon Fraser who went to trial in January 2003 at the High Court of Justiciary in Edinburgh charged with the murder of his wife Arlene Fraser, who disappeared from her home at 2 Smith Street, New Elgin on 28 April 1998. On 29 January 2003 he was found guilty of her murder and sentenced to life imprisonment, with a punishment part of 25 years. By a note of appeal which was lodged on 18 December 2003 he appealed against his conviction and sentence. He was granted leave to appeal. The indictment on which the appellant went to trial included an allegation that, after the murder and with intent to defeat the ends of justice, he did (iii) on 7 May 1998 at said 2 Smith Street, place a wedding ring, engagement ring and eternity ring belonging to said Arlene Fraser in said house. Although the Advocate Depute withdrew this charge at the end of the Crown case, he relied on the evidence that the rings had been discovered in the house on 7 May 1998 as a crucial part of the circumstantial evidence against the appellant that he had arranged for his wife to be killed. In his address to the jury he said that the discovery of the rings was a most compelling piece of evidence. He invited the jury to conclude that eight or nine days after Arlene Frasers death the appellant had removed the rings from her dead body, taken them to the house and placed them in the bathroom to make it look as though she had decided to walk away from the life that she had had there. He described the return of the rings as the cornerstone of the case against the appellant, for which he had provided no explanation. The trial judge directed the jury that, if they reached the view that they were not prepared to hold that it was the appellant who placed the rings in the bathroom on 7 May, it would not be open to them to convict the appellant. The case was presented on the assumption, for which unchallenged evidence had been led, that the rings were not in the bathroom when Arlene Fraser disappeared. But it came to the notice of Crown Office after the appeal was lodged that, when he was precognosced by a Crown precognition officer on 3 July 2002, PC Neil Lynch had stated that he had visited the house on three occasions during the night of 28 and 29 April 1998 and that on the final visit he was accompanied by WPC Julie Clark. He said that on the night of 28 April and the morning of 29 April he had seen jewellery, including rings, in the house and that before the official search began he had thought he saw bracelets and rings in the bathroom which looked like a wedding ring, an engagement ring or an eternity ring. This information had not been recorded in PC Lynchs notebook and it was not included in any statement provided by him prior to the trial. It was not provided prior to or during the trial to the Advocate Depute, nor was it provided to the appellants representatives. PC Lynch and WPC Clark had not been precognosced by the defence in the course of their preparations for the trial. Inquiries were then instigated, in the course of which a further precognition was taken from PC Lynch and WPC Clark was also precognosced. When he was precognosced on 8 February 2006 PC Lynch said that he first attended the house with WPC Clark around 10.30 pm to 11.00 pm on 28 April 1998 and that during this visit he saw jewellery in the bathroom. His recollection was that there were two or three rings there and a chain necklace, or maybe two. The rings were wedding, engagement or eternity type rings. When she was precognosced on 2 March 2006 WPC Clark said that either on the night of 28 April or in the early hours of 29 April she saw jewellery in the bathroom. There were at least two finger rings and a chain, and one of the rings could have been a ladys wedding ring or an eternity ring. This information had not been recorded in her notebook and it was not included in any statement provided by her before the trial. The information which had been obtained on precognition from PC Lynch and WPC Clark was disclosed to the appellant on 8 March 2006. On 11 March 2006 a statement was issued by the Crown Office and Procurator Fiscal Service in which it was said that the Lord Advocate regarded it as a matter of serious concern that this evidence was not made available to the defence before the trial. The Area Procurator Fiscal for Glasgow, Catherine Dyer, and the Deputy Chief Constable of Strathclyde, Richard Gray, were asked to carry out a full investigation. They reported on 30 October 2006. In the course of their investigation they interviewed the Advocate Depute, now the Hon Lord Turnbull. He said that he thought at an early stage of his involvement in the case that the rings were the key piece of evidence, and that the information in PC Lynchs precognition was so inconsistent with his thinking that if it had come to light during the trial it would have had to have been deserted. In the light of the information disclosed by the Crown the appellant lodged additional grounds of appeal in May 2006. These were followed by revised additional grounds in February 2007, in which it was submitted that there had been a miscarriage of justice because the evidence of PC Lynch and WPC Clark was not heard at the trial and because the Crown had failed to disclose the information that PC Lynch had provided when he was precognosced on 3 July 2002. The appeal was set down for hearing by the Appeal Court (the Lord Justice Clerk (Lord Gill), Lord Osborne and Lord Johnston) in November 2007. On 13 November 2007, which was the first day of the appeal hearing, the appellant moved the Appeal Court to allow an additional ground of appeal and a devolution minute, which was in similar terms, to be received. In the devolution minute it was stated that the appellant intended to raise a devolution issue on the following grounds: i. That the Crown was in possession of information from Police Constable Neil Lynch, regarding the presence of Arlene Frasers rings in the bathroom at the locus at the time of her disappearance, prior to and at the time of the trial of the minuter. ii. That said information was material evidence, which in the context of the trial, tended to undermine the Crown case and would have been of material assistance to the proper preparation or presentation of the minuters defence. iii. That the Crown was under a duty to disclose to the defence any information which undermined its case. iv. That, in breach of its duty, the Crown failed to disclose said information to the defence, thereby infringing the minuters rights under article 6(1) of the Convention. v. That, irrespective of its duty to disclose said information, the Crown was under a duty to present the case against the minuter on an accurate premise, and in a manner which was consistent with the minuters right to a fair trial. In making the cornerstone of its case the reappearance of Arlene Frasers rings on 7 May 1998 and incriminatory inferences to be drawn from that fact in circumstances where it knew or ought to have known of a body of evidence which would render the invitation to a jury to draw such inferences inappropriate, the Crown infringed the minuters rights in terms of article 6(1) of the Convention. vi. That accordingly the conviction should be quashed. The Appeal Court refused the motion for the additional ground of appeal and the devolution minute to be received. The reasons that it gave for this decision were that they came too late, that sufficient cause had not been shown and that the matters sought to be raised were adequately covered by the existing grounds of appeal. In the course of the hearing, which occupied a total of 13 days, the appellants counsel restricted his argument to the question whether there had been a miscarriage of justice on the ground of fresh evidence within the meaning of section 106 of the Criminal Procedure (Scotland) Act 1995, and on the ground of non-disclosure which he accepted was in effect a duplication of the first ground. The non-disclosure ground of appeal was therefore treated in the same way as the fresh evidence appeal. On 6 May 2008 the Appeal Court refused the appeal against conviction and continued the appeal against sentence to a date to be afterwards fixed: [2008] HCJAC 26, 2008 SCCR 407. The appeal against sentence was subsequently abandoned. The appellant then sought leave of the Appeal Court to appeal to the Judicial Committee of the Privy Council against the Appeal Courts refusal to allow the devolution minute to be received. Having heard argument on 31 October 2008, the Appeal Court (the Lord Justice Clerk, Lord Osborne and Lord Wheatley) refused the application for leave to appeal on 24 March 2009 as incompetent: [2009] HCJAC 27, 2009 SCCR 500. Delivering the opinion of the court, Lord Osborne said in para 13 that the identification of the devolution issue depended on the content of the devolution minute which had been tendered and rejected on 13 November 2007. It follows from that that, in any appeal for which leave might be granted by us, the appellant would seek to canvass exactly the same issues as were canvassed in his appeal under section 106 of the 1995 Act, but this time before the Judicial Committee of the Privy Council. What decision they might or might not reach in any such appeal can only be a matter of conjecture at this stage. However, what is clear is that the allowance of leave for such an appeal as this would authorise a procedure under which the Judicial Committee, in the circumstances of this case, would, quite simply, review the merits of the decision reached by this court on 6 May 2008. Whatever was contemplated by Parliament in enacting paragraphs 1(c) and 13 of Schedule 6 to the Scotland Act 1998, we do not think that it was intended to achieve such a result as that. Had it been the intention of Parliament to introduce, for the first time, a right of appeal to the Privy Council against the merits of decisions by the High Court of Justiciary determining appeals to it under section 106 of the 1995 Act, we are of the opinion that it would have made that intention clear. That has not been done. The appellant then lodged a petition with the Judicial Committee of the Privy Council in which he sought special leave of the Judicial Committee under para 13 of Schedule 6 to the Scotland Act 1998 to appeal against the determination by the Appeal Court of the devolution issue which he had raised in the devolution minute which he had tendered on 13 November 2007. Consideration of his petition for special leave was deferred pending the determination by the Supreme Court (which by now had inherited the jurisdiction of the Judicial Committee in relation to devolution issues under section 40(4)(b) of and Schedule 9 to the Constitutional Reform Act 2005) of the appeals in Allison v HM Advocate [2010] UKSC 6, 2010 SLT 261 and McInnes v HM Advocate [2010] UKSC 7, 2010 SLT 266. On 21 April 2010 the appellant lodged a supplementary submission in support of his application for special leave to appeal. On 20 May 2010 the Court granted his application for special leave. The devolution issue As I recently sought to emphasise, this court must always be careful to bear in mind the fact that the High Court of Justiciary is the court of last resort in all criminal matters in Scotland: see section 124(2) of the Criminal Procedure (Scotland) Act 1995; McInnes v HM Advocate 2010 SLT 266, para 5. Our appellate jurisdiction in relation to its decisions extends only to a consideration of a devolution issue which has been determined by two or more judges of that court: para 13 of Schedule 6 to the Scotland Act 1998. It goes no wider than that. If, therefore, the effect of the appellants application for special leave was that we were simply being asked to review the determination under section 106 of the 1995 Act of his appeal by the Appeal Court, as Lord Osborne indicated at 2009 SCCR 500, para 13, we would have been bound to refuse the application for special leave. The appellants application for special leave was granted by this court for two reasons. The first was that the decision by the Appeal Court to refuse to allow the devolution issue to be received amounted to a determination of that issue for the purposes of para 13 of Schedule 6 to the Scotland Act 1998: see McDonald v HM Advocate [2008] UKPC 46, 2009 SLT 993; Allison v HM Advocate [2010] UKSC 6, 2010 SLT 261, para 6 per Lord Rodger; Cadder v HM Advocate [2010] UKSC 43, 2010 SLT 1125, [2010] 1 WLR 2601, para 11. The second was that it appeared to this court, applying the tests set out in McInnes v HM Advocate, 2010 SLT 266, paras 19-20 and 28-30, that it was seriously arguable that material had been withheld from the appellant which ought to have been disclosed to him and his advisers with the consequence the appellant did not receive a fair trial and that the unfairness had not been remedied by the approach taken by the Appeal Court. The tests set out in McInnes fall into two parts which, as I said in para 19, must be considered and applied separately. First, there is the test that is to be applied in order to decide whether the material which was withheld from the defence is material which ought to have been disclosed to it. The test here is whether the material might have materially weakened the Crown case or might materially have strengthened the case for the defence. As was explained in HM Advocate v Murtagh [2009] UKPC 35, 2010 SC (PC) 39, [2010] 3 WLR 816, para 11, this test was identified by Lord Justice General Rodger in McLeod v HM Advocate (No 2) 1998 JC 67. He said that the duty of disclosure was an aspect of the role of the Crown as it had been understood since Slater v HM Advocate 1928 JC 94; see also Downie v HM Advocate 1952 JC 37, p 40 per Lord Justice General Cooper; Smith v HM Advocate 1952 JC 66, p 72 per Lord Justice Clerk Thomson. As Lord Rodger said in McLeod at p 79F-G, our system of criminal procedure proceeds on the basis that the Crown have a duty at any time to disclose to the defence information in their possession which would tend to exculpate the accused. This test is well settled in Scots law and in the jurisprudence of this court: see Sinclair v HM Advocate 2005 SC (PC) 28, para 33; Allison v HM Advocate 2010 SLT 261, paras 25-28. There are, no doubt, various ways of expressing it. In his Review of the Law and Practice of Disclosure in Criminal Proceedings in Scotland (Scottish Government, Edinburgh, 2007), para 5.46 Lord Coulsfield recommended that it should be the duty of the prosecutor to disclose to the defence all material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it. But the way it was set out in McInnes, paras 19 and 28, can be taken to be the definitive way of expressing the test. Then there is the test which is set out in McInnes, paras 20, 24 and 30. It is directed to the consequences of the violation. A failure by the Lord Advocate to disclose to the defence material which, applying the first test, ought to have been disclosed to it is incompatible with the accuseds article 6 Convention right to a fair trial: Rowe and Davis v United Kingdom (2000) 30 EHRR 1, para 60; Edwards v United Kingdom (1992) 15 EHRR 417, para 36; Dowsett v United Kingdom (2003) 38 EHRR 845, paras 42, 43. At this stage the significance and consequences of the violation must be assessed. The question is whether, given that there was a failure to disclose and having regard to what actually happened at the trial, the trial was nevertheless fair. It was in order to indicate more precisely what fair means in this context that the court went on to give this further guidance. The test that is to be applied to determine this issue is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict if the withheld material had been disclosed to the defence. The decision of the Appeal Court (Lady Paton, Lord Hardie and Lady 00000000Smith) in Hay v HM Advocate [2010] HCJAC 125, 2011 SLT 293 provides a good illustration of a case where the application of that test may lead to the refusal of an appeal. The question in this appeal, therefore, is whether the way the Appeal Court dealt with the non-disclosure aspects of the appeal satisfies the requirements of these two tests. This is not an easy question to answer as, having refused to entertain the appellants devolution minute, the Appeal Court dealt with all aspects of the appeal as a fresh evidence appeal which was regulated by section 106 of the 1995 Act: 2008 SCCR 407, para 131. The Lord Justice Clerk explained his approach in para 193 in this way: Since there is no devolution issue in this appeal, I need not consider the points that the advocate depute raised about the test in appeals to the Privy Council. This appeal falls to be dealt with solely as an appeal under section 106 based on the contention that there has been a miscarriage of justice. If I am right, the test set by Lord Justice General Emslie in Cameron v HM Advocate [1991 JC 252, at 262], and followed by this court for over 20 years, applies to both grounds of appeal. The approach which the Appeal Court took requires this court to compare the tests set out in McInnes with those which are applied to appeals under section 106 in order to determine whether, having regard to the way the Appeal Court deal with the case, there is any difference between them. If we can be satisfied that there is no material difference between the tests that the Appeal Court actually applied and the McInnes tests, that will be an end to the case. That is because, as I said in McInnes, para 18, the jurisdiction of this court does not extend to the question whether, having identified the right tests, they were applied correctly by the Appeal Court. But we cannot avoid looking at what the Appeal Court did to see whether the tests that it applied were so similar to what the McInnes tests require that it made no difference whether the appeal was decided as a fresh evidence appeal or under the Convention. Section 106 of the 1995 Act In McInnes, para 5, I said that it was not for this court to comment on the test applied by the Appeal Court in fresh evidence appeals which do not raise a devolution issue. This must be so, as this court has no jurisdiction in appeals of that kind. But in this case, as it is an appeal in which a devolution issue has been raised but which was determined by the Appeal Court solely by applying Lord Justice General Emslies test as if it were a fresh evidence appeal only, it is not possible to be so reticent. A comparison of the kind that is required in this case cannot be carried out without first analysing that test and the tests that sections 106(3) and (3A) of the 1995 Act, as substituted by section 17 of the Crime and Punishment (Scotland) Act 1997, lay down. Section 106 must, of course, be read and given effect in a way that is compatible with the Convention rights, so far as it is possible to do so: section 3(1) of the Human Rights Act 1998. The relevant parts of the substituted section 106(3) are in these terms: (3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings; and the jurys having returned a verdict which no reasonable jury, properly directed, could have returned. (3A) Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard. Subsection (3B) allows the court to admit evidence which was inadmissible at the time of the trial but which has become admissible under the law that is current at the time of the appeal. Subsections (3C) and (3D) deal with the situation where a witness who gave evidence at the trial wishes to change his story. As the Appeal Court said at 2008 SCCR 407, para 193, the test to be applied to an appeal on the ground of fresh evidence was laid down by Lord Justice General Emslie in Cameron v HM Advocate 1991 JC 252; see also Williamson v HM Advocate 1988 SCCR 56 at p 59. It is first necessary for the court to find that the statutory tests set out in the amended section 106 are satisfied: that the additional evidence was evidence that was not heard at the original proceedings, and that there is a reasonable explanation of why it was not so heard. If it so finds, the court must then direct its attention to the additional test which Lord Justice General Emslie laid down in Cameron. He distinguished between cases where the court is satisfied that, if the original jury had heard the new evidence, its significance was such that the jury would have been bound to acquit and cases where the court cannot be so satisfied. It was with regard to cases of the latter kind that he said at p 262: if the court is to find that a miscarriage of justice had occurred in an appeal such as this, it must be satisfied that the additional evidence is at least capable of being described as important and reliable evidence which would have been bound, or at least likely, to have had a material bearing upon, or a material part to play in, the jurys determination of a critical issue at the trial. If the court is so satisfied, it will be open to it to hold that a conviction returned in ignorance of the existence of that evidence represents a miscarriage of justice and it may exercise its power to authorise the bringing of a new prosecution. This test can, for the purposes of a comparison with the tests set out in McInnes, be divided into two parts. First, there is what may be described as the threshold test: assuming that this is evidence that satisfies the statutory requirement that it was not heard at the original proceedings and there is a reasonable explanation of why it was not so heard, is it at least capable of being described as important and reliable evidence which would have been bound, or at least likely to have had a material bearing upon, or a material part to play in, the jurys determination of a critical issue at the trial? The comparison here is with the test for disclosure that is set out in McInnes, para 19. Then there is what may be described as the consequences test, introduced by the words it will be open to it to hold: does a conviction returned in ignorance of the existence of that evidence represent a miscarriage of justice? The comparison here is with the test as to whether the trial was fair that is set out in McInnes, para 20. This analysis fits with the approach that was taken to the Cameron test by the Lord Justice Clerk at 2008 SCCR 407, paras 132 and 133. An alternative reading of it would be to read the words which I have quoted as setting out a threshold test which leads inevitably, if satisfied, to the conclusion that the verdict of the jury, reached in ignorance of the existence of the additional evidence, must be regarded as a miscarriage of justice. On that view it will be enough to show that the test set out in the preceding words has been met. In practice there may be little to choose between these two approaches. For present purposes, however, I think that it is preferable to follow the Lord Justice Clerks approach. It has the merit of giving weight to the words it will be open to it to hold, which suggest that the court should regard the reference to a miscarriage of justice in the concluding words of the Cameron test as raising a question that ought to be considered separately. The tests compared I take first what I have called the threshold test. The context for its formulation by Lord Justice General Emslie, in the opinion which he delivered in Cameron on 23 October 1987, was the introduction of new statutory provisions governing appeals on indictment by section 33 of and Schedule 2 to the Criminal Justice (Scotland) Act 1980. In its original form section 228 of the Criminal Procedure (Scotland) Act 1975 provided simply that a person convicted might appeal to the High Court against his conviction on any ground of appeal which involved a question of law alone or, with the leave of the High Court or upon the certificate of the trial judge that it was a fit case for appeal, on any ground of appeal which involved a question of fact or on a question of mixed law and fact on any other ground which appeared to the High Court or the trial judge to be a sufficient ground of appeal. The statute did not refer to the possibility of relying on additional evidence, and the court had no power to allow a new trial. In Gallacher v HM Advocate 1951 JC 38 it was held that the question for the court in such an appeal was whether it was reasonably satisfied that, if the additional evidence was before the jury, it would not have convicted: see also Elliott v HM Advocate 1995 JC 95, 104-105 where the history of the statutory provisions was reviewed. The 1980 amendments introduced for the first time a statutory test for an appeal based on additional evidence, and it also conferred on the court a power to set aside a verdict and to authorise a new prosecution. In the light of these amendments the test set out in Gallacher was no longer appropriate: Green v HM Advocate 1983 SCCR 42; Cameron v HM Advocate 1991 JC 251, 260. Lord Justice General Emslies threshold test, as he explained at 1991 JC 251, 262, was intended to define the approach which the court must take for all cases where the appellant sought to rely on additional evidence. He had already observed at p 262 that setting aside the verdict of a jury was no light matter: see also Megrahi v HM Advocate 2002 JC 99, para 219 where Lord Justice General Cullen repeated this observation in his summary of the Cameron test. The availability of a right of appeal based on additional evidence was to be understood against that background. So Lord Justice General Emslie introduced an additional, and quite stringent, consequences test which was not to be found in the words of the statute. It remains the test which the High Court applies in these cases, as the Lord Justice Clerk explained in his opinion 2008 SCCR 407, para 193. The threshold test as to whether the material on which the appellant seeks to rely in a non-disclosure case is admissible for the purposes of an appeal based on a violation of his article 6 Convention right is different from the threshold test which section 106(3)(a) and subsection (3A) lay down for an appeal that is to be founded on additional evidence. It also differs from the additional threshold test set out in Cameron which was, of course, not designed for use in cases where the appellants ground of appeal is that there has been a violation of his article 6 Convention right to a fair trial because the Crown failed to disclose material which, applying the test in McInnes, para 19, ought to have been disclosed to the defence. The Cameron test asks whether the disclosed evidence would have been likely to have had a material bearing upon the jurys determination of a critical issue at the trial. That is a more stringent and more narrowly defined test than the McInnes test, which asks whether the material might have materially weakened the Crown case or materially strengthened the case for the defence. Then there is what I have called the consequences test in Cameron: was the conviction which was returned in ignorance of the existence of the additional evidence a miscarriage of justice? Is this a different test from that set out in McInnes, para 20 of which asks whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict? In answering this question we must bear in mind the rule as to interpretation that section 3 of the Human Rights Act 1998 lays down. The words are obviously quite different. But are the tests which they describe, in essence, the same test? Section 106(3), like its predecessors, uses the phrase miscarriage of justice to identify the test which all appeals against conviction must satisfy. But the statutory formula does not, and never has, provided a definition of what a miscarriage of justice is in law. In his commentary on the Appeal Courts decision in 2008 SCCR 407, 465, para 4, Sir Gerald Gordon observed that just what is meant by a miscarriage of justice has always been a problem. In R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18, [2005] 1 AC 1, para 9 Lord Bingham of Cornhill said that it is an expression which, although very familiar, has no settled meaning. So the statute leaves it to the court to adapt these words to the circumstances of each case. The formula that was used in McInnes, para 20, was designed to provide a test as to whether, in cases where it is alleged that there was a violation of the appellants article 6 Convention right, the trial was or was not fair. As was pointed out in that paragraph, in Kelly v HM Advocate [2005] HCJAC 126, 2006 SCCR 9, para 35 Lady Cosgrove said that, if the trial was found nevertheless to have been fair, there would in consequence have been no miscarriage of justice. The two expressions were seen by her to have, in essence, the same meaning. Section 3 of the Human Rights Act 1998 supports this approach. Section 106(3) ought to be read and given effect in a way which is compatible with the article 6 Convention right to a fair trial. In Coubroughs Executrix v HM Advocate [2010] HCJAC 32, 2010 SLT 755, para 47 the Appeal Court (Lords Carloway, Bonomy and Nimmo Smith) said that, if it had had to be satisfied that a miscarriage of justice had occurred in consequence of a misdirection by the trial judge, the court would have applied the test set out in McInnes: In carrying out that exercise, it would have applied the test of whether there was a real possibility that, had the direction been faultless, a different verdict would have been returned. In this context, the court must look at whether a different verdict would have been returned by the particular jury that heard the case (McInnes v HM Advocate, Lord Hope at para 20 and para 24, Lord Brown at para 35, Lord Kerr concurring with both at para 41) rather than a hypothetical modern jury hearing all the evidence anew (Lord Rodger at para 30; cf Lord Walker who agreed with both Lord Hope and Lord Rodger). In Black v HM Advocate [2010] HCJAC 126, 2011 SLT 287 a differently constituted Appeal Court (Lords Osborne and Turnbull and Lady Clark of Calton) said that it had some difficulty in seeing what bearing the test in McInnes had on the matter, as that case was concerned with the consequences of non-disclosure rather than any question of misdirection, and that it had doubts as to the reliance on that test in Coubroughs Executrix. Similar observations are to be found in the opinion which Lord Osborne delivered in this case: see para 220. It is, of course, exclusively a matter for the High Court of Justiciary to identify the test that is to be applied in appeals which do not raise a devolution issue: McInnes, para 5. I very much hope that it may find it possible to resolve the differences of view that have emerged as to the use that may be made of the McInnes test. We are, after all, both construing the same words in the same section of the same Act, and we are both required to read and give effect to those words in the way that section 3(1) of the Human Rights Act 1998 directs. But that is not a problem that this court can solve. Our concern is with the approach that must be taken to this case. Our position on the matter is clear. What the McInnes test does is to provide, for the assessment of whether or not there was a fair trial for the purposes of article 6, what was lacking in the Cameron test for appeals on the ground of additional evidence: a definition of what the expression miscarriage of justice in section 106(3) of the 1995 Act means in this context, by reading it in a way that is compatible with the Convention right. The tests applied by the Appeal Court Lord Osborne and Lord Johnston delivered separate opinions, but they both agreed with the Lord Justice Clerk who delivered the leading opinion and examined the circumstances of the case, as Lord Johnston said, comprehensively. So I shall concentrate on what he said to see whether the tests that the Appeal Court applied were sufficiently similar to those that ought to be applied to an appeal on the ground that there had been a violation of the appellants convention rights. The threshold test The Lord Justice Clerk addressed himself first to the question whether the new evidence was important evidence of such a kind and quality that it was likely to have been found by a reasonable jury, under proper directions, to have been of material assistance in their consideration of a critical issue that emerged at the trial: the Cameron threshold test: para 132. In para 134 he said that he was not persuaded that the proposed new evidence, if available to the defence at the trial, would in fact have been led. In paras 139-144 he said that the appellant had failed to provide a reasonable explanation of why the evidence of PC Lynch and WPC Clark was not led at the trial, as their names were on the list of witnesses and the defence was not deprived of any opportunity to precognosce them thoroughly about the factual allegations in the indictment. In para 147 he said that he was not persuaded that the recollections of either of them on the point at issue could be regarded as reliable. In para 150 he rejected the argument that the evidence of PC Lynch and WPC Clark was incompatible with the cornerstone of the Crown case as having been based on an incomplete view of the case. If they had given evidence about the presence of the rings in the house on the night of 28-29 April, the advocate depute would not have committed himself to his theory about the cornerstone of the Crown case. It can be seen from this brief summary that it is impossible to reconcile the approach which the Appeal Court took to the threshold question that section 106 raises with the test for cases of non-disclosure in McInnes, para 19. The Lord Justice Clerks acknowledgement at para 150 that, if the evidence of PC Lynch and WPC Clark had been led at the trial the advocate depute would not have committed himself to his theory, makes the point. It is plain that this was information which might materially have weakened the Crown case as presented at the trial, or might materially have strengthened the case for the defence. That was why the Crown, very properly, felt that it ought to have disclosed this material. The situation in this case is quite different from that which will normally arise where the court is presented with an appeal on the ground of fresh evidence. A fresh evidence case usually proceeds on the basis that, while there was nothing wrong with the trial as it was originally conducted, there was nevertheless something missing from it which ought now to be taken into account. Had the material that was missing from this case been disclosed, however, the conduct of the trial by both the Crown and the defence would have quite different. That is why the non-disclosure in this case goes to the root of the question whether the appellant received a fair trial. It is no answer to the point that the material ought to have been disclosed to say that the defence had the opportunity to precognosce these witnesses. The fact is that the Crown chose to present the case at the trial in a way that it would not have chosen to do if it had been aware at the time of the trial that there was evidence that the rings were in the house within hours of Arlenes disappearance. Nor is it an answer to say that the obligation of disclosure does not extend to precognitions in the possession of the Crown: Sinclair v HM Advocate [2005] UKPC 3; 2005 SC (PC) 28, para 28. This is because the evidence as to the presence of the rings in the house on that night had such an obvious bearing on a crucial part of the circumstantial case against the appellant. It does not matter where the material was to be found. It was information that ought to have been given to the defence, and the failure to do this was a breach of the appellants article 6 right. The Crown accepted that this was so when it decided to disclose this material, and in his address to this court the learned Solicitor General did not seek to argue otherwise. As for the observation in para 147 that the recollections of PC Lynch and WPC Clark on the point could not be regarded as reliable, it has to borne in mind that disclosure of this material before or during the trial would have opened up lines of cross-examination that were never pursued by the defence. It would also have materially weakened the Crowns attack on the appellant that he had no explanation to give for bringing the rings back to the house on 7 May and the theory that he had retrieved them from Arlenes dead body. He would not have had to provide an explanation if, as the evidence of PC Lynch and WPC Clark suggested, the rings were in the house all along. Of course, the reliability of their evidence would have been called into question. But so too would the reliability of the evidence for the Crown, including the video that was taken during the police search of the bathroom. It seems to me to be plain that the threshold test, as identified in McInnes, is met in this case. We must therefore consider the consequences. The consequences test The Lord Justice Clerk accepted at para 152 that the correct way to proceed was to consider the additional evidence. But, as he had already explained at para 150, he had already decided that this was not to be done by judging its effect on the way the Crown presented its case to the jury. At para 161 he concluded that the circumstantial evidence alone was sufficient to entitle the jury to convict. At para 164 he said that the evidence of Hector Dick, if the jury believed it, transformed the Crown case as it made it much more compelling by providing directly incriminating evidence. At para 166 he said that, on his interpretation of the evidence, it was not essential to a conviction that the jury should accept that the appellant left the rings in the bathroom. At para 167 he said that, on that view of the evidence and leaving aside the speech for the Crown and the directions by the trial judge, he could not see how the proposed new evidence could be of such significance as to require the verdict to be set aside. He acknowledged that, although his own view was that the evidence of the return of the rings was not crucial to the Crown case, the effect of the judges direction about the events of 7 May was to make it so. But he said that this direction had the result of enabling the court to conclude with certainty that the jury found that the appellant put the rings in the bathroom on that day. This approach too cannot be reconciled with the consequences test in McInnes, paras 20 and 24. That test requires the court to assess the consequences of the non-disclosure in the light of what actually happened at the trial in order to determine whether what happened at the trial was unfair. The approach which the Appeal Court took when it was applying the Cameron test was to assess the consequences on the assumption that, had the undisclosed material been available, the trial would have been conducted differently. That, in itself, suggests that the trial that actually happened could be regarded as having been unfair because there was a real possibility that, taking all the circumstances of the trial into account, the jury would have arrived at a different verdict. One cannot, of course, avoid making some assumptions as how the trial might have been conducted if the material had been disclosed to the defence. It will always be a question of degree as to how far it is proper to go in carrying out that exercise. But the purpose of doing this is to assess the extent to which, having regard to the way the case was conducted by the Crown, the material would have weakened the Crown case or strengthened the case for the defence. It is on the case as presented at the trial that the court must concentrate, rather than the case as it might have been presented. It is not for us to speculate as to what the case might have been, much less how the jury would have reacted to it. What the Crown asks us to do, and what it persuaded the Appeal Court to do, was to consider the case on the basis that the discovery of the rings on 7 May was indicative of the appellants guilt for completely different reasons from those advanced at the trial. In effect we were being asked to deal with the case as if we were a new jury trying the case for the first time. This is not permissible. Our task is quite different but entirely clear. As the Appeal Court said in McCreight v H M Advocate [2009] HCJAC 69, 2009 SCCR 743, para 95, it is not the courts task to decide what the outcome of the trial would have been if the trial had been conducted on an entirely different basis. We must ask ourselves whether, in the light of the undisclosed evidence, there is a real possibility that the jury at this trial would have arrived at a different verdict. The proposition that the appellant had returned the rings to the bathroom on 7 May was, as the Advocate Depute said in his address to the jury, the cornerstone of the Crowns case. It is clear, in view of the direction that was then given to them by the trial judge, that the jury must have concluded that the appellant put the rings in the bathroom on 7 May. This was the basis for the Crowns theory that he had obtained the rings from the deceaseds dead body and had placed them in the bathroom to create the impression that she had left the matrimonial home with the intention of turning her back on the life that she had had there. This theory would have been undermined by the evidence of PC Lynch and WPC Clark. It would have been challenged by lines of cross-examination of the Crown witnesses that were never developed at the trial, and by questions that were never put to the appellant in chief or in re-examination. The point could have been made that it was improbable that, if the rings were in the bathroom on 28 and 29 April when the police visited the house, the appellant would have removed them and then chosen to return them on 7 May. The theory that he removed them from the dead body would, if the evidence of PC Lynch and WPC Clark were to be accepted, have been untenable. These and other arguments that the defence would have been able to develop would have struck at the heart of the case that the Crown presented. The trial would have been significantly different had the material that was not disclosed been available. There is a real possibility that this would have been sufficient to raise a reasonable doubt about the Crowns case that the appellant returned the rings to the bathroom on 7 May. If that were so, the jurys verdict would be bound in view of the trial judges direction to have been different. Taking all the circumstances of the trial into account, and the extent to which the way the Crown chose to present the case would have been affected by the disclosure, the conclusion that the consequences test as identified in McInnes has been satisfied seems to me to be inescapable. Conclusion The question, as I have said, is whether the tests which the Appeal Court applied when it decided to dismiss this appeal as if it were a fresh evidence appeal were in essence the same as it would have had to have applied if it had entertained the argument that there had been a violation of the appellants article 6 Convention rights. For the reasons I have given, I think that this question must be answered in the negative. This then raises the question as to what this court should do in order to determine the appeal. This case has come before us as an appeal under paragraph 13 of Schedule 6 to the Scotland Act 1998. Rule 29(1) of the Supreme Court Rules 2009 (SI 2009/1603) provides that, in relation to an appeal, the Supreme Court has all the powers of the court below and that it may, among other things, affirm, set aside or vary any order of judgment made or given by that court: see rule 29(1)(a). Section 118 of the Criminal Procedure (Scotland) Act 1995 provides, among other things, that the High Court of Justiciary may dispose of a conviction by setting aside the verdict of the trial court and quashing the conviction and granting authority to bring a new prosecution in accordance with section 119 of the Act: see section 118(1)(c). The effect of rule 29(1) is that these powers are available to this court too if, having considered the devolution issue, it is satisfied that the answer to it must be that there was a miscarriage of justice in the proceedings in which the appellant was convicted. For the reasons I have given I would hold, applying the McInnes test, that there was a miscarriage of justice at the appellants trial and that the appeal must be allowed. I would, however, remit the question whether authority should be granted to bring a new prosecution under section 119 of the Criminal Procedure (Scotland) Act 1995 for determination by the High Court of Justiciary. As it is its practice not to quash a conviction until consideration has been given to the question whether there should be a retrial, I would remit the case to a differently constituted appeal court to determine that question and, having done so, to quash the conviction. I very much regret any further delay that this decision may lead to in the final disposal of the case. I regret too the distress that it will cause to Arlene Frasers relatives, who were present in court throughout the hearing of the appeal. But it has to be recognised that the appellant was entitled to a fair trial. Any unfairness at the trial may be put right at the stage of an appeal. But for that to be achieved the right tests must be applied, so that the appeal too is fair. The conclusion that I would reach as to what these tests lead to leaves us with no alternative but to make the orders which I have proposed. I have read Lord Hopes judgment and gratefully adopt his account of the facts and the particular circumstances in which this appeal arises. I recognise, of course, as Lord Hope more than once points out, that there is no appeal against the High Court of Justiciary in Scotland in respect of criminal matters and that this courts jurisdiction is limited to consideration of devolution issues only. So far as devolution issues are concerned, however, we have no option but to exercise our jurisdiction and, as again Lord Hope points out, a devolution issue clearly does arise here. Really there can be no doubt that the prosecutor was under a duty to disclose to the defence PC Lynchs precognition of 3 July 2002 (stating that he had seen the rings during the night of 28/29 April 1998) as, indeed, the Advocate Depute plainly would have done had he himself been aware of it. On any possible view of the facts, that precognition was material which might have materially weakened the Crown case or materially strengthened the case of the defence see McInnes v HM Advocate 2010 SLT 266 at paras 19, 28 (and 29) and 39. The accuseds article 6 Convention rights were therefore infringed. The critical question for the Appeal Court was therefore whether, in the result, the trial had been unfair. (It is, of course, clearly established on the cases that not every article 6 failure to disclose disclosable material automatically results in an unfair trial.) As to this, the test of such unfairness is that now authoritatively laid down by this Court in McInnes in short whether, taking into account all the circumstances of the trial, there is a real possibility that the jury would have arrived at a different verdict had the undisclosed material in fact been disclosed to the defence see particularly McInnes at paras 24, 30 and 35. Is this the same test as the Appeal Court in fact applied here, treating the case as they did as a fresh evidence appeal under section 106 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act)? To this question there can only be one answer: clearly it is not, for all the reasons given by Lord Hope at paras 27-38 of his judgment. As Lord Hope observes at para 29, it is exclusively a matter for the High Court of Justiciary what test to apply in appeals which do not raise a devolution issue. As, however, that paragraph also suggests, it would be somewhat bizarre to apply different tests in deciding whether or not there has been a miscarriage of justice depending on whether the Appeal Court is concerned with undisclosed material which should have been disclosed (a devolution issue) or with fresh evidence (not a devolution issue). As I indicated in McInnes (at paras 36 and 37), the test, which is ultimately one for the Appeal Court, is logically the same for fresh evidence appeals as for those involving undisclosed statements. Lest it be suggested that undisclosed statements imply fault on the part of the prosecution (arguably, therefore, calling for a lower test to be applied to whether there has been a miscarriage of justice) whereas fresh evidence may not, I would point out that many fresh evidence cases operate at the very least to expose serious flaws in the prosecution evidence take, for example, the lying main prosecution witness in Dial v State of Trinidad and Tobago [2005] UKPC 4; [2005] 1 WLR 1660 (referred to in para 37 of my judgment in McInnes) or, indeed, the egregiously deficient expert evidence revealed by the fresh evidence in McCreight v HM Advocate 2009 SCCR 743 (a decision to which I shall shortly return). Of course, the route by which the court arrives at the question has there been a miscarriage of justice? differs depending on whether the appeal is brought on undisclosed material or on fresh evidence grounds. As explained in McInnes, the intermediate (article 6) issue arising in any undisclosed material case is: did the non-disclosure make the trial unfair? In a fresh evidence case, by contrast, the appellant must first establish not merely that the fresh evidence is important and reliable but also that there is a reasonable explanation for why it was not adduced at the original trial; only then does the question arise: without it, has there been a miscarriage of justice? Naturally, as Lord Hope points out at para 32, most fresh evidence cases involve no criticism of the original trial proceedings. But ultimately they raise the same question as is raised by the undisclosed material cases. So the McInnes test is, I suggest, equally applicable to both. As I have observed, the McInnes test whether the relevant fresh material, if adduced at trial, might reasonably have affected the decision of the trial jury is one for the Appeal Court. That statement, however, needs this qualification: in certain rare cases the fresh evidence (or, as the case may be, undisclosed statement) will be of such overwhelming overall import as to make it inappropriate for the Appeal Court simply to add it to the original evidence and ask itself whether the jury might still reasonably have convicted. Instead, in such cases, the Appeal Court will have no alternative but to conclude that there has been a miscarriage of justice, and then decide simply whether or not to order a retrial. Such indeed was the conclusion of the Board in Bain v The Queen [2007] UKPC 33 (referred to at para 36 of my judgment in McInnes) given the dramatically different state of the evidence on all the key factual questions in the case at the conclusion of the appeal hearing compared to how they had been presented to the jury at trial. Perhaps more directly relevant to the present case, however, this was precisely the decision reached by the Appeal Court in McCreight to which I have already briefly referred. McCreight concerned a murder appeal brought in the light of fresh expert evidence. The victim had died from chloroform and the appellant was convicted specifically on the basis that he had held a chloroformed rag over her face, her death having been caused by the inhalation, not the ingestion, of chloroform. The fresh evidence exposed a thousand-fold error in the reporting of one particular test originally relied upon and, put shortly, established that death by ingestion alone could no longer be excluded. The Appeal Court rejected the Crowns case that it mattered not which way the chloroform entered the deceaseds body and held that, had the fresh evidence been known at the time, the whole trial would have been conducted entirely differently. In such circumstances, said the court: It is not our task to decide what the outcome of the trial would have been: in a case such as this, that would involve fruitless speculation. Amongst the authorities considered by the Appeal Court in McCreight was, it may be noted, that of the Lord Justice Clerk in the present case. For my part I found the commentary on the case (at p 777 of the report) of assistance: It might be thought that this report is more suitable for publication in a medical journal than in a set of law reports, but although its content is largely medical or scientific and it depends to a large extent on its rather special facts, it is of some legal interest as an example of what might be called a Smith v HM Advocate case, rather than a Fraser v HM Advocate one . . .. That is to say, the fresh evidence was such that the court could not simply add it to the original evidence and ask itself whether the jury would still have convicted. It was not even such that it could be said that if it had been led at the trial the approach of the Crown would have taken account of it, and that the evidence as a whole would still have led the jury to convict. The case does not depend on the terms of the advocate deputes speech or even of the judges charge to the jury. It depends on the more fundamental consideration that the fresh evidence was so overwhelming that it would have affected the whole way in which the trial was conducted. The problem for the Crown was not the approach of the trial depute, but the terms of the indictment, which referred exclusively to inhalation . . .. The resultant miscarriage of justice might be described as the failure to provide the accused with a trial based on the true position, and in that situation it seems that the court will not consider what the result of such a trial might have been. That is an extreme situation unlikely to happen very often, and there are also very few cases in which the original expert evidence is so egregious or at least one hopes so. For the reasons given earlier, we have no alternative but to allow this appeal: the Appeal Court applied the wrong test. Left to myself, however, I should have been inclined to remit the whole matter to that court for reconsideration, leaving it to them to decide, first, whether, in the light of McCreight, PC Lynchs statement is of such overwhelming significance and would have had so fundamental an impact on the whole course of the trial that it is simply not open to the Appeal Court to decide what the outcome of the trial might have been; secondly, assuming that the Appeal Court concluded that PC Lynchs statement was not of such overwhelming significance as that, whether nonetheless, applying the McInnes test, there is a real possibility that the jury would have arrived at a different verdict if the withheld material had been disclosed to the defence. In saying that, I am influenced by what I regard as the great strength of the Crowns evidence as a whole against the appellant. Indeed, there seems to me force in the Appeal Courts own view that the Crowns case is logically stronger still in the light of PC Lynchs statement than without it. Given, however, the view of the majority of this court that the application of the McInnes test here leads inescapably to the conclusion that there was a real possibility that the jury might have arrived at a different verdict ie that this would be the only rational view open to the Appeal Court I shall not carry my own doubts to the point of dissent. In the result, all that will be left for decision by the Appeal Court under section 118 of the 1995 Act is the question whether authority should be granted to bring a new prosecution under section 119. To this end I agree with Lord Hope that the case should be remitted to a different constitution of the Appeal Court to determine that question and having done so to quash the conviction. Needless to say, I share to the full the regret expressed by Lord Hope both as to the delay our decision is likely to cause in the final disposal of the case and as to the distress it will cause to the deceaseds grieving relatives.	The immediate issue in this case is whether the trial at which the Appellant was convicted of murder was fair. The point of law of broader significance is whether it is compatible with Article 6 of the European Convention on Human Rights for an appeal against a criminal conviction on the ground of the Crowns non disclosure of evidence to the defence to be determined by applying the test laid down by the High Court of Justiciary in Cameron v HMA 1991 JC 252 for fresh evidence appeals. Arlene Fraser disappeared from her home in New Elgin on 28 April 1998. Her body has never been found. The Appellant stood trial for her murder in January 2003. He was convicted and sentenced to life imprisonment. The Crowns case was that the Appellant had arranged for his wife to be killed. Part of the evidence against him was that his wifes rings had been discovered in the bathroom of her house on 7 May 1998 after he had visited the house. There was unchallenged evidence that they had not been in the bathroom when the deceased had disappeared. At the trial, the Crown placed considerable emphasis on the return of the rings. In his speech to the jury, the prosecutor (the Advocate Depute) described the return of the rings as the cornerstone of the case against the Appellant. He suggested to the jury that the Appellant had removed the rings from the dead body and placed them in the bathroom to make it look as though his wife had decided to walk away from her life. The trial judge directed the jury that, if they were not prepared to hold that it was the Appellant who placed the rings in the bathroom on 7 May, it was not open to them to convict him. After conviction, it came to light that the Crown had had evidence before the trial suggesting that the rings were in the house on the night of 28/29 April after all. In preparing for the trial, a statement had been taken from PC Lynch on 3 July 2002 in which he had said that he had visited the house that night, before the official police search, and had seen rings in the bathroom. He said that he had been accompanied by WPC Clark. After this information came to light, the Crown carried out further inquiries. Statements were taken in 2006 from PC Lynch and WPC Clark. Both said that they had seen jewellery (including rings) in the bathroom on the night of Arlene Frasers disappearance. The rings were not visible in a video which had been taken during the official search, but subsequent analysis of that video could not rule out the possibility that rings had been present. The Appellant relied upon this information in his appeal against conviction. He argued that it was new evidence which showed that his conviction was a miscarriage of justice. He also sought to raise a devolution issue, arguing that the Crowns failure to disclosure the information obtained from PC Lynch on 3 July 2002 had infringed his right to a fair trial under Article 6 ECHR. The Appeal Court refused to allow him to advance the devolution issue: among other reasons, it held that the points were already covered by the fresh evidence grounds of appeal. The Appeal Court refused the Appellants appeal. It treated the grounds of appeal relating to the Crowns non disclosure in the same way as those relating to new evidence and held that the new evidence was not such as to make the conviction a miscarriage of justice. The Supreme Court granted the Appellant leave to appeal to the Supreme Court. The Supreme Court unanimously allows the appeal. It remits the case to a differently constituted Appeal Court to consider whether to grant authority for a new prosecution and then, having considered that point, to quash the conviction. Lord Hope gives the main judgment, with which Lords Rodger, Kerr and Dyson agree. Lord Brown gives a separate judgment indicating his reservations about allowing the appeal, but does not dissent. The Supreme Court recognises that it has no jurisdiction to consider the test which applies in Scots law to fresh evidence appeals which do not involve a devolution issue. This case, however, involves an issue of non disclosure, which raises the question whether the trial complied with Article 6 ECHR and which is a devolution issue. By refusing the Appellants devolution minute, the Appeal Court did determine a devolution issue and the Supreme Court has jurisdiction to hear an appeal against that determination: [11], [12], [17]. The test which is to be applied to determine whether non disclosure of information by the Crown had resulted in an unfair trial, contrary to Article 6 ECHR, is now set down in the Supreme Courts decision in McInnes v HM Advocate ([2010] UKSC 7). It can be analysed as comprising threshold and consequences components. If the material might have materially weakened the Crown case or might have materially strengthened the case for the defence, it ought to have been disclosed by the Crown. When assessing the consequences of non disclosure, McInnes provides that the trial was unfair and the verdict a miscarriage of justice if there is a real possibility that the jury would have arrived at a different verdict if the withheld material had been disclosed to the defence: [12] [14]. Because it dealt with all of the grounds of appeal as a fresh evidence appeal, the Appeal Court applied the test set down in Cameron v HMA 1991 JC 252. In order to determine whether that approach complies with what McInnes requires in a non disclosure case, the Cameron test and the Appeal Courts application of it must be compared against the McInnes test: [15] [16]. The Cameron test is materially different from the McInnes test: [25], [29]. If fresh evidence is admissible on appeal, the threshold element of the Cameron test asks whether the evidence would have had a material bearing upon the jurys determination of a critical issue at trial. That is more stringent than the threshold test in McInnes ([25]), which was clearly satisfied in this case: had the evidence of PC Lynch and WPC Clark been led at the trial the prosecution would not have committed itself to the theory of the case which it presented and the conduct of the trial by both parties would have been quite different: [32]. In relation to the consequences of the evidence not featuring at the trial, the Cameron test asks whether there has been a miscarriage of justice, which it does not define: [26] [27]. In this case, the Appeal Court considered that question on the assumption that, had the undisclosed material been available at the trial, it would have been conducted differently. As a first stage of its analysis, it left out of account the Advocate Deputes speech to the jury and the judges direction and considered the evidence led at the trial. It considered that the jury had been entitled to convict on the basis of that evidence and concluded that the new evidence was not of such significance as to require the verdict to be set aside: [36]. That approach cannot be reconciled with the McInnes test, which requires an appeal court to concentrate on the case as presented at trial, rather than as it might have been presented. An appeal court is not to deal with the case as if it were a new jury trying the case for the first time. There was a real possibility, in light of the undisclosed evidence, that the jury at this trial would have arrived at a different verdict: if the evidence of PC Lynch and WPC Clark were accepted, the Crowns theory of the case would have been untenable: [37] [39]. Lord Brown agreed that the Appeal Court applied the wrong test. He would have been inclined to remit the whole matter to that court for reconsideration, leaving it to that court to apply the McInnes test. In view of the majoritys decision, he did not carry his doubts to the point of dissent: [51] [52]
Two appeals have been brought to this court from the judgment of the Divisional Court of the High Court in Northern Ireland in In re McGuinnesss Application [2019] NIQB 10. The judgment was given in relation to judicial review proceedings relating to the treatment of Mr Michael Stone, who was convicted of serious offences, is currently in prison, and who maintains that his case should be referred by the Department of Justice for Northern Ireland (the Department) to the Parole Commissioners for Northern Ireland for consideration whether he should be released on licence. The respondent, Mrs McGuinness, the sister of one of the victims of Mr Stones crimes, brought these proceedings against the Department to challenge the lawfulness of its decision to refer Mr Stones case to the Commissioners and was successful in the Divisional Court. The Department appeals and, by a second appeal, so does Mr Stone, who was joined as an interested party in the proceedings. The Attorney General for Northern Ireland has intervened in the appeals in order to raise an issue regarding the jurisdiction of this court to entertain the appeals. That issue concerns the interpretation of section 41(1) of the Judicature (Northern Ireland) Act 1978 (section 41(1) and the 1978 Act, respectively). By virtue of section 41(1), subject to certain conditions, there may be an appeal to the Supreme Court from any decision of the High Court in a criminal cause or matter. The Attorney General submits that the decision of the Divisional Court which is under appeal is not a decision in a criminal cause or matter, on the proper interpretation of that phrase. The Attorney General says that, contrary to what the parties have assumed to be the position, the proper avenue of appeal from the Divisional Court in these judicial review proceedings is to the Court of Appeal in Northern Ireland, not to the Supreme Court. Factual background On 16 March 1988 Mr Stone attacked a group of mourners at Milltown Cemetery, Belfast, killing several of them. One of them was the brother of Mrs McGuinness. On 3 March 1989 Mr Stone was sentenced to life imprisonment and certain concurrent terms of imprisonment, having been convicted of six counts of murder, five counts of attempted murder, three counts of conspiracy to murder and 21 further counts relating to the possession of explosive substances, the possession of firearms and ammunition, causing an explosion and wounding with intent. The trial judge recommended a tariff of 30 years imprisonment. The Belfast Agreement of 1998 between the United Kingdom and Irish governments included provision for the introduction of an early release scheme for certain prisoners convicted of crimes related to sectarian violence in the Troubles. The Northern Ireland (Sentences) Act 1998 (the 1998 Act) gave effect to that part of the Belfast Agreement. Mr Stone made an application under the 1998 Act to the Sentence Review Commissioners (the SRC), seeking early release pursuant to that Act. On 17 February 1999, the SRC made a formal determination acceding to Mr Stones application for a declaration of eligibility for early release. The SRC specified that such eligibility would take effect on 22 July 2000. On 24 July 2000 Mr Stone was released on licence pursuant to the 1998 Act. On 24 November 2006, Mr Stone committed further serious offences, on this occasion at Parliament Buildings, Stormont. He was arrested the same day and was remanded in custody the following day. On 25 November 2006 the Secretary of State for Northern Ireland suspended Mr Stones licence under the 1998 Act. The SRC became seised of his case again. On 6 September 2007 the SRC informed Mr Stone that they were minded to revoke his licence. On 14 November 2008 Mr Stone was convicted of two counts of attempted murder, together with seven further counts, mainly in relation to firearms and explosives offences, in respect of the incident at Stormont. On 8 December 2008 Mr Stone received two determinate sentences each of 16 years imprisonment in respect of his convictions for attempted murder and other determinate sentences of between one and ten years imprisonment, all to run concurrently. Mr Stones subsequent appeals against conviction were dismissed in January 2011. On 6 September 2011 the SRC revoked the licence granted to Mr Stone under the 1998 Act, pursuant to which he had spent the period from 24 July 2000 to 24 November 2006 on release. The Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564) (the 2001 Order) introduced a new regime according to which a life prisoners tariff period before he could be considered for release on licence should be determined by a judge, and not by the Secretary of State. On 29 July 2013, pursuant to the 2001 Order, the Lord Chief Justice of Northern Ireland determined that the tariff in respect of the sentence of life imprisonment imposed on Mr Stone in relation to the incident at Milltown Cemetery in 1988 should be 30 years imprisonment. By letter dated 20 September 2017 the Northern Ireland Prison Service, an agency of the Department of Justice for Northern Ireland, referred Mr Stones case to the Parole Commissioners and notified them that his tariff expiry date would be 21 March 2018. This was on the footing that the period during which Mr Stone had been on release from prison on licence (the contested period) should count towards the 30 year tariff period. On the basis of the same assumption, the Parole Commissioners conducted a three year pre tariff review of Mr Stones case on 20 March 2015. In the event, pursuant to the notice given by the Department, the Parole Commissioners made a formal determination dated 16 April 2018 that he should not be released upon expiry of his tariff. Mr Stone has a right under the 2001 Order to seek a further hearing before the Parole Commissioners, to seek his release on licence. The next hearing was scheduled to take place on 15 January 2019. In the meantime, on 22 November 2018 Mrs McGuinness issued these judicial review proceedings to challenge the Prison Services notification of a tariff expiry date of 21 March 2018. On her submission, the Prison Service erred in law in bringing into account the contested period of release on licence in calculating Mr Stones tariff expiry date. Leaving the contested period out of the calculation, his tariff expiry date would be on or about 22 July 2024. Mrs McGuinness and the Department of Justice made written submissions to the effect that the judicial review was a criminal cause or matter, so that it should be heard by a Divisional Court of the High Court with any appeal being to the Supreme Court, according to section 41(1). As the court explained in its judgment, it was decided that a Divisional Court should hear the case, notwithstanding that the court harboured reservations about whether the case really was a criminal cause or matter; but in view of the need for expedition in a case concerning the liberty of the subject it was decided on a pragmatic basis to treat it as such (para 2). The logic of this was that if it turned out that this is not a criminal cause or matter, any appeal could proceed in the usual way to the Court of Appeal. By contrast if the case proceeded as a normal judicial review without a Divisional Court and it then transpired that it was properly to be classified as a criminal cause or matter, there would be no right of appeal to the Court of Appeal and the opportunity to appeal to the Supreme Court would have been lost as well. The court proceeded in this way because of uncertainty which it thought arose from the jurisprudence on what it described as this troubled subject of the meaning of criminal cause or matter in the statute, including the decisions in In re JR27 [2010] NIQB 12 (JR27) and R (Belhaj) v Director of Public Prosecutions (No 1) [2018] UKSC 33; [2019] AC 593 (Belhaj). Mrs McGuinnesss application for judicial review was heard by the Divisional Court on an expedited basis on 10 January 2019. Its judgment, upholding Mrs McGuinnesss challenge, was delivered on 15 January 2019. On the basis that the Divisional Court was prepared to proceed on the basis that the judicial review was a criminal cause or matter within the meaning of section 41(1), as all the parties were willing to accept, it certified a question of law of general public importance for the purposes of section 41(2) of the 1978 Act. Pursuant to section 41(2), the Supreme Court granted permission to appeal to the Department of Justice and to Mr Stone. However, having learned of this, the Attorney General issued an application to intervene to dispute the assumption that Mrs McGuinnesss application for judicial review constituted a criminal cause or matter within the meaning of section 41(1) and to challenge the jurisdiction of this court to hear the appeals. According to the Attorney General, Mrs McGuinnesss application for judicial review constitutes a civil cause or matter in relation to which an appeal lies from the High Court to the Court of Appeal. The Supreme Court granted permission to the Attorney General to intervene in the appeals and at the hearing of the appeals it also heard full argument on the jurisdiction point raised by him. The 1978 Act regime Section 35 makes provision regarding the jurisdiction of the Court of Appeal to hear appeals from the High Court. It provides in relevant part as follows: (1) Subject as otherwise provided in this or any other statutory provision, the Court of Appeal shall have jurisdiction to hear and determine in accordance with rules of court appeals from any judgment or order of the High Court or a judge thereof. (2) No appeal to the Court of Appeal shall lie except as provided by the following provisions of (a) this Part from any judgment of the High Court in any criminal cause or matter; Section 39 made provision for appeals to the Court of Appeal in respect of convictions before and sentences imposed by the Crown Court (see now Part I of the Criminal Appeal (Northern Ireland) Act 1980, the 1980 Act). Section 40 made provision for appeals to the House of Lords from the Court of Appeal in respect of such matters (see now Part II of the 1980 Act, as amended by the Constitutional Reform Act 2005 to take account of the transfer of jurisdiction from the House of Lords to the Supreme Court). Section 41 (as amended) provides in relevant part as follows: 41. Appeals to Supreme Court in other criminal matters (1) Subject to the provisions of this section, an appeal shall lie to the Supreme Court, at the instance of the defendant or the prosecutor, from any decision of the High Court in a (a) criminal cause or matter; (b) from any decision of the Court of Appeal in a criminal cause or matter upon a case stated by a county court or a magistrates court. (2) No appeal shall lie under this section except with the leave of the court below or of the Supreme Court; and, subject to section 45(3), such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the Supreme Court, as the case may be, that the point is one which ought to be considered by the Supreme Court. (6) any reference to the defendant shall be In this section, (a) construed (i) in relation to proceedings for an offence, and in relation to an application for an order of mandamus, prohibition or certiorari in connection with such proceedings, as a reference to the person who was or would have been the defendant in those proceedings; (ii) in relation to any proceedings or order for or in respect of contempt of court, as a reference to the person against whom the proceedings were brought or the order was made; (iii) in relation to a criminal application for habeas corpus, as a reference to the person by or in respect of whom that application was made, and any reference to the prosecutor shall be construed accordingly; (b) application for habeas corpus means an application for a writ of habeas corpus ad subjiciendum and references to a criminal application or civil application shall be construed accordingly as the application does or does not constitute a criminal cause or matter; (c) the Supreme Court under this section; leave to appeal means leave to appeal to Section 42 (as amended) provides in relevant part as follows: 42. Appeals to Supreme Court in civil cases (1) Subject to the provisions of this section and to any restriction imposed by any statutory provision which has effect by virtue of subsection (6), an appeal shall lie to the Supreme Court from any order or judgment of the Court of Appeal in any civil cause or matter. (2) No appeal shall lie under this section except with the leave of the Court of Appeal or the Supreme Court. Section 120 is the interpretation provision. Subsection (1) provides in relevant part as follows: (1) In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say: action means a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court, but does not include a criminal proceeding by or in the name of the Crown; cause includes any action, suit or other original proceeding between a plaintiff and a defendant, and any criminal proceeding by or in the name of the Crown; defendant includes any person served with any writ of summons or process or served with notice of, or entitled to attend, any proceedings; matter includes every proceeding in court not in a cause; party includes every person served with notice of or attending any proceeding, although not named on the record; plaintiff includes every person asking any relief (otherwise than by way of counter claim as a defendant) against any other person by any form of proceeding, whether the proceeding is by action, suit, petition, motion, summons or otherwise; The use of the phrase a criminal cause or matter The phrase has been used in two different statutory contexts. It was first used in 1873 in the context of a provision governing rights of appeal, and it has been used in later statutes in that context, including now in the 1978 Act in Northern Ireland and equivalent legislation in England and Wales. It has also been used in a different context in section 6 of the Justice and Security Act 2013 (the JSA 2013), in a provision concerned with determining the availability of a special closed procedure for dealing with secret intelligence material relevant to determination of judicial review and other proceedings. Belhaj was concerned with the meaning and effect of the phrase in this latter context. Caution is required in working out the extent to which the judgments in Belhaj provide guidance regarding the meaning of the phrase in the context of rights of appeal. The principle of consistent interpretation of statutory words and phrases across statutes, as referred to in Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402 (Barras) at p 411, only applies where the language and context of the statutory provisions being compared is the same. In Belhaj, all the justices accepted that, for the purposes of the Barras principle, the statutory context of section 6 of the JSA 2013 is different from the statutory context of section 41(1) and its equivalent in England and Wales. In order to understand the contexts in which the phrase a criminal cause or matter has been used, it is relevant to trace briefly the historical background. In the 19th century, English law allowed very little scope for appeals in criminal cases: see Holdsworth, A History of English Law, vol I, p 217. Instead, in 1848 the Court for Crown Cases Reserved was created as a court constituted by a panel of judges to which a judge in a trial on indictment could refer questions of law for authoritative ruling. Where it emerged that a conviction was unsafe, recourse had to be made to the exercise of the prerogative of mercy. However, in addition, the Court of Queens Bench was a superior court which had jurisdiction to control the exercise of jurisdiction by magistrates and other inferior courts in criminal cases, as well as in civil matters, by means of the issue of the prerogative writs and by declaratory and other relief in what are in modern times categorised as judicial review proceedings. By section 4 of the Supreme Court of Judicature Act 1873 (the 1873 Act) the Supreme Court was constituted in two divisions: one of which, under the name of Her Majestys High Court of Justice shall have and exercise original jurisdiction, with such appellate jurisdiction from inferior courts as is hereinafter mentioned, and the other of which, under the name of Her Majestys Court of Appeal shall have and exercise appellate jurisdiction, with such original jurisdiction as hereinafter mentioned By section 16 of the 1873 Act, the High Court was designated a superior court of record and the original jurisdiction of a range of specified courts, including the Court of Queens Bench, was transferred to it. By section 19, the Court of Appeal was given jurisdiction to hear appeals from the High Court, save as set out later in the Act. By section 47, the judges of the High Court were given jurisdiction to hear Crown cases reserved, as follows: The jurisdiction and authorities in relation to questions of law arising in criminal trials which are now vested in the justices of either Bench and the Barons of the Exchequer by the Act of the session of the 11th and 12th years of the reign of Her present Majesty, Chapter 78, intituled An Act for the further amendment of the administration of the Criminal Law, or any Act amending the same [that is, the Court for Crown Cases Reserved], shall and may be exercised after the commencement of this Act by the judges of the High Court of Justice, or five of them at the least, of whom the Lord Chief Justice of England, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer, or one of such chiefs at least, shall be part. The determination of any such question by the judges of the said High Court in manner aforesaid shall be final and without appeal; and no appeal shall lie from any judgment of the said High Court in any criminal cause or matter, save for some error of law apparent upon the record, as to which no question shall have been reserved for the consideration of the said judges (Emphasis added) Section 71 of the 1873 Act provided that: the practice and procedure in all criminal causes and matters whatsoever in the High Court of Justice and in the Court of Appeal respectively, including the practice and procedure with respect to Crown Cases Reserved, shall be the same as the practice and procedure in similar causes and matters before the passing of this Act. Section 100 of the 1873 Act provided definitions of relevant terms equivalent to those in section 120 of the 1978 Act. The 1873 Act included provision (section 20) to abolish the appellate jurisdiction of the House of Lords, but that was never brought into effect. Its implementation was postponed until 1875 by section 2 of the Supreme Court of Judicature (Commencement) Act 1874 and then until 1876 by section 2 of the Supreme Court of Judicature Act 1875 (the 1875 Act), before being repealed by section 24 of the Appellate Jurisdiction Act 1876. Section 71 of the 1873 Act was replaced by section 19 of the 1875 Act, which made similar provision. It was established early on that the last clause of section 47 of the 1873 Act was intended simply to freeze the pre existing position in relation to appeals in criminal cases, both as regards the High Court sitting in place of the Court for Crown Cases Reserved (from which there had been no appeal) and in relation to the other aspects of jurisdiction in criminal cases which were transferred to it; the general intention of the section being not to take away any right of appeal which already existed, but, on the other hand, not to give any new right of appeal in such cases (as Lord Coleridge CJ explained in R (Hargraves) v Steel (1876) 2 QBD 37, p 40; see also pp 41 42 per Mellish LJ and p 42 per Brett JA; and this view was confirmed in R v Fletcher (1876) 2 QBD 43, pp 44 45 per Mellish LJ and pp 46 47 per Brett JA). In the Steel case, an order for costs against a prosecutor in a criminal case made by a master in the Crown Office of the High Court, on the basis of a statutory provision which stipulated that costs should follow the event, was held to be part of the procedure in a criminal matter (p 41 per Lord Coleridge CJ). Therefore, according to section 47 no appeal lay to the Court of Appeal, just as there had been no appeal from such an order when made before the 1873 Act (p 42). In the Fletcher case, the issue was whether the Court of Appeal had jurisdiction in an appeal from the decision of the High Court (Queens Bench Division) by which it had dismissed a claim for a writ of certiorari (now called a quashing order) to quash a summary conviction of the appellant by local magistrates for the offence of trespass in pursuit of game. The High Court had thus affirmed the conviction. The Court of Appeal held that the last clause of section 47 had the effect that it had no jurisdiction to entertain the appeal, because this was a proceeding in a criminal matter. As Brett JA said, the High Courts ruling was in effect a judgment or decision on the question whether a man shall be fined or imprisoned or not (p 47). Mellish LJ was careful to explain that the limitation on the jurisdiction of the Court of Appeal set out in the last clause of section 47 did not extend to all matters on the Crown side of the Queens Bench Division (ie matters relating to habeas corpus and the issue of the prerogative writs), as [T]here are cases on the Crown side which are really civil cases (pp 44 45). In their reasoning regarding Parliaments intention in relation to the last clause of section 47, Mellish LJ and Amphlett JA both emphasised that Parliament could not have intended to have created a regime in which there could be an appeal in a petty criminal matter not just to the Court of Appeal, but onwards to the House of Lords (p 45 and p 47, respectively). The judges accordingly recognised that a material aspect of the context relevant for interpreting the phrase any criminal cause or matter in relation to a provision governing routes of appeal was the effect which any particular interpretation might have on the distribution of business within the appellate courts. The proceedings before the High Court constituted in substance an appeal against the conviction by the magistrates, so what was in issue was whether there should be a second appeal to the Court of Appeal and the possibility of a third appeal to the House of Lords. The Supreme Court of Judicature Act (Ireland) 1877 followed the scheme of the 1873 and 1875 Acts. Section 50 followed the drafting of section 47 of the 1873 Act. In Ex p Woodhall (1888) 20 QBD 832 a magistrate committed the appellant to prison under section 10 of the Extradition Act 1870 with a view to her extradition to the USA to face trial there. The appellant applied to a Divisional Court of the Queens Bench Division of the High Court for a writ of habeas corpus on the ground of a procedural error by the magistrate, who had refused to postpone the hearing of the case to allow time for the appellant to adduce more evidence. The High Court refused the application and the appellant sought to appeal to the Court of Appeal. That court held that by virtue of section 47 of the 1873 Act it had no jurisdiction to entertain the appeal, as it was a criminal cause or matter. Lord Esher MR (as Brett JA had become) said that the case which helps one most to the true construction of that phrase was Fletcher, following Steel (p 835). He said that the decided cases showed that this phrase in section 47 should receive the widest possible interpretation. The intention was that no appeal should lie in any criminal matter in the widest sense of the term, [the Court of Appeal] being constituted for the hearing of appeals in civil causes and matters. (p 835) In context, what he meant by this was that the phrase should be given a wide interpretation in order to secure the object of the 1873 Act as identified in the earlier cases, which he confirmed, by quoting from the judgment of Mellish LJ in Fletcher referring to his judgment in Steel, was to leave the procedure in criminal cases substantially unaltered (p 836). Lord Esher MR recapitulated the position in this way: I think that the clause of section 47 in question applies to a decision by way of judicial determination of any question raised in or with regard to proceedings, the subject matter of which is criminal, at whatever stage of the proceedings the question arises (p 836). The decision of the High Court in refusing habeas corpus was a decision by way of judicial determination of a question raised in or with regard to the proceedings before the magistrate, and the subject matter of those proceedings was criminal in nature; so the Court of Appeal had no jurisdiction. Lindley LJ and Bowen LJ agreed, though expressing themselves in different language. Lindley LJ, like Lord Esher MR, said that the true construction of the phrase was that given by Mellish LJ in Steel (pp 837 838) and likewise held that the proceedings in the High Court were a criminal cause or matter, since the object of the extradition was for the appellant to be sent for trial in the USA (p 837). Bowen LJ emphasised that the questions upon which the application for a writ of habeas corpus depended, which in view of the double criminality rule in extradition cases included whether or not there was evidence sufficient according to English law to justify the appellant being committed for trial, were criminal in nature (p 838). Lord Esher MR and Lindley LJ indicated that there were other habeas corpus proceedings which were civil in nature in which an appeal would lie. In 1908 the Court of Criminal Appeal was created pursuant to the Criminal Appeal Act 1907 (the 1907 Act) to hear appeals from superior courts exercising criminal jurisdiction outside the Crown side of what was then the Kings Bench Division. The Court of Criminal Appeal was not part of the Supreme Court of Judicature and the jurisdiction of the Court of Appeal to deal with all civil matters was unaffected. The jurisdiction for Crown Cases Reserved was transferred from the High Court to the Court of Criminal Appeal. The experience of the Court of Criminal Appeal in reviewing criminal cases and finding a significant number of errors in criminal trials quickly dispelled any scepticism about the value of having a regular and accessible appellate jurisdiction in this area: Holdsworth, A History of English Law, vol I, pp 217 218; Glover Alexander, The Administration of Justice in Criminal Matters (in England and Wales) (1915), pp 128 129; Cornish et al, Law and Society in England 1750 1950, 2nd ed (2019), pp 601 602. Section 1(6) of the 1907 Act provided that a decision of the Court of Criminal Appeal should be final, save that there could be an appeal to the House of Lords if a party obtained the certificate of the Attorney General that the decision raised a point of law of exceptional public importance and that it was desirable in the public interest for there to be a further appeal. Again, Parliaments concern to ensure a coherent and principled distribution of business between appellate courts is evident. The effect of the final clause of section 47 of the 1873 Act was preserved in section 31(1)(a) of the Supreme Court of Judicature (Consolidation) Act 1925 (the 1925 Act), which stated: No appeal shall lie (a) except as provided by the Criminal Appeal Act 1907 or this Act, from any judgment of the High Court in any criminal cause or matter. The general jurisdiction of the High Court was continued: section 18. Section 27 continued the general jurisdiction of the Court of Appeal to hear and determine appeals from the High Court, [s]ubject as otherwise provided in this Act. Section 225 re enacted equivalent definitions of relevant terms as in section 100 of the 1873 Act. By the time of the leading decision of the House of Lords in relation to this provision in Amand v Home Secretary [1943] AC 147 (Amand), a considerable body of case law had developed. This was reviewed in Amand. That case concerned a soldier in the Netherlands army in Great Britain during World War II who was arrested as being absent without leave and taken before a magistrate with a view to being handed over to the Netherlands military authorities pursuant to the Allied Forces Act 1940 for punishment according to military law. He applied to the High Court for a writ of habeas corpus, which was refused. The Court of Appeal held that the judgment of the High Court was in a criminal cause or matter, with the result that by virtue of section 31(1)(a) of the 1925 Act it had no jurisdiction to hear the appeal. The House of Lords upheld that ruling. As the headnote accurately summarises the decision, the distinction between cases in which the Court of Appeal has jurisdiction to entertain an appeal from a refusal to grant a writ of habeas corpus and those in which it does not turns on the nature and character of the proceeding in which the writ is sought: If the matter is one, the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal and there can be no appeal to the Court of Appeal. The appellate committee emphasised that the wide application of section 31(1)(a), following R v Fletcher and Ex p Woodhall, was required to avoid an unduly narrow focus on the nature of the particular proceedings before the High Court (which could in some respects be regarded as civil) and instead to require a focus on the nature of the underlying proceedings in relation to which the High Court was asked to intervene. As Lord Wright said, looked at in this way, the situation in Amand was closely similar to a case in which the High Court was invited to intervene in extradition proceedings, as in Ex p Woodhall (p 162: It only differs from an extradition case in that the foreign authority which has power to try and punish, exercises that power in England, in virtue of the special provisions of the Allied Forces Act ). At pp 159 160 Lord Wright explained: The words cause or matter are, in my opinion, apt to include any form of proceeding. The word matter does not refer to the subject matter of the proceeding, but to the proceeding itself. It is introduced to exclude any limited definition of the word cause. In the present case, the immediate proceeding in which the order was made was not the cause or matter to which the section refers. The cause or matter in question was the application to the court to exercise its powers under the Allied Forces Act and the order, and to deliver the appellant to the Dutch military authorities. It is in reference to the nature of that proceeding that it must be determined whether there was an order made in a criminal cause or matter. That was the matter of substantive law. At p 162 Lord Wright referred to the speech of Viscount Cave in In re Clifford and OSullivan [1921] 2 AC 570, 580 (a case in which the underlying proceeding was held not to be criminal in nature): Viscount Cave said there must be two conditions fulfilled to satisfy the word criminal. There must be the consideration of some criminal offence charged under criminal law, and the charge must be preferred or about to be preferred before some court or judicial tribunal having or claiming jurisdiction to impose punishment for the offence or alleged offence. What I think Viscount Cave was particularly emphasizing was the latter condition. In his opinion, the military officers who purported to try the men and pass sentence, were in no possible sense a court martial or a court of any kind. The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a criminal cause or matter. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country, but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered, an order in a criminal cause or matter, as is shown by Ex p Woodhall and Rex v Brixton Prison (Governor of), Ex p Savarkar [1910] 2 KB 1056. Viscount Simon LC (with whom Lord Atkin and Lord Thankerton agreed) likewise emphasised the similarity with extradition proceedings, in which no appeal would lie to the Court of Appeal. He went on (p 156): It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal. This is the true effect of the two conditions formulated by Viscount Cave in In re Clifford and OSullivan. Lord Porters speech was to similar effect. An appeal from the High Court would not lie in a case in which the magistrate in the proceedings under review there purported to be exercising criminal not civil jurisdiction, and the decision of the High Court was given in that matter (p 164), and: The proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding, but it need not itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the magistrate in jeopardy of a criminal charge: see Ex p Pulbrook [1892] 1 QB 86, and Rex v Brixton Prison (Governor of), Ex p Savarkar. If these principles be sound, and I believe they are, the only remaining question is whether the appellant, when he was brought before the magistrate, was put in peril of trial and punishment upon a criminal charge. Amand remains the leading decision at the highest level regarding the meaning of the phrase criminal cause or matter in the context regarding rights of appeal. Three points may be made about it. First, the wide interpretation of the phrase is required to direct attention to the nature of the underlying proceedings in which the High Court is asked to intervene, rather than focusing on the abstract categorisation of the proceeding in the High Court itself. Secondly, as Lord Wright put it, the word matter does not refer to the subject matter of the proceeding, but to the proceeding itself. It is not sufficient for the underlying proceeding to relate to a subject matter which might be described as criminal in a broad sense; the proceeding itself has to be criminal in nature. Thirdly, in order for the proceeding (in respect of which an application is made to the High Court to intervene) to be a criminal matter the two conditions identified by Viscount Cave must be satisfied, so that it can be said that the applicant is put in jeopardy of criminal punishment by the proceeding; and such jeopardy has to be the direct outcome of the proceeding (p 156 per Viscount Simon LC). Although the House of Lords in Amand was not giving an exhaustive definition of the phrase, it identified the paradigm type of case which is covered by it. Any extension beyond that type of case would require to be clearly justified. Section 1(1)(a) of the Administration of Justice Act 1960 (the 1960 Act) created a right of appeal to the House of Lords at the instance of the defendant or the prosecutor, (a) from any decision of a Divisional Court of the Queens Bench Division in a criminal cause or matter; (b) from any decision of the Court of Criminal Appeal on an appeal to that court. Section 1(2) provided: No appeal shall lie under this section except with the leave of the court below or of the House of Lords; and such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by the House of Lords. Section 18 of and the Second Schedule to the 1960 Act made parallel provision in respect of appeals in relation to Northern Ireland. Again, as with section 1(6) of the 1907 Act, Parliaments concern that the time of the House of Lords, as the highest court within the legal system, should not be unduly taken up with routine appeals in criminal matters (however meritorious such appeals might be with reference to the particular facts) is clear. Accordingly, the scope for an appeal from the High Court in a criminal cause or matter (in an application for certiorari or other public law relief and in those cases where an appeal in a criminal case lay to the High Court) was far more restricted than in a civil matter. The reference in section 1(1) of the 1960 Act to the application being made at the instance of the defendant or the prosecutor in relation to a decision within sub paragraph (a) shows Parliaments understanding, in line with the decision in Amand, that for a proceeding to qualify as a criminal cause or matter a person had to be placed in jeopardy of criminal trial and punishment as the direct outcome of that proceeding, such that it was possible to identify the defendant and the prosecutor in respect of it. The same point applies in relation to section 41(1) of the 1978 Act. The 1960 Act also made new provision in relation to appeals in habeas corpus proceedings (section 15 and, for Northern Ireland, section 18(3)) and in cases of contempt of court. Section 17(1) provided: In this Act any reference to the defendant shall be construed (a) in relation to proceedings for an offence, and in relation to an application for an order of mandamus, prohibition or certiorari in connection with such proceedings, as a reference to the person who was or would have been the defendant in those proceedings; (b) in relation to any proceedings or order for or in respect of contempt of court, as a reference to the person against whom the proceedings were brought or the order was made; (c) in relation to a criminal application for habeas corpus, as a reference to the person by or in respect of whom the application was made, and any reference to the prosecutor shall be construed accordingly. This provision reinforces the inference that Parliament intended the phrase criminal cause or matter to refer to proceedings in which an individual, the defendant, is directly in jeopardy pursuant to a process potentially leading to his punishment under the criminal law in this jurisdiction or abroad. The Court of Criminal Appeal continued to have jurisdiction to hear appeals in criminal cases other than from the High Court. It seems that this distribution of routes of appeal was chosen because the High Court was a court of co ordinate jurisdiction with the Court of Criminal Appeal. Both were constituted of High Court judges (or in the case of the Divisional Court, often a Lord Justice of Appeal and High Court judges). The Court of Criminal Appeal regularly sat as a court of three High Court judges. The Criminal Appeal Act 1966 abolished the Court of Criminal Appeal and transferred its jurisdiction to the Court of Appeal. Thereafter, the Court of Appeal operated as a court with a civil division and a criminal division. The 1978 Act for Northern Ireland, which is in issue in this appeal, replicated with relevant adjustments the basic appeal structure which existed in England and Wales and re enacted for Northern Ireland equivalent provisions governing appeals from the High Court to the Court of Appeal and to the House of Lords. What is now called the Senior Courts Act 1981 (the 1981 Act) preserved this distribution of appellate jurisdictions for England and Wales. The general jurisdiction of the Court of Appeal for appeals from the High Court is preserved by sections 15 and 16, but subject to other provision in the 1981 Act or other specified legislation. Section 19 preserves the general jurisdiction of the High Court as before. Section 18(1)(a) provides: No appeal shall lie to the Court of Appeal (a) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter. Section 151 of the 1981 Act enacted similar definitions to those used in the 1873 Act and the 1978 Act. By section 31, the 1981 Act also modernised the procedure for seeking relief pursuant to the prerogative writs by introducing the application for judicial review, which is now the relevant procedure to be used in proceedings in respect of control of public bodies according to rules of public law. A somewhat tangled jurisprudence regarding the meaning of the relevant phrase in the context of the creation of rights of appeal continued to develop after the 1960 Act and the 1981 Act. It was reviewed in detail by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court [2011] EWCA Civ 1188; [2011] 1 WLR 3253 (Guardian News). In that case, Lord Neuberger of Abbotsbury MR said that any sort of final coherence in relation to the scope and effect of section 18(1)(a) [of the 1981 Act] can only be provided by the Supreme Court (para 43). The Justice and Security Act 2013 and Belhaj By contrast with the statutory provisions referred to above, section 6 of the JSA 2013 is not concerned with routes of appeal. Rather, it makes provision for a court seised of relevant civil proceedings to make a declaration that they are proceedings in which a closed material application may be made to the court. Section 6(11) states that relevant civil proceedings means any proceedings (other than proceedings in a criminal cause or matter) before (a) the High Court, (b) the Court of Appeal, (c) the Court of Session, or (d) the Supreme Court. The closed material procedure allows for the presentation to the court in those proceedings of sensitive material the disclosure of which would be damaging to the interests of national security, with the material being withheld from the opposing party but subjected to review by the court in private session with the benefit of submissions from a special advocate to represent the interests of that party in the closed session. When use of the closed material procedure is authorised under this provision, the effect is that there is a limited departure, where justified, from usual standards of openness of justice and equality of arms. In Belhaj, the claimants brought judicial review proceedings against the Director of Public Prosecutions (DPP) to challenge his decision not to bring prosecutions in respect of alleged criminal offences said to have been committed by an officer of the Secret Intelligence Service in respect of unlawful rendition of the claimants from Thailand to Libya, made on the grounds that there was insufficient evidence for there to be any realistic prospect of conviction. The Secretary of State for Foreign and Commonwealth Affairs applied for a declaration under section 6 of the JSA 2013 to allow the use of the closed material procedure. The claimants contended that the judicial review proceedings constituted a criminal cause or matter for the purposes of section 6, so that the court had no power to authorise the use of that procedure. The Divisional Court of the High Court (Irwin LJ, and Popplewell J who agreed with his judgment) rejected that contention, holding that the proceedings were civil in nature: [2017] EWHC 3056 (Admin); [2019] AC 593. Irwin LJ distinguished the position as regards the use of the phrase in the different context of setting out routes of appeal. The appeal to this court was allowed by a majority of three to two. However, all the justices agreed that the context of the JSA 2013 and the context of the statutory provisions regarding routes of appeal were very different, with the result that the Barras principle was not applicable so as to require the transposition of the case law on the meaning of the phrase criminal cause or matter in the latter context into the former: see para 19 (Lord Sumption, with whom Baroness Hale of Richmond and Lord Mance agreed, although Lord Mance also gave a concurring judgment) and paras 44 51 (Lord Lloyd Jones, with whom Lord Wilson agreed). Instead, all the justices considered the ordinary meaning of the phrase, as read in the light of the mischief or rationale for the introduction of the closed material procedure in the JSA 2013 as set out in the preceding Justice and Security Green Paper (October 2011) (Cm 8194) (albeit they came to opposing conclusions on that basis): paras 20 24 (Lord Sumption), paras 26 37 (Lord Mance) and paras 52 57 (Lord Lloyd Jones). Lord Sumption noted that the DPP and the Secretary of State accepted that an application for judicial review of the prosecutorial decision at issue in Belhaj was a proceeding in a criminal cause or matter for the purpose of any right of appeal: para 18. He said that his view about the natural meaning of the words was in line with the view of Lord Esher MR in Ex p Woodhall and Lord Wright in Amand: para 20. Lord Sumption observed that counsel for the Secretary of State had accepted that judicial review of an extradition order would be a proceeding in a criminal cause or matter and continued: On that footing it seems to me to be impossible to contend that this judicial review was anything else. The reality of the appellants application is that it is an attempt to require the Director of Public Prosecutions to prosecute [the officer]. That is just as much a criminal matter as the original decision of the Director not to prosecute him. In what follows I discuss (1) the statutory scheme; (2) the position of the Lord Lloyd Jones agreed that in the context of the provisions regarding routes of appeal, judicial review both of decisions to prosecute and of decisions not to prosecute would qualify as decisions in a criminal cause or matter, so that an appeal would lie to the House of Lords or, now, the Supreme Court: para 47(5). Discussion present case in the statutory scheme; and (3) recent authority. (1) The statutory scheme It is unsatisfactory that there should be uncertainty regarding the meaning of the important procedural provisions in section 41(1) of the 1978 Act (for Northern Ireland) and section 18(1) of the 1981 Act (for England and Wales: section 18(1)). The phrase a criminal cause or matter as employed in those provisions defines a legal category of cases before the High Court for which there is only a highly circumscribed possibility of appeal to the Supreme Court, involving specified procedural hurdles; and outside which there is the usual right of appeal to the Court of Appeal, involving different procedural hurdles. Parties in a matter before the High Court need to be able to understand into which category their case falls, so that if they want to appeal they can know what their right of appeal is and how it may be exercised. Parliament intended that these procedural provisions should have a reasonably fixed and readily comprehensible effect. By the time of the enactment of section 41(1) (for Northern Ireland) and section 18(1) (for England and Wales), the original rationale of freezing rights of appeal as they stood in 1873 was long in the past and provides no sound guide to the interpretation of the relevant phrase. There have been substantial changes in the relevant context both in procedural terms and in terms of substantive law. There are considerably wider rights of appeal in criminal cases and the value of appeal rights has come to be recognised as it was not in 1873. The substantive law of judicial review to control the activities of public authorities and inferior courts when exercising administrative discretions in dealing with the public continued to grow throughout the 20th century and is recognised as a major protection for the rights and liberty of citizens. The direct link back to the legal position in 1873 has been broken not once but twice, by the enactment of a consolidation Act in 1925 (which is a factor which reduces the relevance of the fine detail of preceding law: see Farrell v Alexander [1977] AC 59) and by the revision of the law by the 1978 Act and the 1981 Act in light of the 1960 Act regarding appeals in a criminal cause or matter to the House of Lords. The Divisional Court described the jurisprudence on this subject as troubled. It is true that over the years since the first introduction of the phrase in the 1873 Act there has been a fairly steady trickle of cases about it, but in my view the true position should be regarded as settled, albeit that difficulties sometimes arise in marginal cases. In my opinion, for reasons which appear below, the present case is not a marginal case. According to the relevant criteria established in the case law, the present proceedings do not constitute a criminal cause or matter. In the procedural context in which section 41(1) and section 18(1) apply, two basic features of the regime of appeal rights are important. First, the appeal rights in relation to a decision by the High Court in a criminal cause or matter are directed primarily to maintaining the coherence of the legal system, rather than to rectifying errors which are made by courts in individual cases. An appeal is to the Supreme Court and is only possible if a point of law of general public importance has been certified, and even then only if permission is granted. These restrictive conditions reflect the need to ration access to the highest court, which has to deal with appeals across the whole range of cases in the three jurisdictions in the United Kingdom. However, there will be many cases in which an appellant may have a meritorious complaint about a decision made by the High Court which is not corrected because it happens not to raise of point of law of general public importance. Secondly, in contrast, in all other cases appeal rights from the High Court to the Court of Appeal are directed to ensuring that errors at first instance in individual cases can be rectified. Generally, in these cases, an appellant only needs to show that they have an arguable case with a real prospect of success to be able to appeal. They do not need to show in addition that their appeal gives rise to a point of general public importance. Accordingly, an overly expansive interpretation of the phrase a criminal cause or matter in section 41(1) and section 18(1) would have the effect of reducing to an unacceptable degree parties access to justice at appellate level, leaving pockets of unchallengeable, potentially erroneous first instance decisions. The importance of appeal rights to rectify errors in individual cases, including when no point of law of general public importance is in issue, has long been recognised across the legal system in both the civil sphere and the criminal sphere (in the latter case, in particular since the success of the 1907 Act and the prevalence of worrying errors by first instance courts which the implementation of that Act revealed). The former acceptance that there should be an emphasis on finality of disposal in criminal cases which underlay the position prior to 1873 and was to some degree encapsulated in section 47 of the 1873 Act has, since the early 20th century, been greatly eroded. Therefore, in construing the intended meaning and effect of the criminal cause or matter phrase in the context of the operation of the modern statutes which define rights of appeal, namely the 1978 Act and the 1981 Act, it is to be inferred that the intention is that the phrase defines a reasonably tightly drawn category of case focused directly on the process for bringing and determining criminal charges. At the same time, Parliament obviously intended that cases with a direct bearing on that process should be captured by the phrase, without drawing subtle and ultimately unsustainable distinctions depending on the precise nature of the procedure by which a matter concerning the process for bringing and determining criminal charges might be brought before the High Court. This was the point emphasised in the early case law, as reviewed above, as justifying the widest possible interpretation of the phrase (see Ex p Woodhall). That is to say, the phrase was to be given the widest possible interpretation in order to catch those cases with a clear and direct connection to the process for bringing and determining criminal charges, by contrast with the narrow interpretation urged by counsel in those cases which sought rather to focus on the nature of proceedings in the High Court (where a claim for habeas corpus or for the prerogative writs might be classified as a civil claim). Although a claim in the High Court for habeas corpus or for one of the prerogative writs could not itself readily be described as a criminal cause, as defined, the significance of the words or matter is to widen the meaning of the phrase so as to create a category defined, in effect, by reference to the criminal nature of the underlying proceedings in respect of which the decision under review in the High Court was taken (see Amand at pp 159 160 per Lord Wright and Belhaj, paras 17 and 20 per Lord Sumption). Over the years, the courts have settled on an interpretation of the phrase which accommodates both these points. The process for bringing a criminal charge against a person under domestic law begins with a decision to prosecute. It was authoritatively established by the decision of the House of Lords in Provincial Cinematograph Theatres Ltd v Newcastle upon Tyne Profiteering Committee (1921) 90 LJ (KB) 1064, in reliance on Ex p Woodhall, that a resolution by the committee to authorise their clerk to take steps to bring a prosecution for a criminal offence was an inherent part of the process for bringing a criminal charge, so that a decision on judicial review of that resolution in the High Court was a decision in a criminal cause or matter within the meaning of the final clause of section 47 of the 1873 Act and no appeal lay to the Court of Appeal. As Lord Sumner put it at p 1068, It seems to me that the commencement of those proceedings by passing the resolution was itself the commencement of a criminal matter, because in one unbroken proceeding, although no doubt by various steps and processes, the termination of the whole matter was fine or imprisonment. Similarly, steps taken to institute extradition proceedings against a person with a view to the bringing and determination of criminal charges in a foreign jurisdiction are an inherent part of the process of bringing and determining a criminal charge, so it has long been recognised, as established in Ex p Woodhall and affirmed in Amand, that an application in the High Court for habeas corpus or for one of the prerogative writs on judicial review to interrupt that process is a criminal cause or matter. Although the early cases were concerned with judicial review in the High Court of decisions to prosecute (or to allow extradition to proceed), it is now established that judicial review of a decision in an individual case not to bring forward a criminal charge in relation to a particular matter is of the same character and qualifies as a decision by the High Court in a criminal charge or matter within the meaning of section 41(1) and section 18(1), so that again no appeal lies to the Court of Appeal. This was assumed to be the position in R (Pretty) v Director of Public Prosecutions (Secretary of State for the Home Department intervening) [2001] UKHL 61; [2002] 1 AC 800 (Pretty) (judicial review challenge to the refusal of the DPP to undertake not to prosecute the claimants husband if he assisted her to commit suicide) and R (Corner House Research) v Director of the Serious Fraud Office (JUSTICE intervening) [2008] UKHL 60; [2009] AC 756 (Corner House Research) (judicial review challenge to the decision of the Director not to commence a prosecution against a potential defendant). There is a strong case for the assimilation of such cases concerning decisions not to prosecute a person with cases concerning decisions to prosecute. A prosecution authority might at the same time have to consider whether to bring prosecutions against two defendants in respect of the same matter and based on the same evidence, and decide in the one case to proceed and in the other not to proceed; if judicial review challenges were brought, it would be very contrived to place the two cases in different categories for the purposes of section 41(1) and section 18(1) (see also Belhaj, para 20, per Lord Sumption). The position was put beyond doubt by the judgments in Belhaj, a case concerning judicial review of a decision not to prosecute, which state in terms that this was a proceeding in a criminal cause or matter for the purpose of any right of appeal: paras 18 and 20 (Lord Sumption) and para 47(5) (Lord Lloyd Jones). See also R (Thakrar) v Crown Prosecution Service [2019] EWCA Civ 874; [2019] 1 WLR 5241. Two comments may be made about the limits of the criminal cause or matter phrase regarding the commencement of (or decision not to commence) criminal proceedings. First, the decision has to relate to the question of prosecution of a specific person in relation to a particular criminal offence, as in Pretty and Corner House Research. Those cases may be contrasted with R (Purdy) v Director of Public Prosecutions [2009] UKHL 45; [2010] 1 AC 345, which concerned a judicial review of the refusal of the DPP to publish details of his policy as to the circumstances in which a prosecution would be brought for the offence of aiding or abetting suicide contrary to section 2(1) of the Suicide Act 1961. This was not directly concerned with a decision whether to prosecute an individual and all counsel and all the courts involved assumed, rightly, that the proceedings were not a criminal cause or matter and hence should proceed by appeal from the High Court to the Court of Appeal and from there to the House of Lords, as they did. See also R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38; [2015] AC 657 (Nicklinson), concerning claims for a declaration of incompatibility of section 2(1) with Convention rights under the Human Rights Act 1998 (the HRA) and regarding the content of the DPPs policy in relation to commencement of prosecutions for offences under that provision, which also proceeded by appeal to the Court of Appeal; and R (Conway) v Secretary of State for Justice (Humanists UK intervening) [2018] EWCA Civ 1431; [2020] QB 1 (Conway) (another claim for a declaration of incompatibility in relation to section 2(1) of the 1961 Act). Secondly, the tort of malicious prosecution is concerned with the malicious preferment of an unreasonable criminal charge against the claimant (see Clerk & Lindsell on Torts, 22nd ed (2018), ch 16). However, proceedings in the High Court concerning the tort are not categorised as proceedings in a criminal cause or matter. This is because the proceedings themselves have no bearing on the determination of a criminal charge against a person. The simple fact that, as a matter of language, without regard to context, one might describe a decision in such a case as a criminal cause or matter is not sufficient to engage section 41(1) or section 18(1). The next stage of the criminal process is the trial of a person on a criminal charge. Where the High Court is invited to exercise its judicial review powers in relation to this, the proceedings in that court are directly related to the trial and qualify as a criminal cause or matter, as the Fletcher case made clear. However, various matters can arise for decision in the course of a criminal trial which are collateral to the criminal process and which have stronger affinities with civil cases regarding compliance by a public authority (including a court) with its general obligations under public law. Judicial review proceedings in the High Court in relation to these matters are not categorised as a criminal cause or matter, so normal rights of appeal to the Court of Appeal apply. This is the type of case discussed in the judgment of Lord Neuberger MR in the Court of Appeal in the Guardian News case. He there discusses in detail many of the authorities bearing on the application of the phrase in relation to review in the High Court of various steps taken or orders made by criminal courts in the course of conducting criminal proceedings. Examples include a decision by a judge in a criminal trial whether to order disclosure to a newspaper of documents relating to that trial (as in Guardian News itself) and a decision in criminal proceedings to make an order estreating a recognisance (R v Southampton Justices, Ex p Green [1976] QB 11). For present purposes, it is not necessary to traverse the same ground. This is not the occasion to try to resolve every uncertainty and to rule upon every marginal case that has arisen. Finally, there is the type of case of which the Steel decision is illustrative, where an order is made (either by the High Court or the court which conducted the trial of a person on a criminal charge) which is directly consequential upon the outcome of the criminal process. In Steel, the order made by the High Court was identified as being part of the criminal process and hence was likewise categorised as a criminal cause or matter. The limit to this principle is illustrated by R v Secretary of State for the Home Department, Ex p Dannenburg [1984] QB 766. In that case, the Court of Appeal held that a decision of the Divisional Court refusing to quash a recommendation for deportation made by justices after the conviction of the defendant for several offences was a decision in a criminal cause or matter (since the recommendation for deportation formed an integral part of the criminal proceedings in which it was made). But it was also held that the Divisional Courts decision on judicial review of the subsequent decision of the Secretary of State to deport pursuant to that recommendation was not a criminal cause or matter, so that the ordinary right of appeal to the Court of Appeal was applicable in relation to that decision. The speeches in Amand, in the passages set out above, explain how to identify what counts as a decision in a criminal cause or matter for the purposes of knowing which appeal rights apply. This involves asking the question in relation to the proceedings which underlie those in the High Court: are they proceedings the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so (p 156 per Viscount Simon LC) and which, if carried to [their] conclusion, might result in the conviction of the person charged and in a sentence of some punishment (p 162 per Lord Wright)? If so, the proceedings in the High Court to challenge such criminal process will be categorised as a criminal cause or matter, taking their character from the nature of those underlying proceedings. This guidance strikes a coherent and principled balance regarding rights of appeal, giving appropriate but not excessively wide content to the phrase a criminal cause or matter in the present statutory context. (2) The position of the present case in the statutory scheme The common issue raised by Mrs McGuinness in her claim in the present case and by the Department of Justice and by Mr Stone in their appeals does not relate to the commencement or conduct of any underlying criminal process involving Mr Stone. He is not currently the subject of any outstanding, undetermined criminal charge against him on which he is to be tried and may be subjected to sentence. The present proceedings are concerned with whether the Department of Justice has correctly understood and implemented a criminal sentence imposed on Mr Stone in the past. The criminal process against him was exhausted before the Department of Justice took the decision which is under challenge in these proceedings. Applying the guidance in Amand, therefore, the High Courts decision was not in a criminal cause or matter. The relevant right of appeal is to the Court of Appeal, not to the Supreme Court. That conclusion gains further support from a number of matters. First, since the 1873 Act the relevant statutes have provided for a general right of appeal from the High Court to the Court of Appeal. The criminal cause or matter category operates as an exception to that general right. It is appropriate that it should be construed in a way which is focused with some precision on an underlying criminal process which is under review in the High Court, so that it does not improperly undermine the general right of appeal which the relevant statutes confer. Secondly, the decision making process of the Department is not at all like a judicial criminal process against a defendant on a charge. Therefore the judicial review proceedings in the High Court here are not equivalent to an appeal in relation to a judicial proceeding, as in cases like Fletcher, Ex p Woodhall and Amand. Accordingly, the aspect of the underlying rationale for section 41(1) and section 18(1) which is to limit the scope for what can in substance be regarded as a second appeal does not apply. The Divisional Courts decision in this case is the first judicial decision in relation to the matter at issue, and it is desirable that it should be capable of being tested on appeal by whichever side is aggrieved at the outcome, according to the usual merits based right of appeal to the Court of Appeal. It is true that in cases involving judicial review of the exercise of prosecutorial discretion (eg the Provincial Cinematograph Theatres Ltd case) or the award of costs (eg Steels case) there is no element of a second appeal, but that is an argument for focusing the interpretation of the criminal cause or matter rubric in relation to them quite tightly, as has happened. Thirdly, application of the guidance in Amand ensures that overall coherence regarding the availability of the right of appeal to the Court of Appeal is maintained in relation to cases which raise similar issues. R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19 (Evans (No 2)) was a case in which the governor had to calculate the claimants due date for release on licence in respect of a determinate prison sentence according to a statutory formula. The governor followed guidance in a series of cases to delay the claimants release, but the claimant brought judicial review proceedings to challenge this calculation of the release date and to claim damages for false imprisonment (see the account of the proceedings given by Lord Hope of Craighead at p 30). The Divisional Court held that, on proper construction of the statutory provisions, the claimant should have been released on an earlier date and granted her declaratory relief accordingly, and her claim for damages was adjourned to be decided on a later occasion. In due course that claim was dismissed, and she appealed successfully to the Court of Appeal (and the governors further appeal to the House of Lords was dismissed). Counsel and all the courts involved understood the claim to be civil in nature. It would have made no sense to separate out the claim in respect of calculation of the claimants release date and her claim for damages for false imprisonment, as the latter was predicated on the former and might well have been dealt with at a single hearing. It would have been obviously undesirable, and cannot have been the intention of Parliament, that different appeal rights should apply in relation to different but inherently related aspects of the reasoning leading to the outcome of the proceedings. Similarly, in the present case, if the Department of Justice had initially decided that on proper construction of the statutory provisions the calculation of the date for reference of Mr Stones case to the Parole Commissioners for consideration of whether he should be released on licence was as the Divisional Court determined it to be, Mr Stone could have brought judicial review proceedings to challenge that calculation and in those proceedings he could have sought to claim damages for false imprisonment (if he could show that he would have been released on licence promptly by the Parole Commissioners upon such a reference). Again, application of the guidance in Amand in this case gives a sensible and coherent result, according to which all aspects of such a claim would be regarded as ordinary civil proceedings. There would be no scope for bifurcation of rights of appeal. In R v Board of Visitors of Hull Prison, Ex p St Germain [1979] QB 425, following a riot at a prison the board of visitors heard charges against a number of prisoners for disciplinary offences contrary to the Prison Rules, found them guilty and imposed punishments including loss of remission. The prisoners applied to the Divisional Court for orders of certiorari to quash the decisions of the board, but their applications were refused. They sought to appeal to the Court of Appeal and the board objected to that court hearing the appeals, on the grounds that the proceedings in the Divisional Court concerned a criminal cause or matter. The Court of Appeal applied the guidance in Amand and dismissed that objection, holding instead that it had jurisdiction to hear the appeal. The charges related to disciplinary offences, not offences against the public criminal law, and Amand was distinguished on that basis. None of the judges or counsel involved suggested that the fact that the loss of remission meant that the prisoners release dates would be put back made this a case concerning a criminal cause or matter. That was simply an aspect of the implementation of the sentences of imprisonment which had been imposed on the prisoners long before. For these reasons, I would hold that this court has no jurisdiction to hear the appeals by the Department and Mr Stone. They should challenge the decision of the Divisional Court by way of appeal to the Court of Appeal. (3) Recent authorities Having obtained a hearing date and prepared for the hearing of the appeals to this court, the Department, Mr Stone and Mrs McGuinness were understandably reluctant to accept that the hearing before us should be lost for this jurisdictional reason. They submitted that the decision of the Divisional Court is properly to be categorised as one in a criminal cause or matter within section 41(1). They relied in particular on Belhaj, the decision of the Court of Appeal for England and Wales in R (McAtee) v Secretary of State for Justice [2018] EWCA Civ 2851; [2019] 1 WLR 3766 (McAtee) and the decision of the Divisional Court in Northern Ireland in JR27 [2010] NIQB 12. In my judgment, these authorities cannot be taken to determine the matter. I have already referred to Belhaj. The judgments in that case do not support the argument that the decision of the Divisional Court in this case was in a criminal cause or matter within section 41(1). Although both Lord Sumption (paras 17 and 20) and Lord Lloyd Jones (para 50) refer to Ex p Woodhall and Lord Lloyd Jones (para 50) referred to reasons for giving the relevant phrase a comparatively wide meaning in the context of the 1873 Act and the question of routes of appeal, both judgments are consistent with the analysis set out above. In so far as the reasoning in the case touches in specific detail on the law in relation to rights of appeal, the justices were simply in agreement that judicial review proceedings to challenge a prosecutorial decision were a criminal cause or matter, as previous authority made clear. The present judicial review proceedings are not concerned with such a decision, nor with any other decision falling within the guidance given in Amand. McAtees case was concerned with the implementation of a sentence of imprisonment for public protection (IPP) under section 225 of the Criminal Justice Act 2003. The effect of the Crime (Sentences) Act 1997 was that a prisoner sentenced to an indeterminate term by way of IPP and then released on licence could, after a qualifying period of ten years after release, seek an order from the Parole Board to require the Secretary of State for Justice to order that the licence should cease to have effect (ie that his release should become unconditional). One prisoner subject to IPP (Mr Lee) commenced judicial review proceedings, as a test case, to seek a declaration under the HRA that the relevant statutory provision requiring him to wait for the expiry of ten years before applying to be free from licence conditions was incompatible with his article 8 Convention rights under the HRA. A Divisional Court of the High Court dismissed that claim. Mr Lee applied to the Court of Appeal for permission to appeal and was granted such permission. Mr Lee then dropped out of the proceedings and an application was made for his place to be taken by Mr McAtee to continue the appeal. On consideration of that application, Irwin LJ considered that an issue arose regarding the jurisdiction of the Court of Appeal to entertain the appeal and directed that the issue be argued in open court. In a judgment of the court (Sir Brian Leveson P, Davis and Lewison LJJ), it was held that the appeal was in respect of a criminal cause or matter, so that no appeal lay to the Court of Appeal. I respectfully disagree with that conclusion. In my opinion, the court read too much into the decision of this court in Belhaj and treated it (see paras 33 to 35, 41, 50 and 51) as indicating that a broad meaning is to be given to the phrase criminal cause or matter as it appears in section 18(1), thereby limiting the availability of ordinary rights of appeal to the Court of Appeal to a degree which is not warranted by the section. But all the justices in the Supreme Court in Belhaj held that the Barras principle did not apply, so it was not appropriate for the Court of Appeal to approach the case on the basis that there should be a direct reading across of the meaning of the relevant phrase in the JSA 2013 into the statutes dealing with routes of appeal. The Court of Appeal also seems to have thought that the question whether an appeal was in relation to a criminal cause or matter was a matter of impression from the words used (para 43). However, I do not think that is a satisfactory approach, given the overlap between civil and criminal matters in some cases. Clearer criteria are needed to provide guidance in this procedural context so parties can know where they stand, and to avoid the risk of courts reaching decisions as a matter of impression which are hard to reconcile. In my view, there was no good reason to conclude that section 18(1) was applicable in relation to the claim for a declaration of incompatibility which was in issue in McAtees case, and good reason to think that it was not applicable. The proceedings had nothing to do with the bringing of criminal charges against the appellant. Those charges had been brought and dealt with in criminal proceedings in court a long time previously, including by the sentence the appellant had been given. Claims under the HRA for declarations of incompatibility in respect of statutory provisions are a familiar feature of the legal landscape and are generally treated as civil claims in relation to which an appeal lies to the Court of Appeal in the usual way. Only the High Court (or a court above that) can issue a declaration of incompatibility, not some other court such as one exercising criminal jurisdiction: section 4(5) of the HRA. Further, if a claim is made for such a declaration, notice has to be given to the government so that it has the opportunity to appear and resist the claim (section 5). The debate about whether a declaration of incompatibility should be granted is an exercise in review of the statute book against human rights standards and is distinct from the criminal process itself. These provisions indicate that an application for a declaration of incompatibility in the High Court is not a criminal cause or matter, and the appeal routes which have been followed in the leading cases (albeit on the basis of assumptions made by counsel and the courts) confirm this. In each of Nicklinsons case and Conways case the appeal lay to the Court of Appeal; so also in R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46; [2003] 1 AC 837 (declaration of incompatibility in relation to the Home Secretarys involvement in setting the tariff for a life prisoner in relation to his sentence); R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2018] 3 WLR 1831 (application for declaration of incompatibility regarding the statutory regime governing early release from prison of those serving extended determinate sentences for sexual offences, by way of a leap frog appeal pursuant to section 12 of the Administration of Justice Act 1969, ie on the basis that the usual route of appeal would be to the Court of Appeal); and R (Miranda) v Secretary of State for the Home Department (Liberty intervening) [2016] EWCA Civ 6; [2016] 1 WLR 1505 (declaration of incompatibility in relation to stop and search powers under the terrorism legislation and the article 10 Convention right in the HRA, as regards protection of journalists). The possibility of overlap with criminal proceedings cannot be ruled out. An application for a declaration of incompatibility may emerge from a failed argument, which is available in a criminal court below the High Court, that pursuant to section 3 of the HRA a statutory provision which defines a criminal offence should receive some modified interpretation in light of Convention rights. In such a case, it may be that the association of the application for a declaration of incompatibility in the High Court with the underlying criminal proceedings is so strong that they are to be taken together as a criminal cause or matter in the High Court. Prettys case is another example. The need to avoid bifurcation of the rights of appeal in relation to what, in the particular circumstances, are closely related dimensions of the same proceedings points towards this result. But what is important in such cases is that the usual procedural position in relation to applications for a declaration of incompatibility is strongly outweighed in the particular circumstances by the close association of that claim with underlying proceedings which are clearly criminal in nature. The interpretation of the phrase is necessarily informed by the context in which it falls to be applied. However, the Court of Appeal in McAtees case did make some highly pertinent comments with which I agree and which support the analysis above. In particular, I endorse what they said at para 42: It is, in our view salutary that there should not be an over expansive interpretation of the phrase criminal cause or matter and neither should there be an over expansive approach to addressing the jurisdictional issue. After all, while some cases in the Divisional Court or Administrative Court are at a second level of judicial decision making for example, appeals by way of case stated many are not (the present case is an example). If a case is a criminal cause or matter then the only route of appeal is to the Supreme Court. Not only is that complex and expensive for litigants but also (and importantly) such an appeal is only possible if the court has first certified that a point of law of general public importance arises. That is a high bar to cross; many, indeed most, cases are not likely to be able to cross it. Moreover, for those relatively few cases which do raise an important point of law, the Supreme Court will then be required to deal with them without what one would hope would be considered the benefit of the decision and reasoning of a three judge constitution of the Court of Appeal. See also R (Thakrar) v Crown Prosecution Service at para 41 per Davis LJ. I also agree with observations of the court in McAtees case in para 52 regarding the view reached in relation to the decision of the Divisional Court in Gilbert (Michael) v Secretary of State for the Home Department [2005] EWHC 1991 (Admin). That concerned a judicial review challenge, not to a sentence imposed by a criminal court but to a decision of the prison authorities in calculating the date on which the claimant was to be released and the date on which his licence expired. The case was thus similar to Evans (No 2), referred to above. Permission to appeal to the Court of Appeal was refused by Smith LJ after a brief oral argument, on the basis that the judgment was in a criminal cause or matter within section 18(1). In McAtees case, the Court of Appeal expressed reservations about this conclusion. They were right to do so. In my view, section 18(1) did not apply. As the Court of Appeal observed: it certainly would seem surprising that, for example, a decision on a consequential claim by any person for damages for wrongful detention (on the footing that the release date had been miscalculated) which is a claim of a kind not infrequently ultimately assigned to a Queens Bench master or to the County Court, could only attract an appeal, on certification, to the Supreme Court. The court also referred at para 27 to authority which I consider is directly supportive of the analysis above: it was assumed, without discussion, that the Court of Appeal had jurisdiction to decide an appeal relating to a prisoners asserted rights of notification of the judicial decision on the tariff term for a mandatory life sentence before (as was then the procedure) the Secretary of State set the ultimate tariff term: R v Secretary of State for the Home Department, Ex p Doody [1993] QB 175. Jurisdiction was also assumed in a case concerning the entitlement (or otherwise) to unconditional release on licence in the light of subsequently introduced legislation: R (Stellato) v Secretary of State for the Home Department [2007] 1 WLR 608. The same assumption was made in a case (in which a declaration of incompatibility was claimed) involving the absence of review procedures for indefinite notification requirement under the provisions of the Sexual Offences Act 2003: R (F) (A Child) v Secretary of State for Justice (Lord Advocate intervening) [2011] 1 AC 331. Finally, in R (Minter) v Chief Constable of Hampshire Constabulary [2014] 1 WLR 179 it had been held that an issue as to whether the extended licence period in an extended sentence was to be taken into account for the purpose of assessing the period of the notification requirements under the Sexual Offences Act 2003 was not a criminal cause or matter: see per Laws LJ, at para 2. I do not find the courts attempt later in its judgment to distinguish these cases persuasive. The courts reasoning (in particular at paras 43 to 51) depended on their view that no distinction could be drawn in this context between the imposition of a sentence by the criminal court and the working out of what that sentence means in light of the relevant statutory regime. I do not accept this. The imposition of a sentence by a court at the end of criminal proceedings is an inherent part of a criminal cause or matter for the purposes of section 18(1). But in my view proceedings in relation to decisions by non judicial actors regarding the effect of such a sentence are not; nor are judicial decisions regarding the human rights compatibility of the regime according to which such effect is determined. As to the former category, it is unfortunate that the courts attention was not drawn to a case such as Evans (No 2); and to the other authorities to which I have referred in relation to the latter. Finally, I turn to recent authority from Northern Ireland on the meaning of section 41. The Northern Ireland Divisional Court embarked upon a lengthy examination of the meaning of the relevant phrase in section 41 in JR27. That concerned a judicial review of the refusal of the police to destroy certain data relating to the claimant collected under the Police and Criminal Evidence (Northern Ireland) Order 1989 with a view to a possible prosecution, though in the event charges were not brought. McCloskey J, with whom Weatherup J agreed, reviewed a number of authorities and concluded that the primary test (from Amand) focused on whether the underlying proceedings could place an individual in jeopardy of criminal proceedings or punishment. Although no investigation was underway, an investigation and potential prosecution of the claimant for a criminal offence on some future date was nevertheless a possible and foreseeable outcome. As a result, the impugned measure was to be considered a step in the criminal proceedings that put the claimant in jeopardy (albeit slight) of a criminal charge. Sir Declan Morgan LCJ dissented. In his view the proceedings did not constitute a criminal cause or matter because the possibility of criminal proceedings was too remote to satisfy the need for proximity between the application before the court and the matter putting the individual in jeopardy. As will be clear from what has been said above, I consider that Sir Declan Morgan LCJ was correct about this. The jeopardy principle as adumbrated in Amand is much more tightly focused on court proceedings in relation to a specific criminal charge than the majority thought. Issues regarding the holding and use by public authorities of information relating to an individual are firmly in the sphere of civil public law, and there was no close connection with the bringing of a criminal charge in this case to change that position. The relevant route of appeal was to the Court of Appeal, as in the closely similar case of R (S) v Chief Constable of the South Yorkshire Police [2004] UKHL 39; [2004] 1 WLR 2196: see para 49 per Sir Declan Morgan LCJ. As he rightly observed at para 50, The requirement to appeal directly to the Supreme Court now seems anomalous. Similar comments have been made recently by the Court of Appeal in England and Wales: see R (Thakrar) v Crown Prosecution Service at para 41 (Davis LJ) and para 55 (Irwin LJ). Accordingly, there are strong arguments against reading section 18(1) and section 41(1) expansively. I would, however, enter one note of caution about Sir Declan Morgan LCJs judgment. At para 46 he said that cases in which, after the imposition of a sentence by a court in criminal proceedings, there is a challenge concerning the number of days the applicant has to serve in custody as a result of the sentence imposed involve proceedings in a criminal cause or matter (citing In re Montgomerys Application [2008] NIQB 130). I do not agree. There is a clear distinction between proceedings leading up to the imposition by a court of a sentence in relation to a criminal charge, which fall within the relevant phrase according to the guidance in Amand, and proceedings brought to challenge some non judicial body, such as a prison governor or a minister, which has to calculate the date of release in relation to such a sentence in the exercise of their administrative functions under public law, which does not. In my view, procedural clarity regarding rights of appeal requires that this distinction should be respected. In In re McGuinness (No 3) [2019] NIQB 76, the Divisional Court in Northern Ireland (McCloskey J and Keegan J) gave a judgment in which it held that related judicial review proceedings brought by Mrs McGuinness to challenge the exercise of jurisdiction by the SRC in relation to Mr Stone to consider his application for early release did not constitute a criminal cause or matter within section 41(1). As will be clear, I agree with that conclusion. However, the courts reasoning proceeded by reference to the majority judgment in JR27, Belhaj and McAtees case, and I would not endorse it. In my view, the conclusion is correct because the SRCs decision related to the exercise of their administrative functions, arising in the light of a sentence previously imposed and involving the working out of the effects of that sentence in the context of their public law duties under the relevant statutory regime. Conclusion For the reasons given above, I would hold that the present proceedings do not constitute a criminal cause or matter for the purposes of section 41, with the result that this court does not have jurisdiction to entertain these appeals. That being so, and because this court is likely to be assisted by consideration of the Northern Ireland Court of Appeal of the operation of the special prisoner regime in that jurisdiction under the Northern Ireland (Sentences) Act 1998 and pursuant to the Belfast Agreement, should the case come back for consideration by this court, I do not think it is appropriate to say anything about the merits of the appeals.	The two appeals before the Court relate to judicial review proceedings concerning the treatment of Mr Michael Stone. In 1988, Mr Stone attacked a group of mourners at Milltown Cemetery, Belfast, killing several. One of them was the brother of the appellant, Mrs McGuinness. In 1989, Mr Stone was convicted and sentenced to life imprisonment and certain concurrent terms of imprisonment, with a recommended tariff of 30 years imprisonment. The Belfast Agreement of 1998 between the United Kingdom and Irish governments introduced an early release scheme for certain prisoners convicted of crimes related to sectarian violence in the Troubles. The Northern Ireland (Sentences) Act 1998 (the 1998 Act) gave effect to that part of the Belfast Agreement. Mr Stone made an application under the 1998 Act to the Sentence Review Commissioners (the SRC) seeking early release. In 1999, the SRC made a determination that Mr Stone was eligible for early release. Mr Stone was released on licence on 24 July 2000. In 2006, Mr Stone committed further offences at Parliament Buildings, Stormont. The Secretary of State for Northern Ireland suspended his licence. In 2008, Mr Stone was convicted and received two determinate sentences of 16 years imprisonment and other determinate sentences of between one and ten years imprisonment, all to run concurrently. In 2011, the SRC revoked Mr Stones licence. In 2017, the Northern Ireland Prison Service referred Mr Stones case to the Parole Commissioners, notifying them that his tariff expiry date would be 21 March 2018, on the basis that the period during which Mr Stone had been released on licence should count towards his 30 year tariff period. In the event, the Parole Commissioners made a formal determination in 2018 that Mr Stone should not be released upon expiry of his tariff. Mrs McGuinness issued these judicial review proceedings to challenge the Prison Services notification of a tariff expiry date of 21 March 2018, on the ground that the Prison Service erred in law in including the period of release on licence in Mr Stones tariff. The Divisional Court of the High Court heard the case, deciding to treat it as a criminal cause or matter on a pragmatic basis, and certified a question of law of general public importance suitable for appeal to the Supreme Court under section 41 of the Judicature (Northern Ireland) Act 1978 (the 1978 Act). The Attorney General for Northern Ireland intervened in the appeal to dispute the assumption that Mrs McGuinnesss application for judicial review constituted a criminal cause or matter and to challenge the Supreme Courts jurisdiction to hear the appeals. The Supreme Court unanimously holds that the present proceedings do not constitute a criminal cause or matter, with the result that the Court does not have jurisdiction to consider the appeals. Lord Sales gives the judgment, with which all the members of the Court agree. Section 41 of the 1978 Act provides for an appeal to the Supreme Court from any decision of the High Court in a criminal cause or matter [21]. The phrase a criminal cause or matter has been used in two different statutory contexts: first in provisions governing rights of appeal; and second in section 6 of the Justice and Security Act 2013 (the JSA 2013) in relation to a special closed procedure for secret intelligence material in court proceedings. As accepted by the Supreme Court in R (Belhaj) v Director of Public Prosecutions (No 1) [2018] UKSC 33; [2019] AC 593, the statutory context of section 6 of the JSA 2013 is different from that of section 41(1) of the 1978 Act [24]. The Supreme Court reviews the history of the phrase from its first use in section 47 of the Supreme Court of Judicature Act 1873 to the 1978 Act, which replicated in Northern Ireland the appeal system of England and Wales [25] [56]. Two basic features of the regime of appeal rights are important. First, the appeal rights in relation to a High Court decision in a criminal cause or matter are directed primarily to maintaining the coherence of the legal system rather than rectifying specific errors. An appeal to the Supreme Court is only possible if a point of law of general public importance is certified [66]. Second, in contrast, in all other cases appeal rights from the High Court to the Court of Appeal are directed to ensuring that errors at first instance in individual cases can be rectified. No showing of public importance is required [67]. The leading case on the meaning of the phrase a criminal cause or matter is that of the House of Lords in Amand v Home Secretary [1943] AC 147. The approach set out in that decision requires consideration of the proceedings which underlie those in the High Court. A criminal cause or matter will be: (a) one that puts the applicant in jeopardy of criminal punishment; and (b) where that punishment is the direct outcome of the proceeding [66], [77]. The issue raised in the present case does not relate to the commencement or conduct of any underlying criminal process involving Mr Stone. He is not subject to any outstanding undetermined criminal charge on which he will be tried and may be subjected to sentence. The present proceedings are concerned with whether his past criminal sentence has been correctly understood and implemented. The High Court decision was therefore not in a criminal cause or matter and the relevant right of appeal is to the Court of Appeal, not the Supreme Court [78]. As a result, and because the Supreme Court is likely to be assisted by consideration by the Northern Ireland Court of Appeal on the operation of the 1998 Act, should the case return for consideration, the Supreme Court does not think it appropriate to say anything about the merits of the appeals [96].
This appeal concerns the interpretation of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Judgments Regulation). The question is whether the English courts have jurisdiction to hear the claim by the appellant (AMTF) against the respondent (MMGR) for damages for the tort of inducing breach of contract. Factual background AMTF is incorporated in the United Kingdom and is based in London. It provides services as a non advisory, execution only, derivatives broker for clients who wish to trade in derivatives and who are referred to it by introducing brokers. Among AMTFs clients were people who were domiciled in Germany, Austria, Switzerland or Belgium (the former clients) and who were introduced to AMTF by independent brokers based in Germany (the introducing brokers). AMTF charged its clients commission for its service and paid commission to the introducing brokers. About 70 former clients, who were dissatisfied with the financial results of their transactions, commenced legal proceedings in Germany against both the introducing brokers and AMTF seeking damages under the German law of delict. The claim against the introducing brokers was that they had given bad investment advice or had failed to warn of the risks of the investments. The claim against AMTF was based on a liability which was accessory to that of the brokers: it was alleged that AMTF had encouraged the brokers to behave as they did by paying them commission from the transaction accounts which it operated for its clients and that it owed and had breached a duty in delict (tort) to the clients to prevent any transactions being undertaken contrary to their interests. AMTF challenged the jurisdiction of the German court. But many of the former clients have recovered damages from AMTF by way of settlement. AMTF estimates that by August 2013 it had spent 2,191,881.68 on investigating the German claims, legal costs in Germany and England and settlement costs. The agreements between AMTF and the former clients varied over time. But each contained clauses which provided (a) that English law would govern the rights and obligations of the contracting parties and the construction of their contract and (b) that the English courts would have exclusive jurisdiction in legal proceedings relating to the contract. AMTF asserts that the former clients have breached their contracts with it by raising legal proceedings against it in Germany and asserting rights under the German law of delict. AMTF has raised legal proceedings against many of the former clients seeking damages for breach of contract in the High Court in London. MMGR is a company incorporated under the laws of Germany and carries on business as a firm of lawyers in Germany. AMTF alleges that MMGR induced the former clients to issue proceedings against it in Germany and to advance causes of action under German law, in breach of the exclusive jurisdiction and applicable law clauses in their contracts with AMTF. It has commenced proceedings in the High Court in London against MMGR, based on the English law tort of inducing breach of contract, in which it seeks both damages and injunctive relief to restrain MMGR from inducing clients to bring further claims in Germany asserting causes of action under German law. AMTF argues that the English courts have jurisdiction over its claim under article 5.3 of the Judgments Regulation, which gives jurisdiction in tort claims to the courts for the place in which the harmful event occurred or may occur. MMGR challenges the jurisdiction of the English courts to entertain this action. To that end MMGR applied for a declaration that the English courts did not have jurisdiction over it in respect of the subject matter of AMTFs claim. The prior legal proceedings Popplewell J in a judgment dated 11 April 2014 ([2014] EWHC 1085 (Comm)); [2015] QB 699 refused MMGRs application and held that the English courts had jurisdiction. He decided that the relevant harm which gives rise to jurisdiction under article 5.3 occurred in England as AMTF had in each case been deprived of the benefit of the exclusive jurisdiction clause, which, he held, created a positive obligation on a former client to bring proceedings in England. The Court of Appeal in a judgment dated 26 February 2015 ([2015] EWCA Civ 143; [2015] QB 699), in which Christopher Clarke LJ wrote the leading judgment, concluded that the English courts did not have jurisdiction as the relevant harm had occurred in Germany. The Court of Appeal were not enthusiastic about the conclusion which they felt compelled to reach as it meant the ancillary claim in tort against MMGR for inducing the breach of the contracts could not be made in the court which the contract breaker had agreed would have exclusive jurisdiction over the contract. Thus AMTFs claims against its former clients for breach of contract, which could proceed in England under the exclusive jurisdiction clauses of their contracts, would be separated from the ancillary claim against MMGR. AMTF appeals to this court against that judgment. It submits that the English courts have jurisdiction. In order to address AMTFs challenge it is appropriate, first, to examine the relevant provisions of the Judgments Regulation and the authoritative case law on those provisions and, secondly, to consider how that case law applies to the facts of this case. Both AMTF and MMGR submit that the law is clear and is in their favour. In the event that this court disagrees with its interpretation, each of AMTF and MMGR seeks a reference to the Court of Justice of the European Union (CJEU). I therefore, thirdly, address the question whether in the light of developments of its jurisprudence it is necessary to refer a question of interpretation to the CJEU. In discussing the prior case law in this judgment I refer to both that court and its predecessor, the Court of Justice of the European Communities, by the acronym CJEU. The Judgments Regulation The basic rule in the Judgments Regulation is that a person may be sued in the member state of his domicile. Article 2 provides: 1. Subject to this Regulation, persons domiciled in a member state shall, whatever their nationality, be sued in the courts of that member state. As the opening words of article 2.1 suggest, the basic rule of domicile is not an exclusive ground of jurisdiction. Other articles within the Regulation provide alternative grounds. Thus in article 5 there are rules concerning matters relating to contract and delict among others. Article 5 provides, so far as relevant: A person domiciled in a member state may, in another member state, be sued: 1.(a) in matters relating to a contract, in the courts for the place of performance of the obligation in question; 3. in matters relating to tort, delict or quasi delict, in the courts for the place where the harmful event occurred or may occur; Article 6 provides so far as relevant: A person domiciled in a member state may also be sued: 1. where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims 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; In relation to contracts conferring exclusive jurisdiction, article 23 provides: If the parties, one or more of whom is domiciled in a member state, have agreed that a court or the courts of a member state are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. The CJEU has provided authoritative rulings on the Judgments Regulation and its predecessor, the Brussels Convention. Rulings on the interpretation of provisions of that Convention remain valid for the equivalent provisions in the Judgments Regulation: Zuid Chemie BV v Philippos Mineralenfabriek NV/SA (Case C 189/08) [2010] 2 All ER (Comm) 265, para 18. I discuss the earlier case law as if it addressed the latter provisions. The Judgments Regulation contains rules of jurisdiction which are designed to promote legal certainty by allowing prospective litigants, whether claimants or defendants, to foresee with sufficient certainty which court will have jurisdiction. The aim of the Judgments Regulation is to prevent parallel proceedings between courts of different member states and thereby avoid or limit irreconcilable judgments and non recognition of judgments. The compulsory system of jurisdiction which the Judgments Regulation creates is underpinned by the principle of mutual trust between the courts of the member states. For those propositions see, for example, Overseas Union Insurance Ltd v New Hampshire Insurance Co (Case C 351/89) [1992] QB 434, para 17; Erich Gasser GmbH v MISAT Srl (Case C 116/02) [2005] QB 1, paras 41 and 72; and Turner v Grovit (Case C 159/02) [2005] 1 AC 101, paras 24 and 28. The general principle is that civil actions are to be brought against individuals and companies in the courts of the place where they are domiciled. It would be contrary to the objectives of the Judgments Regulation to interpret it as requiring the recognition of the jurisdiction of the courts of the claimants domicile, except where it expressly so provides, as that would enable the claimant to determine the competent court by choosing his own domicile: Dumez France SA and Tracoba Sarl v Hessische Landesbank (Helaba) (Case C 220/88) [1990] ECR I 49, paras 16 19; Kronhofer v Maier (Case C 168/02) [2004] 2 All ER (Comm) 759, para 20. The derogations from the general rule which confers jurisdiction on the courts of the defendants domicile, including article 5.3, must be restrictively interpreted in order to achieve the aims of the Judgments Regulation: Kronhofer v Maier (above), paras 12 14; Coty Germany GmbH v First Note Perfumes NV (Case C 360/12) [2014] Bus LR 1294, paras 43 45. The derogating grounds of jurisdiction are justified because they reflect a close connection between the dispute and the courts of a member state other than that in which the defendant is domiciled. That close connection promotes the efficient administration of justice and proper organisation of the action: Dumez France SA and Tracoba Sarl v Hessische Landesbank (above), para 17; Kronhofer v Maier (above), para 15. It is necessary, in my view, to distinguish between the terms of a derogating ground of jurisdiction on the one hand and the rationale or justification for the ground on the other as it is the former which confers jurisdiction, not the latter. I discuss this point further in para 29 below. The CJEU has ruled on the correct approach to article 5.3. It has interpreted the phrase the place where the harmful event occurred (a) to give the claimant the option of commencing proceedings in the courts of the place where the event occurred which gave rise to the damage or in the courts of the place where the damage occurred (if the event and damage were in different member states): Handelskwekerj GJ Bier BV v Mines de Potasse d Alsace SA (Case C 21/76) [1978] QB 708, para 24; (b) as the place where the event giving rise to the damage, and entailing tortious liability, directly produced its harmful effect upon the person who is the immediate victim of the event and thus not the place where an indirect victim, such as the parent company of the immediate victim, suffered financial loss as a result: Dumez France and Tracoba Sarl v Hessische Landesbank (Helaba) (above), para 20; and (c) consistently with (b) above, where a victim suffered harm in one member state and consequential financial loss in another, as referring to the place where the initial damage occurred: Marinari v Lloyds Bank Plc (Case C 364/93) [1996] QB 217, paras 14 and 15. The focus in (b) and (c) is thus on where the direct and immediate damage occurred. Similarly, in Kronhofer v Maier (above) an investor domiciled in Austria raised an action in his country against investment consultants based in Germany who had given him investment advice by telephone which led him to send funds to Germany to be placed in an investment account and used in an unsuccessful speculative investment. He argued that, because the financial loss caused by that investment diminished the totality of his assets which were concentrated in Austria, he could sue in the courts of the country of his domicile. The CJEU did not agree. It held that article 5.3 did not allow a claimant who had suffered financial damage resulting from the loss of part of his assets in another contracting state to sue in the place of his domicile or where his assets were concentrated. The CJEU, in the interests of the sound administration of justice, has had to identify the place where a harmful event has occurred in the course of an international transaction, where that place was not evident from a straightforward application of the article. In Runion Europenne SA v Spliethoffs Bevrachtingskantoor BV (Case C 51/97) [2000] QB 690, which concerned a claim in damages arising out of the poor quality of a consignment of peaches which had been carried by sea from Australia to Rotterdam for delivery to a town in France, the harmful event was a breakdown of the cooling system during the sea voyage. The CJEU held (para 35) that the place where the harmful event occurred was to be regarded as the place where the maritime carrier was to deliver the goods, ie Rotterdam. The Court justified the choice by reference to the requirements of foreseeability and legal certainty and the existence of a particularly close connecting factor with the dispute (para 36). The CJEU has also had to interpret article 5.3 so that it can apply in circumstances in which it is not possible to identify one place where the relevant harm has occurred. For example, it has interpreted the phrase place where the harmful event occurred in contexts where a claimant suffers harm to his personality rights by the publication of libellous material in several member states. It has held that the claimant may bring an action for damages against the publisher either (a) before the courts of the member state where the publisher of the defamatory material is established, which have jurisdiction to award damages for all the harm caused by the defamation, or (b) before the courts of each member state in which the publication was distributed and where he claims that his reputation has been injured, which have jurisdiction only in respect of the harm caused in the state of the court seised: Shevill v Presse Alliance SA (Case C 68/93) [1995] 2 AC 18, paras 31 33. The publication of material on the internet can make information which is damaging to a claimants personality right available on a worldwide basis, making it impossible to locate the relevant harm for the purpose of article 5.3 without developing a special rule. The CJEU has recognised that the solution which it adopted in Shevill based on ascertaining damage caused by distribution within a particular member state did not address the harm caused by the availability of such information on the internet. It has therefore created an additional option for the alleged victim in such circumstances, attributing jurisdiction to the court of the place where the alleged victim had its centre of interests: eDate Advertising GmbH v X (Cases C 509/09 and C 161/10) [2012] QB 654, paras 40 48, 52. The CJEU has also developed special rules for the application of article 5.3 to the infringement of intellectual property rights in the context of the accessibility of the internet. Wintersteiger AG v Products 4U Sonder maschinenbau GmbH (Case C 523/10) [2013] Bus LR 150 is a case concerning a national trademark which in principle protects only in the territory of the member state in which it is registered. The claimant, which was the proprietor of an Austrian trademark Wintersteiger, asserted that its trademark had been infringed by the defendants registration of the word Wingersteiger in the Google search engine although the registration was limited to searches carried out via the top level domain for Germany (ie google.de). The obvious mischief for the claimant was that Austrian customers could readily use google.de when searching for products causing Wintersteiger to lose orders in Austria. The CJEU held that the objectives of foreseeability and the sound administration of justice pointed to treating the courts of the member state in which the property right in issue was protected (ie Austria) as the place where the damage occurred (paras 29 and 39) and identifying the place of establishment of the advertiser (Germany) as the place where the event giving rise to the damage occurred (paras 37 and 39). The CJEU has also considered the application of article 5.3 where reproductions of a work protected by copyright throughout the EU were available for sale by marketing on the internet in many member states. In circumstances of infringement of such a right via the internet to which courts does article 5.3 give jurisdiction? In Pinckney v KDG Mediatech AG (Case C 170/12) [2013] Bus LR 1313, paras 43 45, the CJEU answered the question by holding that the court of a member state which protected the copyright would have jurisdiction because the harmful event alleged might occur within its jurisdiction. But the courts jurisdiction was limited to determining the damage caused within the member state in which it was situated. Claims for damages against international cartels for breaches of EU competition law have also required the development of special rules in the interpretation of article 5.3. In Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV (Case C 352/13) [2015] QB 906, it was not possible to identify a single place where the cartel had come into being as it resulted from collusive agreements made during several meetings which had taken place in various places in Europe. It was also difficult to identify in a conventional way the place where the damage occurred as the claimants loss consisted in a restriction of the buyers freedom to contract as a result of the cartel supplying goods at artificially high prices. The CJEU categorised the relevant loss as the additional costs incurred because of the artificially high prices. It held that the place where the damage occurred was identifiable only for each alleged victim taken individually and was located, in general, at each victims registered office (paras 52 and 56). Once again, the CJEU adapted the interpretation of article 5.3 to circumstances in which the place of the relevant harm could not otherwise be identified. The CJEU relied on the justifications of the rule the efficacious conduct of potential proceedings in a court best suited to assess the claim for damages in devising that interpretation (para 53). Applying the CJEUs jurisprudence in this appeal There is no dispute in this case that the event occasioning damage, the alleged inducement of the former clients by MMGR to commence the German legal proceedings, occurred in Germany. AMTF therefore relies on the alternative basis under article 5.3, the place where the relevant damage occurred, in support of its assertion that the English courts have jurisdiction. First, adopting the reasoning of Popplewell J, it asserts that the relevant harm is the deprivation of the contractual benefit of dispute resolution in England under English law so that the English courts could protect and enforce its substantive rights. Secondly, it submits that Popplewell Js judgment is supported by (a) the principles underlying article 5.3, conferring jurisdiction on a foreseeable court which has a close connection with the underlying dispute, (b) the nature of the contractual benefit conferred by an exclusive jurisdiction clause and (c) considerations of the sound administration of justice in relation to a tort which is a form of accessory liability for breach of contract. It points out that the CJEU has innovated on its interpretation of article 5.3 in cases such as eDate Advertising, Wintersteiger and Cartel Damage Claims by locating the relevant harm at the claimants centre of interests. Such a rule, which would locate the harm in the jurisdiction of the contractually adopted court, has, it submits, the virtue of foreseeability, as the CJEU pointed out in Wintersteiger at para 23, and should be applied when the tort of inducing breach of contract occurs in the context of an exclusive jurisdiction clause. I am not persuaded by those submissions. The task for the court is to identify where the relevant harm occurred. That is relatively straightforward in most circumstances, where there is no need for any special rule such as those which the CJEU has developed when it has not been possible readily to identify one place where that harm occurred. It is straightforward in this case. I deal with AMTFs first submission. The contractual obligation of the former clients was, if they chose to sue AMTF, to sue only in England. The breach of contract which MMGR is said to have induced was the raising of legal proceedings in Germany. AMTF accepts that the raising of those proceedings in Germany was the event which gave rise to the damage for the purposes of article 5.3. But AMTF also incurred damage in Germany by having to engage in the German proceedings and settle claims there. It is clear that AMTF did not get the benefit of having any dispute with the former clients determined under English law by English courts. But the former clients were under no positive obligation to sue AMTF, which could have no objection if it was not sued. They were under an obligation not to sue in Germany or elsewhere than England. The former clients could have performed their contractual obligations to AMTF either by not raising proceedings in Germany or, having raised those proceedings, by discontinuing them. Thus the circumstances of this case can be distinguished from those in Dolphin Maritime & Aviation Services Ltd v Sveriges Angfartygs Assurans Forening [2010] 1 All ER (Comm) 473, in which the contractual obligation, of which the defendants had induced the breach, was the positive obligation to pay money into the claimants bank account in England. In that case, the harm suffered by the victim of the tort occurred in England where the money should have been paid. It may also be, as was suggested during the legal debate in court, that the raising of the German proceedings has damaged AMTFs business model as it sought, through the exclusive jurisdiction clause, to preserve the focus of its business in London if it traded with overseas clients. But that loss of focus is consequential upon the direct harm caused by the raising of the German proceedings. On the clear jurisprudence of the CJEU in cases such as Dumez France SA and Tracoba Sarl v Hessische Landesbank (above) and Marinari v Lloyds Bank plc (above), article 5.3 is not concerned with such consequential loss. In my view, which is essentially the same as that of the Court of Appeal, the direct harm which AMTF suffered from the alleged tort was the expenditure occasioned by the German proceedings. Thus for the purposes of article 5.3 the place where the harmful event occurred was Germany. That is sufficient to determine the appeal. It is, nonetheless, appropriate to address AMTFs second submission, which in substance seeks this court to craft a special rule for the tort of inducing breach of contract where the contractual term which has been breached is an exclusive jurisdiction clause. In my view the rule which AMTF advocates would be contrary to the clear jurisprudence of the CJEU. AMTF asserts that the outcome which it favours accords with the principles underlying or justifying article 5.3. But there is a clear distinction between a rule of special jurisdiction in the Judgments Regulation, such as article 5.3, and the justification for such a rule. The rule of special jurisdiction in a tort case is that harm has occurred or may occur within the jurisdiction of the court seised. When, as in this case, the court is not concerned with the event giving rise to the harm, it is the occurrence of the direct and immediate harm and nothing else that is the connecting factor in article 5.3. It is that connecting factor which creates the benefits of foreseeability and promotes the sound administration of justice. Those benefits, which justify the ground of jurisdiction, are not themselves connecting factors. To invoke a special ground of jurisdiction a claimant must bring itself within that ground: Folien Fischer AG v Ritrama SpA (Case C 133/11) [2013] QB 523, paras 39 and 40. A claimant cannot establish jurisdiction under the Judgments Regulation by merely invoking the justification or rationale of the ground. Similarly, a focus on the nature of the contractual benefit of which AMTF has been deprived and the accessory nature of the tort of inducing breach of contract does not assist. I have discussed the former in para 26 above and comment on the nature of the tort below. Nor does the inconvenience, which the separation of the resolution of the contractual claims against the former clients from the pursuit of the claims against MMGR entails, carry much weight when one considers the aims of the Judgments Regulation. The fact that a claim in tort is connected with a contractual claim has not led the CJEU to elide the grounds of jurisdiction in matters relating to a contract with those in matters relating to tort. In Kalfelis v Bankhaus Schrder, Mnchmeyer, Hengst and Co (Case C 189/87) [1988] ECR 5565 (paras 21 23) the CJEU held that where a claimant pursued a claim based on tort and contract and for unjust enrichment, the court which had jurisdiction under article 5.3 to deal with the claim in tort did not have jurisdiction to deal with the other elements of the same claim. More recently, in Runion Europenne SA v Spliethoffs Bevrachtingskantoor BV (above) (paras 49 51) the CJEU confirmed the principle in Kalfelis. In both Kalfelis and Runion Europenne the CJEU has recognised that the scheme of the Judgments Regulation creates the difficulty that one jurisdiction may not be able to deal with all the related points in a dispute. This inconvenience is the price which the scheme in the Judgments Regulation imposes by setting out well defined rules in order to achieve its primary purpose of ensuring that there shall be no clash between the jurisdictions of member states of the EU, as Lord Goff of Chieveley observed in Airbus Industrie GIE v Patel [1999] 1 AC 119, pp 131 132. This difficulty is evident in the wording of the Judgments Regulation. Article 6 of the Judgments Regulation does not confer jurisdiction on the courts of a member state over a co defendant as a result of the close connection of the claims unless one of the defendants is domiciled in that member state. Jurisdiction on an article 5 ground does not suffice. Similarly, article 23 can confer exclusive jurisdiction on a court as a result of the agreement of the parties but that jurisdiction cannot be pleaded against people who are not parties to the agreement. Under the Judgments Regulation there is no scope outside the rules for identifying a forum conveniens. The German courts, if seised of the matter, can apply English law if it is the governing law. The fact that parties to a contract have selected a jurisdiction to resolve their dispute does not entitle the courts of the selected member state to review or seek to restrain the jurisdiction of the court on which a rule of the Judgment Regulation has conferred jurisdiction: West Tankers Inc v Allianz SpA (formerly RAS Riunuine Adriatica di Sicurit SpA) (Case C 185/07) [2009] AC 1138, paras 29 32. The application of the Judgments Regulation, as I construe it, will separate the determination of AMTFs contractual claims against its former clients from the determination of its tort claim against MMGR. But such inconvenience is the price of achieving the legal certainty and foreseeability which are among the principal aims of the Judgments Regulation, as the CJEU has recognised and endorsed. Further, I do not see any jurisdictional difficulty for AMTF if it were to seek to protect itself against any future attempts by MMGR to induce AMTFs other clients to breach their contractual obligations: AMTF can raise proceedings in Germany, in the courts of MMGRs domicile. Whether a reference to the CJEU is mandated? Mr De la Mare for AMTF submits as a fall back that if it is not clear that article 5.3 should be applied as he submits where the contractual provision which has been breached as a result of the defendants inducement is an exclusive jurisdiction clause, this court should refer the issue to the CJEU. Guidance would be needed as to whether article 5.3 would establish the jurisdiction of the English courts where MMGRs alleged tortious behaviour has undermined the contractual creation of a sole jurisdiction in England, a connecting factor which has the advantage of foreseeability, would promote the sound administration of justice and avoid the fragmentation of disputes. I do not agree. The circumstances which have caused the CJEU to develop special rules to interpret article 5.3 in order to identify the place where the harmful event occurred, such as to locate harm at a claimants registered office (Cartel Damage Claims) or at its centre of interests (eDate Advertising) do not arise in this case, in which there is no difficulty in locating where the relevant harm has occurred. The event giving rise to harm and the relevant harm which that event directly caused both occurred in Germany. AMTF also submits that EU legislation has recently shown more favour towards exclusive jurisdiction clauses. Article 31(2) of the recast Judgments Regulation (Regulation EU No 1215/2012 of the European Parliament and of the Council of 12 December 2012) provides that where a court, on which the parties have conferred exclusive jurisdiction by an agreement which complies with article 25, is seised, any court of another member state must stay its proceedings until the former court declares that it has no jurisdiction. AMTF submits that this may mean that the CJEU would take a more accommodating approach to exclusive jurisdiction clauses. Be that as it may, it does not assist AMTF to establish for the purpose of jurisdiction under article 5.3 that the place where the harmful event occurred was England. Recent case law of the CJEU does not suggest that the court has moved from the principles and approach which I have set out in paras 11 to 13, 15 and 16 above. The CJEU has repeatedly stated in recent times that the provisions of the Regulation must be interpreted independently by reference to its scheme and purpose, and derogations from the general rule that jurisdiction is given to the court of the defendants domicile have to be interpreted restrictively: Melzer v MF Global UK Ltd (Case C 228/11) [2013] QB 1112, paras 22 and 24; Coty Germany (above), paras 43 45; and Kolassa v Barclays Bank Plc (Case C 375/13) [2015] ILPr 14, para 43. The focus in article 5.3, which is relevant to AMTFs claim, remains on the place where the event resulted in the initial damage: Zuid Chemie BV v Philippos Mineralenfabriek NV/SA (above), paras 26 32; Universal Music International Holding BV v Schilling, Schwarz, Bro (Case C 12/15) (EU:C:2016:449), paras 30 34. There is no complexity in the present case in identifying that place which might cause the CJEU to develop a special rule as to the location of the harmful event. In support of an innovative interpretation of article 5.3, AMTF relies on the characteristics of the English law tort of inducing breach of contract and the application of the tort to an exclusive jurisdiction clause. Creating a special rule in this way to accommodate the domestic law of tort of a particular member state would, in my view, undermine the certainty and foreseeability of that ground of jurisdiction, which is available to people and organisations in all of the member states of the EU. These considerations, which depend on EU law and not domestic law and are thus equally obvious to the courts of other member states, persuade me that the matter is acte clair and that no reference is mandated, having regard to the criteria laid down in CILFIT v Ministero della Sanit (Case C 283/81) [1982] ECR 3415. Whether consideration of AMTFs claim by the English court would infringe EU As I have concluded that the Judgments Regulation does not give jurisdiction to the English courts over AMTFs claim, it is not necessary to address the issue, which MMGR raised, as to whether the English court which purports to hear AMTFs claim thereby breaches EU law by impermissibly interfering with the judgments of the German courts. MMGRs cross appeal on costs MMGR appeals against the decision of the Court of Appeal to award it only part of its costs at first instance and on appeal (the part relating to the issue whether the place of the harmful event was in England) and to require it to pay AMTFs costs at first instance and on appeal on the question of whether AMTFs claim had real prospects of success. At first instance, MMGR had challenged the prospects of success of AMTFs claim on the basis that the exclusive jurisdiction clause was unenforceable because the former clients were consumers who were protected by the Unfair Terms in Consumer Contracts Regulations 1999 and articles 16, 17 and 23(5) of the Judgments Regulation. Popplewell J rejected this submission. In the Court of Appeal the argument took the form that the English courts could not grant an injunction or award damages against MMGR without impermissibly attacking the assumption of jurisdiction by the German courts. The Court of Appeal did not require to determine this question but observed that it did not appear to be well founded (a) because an injunction against MMGR from inducing a breach of contract did not preclude anyone from commencing proceedings in Germany and (b) because a claim for damages against MMGR for the loss occasioned by the breach of contract which MMGR had induced was not a collateral attack on the jurisdiction of the German courts. I deal with this challenge to the award of costs briefly. The court has a broad discretion in relation to costs under CPR rule 44.2. While there is a starting point that the unsuccessful party will pay the costs of the successful party (CPR rule 44.2(2)(a)), the court is entitled in CPR rule 44.2(4) to have regard to the parties relative success on the issues raised. The court has a discretion on the question of relative success and an appellate court will overturn its decision on such a matter only if it has gone beyond the limits of its discretion or otherwise erred in law. MMGR did not renew in the Court of Appeal its challenge based on the alleged status of the former clients as consumers. The Court of Appeal expressed a clear although not conclusive view on the challenge on the merits which MMGR advanced before them. I see no basis for impugning the discretionary decision of the Court of Appeal. Insofar as the challenged element of the award covered MMGRs submission on the merits before Popplewell J, an argument with which MMGR has not persisted, the Court of Appeals award should stand. Insofar as MMGR, in raising the second issue in this court, has renewed the arguments it advanced on the merits before the Court of Appeal, it can raise the question of costs in relation to those arguments in any submissions on costs which it chooses to make to this court after the courts judgment is handed down. Conclusion I would dismiss the appeal.	AMT Futures Limited (AMTF) is incorporated in the United Kingdom and is based in London. It provides services as a derivatives broker for clients who wish to trade in derivatives and who are referred by introducing brokers. Among AMTFs former clients were people domiciled in Germany, Austria, Switzerland or Belgium and who were introduced to AMTF by independent brokers based in Germany. AMTF charged its clients commission for its service and paid commission to the introducing brokers. Some of AMTFs former clients, who were dissatisfied with the financial results of their transactions, commenced legal proceedings in Germany against both the introducing brokers and AMTF seeking damages under the German law of delict. The claim against the introducing brokers was that they had given bad investment advice or had failed to warn of the investment risks. The claim against AMTF was that it had encouraged the brokers to behave as they did by paying them commission and had therefore breached a duty in tort which it had owed to the former clients to prevent any transactions being undertaken contrary to their interests. AMTF challenged the jurisdiction of the German court. AMTF estimates that by August 2013 it had spent over 2 million on investigating the claims, legal costs and settlement costs. The contracts between AMTF and its former clients contained clauses which provided that English law would govern the rights and obligations of the contracting parties and the construction of their contract and that the English courts would have exclusive jurisdiction in legal proceedings relating to the contract. AMTF asserts that the former clients have breached their contracts by raising legal proceedings against it in Germany and asserting rights under the German law of delict. AMTF has raised legal proceedings against the former clients, seeking damages for breach of contract in the High Court in London. AMTF alleges that MMGR, a German company which carries on business as a firm of lawyers in Germany, induced the former clients to issue proceedings against AMTF in Germany in breach of the exclusive jurisdiction and applicable law clauses in their contracts with AMTF. AMTF commenced proceedings in the High Court in London against MMGR, based on the English law tort of inducing breach of contract and seeking both damages and injunctive relief to restrain MMGR from inducing clients to bring further claims in Germany. The question in the appeal is whether the English courts have jurisdiction under Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Judgments Regulation) to hear AMTFs claim against MMGR. AMTF argued that the English courts had jurisdiction under article 5.3 of the Judgments Regulation. Article 5.3 provides that jurisdiction will be established in matters relating to tort, delict or quasi delict, in the courts for the place where the harmful event occurred or may occur. It argued that the harm it suffered was the deprivation of the contractual benefit of dispute resolution in England under English law and therefore the harmful event occurred in England. AMTF also argued that a special rule should apply for the purposes of article 5.3 when the tort of inducing breach of contract occurred in the context of an exclusive jurisdiction clause. Foreseeability would be achieved by locating the harm in the jurisdiction of the contractually adopted court. AMTF requested a reference be made to the Court of Justice of the European Union (CJEU) seeking guidance on whether article 5.3 establishes the jurisdiction of the English courts in such circumstances. The Supreme Court unanimously dismisses AMTFs appeal. Lord Hodge gives the judgment, with which the other Justices agree. The aim of the Judgments Regulation is to prevent parallel proceedings between courts of different member states and thereby avoid or limit irreconcilable judgments and non recognition of judgments [11]. Derogations, including article 5.3, from the general rule under article 2 which confers jurisdiction on the courts of the defendants domicile must be restrictively interpreted to achieve this aim [13]. Article 5.3 requires the court to identify where the relevant harm occurred. That is straightforward in this case as, unlike the cases which required the CJEU to develop special rules, it is possible readily to identify one place where the harm occurred [24]. The raising of the German proceedings was the event which gave rise to the damage for the purposes of article 5.3 [25]. The direct harm which AMTF suffered from the alleged tort was the expenditure occasioned by the German proceedings. Thus the place where the harmful event occurred was Germany. Article 5.3 is not concerned with consequential loss such as the loss of focus on the appellants business in London [27]. It would be contrary to CJEU jurisprudence for the court to craft a special rule for the tort of inducing breach of contract where the contractual clause which has been breached is an exclusive jurisdiction clause [28]. It is the occurrence of the direct and immediate harm which is the connecting factor in article 5.3 and which creates the benefits of foreseeability and the sound administration of justice. Those benefits are not themselves connecting factors and a claimant cannot merely invoke those benefits to justify the establishment of a ground of jurisdiction under the Judgments Regulation [29]. A focus on the accessory nature of the tort of inducing breach of contract does not assist [30]. The fact that a claim in tort is connected with a contractual claim has not led the CJEU to elide the grounds of jurisdiction in matters relating to a contract with those in matters relating to tort [31]. Nor does the inconvenience of separating the resolution of the contractual claims against the former clients from the pursuit of the claims against MMGR assist [30]. That inconvenience is the price of achieving the legal certainty and foreseeability which are among the principal aims of the Judgments Regulation [35]. CJEU Reference The circumstances which have caused the CJEU to develop special rules to interpret article 5.3 in order to identify the place where the harmful event occurred do not arise in this case, in which there is no difficulty in locating where the relevant harm has occurred [38]. Recent CJEU case law does not suggest that the court has moved away from the principles and approach underpinning the Judgments Regulation [40]. The matter is acte clair and no reference is mandated [43].
This case concerns the true ambit of the new offence created by section 3ZB of the Road Traffic Act 1988 (the 1988 Act). This new section was added by section 21(1) of the Road Safety Act 2006 (the 2006 Act). It provides: 3ZB Causing death by driving: unlicensed, disqualified or uninsured drivers. A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under (a) Section 87(1) of this Act (driving otherwise than in accordance with a licence); (b) Section 103(1)(b) of this Act (driving while disqualified), or (c) Section 143 of this Act (using a motor vehicle while uninsured or unsecured against third party risks). On conviction on indictment, this offence carries imprisonment for up to two years. On a late Sunday afternoon in October 2009 the defendant Mr Hughes was driving his family in his camper van. They were on their way home from a motor sports event. The road was the A69 single carriageway trunk road which runs more or less due west from Newcastle upon Tyne towards Carlisle. Mr Hughes and his family were travelling east towards Newcastle. The speed limit was the national limit of 60 mph. His driving was faultless, and his speed a steady 45 55 mph. As he rounded a right hand bend on his correct side of the road he was confronted by a motor car driven by a Mr Dickinson in the opposite direction. Mr Dickinsons car was veering all over the road; it twice crossed to its wrong side and it smashed into Mr Hughess camper van, tipping it over and trapping some of the occupants inside. The oncoming driver, Mr Dickinson, suffered injuries in the impact which proved fatal. Without saying any more it would be apparent that the collision was entirely the fault of Mr Dickinson. As it transpired, he was under the influence of heroin, as well as overtired. He worked at a power station at Largs on the west coast of Scotland. He had worked a series of 12 hour night shifts. That Sunday he had driven from Largs to Newcastle and was on his way back, a round trip of something like 400 miles, of which he had completed about 230. He was a drug user. He was maintained on a prescription dose of methadone, no doubt as a substitute for heroin, but on this day blood analysis proved that he had taken a significant quantity of heroin. He additionally had other controlled drugs in his blood, although they would not, given the heroin level, have had a significant bearing on the accident. No doubt because of the combination of heroin and over tiredness, Mr Dickinson had been driving erratically for some time before the collision. He had wandered both off the road to the nearside and across to the wrong side of the centre white line. There had nearly been an earlier collision when he was partly on the wrong side of the road, and an oncoming car had had to swerve to avoid being hit by him. Mr Dickinson had appeared to following drivers to be unaware of this incident, and rather than taking any avoiding action he had merely drifted back to his correct side of the road in the course of the swerving pattern he was exhibiting. That earlier oncoming driver was fortunate. Mr Hughes was not. He too tried his best to avoid collision by steering to his left, but Mr Dickinson took no avoiding action at all and the impact was the result. It is accepted on all sides that there was nothing Mr Hughes could do to avoid the collision. Although his manner of driving could not be criticised, Mr Hughes was without insurance. That was not, in this instance, through inadvertence. He had, culpably, chosen to disregard what everyone knows is the duty of a driver to carry insurance against liability to a third party. He had, and advanced, no excuse for being uninsured. He was also without a full driving licence. He was not disqualified from driving, but his licence had, several years earlier, been revoked on medical grounds. Subsequently he had passed a medical test and had received a letter offering congratulations on being able to get his licence back. A licence had been issued to him, which he said he thought was a full licence but which was in fact a provisional one. Whatever the truth about his belief on this score, he was undoubtedly guilty of the two offences of driving uninsured and driving without a full licence, for both of these offences are ones of strict liability which can be committed without any fault on the part of the driver. Those offences, contrary respectively to sections 143 and 87 of the 1988 Act, rendered him liable to prosecution, to fine, to penalty points and to disqualification. Neither of those offences carries a sentence of imprisonment. Rather, however, than being prosecuted for, and suffering the consequences of, these two offences, Mr Hughes was prosecuted for two offences under the new section 3ZB, namely for causing the death of Mr Dickinson at time when he was uninsured and without full driving licence. On his behalf it was submitted that he had not committed either additional offence because he had not caused the death of Mr Dickinson. The Recorder of Newcastle ruled in his favour on that point, but the Crown appealed that ruling to the Court of Appeal, Criminal Division. By the time of the hearing, the Court of Appeal considered itself bound to allow the Crowns appeal by an intervening decision in another case involving section 3ZB. Consistently with that earlier decision R v Williams [2010] EWCA Crim 2552; [2011] 1 WLR 588, it ruled that Mr Hughes had in law caused the death. Williams had held that it was not an element of the offence that the defendants driving had to exhibit any fault contributing to the accident. It had held, moreover, that it was enough that the defendant was uninsured, or without full licence, and that his car had been involved in the fatal collision. The Court of Appeal in the present case followed that ruling. Mr Hughes appeals against its decision. It follows that the question for this court is whether or not these two decisions of the Court of Appeal Criminal Division are correct. If they are, the consequence is, as Hooper LJ observed in the course of his judgment in the present case, that Mr Hughes is held criminally responsible for the death of Mr Dickinson although on a common sense view Mr Dickinson was entirely responsible for the collision which resulted in his immediate death. It also follows that if the injuries which Mr Hughess wife and son sustained had proved fatal, as easily might have happened, he would have had no defence to the charge of also causing the deaths of his own close family. This would have been notwithstanding the fact that Mr Dickinson, if he had survived to be prosecuted, would on any view have been guilty of causing their deaths by dangerous driving (section 1 of the 1988 Act) or, at the very least, by careless driving coupled with being unfit to drive through drugs (section 3A of the same Act), both of which are very serious offences carrying a maximum sentence of 14 years. The circumstances of Williams demonstrate that the problem raised by this case is neither unusual nor exceptional. There too the defendant was uninsured, again in that case deliberately so. He was driving in a perfectly proper manner along an urban dual carriageway, within the prevailing 30 mph speed limit, when a pedestrian jumped over the central reservation, stepped out right in front of his car, and was killed in the impact. It was agreed on all sides that there was nothing the defendant could have done to avoid hitting the pedestrian, and that unhappily the pedestrian was entirely responsible for his own death. The jury made it clear by two questions that it was uncomfortable with the prospect of convicting the defendant in these circumstances, but loyally abided by the judges direction that fault in the manner of driving was not an element in the offence and that it made no difference if the pedestrian was the principal cause of his own death, so long only as the presence of the defendants car was a cause of the death, and not de minimis. Williams was convicted and the Court of Appeal upheld his conviction. The duty of every driver to maintain insurance against liability to third parties who might be injured in any road accident is of great public importance. The public expects that a person injured in a road accident through the fault of someone else will have recourse to proper compensation for his injuries and loss. Since the driver at fault may well not have the money to meet the necessary compensation himself, this can only be achieved by insisting on compulsory insurance against the risk. So firm is this public expectation that for over 60 years the motor insurance industry as a whole has accepted the obligation to provide compensation even where the driver at fault had no insurance, so that the innocent injured person shall not be left without compensation. The cost of this safety net inevitably falls on the great majority of law abiding drivers who do have insurance; their premiums have to be increased to an extent to pay for those who flout their obligations. So Mr Hughes, in the present case, was committing a serious offence in seeking to profit by not paying the insurance premium which he ought to have paid and by leaving it, in effect, to the rest of the driving public to pay it for him. Public and parliamentary frustration with such people is entirely understandable. It may also be the case (although not here) that the irresponsible driver who fails to take out insurance is also irresponsible in the manner of his driving. In that event public offence is understandably the greater. To a lesser extent similar frustration may be felt with the driver who has no full driving licence, especially if he has failed to pass a driving test. The difficulty, however, exposed by the present case and others like it is that instead of Mr Hughes being punished for what he did wrong, namely for failing to pay his share of the cost of compensation for injuries to innocent persons, he is indicted and liable to be punished for an offence of homicide, when the deceased, Mr Dickinson, was not an innocent victim and could never have recovered any compensation if he had survived injured. A further difficulty is that since using a car uninsured is an offence of strict liability, it is an offence which may well be committed not only by the likes of Mr Hughes, who deliberately fail to take out insurance, but also by those who overlook a renewal notice, or who find themselves uninsured because of an office mistake by brokers, or because they have driven someone elses car when both they and the owner believed there was valid insurance but in fact there was not, for example because a condition in the policy had been overlooked. If the ruling in the present case is correct, all such persons will be guilty of a very serious offence of causing death by driving if a fatal collision ensues, even if they could have done nothing to avoid it. Has Parliament used language which unambiguously has such far reaching effects? Before the 2006 Act, the principal offences relating to bad driving, and to causing injury by it were, except for manslaughter, contained in the 1988 Act and were as set out below. All remain in existence. (i) Manslaughter, a common law offence where death is caused by gross negligence; the sentence is at large. (ii) Under section 1 of the 1988 Act, causing death by dangerous driving; this has carried imprisonment up to a maximum of 14 years since the Criminal Justice Act 2003. (iii) Under section 3A, causing death by dangerous driving when the driver was unfit through drink or drugs or over the legal alcohol limit; this too carries imprisonment up to a maximum of 14 years. (iv) Under section 2, dangerous driving, irrespective of whether accident or injury ensued; the maximum sentence has remained at two years for decades. (v) Under section 3, careless or inconsiderate driving; this is a summary only offence and does not carry custody. (vi) Under sections 4 and 5, four offences involving drink or drugs, namely driving or being in charge when either unfit or over the prescribed alcohol limit; these are also summary offences and carry maxima of six months imprisonment for the driving offences and three months for the in charge offences. (vii) There were in addition a great many summary only offences relating to the condition of vehicles and to the qualifications required of drivers; amongst them were the offences of using a motor vehicle whilst uninsured and driving without a full driving licence; these, as mentioned earlier, did not and do not carry imprisonment at all. (viii) Lastly for present purposes should be listed driving when disqualified by court order, contrary to section 103; this is a summary offence and carries a maximum of six months imprisonment. The new offence created by section 3ZB, with which we are now concerned, was introduced into the 1988 Act by section 21 of the 2006 Act. At the same time, the next door provision of the 2006 Act, section 20, created another new offence of causing death by careless or inconsiderate driving, also inserted into the 1988 Act as section 2B, and carrying a maximum of five years imprisonment. It is plain that before these additions, there was a substantial gap between, on the one hand, dangerous driving, carrying a maximum of two years imprisonment, and, on the other, manslaughter and the offences under sections 1 and 3A relating to causing death, with a maximum sentence up to 14 years. The sentencing powers available for some of the non fatal offences had for years attracted judicial criticism as too low. A prime example is dangerous driving, for which the maximum has remained two years for decades, no matter how outrageous the driving, no matter how many people were endangered and no matter how bad the defendants record for bad driving. Moreover, this offence, with its two year maximum, was the only available offence even when the dangerous driving had caused grievous injury and perhaps permanent disability; a greater sentence was available only in the event of death being caused. The penalty for uninsured driving could readily be seen likewise to fail to cope adequately with bad cases, especially for serial offenders, of whom there are many. That is the context in which Parliament created the two new offences of causing death by careless driving (section 2B) and causing death when uninsured etc (section 3ZB), no doubt in an attempt to fill part of the perceived gap. That does not, however, answer the question what is the ambit of the offence under s 3ZB. The duty of a court faced with legislation is faithfully to construe its meaning. It is not to impose upon it a judicial view of what it ought to have said. It is for that reason irrelevant that the gaps in the 1988 Act offences and penalties could easily have been cured by different means, for example by increasing the available penalties for dangerous driving, driving whilst uninsured and driving whilst disqualified, and by adding the offence of causing grievous bodily harm by dangerous driving. The last of these changes has subsequently had to be made by the addition of what is now section 1A of the 1988 Act, inserted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which creates the offence of causing serious injury by dangerous driving and defines serious injury (for England and Wales) as physical harm amounting to grievous bodily harm. What has to be decided in this case is what is meant by the expression in section 3ZB causes the death of another person by driving Although that question is asked in this context of a driver who is committing one of the three specified offences, it is formulated in a way which could equally be asked of any driver. Has a driver caused the death of another person by his driving: (a) whenever he is on the road at the wheel and a fatal incident involving his vehicle occurs? or (b) when he has done or omitted to do something in his control of the vehicle which is open to proper criticism and contributes in some more than minimal way to the death? The Crown argument, presented by Mr John Price QC, is that the words of section 3ZB are sufficiently clear to establish that the parliamentary intention was to make a driver guilty in situation (a). The purpose, it is said, was to create not only an aggravated form of the offences of using a motor vehicle uninsured, or driving unlicensed or disqualified, but to impose criminal liability for a death if it involved the presence of the defendant at the wheel of a car on the road where he had no business to be. The fault is sufficient, it is said, in driving at all when he had no right to be on the road. On paper that argument appeared to have the virtue of certainty, however counter intuitive its results might be in some situations which it is by no means far fetched to imagine. However, as the hearing progressed Mr Price recognised that this argument could not be pressed to its logical limit. He accepted that the section would not apply if the victim was attempting to commit suicide by running front of a vehicle, or if another motorist crashed into the defendants car in an attempt to kill or seriously to injure someone inside it. Once that is accepted, it is difficult to see where else a line is to be drawn than by following the normal approach to causation taken by the common law. The elusiveness of a third way (ie neither the application of the ordinary approach to questions of causation nor the strict construction that the unlicensed or uninsured motorist is guilty of the offence whenever he is involved in a collision which results in death) became apparent during Mr Prices attempts in his oral argument to ring fence possible exceptions to the strict construction, He concentrated on the mental state of the third party, ie whether he was suicidal or homicidal or attempting to cause serious injury or merely drunk or extremely reckless. Now it would be correct to say that applying the ordinary approach of the common law to a question of causation, the more deliberate the act of the third party, the more likely it is to be regarded as the effective cause of the accident; but that presupposes that the question of causation is to be determined on the ordinary common law approach. If, as a matter of construction, the offence is purely situational, ie it is committed by virtue of the fact that when involved in a fatal accident the defendant was uninsured [etc], it can make no logical difference what was the state of mind of the third party. It may readily be accepted that the intention was to create an aggravated form of the offence of having no insurance [etc], but that only begs the question whether the intention was to attach criminal responsibility for a death to those whose driving had nothing to do with that death beyond being available on the road to be struck. It is certainly true that an uninsured person ought not to be driving at all, although there is no general prohibition on his driving and if he paid for insurance he could drive perfectly lawfully, but this too begs the question whether the intention was to make him criminally responsible as a killer for an offence of homicide in the absence of any act or omission on his part which contributed to the death other than his presence as a motorist capable of being hit. To say that he is responsible because he ought not to have been on the road is to confuse criminal responsibility for the serious offence of being uninsured with criminal responsibility for the infinitely more serious offence of killing another person. The criminal law is well used to offences of which there are aggravated forms carrying additional punishment where greater harm has been done. The escalating offences of common assault, assault occasioning actual bodily harm, and causing grievous bodily harm are but simple examples; there are many more. But ordinarily, the greater punishment is linked to additional harm which is caused by a culpable act on the part of the defendant. In the case of section 3ZB, it is not. On the contrary, the present offence, if construed in the manner for which the Crown contends, represents a rare example of double strict liability, where both the underlying or qualifying condition is an offence (in the cases of unlicensed or uninsured driving) which can be committed unwittingly as well as deliberately, and also the aggravating element can be constituted by an event for which the defendant is not culpable. A trenchant expression of the approach which the Crowns submission reflects was advanced in a consultation document in 2005, at least in relation to a disqualified driver. There the possible view was set out that the mere fact of taking a vehicle on the road when disqualified is, in the Governments view, as negligent of the safety of others as is any example of driving below the standard of a competent driver, even if the disqualified driver at a particular time is driving at an acceptable standard. (Home Office Consultation Paper Review of Road Traffic Offences Involving Bad Driving February 3 2005 para 4.2) A similar argument can no doubt be advanced in relation to drivers without insurance, although there is greater scope for them to be committing the offence inadvertently. But the difficulty about this view is that however culpable it may be to drive when uninsured, unlicensed, or disqualified, if the driving is of an acceptable standard it is simply not accurate to call it negligent. The description of such a proposition by Professors Sullivan and Simester ([2012] Criminal Law Review 754) as a colourable attempt to pass off strict liability as something else is pejorative as expressed, but correct in substance. If what was meant was that there was some moral equivalence between careless or dangerous driving on the one hand and driving whilst disqualified (or uninsured or unlicensed) on the other, that may well be a tenable view so far as it goes, but a careless or dangerous driver is only fixed with criminal responsibility for a death when the manner of his driving contributes more than minimally to that death; equivalence would suggest that the same should be true of the uninsured, disqualified or unlicensed driver. The question remains whether the approach reflected in the Crowns argument is, or is not, the one ultimately adopted by Parliament. It would plainly have been possible for Parliament to legislate in terms which left it beyond doubt that a driver was made guilty of causing death whenever a car which he was driving was involved in a fatal accident, if he were at the time uninsured, disqualified or unlicensed. One formulation might have been that on which it is clear from the material before us that the Government originally consulted, at least in relation to disqualified or unlicensed (but not uninsured) drivers. That formulation was that anyone driving whilst disqualified [etc] whose vehicle was involved in a collision which resulted in death shall be guilty of an offence. Another equally clear course might have been to mirror the existing statutory language in the neighbouring section 170 of the 1988 Act (failing to stop after an accident), and to stipulate that If an accident causing the death of another person occurs owing to the presence on a road of a motor vehicle, the driver of that vehicle shall be guilty of an offence if the circumstances were that he was committing [any of the three specified offences]. If such formulations (or similar ones) had been adopted, there could have been no doubt that Mr Hughes and Mr Williams were guilty of the offence. However, that would have gone beyond the effect of the present offence on the Crowns own argument. It would have included cases of death resulting from would be suicide or from the deliberate ramming of the vehicle with intent to kill or cause serious harm. It would likewise have included the uninsured driver who was sitting stationary at the traffic lights, or at the kerbside about to pull away, when struck by an oncoming vehicle driven dangerously by someone else for, although stationary, there is no doubt that in law such persons would be driving: see for example Planton v Director of Public Prosecutions [2001] EWHC Admin 450; [2002] RTR 107. So also would have been included the driver whose car struck a pedestrian who fell into the road in front of him as a result of drunken horseplay with others on the pavement, or for that matter who engaged in a game of chicken running in front of oncoming cars. And in the same way the driver would, under such language, be guilty if driving impeccably but involved in a collision caused entirely by someone else, the result of which was to push his vehicle onto a pavement where an innocent child is killed. Such factual scenarios are by no means hypothetical. Nor is the case where the accident is caused entirely independently of the driver by interference from within the car, as is illustrated by the recent case of R v Meeking [2012] EWCA Crim 641; [2012] 1 WLR 3349 where a passenger pulled on the handbrake at speed and caused a crash which the driver could not prevent. If he had been uninsured and had survived, but a child in the rear seat had been killed, he too would then have been made guilty, by such a formulation, of killing the child. Thus if unequivocal language of this kind had been used, it would have been beyond doubt that the new offence was committed simply as a result of the defendant being in a situation, viz a fatal accident, whether caused by his driving or not, when committing one of the three specified offences. If such had been the intention of Parliament, it was very easy of achievement. Parliament did not, however, adopt language of this kind. Instead it used the expression causesdeathby driving. That imports the concept of causation. It is trite law, and was common ground before us, that the meaning of causation is heavily context specific and that Parliament (or in some cases the courts) may apply different legal rules of causation in different situations. Accordingly it is not always safe to suppose that there is a settled or stable concept of causation which can be applied in every case. That said, there are well recognised considerations which repeatedly arise in cases turning on causation. For the appellant Hughes, Mr Robert Smith QC relied upon two such recurrent propositions. The first is that a chain of causation between the act of A and a result may be broken by the voluntary, deliberate and informed act of B to bring about that result. The second is the distinction between cause in the sense of a sine qua non without which the consequence would not have occurred, and cause in the sense of something which was a legally effective cause of that consequence. Voluntary intervening act Mr Smith submitted that a person is not to be held liable for the free, deliberate and informed act of a second person, not acting in concert with him. He relied on the decision of the House of Lords in R v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269, in which that proposition was reiterated in those terms by Lord Bingham at para 14, citing Hart and Honores Causation in the law 2nd ed (1985). He submitted that the independent acts and omissions of Mr Dickinson in driving as he did fell into this category and thus broke the chain of any causation connecting any driving of the defendant to the fatality. It is certainly true that the deliberate act of B may break the chain of causation between something done by A and that deliberate act. That was so in Kennedy (No 2). There the charge was unlawful act manslaughter. Kennedy had prepared a syringe of heroin for a man called Bosque, had handed it to him at his request, and had been present when Bosque injected himself. Bosque died of the heroin. The only unlawful act alleged against Kennedy was that he caused heroin to be administered to Bosque (an offence contrary to section 23 of the Offences Against the Person Act 1861). The occurrence whose cause was under investigation was thus not the death of Bosque, but the administration of the drug. Kennedy had doubtless encouraged and assisted Bosque to administer the drug. But Bosque had administered it to himself deliberately and as a matter of free choice. Kennedy had not caused him to administer it. That principle does not assist Mr Hughes in the present case. The occurrence whose cause is under investigation here is the death of Mr Dickinson. He did not voluntarily and deliberately kill himself; he drove dangerously and without thought and as a result caused the collision in which he died. Here, if the driving of Mr Hughes was a cause of the death at all, this is the familiar case of concurrent causes. There are many examples of two or more concurrent causes of an event, all effective causes in law. A road traffic accident is one of the commoner cases, for such events are only too often the result of a combination of acts or omissions on the part of two or more persons. Where there are multiple legally effective causes, whether of a road traffic accident or of any other event, it suffices if the act or omission under consideration is a significant (or substantial) cause, in the sense that it is not de minimis or minimal. It need not be the only or the principal cause. It must, however, be a cause which is more than de minimis, more than minimal: see R v Hennigan (1971) 1 All ER 133. It follows that this appeal depends not on the narrow concept of independent intervening deliberate action (sometimes called novus actus interveniens) but on the broader question whether the driving of Mr Hughes was in law a cause of the death of Mr Dickinson. But for cause and legal cause The law has frequently to confront the distinction between cause in the sense of a sine qua non without which the consequence would not have occurred, and cause in the sense of something which was a legally effective cause of that consequence. The former, which is often conveniently referred to as a but for event, is not necessarily enough to be a legally effective cause. If it were, the woman who asked her neighbour to go to the station in his car to collect her husband would be held to have caused her husbands death if he perished in a fatal road accident on the way home. In the case law there is a well recognised distinction between conduct which sets the stage for an occurrence and conduct which on a common sense view is regarded as instrumental in bringing about the occurrence. There is a helpful review of this topic in the judgment of Glidewell LJ in Galoo Ltd v Bright Grahame Murray (a firm) [1994] 1 WLR 1360. Amongst a number of English and Commonwealth cases of high authority, he cited at pp 1373 1374 the judgment of the High Court of Australia in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, 515, in which Mason CJ emphasised that it is wrong to place too much weight on the but for test to the exclusion of the common sense approach which the common law has always favoured, and that ultimately the common law approach is not susceptible to a formula. In the earlier section 3ZB case of Williams the principal focus of the argument was the defendants submission that the new offence under section 3ZB depended on proof of some fault in the driving of the defendant. That submission failed in large part because of the simultaneous creation by the 2006 Act of the second new offence of causing death by careless driving by inserting section 2B into the 1988 Act. The view was taken that this necessarily meant that section 3ZB must catch cases which would not in any event fall within section 2B. The argument in Williams did not focus centrally on the meaning of causes. deathby driving. In the present case, Mr Smith for the appellant has disclaimed any argument that fault is a necessary element of the offence under section 3ZB. He has concentrated on the meaning of the expression causesdeathby driving. Logically that is a separate question from whether section 3ZB has to be read as requiring an element of careless or inconsiderate driving. As a matter of fact, recent legislative history is replete with examples of new offences which very largely overlap with each other, or with existing offences, so that it is not altogether safe to draw a conclusion from the juxtaposition of the two new offences that they do not also overlap. If it be assumed that Mr Smiths concession is correct, it does not follow from the fact that section 3ZB contains no requirement that the defendant driver should have committed the offence of careless or inconsiderate driving that he is not required to have done or omitted to do something in the driving of the car which has contributed to the death, before he can be held to have caused it by his driving. In the present case, as in that of Williams, there is no suggestion that there was anything which the defendant either did or omitted to do in the driving of the car which contributed to the least extent to the fatality. The driving of the two defendants was, no doubt, a but for cause of the death. It set the scene or provided the background to, or occasion for, the fatal collision. But that does not resolve the question whether it was a legally effective cause. By the test of common sense, whilst the driving by Mr Hughes created the opportunity for his car to be run into by Mr Dickinson, what brought about the latters death was his own dangerous driving under the influence of drugs. It was a matter of the merest chance that what he hit when he veered onto the wrong side of the road for the last of several times was the oncoming vehicle which Mr Hughes was driving. He might just as easily have gone off the road and hit a tree, in which case nobody would suggest that his death was caused by the planting of the tree, although that too would have been a sine qua non. This is a statute creating a penal provision, and one of very considerable severity. The offence created is a form of homicide. To label a person a criminal killer of another is of the greatest gravity. The defendant is at risk of imprisonment for a substantial term. Even if, at least in a case of inadvertent lack of insurance or venial lack of licence, a sentence of imprisonment were not to follow, the defendant would be left with a lifelong conviction for homicide which would require disclosure in the multiple situations in which ones history must be volunteered, such as the obtaining of employment, or of insurance of any kind. Nor should the personal burden or the public obloquy be underestimated; to carry the stigma of criminal conviction for killing someone else, perhaps a close relative, perhaps as in the kind of situation referred to in para 19 an innocent child, is no small thing. A penal statute falls to be construed with a degree of strictness in favour of the accused. It is undoubtedly open to Parliament to legislate to create a harsh offence or penalty, just as it is open to it to take away fundamental rights, but it is not to be assumed to have done so unless that interpretation of its statute is compelled, and compelled by the language of the statute itself. The rule of construction which applies to penal legislation, and a fortiori to legislation which carries the penalty of imprisonment, is not identical to, but is somewhat analogous to, the principle of statutory interpretation known as the principle of legality. Lord Hoffmann described that principle in this way in R v Secretary of State for the Home Department Ex p Simms and OBrien [2000] 2 AC 115, 131E: Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. This is not a case of fundamental human rights However, the gravity of a conviction for homicide, for which the sentence may be a term of imprisonment, is such that if Parliament wishes to displace the normal approach to causation recognised by the common law, and substitute a different rule, it must do so unambiguously. Where, as here, Parliament has plainly chosen not to adopt unequivocal language which was readily available, it follows that an intention to create the meaning contended for by the Crown cannot be attributed to it. It follows that in order to give effect to the expression causesdeathby driving a defendant charged with the offence under section 3ZB must be shown to have done something other than simply putting his vehicle on the road so that it is there to be struck. It must be proved that there was something which he did or omitted to do by way of driving it which contributed in a more than minimal way to the death. The question therefore remains what can or cannot amount to such act or omission in the manner of driving. The decisions of the Court of Appeal in Williams and in the present case have received academic commentary including a case note on Williams by Professor Ormerod at [2011] Crim LR 473 and the article by Professors Sullivan and Simester referred to above. All consider that on a correct construction of the section more is required than the mere fact of involvement of Ds vehicle in a fatal accident whilst D is driving without a licence, etc, so as to give proper meaning to the words causes the deathby driving As is apparent from what we have said, we agree. Sullivan and Simester have gone on to canvass what the additional ingredient might involve, if short of some form of fault or driving which is properly open to criticism. They suggest that the additional ingredient required is something giving rise to responsibility for the death but that responsibility is not to be confused with culpability. They postulate examples of the driver who, in the agony of the moment, swerves the wrong way, or who encounters an unexpected natural hazard such as black ice. Mr Smiths concession led him similarly to accept that if an unlicensed driver in the agony of the moment swerves to avoid a car being driven across the road in the way that Mr Dickinson drove, but in so doing he makes the wrong movement and is involved in a collision which might have been avoided if he had acted differently, he would be guilty under the section. But even if one were to remove the inherent ambiguities of might by requiring simply that the manoeuvre be a cause of the death, this still begs the vital question: by what standard is the jury to judge what was the wrong movement? There might be several variations to the scenario in which an oncoming motorist acts as Mr Dickinson did. D1 is unable to swerve and is hit by the oncoming vehicle with the resulting death of the oncoming motorist and/or a passenger in one or both of the vehicles. D2 swerves but is struck by the oncoming car and the impact causes D2s vehicle to collide with another vehicle or a pedestrian. D3 swerves and avoids colliding with the oncoming vehicle but collides with another vehicle or pedestrian. Yet there is no principled difference in the criminal responsibility of these defendants in respect of the death or deaths of the victim or victims. The same difficulty is encountered if one considers unexpected natural hazards. Sullivan and Simester suggest that D would be guilty if he lost control of his vehicle on a treacherous road surface but without any culpability, but that is to attach guilt to mere presence on the road (which of itself they do not consider to be enough for purposes of causation). If the suggestion were nevertheless correct, it begs the question whether there is any difference in Ds causation between cases where the hazard is naturally occurring and cases where it occurs through human agency? Would it apply if a falling rock (or other heavy object) lands naturally on the road in front of him but also where it falls from the back of an insecure tailgate of a lorry in front of D or is thrown or dropped in front of his vehicle? Similary, is there a difference in terms of Ds causation between him skidding on invisible black ice which has formed naturally and skidding unavoidably on a pool of oil deposited by another motorist which made the surface dangerous? To draw fine distinctions between these cases would be to make the law confusing and incoherent, as well as being unmanageable for trial courts, both for judges and juries. We are driven to the view that there is no logical or satisfactory intermediate position between holding (a) that the law imposes guilt of homicide whenever the unlicensed motorist is involved in a fatal accident and (b) that he is guilty of causing death only when there is some additional feature of his driving which is causative on a common sense view and the latter entails there being something in the manner of his driving which is open to proper criticism. To give effect to the words causesdeathby driving there must be something more than but for causation. If causing death by driving cannot be constituted simply by being involved in a fatal collision, it would be contrary to the common laws common sense approach to agony of the moment situations for it to be constituted by (for example) a desperate last millisecond attempt to swerve out of the way of the oncoming vehicle of such as Mr Dickinson. Once this is accepted, there is no stopping point short of some act or omission in the driving which is open to criticism, ie which involves some element of fault. Mr Smiths concession in the present case proves, on close inspection, to go further than it should. The statutory expression cannot, we conclude, be given effect unless there is something properly to be criticised in the driving of the defendant, which contributed in some more than minimal way to the death. It is unwise to attempt to foresee every possible scenario in which this may be true. It may well be that in many cases the driving will amount to careless or inconsiderate driving, but it may not do so in every case. Cases which might not could, for example, include driving slightly in excess of a speed limit or breach of a construction and use regulation. If on facts similar to the present case, D who was driving safely and well at 34 mph in a 30 mph limit, or at 68 mph in a 60 mph limit was unable to stop before striking the oncoming drunken drivers car, but would have been able to stop if travelling within the speed limit, his driving would be at fault, and one cause of the death, but would be unlikely to amount, by itself, to careless driving. The same might be true if he could not stop in time because a tyre had become underinflated or had fallen below the prescribed tread limit, something which he did not know but could, by checking, have discovered. Juries should thus be directed that it is not necessary for the Crown to prove careless or inconsiderate driving, but that there must be something open to proper criticism in the driving of the defendant, beyond the mere presence of the vehicle on the road, and which contributed in some more than minimal way to the death. How much this offence will in practice add to the other offences of causing death by driving will have to be worked out as factual scenarios present themselves; it may be that it will add relatively little, but this is the inevitable consequence of the language used and the principles of construction explained above. We were referred to the decision of the Court of Appeal in R v Marsh [1997] 1 Cr App R 67, which was relied upon in Williams. That case concerned the offence of aggravated vehicle taking, contrary to section 12A (1) of the Theft Act 1968. Under that section if the defendant has committed the basic offence of wrongful taking of, or driving, or allowing himself to be carried in, such a vehicle, he is made criminally liable for the aggravated offence if certain specified additional events happen to the vehicle. Two of those additional events are accidents causing injury to a person, or damage to some property other than the vehicle, if they occur owing to the driving of the vehicle. Marsh held that no element of drivers fault was imported into that offence. The language and construction of the section are different from the section here under consideration. The different language of section 12A makes it clear that a defendant may be guilty even if the vehicle is being driven by someone else at the time of the specified additional events, although a defence is then provided in the case of injury if the defendant was not present at the time. Whilst there might be some force in the contention that the expression owing to the driving of the vehicle imports an element of causation similar to that involved in causingdeathby driving, the point was not argued before us and should be left open. It does not assist the construction of the present statute to compare it with different words of a different statute creating a different type of offence. The certified question in this case asks: Is an offence contrary to section 3ZB of the Road Traffic Act 1988, as amended by section 21(1) of the Road Safety Act 2006, committed by an unlicensed, disqualified or uninsured driver when the circumstances are that the manner of his or her driving is faultless and the deceased was (in terms of civil law) 100% responsible for causing the fatal accident or collision? under section 3ZB will then add to the other offences of causing death by driving must remain to be worked out as factual scenarios are presented to the courts. In the present case the agreed facts are that there was nothing which Mr Hughes did in the manner of his driving which contributed in any way to the death. It follows that the Recorder of Newcastle was correct to rule that he had not in law caused the death by his driving. The appeal should be allowed and that ruling restored. For the reasons set out, enquiry into apportionment of liability in civil terms is not appropriate to a criminal trial. But it must follow from the use of the expression causesdeathby driving that section 3ZB requires at least some act or omission in the control of the car, which involves some element of fault, whether amounting to careless/inconsiderate driving or not, and which contributes in some more than minimal way to the death. It is not necessary that such act or omission be the principal cause of the death. In which circumstances the offence	This case concerns the scope of the new offence created by section 3ZB of the Road Traffic Act 1988 (the 1988 Act). This new section was added by section 21(1) of the Road Safety Act 2006 (the 2006 Act). It provides: A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under (a) Section 87(1) of this Act (driving otherwise than in accordance with a licence); (b) Section 103(1)(b) of this Act (driving while disqualified), or (c) Section 143 of this Act (using a motor vehicle while uninsured or unsecured against third party risks). On conviction on indictment, this offence carries imprisonment for up to two years. On a Sunday afternoon in October 2009 the appellant was driving his family home in a campervan along the A69 towards Newcastle. Road conditions were normal and the appellants driving was faultless. The speed limit was 60 mph and the appellant was travelling at a steady speed of 45 55mph. At the same time Mr Dickinson was driving in the opposite direction. Mr Dickinson was driving erratically his car was veering all over the road, twice crossing into the wrong lane before smashing into the appellants campervan as it rounded a bend. The appellant and his family survived. However, Mr Dickinson suffered injuries as a result of the impact that proved to be fatal. Mr Dickinson was found to have had a significant quantity of heroin in his system and was a drug user. He was also overtired, having worked a series of 12 hour nightshifts in a power station in Largs, on the west coast of Scotland. He had already driven to Largs that day and had completed approximately 230 miles of his 400 mile return journey when the collision happened. At the time of the collision the appellant did not have a driving license and was not insured, both of which are offences under the Road Traffic Act 1988. Neither offence carries a sentence of imprisonment. It was accepted by the prosecution that the appellant was in no way at fault for the accident and could not have done anything to prevent it. The blame was entirely with the driving of Mr Dickinson, yet the appellant was prosecuted under section 3ZB of the 1988 Act for causing the death of Mr Dickinson whilst driving uninsured and without a license. At trial the judge directed the jury that they could only find the appellant guilty if they found he had contributed in a substantial way to Mr Dickinsons death i.e. in a way that was more than minimal. The prosecution appealed this ruling and the Court of Appeal, which felt itself bound by the decision in R v Williams [2010] EWCA Crim 2552, held that the prosecution did not have to prove any element of fault on the part of the appellant, his mere involvement in the fatal collision would be sufficient to commit the offence. The Supreme Court unanimously allows the appeal. Lord Hughes and Lord Toulson jointly give the judgment of the court. If the Court of Appeal were correct, then in this case the appellant would be criminally responsible for Mr Dickinsons death despite not being at fault at all for the collision. In addition, if any of the appellants family had died he would also be criminally responsible for their deaths despite the fact that if Mr Dickinson had survived he would have been guilty of causing death by, at the very least, careless driving when unfit to drive through drugs.[5 6]. It would plainly have been possible for Parliament to legislate in terms which left it beyond doubt that a driver was made guilty of causing death whenever a car which he was driving was involved in a fatal accident, if he were at the time uninsured, disqualified or unlicensed. It did not and instead used expression causesdeathby driving. This imports the concept of causation [19 20]. This is not a case where the concept of a deliberate intervening act applies to break the chain of causation. Mr Dickinson did not deliberately set out to kill himself. This is a case where there are potentially multiple causes of the death. The question is whether the appellants driving was in law a cause [22]. It was not; it was simply an event but for which the collision would not have happened. That would be much the same as saying, if the other driver had hit a tree rather than the defendants vehicle, that whoever planted the tree caused the death. The law draws a distinction between things which are but for circumstances which are just the background to an event, and things which truly cause that event. In R v Williams it was held that s.3ZB must catch cases that did not fall under s.2B (causing death by careless driving) but that case did not focus on the meaning of causesdeathby driving. It does not follow from the fact that section 3ZB contains no requirement that the defendant driver should have committed the offence of careless or inconsiderate driving that he is not required to have done or omitted to do something in the driving of the car which has contributed to the death, before he can be held to have caused it by his driving [24]. The gravity of a conviction for homicide, for which the sentence may be a term of imprisonment, is such that if Parliament wishes to displace the normal approach to causation recognised by the common law, and substitute a different rule, it must do so unambiguously [27]. There is no logical or satisfactory intermediate position between holding (a) that the law imposes guilt of homicide whenever the unlicensed motorist is involved in a fatal accident and (b) that he is guilty of causing death only when there is some additional feature of his driving which is causative on a common sense view, and the latter entails there being something in the manner of his driving which is open to proper criticism. The statutory expression cannot, the Court concludes, be given effect unless there is something properly to be criticised in the driving of the defendant, which contributed in some more than minimal way to the death. It is unwise to attempt to foresee every possible scenario in which this may be true but cases which might fall under s.3ZB but not s.2B (causing death by careless or inconsiderate driving) might, for example, include driving slightly in excess of a speed limit or breach of a construction and use regulation [32]. The trial judges ruling is reinstated. and the matter returned to Newcastle Crown Court.
When an injunction is obtained against an innocent intermediary to prevent the use of his facilities by wrongdoers for unlawful purposes, who should pay the cost of complying with the order? The respondents are three Swiss or German companies belonging to the Richemont Group. They design, manufacture and sell luxury branded goods such as jewellery, watches and pens under well known trade marks including Cartier, Montblanc and IWC. The internet has provided infringers with a powerful tool for selling counterfeit copies of branded luxury goods, generally of lower quality than the genuine article and at lower prices. It allows them access to a world wide market, as well as a simple way of concluding sales and collecting the price with practically complete anonymity. This illicit business is carried out on a large scale. The evidence is that at the outset of this litigation the respondents alone had identified some 46,000 websites offering infringing copies of their branded goods. The two appellants and three other defendants in the proceedings below (who did not participate in this appeal) are the five largest internet service providers (or ISPs) serving the United Kingdom, with a combined market share exceeding 90%. They provide networks by which subscribers are able to access content on the internet. But they do not provide or store content. They are not even in a position to monitor it, for even if that was technically feasible given the volume of internet traffic, they are forbidden to do so by law. They have no contractual relationship with the operators of websites accessed through their networks, and are not necessarily in a position even to identify them. They do not therefore themselves use or infringe the marks or aid or abet others to do so. Nonetheless, the facilities which they provide for their subscribers are a critical means by which the sellers of infringing goods are able to reach their customers. On 17 October and 26 November 2014 the respondents obtained injunctions from Arnold J requiring the appellant ISPs to block or attempt to block access to specified target websites, their domains and sub domains and any other IP address or URL notified to them whose purpose is to enable access to a target website. Website blocking injunctions have become a familiar weapon in the continuing battle between the holders of intellectual property rights and infringers. There is an express statutory power to make such orders to protect copyrights under section 97A of the Copyright, Designs and Patents Act 1988. In Twentieth Century Fox Film Corpn v British Telecommunications plc [2012] 1 All ER 806 and Twentieth Century Fox Film Corpn v British Telecommunications plc (No 2) [2012] 1 All ER 869, Arnold J dealt with a number of issues concerning website blocking injunctions in copyright cases. Since then similar injunctions have been granted on 17 occasions against the appellant ISPs on the application of copyright owners, and they have achieved a high degree of standardisation. Their use seems likely to increase. This is the first case in which a website blocking injunction has been granted to protect a trade mark. There is no specific statutory provision relating to trade marks corresponding to section 97A of the Copyright, Designs and Patents Act 1988. There was a major issue in the courts below about the jurisdiction of the court to make such an injunction under the general power conferred on the court by section 37(1) of the Senior Courts Act 1981. There were also issues about some of the criteria for granting them. The Court of Appeal upheld the decision of Arnold J on these points, and they are no longer in issue. This appeal is concerned with costs, and in particular with the costs to the ISPs of implementing website blocking orders. Implementation costs vary according to the technology employed and the ISPs business model. But they fall, broadly speaking, under five heads: (i) the cost of acquiring and upgrading the hardware and software required to block the target sites; (ii) the cost of managing the blocking system, including customer service, and network and systems management; (iii) the marginal cost of the initial implementation of the order, which involves processing the application and configuring the ISPs blocking systems; (iv) the cost of updating the block over the lifetime of the orders in response to notifications from the rights holders, which involves reconfiguring the blocking system to accommodate the migration of websites from blocked internet locations; and (v) the costs and liabilities that may be incurred if blocking malfunctions through no fault of the ISP, for example as a result of over blocking because of errors in notifications or malicious attacks provoked by the blocking. The ISPs do not complain about having to bear the costs under heads (i) and (ii). Most if not all of those would be incurred in any event for other reasons, for example to block access to child abuse images or to provide facilities for parental controls. The main question at issue on the present appeal is whether the rights holders should have been required as a term of the order to indemnify the ISPs for implementation costs under heads (iii), (iv) and (v). The practice since Twentieth Century Fox Film Corpn v British Telecommunications plc (No 2) [2012] 1 All ER 869 has been to order the rights holders to bear their costs of the unopposed proceedings to obtain website blocking orders but to leave the ISPs to bear the costs of implementing the orders. In his judgment in that case, at para 32, Arnold J justified leaving the ISPs to pay the costs of implementation on two grounds. The first was essentially a consideration of commercial equity: The studios are enforcing their legal and proprietary rights as copyright owners and exclusive licensees BT is a commercial enterprise which makes a profit from the provision of the services which the operators and users of [the target website] use to infringe the studios copyright. As such, the costs of implementing the order can be regarded as a cost of carrying on that business. Arnold Js second ground was that it was implicit in the EU Directives which require member states to make website blocking injunctions available. I shall return to this point when I come to deal with the Directives. At any rate, the practice proposed by Arnold J in 2011 has been followed ever since, and it was followed by Arnold J himself in this case. The majority of the Court of Appeal (Jackson and Kitchin LJJ, Briggs LJ dissenting) upheld him on this point also: [2017] Bus LR 1. Although the terms on which an injunction is granted are discretionary, the current practice has been adopted as a matter of principle and routinely applied. It is therefore necessary on this appeal for us to decide whether the principle is sound. That requires us to examine the legal basis on which website blocking injunctions are made. It is founded partly on domestic and partly on EU law. Domestic law For much longer than there has been an internet or EU Directives about it, the English courts have had jurisdiction in certain circumstances to order parties to assist those whose rights have been invaded by a wrongdoer. The historical origin of this jurisdiction is the bill of discovery in equity. The bill of discovery originated at a time when law and equity were separately administered. It was a proceeding in Chancery ancillary to proceedings against the wrongdoer at law, in which the sole relief sought was an order for disclosure for use in the principal proceedings. In Orr v Diaper (1876) 4 Ch D 92, the power to order disclosure was extended to a case where proceedings were not yet pending in another court, but the plaintiff wanted to know the names of those whom he might sue. Hall V C ordered the innocent carrier of cotton thread bearing the plaintiffs counterfeit trade mark to disclose the name of the shipper which was as yet unknown to the rights holder. This was a limited departure from the original principle. A more significant departure occurred with the decision of Lord Romilly MR in Upmann v Elkan (1871) LR 12 Eq 140. This decision marked the point at which the power to order a party to assist the plaintiff against a wrongdoer acquired a life of its own, independent of its origins in the bill of discovery. The facts were that the defendant freight forwarding agent was innocently in possession of consignments of counterfeit cigars in transit to Germany through a London dock. The action was not for discovery, but for an order restraining the forwarder from releasing the goods and an account of damages, on the footing that he had himself infringed the mark. The forwarder volunteered the names of the consignors and agreed to submit to whatever order the court should make. That left only the question of the costs of the action. Lord Romilly MR accepted that the forwarder was not an infringer, but thought that he would have been if after being told of the infringement he had not performed his duty. His duty in Lord Romillys view (p 145) was at once to give all the information required, and to undertake that the goods shall not be removed or dealt with until the spurious brand has been removed, and to offer to give all facilities to the person injured for that purpose. The decision was affirmed on appeal by Lord Hatherley LC: (1871) LR 7 Ch App 130. A century later, Lord Romillys judgment was the main basis in authority for the seminal decision of the House of Lords in Norwich Pharmacal Co v Customs and Excise Comrs [1974] AC 133. Norwich Pharmacal was an action against the Customs and Excise for an order that they disclose the identity of those who, by importing drugs the subject of the plaintiffs patent, had infringed it. The Customs and Excise, although they were not themselves infringers or in any other way culpable, had control over the goods at the point of importation. They were therefore unwittingly involved in the infringement although not party to it. The House of Lords held that disclosure should be ordered. The mere fact that the Commissioners possessed the relevant information was not enough to justify this result. The decisive factor was that they had themselves facilitated the tort, albeit innocently. Lord Reid stated the principle as follows at p 175B C: if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co operate in righting the wrong if he unwittingly facilitated its perpetration. The Norwich Pharmacal jurisdiction is commonly exercised for the purpose of assisting the claimant to bring or maintain proceedings against the wrongdoers, generally by providing information. But it is not limited to cases where proceedings against the wrongdoers are anticipated, or indeed to the provision of information. As Lord Fraser observed in British Steel Corpn v Granada Television Ltd [1981] AC 1096, 1200C G, the injunction is sought for the vindication of BSCs rights, and I do not think it matters whether separate proceedings are required for that purpose or not. This was confirmed by the House of Lords in Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033, para 3, and by the Supreme Court in Rugby Football Union v Consolidated Information Services Ltd (formerly Viagogo Ltd) [2012] 1 WLR 3333, para 15. The true basis of the courts intervention is that once the intermediary has been given notice of the infringement of the plaintiffs rights, his duty is to stop placing his facilities at the disposal of the wrongdoer. This is why it is critical that the intermediary should have been mixed up in the tortious acts of others. As it happened, the Commissioners of Customs and Excise were mixed up in the importation pursuant to a statutory duty. They could not therefore be required to do more than provide information so as to allow direct proceedings against the infringers to stop the importation. But an intermediary who was free to terminate his involvement in the infringing trade, like the freight forwarder in Upmann v Elkan, could have been required to do so. I suggested in Singularis Holdings Ltd v PricewaterhouseCoopers [2015] AC 1675, para 22, that the duty to assist identified by Lord Reid was not a legal duty in the ordinary sense of the term. As Lord Reid himself put it in Norwich Pharmacal, the intermediary came under the duty without incurring personal liability. This is really only another way of saying that the court had an equitable jurisdiction to intervene. Lord Kilbrandon put the point very clearly in his own speech. Citing the South African decision in Colonial Government v Tatham (1902) 23 Natal LR 153, 158, he said that the duty is said to lie rather on the court to make an order necessary to the administration of justice than on the respondent to satisfy some right existing in the plaintiff (p 205D E). It is not clear how the costs of compliance were dealt with in Norwich Pharmacal itself. The only member of the Appellate Committee to express a firm view in his speech was Lord Cross. The full costs of the respondent of the application and any expense incurred in providing the information, he observed at p 199G, would have to be borne by the applicant. Lord Reid, in the passage which I have quoted, tended to that view but more equivocally. The other members of the Appellate Committee agreed with the order proposed by Lord Reid, but without saying anything about compliance costs. Subsequent practice has, however, been consistent. The ordinary rule, absent exceptional circumstances, is that the intermediary is entitled to the costs of compliance. The reason was explained by Aldous LJ, delivering the judgment of the Court of Appeal in Totalise Plc v The Motley Fool Ltd [2002] 1 WLR 1233, para 29. The defendant operated an internet bulletin board for investors, on which account holders could post opinions and information. Totalise complained that one account holder was posting defamatory messages under a pseudonym, and obtained a Norwich Pharmacal injunction requiring disclosure of his name. The Court of Appeal, overruling the judge, held that the defendant should have both the costs of the proceedings and the costs of implementation. Aldous LJ said: Norwich Pharmacal applications are not ordinary adversarial proceedings, where the general rule is that the unsuccessful party pays the costs of the successful party. They are akin to proceedings for pre action disclosure where costs are governed by CPR r 48.3. That rule, we believe, reflects the just outcome and is consistent with the views of Lord Reid and Lord Cross in the Norwich Pharmacal case [1974] AC 133, 176, 199. In general, the costs incurred should be recovered from the wrongdoer rather than from an innocent party Each case will depend on its facts In a normal case the applicant should be ordered to pay the costs of the party making the disclosure including the costs of making the disclosure. A similar practice applies to the expense incurred by banks in complying with orders to disclose information for the purpose of enabling a party to trace the proceeds of fraud: Bankers Trust Co v Shapira [1980] 1 WLR 1274, 1281 1282 (CA). And to those incurred in complying with freezing orders: Z Ltd v A Z and AA LL [1982] QB 558, 575 (Lord Denning MR) and 586 (Kerr LJ). The latter practice is now embodied in the model wording in PD 25A of the Civil Procedure Rules. Other innocent third parties, such as port authorities required by a freezing order to detain a vessel in port, are entitled to the same indemnity: Clipper Maritime Co Ltd of Monrovia v Mineralimportexport [1981] 1 WLR 1262, 1263 1264. In Miller Brewing Co v Mersey Docks and Harbour Co [2004] FSR 5 an order for delivery up of goods bearing an infringing mark was made under sections 16 and 19 of the Trade Marks Act 1994. The goods were in the physical custody of the dock authority, which had no responsibility for the infringement. It was conceded that the dock authority should be indemnified against its costs of compliance, but there was an issue as to the costs of the litigation. This was not, of course, a Norwich Pharmacal application. But Neuberger J ordered that the trade mark proprietor should pay both, by analogy with the general rule on such applications. At para 30, he said: The logic behind that general rule is that, where an innocent third party has reasonably incurred legal costs to enable a claimant to obtain relief, then, as between the innocent third party and the innocent claimant, it is more unjust if the innocent third party has to bear his own legal cost than it is for the innocent claimant to pay them. After all, it is the claimant who is invoking the legal process to obtain a benefit, and the fact that the benefit is one to which he is legally entitled is not enough to justify an innocent third party having to be out of pocket. Website blocking orders clearly require more than the mere disclosure of information. But I think that it is clear from the authorities and correct in principle that orders for the disclosure of information are only one, admittedly common, category of order which a court may make against a third party to prevent the use of his facilities to commit or facilitate a wrong. I therefore agree with the view expressed by Briggs LJ in his dissenting judgment in the Court of Appeal that the website blocking order made in this case could have been made quite apart from the power derived from European law, on ordinary principles of equity. The Directives National laws concerning intellectual property rights, notably copyrights and trade marks, are partially harmonised by a series of EU Directives. In particular, the protection of intellectual property rights infringed through the internet has important implications for the free movement of goods and services and is for that reason the subject of an elaborate scheme of European legislation. It is contained in a number of Directives, of which three are relevant to the present issue. They are Parliament and Council Directives 2000/31/EC (the E Commerce Directive), 2001/29/EC (the Information Society Directive) and 2004/48/EC (the Enforcement Directive). The first two of these Directives were conceived as a coherent whole and should be read together. The third extended and strengthened the provisions for their enforcement. The E Commerce Directive is primarily concerned with the regulation of information society services. The definition of these services is borrowed from article 1(2) of Directive 98/34/EC as amended by article 1(2) of Directive 98/48/EC, which regulates the provision of information relating to technical standards and regulation in member states. They are services of a kind that are normally remunerated, and provided at a distance by means of electronic equipment for the processing and storage of data at the individual request of a recipient of the service. The definition includes ISPs, which merely provide a communications network, as well as a variety of other services such as web hosting, internet search engines, portals and internet payment systems. The purpose of the Directive is to enable the providers of information society services to operate across the European Union on a common legal basis. One of the main challenges in this field is the prospect of diverse national laws dealing with the use of the internet for illegal activities. The scheme of the Directive is that intellectual property rights continue to be governed by national law, as modified by the various harmonisation Directives, but the E Commerce Directive (i) restricts the ability of member states to impose licensing requirements on internet intermediaries and (ii) requires them to provide immunity from liability under their national laws in respect of a wide range of normal internet operations. At the same time, the Directive (iii) requires those who carry on certain operations to co operate in removing access to illegal material and provides, at this stage in very general terms, for ad hoc judicial intervention to stop illegal activity. The Directive recites: (40) Both existing and emerging disparities in member states legislation and case law concerning liability of service providers acting as intermediaries prevent the smooth functioning of the internal market, in particular by impairing the development of cross border services and producing distortions of competition; service providers have a duty to act, under certain circumstances, with a view to preventing or stopping illegal activities; this Directive should constitute the appropriate basis for the development of rapid and reliable procedures for removing and disabling access to illegal information; such mechanisms could be developed on the basis of voluntary agreements between all parties concerned and should be encouraged by member states; it is in the interest of all parties involved in the provision of information society services to adopt and implement such procedures (42) The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. (43) A service provider can benefit from the exemptions for mere conduit and for caching when he is in no way involved with the information transmitted; this requires among other things that he does not modify the information that he transmits; this requirement does not cover manipulations of a technical nature which take place in the course of the transmission as they do not alter the integrity of the information contained in the transmission. (44) A service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of mere conduit or caching and as a result cannot benefit from the liability exemptions established for these activities. (45) The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it. (46) In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned; the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level; this Directive does not affect member states possibility of establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information. (47) Member states are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation. Articles 12 to 14 contain the limitations of liability referred to in recitals (46) and (47). These are the so called safe harbours. They provide that specified operations characteristic of the different kinds of information society service are not to give rise to liability. They are in the following terms: Article 12 Mere Conduit 1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, member states shall ensure that the service provider is not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission. 2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission. 3. This article shall not affect the possibility for a court or administrative authority, in accordance with member states legal systems, of requiring the service provider to terminate or prevent an infringement. Article 13 Caching 1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, member states shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the informations onward transmission to other recipients of the service upon their request, on condition that: the provider does not modify the information; the provider complies with conditions on access (a) (b) to the information; (c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry; the provider does not interfere with the lawful (d) use of technology, widely recognised and used by industry, to obtain data on the use of the information; and (e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement. 2. This article shall not affect the possibility for a court or administrative authority, in accordance with member states legal systems, of requiring the service provider to terminate or prevent an infringement. Article 14 Hosting 1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, member states shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. Paragraph 1 shall not apply when the recipient of the 2. service is acting under the authority or the control of the provider. 3. This article shall not affect the possibility for a court or administrative authority, in accordance with member states legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for member states of establishing procedures governing the removal or disabling of access to information. Article 15(1) seeks to close an alternative route by which liability for content might be imposed on information society services. It provides: 1. Member states shall not impose a general obligation on providers, when providing the services covered by articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. Article 18(1) foreshadows the more detailed provisions for judicial intervention in the following Directives. It provides: Article 18 Court actions 1. Member states shall ensure that court actions available under national law concerning information society services activities allow for the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved. Articles 12 to 14 require member states to confer on information society services immunity from liability under their national laws for certain designated operations. Articles 12(1), 13(1) and 14(1) require that immunity to be conditional. The differences between the conditions in the three provisions reflect the different degrees of responsibility on the part of the information society service for the content of what is transmitted. The mere provision of a communications network (article 12) and caching (article 13) are to be immune for the reasons explained in recitals (42) and (43). They are passive, technical services involving no editorial function. The restriction on monitoring in article 15 means that they are unlikely to know and have no duty to discover the content of what is transmitted. By comparison, the corresponding immunity for hosting in article 14 is more strictly conditional because there is an editorial function, however minimal. The provider of the service holds selected content for distribution and has a direct relationship with the content provider. It is not a mere passive actor. It should be noted that the duty to stop illegal activities which is referred to in recital (40) applies only to caching and hosting. The immunity for caching is conditional on the service provider expeditiously removing or disabling access to information temporarily stored in the course of transmission once it knows that the information has been removed from the network or that access to it there has been disabled or that a relevant authority has required these measures: article 13(1)(e). The immunity for hosting requires the service provider to take the same steps as soon as it becomes aware of any illegality or of facts from which it is apparent: article 14(1)(b). The assistance to rights holders which is required of information society services engaging in caching or hosting under articles 13(1)(e) and 14(1)(b) respectively are not free standing obligations. They are conditions of the relevant immunity. The consequence of breach of those requirements is that the immunity is lost, but whether that results in liability will depend on the provisions of national law: see Google France SARL v Centre national de recherche en relations humaines (CNRRH) SARL (Joined Cases C 236/08 to C 238/08) [2011] Bus LR 1, para 107, and LOral SA v eBay International AG (Case C 324/09) [2012] Bus LR 1369, para 107. For present purposes, the important point is that there is no corresponding condition attached to acting as a mere conduit, which is the operation characteristic of an ISP. The immunity attached to that operation is not conditional on any active steps being taken other than compliance with court orders. I turn to the Information Society Directive, which is concerned with the protection of intellectual property rights. The Directive recites: (4) A harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation, including network infrastructure, and lead in turn to growth and increased competitiveness of European industry, both in the area of content provision and information technology and more generally across a wide range of industrial and cultural sectors. This will safeguard employment and encourage new job creation. (58) Member states should provide for effective sanctions and remedies for infringements of rights and obligations as set out in this Directive. They should take all the measures necessary to ensure that those sanctions and remedies are applied. The sanctions thus provided for should be effective, proportionate and dissuasive and should include the possibility of seeking damages and/or injunctive relief and, where appropriate, of applying for seizure of infringing material. (59) In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end. Therefore, without prejudice to any other sanctions and remedies available, right holders should have the possibility of applying for an injunction against an intermediary who carries a third partys infringement of a protected work or other subject matter in a network. This possibility should be available even where the acts carried out by the intermediary are exempted under article 5. The conditions and modalities relating to such injunctions should be left to the national law of the member states. The relevant substantive provision for present purposes is article 8. Article 8(1) requires member states to provide in their national law appropriate sanctions and remedies for infringements of intellectual property rights. Article 8(2) deals in general terms with remedies by way of damages, injunctions and seizure of infringing articles. Article 8(3) provides: Member states shall ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right. This provision depends on the third party being an infringer. It is immaterial whether the intermediary against whom an injunction is sought is also an infringer. He may or may not be, depending on the nature of the right infringed and the character of the intermediarys operations. The same point may be made about the Enforcement Directive, which lays down more detailed standards for the availability of remedies to protect intellectual property rights. In particular, it extends the requirement that there should be power to grant injunctions against intermediaries from copyrights and related rights to all intellectual property rights. Recitals (23) and (24) declare: (23) Without prejudice to any other measures, procedures and remedies available, right holders should have the possibility of applying for an injunction against an intermediary whose services are being used by a third party to infringe the right holders industrial property right. The conditions and procedures relating to such injunctions should be left to the national law of the member states. As far as infringements of copyright and related rights are concerned, a comprehensive level of harmonisation is already provided for in [the Information Society] Directive 2001/29/EC. Article 8(3) of Directive 2001/29/EC should therefore not be affected by this Directive. (24) Depending on the particular case, and if justified by the circumstances, the measures, procedures and remedies to be provided for should include prohibitory measures aimed at preventing further infringements of intellectual property rights. Moreover there should be corrective measures, where appropriate at the expense of the infringer, such as the recall and definitive removal from the channels of commerce, or destruction, of the infringing goods and, in appropriate cases, of the materials and implements principally used in the creation or manufacture of these goods. These corrective measures should take account of the interests of third parties including, in particular, consumers and private parties acting in good faith. The relevant substantive provisions are articles 3, 8 and 11. They provide: Article 3 General Obligation 1. Member states shall provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights covered by this Directive. Those measures, procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time limits or unwarranted delays. 2. Those measures, procedures and remedies shall also be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse. Article 8 Right of Information 1. Member states shall ensure that, in the context of proceedings concerning an infringement of an intellectual property right and in response to a justified and proportionate request of the claimant, the competent judicial authorities may order that information on the origin and distribution networks of the goods or services which infringe an intellectual property right be provided by the infringer and/or any other person who: (a) was found in possession of the infringing goods on a commercial scale; (b) was found to be using the infringing services on a commercial scale; (c) was found to be providing on a commercial scale services used in infringing activities; or (d) was indicated by the person referred to in point (a), (b) or (c) as being involved in the production, manufacture or distribution of the goods or the provision of the services. Article 11 Injunctions Member states shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement. Where provided for by national law, non compliance with an injunction shall, where appropriate, be subject to a recurring penalty payment, with a view to ensuring compliance. Member states shall also ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to article 8(3) of Directive 2001/29/EC. The E Commerce Directive was transposed into the United Kingdoms domestic law by the Electronic Commerce (EC Directive) Regulations (SI 2002/2013) and the Information Society Directive by the Copyright and Related Rights Regulations 2003 (SI 2003/2498). The latter instrument provides for injunctions in support of copyrights and performers rights. There has been no legislative transposition of the Enforcement Directive into domestic law. It was presumably considered that the right to apply for injunctions covered by article 11 of the Enforcement Directive in cases concerning intellectual property rights other than copyright and performers rights was already sufficiently provided for by the English case law. If that was the thinking then, as I have observed (para 15), I think that it was correct. Compliance costs Of the three Directives, only the Enforcement Directive makes any direct provision for the expense associated with the enforcement of judicial remedies, and even there the provision is limited. Article 10(2) imposes an obligation on member states to provide for courts to direct the destruction or the recall or removal from commerce of infringing goods at the expense of the infringer, unless particular reasons are invoked for not doing so. Article 15 provides for the publication of judicial decisions at the expense of the infringer. These provisions appear to reflect a general assumption that the infringer will be party to any litigation and will bear the costs of enforcing the rights holders rights against him. But although recital (59) of the Information Society Directive contemplates that the most effective way of putting an end to a course of infringement may be an injunction against an intermediary, none of the Directives deal in terms with the position on costs as between the rights holder and an information society service provider. The starting point for any analysis of that question is that the incidence of costs, whether of compliance or of the litigation, is a matter for national law. The general principle of EU law is that national courts apply EU law to issues before them in accordance with their own procedural rules. EU law may require particular remedies to be made available in national law, as the three Directives do. Otherwise it prescribes minimum standards which the available national law remedies must satisfy. These are embodied in the principle of effectiveness, which requires that remedies must be sufficient to ensure that a Directive and any directly applicable rules of EU law are fully effective; and the principle of equivalence, which requires that remedies for infringements of EU law are at least equivalent to those which would be available for infringements of corresponding rules of national law. In addition, and partly overlapping with the principle of effectiveness, article 3 of the Enforcement Directive requires that remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, and that they must be effective and proportionate. Within these broad limits, the terms on which an injunction is available in the High Court against an intermediary are a matter for English law and procedural practice. This is reflected in recital (59) of the Information Society Directive that the conditions and modalities of injunctions against intermediaries should be left to the national law of the member states, and the corresponding statement in recital (23) of the Enforcement Directive about the conditions and procedures relating to such injunctions. As the Court of Justice observed in LOral SA v eBay International AG (Case C 324/09) [2012] Bus LR 1369, paras 135 138, subject to the overriding requirement that the remedies ordered in the national court must be effective to achieve the objects of the Directive and consistent with its specific provisions, the rules for the operation of the injunctions for which the member states must provide under the third sentence of article 11 of the Directive, such as those relating to the conditions to be met and to the procedure to be followed, are a matter for national law. Cf Scarlet Extended SA v Socit belge des auteurs, compositeurs et editeurs SCRL (SABAM) (Case C 70/10) (2011) ECR I 11959, paras 32 33; Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV (Case C 360/10) [2012] 2 CMLR 577, paras 30 31; Tommy Hilfiger Licensing LLC v Delta Center as (Case C 494/15) [2016] Bus LR 1008, para 32. In the Court of Appeal, Kitchin LJ considered that it was implicit in Recital (59) of the Information Society Directive and Recital (23) of the Enforcement Directive that it would be entirely appropriate for a national court to order that the costs of implementation of any such injunction should be borne by the intermediary (para 144). He suggested that the scheme of the Directives was that liability to bear the costs of compliance was the quid pro quo for the immunities in the safe harbour provisions and the exclusion of a general monitoring obligation in articles 12 to 15 of the E Commerce Directive. As Jackson LJ put it in his short concurring judgment, the compliance costs are part of the price which the ISPs must pay for the immunities which they enjoy under the directives (para 214). Finally, Kitchen LJ found support for this analysis in the reasoning of the Court of Justice in LOral and in UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH (Case C 314/12) [2014] Bus LR 541. With respect, I cannot agree with any of this. My reasons are as follows: (1) The two recitals refer the terms of an injunction against an intermediary to national law without any indication one way or the other of what it would be appropriate for national law to say about them. The mere fact of referring them to national law indicates that a diversity of national solutions may be equally consistent with EU law. (2) The main problem about the quid pro quo argument is that it assumes what it seeks to prove. If the Directives required intermediaries to bear the costs of complying with injunctions against them, that might at least arguably be regarded as the quid pro quo for the immunities in articles 12 to 15. But since the Directives do not deal at all with the incidence of compliance costs when an injunction is obtained against an intermediary, there is nothing from which such an inference could be drawn. (3) The true rationale of the immunities is explained in the recitals. It is that disparities between national laws on liability are apt to distort the functioning of the single market, and that the intermediaries have little or no control over content. It has nothing to do with the incidence of compliance costs when an injunction is granted. Even without the immunities, a mere conduit such as an ISP, whose operations are limited to the provision of a communications network, would not have been liable for infringing a trade mark, although without the immunities caching might give rise to liability for breach of copyright. The only context in which it might make sense to speak of a quid pro quo is the condition relating to removing or disabling access to illegal content in the case of caching and hosting under articles 13 and 14. But the quid pro quo in those cases is the removal of the offending content, not the bearing of the associated cost. (4) The judgment in LOral has nothing to do with this issue. The trade mark proprietor was claiming (among other things) that an injunction should issue against eBay under article 11 of the Enforcement Directive requiring it to stop people selling infringing goods on its website. All that the Court of Justice said about costs (at para 139) was that to impose a general monitoring obligation on an on line market place like eBay would be inconsistent with article 15(1) of the E Commerce Directive (which forbids member states to impose such an obligation) and with article 3(1) of the Enforcement Directive (which requires that national measures shall not be unnecessarily complicated or costly). This means that any injunction granted under article 11 could not impose such an obligation. But I am unable to deduce from this, as Kitchin LJ seems to have done, that costs of compliance are in principle for the intermediary to bear. The Court said nothing about the incidence of compliance costs but only that so far as they are to be borne by the intermediary they must not be excessive. (5) The same point may be made about UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH (Case C 314/12) [2014] Bus LR 541. The issue in that case was whether a website blocking injunction should have been granted against the intermediary to block the streaming of films which infringed the claimants copyrights. There was no issue about the costs of compliance. The Court of Justice observed (para 50) that in deciding whether to grant an injunction, the national court must bear in mind that it constrains its addressee in a manner which restricts the free use of the resources at his disposal because it obliges him to take measures which may represent a significant cost for him. This certainly assumed that the compliance costs would be for the intermediarys account. In the case of Austria, from which the reference had come, that assumption was correct. It appears from the material placed before us that the Austrian statute empowering the courts to grant website blocking injunctions is interpreted as requiring the intermediary the costs of compliance: see Allegro Filmverwertungsgesellschaft mbH v A1 Telekom Austria AG (Austrian Supreme Court, 19 May 2015), para 3.2. The Court of Justice was not suggesting that the same incidence of compliance costs would necessarily be the appropriate rule in other national jurisdictions. It could hardly have done so consistently with the assignment of such questions to national law. The effect of the decision as far as compliance costs are concerned is not that they must be borne by the intermediaries, but that if they are, then they must not be excessive. to bear In my opinion the incidence of compliance costs is a matter for English law, within the broad limits set by the EU principles of effectiveness and equivalence, and the requirement that any remedy should be fair, proportionate and not unnecessarily costly. As a matter of English law, the ordinary principle is that unless there are good reasons for a different order an innocent intermediary is entitled to be indemnified by the rights holder against the costs of complying with a website blocking order. The position in relation to website blocking orders is no different in principle from the established position in domestic law in the case of Norwich Pharmacal orders, freezing orders and other injunctions granted to require an innocent party to assist the claimant in the assertion of its rights against a wrongdoer. Like other common law systems (with the significant exception of the United States), English practice on the incidence of costs generally depends on the legal distribution of risk as found by the court. In this respect it differs from many civil law systems, in which losses arising from litigation lie where they fall, absent some specific legal entitlement. In jurisdictions where that is the basic principle, the question is whether there is anything in the Directives to require an intermediary to be indemnified against compliance costs when nothing in domestic law requires them to do so. This was, for example, how the matter was approached by the Cour de Cassation of France in a recent decision on compliance costs associated with website blocking injunctions. Having established that the provisions of the E Commerce Directive do not preclude the cost of the measures strictly necessary for preserving the rights in question from being borne by the technical intermediaries, they then inquired whether there was any specific provision of French law entitling the intermediaries to their costs. There being none, they left the ISPs to bear that burden: Socit Franaise du Radiotlphone v Union des Producteurs de Cinema, 1e Civ, 6 July 2017. Much depends on ones starting point. In English law, the starting point is the intermediarys legal innocence. An ISP would not incur liability for trade mark infringement under English law, even in the absence of the safe harbour provisions of the E Commerce Directive. National law could not attach liability to the intermediarys involvement consistently with those provisions. An ISP serving as a mere conduit has no means of knowing what use is being made of his network by third parties to distribute illegal content. Even when it is informed of this, it does not have the limited duty to take proactive steps to stop access to illegal content which is implicit in the conditions governing the immunities for caching and hosting. Its only duty is to comply with an order of the Court. There is no legal basis for requiring a party to shoulder the burden of remedying an injustice if he has no legal responsibility for the infringement and is not a volunteer but is acting under the compulsion of an order of the court. It has sometimes been suggested that because ISPs benefit financially from the volume and appeal of the content available on the internet, including content which infringes intellectual property rights, it is fair to make them contribute to the cost of enforcement. This appears to have been the view of Arnold J in Twentieth Century Fox Film Corpn v British Telecommunications plc (No 2) [2012] 1 All ER 869, para 32. It was certainly a significant part of the reasoning of the Irish Court of Appeal (endorsing the judgment of Cregan J [2015] IEHC 317) in Sony Music Entertainment (Ireland) Ltd v Universal Music Ireland [2016] IECA 231, paras 77 80. The difficulty that I have with it as a matter of English law is that it assumes a degree of responsibility on the part of the intermediary which does not correspond to any legal standard. The suggestion appears to be that there is a moral or commercial responsibility in the absence of a legal one. But the law is not generally concerned with moral or commercial responsibilities except as an arguable basis for legal ones. Even if a moral or commercial responsibility were relevant, I would find it hard to discern one in a case like this. Website blocking injunctions are sought by rights holders in their own commercial interest. They are wholly directed to the protection of the claimants legal rights, and the entire benefit of compliance with the order inures to the rights holder. The protection of intellectual property rights is ordinarily and naturally a cost of the business which owns those rights and has the relevant interest in asserting them. It is not ordinarily or naturally a cost of the business of an ISP which has nothing to do with the rights in question but is merely providing a network which has been abused by others. There is therefore no reason why the rights holder should be entitled to look for contribution to the cost of defending his rights to any one other than the infringers. It is true that there is a public interest in the enforcement of intellectual property rights just as there is, in varying degrees, in the enforcement of any legal rights. Intellectual property rights are created by law as a reward for innovation and enterprise which confer wider public benefits. But I cannot see that this makes any difference to the analysis. It supplies the reason why the rights exist, but the public interest in their enforcement is not wider or different from the private interest of the rights holders. It follows that in principle the rights holders should indemnify the ISPs against their compliance costs. That is subject to the bounds which EU law sets on the power to grant relief. But there is no reason to believe that these bounds would be exceeded by such an indemnity. The indemnity must be limited to reasonable compliance costs. The evidence is that the compliance costs resulting from any one order are in fact modest. It is not suggested, nor is there any basis for suggesting that they are excessive, disproportionate or such as to impair the respondents practical ability to enforce their trade marks. Nor have any other grounds been proposed for withholding the indemnity on discretionary grounds. It is critical to these conclusions that the intermediary in question is legally innocent. The appellants in this case are legally innocent because they are mere conduits. Different considerations may apply to intermediaries engaging in caching or hosting governed by articles 13 and 14 of the E Commerce Directive, because these operations involve a greater degree of participation in the infringement, which is more likely to infringe national laws protecting intellectual property rights if the conditions of immunity are not satisfied. That must, however, depend on the precise facts and on the relevant provisions of national law. For my part, I would not accept that the mere fact, without more, that the immunities of intermediaries under articles 13 or 14 of the E Commerce Directive are conditional on active steps being taken against the infringer in certain circumstances, is enough to require a court to make intermediaries covered by those articles pay the costs of compliance. Costs of the litigation Intermediaries very rarely resist website blocking orders, although they do insist that the claimant should obtain an order in order to protect themselves against regulatory restrictions on interfering in network communications, and complaints by third parties on various grounds. The practice in such cases should normally be to award them their costs of the action. In this case, Arnold J awarded costs against the ISPs because they had made the litigation a test case for the jurisdiction to make the order at all and had strenuously resisted the application. In the circumstances, he was plainly entitled to exercise his discretion concerning the costs of the litigation in the way that he did. Disposal I would allow the appeal so far as concerns the costs of complying with Arnold Js orders dated 11 November and 5 December 2014 and would vary para 12 of the orders so as to provide that the respondents shall indemnify the appellants in respect of the appellants reasonable costs of processing and implementing paras 1 10 of the orders in categories (iii), (iv) and (v) mentioned in para 5 above. The parties should endeavour to agree the exact form of order.	The respondents are three Swiss or German companies which design, manufacture and sell luxury goods under well known trade marks. The appellants are the five largest internet service providers (ISPs) serving the UK. The respondents sought injunctions requiring the ISPs to block or attempt to block access to specified target websites, which were advertising and selling counterfeit copies of the respondents goods, in addition to various other internet addresses whose purpose is to enable access to a target website. The ISPs provide networks by which subscribers access content, but they neither provide nor store content. They do not themselves infringe the relevant trade marks. The judge granted the injunction and ordered the ISPs to pay the costs, including the costs of implementing the website blocking order. The Court of Appeal dismissed the ISPs appeal. This appeal to the Supreme Court is concerned only with costs. The main issue whether the respondents should have been required to bear various costs of implementing the website blocking order. The Supreme Court unanimously allows the appeal, so far as concerns the cost of complying with the injunction. The respondents will be ordered to indemnify the ISPs for the disputed implementation costs, but the judge was entitled to order the ISPs to pay the litigation costs. Lord Sumption gives the judgment, with which the other Justices agree. The English courts have long had jurisdiction in certain circumstances to order innocent parties to assist those whose rights have been invaded by a wrongdoer. That includes the jurisdiction exercised in Norwich Pharmacal Co v Customs and Excise Coms [1974] AC 133 which is commonly exercised for the purpose of assisting claimants to bring or maintain proceedings against wrongdoers, generally by ordering innocent intermediaries to provide information. The ordinary rule is that the intermediary is entitled to the costs of compliance with a Norwich Pharmacal order. Orders for the disclosure of information are only one category of order which can be made against a third party to prevent the use of his facilities for wrongdoing [8 12]. National laws concerning intellectual property rights are partially harmonised by a series of EU Directives, of which three are relevant: the E Commerce Directive 2000/31/EC, the Information Security Directive 2001/29/EC and the Enforcement Directive 2004/48/EC. The E Commerce Directive requires Member States to introduce limitations of liability (safe harbours) in respect of certain activities undertaken by information society services, which include ISPs [16 17]. None of the Directives deals expressly with the costs of enforcing a judicial remedy, as between the rights holder and an information society service [28]. In the Court of Appeal, Kitchen LJ viewed the recitals to the E Commerce Directive as implicitly supporting an order for the intermediary to bear the implementation costs. He suggested that, under the Directives, liability for the costs of compliance was the quid pro quo of the immunities and the absence of any general obligation owed by ISPs to monitor information which they transmit or store. Kitchen LJ found support for his analysis in the reasons of the Court of Justice of the EU (CJEU) in LOral SA v eBay International AG (Case C 324/09) [2012] Bus LR 1369 and UPC Telekabel Wien GmbH v Constantin Film Verleigh GmbH (Case C 314/12) [2014] Bus LR 541 [28 29]. The Supreme Court disagrees. First, the recitals refer the terms of an injunction against an intermediary to national law, without any further guidance [30(1)]. Second, the quid pro quo argument assumes what it seeks to prove: the Directives do not deal at all with the costs of complying with an injunction against an intermediary, so there is nothing from which such an inference could be drawn [30(2)]. Third, the rationale of the immunities, as explained in the recitals, is that disparities between national laws on liability can distort the functioning of the single market, and that the intermediaries have little or no control over content. It has nothing to do with the incidence of compliance costs when an injunction is granted [30(3)]. Fourth, the CJEU authorities say nothing about the incidence of compliance costs but only that, so far as they are to be borne by the intermediary, they must not be excessive [30(4), (5)]. The incidence of compliance costs is a matter for English law, within the broad limits set by the EU principles of effectiveness and equivalence, and the requirement that any remedy should be fair proportionate and not unnecessarily costly. In English law, the incidence of costs generally depends on the legal distribution of risk as found by the court. An innocent intermediary is ordinarily entitled to be indemnified by the rights holder against the costs of complying with a website blocking order. That is no different in principle from the established position in domestic law in the case of other orders granted to require an innocent party to assist the claimant against a wrongdoer. An ISP serving as a mere conduit would not incur liability for trade mark infringement under English law even in the absence of the safe harbour provisions. There is no legal basis for requiring a party to shoulder the burden of remedying an injustice if he has no legal responsibility and is acting under the compulsion of an order of the court [31 33]. It has sometimes been suggested that because ISPs benefit financially from the volume and appeal of the content available on the internet, including content which infringes intellectual property rights, it is fair to make them contribute to the cost of enforcement. That assumes a degree of responsibility on the part of the intermediary which does not correspond to any legal standard. The law is not generally concerned with moral or commercial responsibilities except as an arguable basis for legal ones. Even if a moral or commercial responsibility were relevant, it would be hard to discern one in a case like this. Website blocking injunctions are sought by rights holders in their own commercial interest. There is no reason why the rights holder should be entitled to look for a contribution to the cost of defending his rights from anyone other than the infringers [34 35]. It follows that in principle the rights holders should indemnify the ISPs for the compliance costs, subject to the limits on relief set by EU law. There is no reason to believe that such an indemnity, which must be limited to reasonable costs, would exceed those limits. The costs are not excessive, disproportionate or such as to impair the respondents ability to enforce their rights. Critically, the intermediary in this case is legally innocent. Different considerations may apply to those engaging in caching or hosting, which involve greater participation in the infringement and which are more likely to infringe national intellectual property laws if safe harbour immunity is unavailable [36 37]. As to the costs of the litigation, the judge awarded them against the ISPs because, unusually, they had made the litigation a test case and had strenuously resisted the application. He was plainly entitled to do so [38].
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.	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].
On 17 May 2011, the respondent, Ms Tiffany Moreno, a United Kingdom resident, was on holiday in Greece. Walking along the verge of a road, she was struck from behind by a vehicle registered in Greece driven by a Ms Kristina Beqiri. Ms Beqiri had neither a valid driving licence nor it appears any insurance and is admitted to have been responsible for the accident. Sadly, Ms Moreno suffered very serious injuries, which included loss of her right leg requiring her to use a wheelchair, continuing pain and psychological reaction, as well as loss of earnings. The preliminary issue the subject of this appeal is whether the scope of her claim to damages is to be determined in accordance with English or Greek law. Ms Morenos claim is against the Motor Insurers Bureau of the United Kingdom (the UK MIB). That it can be pursued against the UK MIB is the result of a series of Council Directives of the European Economic Community (now Union) dating back to 1972 and culminating in a codified Sixth Directive 2009/103/EC of 16 September 2009. These Directives are in part transposed into English law by The Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (SI 2003/37) (the 2003 Regulations). The 2003 Regulations were enacted prior to the codifying Sixth Directive and therefore refer to the earlier Directives. The expressed and obviously beneficial purpose of the arrangements introduced by the Directives and Regulations is to ensure that compensation is available for victims of motor accidents occurring anywhere in the Community (now the Union) and to facilitate their recovery of such compensation. With British exit from the Union, this will, no doubt, be one of the many current arrangements requiring thought. In the present case, the effect of the arrangements is that Ms Moreno is entitled to pursue the UK MIB, rather than pursue Ms Beqiri or search for some (evidently non existent) insurer of Ms Beqiri or pursue the Greek body responsible for providing compensation in respect of uninsured vehicles involved in Greek accidents. Under the Sixth Directive the UK MIB will, once it has compensated Ms Moreno, be able to claim reimbursement from the Greek compensation body, which will in turn be subrogated to Ms Morenos rights against Ms Beqiri. The issue is, as stated, whether the scope of the UK MIBs liability to Ms Moreno is be measured according to English or Greek law. Ms Morenos concern is that Greek law would yield a lesser measure of compensation than English law. It is accepted however that in other contexts the reverse might be the case. There is, for example, evidence that Irish personal injuries damages can be significantly higher than English, and that Italian law can in fatal accident cases award significantly more (and, if relevant, to a broader range of persons) than English law. Ms Morenos case, advanced on her behalf by Mr Daniel Beard QC, is that the Regulations provide for English law to govern the measure of recovery, and that there is nothing in the Sixth Directive to the contrary or precluding this. Submissions to like effect were accepted in 2010 by the Court of Appeal (Laws, Moore Bick and Rimer LJJ), overruling Owen J, in Jacobs v Motor Insurers Bureau [2010] EWCA Civ 1208; [2011] 1 WLR 2609. The Court of Appeals decision in Jacobs was followed in Bloy v Motor Insurers Bureau [2013] EWCA Civ 1543; [2014] 1 Lloyds Rep IR 75. In the present case, Gilbart J on 17 April 2015 rightly also held himself bound by the decision in Jacobs, but saw very considerable force in a contrary conclusion. On 23 April 2015 he granted the UK MIBs application for a leap frog certificate under section 12 of the Administration of Justice Act 1969, and the appeal comes before the Supreme Court accordingly, with its permission granted 28 July 2015. Prior to the Directives, there was already in existence the Green Card System established by Internal Regulations and an Inter Bureaux Agreement covering states both within and outside the then European Economic Community. Under this System, still effective in the form of Internal Regulations (as adopted by the UN General Assembly in Crete on 30 May 2002 and revised in Lisbon on 29 May 2008 and in Istanbul on 23 May 2013) and in force in substance since 1 July 2008, the insurers of vehicles in participating states issue Green Cards guaranteeing compensation to victims of motor accidents caused by the driving of such vehicles abroad, and bureaux set up in each such state guarantee that the foreign insurer will abide by the law applicable in that country and compensate injured parties within its limits. Article 3(4) headed Handling of Claims further provides: All claims shall be handled by the bureau with complete autonomy in conformity with legal and regulatory provisions applicable in the country of accident relating to liability, compensation of injured parties and compulsory insurance Article 5(1) provides for the local bureau which has thus settled a claim arising out of an accident to be able to demand reimbursement of the sums paid as compensation, together with costs and a handling fee, from the member of the bureau (ie the relevant insurer) which issued the Green Card or policy of insurance or, if appropriate, from the foreign bureau itself, while under article 6(1) each bureau guarantees the reimbursement by its members (ie the insurers) of any amount so demanded. The Directives start with the First Council Directive 72/166/EEC of 24 April 1972 requiring each member state under article 3(1) to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance, which must also under article 3(2) cover any loss or injury caused in the territory of another member state. Equivalent provision is now made in article 3 of the codifying Sixth Directive. Articles 2(2) and 7 of the Directive (now, articles 2 and 4 of the Sixth Directive) contemplated that the requirement for a vehicle based in one member state to produce a Green Card on entry into another member state would cease from a date to be fixed by the Commission once it ascertained that an agreement had been concluded between the national insurance bureaux established under the Green Card System in member states whereby each such bureau (elsewhere sometimes described as a guarantee fund): guarantees the settlement, in accordance with the provisions of its own national law on compulsory insurance, of claims in respect of accidents occurring in its territory caused by vehicles normally based in the territory of another member state, whether or not such vehicles are insured. The relevant Convention complmentaire entre Bureaux nationaux was entered into on 12 December 1973. Article 3(a) provides that it modifies pro tanto the Inter Bureaux Agreement, the terms of which otherwise remain in force. Domestic effect is currently given to the requirement in article 1(4) of the Second Directive 84/5/EEC of 30 December 1983 for a guarantee by the Uninsured Drivers Agreement dated 3 July 2015 made between the Secretary of State for the Environment, Transport and the Regions and the UK MIB. The Second Directive specified in article 1(1) that the insurance referred to in article 3(1) of the First Directive should cover compulsorily both property damage and personal injuries, up to specified minimum amounts (article 1(2)). Equivalent provision is made in the Sixth Directive in articles 3 and 9. Further it was provided by article 1(4) of the Second Directive (or now article 10 of the Sixth Directive) that each member state should: set up or authorize a body with the task of providing compensation, at least up to the limits of the insurance obligation for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 [or article 3 of the Sixth Directive] has not been satisfied. Article 1(4) of the Second Directive (now article 10(4) of the Sixth Directive) continued: . [E]ach member state shall apply its laws, regulations and administrative provisions to the payment of compensation by this body, without prejudice to any other practice which is more favourable to the victim. The intention of the legislature in passing the Second Directive was to entitle victims of damage or injury caused by unidentified or insufficiently insured vehicles to protection equivalent to, and as effective as, that available to persons injured by identified and insured vehicles: Evans v Secretary of State for the Environment, Transport and the Regions (Case C 63/01) [2004] RTR 32, para 27. The Fourth Directive 2000/26/EC of 16 May 2000 carried matters further, most notably by giving victims of foreign motor accidents various possibilities of recourse in their home states of residence. Article 1(1) stated that: The objective of this Directive is to lay down special provisions applicable injured parties entitled to compensation in respect of any loss or injury resulting from accidents occurring in a member state other than the member state of residence of the injured party which are caused by the use of vehicles insured and normally based in a member state. to Injured party was by article 2(d) defined as stated in article 1(2) of the First Directive, that is as any person entitled to compensation in respect of any loss or injury caused by vehicles, a definition repeated in article 1(2) of the Sixth Directive. The special provisions included: (a) a provision that injured parties should enjoy a direct right of action against the insurer covering the responsible person against civil liability: article 3 (now article 18 of the Sixth Directive); (b) a requirement on member states to ensure that motor liability insurers appoint a claims representative in each member state other than that in which they received their authorisation, to be responsible for handling and settling accident claims: article 4 (now article 21(1) of the Sixth Directive); (c) a requirement that each member state establish or approve an information centre responsible for keeping a register containing information including the registration numbers of vehicles normally based in that state, the numbers of the insurance policy covering their use and their expiry date, if past: article 5(1) (now article 23(1) of the Sixth Directive); (d) a requirement that each member state establish or approve a compensation body responsible for providing compensation to injured parties in the cases referred to in article 1: article 6(1) (now article 24(1) of the Sixth Directive), coupled with a provision entitling such injured parties to present a claim to the compensation body in their member state of residence if within three months the insurer or its claims representative has not provided a reasoned reply to their claim, or the insurer has not appointed a claims representative in the injured partys state of residence (unless the injured party has taken legal action directly against the insurer); (e) a provision entitling an injured party to apply for compensation to the compensation body in the member state if it is impossible to identify the vehicle or if, within two months following the accident, it is impossible to identify the insurance undertaking: article 7 (now article 25(1) of the Sixth Directive). Article 7 goes on to provide that The compensation shall be provided in accordance with the provisions of article 1 of the Second Directive (as to which see para 7 above). Article 25(1) says that it will be provided in accordance with the provisions of articles 9 and 10 of the Sixth Directive, which relate respectively to the requirements on member states to ensure compulsory insurance in minimum amounts and to set up or authorise a compensation body to cover property damage or personal injuries caused by an unidentified or uninsured vehicle (see para 7 above). The special provisions described in sub paragraphs (d) and (e) of the previous paragraph mean that liability was in the first instance imposed on compensation bodies in the member state of the victims residence which would otherwise have been expected to be borne by someone else, ie the person responsible for the accident, his or her insurer or an insurance bureau or guarantee fund in the state where the relevant vehicle was normally based. For that reason, both articles 6 and 7 of the Fourth Directive (now articles 24(10) and 25(1) of the Sixth Directive) contain provisions in articles 6(2) and 7 (now articles 24(2) and 25) regarding reimbursement, aimed at passing responsibility on to the insurer (where one can be identified) or guarantee fund described in this context in recital (31) to the Fourth Directive (recital (53) to the Sixth Directive) as the ultimate debtor, coupled with further provision for subrogation rights against the person responsible for the accident. Thus article 6(2) read: The compensation body which has compensated the injured party in his member state of residence shall be entitled to claim reimbursement of the sum paid by way of compensation from the compensation body in the member state of the insurance undertakings establishment which issued the policy. The latter body shall then be subrogated to the injured party in his rights against the person who caused the accident or his insurance undertaking in so far as the compensation body in the member state of residence of the injured party has provided compensation for the loss or injury suffered. Each member state is obliged to acknowledge this subrogation as provided for by any other member state. Subject to very minor linguistic differences, article 24(2) of the Sixth Directive is identical. Article 7 (now article 25(1)) read: The compensation body shall then have a claim, on the conditions laid down in article 6(2) of this Directive: (a) where the insurance undertaking cannot be identified: against the guarantee fund provided for in article 1(4) of [the Second] Directive 84/5/EEC in the member state where the vehicle is normally based; (b) in the case of an unidentified vehicle: against the guarantee fund in the member state in which the accident took place; in the case of third country vehicles: against the (c) guarantee fund of the member state in which the accident took place. Under article 6(3) of the Fourth Directive (article 24(3) of the Sixth Directive), the operation of both articles 6 and 7 (now articles 24(1) and 25(1)) was also suspended until: (a) after an agreement has been concluded between the compensation bodies established or approved by the member states relating to their functions and obligations and the procedures for reimbursement; (b) from the date fixed by the Commission upon its having ascertained in close cooperation with the member states that such an agreement has been concluded. An agreement between compensation bodies and guarantee funds was reached on 29 April 2002. On that basis, the Commission by decision of 27 December 2002 determined that article 6 (and so also article 7) of the Fourth Directive should take effect as from 20 January 2003. In the United Kingdom, the UK MIB acts both as the bureau or guarantee fund contemplated by article 1(4) of the Second Directive (article 10 of the Sixth Directive) and, under regulation 10 of the 2003 Regulations, as the compensation body required under articles 6 and 7 (now articles 24(1) and 25(1) of the Sixth Directive). But in some states they are different bodies, a fact recognised in the agreement which deals separately with articles 6 and 7 accordingly. In relation to the two situations in which article 7 applies (an unidentified or uninsured vehicle), the agreement provides: 7.1. In either of the situations referred to , the Compensation Body which has received a claim must immediately inform, depending on the circumstances, either the Guarantee Fund defined in article 1 of [the Second] Directive 84/5/EEC of the member state in which the accident took place or the Guarantee Fund of the member state in which the road traffic vehicle which caused the accident is normally based. 7.2. When it makes a compensation payment to an injured party, the Compensation Body shall: reply to requests for information enabling the claim to be assessed, which it receives from the final paying body for reimbursement (Guarantee Fund), apply, in evaluating liability and assessing compensation, the law of the country in which the accident occurred, comply with the provisions of article 1 of Directive 84/5/EEC. 8.1. When a Compensation Body has compensated upon request an injured party, it is entitled to receive, depending on the circumstances of the accident, either from the Guarantee Fund of the member state in which the accident took place or from the Guarantee Fund of the member state in which the road traffic vehicle which caused the accident is normally based, reimbursement containing, to the exclusion of everything else, the following: 8.1.1. the amount paid in compensation to the injured party or his/her beneficiaries; specifying the amounts paid as material damage and as bodily injury; 8.1.2. the sums paid for external services such as, for example, experts, lawyers or doctors fees inherent in the instruction and the in or out of court settlement of the claim; 8.1.3. the handling fees covering all other costs as defined by clause 8.3 hereof. 8.2. The amount to be reimbursed may only be disputed by the final paying Guarantee Fund if the Compensation Body which settled the injured partys claim has ignored objective material information given to it or has not observed the rules of applicable law. Articles 6 and 7 of the Fourth Directive were transposed into English law by the 2003 Regulations using section 2(2) of the European Communities Act 1972. The Explanatory Note states simply that These Regulations give effect to articles 5, 6 and 7 of the Fourth Motor Insurance Directive. There is no indication in the Lord Chancellors Departments transposition note or elsewhere that anything was intended other than straightforward implementation of the United Kingdoms European obligations under the Directives. Addressing the subject matter of article 6 of the Fourth Directive, now article 24(1) of the Sixth Directive, (ie the situation where no reasoned reply has been received from an insurer or its claims representative within three months or where no claims representative has been appointed), regulation 12(3) and (4) provides: If the injured party satisfies the compensation body as to the matters specified in paragraph (4), the compensation body shall indemnify the injured party in respect of the loss and damage described in paragraph (4)(b). The matters referred to in paragraph (3) are that a person whose liability for the use of the (a) vehicle is insured by the insurer referred to in regulation 11(1)(c) is liable to the injured party in respect of the accident which is the subject of the claim, and (b) the amount of loss and damage (including interest) that is properly recoverable in consequence of that accident by the injured party from that person under the laws applying in that part of the United Kingdom in which the injured party resided at the date of the accident. Addressing the subject matter of article 7 of the Fourth Directive, now article 25(1) of the Sixth Directive, (ie an unidentified or uninsured vehicle), regulation 13(2) provides: (2) Where this regulation applies the injured party may make a claim for (a) compensation from the compensation body, and (b) the compensation body shall compensate the injured party in accordance with the provisions of article 1 of the second motor insurance directive as if it were the body authorised under paragraph 4 of that article and the accident had occurred in Great Britain. Moore Bick LJ, giving the sole reasoned judgment in Jacobs, expressed the view at para 21 that: The scheme [of articles 6 and 7 of the Fourth Directive] appears to proceed on the assumption that the existence of the driver's liability and the determination of the amount of compensation payable to the injured party will be governed by the same principles at all stages of the process, but the Fourth Directive does not go so far as to provide that such questions are to be determined by reference to the law of the country in which the accident occurred. He noted (para 22) that, at the date of the Fourth Directive, there was no universal rule governing the question what law should govern liability and damages in tort, and that at that date the position in English law was that: issues of liability and heads of recoverable damages were normally determined by reference to the law of the place where the accident occurred, but the assessment of damages was determined by English law as the lex fori, as subsequently confirmed by the decision of the House of Lords in Harding v Wealands [2007] 2 AC 1. He also noted (para 23) that, if a victim could recover from the compensation body in his or her own country more than he or she could have recovered from the driver responsible for the accident or the drivers insurer, that might be regarded as anomalous, but did not ultimately think (para 30) that this anomaly, such as it is, provides sufficient grounds for giving a domestic regulation a meaning it does not naturally bear. Turning to the 2003 Regulations, he said correctly (para 23) that it was from them that the domestic right of an injured person to make a claim against the compensation body derives. Examining regulation 12(4)(b), he found himself driven to the conclusion that in the case of the insured driver the bureau is obliged to pay compensation assessed in accordance with English, Scots or Northern Irish law, as the case may be (para 29). He noted that this might mean that the injured party was able to recover from the UK compensation body (the UK MIB) more or less than the compensation that he could have recovered in, for example, an action against the person responsible for the accident or his or her insurer (or, one could add, the bureau or fund of the state of the accident) (paras 29). But he said that, although this: may at first sight appear to be inconsistent with the scheme of the Fourth Directive, the Directive itself does in fact contemplate the existence of such arrangements, since article 10(4) provides: Member states may, in accordance with the Treaty, maintain or bring into force provisions which are more favourable to the injured party than the provisions necessary to comply with this Directive. Article 10(4) is now article 28(1) of the Sixth Directive. A problem about Moore Bick LJs observation in this connection is that it overlooks the previously mentioned possibility that the level of compensation under English law can be less favourable than that provided under the law of the state of the accident. Turning to regulation 13, directly in issue in Jacobs and now on the present appeal, Moore Bick LJ concluded first that it must contemplate the victim being able to show the existence of liability on the part of the person responsible for the accident. The answer on this point lay, he considered, in the words shall compensate the injured party in accordance with the provisions of article 1 of the Second Directive. He went on (para 32): I think it is reasonably clear from the recitals to the Second Directive that its purpose was to assimilate the position of the victim of an unidentified or uninsured driver or vehicle to that of the victim of an identified and insured driver or vehicle; it is not its purpose to require the establishment of a system of no fault compensation. It is, therefore, implicit in the scheme of the Second Directive that the victim must be able to establish that the driver is liable to him in respect of his injuries, but whether that requires proof of fault will depend on the law of the country in which the accident occurred. The reference in regulation 13(1)(c)(ii) to an insurance undertaking which insures the use of the vehicle assumes the existence of a liability on the part of the driver which ought to be, but is not, covered by insurance. It follows, in my view, that the obligation imposed on the bureau by regulation 13(2)(b) to compensate the injured party in accordance with the provisions of article 1 of the Second Directive carries with it the implicit proviso that the injured party must be able to show that the driver is liable to him. As in the case of a claim under regulation 12, that is a question to be determined by reference to the applicable law identified in accordance with the appropriate conflicts of laws rules. At the time the 2003 Regulations were made the applicable rules were those of the Private International Law (Miscellaneous Provisions) Act 1995, but since the introduction of Rome II, the rules set out in that Regulation will apply and will normally lead to the application of the law of the country in which the accident occurred. There is no reason to differ from this analysis. Nor is there any reason to differ from Moore Bick LJs further analysis in paras 33 34 of the basic reasoning behind the expression in regulation 13(2) as if it were the body authorised under paragraph 4 of that article and the accident had occurred in Great Britain. Moore Bick LJ pointed out a difference between the Uninsured Drivers Agreement (see para 6 above) and the Untraced Drivers Agreement dated 7 February 2003 made between the Secretary of State for Transport and the UK MIB. The former Agreement covers the use in Great Britain or elsewhere in the European Union of British registered vehicles, which are, under article 3 of the First Directive (article 3 of the Sixth Directive) to which effect is given by sections 143 145 of the Road Traffic Act 1988, required to be insured in respect of such use throughout the European Union. The latter Agreement is limited in its scope to accidents occurring in Great Britain. Once the United Kingdom became obliged under article 7 of the Fourth Directive to have a compensation body to which victims of foreign motor accidents resident in the United Kingdom could apply for compensation, specific language was accordingly required to expand the UK MIBs liability to cover such victims when the vehicle responsible for the foreign accident was untraced. Hence, in Moore Bick LJs words, the somewhat complicated language of regulation 13(2)(b) was designed to achieve that result (para 34). The UK MIB, which acted as the guarantee fund for Great Britain pursuant to article 1(4) of the Second Directive, has also been designated as the United Kingdoms compensation body required by the Fourth Directive, and the language was necessary to impose on the bureau in its capacity as compensation body an obligation of the kind that it already bore as guarantee fund, including a liability in respect of accidents occurring abroad (para 33). However, Moore Bick LJ continued at the end of para 34 and in para 35: 34. It does not necessarily follow, however, that it does not have the effect for which Mr Layton contended. A legal fiction may have consequences beyond its immediate purpose. 35. The mechanism by which the bureaus obligation to compensate persons injured in accidents occurring abroad involving uninsured or unidentified drivers is established is to treat the accident as having occurred in Great Britain, but in the absence of any provision limiting its scope it is difficult to see why it should not also affect the principles governing the assessment of damages, particularly in the absence at the time of complete harmonisation throughout the EEA of the conflicts of laws rules governing that issue. Although Moore Bick LJ went on immediately to say that the matter was nonetheless not free from difficulty and to return to the recitals to the Fourth Directive to see whether they pointed to a different conclusion, he regarded the recitals as showing concern as primarily directed to the ability of injured parties to obtain compensation, not to the amount of that compensation, and found nothing there to support either partys case or to change his view (para 36). He also regarded his view as having the incidental merit of ensuring that the measure of compensation recoverable under regulation 13 is likely to be broadly the same as that recoverable under regulation 12 (para 37). Finally, Moore Bick LJ regarded the provisions of Regulation (EC) No 864/2007 of 11 July 2007 on the law applicable to non contractual obligations (Rome II), in force from 11 January 2009, as irrelevant on the basis that regulation 13(2)(b) is defining the existence and extent of the UK MIBs obligation as a compensation body, rather than determining the liability of the wrongdoer (para 38). Before the Supreme Court Mr Beard representing Ms Moreno supports the reasoning and conclusions of the Court of Appeal in Jacobs. He accepts, as did Moore Bick LJ, that this may lead to some apparent anomalies, but submits that they are either capable of satisfactory resolution or insignificant and that the domestic legislator can be taken in the 2003 Regulations to have adopted a measure of recovery which reflected the basis of recovery under English law in respect of a foreign tort at the relevant times, and would have been seen as both convenient and favourable to the claimant. In construing the 2003 Regulations, the starting point is that they should, so far as possible, be interpreted in a sense which is not in any way inconsistent with the Directives: Marleasing SA v La Comercial Internacional de Alimentacin SA (Case C 106/89) [1990] ECR I 4135. It was however open to the domestic legislator, as Moore Bick LJ noted (para 19 above), to introduce provisions more favourable to the injured party. But it is unlikely that it would do so by including a provision which could in some circumstances also prove less favourable to the injured party, and so put the United Kingdom in breach of the Directives. A second point to be borne in mind is that the 2003 Regulations were made under section 2 of the European Communities Act 1972 (as amended subsequently by sections 27 and 33 of the Legislative and Regulatory Reform Act 2006 and sections 3 and 8 of and Part I of the Schedule to the European Union (Amendment) Act 2008). Section 2(2) authorises regulations making provision (so far as relevant): (a) for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented ; or (b) related to any such obligation for the purpose of dealing with matters arising out of or No question of vires has been raised in this case, and the 2003 Regulations must be approached on the basis that they implement or enable the implementation of the United Kingdoms EU obligations or deal with matters arising out of or related thereto. In so far as any of the Directives is: in general terms leaving member states freedom to decide on the precise means for its implementation, provisions which the United Kingdom makes within the scope of such freedom will on the face of it fall within section 2(2)(a), as being for the purpose of implementing or enabling the implementation of the Directive. See United States of America v Nolan [2015] UKSC 63; [2016] AC 463, para 63. But, in so far as the Directives prescribe a particular approach, the interpretive presumption, based on Marleasing (above), is that this was what the domestic legislator intended to be achieved. Third, there is no suggestion in the 2003 Regulations or the Explanatory Note or elsewhere of any intention on the part of the domestic legislator to do anything other than faithfully implement and give effect to the Directives. Fourth, on that basis, two questions are central to this appeal. One is whether the Directives prescribe any particular approach to the scope or measure of recovery applicable in a claim against a compensation body under article 7 of the Fourth Directive (article 25(1) of the Sixth Directive). The other is whether, if they do, the language of regulation 13(2)(b) reflects this approach, or mandates some different approach, whatever the Directives may have required. Taking the first question, the Court of Appeal in Jacobs looked too narrowly, in my opinion, at the scheme created and represented by the Directives. Viewing its development holistically, it can be seen to be a scheme of which the constant aim has been to improve the prospects and ease with which injured parties can recover the compensation to which they are entitled in respect of any loss or damage caused by vehicles. This follows from the original definition of injured party in the First Directive. The first and Second Directives aim to ensure such compensation by providing for compulsory insurance, with the back up of the guarantee (covering cases of non insurance) provided by each national motor insurance bureau in accordance with article 1(4) of the Second Directive. The aim follows through into the special provisions applicable to injured parties entitled to compensation, in respect of loss or injury in motor accidents occurring in a member state other than that of their residence, introduced by the Fourth Directive (see article 1(1)). These give injured parties, inter alia, a direct right of action against any insurer (article 3), a right to have a local claims representative of such insurers in their own state to handle and settle their claims (article 4) and a right to look to a compensation body in their own state if an insurer fails to provide a reasoned reply to the claim or to appoint a claims representative there (article 6) or if the accident is caused by an uninsured or unidentifiable vehicle (article 7). The injured parties, claims and compensation referred to throughout these articles are the injured parties who are entitled to and so claim the compensation in respect of loss or damage, to which article 1(1) of the Fourth Directive refers. The inference is that, to whichever special provision of the Fourth Directive the victim of a motor accident may have to have recourse, the compensation to which he or she is entitled is and remains the same. It is the same compensation as that to which the victim is entitled as against the driver responsible, or his or her insurer, or, that failing, as against the guarantee fund of the state of the accident. The compensation remains the same if and when the victim has recourse instead to the compensation body established in his own state of residence under article 6 or 7. On the analysis accepted by the Court of Appeal in Jacobs, however, the measure of compensation could vary according to the happenchance of the route to recovery which the victim chose or was forced to pursue. If the victim chose or was led to pursue the responsible driver or a direct action against his or her insurer or a claim against the insurers local claims representative, the measure would be that applicable in the state of the accident. If, on the other hand, the insurer did not respond appropriately or failed to appoint a claims representative, the victim could pursue the local compensation fund for whatever measure of compensation might be provided in this context by the local legislator or law but would have (under article 6(1) of the Fourth Directive) to revert to looking to the insurer or its claims representative if even then one of these belatedly produced a reasoned reply. If, however, no insurer or vehicle could be identified, then the victim could without more recover whatever might be the measure of compensation provided in this context by his or her local legislator or law. In the case of a claim against the driver responsible or his or her insurer or the guarantee fund of the state of the accident, such compensation would normally be measured in and under the law of the state of the accident. Under the predecessor international Green Card scheme, article 3(4), described in para 5 above, it was expressly provided that Green Card bureaux would handle claims in conformity with the legal provisions applicable in the country of accident relating to both liability and compensation. This is a provision which continued in force under article 3(a) of the Convention complmentaire entre Bureaux nationaux dated 12 December 1973, made pursuant to article 1(4) of the Second Directive. Under the First Directive, each national insurers bureau was also to guarantee the settlement, in accordance with the provisions of its own national law on compulsory insurance, of claims in respect of accidents occurring in its territory caused by [foreign based] vehicles (article 2(2)). Under the Second Directive, article 1(4), each member state was to establish a guarantee fund to provide compensation in cases of unidentified or uninsured vehicles, applying its own laws to the payment of such compensation, without prejudice to any other practice more favourable to the victim. Counsel were agreed that this provision was solely directed to accidents in the territory of the member state in question, as it certainly must be in relation to unidentified vehicles. In essence, it was formalising and generalising at a Community (now Union) level the requirement for a local guarantee fund which up to that point only existed under the international Green Card scheme and the agreement between Community insurers bureaux contemplated by article 2(2) of the First Directive. On this basis, the reference to applying the laws of the member state to the payment of compensation is further confirmation of an intention that that the law of the state of the accident should govern liability and the measure of compensation. Next, as recorded in para 14 above, clauses 7.2 and 8.2 of the Agreement between Compensation Bodies and Guarantee Funds expressly provided that the compensation body established to give effect to those articles was to apply, in evaluating liability and assessing compensation, the law of the country in which the accident occurred, and, further, indicated that the final paying guarantee fund might refuse reimbursement to the extent that the compensation body had not observed the rules of applicable law. Gilbart J referred to this Agreement as a private agreement that cannot be used to interpret the Directives or the Regulations, and Mr Beard pointed out that it post dated the Fourth Directive. This is in my opinion to under value the role of the Agreement and to view matters over technically. Clauses 7.2 and 8.2 of the Agreement introduced in relation to compensation bodies provisions paralleling those applicable under the predecessor Green Card and motor insurance bureaux schemes. The making and approval by the European Commission of the Agreement containing such clauses were pre conditions to the coming into force of articles 6 and 7 of the Fourth Directive. They can and in my opinion should be seen as part of a consistent scheme, to be viewed and construed as a whole. A further indication of the way in which the scheme was intended to operate is provided by clause 7.3 of the agreement. According to clause 7.3: The Guarantee Fund of the member state in which the accident took place, even though it is not responsible for the reimbursement described in Section III below, shall provide, upon request, to the Compensation Body to which a claim for compensation has been made, all necessary advice assistance and information in particular on the content of the applicable law and all documents it has available relating to the accident which this body wishes to obtain. Section III deals with reimbursement procedures, from the Guarantee Fund either of the member state in which the accident took place or of the member state in which the road traffic vehicle which caused the accident is normally based. The rationale behind clause 7.3 is clearly that the Guarantee Fund of the member state of the accident will be able to provide the necessary information about the applicable law of that state to enable the Compensation Body in the victims state to be able to settle the victims claim in accordance with that law. It would not be consistent with the scheme of the precursor Green Card System or with the scheme of the series of European Directives and associated agreements from 1972 onwards, for the compensation body established and acting under article 6 or 7 of the Fourth Directive to provide compensation other than in accordance with the law of the state of the accident. Further confirmation of this intention is present in the express provisions of articles 6 and 7. First, the provision in article 7 for compensation to be provided in accordance with the provisions of the Second Directive requiring each member state to ensure compulsory insurance in minimum amounts and to set up or authorise a guarantee fund to cover property damage or personal injuries caused by unidentified or uninsured vehicles is a yet further pointer towards the intended link between the compensation available in the state of the accident and that available from the victims local compensation body. Second, the provisions of article 6 and 7 regarding reimbursement are significant. Under article 6(2) what is clearly envisaged is that the compensation body in the state of the victims residence should be able to recover from the compensation body in the state of the insurer the whole sum that the former compensation body has paid out to the victim. The latter compensation body is then subrogated to the victims rights against the responsible driver or his insurer in so far as the compensation body in the member state of residence of the injured party has provided compensation. But, on the analysis accepted by the Court of Appeal in Jacobs and supported on this appeal by Mr Beard, there is no necessary correlation between the amounts paid out by the compensation body of the state of the victims residence and that recoverable from the compensation body of the state of the insurer or that to which that latter compensation body is subrogated. Clauses 7.2 and 8.2 of the Agreement between Compensation Bodies and Guarantee Funds would bar the compensation body which paid the victim from recovering more from the compensation body of the state of the insurer than was payable in respect of the claim under the law of the state of the accident. As to subrogation, even if that bar could be overcome, it is impossible to be subrogated to a victims claim unless and except to the extent that the victim could him or herself pursue such a claim. A similar point applies under article 7. On its face, it envisages that the compensation body meeting the victims claim will be able to recover from the guarantee fund of either the state where the vehicle was normally based or, in case of an unidentified (or a third country) vehicle, the state in which the accident took place. But the Court of Appeals analysis in Jacobs would leave the compensation body without reimbursement to the extent that it had under (eg) English law to pay compensation on a basis more favourable than would be recovered under the law of the state of the accident. Conversely, as Mr Beard accepted, to the extent that English law was in some respect less favourable than the law of the state of the accident, the victim would suffer a shortfall in recovery. Mr Beard suggested that the victims remedy then would be to make a further top up claim direct against the guarantee fund established under article 1(4) of the Second Directive (now article 10(1) of the Sixth Directive) in the state where the vehicle was normally based in the case of an uninsured vehicle or the state of the accident in the case of an unidentified vehicle. But the need to avoid having to pursue proceedings in either of those states is the reason for articles 6 and 7. I conclude, in these circumstances, that the scheme of the Directives is clear, and that they do not leave it to individual member states to provide for compensation in accordance with any law that such states may choose. On the contrary, they proceed on the basis that a victims entitlement to compensation will be measured on a consistent basis, by reference to the law of the state of the accident, whichever of the routes to recovery provided by the Directives he or she invokes. In consequence, it also makes no difference to the measure of liability of the body or person ultimately responsible, which route is chosen. Since the position as a matter of European Union law is in all these respects clear, there is no need to contemplate a reference to the Court of Justice. The next question is whether the 2003 Regulations give effect to this scheme, or have to be read as mandating a different approach, even if it is one which is potentially inconsistent with the Directives. The Court of Appeal in Jacobs started with regulation 12(4)(b), before moving to regulation 13(2)(b) and finding some incidental merit in a conclusion that it provided a measure of compensation likely to be broadly the same as that recoverable under regulation 12. The wording of regulations 12(4)(b) and 13(2)(b) is however notably different, and even the Court of Appeal does not appear to have regarded the two as having, necessarily, the same effect. I prefer to start with regulation 13(2)(b) which is the one directly in issue on this appeal. As I have already indicated (para 21 above), the Court of Appeal in Jacobs was in my opinion correct in its identification of the basic reasoning behind the expression in regulation 13(2)(b) as if it were the body authorised under paragraph 4 of that article and the accident had occurred in Great Britain. Where it went wrong, in my opinion, was in concluding (paras 22 23 above) that this did not exhaust the rationale of that expression. Regulation 13(2)(b) can and should in my opinion be read as having a purely mechanical or functional operation. Once it is concluded that the scheme of the Directives is to provide a consistent measure of compensation, whatever the route to recovery taken by the victim, there is certainly no need to regard regulation 13(2)(b) as having any further purpose or effect. The Court of Appeal in Jacobs was right to conclude that regulation 13(2)(b) carried with it the implicit proviso that the injured party must be able to show that the driver is liable to him (para 32: see para 20 above). But it was wrong to draw on the old common law distinction recognised (not uncontroversially) in Harding v Wealands and now removed from our law by Rome II (see eg Cox v Ergo Versicherung AG [2014] UKSC 22; [2014] AC 1379) between liability and heads of damage on the one hand and measure of compensation on the other; and it was wrong to find this distinction reflected in regulation 13(2)(b). Regulation 12(4)(b) is more specific and less easy to fit within the scheme of the Directives which I have identified. The loss and damage recoverable from the UK MIB in its role as compensation body is said to be that properly recoverable in consequence of that accident by the injured party from [the insured] person under the laws applying in that part of the United Kingdom in which the injured party resided at the date of the accident. The most obvious purpose of this is to determine which of the United Kingdoms three legal systems should apply in proceedings which might, conceivably (subject to considerations of forum conveniens), be brought in any one of them. On this basis, the provision may well not have been aimed at prescribing the measure of recovery in such proceedings. This would and could then be left to and derived from the scheme of the Directives, as it is to be under regulation 13(2)(b). Again, I doubt whether the legislator, when drafting regulation 12(4)(b), was intending to draw a distinction between liability and heads of recovery (subject implicitly to the law of the state of the accident) and the measure of compensation. Even if the legislator had been, the distinction has with Rome II now been abolished. If regulation 12(4)(b) is dealing with the governing law at all, which I doubt, it could in my view also be read as embracing the conflicts of laws applying in that part of the United Kingdom in which the victim resided at the date of the accident, which would, at least normally, yield a result consistent with the scheme of the Directives, by identifying the law of the State of the accident: see Rome II, article 4(1). It follows from the above that it is unnecessary to address further submissions that were, briefly, addressed to the Supreme Court on the Rome II Regulation. The decisions in Jacobs v Motor Insurers Bureau [2010] EWCA Civ 1208; [2011] 1 WLR 2609 and Bloy v Motor Insurers Bureau [2013] EWCA Civ 1543; [2014] 1 Lloyds Rep IR 75 should be overruled in relation to the meaning of regulation 13(2)(b). The UK MIBs present appeal should be allowed and the answer to the preliminary issue declared to be that the scope of the UK MIBs liability to Ms Moreno is to be determined in accordance with the law of Greece.	Ms Moreno is a UK resident. In May 2011, whilst on holiday in Greece, she was hit by a car. The car was registered in Greece and driven by an uninsured driver. It is not disputed that the driver was responsible for the accident. Ms Moreno suffered very serious injuries. Ms Moreno has claimed damages from the UK Motor Insurers Bureau (UKMIB), pursuant to a series of Council Directives (collectively, the Directives), culminating in a Sixth Directive 2009/103/EC (the Sixth Directive). The Directives are transposed into English law by The Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (SI 2003 No 37) (the 2003 Regulations). The purpose of the arrangements introduced by the Directives and the 2003 Regulations is to ensure that compensation is available for victims of motor accidents occurring anywhere in the European Union and to facilitate their recovery of such compensation. They establish a scheme whereby, amongst other things, victims of a motor accident which occurs in one member state can in certain circumstances claim compensation directly from a body in their own member state of residence. The UKMIB is the designated body in the United Kingdom against which such claims can be made. The operation of the relevant part of the Directives was conditional on the conclusion of a subsequent agreement between compensation bodies and guarantee funds (the Agreement), which was reached in April 2002. The preliminary issue the subject of this appeal is whether the scope of Ms Morenos claim to damages is to be determined in accordance with English or Greek law. Her concern is that Greek law would yield a lesser measure of compensation than English law. At first instance, Gilbart J considered that he was bound by previous Court of Appeal authority (Jacobs v Motor Insurers Bureau [2010] EWCA Civ 1208) to hold that the damages are to be determined by English law. Gilbart J granted a leapfrog certificate under section 12 of the Administration of Justice Act 1969, which allows for cases to move directly from the High Court to the Supreme Court with its permission, which was granted in July 2015. The Supreme Court unanimously allows the appeal by the Motor Insurers Bureau. Lord Mance gives the lead judgment with which the other Justices agree. The 2003 Regulations should, so far as possible, be interpreted in a sense which is not in any way inconsistent with the Directives: Marleasing v La Comercial Internacional de Alimentacin (Case C 106/89) [26]. There is no suggestion in the 2003 Regulations or elsewhere, that the domestic legislator intended to do anything other than faithfully implement and give effect to the Directives [28]. Two questions are central to this appeal. The first is whether the Directives prescribe any particular approach to the scope or measure of recovery applicable in a claim against a compensation body under article 7 of the Fourth Directive (article 25(1) of the Sixth Directive). The second is if they do, whether the language of Regulation 13(2)(b) of the 2003 Regulations reflects this approach, or mandates some different approach, whatever the Directives may have required [29]. As to the first question, viewed as a whole, the Directives were and are a scheme of which the constant aim has been to improve the prospects and ease with which injured parties can recover the compensation to which they are entitled in respect of any loss or damage caused by vehicles [6 30]. The inference is that the victim of a motor accident is entitled to the same compensation, whether against the driver responsible, his or her insurer, or, that failing, against the motor insurance bureau of the State of the accident or indeed the compensation body established in the victims state of residence [31]. Clauses 7.2 and 8.2 of the Agreement provided that the compensation body in the victims country of residence was to apply, in evaluating liability and assessing compensation, the law of the country in which the accident occurred. The Agreement needs to be viewed as part of the wider scheme, which in turn needs to be construed as a consistent whole [33]. The Directives do not leave it to individual member states to provide for compensation in accordance with any law that such states may choose. On the contrary, they proceed on the basis that a victims entitlement to compensation will be measured on a consistent basis, by reference to the law of the state of the accident, whichever of the routes to recovery provided by the Directives he or she invokes. In consequence, it also makes no difference which route is chosen to the measure of liability of the body or person ultimately responsible. Since the position as a matter of European Union law is clear, there is no need for a reference to the Court of Justice [35 39]. As to the second question, the 2003 Regulations were consistent with the scheme of the Directives [40 41]. The loss and damage recoverable from the UKMIB is said in Regulation 12(4)(b) to be that properly recoverable in consequence of that accident by the injured party from [the insured] person under the laws applying in that part of the United Kingdom in which the injured party resided at the date of the accident. The most obvious purpose of this is to determine which of the United Kingdoms three legal systems should apply, rather than prescribing the measure of recovery in such proceedings [42]. The decisions in Jacobs v Motor Insurers Bureau [2010] EWCA Civ 1208; [2011] 1 WLR 2609 and Bloy v Motor Insurers Bureau [2013] EWCA Civ 1543, [2014] 1 Lloyds Rep IR 75 should be over ruled in relation to the meaning of regulation 13(2)(b) [43].
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.	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].
If you drive into Dundee from the west along the A90 (T), you will pass on your left a large industrial site. It was formerly occupied by NCR, one of Dundees largest employers, but its factory complex closed some years ago and the site has lain derelict ever since. In 2009 Asda Stores Ltd and MacDonald Estates Group plc, the interveners in the present appeal, applied for planning permission to develop a superstore there. Dundee City Council, the respondents, concluded that a decision to grant planning permission would not be in accordance with the development plan, but was nevertheless justified by other material considerations. Their decision to grant the application is challenged in these proceedings by Tesco Stores Ltd, the appellants, on the basis that the respondents proceeded on a misunderstanding of one of the policies in the development plan: a misunderstanding which, it is argued, vitiated their assessment of whether a departure from the plan was justified. In particular, it is argued that the respondents misunderstood a requirement, in the policies concerned with out of centre retailing, that it must be established that no suitable site is available, in the first instance, within and thereafter on the edge of city, town or district centres. The legislation force at the time of the relevant decision, provides: Section 37(2) of the Town and Country Planning (Scotland) Act 1997, as in In dealing with [an application for planning permission] the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations. Section 25 provides: Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination is, unless material considerations indicate otherwise (a) to be made in accordance with that plan. The development plan The development plan in the present case is an old development plan within the meaning of paragraph 1 of Schedule 1 to the 1997 Act. As such, it is defined by section 24 of the 1997 Act, as that section applied before the coming into force of section 2 of the Planning Etc. (Scotland) Act 2006, as including the approved structure plan and the adopted or approved local plan. The relevant structure plan in the present case is the Dundee and Angus Structure Plan, which became operative in 2002, at a time when the NCR plant remained in operation. As is explained in the introduction to the structure plan, its purpose is to provide a long term vision for the area and to set out the broad land use planning strategy guiding development and change. It includes a number of strategic planning policies. It sets the context for local plans, which translate the strategy into greater detail. Its preparation took account of national planning policy guidelines. The structure plan includes a chapter on town centres and retailing. The introduction explains that the relevant Government guidance is contained in National Planning Policy Guidance 8, Town Centres and Retailing (revised 1998). I note that that document (NPPG 8) was replaced in 2006 by Scottish Planning Policy: Town Centres and Retailing (SPP 8), which was in force at the time of the decision under challenge, and which was itself replaced in 2010 by Scottish Planning Policy (SPP). The relevant sections of all three documents are in generally similar terms. The structure plan continues, at para 5.2: A fundamental principle of NPPG 8 is that of the sequential approach to site selection for new retail developments On this basis, town centres should be the first choice for such developments, followed by edge of centre sites and, only after this, out of centre sites which are currently or potentially accessible by different means of transport. In relation to out of centre developments, that approach is reflected in Town Centres and Retailing Policy 4: Out of Centre Retailing: In keeping with the sequential approach to site selection for new retail developments, proposals for new or expanded out of centre retail developments in excess of 1000 sq m gross will only be acceptable where it can be established that: no suitable site is available, in the first instance, within and thereafter on the edge of city, town or district centres; individually or cumulatively it would not prejudice the vitality and viability of existing city, town or district centres; the proposal would address a deficiency in shopping provision which cannot be met within or on the edge of the above centres; the site is readily accessible by modes of transport other than the car; the proposal is consistent with other Structure Plan policies. The relevant local plan is the Dundee Local Plan, which came into operation in 2005, prior to the closure of the NCR plant. Like the structure plan, it notes that national planning policy guidance emphasises the need to protect and enhance the vitality and viability of town centres. It continues, at para 52.2: As part of this approach planning authorities should adopt a sequential approach to new shopping developments with first preference being town centres, which in Dundees case are the City centre and the District Centres. That approach is reflected in Policy 45: Location of New Retail Developments: The City Centre and District Centres will be the locations of first choice for new or expanded retail developments not already identified in the Local Plan. Proposals for retail developments outwith these locations will only be acceptable where it can be established that: a) no suitable site is available, in the first instance, within and thereafter on the edge of the City Centre or District Centres; and individually or cumulatively it would not prejudice the vitality b) and viability of the City Centre or District Centres; and c) the proposal would address a deficiency in shopping provision which cannot be met within or on the edge of these centres; and d) the site is readily accessible by modes of transport other than the car; and e) It is also relevant to note the guidance given in NPPG 8, as revised in 1998, to which the retailing sections of the structure plan and the local plan referred. Under the heading Sequential Approach, the guidance stated: the proposal is consistent with other Local Plan policies. 12. Planning authorities and developers should adopt a sequential approach to selecting sites for new retail, commercial leisure developments and other key town centre uses First preference should be for town centre sites, where sites or buildings suitable for conversion are available, followed by edge of centre sites, and only then by out of centre sites in locations that are, or can be made easily accessible by a choice of means of transport 13. In support of town centres as the first choice, the Government recognises that the application of the sequential approach requires flexibility and realism from developers and retailers as well as planning authorities. In preparing their proposals developers and retailers should have regard to the format, design, scale of the development, and the amount of car parking in relation to the circumstances of the particular town centre. In addition they should also address the need to identify and assemble sites which can meet not only their requirements, but in a manner sympathetic to the town setting. As part of such an approach, they should consider the scope for accommodating the proposed development in a different built form, and where appropriate adjusting or sub dividing large proposals, in order that their scale might offer a better fit with existing development in the town centre 14. Planning authorities should also be responsive to the needs of retailers and other town centre businesses. In consultation with the private sector, they should assist in identifying sites in the town centre which could be suitable and viable, for example, in terms of size and siting for the proposed use, and are likely to become available in a reasonable time 15. Only if it can be demonstrated that all town centre options have been thoroughly addressed and a view taken on availability, should less central sites in out of centre locations be considered for key town centre uses. Where development proposals in such locations fall outwith the development plan framework, it is for developers to demonstrate that town centre and edge of centre options have been thoroughly assessed. Even where a developer, as part of a sequential approach, demonstrates an out of centre location to be the most appropriate, the impact on the vitality and viability of existing centres still has to be shown to be acceptable The consideration of the application The interveners application was for planning permission to develop a foodstore, caf and petrol filling station, with associated car parking, landscaping and infrastructure, including access roads. The proposals also involved improvements to the junction with the A90 (T), the upgrading of a pedestrian underpass, the provision of footpaths and cycle ways, and improvements to adjacent roadways. A significant proportion of the former NCR site lay outside the application site. It was envisaged that vehicular access to this land could be achieved using one of the proposed access roads. In his report to the respondents, the Director of City Development advised that the application was contrary to certain aspects of the employment and retailing policies of the development plan. In relation to the employment policies, in particular, the proposal was contrary to policies which required the respondents to safeguard the NCR site for business use. The Director considered however that the application site was unlikely to be re developed for business uses in the short term, and that its re development as proposed would improve the development prospects of the remainder of the NCR site. In addition, the infrastructure improvements would provide improved access which would benefit all businesses in an adjacent industrial estate. In relation to the retailing policies, the Director considered the application in the light of the criteria in Retailing Policy 4 of the structure plan. In relation to the first criterion he stated: It must be demonstrated, in the first instance, that no suitable site is available for the development either within the city/district centres or, thereafter on the edge of these centres While noting that the Lochee District Centre lies within the primary catchment area for the proposal, [the retail statement submitted on behalf of the interveners] examines the potential site opportunities in and on the edge of that centre and also at the Hilltown and Perth Road District Centres. The applicants conclude that there are no sites or premises available in or on the edge of existing centres capable of accommodating the development under consideration. Taking account of the applicants argument it is accepted that at present there is no suitable site available to accommodate the proposed development. In relation to the remaining criteria, the Director concluded that the proposed development was likely to have a detrimental effect on the vitality and viability of Lochee District Centre, and was therefore in conflict with the second criterion. The potential impact on Lochee could however be minimised by attaching conditions to any permission granted so as to restrict the size of the store, limit the type of goods for sale and prohibit the provision of concessionary units. The proposal was also considered to be in conflict with the third criterion: there was no deficiency in shopping provision which the proposal would address. The fourth criterion, concerned with accessibility by modes of transport other than the car, was considered to be met. Similar conclusions were reached in relation to the corresponding criteria in Policy 45 of the local plan. In view of the conflict with the employment and retailing policies, the Director considered that the proposal did not fully comply with the provisions of the development plan. He identified however two other material considerations of particular significance. First, the proposed development would bring economic benefits to the city. The closure of the NCR factory had been a major blow to the economy, but the re development of the application site would create more jobs than had been lost when the factory finally closed. The creation of additional employment opportunities within the city was considered to be a strong material consideration. Secondly, the development would also provide a number of planning benefits. There would be improvements to the strategic road network which would assist in the free flow of traffic along the A90 (T). The development would also assist in the re development of the whole of the former NCR site through the provision of enhanced road access and the clearance of buildings from the site. The access improvements would also assist in the development of an economic development area to the west. These benefits were considered to be another strong material consideration. The Director concluded that the proposal was not in accordance with the development plan, particularly with regard to the employment and retailing policies. There were however other material considerations of sufficient weight to justify setting aside those policies and offering support for the development, subject to suitable conditions. He accordingly recommended that consent should be granted, subject to specified conditions. The application was considered by the respondents entire council sitting as the respondents Development Quality Committee. After hearing submissions on behalf of the interveners and also on behalf of the appellants, the respondents decided to follow the Directors recommendation. The reasons which they gave for their decision repeated the Directors conclusions: It is concluded that the proposal does not undermine the core land use and environmental strategies of the development plan. The planning and economic benefits that would accrue from the proposed development would be important to the future development and viability of the city as a regional centre. These benefits are considered to be of a significant weight and sufficient to set aside the relevant provisions of the development plan. The present proceedings The submissions on behalf of the appellants focused primarily upon an alleged error of interpretation of the first criterion in Retailing Policy 4 of the structure plan, and of the equivalent criterion in Policy 45 of the local plan. If there was a dispute about the meaning of a development plan policy which the planning authority was bound to take into account, it was for the court to determine what the words were capable of meaning. If the planning authority attached a meaning to the words which they were not properly capable of bearing, then it made an error of law, and failed properly to understand the policy. In the present case, the Director had interpreted suitable as meaning suitable for the development proposed by the applicant; and the respondents had proceeded on the same basis. That was not however a tenable meaning. Properly interpreted, suitable meant suitable for meeting identified deficiencies in retail provision in the area. Since no such deficiency had been identified, it followed on a proper interpretation of the plan that the first criterion did not require to be considered: it was inappropriate to undertake the sequential approach. The Directors report had however implied that the first criterion was satisfied, and that the proposal was to that extent in conformity with the sequential approach. The respondents had proceeded on that erroneous basis. They had thus failed to identify correctly the extent of the conflict between the proposal and the development plan. In consequence, their assessment of whether other material considerations justified a departure from the plan was inherently flawed. The respondents had compounded their error, it was submitted, by treating the proposed development as definitive when assessing whether a suitable site was available. That approach permitted developers to drive a coach and horses through the sequential approach: they could render the policy nugatory by the simple expedient of putting forward proposals which were so large that they could only be accommodated outside town and district centres. In the present case, there was a site available in Lochee which was suitable for food retailing and which was sequentially preferable to the application site. The Lochee site had been considered as part of the assessment of the proposal, but had been found to be unsuitable because it could not accommodate the scale of development to which the interveners aspired. In response, counsel for the respondents submitted that it was for the planning authority to interpret the relevant policy, exercising its planning judgment. Counsel accepted that, if there was a dispute about the meaning of the words in a policy document, it was for the court to determine as a matter of law what the words were capable of meaning. The planning authority would only make an error of law if it attached a meaning to the words which they were not capable of bearing. In the present case, the relevant policies required all the specified criteria to be satisfied. The respondents had proceeded on the basis that the proposal failed to accord with the second and third criteria. In those circumstances, the respondents had correctly concluded that the proposal was contrary to the policies in question. How the proposal had been assessed against the first criterion was immaterial. So far as concerned the assessment of suitable sites, the interveners retail statement reflected a degree of flexibility. There had been a consideration of all sites of at least 2.5 ha, whereas the application site extended to 6.68 ha. The interveners had also examined sites which could accommodate only food retailing, whereas their application had been for both food and non food retailing. The Lochee site extended to only 1.45 ha, and could accommodate a store of only half the size proposed. It also had inadequate car parking. The Director, and the respondents, had accepted that it was not a suitable site for these reasons. Discussion It has long been established that a planning authority must proceed upon a proper understanding of the development plan: see, for example, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, 94 per Woolf J, affd (1986) 54 P & CR 361; Horsham DC v Secretary of State for the Environment (1991) 63 P & CR 219, 225 226 per Nolan LJ. The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them. It also follows from the legal status given to the development plan by section 25 of the 1997 Act. The effect of the predecessor of section 25, namely section 18A of the Town and Country (Planning) Scotland Act 1972 (as inserted by section 58 of the Planning and Compensation Act 1991), was considered by the House of Lords in the case of City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, [1997] 1 WLR 1447. It is sufficient for present purposes to cite a passage from the speech of Lord Clyde, with which the other members of the House expressed their agreement. At p 44, 1459, his Lordship observed: In the practical application of sec 18A it will obviously be necessary for the decision maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. In the present case, the planning authority was required by section 25 to consider whether the proposed development was in accordance with the development plan and, if not, whether material considerations justified departing from the plan. In order to carry out that exercise, the planning authority required to proceed on the basis of what Lord Clyde described as a proper interpretation of the relevant provisions of the plan. We were however referred by counsel to a number of judicial dicta which were said to support the proposition that the meaning of the development plan was a matter to be determined by the planning authority: the court, it was submitted, had no role in determining the meaning of the plan unless the view taken by the planning authority could be characterised as perverse or irrational. That submission, if correct, would deprive sections 25 and 37(2) of the 1997 Act of much of their effect, and would drain the need for a proper interpretation of the plan of much of its meaning and purpose. It would also make little practical sense. The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department [2008] QB 836), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context. That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 per Lord Hoffmann). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean. The principal authority referred to in relation to this matter was the judgment of Brooke LJ in R v Derbyshire County Council, Ex p Woods [1997] JPL 958 at 967. Properly understood, however, what was said there is not inconsistent with the approach which I have described. In the passage in question, Brooke LJ stated: If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy. By way of illustration, Brooke LJ referred to the earlier case of Northavon DC v Secretary of State for the Environment [1993] JPL 761, which concerned a policy applicable to institutions standing in extensive grounds. As was observed, the words spoke for themselves, but their application to particular factual situations would often be a matter of judgment for the planning authority. That exercise of judgment would only be susceptible to review in the event that it was unreasonable. The latter case might be contrasted with the case of R (Heath and Hampstead Society) v Camden LBC [2008] 2 P & CR 233, where a planning authoritys decision that a replacement dwelling was not materially larger than its predecessor, within the meaning of a policy, was vitiated by its failure to understand the policy correctly: read in its context, the phrase materially larger referred to the size of the new building compared with its predecessor, rather than requiring a broader comparison of their relative impact, as the planning authority had supposed. Similarly in City of Edinburgh Council v Scottish Ministers 2001 SC 957 the reporters decision that a licensed restaurant constituted similar licensed premises to a public house, within the meaning of a policy, was vitiated by her misunderstanding of the policy: the context was one in which a distinction was drawn between public houses, wine bars and the like, on the one hand, and restaurants, on the other. A provision in the development plan which requires an assessment of whether a site is suitable for a particular purpose calls for judgment in its application. But the question whether such a provision is concerned with suitability for one purpose or another is not a question of planning judgment: it is a question of textual interpretation, which can only be answered by construing the language used in its context. In the present case, in particular, the question whether the word suitable, in the policies in question, means suitable for the development proposed by the applicant, or suitable for meeting identified deficiencies in retail provision in the area, is not a question which can be answered by the exercise of planning judgment: it is a logically prior question as to the issue to which planning judgment requires to be directed. It is of course true, as counsel for the respondents submitted, that a planning authority might misconstrue part of a policy but nevertheless reach the same conclusion, on the question whether the proposal was in accordance with the policy, as it would have reached if it had construed the policy correctly. That is not however a complete answer to a challenge to the planning authoritys decision. An error in relation to one part of a policy might affect the overall conclusion as to whether a proposal was in accordance with the development plan even if the question whether the proposal was in conformity with the policy would have been answered in the same way. The policy criteria with which the proposal was considered to be incompatible might, for example, be of less weight than the criteria which were mistakenly thought to be fulfilled. Equally, a planning authority might misconstrue part of a policy but nevertheless reach the same conclusion as it would otherwise have reached on the question whether the proposal was in accordance with the development plan. Again, however, that is not a complete answer. Where it is concluded that the proposal is not in accordance with the development plan, it is necessary to understand the nature and extent of the departure from the plan which the grant of consent would involve in order to consider on a proper basis whether such a departure is justified by other material considerations. In the present case, the Lord Ordinary rejected the appellants submissions on the basis that the interpretation of planning policy was always primarily a matter for the planning authority, whose assessment could be challenged only on the basis of unreasonableness: there was, in particular, more than one way in which the sequential approach could reasonably be applied ([2010] CSOH 128, para 23). For the reasons I have explained, that approach does not correctly reflect the role which the court has to play in the determination of the meaning of the development plan. A different approach was adopted by the Second Division: since, it was said, the proposal was in head on conflict with the retail and employment policies of the development plan, and the sequential approach offered no justification for it, a challenge based upon an alleged misapplication of the sequential approach was entirely beside the point (2011 SC 457, [2011] CSIH 9, para 38). For the reasons I have explained, however, even where a proposal is plainly in breach of policy and contrary to the development plan, a failure properly to understand the policy in question may result in a failure to appreciate the full extent or significance of the departure from the development plan which the grant of consent would involve, and may consequently vitiate the planning authoritys determination. Whether there has in fact been a misunderstanding of the policy, and whether any such misunderstanding may have led to a flawed decision, has therefore to be considered. I turn then to the question whether the respondents misconstrued the policies in question in the present case. As I have explained, the appellants primary contention is that the word suitable, in the first criterion of Retailing Policy 4 of the structure plan and the corresponding Policy 45 of the local plan, means suitable for meeting identified deficiencies in retail provision in the area, whereas the respondents proceeded on the basis of the construction placed upon the word by the Director of City Development, namely suitable for the development proposed by the applicant. I accept, subject to a qualification which I shall shortly explain, that the Director and the respondents proceeded on the latter basis. Subject to that qualification, it appears to me that they were correct to do so, for the following reasons. First, that interpretation appears to me to be the natural reading of the policies in question. They have been set out in paras 4 and 5 above. Read short, Retailing Policy 4 of the structure plan states that proposals for new or expanded out of centre retail developments will only be acceptable where it can be established that a number of criteria are satisfied, the first of which is that no suitable site is available in a sequentially preferable location. Policy 45 of the local plan is expressed in slightly different language, but it was not suggested that the differences were of any significance in the present context. The natural reading of each policy is that the word suitable, in the first criterion, refers to the suitability of sites for the proposed development: it is the proposed development which will only be acceptable at an out of centre location if no suitable site is available more centrally. That first reason for accepting the respondents interpretation of the policy does not permit of further elaboration. Secondly, the interpretation favoured by the appellants appears to me to conflate the first and third criteria of the policies in question. The first criterion concerns the availability of a suitable site in a sequentially preferable location. The third criterion is that the proposal would address a deficiency in shopping provision which cannot be met in a sequentially preferable location. If suitable meant suitable for meeting identified deficiencies in retail provision, as the appellants contend, then there would be no distinction between those two criteria, and no purpose in their both being included. Thirdly, since it is apparent from the structure and local plans that the policies in question were intended to implement the guidance given in NPPG 8 in relation to the sequential approach, that guidance forms part of the relevant context to which regard can be had when interpreting the policies. The material parts of the guidance are set out in para 6 above. They provide further support for the respondents interpretation of the policies. Paragraph 13 refers to the need to identify sites which can meet the requirements of developers and retailers, and to the scope for accommodating the proposed development. Paragraph 14 advises planning authorities to assist the private sector in identifying sites which could be suitable for the proposed use. Throughout the relevant section of the guidance, the focus is upon the availability of sites which might accommodate the proposed development and the requirements of the developer, rather than upon addressing an identified deficiency in shopping provision. The latter is of course also relevant to retailing policy, but it is not the issue with which the specific question of the suitability of sites is concerned. I said earlier that it was necessary to qualify the statement that the Director and the respondents proceeded, and were correct to proceed, on the basis that suitable meant suitable for the development proposed by the applicant. As paragraph 13 of NPPG 8 makes clear, the application of the sequential approach requires flexibility and realism from developers and retailers as well as planning authorities. The need for flexibility and realism reflects an inbuilt difficulty about the sequential approach. On the one hand, the policy could be defeated by developers and retailers taking an inflexible approach to their requirements. On the other hand, as Sedley J remarked in R v Teesside Development Corporation, Ex p William Morrison Supermarket plc and Redcar and Cleveland BC [1998] JPL 23, 43, to refuse an out of centre planning consent on the ground that an admittedly smaller site is available within the town centre may be to take an entirely inappropriate business decision on behalf of the developer. The guidance seeks to address this problem. It advises that developers and retailers should have regard to the circumstances of the particular town centre when preparing their proposals, as regards the format, design and scale of the development. As part of such an approach, they are expected to consider the scope for accommodating the proposed development in a different built form, and where appropriate adjusting or sub dividing large proposals, in order that their scale may fit better with existing development in the town centre. The guidance also advises that planning authorities should be responsive to the needs of retailers. Where development proposals in out of centre locations fall outside the development plan framework, developers are expected to demonstrate that town centre and edge of centre options have been thoroughly assessed. That advice is not repeated in the structure plan or the local plan, but the same approach must be implicit: otherwise, the policies would in practice be inoperable. It follows from the foregoing that it would be an over simplification to say that the characteristics of the proposed development, such as its scale, are necessarily definitive for the purposes of the sequential test. That statement has to be qualified to the extent that the applicant is expected to have prepared his proposals in accordance with the recommended approach: he is, for example, expected to have had regard to the circumstances of the particular town centre, to have given consideration to the scope for accommodating the development in a different form, and to have thoroughly assessed sequentially preferable locations on that footing. Provided the applicant has done so, however, the question remains, as Lord Glennie observed in Lidl UK GmbH v Scottish Ministers [2006] CSOH 165, para 14, whether an alternative site is suitable for the proposed development, not whether the proposed development can be altered or reduced so that it can be made to fit an alternative site. In the present case, it is apparent that a flexible approach was adopted. The interveners did not confine their assessment to sites which could accommodate the development in the precise form in which it had been designed, but examined sites which could accommodate a smaller development and a more restricted range of retailing. Even taking that approach, however, they did not regard the Lochee site vacated by the appellants as being suitable for their needs: it was far smaller than they required, and its car parking facilities were inadequate. In accepting that assessment, the respondents exercised their judgment as to how the policy should be applied to the facts: they did not proceed on an erroneous understanding of the policy. Finally, I would observe that an error by the respondents in interpreting their policies would be material only if there was a real possibility that their determination might otherwise have been different. In the particular circumstances of the present case, I am not persuaded that there was any such possibility. The considerations in favour of the proposed development were very powerful. They were also specific to the particular development proposed: on the information before the respondents, there was no prospect of any other development of the application site, or of any development elsewhere which could deliver equivalent planning and economic benefits. Against that background, the argument that a different decision might have been taken if the respondents had been advised that the first criterion in the policies in question did not arise, rather than that criterion had been met, appears to me to be implausible. Conclusion For these reasons, and those given by Lord Hope, with which I am in entire agreement, I would dismiss the appeal. LORD HOPE The question that lies at the heart of this case is whether the respondents acted unlawfully in their interpretation of the sequential approach which both the structure plan and the relevant local plan required them to adopt to new retail developments within their area. According to that approach, proposals for new or expanded out of centre developments of this kind are acceptable only where it can be established, among other things, that no suitable site is available, in the first instance, within and thereafter on the edge of city, town or district centres. Is the test as to whether no suitable site is available in these locations, when looked at sequentially, to be addressed by asking whether there is a site in each of them in turn which is suitable for the proposed development? Or does it direct attention to the question whether the proposed development could be altered or reduced so as to fit into a site which is available there as a location for this kind of development? The sequential approach is described in National Planning Policy Guidance Policy 8, Town Centres and Retailing, para 5.2 as a fundamental principle of NPPG 8. In R v Rochdale Metropolitan Borough Council, Ex p Milne, 31 July 2000, not reported, paras 48 49, Sullivan J said that it was not unusual for development plan polices to pull in different directions and, having regard to what Lord Clyde said about the practical application of the statutory rule in City of Edinburgh v Secretary of State for Scotland 1998 SC (HL) 33 at p 44, that he regarded as untenable the proposition that if there was a breach of any one policy in a development plan a proposed development could not be said to be in accordance with the plan. In para 52 he said that the relative importance of a given policy to the overall objectives of the development plan was essentially a matter for the judgment of the local planning authority and that a legalistic approach to the interpretation of development plan policies was to be avoided. I see no reason to question these propositions, to which Mr Kingston QC for the appellants drew our attention in his reply to Mr Armstrongs submissions for the respondents. But I do not think that they are in point in this case. We are concerned here with a particular provision in the planning documents to which the respondents are required to have regard by the statute. The meaning to be given to the crucial phrase is not a matter that can be left to the judgment of the planning authority. Nor, as the Lord Ordinary put it in his opinion at [2010] CSOH 128, para 23, is the interpretation of the policy which it sets out primarily a matter for the decision maker. As Mr Thomson for the interveners pointed out, the challenge to the respondents decision to follow the Directors recommendation and approve the proposed development is not that it was Wednesbury unreasonable but that it was unlawful. I agree with Lord Reed that the issue is one of law, reading the words used objectively in their proper context. In Lidl UK GmbH v The Scottish Ministers [2006] CSOH 165 the appellants appealed against a decision of the Scottish Ministers to refuse planning permission for a retail unit to be developed on a site outwith Irvine town centre. The relevant provision in the local plan required the sequential approach to be adopted to proposals for new retail development out with the town centre boundaries. Among the criteria that had to be satisfied was the requirement that no suitable sites were available, or could reasonably be made available, in or on the edge of existing town centres. In other words, town centre sites were to be considered first before edge of centre or out of town sites. The reporter held that the existing but soon to be vacated Lidl town centre site was suitable for the proposed development, although it was clear as a matter of fact that this site could not accommodate it. In para 13 Lord Glennie noted that counsel for the Scottish Ministers accepted that a site would be suitable in terms of the policy only if it was suitable for, or could accommodate, the development as proposed by the developer. In para 14 he said that the question was whether the alternative town centre site was suitable for the proposed development, not whether the proposed development could be altered or reduced so that it could fit in to it. Mr Kingston submitted that Lord Glennies approach would rob the sequential approach of all its force, and in the Inner House it was submitted that his decision proceeded on a concession by counsel which ought not to have been made: [2011] CSIH 9, 2011 SC 457, para 31. But I think that Lord Glennies interpretation of the phrase was sound and that counsel was right to accept that it had the meaning which she was prepared to give to it. The wording of the relevant provision in the local plan in that case differed slightly from that with which we are concerned in this case, as it included the phrase or can reasonably be made available. But the question to which it directs attention is the same. It is the proposal for which the developer seeks permission that has to be considered when the question is asked whether no suitable site is available within or on the edge of the town centre. The context in which the word suitable appears supports this interpretation. It is identified by the opening words of the policy, which refer to proposals for new or expanded out of centre retail developments and then set out the only circumstances in which developments outwith the specified locations will be acceptable. The words the proposal which appear in the third and fifth of the list of the criteria which must be satisfied serve to reinforce the point that the whole exercise is directed to what the developer is proposing, not some other proposal which the planning authority might seek to substitute for it which is for something less than that sought by the developer. It is worth noting too that the phrase no suitable site is available appears in Policy 46 of the local plan relating to commercial developments. Here too the context indicates that the issue of suitability is directed to the developers proposals, not some alternative scheme which might be suggested by the planning authority. I do not think that this is in the least surprising, as developments of this kind are generated by the developers assessment of the market that he seeks to serve. If they do not meet the sequential approach criteria, bearing in mind the need for flexibility and realism to which Lord Reed refers in para 28, above, they will be rejected. But these criteria are designed for use in the real world in which developers wish to operate, not some artificial world in which they have no interest doing so. For these reasons which I add merely as a footnote I agree with Lord Reed, for all the reasons he gives, that this appeal should be dismissed. I would affirm the Second Divisions interlocutor.	On 18 January 2010, Dundee Council granted planning permission for the construction of an Asda superstore on a site at Myrekirk Road, Dundee. The Appellants operate a supermarket at a site on South Road, Dundee, some 800m from the proposed Asda site. Scottish Executive policy guidance states that, subject to material considerations indicating otherwise, proposed sites should be considered in the following descending order of preference: (a) town centre, (b) edge of town, (c) other commercial centres identified in the development plan and (d) out of centre locations that can be accessed by various transport modes (the sequential test). Effect is given to the sequential test by the policies set out in the statutory development plan, comprising the structure plan and the local plan. In considering Asdas application, the Council noted that the proposed site was out of town and fell therefore in the least desirable category. There was an available site at Methven Road in the Lochee district of Dundee, but the Council discounted it as being too small for the proposed store. There was no other available site within categories (a), (b) or (c) that would have been suitable. The Council accepted that the proposal failed to comply with the sequential test, but given that (i) it did not undermine the core land use strategies of the development plan; and (ii) it had a number of other planning, economic and social benefits, permission was granted. Tesco applied for judicial review of the Councils decision arguing that it had improperly interpreted and applied the development plan and that it had failed to consider its own policy in respect of the Lochee district. The petition was dismissed by the Lord Ordinary and a reclaiming motion against his interlocutor was refused by the Inner House. Tesco now appeals to this court. The Supreme Court dismisses the appeal. The lead judgment is given by Lord Reed, with whom the other justices agree. Lord Hope adds a brief concurring judgment. The Appellants contended that the Respondents had misinterpreted a criterion in one of the policies set out in the structure plan, and its equivalent in the local plan. The requirement in the policy reads as follows: In keeping with the sequential approach to site selection for new retail developments, proposals for new or expanded out of centre retail developments in excess of 1000 sq m gross will only be acceptable where it can be established that: no suitable site is available, in the first instance, within and thereafter on the edge of city, town or district centres [] [13]. The Appellants submitted that if there was a dispute about the meaning of a policy in the development plan it was for the court to determine what the words were capable of meaning. If the planning authority attached a meaning to the words which they were not properly capable of bearing, then it made an error of law, and had failed properly to understand the policy [13]. In the present case, the Respondents Director had interpreted suitable as meaning suitable for the development proposed by the applicant. But suitable meant suitable for meeting identified deficiencies in retail provision in the area. As no such deficiency had been identified, it was inappropriate to undertake the sequential approach and the Respondents had proceeded on an erroneous basis. They had failed to identify correctly the extent of the conflict between the proposal and the development plan and their assessment of whether other material considerations justified a departure from the plan was inherently flawed [13]. They had compounded their error by treating the proposed development as definitive when assessing whether a suitable site was available [14]. In response, the Respondents submitted that it was for the planning authority to interpret the relevant policy, exercising its planning judgment. The planning authority would only make an error of law if it attached a meaning to the words of the policy document which they were not capable of bearing. In the present case, the relevant policies required all the specified criteria to be satisfied. The Respondents had considered that the proposal failed to accord with the second and third criteria. In those circumstances, they had correctly concluded that the proposal was contrary to the policies in question. [15]. So far as concerned the assessment of suitable sites, Asdas retail statement had reflected a degree of flexibility: it considered smaller sites and sites which could accommodate only food retailing, whereas its application was also for non food retailing [16]. The Supreme Court considers that, in this area of public administration as in others, policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context. That is not to say that such statements should be construed as if they were statutory or contractual provisions. Many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse. Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean [18 19, 35]. In the present case, the question what the word suitable means cannot be answered by the exercise of planning judgment: it is a logically prior question as to the issue to which planning judgment requires to be directed [21]. Moreover, where, as here, it is concluded that the proposal is not in accordance with the development plan, it is necessary to understand the nature and extent of the departure from the plan which the grant of consent would involve in order to consider on a proper basis whether such a departure is justified by other material considerations [22]. The Supreme Court considers that the Respondents were correct to proceed on the basis that the word suitable meant suitable for the development proposed by the applicant, subject to the qualification that flexibility and realism must be shown by developers [24, 28, 37 38]. The Supreme Court makes this finding for the following reasons: (1) this is the natural reading of the policies [25]; (2) the interpretation favoured by the Appellants conflates the first and third criteria of the policies in question [26]; and (3) the policies were intended to implement the guidance given in National Planning Policy Guidance 8, which focuses upon the availability of sites which might accommodate the proposed development, rather than upon addressing an identified deficiency in shopping provision [27]. In the present case, it is apparent that a flexible approach was adopted [30]. An error in interpreting the policies would be material only if there was a real possibility that the determination might have been different. The Court is not persuaded that in the present case there was any such possibility [31].
No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. So spoke Lord Mansfield in Holman v Johnson (1775) 1 Cowp 341, 343, ushering in two centuries and more of case law about the extent and effect of this maxim. He stated that the reason was one of public policy: 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 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. Illegality has the potential to provide a defence to civil claims of all sorts, whether relating to contract, property, tort or unjust enrichment, and in a wide variety of circumstances. Take the law of contract. A contract may be prohibited by a statute; or it may be entered into for an illegal or immoral purpose, which may be that of one or both parties; or performance according to its terms may involve the commission of an offence; or it may be intended by one or both parties to be performed in a way which will involve the commission of an offence; or an unlawful act may be committed in the course of its performance. The application of the doctrine of illegality to each of these different situations has caused a good deal of uncertainty, complexity and sometimes inconsistency. Holman v Johnson involved a claim for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendants purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality. The defence failed. Lord Mansfield held that knowledge on the part of the plaintiff that the defendant intended to smuggle the goods did not affect the plaintiffs entitlement to recover the price of the goods, since he was not himself involved in the smuggling. By contrast, in Pearce v Brooks (1866) LR 1 Ex 213 a claim by a coachbuilder against a prostitute for the hire of what was described in the law report as an ornamental brougham was held to be unenforceable for illegality after the jury found that the defendant hired it for the purpose of prostitution and that the plaintiff knew that this was her purpose. It would seem that the difference between Holman v Johnson and Pearce v Brooks had to do with the type of goods supplied, because in both cases the plaintiff knew that the defendant was entering into the contract for an illegal or immoral purpose. In JM Allan (Merchandising) Ltd v Cloke [1963] 2 QB 340, 348, Lord Denning MR endeavoured to rationalise the authorities by saying that active participation debars, but knowledge by itself does not. However, the Law Commission commented in its discussion of the subject in its Consultation Paper on Illegal Transactions: the Effect of Illegality on Contracts and Trusts, LCCP 154 (1999) that the case law lacks clear guidance on what amounts to participation in this context. It is unclear to what extent the doctrine of illegality applies to a contract whose object includes something which is in some respect unlawful, or the performance of which will involve some form of illegality, but not in a way which is central to the contract. In St John Shipping Corpn v Joseph Rank Ltd [1957] 1 QB 267, 288, Devlin J said: If a contract has as its whole object the doing of the very act which the statute prohibits, it can be argued that you can hardly make sense of a statute which forbids an act and yet permits to be made a contract to do it; that is a clear implication. But unless you get a clear implication of that sort, I think that a court ought to be very slow to hold that a statute intends to interfere with the rights and remedies given by the ordinary law of contract. Caution in this respect is, I think, especially necessary in these times when so much of commercial life is governed by regulations of one sort or another, which may easily be broken without wicked intent. As to illegality in the manner of performance of a contract, Mance LJ observed in Hall v Woolston Hall Leisure Ltd [2001] 1 WLR 225, 246, that the conceptual basis on which a contract not illegal nor prohibited at the time of its formation may become unenforceable due to the manner of its performance is open to debate. In Anderson Ltd v Daniel [1924] 1 KB 138 a claim for the price of goods was held to be unenforceable because the seller had failed to give the buyer an invoice containing details which the seller was required to give him by statute. In the St John Shipping case Devlin J rejected the interpretation that the claim in Anderson Ltd v Daniel failed because in the course of performing a legal contract the plaintiff had done something illegal. The correct interpretation, he said, was that the way in which the contract was performed turned it into the sort of contract that was prohibited by the statute: [1957] 1 QB 267, 284. In the St John Shipping case the claim was for freight under a charter party. In the course of taking on bunkers the vessel was overloaded and the master thereby committed an offence, for which he was prosecuted and fined 1,200. The extra freight earned by the overloading was 2,295 and to that extent the ship owners stood to profit from their wrong. The cargo owners refused to pay that part of the freight. Devlin J rejected their defence. He held that since the goods had been delivered safely, the ship owners had proved all that they needed. He was not prepared to construe the statute as having the effect of making the contract prohibited. If it had been otherwise, the ship owners would not have been entitled to any freight and would therefore have suffered an additional penalty, much greater than that provided for by Parliament, for conduct which might have been unintentional. In Ashmore, Benson, Pease and Co Ltd v Dawson [1973] 1 WLR 828 the Court of Appeal adopted a different approach. Manufacturers of heavy engineering equipment entered into a contract of carriage with road hauliers. There was nothing illegal in the formation of the contract, but the hauliers overloaded the vehicles which were to transport the load, in breach of road traffic regulations, and one of the lorries toppled over during the journey as a result of the drivers negligence. The manufacturers transport manager was present when the goods were loaded and was aware of the overloading. A claim by the manufacturers for the cost of repair of the damaged load was rejected on grounds of illegality. The Court of Appeal did not perform the same analysis as had Devlin J in the St John Shipping case. They held simply that the manufacturers participated in the illegal performance of the contract and were therefore barred from suing on it. These and other cases led the Law Commission to describe the effect that unlawful performance has on the parties contractual rights as very unclear. (Consultative Report on the Illegality Defence, LCCP 189 (2009), para 3.27.) In this case the issue is whether Lord Mansfields maxim precludes a party to a contract tainted by illegality from recovering money paid under the contract from the other party under the law of unjust enrichment (to use the term now generally favoured by scholars for what used previously to be labelled restitution and, before that, quasi contract). On one side it is argued that the maxim applies as much to such a claim as to a claim in contract, and that the court must give no assistance to a party which has engaged in any form of illegality. On the other side it is argued that such an approach would not advance the public policy which underlies Lord Mansfields maxim, once the underlying policy is properly understood. Structure of this judgment With that introduction I turn to the facts of Mr Patels claim and how it was decided in the courts below: see paras 11 16. A central part of their judgments, and of Mr Mirzas argument, concerns the doctrine of reliance applied by the House of Lords in Tinsley v Milligan [1994] 1 AC 340: see paras 17 20. That decision led to the Law Commission conducting a comprehensive review of the law of illegality and making proposals for addressing what the Commission perceived to be its unsatisfactory features: see paras 21 49. Paras 33 39 concern European law and its potential impact on our domestic law. The approach adopted in Australia, Canada and the USA is considered at paras 50 66. Paras 67 81 address developments since the Law Commissions report, including three recent decisions of this court which laid bare a division of opinion about the framework for deciding issues of illegality. Paragraphs 82 94 contain a section entitled The law at a crossroads. This leads to the critical part of the judgment, which considers the way forward and ends in a summary and proposal for the disposal of this appeal: paras 95 121. The reader who is more interested in what the judgment has to say about the future than the past will no doubt wish to concentrate on the final section. Mr Patels claim The essential facts can be shortly told. Mr Patel transferred sums totalling 620,000 to Mr Mirza for the purpose of betting on the price of RBS shares, using advance insider information which Mr Mirza expected to obtain from RBS contacts regarding an anticipated government announcement which would affect the price of the shares. Mr Mirzas expectation of a government announcement proved to be mistaken, and so the intended betting did not take place, but Mr Mirza failed to repay the money to Mr Patel despite promises to do so. Mr Patel thereupon brought this claim for the recovery of the sums which he had paid. The claim was put on various bases including contract and unjust enrichment. A fuller account of the facts is given in the judgments of the courts below and in the judgment of Lord Neuberger. The agreement between Mr Patel and Mr Mirza amounted to a conspiracy to commit an offence of insider dealing under section 52 of the Criminal Justice Act 1993. In order to establish his claim to the return of his money, it was necessary for Mr Patel to explain the nature of the agreement. A defendants enrichment is prima facie unjust if the claimant has enriched the defendant on the basis of a consideration which fails. The consideration may have been a promised counter performance (whether under a valid contract or not), an event or a state of affairs, which failed to materialise. (See Professor Andrew Burrows A Restatement of the English Law of Unjust Enrichment, 2012, p 86, para 15). In Sharma v Simposh Ltd [2013] Ch 23, at para 24, the Court of Appeal cited with approval Professor Birks summary of the meaning of failure of consideration in his revised edition of An Introduction to the Law of Restitution (1989), p 223: Failure of the consideration for a payment means that the state of affairs contemplated as the basis or reason for the payment has failed to materialise or, if it did exist, has failed to sustain itself. For Mr Patel to show that there was a failure of consideration for his payment of moneys to Mr Mirza, he had to show what the consideration was, and that required him to establish the nature of their agreement. Applying the reliance principle stated in Tinsley v Milligan [1994] 1 AC 340, the judge held that Mr Patels claim to recover the sum paid was unenforceable because he had to rely on his own illegality to establish it, unless he could have brought himself within the exception of the doctrine known, misleadingly, as locus poenitentiae; and that he could not bring himself within that exception since he had not voluntarily withdrawn from the illegal scheme. In the Court of Appeal the majority agreed with the judge on the reliance issue, but disagreed with him on the application of the locus poenitentiae exception. They held that it was enough for the claim to succeed that the scheme had not been executed. Gloster LJ agreed with the majority that Mr Patels claim should succeed but she took a different approach to it. She began her thoughtful analysis with a cri de coeur (para 47): As any hapless law student attempting to grapple with the concept of illegality knows, it is almost impossible to ascertain or articulate principled rules from the authorities relating to the recovery of money or other assets paid or transferred under illegal contracts. In summary, she rejected the view that Tinsley v Milligan was to be taken as laying down a rule of universal application that the defence of ex turpi causa must apply in all circumstances where a claim involves reliance on the claimants own illegality. It was necessary in her view to consider whether the policy underlying the rule which made the contract illegal would be stultified by allowing the claim. In addressing that issue, relevant factors included the degree of connection between the wrongful conduct and the claim made, and the disproportionality of disallowing the claim to the unlawfulness of the conduct. She identified the mischief at which the offence of insider trading was aimed as market abuse by the exploitation of unpublished price sensitive information obtained from a privileged source. If no such activity occurred, Gloster LJ said that it was hard to see on what basis public policy should bar the return of money which had previously been intended to be used for that purpose. Mr Patel was not seeking to make a benefit from wrongdoing, and she did not consider that such an outcome would be just and proportionate. On the issue of reliance, Gloster LJ did not consider it necessary for Mr Patel to establish that the intended betting on RBS shares was to be done with the benefit of insider information; it would have been enough for him to establish that the funds had been paid for the purpose of a speculation on the price of the shares which never took place. If, however, she were wrong on that issue, she agreed with the other members of the court on the locus poenitentiae issue. The reliance principle and Tinsley v Milligan The facts of Tinsley v Milligan are well known. Miss Tinsley and Miss Milligan each contributed to the purchase of a home. It was vested in Miss Tinsleys sole name, but on the mutual understanding that they were joint beneficial owners. It was put in her sole name so as to assist Miss Milligan to make false benefit claims from the Department of Social Security (DSS), which she did over a number of years with Miss Tinsleys connivance. The money obtained from the DSS helped them to pay their bills, but it played only a small part in the acquisition of the equity in the house. Eventually Miss Milligan confessed to the DSS what she had done and made terms with it, but the parties fell out. Miss Tinsley gave Miss Milligan notice to quit and brought a claim against her for possession. Miss Milligan counterclaimed for a declaration that the property was held by Miss Tinsley on trust for the parties in equal shares. The Court of Appeal by a majority decided in favour of Miss Milligan by applying the test whether it would be an affront to the public conscience to grant the relief claimed by her. The House of Lords unanimously rejected the public conscience test, but by a three to two majority upheld the Court of Appeals decision. The leading speech was given by Lord Browne Wilkinson. His starting point was that title to property can pass under an unlawful transaction; but he held that the court would not assist an owner to recover the property if he had to rely on his own illegality to prove his title. The Court of Appeal had recognised that distinction in Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65 in a case concerning personal property, referred to in more detail at para 111 below, and Lord Browne Wilkinson held that the same applied to real property in which the claimant had a beneficial interest. Lord Browne Wilkinson held that it was enough for Miss Milligan to show that she had contributed to the purchase of the property and that there was a common understanding that the parties were joint owners. She did not have to explain why the property had been put into Miss Tinsleys sole name. If the relationship between them had been that of daughter and mother, and each had contributed to the purchase of a property in the daughters name, the result would have been different, because there would then have been a presumption of advancement in the daughters favour. The mother would in those circumstances have had to rely on the illegal nature of the transaction to rebut the presumption, and her claim would therefore have been defeated by the doctrine of illegality. Lord Browne Wilkinson acknowledged the procedural nature of this approach at [1994] 1 AC 340, 374: The effect of illegality is not substantive but procedural. The question therefore is, In what circumstances will equity refuse to enforce equitable rights which undoubtedly exist. Lord Goff, in the minority, held at p 356 that if A puts property in the name of B intending to conceal As interest for a fraudulent or illegal purpose, neither law nor equity will allow A to recover the property, and equity will not assist him in asserting an equitable interest in it. It made no difference whether As case could be advanced without reference to the underlying purpose. He recognised, at p 363, the resulting hardship and said that he did not disguise his unhappiness at the result, but he did not regard it as appropriate for the courts to introduce a discretion. He considered, at p 364, that reform should be instituted only by the legislature, after a full inquiry by the Law Commission, which would embrace not only the advantages and disadvantages of the present system, but also the likely advantages and disadvantages of a discretionary system. He added that he would be more than happy if a new system could be evolved which was both satisfactory in its effect and capable of avoiding the kind of result which in his judgment flowed from the established rules in cases such as Tinsley v Milligan. Tinsley v Milligan has been the subject of much criticism in this and other jurisdictions, for its reasoning rather than its result, but this is the first time in this jurisdiction that its reasoning has been directly called into question. Two decades have since passed since the decision and it is right to trace the developments which have occurred in that period. Law Commission After the decision in Tinsley v Milligan the Law Commission included the illegality defence in its Sixth Programme of Law Reform (1995) (Law Com 234). It undertook a full inquiry of the kind which Lord Goff envisaged. It published its first consultation paper, Illegal Transactions: The Effect of Illegality on Contracts and Trusts (LCCP 154), in 1999. The responses, and developments in the case law, led the Commission to re consider the problems and its proposals for reform. In 2009 it issued a further public consultation paper, The Illegality Defence: A Consultative Report (LCCP 189). In 2010 it issued its final confirmatory report, The Illegality Defence (Law Com 320). In relation to trust law, it proposed statutory reform and it produced a draft bill. In relation to the law of contract and unjust enrichment, the Commission considered that there were serious problems but that they were capable of being, and could best be, tackled by the process of judicial development. In 2012 the government announced that it did not intend to take forward the Commissions recommendation for statutory reform of the law relating to trusts, because it did not consider reform of this area of the law to be a pressing priority for the government. From its study of the case law and academic writing, the Commission identified the principal policy rationales for the illegality doctrine as 1) furthering the purpose of the rule infringed by the claimants behaviour, 2) consistency, 3) prevention of profit from the claimants wrongdoing, 4) deterrence and 5) maintaining the integrity of the legal system. It observed that these rationales were not mutually exclusive but overlapped to a greater or lesser degree. A sixth possible rationale, punishment, was controversial. The large majority of consultees considered that punishment was a matter for the criminal courts (to which one might add regulators) and should not be invoked in determining parties civil disputes. (LCCP 189, paras 2.5 2.31.) The conclusion that the illegality defence presented serious problems represented the overwhelming view of academic commentators and consultees generally. The Commission analysed the problems under four heads complexity, uncertainty, arbitrariness and lack of transparency. It did not suggest that the problems resulted generally in unsatisfactory outcomes, but it was critical of the way in which they were reached. It said that, on the whole, the case law illustrated the judges threading a path through the various rules and exceptions in order to reach outcomes which for the most part would be regarded as fair between the parties involved, although there were instances of results which the Commission considered to be unduly harsh, for example in unlawful employment cases. Generally, the courts managed to avoid unnecessarily harsh decisions either by creating exceptions to the general rules or by straining the application of the relevant rules on the particular facts so as to meet the justice of the case. Seldom was there an open discussion in the judgments of the considerations which led the court to its decision. (LCCP 189, paras 3.50 3.60.) The Commission considered that Tinsley v Milligan, and cases following it, exemplified the problems of arbitrariness, uncertainty and potential for injustice. The rule applied in that case was arbitrary in that the question whether the illegality affected the recognition or enforcement of the trust depended not on the merits of the parties, nor the policies underlying the illegality defence, but on a procedural issue. Moreover the effect of applying the reliance principle in cases involving the presumption of advancement gave that presumption an overriding importance which it was never intended to have. It led to uncertainty because there was much confusion over what exactly amounted to reliance, particularly when the claimant was seeking to establish an equitable interest under a constructive trust. It had the potential to force the court into unjust decisions because, by focusing on procedural matters, the reliance principle precluded the court from paying attention to the policies that justified the existence of the defence, or taking into account such matters as the seriousness of the illegality and the value of the interest at stake. (Law Com 320, paras 2.13 2.15.) The Commission examined the law in other jurisdictions, European law and European human rights law. In its first consultation paper in 1999 the Commissions proposed recommendation was to introduce statutory reform on the lines of the New Zealand model. The New Zealand Illegal Contracts Act 1970, section 7, provides that the court may grant to any party to an illegal contract such relief by way of restitution, compensation, variation of the contract, validation of the contract in whole or part or for any particular purpose, or otherwise howsoever as the court in its discretion thinks just. In its 2009 consultative report the Commission noted that the operation of this provision had been widely heralded as a success; that it had not created the deluge of litigation that was feared by some commentators; and that this model of reform, with slight variations, had been recommended by the law reform bodies of several other Commonwealth jurisdictions (LCCP 189, para 3.81). Nevertheless, in its 2009 consultative report and in its final report the Commission did not recommend statutory change (except in relation to trusts) for a combination of reasons. Although the proposal for statutory reform in the 1999 consultation paper had been supported by a majority of consultees, a minority had made critical comments which persuaded the Commission that judicial reform was a better way forward, and the Commission found difficulties in drafting a satisfactory statutory model. Most importantly, developments in the case law and the critical responses of consultees led the Commission to conclude that it was open to the courts to develop the law in ways that would render it considerably clearer, more certain and less arbitrary. Among domestic authorities, the Commission referred to the decisions of the House of Lords in Bakewell Management Ltd v Brandwood [2004] 2 AC 519 and Gray v Thames Trains Ltd [2009] AC 1339. Bakewell bought an area of land registered as a common. Owners of neighbouring properties had for years driven across the land to reach the public highway. Bakewell brought an action to prevent them from continuing to do so. The defendants claimed to have acquired rights of way by prescription, but by driving across the land without the owners consent they had committed offences under the Law of Property Act 1925. So to establish their property rights the defendants had to rely on conduct which was criminal. This, Bakewell submitted, they were not entitled to do. Its argument was rejected. The House of Lords held that public policy did not prevent the defendants from acquiring an easement where the landowner could have made a grant which would have removed the criminality of the user. Lord Walker, with whom Lord Bingham and Lady Hale agreed, said at para 60: I do not see this as reintroducing the public conscience test which this House disapproved in Tinsley v Milligan [1994] 1 AC 340. It is merely a recognition that the maxim ex turpi causa must be applied as an instrument of public policy, and not in circumstances where it does not serve any public interest: see for instance National Coal Board v England [1954] AC 403, 419. Gray v Thames Trains Ltd was a case in tort. Mr Gray developed post traumatic stress disorder through being involved in a major railway accident, which caused him to suffer depression and a substantial personality change. He was previously of unblemished character but two years after the accident, and while under medical treatment, he pursued and stabbed to death a man who had stepped in front of his car. His plea of guilty to manslaughter on the ground of diminished responsibility was accepted and he was ordered to be detained in a mental hospital. He sued the train operator for negligence and liability was admitted. His claim for damages included compensation for his loss of liberty, damage to reputation and loss of earnings during his detention. The House of Lords held that public policy precluded him from recovering damages under those heads. The leading opinion was given by Lord Hoffmann, with whose reasoning Lord Phillips (subject to certain additional observations) and Lord Scott agreed. Lord Hoffmann observed, at paras 30 32, that the maxim ex turpi causa expresses not so much a principle but a policy based on a group of reasons, which vary in different situations. The courts had therefore evolved varying rules to deal with different situations. Because questions of fairness and policy were different in different cases and led to different rules, one could not simply extrapolate rules applicable to one situation and apply them to another. It had to be assumed that the sentence was what the criminal court regarded as appropriate to reflect Mr Grays personal responsibility for the crime he had committed. It was therefore right to apply the rule that he could not recover damages for the consequences of the sentence, reflecting an underlying policy based on the inconsistency of requiring someone to be compensated for a sentence imposed because of his personal responsibility for a criminal act. It was also to right to apply a wider rule that you cannot recover damage which is the consequence of your own criminal act, reflecting the idea that it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct. Lord Phillips said, at para 15, that he would reserve judgment as to whether the ex turpi causa maxim should apply if it were clear from the judges sentencing remarks that the claimants offending behaviour played no part in the decision to impose a hospital order, or, where the claimants criminal act demonstrated a need to detain him both for his own treatment and for the protection of the public, if the judge made it clear that he did not believe that the claimant should bear significant personal responsibility for his crime. Lord Brown agreed with Lord Phillips reservations. Lord Rodger said, at paras 78 83, that the civil court must assume that the order made by the criminal court was appropriate to reflect Mr Grays personal responsibility for the crime he had committed. The right approach on the facts of the case was that the court must cleave to the same policy as the criminal court. However, he considered that the approach might well be different if the offence of which he had been convicted was trivial but revealed that he was suffering from a mental disorder, due to the defendants fault, which made a hospital order appropriate. The Law Commission drew from the various judgments a readiness on the part of the judges to examine the policy reasons which justified the application of the illegality defence and to explain why those policies applied to the facts of the case. The Commission also considered the question how far illegal conduct may deprive claimants of rights under European Union law (LCCP 189, paras 3.82 3.89). Some contractual rights are now derived from EC directives. For example, the right to equal pay granted by the Equal Pay Directive (directive 75/117/EEC) is implied as a term into the employment contract. In other cases, such as the Sale of Consumer Goods Directive (directive 99/44/EC), EU law provides remedies that depend on the existence of a contract. The issue may therefore arise whether a national illegality doctrine which prevents a party from enforcing a contract is compatible with the EU law from which the contractual right arose. In the 1990s various breweries let pubs to tenants on terms containing beer ties. These were found to be unenforceable because they breached article 81 (previously article 85) of the European Community Treaty. The issue then arose whether the fact that the tenant had been party to an illegal contract precluded him from claiming damages from the brewery. In Gibbs Mew plc v Gemmell [1999] 1 EGLR 43, 49 the Court of Appeal held that this was so, because English law does not allow a party to an illegal agreement to claim damages from the other party for loss caused to him by being a party to the illegal agreement (per Peter Gibson LJ). In Courage Ltd v Crehan (Case C 453/99) [2002] QB 507, the Court of Appeal referred the question to the European Court of Justice, which took a different view. Advocate General Mischo expressed the view, at paras 38 43, that although the individuals protected by article 81 were primarily third parties (consumers and competitors), a rule which automatically excluded a party to the agreement from the protection of article 81 was too formalistic and does not take account of the particular facts of individual cases; and that a party which was too small to resist the economic pressure imposed on it by the more powerful undertaking had more in common with a third party than with the author of the agreement. (The potential parallel with the relationship in some cases between an employer and an employee is obvious.) The court agreed with the Advocate General. It held that where a contract was liable to restrict or distort competition, community law did not preclude a rule of national law from barring a contracting party from relying on his own illegal actions, if it was established that that party bore significant responsibility for the distortion of competition. In that context the matters to be taken into account by the national court included the respective bargaining power and the conduct of the parties to the agreement in the economic and legal context in which they found themselves. It was for the national court to ascertain whether the party who claimed to have suffered loss through concluding such a contract was in a markedly weaker position than the other party, such as seriously to compromise or even eliminate his freedom to negotiate the terms of the contract. An absolute bar to an action being brought by a party to a contract which violated the competition rules would not advance the full effectiveness of the prohibition contained in the Treaty, but rather the reverse. The effect of the courts decision was not to treat article 81 as intended for the protection of parties who infringed it, as a class, but to treat it as a matter for the national court to determine whether on the facts of a particular case a party should be regarded as sinned against rather than sinning, and therefore entitled to damages for the consequences of the offending provision of the agreement. The potential impact of European law was referred to, obiter, by Mance LJ in Hall v Woolston Hall Leisure Ltd [2001] 1 WLR 225. The claimant was dismissed from her employment as a chef when her employer became aware that she was pregnant. She brought a claim in the industrial tribunal for compensation under the Sex Discrimination Act 1975. The Act pre dated the Equal Treatment Directive (76/207/EEC) but gave effect to its provisions. Mrs Hall succeeded on liability, but it emerged during the remedies hearing that her employer was defrauding the Inland Revenue by falsely pretending that her net salary of 250 per week was her gross salary. She was aware of the fraud, because she was given pay slips which showed her gross pay as 250, deductions of 63.35 and net pay of 186.65. She knew that this was untrue, but when she raised the matter with her employer she was told that this was the way in which they did business. The tribunal held that the contract was tainted by illegality and that she had no right to compensation under the Act. Its decision was upheld by the appeal tribunal but reversed by the Court of Appeal, which held that her acquiescence in the employers conduct was not causally linked with her sex discrimination claim and that public policy did not preclude her from enforcing her statutory claim. Mance LJ observed additionally that the Act should as far as possible be read as providing the same scope of protection as the Directive. Mrs Halls position fell within the wording and purpose of the Directive despite the tribunals finding of her knowledge of the fraud on the Inland Revenue. That case did not involve the direct enforcement of a contractual obligation, but in cases where European Union rights depend on the existence of a contract (for example, in the consumer context), the Law Commission doubted whether the Court of Justice would be content with a system of domestic illegality rules which were formalistic and did not allow room for a proportionate balancing exercise to be carried out on the basis of clear principles of public policy (LCCP 189, para 3.89). Where the terms or performance of a contract involve breach of a legislative provision, it is rare (as the Commission noted) for the statute to state expressly what are to be the consequences in terms of its enforceability. (For an example of an express statutory unenforceability provision, see section 127(3) of the Consumer Credit Act 1974, which arose for consideration in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816.) It is to be noted that in the present case, as Gloster LJ pointed out, section 63(2) of the Criminal Justice Act 1993 stipulated that No contract shall be void or unenforceable by reason only of section 52, presumably because of a concern that if a contract which involved insider dealing contrary to section 52 were void, there could be undesirable consequences for parties down the line. The question whether a statute has the implied effect of nullifying any contract which infringes it requires a purposive construction of the statute, as illustrated by the decision of the Court of Appeal in Hughes v Asset Managers plc [1995] 3 All ER 669 which the Commission commended. If a contract involving prohibited conduct is not void as a matter of statutory construction, the Commission recommended that in deciding whether a claim arising from it should be disallowed by reason of illegality, the court should have regard to the policies that underlie the doctrine. It stressed that it was not advocating a general discretion, but a principled evaluation recognising (as Lord Walker put it in the Bakewell case, at para 60) that the maxim ex turpi causa must be applied as an instrument of public policy and not in circumstances where it would not serve the public interest. The Commission identified a number of potentially relevant factors: most importantly, whether allowing the claim would undermine the purpose of the rule which made the relevant conduct unlawful, and, linked to that question, the causal connection between the illegality and the claim (including how central the illegality was to the contract), the gravity of the conduct of the respective parties and the proportionality of denying the claim. (LCCP 189, para 3.142) The Commission recommended a broadly similar approach to the maxim ex turpi causa in cases of unjust enrichment, tort and enforcement of property rights. The Commission considered that it was within the power of the courts to develop the law in that direction and that there were signs of willingness to do so. The underlying principles were already to be found in the case law and courts were in practice influenced by them in reaching their decisions, in some cases more openly than in others. In relation to the application of the illegality defence to claims of unjust enrichment, the Commission carried out a detailed review in its 1999 consultation paper (LCCP 154, paras 2.32 2.56) and a further review in its 2009 consultative report (LCCP 189, paras 4.1 4.62). An unjust enrichment claim may simply be to unwind the transaction by repayment of moneys paid and restoration of the parties to their original position, or it may take the form of a claim for recompense for benefits provided by one party to the other (a quantum meruit claim). The Commission observed that one might have expected to find that illegality has little role to play as a defence to a claim for unjust enrichment, since the claimant is not seeking to execute the contract. However, after a more liberal start, the courts adopted a much tougher stance, applying the ex turpi causa maxim to such claims unless the claimant could bring himself within certain recognised exceptions. These were a) duress, b) possibly ignorance of a fact or law that rendered the contract illegal, c) possibly membership of a vulnerable class protected by statute and d) locus poenitentiae. The locus poenitentiae exception has given rise to difficult and conflicting case law, which was meticulously analysed in the judgments of the courts below in the present case with different conclusions. I do not propose to repeat their analysis because I do not consider it necessary to do so. The topic has only acquired importance because of the strictness of the basic rule which the courts have applied. Not every case, however, has received such strict treatment. In Mohamed v Alaga & Co [2000] 1 WLR 1815 the Court of Appeal took a more flexible approach. The plaintiff, a Somali translator and interpreter, sued the defendant solicitors for breach of a contract by which he was to introduce Somali refugees to the firm, and assist in the preparation and presentation of their asylum claims, in consideration for a half share of the legal aid fees received by the firm. Alternatively, he claimed payment for his professional services as a translator and interpreter on a quantum meruit. His claim was struck out on the ground that the alleged fee sharing contract contravened rules which had statutory force under the Solicitors Act 1974 and that he was therefore precluded by the doctrine of illegality from claiming payment for services provided under the contract. The Court of Appeal restored the claim for payment on a quantum meruit. Lord Bingham CJ (with whom the other members of the court agreed) differentiated between the claims for breach of contract and quantum meruit. As to the former, he held that the purpose of the prohibition in the statutory rules was the protection of the public, and that it would defeat the purpose of the prohibition if a non solicitor party to the agreement could invoke the courts aid to enforce the agreement. As to the quantum meruit claim, Lord Bingham acknowledged that on one view of the case the plaintiff was seeking to recover part of the consideration payable under an unenforceable contract. But he preferred to view it as a claim for a reasonable reward for professional services rendered. He considered it relevant (obviously to the question of the public interest in permitting or disallowing the claim) that the parties were not equal in blameworthiness. The firm could be assumed to know the rules and the likelihood was that it had acted in knowing disregard of them. By contrast, Lord Bingham had no difficulty in accepting that the plaintiff was unaware of any reason why the firm should not make the agreement, which was a common type of agreement in other commercial fields. Mr Matthew Collings QC for Mr Mirza submitted in this case that Mohamed v Alaga & Co was a one off case and either represents an exception, peculiar to its particular facts, to the general rule that a party is not entitled to payment for services rendered under an illegal contract or was wrongly decided. The Commission considered that the policies which underlie the illegality defence are less likely to come into play where parties are attempting to undo, rather than carry out, an illegal contract. As in the case of contractual enforcement, it recommended that a decision on disallowing a particular restitutionary claim for illegality should be based openly on the policies underlying the defence, taking into account the same sort of factors (such as the relative conduct of the parties and the proportionality of denying the claim). I have said that the Commission examined the law of other jurisdictions. Before considering developments in domestic law since the Commissions final report, it is convenient at this stage to refer to the law in Australia, Canada and the USA. Australia In Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538, the High Court of Australia considered essentially the same issues as in Tinsley v Milligan, which it declined to follow. As the widow of a mariner who had served in World War 1, Mrs Nelson was eligible under the Defence Service Homes Act 1918 to buy a house with the benefit of a subsidy from the Commonwealth of Australia, provided that she did not own or have a financial benefit in another house. She provided the money to buy a house in Bent Street, Sydney, but the transfer was taken in the names of her son and daughter. Their common intention was that Mrs Nelson should be the beneficial owner of the house. The reason for putting the Bent Street property in the names of her children was to enable her to buy another property with the benefit of a subsidy under the Act. This she did. One year later the Bent Street property was sold. By this time Mrs Nelson and her daughter had fallen out, and a dispute arose as to who was entitled to the sale proceeds. Mrs Nelson and her son brought proceedings against the daughter for a declaration that the proceeds were held by the son and daughter in trust for their mother. The daughter opposed the claim and sought a declaration that she had a beneficial interest. Under Tinsley v Milligan the daughter would have succeeded, because the illegal purpose of the parties in arranging for the property to be transferred into the names of the children would have prevented Mrs Nelson from rebutting the presumption of advancement in their favour. The High Court unanimously rejected that approach. The majority (Deane, McHugh and Gummow JJ) held that the court should use its equitable jurisdiction to grant the declaration sought by Mrs Nelson, with the proviso that it should be subject to terms designed to ensure that the benefit wrongly obtained on the purchase of the second property should be repaid to the Commonwealth. The minority (Dawson and Toohey JJ) would have made the declaration without any such proviso, since the Commonwealth was not a party to the proceedings and should in their view be left to decide what action, if any, it wished to take. Toohey J said at pp 595 597: Once we are in the realm of public policy we are in a rather shadowy world. It is perhaps the more shadowy here because Mrs Nelson is not asking the court to enforce a contract but rather to give effect to the resulting trust which would ordinarily arise once the presumption of advancement has been rebutted. To allow the result in such a situation to be determined by the procedural aspects of a claim for relief is at odds with the broad considerations necessarily involved in questions of public policy. Although the public policy in discouraging unlawful acts and refusing them judicial approval is important, it is not the only relevant policy consideration. There is also the consideration of preventing injustice and the enrichment of one party at the expense of the other (St John Shipping Corpn v Joseph Rank Ltd [1957] 1 QB 267, 288 289, per Devlin J). McHugh J, at p 609, described as unsatisfactory a doctrine of illegality that depended upon the state of the pleadings. He said at p 611: The doctrine of illegality expounded in Holman was formulated in a society that was vastly different from that which exists today. It was a society that was much less regulated. With the rapid expansion of regulation, it is undeniable that the legal environment in which the doctrine of illegality operates has changed. The underlying policy of Holman is still valid today the courts must not condone or assist a breach of statute, nor must they help to frustrate the operation of a statute However, the Holman rule, stated in the bald dictum: No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act is too extreme and inflexible to represent sound legal policy in the late twentieth century even when account is taken of the recognised exceptions to this dictum. McHugh J went on to suggest that except in a case where a statute made rights arising out of a particular type of transaction unenforceable in all circumstances, a court should not refuse to enforce legal or equitable rights on the ground of illegality if to do so would be disproportionate to the seriousness of the conduct or if it would not further the purpose of the statute. He said at 612 613: It is not in accord with contemporaneous notions of justice that the penalty for breaching a law or frustrating its policy should be disproportionate to the seriousness of the breach. The seriousness of the illegality must be judged by reference to the statute whose terms or policy is contravened. It cannot be assessed in a vacuum. The statute must always be the reference point for determining the seriousness of the illegality. McHugh Js approach was cited with approval by a majority of the High Court in Fitzgerald v F J Leonhardt Pty Ltd [1997] HCA 17; (1997) 189 CLR 215. Noting the criminal sanctions which were available under the Act (imprisonment for up to two years) and the ability of the Commonwealth to recover any payments wrongly obtained by Mrs Nelson, the court did not consider that it should impose a further sanction by refusing to enforce her equitable rights, particularly when such a refusal would result in a penalty out of all proportion to the seriousness of her conduct (pp 570 571 per Deane and Gummow JJ, 590 591 per Toohey J and 616 617 per McHugh J). Canada In Hall v Hebert [1993] 2 SCR 159 the owner of a car allowed a passenger to drive it in the knowledge that he had drunk a large amount of beer during the course of the evening. The car overturned and the driver suffered head injuries. The Supreme Court held that the drivers claim against the owner in negligence was not barred by illegality, but that there should be a reduction in damages for contributory negligence. The judgment of the majority was given by McLachlin J. She held that the courts should be allowed to bar recovery in tort on the ground of the plaintiffs illegal or immoral conduct only in very limited circumstances. The basis of the power lay in the duty of the courts to preserve the integrity of the legal system and it was exercisable only where that concern was in issue. It was in issue where a damage award in a civil suit would 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. In such instances the law refused to give by its right hand what it took away by its left hand. McLachlin J emphasised the importance of defining what was meant by profit when speaking of the plaintiff profiting from his or her own wrong. It meant profit in the narrow sense of a direct pecuniary award for an act of wrongdoing. Compensation for something other than wrongdoing, such as for personal injury, would not amount to profit in that sense. Compensation for the plaintiffs injuries arose not from the illegal character of his conduct, but from the damage caused to him by the negligent act of the owner in letting him drive. It represented only the value of, or substitute for, the injuries he had suffered by the fault of another. He would get nothing for being engaged in illegal conduct. McLachlin J accepted that there might be cases where a claim should be barred from tort recovery which did not fall within the category of profit, in order to prevent stultification of the criminal law or the evasion of a criminal penalty, but the underlying principle was that the use of the power to deny recovery on the ground of illegality was justified only where the claim would introduce inconsistency into the fabric of the law. In Still v Minister of National Revenue (1997) 154 DLR (4th) 229 an American citizen lawfully entered Canada and applied for permanent residence status. Pending consideration of her application, acting in good faith, she accepted employment but did so without obtaining a work permit as required by the Immigration Act 1985. She was subsequently laid off and submitted a claim for benefits under the Unemployment Insurance Act 1985. Her claim was rejected on the ground that the employment on which she relied in order to found her claim was prohibited under the Immigration Act. She appealed successfully to the Federal Court of Appeal. The judgment of the court was given by Robertson JA. The court accepted that her employment without a work permit was expressly prohibited by the Immigration Act. It acknowledged that under what it described as the classical model of the illegality doctrine, the fact that the applicant acted in good faith was irrelevant; her employment under an illegal contract could not constitute insurable employment for the purposes of the Unemployment Insurance Act. However, it said at para 24 that in recognition of the rigidity and oft times unfair application of the classical illegality doctrine, the courts had developed several ways in which a party may be relieved of the consequences of illegality where appropriate. The difficulty with those exceptions arose from the legal manoeuvring that must take place to arrive at what is considered a just result. The court examined, at paras 25 36, a line of authorities of the Ontario courts which showed the courts turning from the classical model towards a modern approach. It expressed the view, at para 42, that the classical model had lost its persuasive force, and was now honoured more in the breach than in its observance through the proliferation of so called judicial exceptions to the rule. The new approach involved an examination of the purpose underlying the relevant prohibition, and its rationale was explained by McLachlin J in Hall v Hebert. After citing McLachlin Js judgment in Hall v Hebert, the court said at para 49: As the doctrine of illegality rests on the understanding that it would be contrary to public policy to allow a person to maintain an action on a contract prohibited by statute, then it is only appropriate to identify those policy considerations which outweigh the applicants prima facie right to unemployment insurance benefits. While on the one hand we have to consider the policy behind the legislation being violated, the Immigration Act, we must also consider the policy behind the legislation which gives rise to the benefits that have been denied, the Unemployment Insurance Act. The court proceeded to consider the objectives underlying each of the two Acts. As to the policy consideration that a person should not benefit from his or her own wrong, the court regarded it as a critically significant fact that she had not deliberately broken the law but acted in good faith, and it noted that during her employment both the applicant and her employer had contributed to the unemployment insurance fund. Taking account of the objectives underlying each Act and the facts of the case, it concluded that denial of the application was not required in order to preserve the integrity of the legal system and would be disproportionate to the breach involved in failing to have obtained a work permit. The American Law Institutes Restatement (2nd) of Contracts (1981) states at para 178(1): A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement in such terms. Nizamuddowlah v Bengal Cabaret Inc (1977) 399 NYS 2d 854 provides a practical example in the case of a devious and oppressive employer. The central defendant (the effective owner of the company named as first defendant) met the plaintiff in Bangladesh and offered to employ him at the defendants restaurant in New York City. The plaintiff was to work for an initial period of three months without payment, after which he was to be paid a waiters salary. The plaintiff accepted the offer. The defendant arranged for the plaintiffs travel and entry to the USA on a visitors visa, and he also promised to obtain a resident visa or green card for him. The plaintiff worked for the defendant for 20 months, but he received no payment despite several demands. He also made repeated inquiries about his green card, but the defendant persistently stalled him. The plaintiff eventually managed to obtain a green card through his own efforts and sued the defendant to recover wages under the Minimum Wage Act. The defendant sought the dismissal of the action on the ground that the contract was illegal. By working in the USA before he obtained a green card the plaintiff violated the immigration laws, and the judge was not prepared to accept his plea of ignorance, since he was warned in his application form for a visitors visa that gainful employment would constitute a breach of his visa conditions. The judge concluded that he had willingly fallen in with the defendants proposal because of his strong desire to emigrate to the USA. The judge identified the public harm liable to result from the type of conduct exposed by the case: employment of aliens such as the plaintiff in times of high unemployment deprived citizens and legally admitted aliens of jobs; their employment on substandard terms could depress wages and working conditions; and it could diminish the effectiveness of labour unions. However, the judge found that the defendant was the main perpetrator, intent on evading and taking advantage of the immigration laws. He said that knowing about the immigration laws, and aware that a party to an illegal contract could not ask a court to help him to carry out his illegal objective, the defendant ran his enterprise without fairly compensating his employees. The judge concluded that the equitable course was that the plaintiff should be paid on the basis of unjust enrichment, and he calculated the amount of the award by reference to the statutory minimum wage. The New York Supreme Court, Appellate Division, upheld the judgment at (1979) 415 NYS 2d 685. Observing that the Minimum Wage Act contained no indication of a legislative intent to protect only American workers, the court said: Even illegal aliens have the right to pursue civil suits in our courts, and the practice of hiring such aliens, using their services and disclaiming any obligation to pay wages because the contract is illegal is to be condemned. The law provides penalties for aliens who obtain employment in breach of their visa obligations, but deprivation of compensation for labor is not warranted by any public policy consideration involving the immigration statutes. Developments since the report of the Law Commission The Court of Appeal supported and followed the approach of the Law Commission in Les Laboratoires Servier v Apotex Inc [2012] EWCA Civ 593, [2013] Bus LR 80 and ParkingEye Ltd v Somerfield Stores Ltd [2013] QB 840. In the latter case ParkingEye contracted to provide a system of automated monitoring of car parking at Somerfields supermarkets. The system recorded vehicle registration numbers and customers would be charged for staying beyond a set period. The contract was to be for an initial term of 15 months and ParkingEyes remuneration was to come from the charges levied over that period. Overstayers were to be sent letters of demand in a standard form agreed between the parties in advance of the conclusion of the contract. If the first demand did not result in payment, it was to be followed by a series of further demands in stronger terms. The third pro forma letter was deceptive because it falsely represented that ParkingEye had the authority and intention to issue proceedings against the customer if payment was not made within a stipulated period. Six months into the contract Somerfield repudiated it for reasons unconnected with the letters of demand. By that time the monitoring system had been installed at 17 of its stores. ParkingEyes claim for damages was met with a defence which included a plea of illegality based on the intended use of deception in the performance of the contract. The trial judge rejected the defence and awarded ParkingEye damages of 350,000 for loss of profits caused by Somerfields repudiatory breach. The Court of Appeal upheld his decision. The legally objectionable letter was only a small part of the intended performance of the contract and was not essential to it. The judge had found that ParkingEye did not appreciate that the letter would be legally objectionable when the parties agreed on its form, and that, if someone had pointed the matter out, the letter would have been changed. When its objectionable nature occurred to Somerfield, the proper and reasonable course would have been for Somerfield to raise the matter with ParkingEye and continue to honour the contract, so long as ParkingEye made the necessary alteration and performed the contract in a lawful manner, as it would have done. The court held that denial of ParkingEyes claim was not justified by the policies underlying the doctrine of illegality and would have led to a disproportionate result. In that case I said at paras 52 53: Rather than having over complex rules which are indiscriminate in theory but less so in practice, it is better and more honest that the court should look openly at the underlying policy factors and reach a balanced judgment in each case for reasons articulated by it. 53. This is not to suggest that a list of policy factors should become a complete substitute for the rules about illegality in the law of contract which the courts have developed, but rather that those rules are to be developed and applied with the degree of flexibility necessary to give proper effect to the underlying policy factors. On the relevance of ParkingEyes state of mind, I referred at para 66 to Waugh v Morris (1873) LR 8 QB 202. The case arose from a charter party under which a cargo of hay was to be shipped from Trouville to London. On arrival in London the master learned that a few months before the conclusion of the contract an order had been published under the Contagious Diseases (Animals) Act 1869 making it illegal to land hay brought from France. The master refrained from landing the cargo and, after some delay, the charterer transhipped and exported it. Meanwhile the contractual laydays had expired and the owner claimed for detention. The charterer resisted the claim on the ground that the contract was void for illegality, because its purpose was the delivery of the consignment to London, which was prohibited by law. The defence was rejected. Giving the judgment of the court, Blackburn J said that all that the owner had bargained for was that on the ships arrival in London the freight should be paid and the cargo unloaded. He contemplated that it would be landed and thought that this would be legal; but if he had thought of the possibility of the landing being prohibited, he would probably and rightly have expected that the charterer would not violate the law. Blackburn J said at 208: We quite agree, that, where a contract is to do a thing which cannot be performed without a violation of the law it is void, whether the parties knew the law or not. But we think, that in order to avoid a contract which can be legally performed, on the ground that there was an intention to perform it in an illegal manner, it is necessary to show that there was the wicked intention to break the law; and, if this be so, the knowledge of what the law is becomes of great importance. Since the decisions of the Court of Appeal in Les Laboratoires Servier v Apotex Inc and the ParkingEye case, there have been three decisions by the Supreme Court involving the doctrine of illegality. The first was Hounga v Allen [2014] 1 WLR 2889, a case with features similar to Nizamuddowlah v Bengal Cabaret Inc. Miss Hounga was a 14 year old Nigerian. Mr and Mrs Allen offered to employ her as a home help in the UK in return for schooling and 50 per month. With their help she entered the UK on false identity documents and obtained a six months visitors visa. The plan was masterminded by Mrs Allens brother who lived in Lagos. He drafted an affidavit for Miss Hounga to swear, giving her surname as that of Mrs Allens mother and a false date of birth. The affidavit led to the issue of a passport in that name. Mrs Allens family then arranged for Miss Hounga to be taken to the British High Commission in Lagos, where she produced a document purporting to be an invitation from Mrs Allens mother pretending to invite her granddaughter to visit her in the United Kingdom. The High Commission was duped into issuing her with entry clearance. Mrs Allens brother then bought a ticket for Miss Hounga to travel to England. On arrival at Heathrow Miss Hounga confirmed to an immigration officer that the purpose of her visit was to stay with her grandmother. Subsequently a psychologist reported that Miss Hounga, who was illiterate, had low cognitive functioning, a learning disability and a developmental age much lower than her chronological age. Nevertheless she knew that she had entered the UK on false pretences, that it was illegal for her to remain beyond six months and that it was illegal for her to take employment in the UK. After her arrival Miss Hounga lived at the Allens home, looking after their children and doing housework. She was not enrolled in a school or paid any wages. She was told by Mrs Allen that if she were found by the police she would be sent to prison. This caused her extreme concern. Mrs Allen also subjected her to serious physical abuse. After 18 months an incident occurred in which Mrs Allen beat Miss Hounga, threw her out of the house and poured water over her. Miss Hounga slept that night in the Allens garden in wet clothes. Next day they refused to let her back in, and she made her way to a supermarket car park, where she was found and taken to the social services department of the local authority. Miss Hounga brought claims against the Allens in the employment tribunal for unfair dismissal, breach of contract and unpaid wages. They were dismissed on the ground that her contract of employment was unlawful. She appealed unsuccessfully to the appeal tribunal and she did not seek to appeal further. Neither the Court of Appeal nor the Supreme Court therefore had occasion to consider whether she was entitled to be paid for the services which she rendered on a quantum meruit (by analogy with cases such as Mohamed v Alaga & Co and Nizamuddowlah v Bengal Cabaret Inc et al). Miss Hounga also claimed to have been the victim of the statutory tort of unlawful discrimination under the Race Relations Act 1976, section 4(2)(c), in relation to her dismissal. The tribunal found that she had been dismissed because of her vulnerability consequent upon her immigration status. She was therefore the victim of unlawful discrimination and she was awarded compensation for her resulting injury to feelings. The tribunals order was set aside by the Court of Appeal, which held that the claim was tainted by the illegal nature of her employment and that for the court to uphold it would be to condone the illegality, but it was restored by the Supreme Court. The leading judgment was given by Lord Wilson, with whom Lady Hale and Lord Kerr agreed. Lord Wilson did not consider that the solution of the case lay either in asking whether Miss Allen needed to rely on an illegal contract or in asking whether there was an inextricable link between the illegality to which she was a party and her claim. At the heart of the judgment Lord Wilson set out his approach in para 42: The defence of illegality rests on 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 on 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 the application of the defence would run counter? On the first question, drawing on the judgment of McLachlin J in Hall v Hebert, Lord Wilson addressed the policy consideration of preserving the integrity of the legal system and not allowing persons to profit from their illegal conduct. He concluded that an award of compensation for damage to Miss Houngas feelings was not a form of profit from her employment; it did not permit evasion of a penalty prescribed by the criminal law; and it did not compromise the integrity of the legal system. Conversely, he said that application of the defence could encourage those in the situation of Mrs Allen to believe that they could discriminate against people like Miss Hounga with impunity and could thereby compromise the integrity of the legal system. On the second question, Lord Wilson said that the Court of Appeals decision ran strikingly counter to the public policy against forms of people trafficking and in favour of the protection of its victims. Weighing the policy considerations, he concluded that insofar as any public policy existed in favour of applying the illegality defence, it should give way to the public policy to which its application would be an affront. Hounga v Allen was a case in tort, but Lord Wilsons approach to the illegality defence was applied by the Court of Appeal in R (Best) v Chief Land Registrar [2016] QB 23, where the issue was whether a claim to be registered under the Land Registration Act 2002 (LRA) as the proprietor of a residential building by adverse possession was barred by illegality. The circumstances were that part of the relevant period of possession involved the commission of trespass which constituted a criminal offence under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA). Sales LJ (with whom McCombe LJ agreed) expressed the view, at para 51, that the best guidance on the relevant analytical framework was to be found in Lord Wilsons judgment (from which he quoted para 42 and the passage which followed it). Applying that guidance, he examined the public policy considerations underlying the provisions of the LRA governing acquisition of title to land and the public policy considerations underlying section 144 of LASPOA. He concluded that the mischief at which section 144 was aimed was far removed from the intended operation of the law of adverse possession and that public policy did not preclude the claim for registration. After Hounga v Allen came the decision of the Supreme Court in Les Laboratoires Servier v Apotex Inc [2015] AC 430. The issue of illegality arose in the context of a claim to enforce a cross undertaking in damages given as a condition of an interlocutory injunction in proceedings which ultimately failed. The claim was therefore akin to a claim in contract. The facts were somewhat complicated but do not matter for present purposes. The court held unanimously that the Court of Appeal had reached the right result, but the majority of this court expressed the view, at para 21, that the Court of Appeals decision could not possibly be justified by the considerations put forward by that court, which had in broad terms followed the approach commended by the Law Commission. I expressed a different view, at para 62, observing that the Court of Appeal had adopted a similar approach to that taken by this court in Hounga v Allen. After Les Laboratoires Servier v Apotex Inc came Bilta (UK) Ltd v Nazir (No 2) [2016] AC 1. There was a sharp division of opinion about the proper approach to the defence illegality between, on the one hand, a strictly rule based approach and, on the other hand, a more flexible approach by which the court would look at the policies underlying the doctrine and decide whether they militated in favour of the defence, taking into account a range of potentially relevant factors. The majority did not consider it necessary to resolve the difference in that case, since it did not affect the result, but Lord Neuberger said at para 15 that it needed to be addressed as soon as appropriately possible. The law at a crossroads In his Restatement of the English Law of Contract (Oxford University Press, 2016), pp 221 222, Professor Andrew Burrows explained the difficulty of attempting to state the law in relation to illegality: Leaving aside the law on what one can loosely label statutory illegality [cases where a statute makes a contract or a contract term unenforceable by either or one party] the law on the effect of illegality in contract (which one may loosely refer to as the common law of illegality) is in a state of flux Traditionally, two Latin maxims have often been referred to without greatly illuminating the legal position: ex turpi causa non oritur actio (no action arises from a disgraceful cause) and in pari delicto potior est conditio defendentis (where both parties are equally in the wrong the position of the defendant is the stronger). As previously understood, illegality in the law of contract as developed from those Latin maxims was governed by a series of rules which tended to distinguish, for example, between illegality in formation and illegality in performance. Unfortunately, commentators and courts have found it very difficult to state those rules with confidence and precision. Hence the textbook treatments not only differ from each other but are characterised by long winded attempts to explain the law. Sharp propositions when offered by the courts or the books have to be qualified by reference to cases or hypothetical examples that do not fit those rules; and convincing justifications of those rules have proved elusive. More recently, therefore, and in line with a similar trend in respect of illegality as a defence in tort, some courts have favoured greater flexibility culminating in a range of factors approach aimed at achieving a proportionate response to contractual illegality in preference to the traditional rule based approach. Since the law was at a crossroads, Professor Burrows set out alternative possible formulations of a rule based approach and a range of factors approach. One possible version of a rule based approach, at p 224, which Tinsley v Milligan and Les Laboratoires Servier v Apotex Inc could be interpreted as supporting, would be a single master rule based on reliance: If the formation, purpose or performance of a contract involves conduct that is illegal (such as a crime) or contrary to public policy (such as a restraint of trade), a party cannot enforce the contract if it has to rely on that conduct to establish its claim. An alternative rule based formulation, at p 225, saw the reliance rule as only one of a number of rules and essentially confined to the creation of property rights. On this approach a formulation of the rules might be: Rule 1. A contract which has as its purpose, or is intended to be performed in a manner that involves, conduct that is illegal (such as a crime) or contrary to public policy (such as a restraint of trade) is unenforceable (a) by either party if both parties knew of that purpose or intention; or (b) by one party if only that party knew of that purpose or intention. Rule 2. If rule 1 is inapplicable because it is only the performance of a contract that involves conduct that is illegal or contrary to public policy, the contract is unenforceable by the party who performed in that objectionable way but is enforceable by the other party unless that party knew of, and participated in, that objectionable performance. Rule 3. Proprietary rights created by a contract that involves conduct that is illegal or contrary to public policy will not be recognised unless the claimant can establish the proprietary rights without reliance on that conduct. Professor Burrows identified six criticisms of those rules and, more generally, of a rule based approach to illegality. First, the difficulty with the Tinsley v Milligan reliance rule, whether as a master rule or as a rule restricted to cases involving the assertion of proprietary rights, was that it could produce different results according to procedural technicality which had nothing to do with the underlying policies. The decision of the Court of Appeal in Collier v Collier [2002] EWCA 1095; [2002] BPIR 1057 provides a good illustration. A father granted a lease of property to his daughter to hold on trust for him in order to deceive creditors. His claim to beneficial title was rejected on the ground of illegality, because it was held that he needed to rely on the illegal purpose in order to rebut the presumption of illegality which arose in favour of the daughter. Mance LJ considered at paras 105 106 what appeared to be the distinction introduced by Tinsley v Milligan between a beneficial interest which could be established by some objectively provable and apparently neutral fact and a beneficial interest arising only from an agreement made for an unlawful purpose. He described the effect as little more than cosmetic where the court was perfectly well aware of the close involvement of both parties in the illegality. Tempted as he was to adopt a severely limited view of the meaning of reliance (encouraged by the judgment of Dawson J in Nelson v Nelson), he rightly did not consider that it was open to the Court of Appeal on the authorities to do so. He expressed strong sympathy with the criticisms of the law expressed by the Law Commission, and he concluded at para 113 that he had no liking for the result which the court was compelled to reach. Second, the difficulties with rule 1 were illustrated by the ParkingEye case. The illegality in that case went to the contract as formed, because from the outset it was intended to send out to customers a form of letter of demand which contained some deliberate inaccuracies. The rule as stated did not permit differentiation between minor and serious illegality or between peripheral and central illegality. To have deprived ParkingEye of what would otherwise have been a contractual entitlement to damages of 350,000 would have been disproportionate. Moreover, as Sir Robin Jacob pointed out in that case, at paras 33 34, there was something odd about a rule which differentiated according to whether the intention was formed before or after the contract was made. Third, as with the criticism of rule 1, the reference in rule 2 to performance that involved illegal conduct drew no distinction between serious criminality and relatively minor breach of a statutory regulation. Fourth, although a purported advantage of firm rules is greater certainty, the cases do not always fit the rules because courts have often sought ways around them when they do not like the consequence. The flexible approach would not only produce more acceptable results, but would in practice be no less certain than the rule based approach. Fifth, although Lord Mansfield made it clear in Holman v Johnson that the illegality defence operates as a rule of public policy and is not designed to achieve justice between the parties, that does not mean that any result, however arbitrary, is acceptable. The law should strive for the most desirable policy outcome, and it may be that it is best achieved by taking into account a range of factors. Sixth, although it may be argued that if there are deficiencies in the traditional rules, the way forward is to refine the rules to remove the deficiencies by appropriate exceptions, that task is one which has never been satisfactorily accomplished. The reason is that there are so many variables, for example, in seriousness of the illegality, the knowledge and intentions of the parties, the centrality of the illegality, the effect of denying the defence and the sanctions which the law already imposes. To reach the best result in terms of policy, the judges need to have the flexibility to consider and weigh a range of factors in the light of the facts of the particular case before them. suggested, at pp 229 230, that a possible formulation would read as follows: If the formation, purpose or performance of a contract involves conduct that is illegal (such as a crime) or contrary to public policy (such as a restraint of trade), the contract is unenforceable by one or either party if to deny enforcement would be an appropriate response to that conduct, taking into account where relevant If a range of factors approach were preferred, Professor Burrows (a) how seriously illegal or contrary to public policy the conduct was; (b) whether the party seeking enforcement knew of, or intended, the conduct; (c) how central to the contract or its performance the conduct was; (d) how serious a sanction the denial of enforcement is for the party seeking enforcement; (e) whether denying enforcement will further the purpose of the rule which the conduct has infringed; (f) whether denying enforcement will act as a deterrent to conduct that is illegal or contrary to public policy; (g) whether denying enforcement will ensure that the party seeking enforcement does not profit from the conduct; (h) whether denying enforcement will avoid inconsistency in the law thereby maintaining the integrity of the legal system. Professor Burrows noted that the final factor is capable of a wider or narrower approach, depending on what one understands by inconsistency. The reference to what is an appropriate response brings to the surface the moral dimension underlying the doctrine of illegality, which inevitably influences the minds of judges and peeps out in their judgments from time to time. Tinsley v Milligan caused disquiet to Lord Goff and others precisely because its reasoning jarred with their sense of what was just and appropriate. The way forward In Yarmouth v France (1887) 19 QBD 647, 653, Lord Esher MR said: I detest the attempt to fetter the law by maxims. They are almost invariably misleading: they are for the most part so large and general in their language that they always include something which really is not intended to be included in them. In Lissenden v C A V Bosch Ltd [1940] AC 412, 435, Lord Wright quoted Lord Eshers words and added: Indeed these general formulae are found in experience often to distract the courts mind from the actual exigencies of the case, and to induce the court to quote them as offering a ready made solution. The maxims ex turpi causa and in pari delicto are no exception. It is interesting that, according to Professor JK Grodecki, Lord Mansfield himself was conscious that if the brocard in pari delicto was to be a beneficial rule of jurisprudence it should not be allowed to become rigid and inflexible: In pari delicto potior est conditio defendentis (1955) 71 LQR 254, 258. Professor Grodecki gave examples including Smith v Bromley (1760) 2 Doug KB 696n; 99 ER 441 and Walker v Chapman (1773) Lofft 342, 98 ER 684. In Smith v Bromley (the earliest case in which the maxim in pari delicto appears to have been used) Lord Mansfield granted recovery to the plaintiff of money paid by the plaintiff to procure her brothers discharge from bankruptcy, which was an illegal consideration. As he explained, Lord Mansfield, at p 698, regarded it as in the public interest that the plaintiff should be repaid notwithstanding the illegal purpose of the payment: Upon the whole, I am persuaded it is necessary, for the better support and maintenance of the law, to allow this action; for no man will venture to take, if he knows he is liable to refund. In Walker v Chapman the defendant, who was a page to the King, offered to take a bribe of 50 from the plaintiff in return for securing him a place in the Customs. The bribe was paid but the plaintiff did not obtain the appointment and so he sued for the return of his money. It was argued for the defendant that no action would lie, the plaintiff being party to an iniquitous contract, and that the law would not suffer a party to draw justice from a foul fountain. Lord Mansfield rejected the defence, distinguishing between a claim to overturn an illegal contract and a claim to obtain benefit from it. Later judges have taken a different and stricter approach. Looking behind the maxims, there are two broad discernible policy reasons for the common law doctrine of illegality as a defence to a civil claim. One is that a person should not be allowed to profit from his own wrongdoing. The other, linked, consideration is that the law should be coherent and not self defeating, condoning illegality by giving with the left hand what it takes with the right hand. Lord Goff observed in the Spycatcher case, Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 286, that the statement that a man shall not be allowed to profit from his own wrong is in very general terms, and does not of itself provide any sure guidance to the solution of a problem in any particular case. In Hall v Hebert [1993] 2 SCR 159 McLachlin J favoured giving a narrow meaning to profit but, more fundamentally, she expressed the view (at 175 176) that, as a rationale, the statement that a plaintiff will not be allowed to profit from his or her own wrongdoing does not fully explain why particular claims have been rejected, and that it may have the undesirable effect of tempting judges to focus on whether the plaintiff is getting something out of the wrongdoing, rather than on the question whether allowing recovery for something which was illegal would produce inconsistency and disharmony in the law, and so cause damage to the integrity of the legal system. That is a valuable insight, with which I agree. I agree also with Professor Burrows observation that this expression leaves open what is meant by inconsistency (or disharmony) in a particular case, but I do not see this as a weakness. It is not a matter which can be determined mechanistically. So how is the court to determine the matter if not by some mechanistic process? In answer to that question I would say that one cannot judge whether allowing a claim which is in some way tainted by illegality would be contrary to the public interest, because it would be harmful to the integrity of the legal system, without a) considering the underlying purpose of the prohibition which has been transgressed, b) considering conversely any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and c) keeping in mind the possibility of overkill unless the law is applied with a due sense of proportionality. We are, after all, in the area of public policy. That trio of necessary considerations can be found in the case law. The relevance of taking into account the purpose of the relevant prohibition is self evident. The importance of taking account of the relevant statutory context is illustrated by Hardy v Motor Insurers Bureau [1964] 2 QB 745. The Road Traffic Act 1960 required a motorist to be insured against the risk of causing death or personal injury through the use of a vehicle on a road, but a line of authorities established that a contract to indemnify a person against the consequences of a deliberate criminal act is unenforceable. The plaintiff, a security officer at a factory, was injured when he was trying to question the driver of a van, who drove off at speed and dragged him along the road. The driver was convicted of unlawfully causing grievous bodily harm. The driver being uninsured, the plaintiff sued the defendant under an agreement between the defendant and the Minister of Transport, by which the defendant agreed to satisfy any judgment against a motorist for a liability required to be covered under a motor insurance policy. The defendant relied on the maxim ex turpi causa, arguing that a contract purporting to insure the driver against his own deliberate criminal conduct would have been unlawful. The defence was rejected. Diplock LJ said at p 767: The rule of law on which the major premise is based ex turpi causa non oritur actio is concerned not specifically with the lawfulness of contracts but generally with the enforcement of rights by the courts, whether or not such rights arise under contract. All that the rule means is that the courts will not enforce a right which would otherwise be enforceable if the right arises out of an act committed by the person asserting the right (or by someone who is regarded in law as his successor) which is regarded by the court as sufficiently anti social to justify the courts refusing to enforce that right. He observed that the purpose of the relevant statutory provision was the protection of persons who suffered injury on the road by the wrongful acts of motorists. This purpose would have been defeated if the common law doctrine of illegality had been applied so as to bar the plaintiffs claim. Hounga v Allen and R (Best) v Chief Land Registrar are illustrations of cases in which there were countervailing public interest considerations, which needed to be balanced. As to the dangers of overkill, Lord Wright gave a salutary warning in Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277, 293: 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. To similar effect Devlin J questioned whether public policy is well served by driving from the seat of judgment everyone who has been guilty of a minor transgression in St John Shipping Corpn v Joseph Rank Ltd [1957] 1 QB 267, 288 289. In Saunders v Edwards [1987] 1 WLR 1116, 1134, Bingham LJ said Where issues of illegality are raised, the courts have (as it seems to me) 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. In considering whether it would be disproportionate to refuse relief to which the claimant would otherwise be entitled, as a matter of public policy, various factors may be relevant. Professor Burrows list is helpful but I would not attempt to lay down a prescriptive or definitive list because of the infinite possible variety of cases. Potentially relevant factors include the seriousness of the conduct, its centrality to the contract, whether it was intentional and whether there was marked disparity in the parties respective culpability. The integrity and harmony of the law permit and I would say require such flexibility. Part of the harmony of the law is its division of responsibility between the criminal and civil courts and tribunals. Punishment for wrongdoing is the responsibility of the criminal courts and, in some instances, statutory regulators. It should also be noted that under the Proceeds of Crime Act 2002 the state has wide powers to confiscate proceeds of crime, whether on a conviction or without a conviction. Punishment is not generally the function of the civil courts, which are concerned with determining private rights and obligations. The broad principle is not in doubt that the public interest requires that the civil courts should not undermine the effectiveness of the criminal law; but nor should they impose what would amount in substance to an additional penalty disproportionate to the nature and seriousness of any wrongdoing. ParkingEye is a good example of a case where denial of claim would have been disproportionate. The claimant did not set out to break the law. If it had realised that the letters which it was proposing to send were legally objectionable, the text would have been changed. The illegality did not affect the main performance of the contract. Denial of the claim would have given the defendant a very substantial unjust reward. Respect for the integrity of the justice system is not enhanced if it appears to produce results which are arbitrary, unjust or disproportionate. The courts must obviously abide by the terms of any statute, but I conclude that it is right for a court which is considering the application of the common law doctrine of illegality to have regard to the policy factors involved and to the nature and circumstances of the illegal conduct in determining whether the public interest in preserving the integrity of the justice system should result in denial of the relief claimed. I put it in that way rather than whether the contract should be regarded as tainted by illegality, because the question is whether the relief claimed should be granted. I agree with the criticisms made in Nelson v Nelson and by academic commentators of the reliance rule as laid down in Bowmakers and Tinsley v Milligan, and I would hold that it should no longer be followed. Unless a statute provides otherwise (expressly or by necessary implication), property can pass under a transaction which is illegal as a contract: Singh v Ali [1960] AC 167, 176, and Sharma v Simposh Ltd [2013] Ch 23, paras 27 44. There may be circumstances in which a court will refuse to lend its assistance to an owner to enforce his title as, for example, where to do so would be to assist the claimant in a drug trafficking operation, but the outcome should not depend on a procedural question. In Bowmakers [1945] 1 KB 65 the claim was for conversion of goods which had been obtained by the plaintiffs and supplied to the defendant under transactions which were assumed to be tainted by illegality. The Court of Appeal rightly said, at p 71, that a mans right to possess his own chattels will as a general rule be enforced against one who, without any claim of right, is detaining them or has converted them to his own use, even though it may appear either from the pleadings, or in the course of the trial, that the chattels in question came into the defendants possession by reason of an illegal contract between himself and the plaintiff, but it added the qualifying words provided that the plaintiff does not seek, and is not forced, either to found his claim on the illegal contract or to plead its illegality in order to support his claim. The objections to the proviso have already been identified. It makes the question whether the court will refuse its assistance to the claimant to enforce his title to his property depend on a procedural question and it has led to uncertain case law about what constitutes reliance. The court ended its judgment, at p 72, by saying: We are satisfied that no rule of law, and no considerations of public policy, compel the court to dismiss the plaintiffs claim in the case before us, and to do so would be, in our opinion, a manifest injustice. That conclusion, rather than the answer to a procedural question, should have been the end of the illegality defence, since it is based on public policy. In Tinsley v Milligan, even if Miss Milligan had not owned up and come to terms with the DSS, it would have been disproportionate to have prevented her from enforcing her equitable interest in the property and conversely to have left Miss Tinsley unjustly enriched. Critics of the range of factors approach say that it would create unacceptable uncertainty. I would make three points in reply. First, one of the principal criticisms of the law has been its uncertainty and unpredictability. Doctrinally it is riven with uncertainties: see, for example, paras 4 8 above. There is also uncertainty how a court will in practice steer its way in order to reach what appears to be a just and reasonable result. Second, I am not aware of evidence that uncertainty has been a source of serious problems in those jurisdictions which have taken a relatively flexible approach. Third, there are areas in which certainty is particularly important. Ordinary citizens and businesses enter into all sorts of everyday lawful activities which are governed by well understood rules of law. Lord Mansfield said in Vallejo v Wheeler (1774) 1 Cowp 143, 153: In all mercantile transactions the great object should be certainty: and therefore, it is of more consequence that a rule should be certain, than whether the rule is established one way or the other. Because speculators in trade then know what ground to go upon. The same considerations do not apply in the same way to people contemplating unlawful activity. When he came to decide cases involving illegality, Lord Mansfield acted in accordance with his judgment about where the public interest lay: see paras 96 98. In Tinsley v Milligan Lord Goff considered that if the law was to move in a more flexible direction, to which he was not opposed in principle, there should be a full investigation by the Law Commission (which has happened) and that any reform should be through legislation. Realistically, the prospect of legislation can be ignored. The government declined to take forward the Commissions bill on trusts because it was not seen to be a pressing priority for government (a phrase familiar to the Commission), and there is no reason for optimism that it would take a different view if presented with a wider bill. In Clayton v The Queen (2006) 231 ALR 500, para 119, Kirby J said that waiting for a modern Parliament to grapple with issues of law reform is like waiting for the Greek Kalends. It will not happen and that Eventually courts must accept this and shoulder their own responsibility for the state of the common law. The responsibility of the courts for dealing with defects in the common law was recently emphasised by this court in R v Jogee [2016] 2 WLR 681, para 85, and Knauer v Ministry of Justice [2016] 2 WLR 672, para 26. In each of those cases the court decided that it should depart from previous decisions of the House of Lords. That is never a step taken lightly. In departing from Tinsley v Milligan it is material that it has been widely criticised; that people cannot be said to have entered into lawful transactions in reliance on the law as then stated; and, most fundamentally, that the criticisms are well founded. In the present case I would endorse the approach and conclusion of Gloster LJ. She correctly asked herself whether the policy underlying the rule which made the contract between Mr Patel and Mr Mirza illegal would be stultified if Mr Patels claim in unjust enrichment were allowed. After examining the policy underlying the statutory provisions about insider dealing, she concluded that there was no logical basis why considerations of public policy should require Mr Patel to forfeit the moneys which he paid into Mr Mirzas account, and which were never used for the purpose for which they were paid. She said that such a result would not be a just and proportionate response to the illegality. I agree. It seems likely that Lord Mansfield would also have agreed: see Walker v Chapman. Mr Patel is seeking to unwind the arrangement, not to profit from it. It is not necessary to discuss the question of locus poenitentiae which troubled the courts below, as it has troubled other courts, because it assumed importance only because of a wrong approach to the issue whether Mr Patel was prima facie entitled to the recovery of his money. In place of the basic rule and limited exceptions to which I referred at para 44 above, I would hold that a person who satisfies the ordinary requirements of a claim in unjust enrichment will not prima facie be debarred from recovering money paid or property transferred by reason of the fact that the consideration which has failed was an unlawful consideration. I do not exclude the possibility that there may be particular reason for the court to refuse its assistance to the claimant, applying the kind of exercise which Gloster LJ applied in this case, just as there may be a particular reason for the court to refuse to assist an owner to enforce his title to property, but such cases are likely to be rare. (At para 110 I gave the example of a drug trafficker.) In Tappenden v Randall (1801) 2 Bos & Pul 467, 471, 126 ER 1388, 1390, a case of a successful claim for the repayment of money paid for an unenforceable consideration which failed, Heath J said obiter that there might be cases where the contract may be of a nature too grossly immoral for the court to enter into any discussion of it: as where one man has paid money by way of hire to another to murder a third person. The case was mentioned by the Law Commission (LCCP 189, para 4.53), but there is a dearth of later case law on the point. This is hardly surprising because a person who takes out a contract on the life of a third person is not likely to advertise his guilt by suing. But as a matter of legal analysis it is sufficient for present purposes to identify the framework within which such an issue may be decided. No particular reason has been advanced in this case to justify Mr Mirzas retention of the monies beyond the fact that it was paid to him for the unlawful purpose of placing an insider bet. In support of his argument that this purpose was sufficient to disentitle Mr Patel from obtaining the return of his money, Mr Collings relied on cases such as Parkinson v College of Ambulance Ltd [1925] 2 KB 1. In that case the plaintiff made a donation to a charity to secure a knighthood. When the honour failed to materialise he sued for the return of his money. The claim was rejected. Bribes of all kinds are odious and corrupting, but it does not follow that it is in the public interest to prevent their repayment. There are two sides to the equation. If today it transpired that a bribe had been paid to a political party, a charity or a holder of public office, it might be regarded it as more repugnant to the public interest that the recipient should keep it than that it should be returned. We are not directly concerned with such a case but I refer to it because of the reliance placed on that line of authorities. Since criticism was made of the Court of Appeals decision in Mohamed v Alaga and Co, I would affirm its correctness and reject the view that it should somehow be confined to its own peculiar facts. With hindsight, it is perhaps unfortunate that this court did not have the opportunity of considering a claim by Miss Hounga for a quantum meruit. Summary and disposal The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, b) to consider any other relevant public policy on which the denial of the claim may have an impact and c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate. A claimant, such as Mr Patel, who satisfies the ordinary requirements of a claim for unjust enrichment, should not be debarred from enforcing his claim by reason only of the fact that the money which he seeks to recover was paid for an unlawful purpose. There may be rare cases where for some particular reason the enforcement of such a claim might be regarded as undermining the integrity of the justice system, but there are no such circumstances in this case. I would dismiss the appeal. LORD KERR: (agrees with Lord Toulson) For the reasons given by Lord Toulson, with which I completely agree, I consider that this appeal should be dismissed. The approach commended by Lord Toulson does not involve engaging with an open and unsettled range of factors Lord Mance at para 192 of his judgment. On the contrary, as I see it, Lord Toulsons judgment outlines a structured approach to a hitherto intractable problem. It is an approach, moreover, which, if properly applied, will promote, rather than detract from, consistency in the law. And it has the added advantage of avoiding the need to devise piecemeal and contrived exceptions to previous formulations of the illegality rule. Central to Lord Toulsons analysis is the trio of considerations which he identified in para 101 of his judgment. The first of these involves an examination of the underlying purpose of the prohibition which has been transgressed. By this, I understand Lord Toulson to mean the reasons that a claimants conduct should operate to bar him or her from a remedy which would otherwise be available. That such reasons should be subject to scrutiny is surely unexceptionable. Whether in order to preserve the integrity of the legal system (per McLachlin J in Hall v Hebert [1993] 2 SCR 159 at 169) or to allow a proper understanding of the true nature of the public policy imperative for recognising a defence of illegality, the purpose of the denial of a remedy to which the claimant would otherwise be entitled should be clearly understood. As it happens, McLachlin J disagreed with Cory Js suggestion that the doctrine of ex turpi causa non oritur actio should be replaced with a power vested in the courts to reject claims on considerations of public policy p 168. But what is the preservation of the integrity of the legal system, if not a public policy consideration? Moreover, the underpinning of the preservation of that integrity (which McLachlin J said was that a person in a civil suit should not be permitted to profit from illegal or wrongful conduct or to benefit from an evasion or rebate of a penalty prescribed by the criminal law) is par excellence a public policy consideration. And McLachlin J seemed to acknowledge as much when she said (at p 169) that the principle could be described by an old fashioned Latin name or by the currently fashionable concept of public policy. It is doubtful that a public policy consideration in the context of the defence of illegality could now be properly described as a currently fashionable concept. Indeed, in a number of cases that I will refer to briefly below, the maxim ex turpi causa has been recognised in this country as an expression of policy, rather than a principle. And in Canada it appears to be accepted that the weighing of public policies is the proper approach to take in order to determine whether a defence of illegality should be allowed to prevail. In Still v Minister of National Revenue (1997) 154 DLR (4th) 229 (which is discussed by Lord Toulson in paras 58 et seq of his judgment) the Federal Court of Appeal considered that the doctrine of illegality now rests on the understanding that it would be contrary to public policy to allow a person to maintain an action on a contract prohibited by statute (emphasis supplied). On that basis, Robertson JA, who delivered the judgment of the court, said that it was necessary to identify the policy considerations which outweighed the applicants right to a remedy. Although this was said in relation to competing policy goals in two items of legislation, there is no reason not to adopt the same approach in evaluating rival policy considerations in the non statutory context. To take this case as an example, why should Mr Mirzas wrongful retention of Mr Patels money not be weighed against the undoubted illegality on the part of Mr Patel in entering an agreement to wrongly benefit from Mr Mirzas claimed ability to obtain access to insider information? If one concentrates on the illegal nature of the contract to the exclusion of other considerations, an incongruous result in legal and moral terms may be produced. This can be avoided by taking into account and giving due weight to the second and third of Lord Toulsons considerations viz countervailing public policies which would be wrongly discounted by denial of the claim and the proportionality of refusing to acknowledge its legitimacy. It is, of course, possible to reach the same outcome that a weighing of the competing policy considerations produces by treating this case as one of unjust enrichment which warranted returning the parties to the position that they occupied before the transaction. This is on the basis that the court is not required to give effect to the illegal contract in order to find that Mr Mirza should not be allowed to retain Mr Patels money. It would simply return the parties to the status quo ante where they should always have been. Lord Sumption at para 268. That seems to me, however, to be a much more adventitious and less satisfactory route to the proper disposal of the case than that represented by a rounded assessment of the various public policy considerations at stake. Moreover, if the ex turpi causa axiom is itself no more than an expression of policy, the taking into account of countervailing policy considerations, in order to decide whether to give effect to it in a particular instance, is the only logical way to proceed. That it is, in truth, a policy based rule has been clearly recognised. In Gray v Thames Trains Ltd [2009] UKHL 33; [2009] AC 1339, para 30, Lord Hoffmann said that the maxim expressed, not so much a principle as a policy and that it did not have a single basis of justification but was rather based on a group of reasons which vary in different situations. And in Stone and Rolls Ltd v Moore Stephens [2009] UKHL 39; [2009] AC 1391, para 25 Lord Phillips expressly endorsed what Lord Hoffmann had said about the public policy nature of ex turpi causa, observing that it was necessary to consider the policy underlying it, in order to decide whether the defence of illegality was bound to defeat a claim. Finally, in Les Laboratoires Servier v Apotex Inc [2012] EWCA Civ 593; [2013] Bus LR 80, after referring (in para 66) to the Law Commissions recommendation in its 2010 Report (Law Com 320) to the effect that the illegality offence should be allowed where its application could be firmly justified by one or more of the rationales underlying it existence, Etherton LJ said, at para 73: It is clear, then, that the illegality defence is not aimed at achieving a just result between the parties. On the other hand, the court is able 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. Lord Sumption has said in para 262(iii) of his judgment in this case that this court in Les Laboratoires Servier [2015] AC 430 had overruled the view expressed by the Court of Appeal that an illegal act might nevertheless found a cause of action if it was not as wicked as all that. That may be so, but I do not understand the judgment of this court in Les Laboratoires Servier to have expressly rejected the notion that whether the defence should be available depends on an examination of the policy considerations which underlie it in any particular instance and those which militate against it. At para 61 of his judgment in Les Laboratoires Servier Lord Toulson quoted with approval the statement of Lord Wilson in Hounga v Allen [2014] 1 WLR 2889 at para 42 to the effect that, in considering whether to allow a defence of illegality, 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? The decision in Hounga was not mentioned in the judgment of the majority in Les Laboratoires Servier. Lord Sumption did refer to Hounga, however, in the later case of Bilta (UK) Ltd v Nazir (No 2) [2016] AC 1. He sought to explain the decision in Hounga on the basis that Ms Hounga did not rely, and did not need to rely, on the circumstances in which she had entered the United Kingdom (she had entered illegally). This is correct but she did need to rely on the fact of her employment in advancing a claim for unlawful discrimination in her dismissal from that employment. Since the employment was not legally sanctioned, she was therefore confronted with the illegality defence and, indeed, the Court of Appeal had held that the illegality of the contract of employment formed a material part of Ms Houngas complaint and that to uphold it would be to condone the illegality. It was held in Hounga that the appellants claim was not inextricably linked to her illegal conduct. On that account her action could not be defeated on the basis that her contract of employment was illegal. But Lord Wilsons discussion of the manner in which competing public policy considerations should be viewed, in calculating whether a defence of illegality should be permitted to defeat an otherwise viable claim, unquestionably forms part of the ratio of the decision. The way is now open for this court to make its choice between, on the one hand, cleaving to the rule based approach exemplified by Tinsley v Milligan [1994] 1 AC 340 and, arguably, the decision of the majority in Les Laboratoires Servier, and, on the other, a more flexible approach, taking into account the policy considerations that are said to favour recognising the defence of illegality, those which militate against such recognition and the proportionality of allowing the defence to prevail. In Bilta (UK) Ltd Lord Neuberger said that the proper approach to the defence of illegality needed to be addressed by this court as soon as appropriately possible para 15. This case unmistakably presents us with the opportunity to address the question and for the reasons given by Lord Toulson, I believe that the approach which he commends is plainly to be preferred. A rule based approach to the question of the effect of illegality on the availability of a remedy has failed to deliver on what some have claimed to be its principal virtues viz ease of application and predictability of outcome. This case exemplifies the point. There was a sharp but perfectly respectable difference of view in the judgments of the Court of Appeal as to whether the necessary ingredient of reliance on the illegal aspect of the agreement between Mr Mirza and Mr Patel was present. This is hardly surprising. In many situations in which transactions between parties are tainted by some form of illegality, it is not always easy to decide what it is that needs to be relied on when an unravelling of those transactions or some means of dealing with their failure is sought. On the question of unravelling or unpicking an agreement, I do not consider that Tinsley is an example of the court conducting an unravelling exercise or of its returning the parties to the status quo ante. This much is clear from the speech of Lord Browne Wilkinson at 376F of the report: Miss Milligan established a resulting trust by showing that she had contributed to the purchase price of the house and that there was common understanding between her and Miss Tinsley that they owned the house equally. She had no need to allege or prove why the house was conveyed into the name of Miss Tinsley alone, since that fact was irrelevant to her claim: it was enough to show that the house was in fact vested in Miss Tinsley alone. The illegality only emerged at all because Miss Tinsley sought to raise it. Having proved these facts, Miss Milligan had raised a presumption of resulting trust. There was no evidence to rebut that presumption. Therefore, Miss Milligan should succeed. (original emphasis) In effect, in Tinsley the majority gave effect to rather than unravelled the illegal agreement made between the parties. The agreement was that the ownership of the house should be shared equally between Miss Milligan and Miss Tinsley, and that they should represent to the Department of Social Security that it was owned solely by Miss Tinsley. It was because Miss Milligan did not need to rely on the illegal component of the agreement (that they make the false representation to the department) that she was able to succeed. This was not, therefore, a case of unravelling the agreement or restoring the parties to the status quo ante. To the contrary, it was an instance of segregating the illegal part of the agreement from that which, it was considered, could be enforced. Reference to or reliance on the objectionable part could thereby be avoided. To claim that such a contrivance produces a predictable, much less a certain, outcome, for such arrangements is, I believe, extremely far fetched. Even if the claim to predictability of outcome for the reliance test could be made good, however, it is questionable whether particular weight should be given to this consideration in circumstances where a claimant and defendant have been parties to an agreement which is plainly illegal. Certainty or predictability of outcome may be a laudable aim for those who seek the laws resolution of genuine, honest disputes. It is not a premium to which those engaged in disreputable conduct can claim automatic entitlement. For the reasons I have given, however, I do not believe that outcomes are easier to forecast on a rule based approach. Quite apart from the difficulty in predicting whether a claimant has to rely on the illegal dimension of an agreement in order to advance his claim, there is something unattractive and contrived about the means by which attempts have to be made in order to avoid the spectre of reliance. Professor Burrows in his Restatement of the English Law of Contract (Oxford University Press) outlined what he described as his single reliance master rule at p 224 in this way: If the formation, purpose or performance of a contract involves conduct that is illegal (such as a crime) or contrary to public policy (such as a restraint of trade), a party cannot enforce the contract if it has to rely on that conduct to establish its claim. In this case the formation of the contract, its purpose and its performance all involved illegality. Under the single reliance master rule, it is said that all of this can be ignored because it is not necessary to rely on the terms of the agreement, other than to demonstrate that there was no legal basis for the payment of the money to Mr Mirza. So, the looming presence of illegality does not require to be confronted at all. The issue is side stepped and avoided. This cannot be the correct way in which to deal with the impact of illegality in fact, under this approach, illegality is not addressed at all. It is surely better and more principled to examine why illegality should or should not operate to deny Mr Patel a remedy. Returning the parties to the status quo ante likewise side steps the issue of illegality. This approach proceeds on the basis that the transaction should simply never have taken place or that the parties should be returned to the condition that they ought always to have occupied. The contract is unpicked because it should not have been made. Mr Mirza is deprived of the money because it is unjust enrichment. No examination of the effect that the illegality has is warranted; recognition that there has been unjust enrichment is all that is required. This is objectionable not only because it effectively ignores the illegality that surrounded the making of the contract but also because it produces an inconsistent result with that which is founded on a breach of contract claim. This leads to what Professor Peter Birks, in an article entitled, Recovering Value Transferred under an Illegal Contract (2000) 1 TIL 155, describes as self stultification. Entitlement to restitution of money paid on foot of an illegal contract on the basis of unjust enrichment makes a nonsense, he says, of refusal to enforce the contract and, at p 160, it is important that the law as stated in one area should not make nonsense of the law as stated in another. Self stultification can be avoided by adoption of the approach suggested by Lord Toulson. His mode of analysis requires examination of the justification for the defence of illegality in whatever context it arises, not a decision to circumvent the defence because of the type of remedy that is claimed. That appears to me to be a much more principled approach than one which avoids having to engage with the merits of the defence at all. Not having to engage with the merits on the basis that one does not have to rely on the illegality is a matter of fortuity. Because of that incidental circumstance an avenue to an equivalent outcome to that which would result from enforcement of the contract opens up. An examination of the impact of the illegality becomes irrelevant. That this should be a matter of happenstance is deeply unsatisfactory. Lord Toulsons solution to this question also permits readier access to investigation of the traditional justifications for the ex turpi causa maxim preservation of the integrity of the legal system and preventing profit from wrongdoing. If, on examination of the particular circumstances of the case, these can be shown to weigh heavily in the balance, it is more likely that the defence will be upheld. Carving out an exception to the application of the defence on the basis that it does not affect a claim for unjust enrichment where the illegality of the claimant does not require to be relied on does nothing to directly protect or uphold these values. For these reasons and those given by Lord Toulson, I would dismiss the appeal. LORD NEUBERGER: The present appeal concerns a claim for the return of money paid by the claimant to the defendant pursuant to a contract to carry out an illegal activity, and the illegal activity is not in the event proceeded with owing to matters beyond the control of either party. The specific issue on this appeal In such a case, the general rule should in my view be that the claimant is entitled to the return of the money which he has paid. In the first place, such a rule (the Rule) is consistent with the law as laid down in the 18th century by two eminent judges, one of whom is regarded as the founder of many aspects of the common law, including illegality; in addition it has support from some more modern cases. Secondly, the Rule appears to me to accord with policy, which is particularly important when illegality arises in the context of a civil claim. Thirdly, the Rule renders the outcome in cases in one area of a very difficult topic, that of contracts involving illegality, and the maxim ex turpi causa non oritur actio (ie that no claim can be based on an illegal or immoral arrangement), relatively clear and certain. I turn first to the authorities. In Smith v Bromley (1760) 2 Doug KB 696n, the Court of Kings Bench permitted a plaintiff to recover money she had paid to someone who had agreed to procure her brothers discharge from bankruptcy, which was an illegal consideration. Lord Mansfield CJ said at p 698 in the course of his judgment that, although the payment had been made for an illegal purpose: Upon the whole, I am persuaded it is necessary, for the better support and maintenance of the law, to allow this action; for no man will venture to take, if he knows he is liable to refund. Lord Mansfield subsequently followed this approach in Walker v Chapman (1773) Lofft 342, where a bribe to the defendant to secure a job for the plaintiff in Government service was held recoverable, in circumstances where the job was not in fact obtained. In Neville v Wilkinson (1782) 1 Bro CC 543, 547 Lord Thurlow LC approved this approach, and declared his opinion that: [I]n all cases where money was paid for an unlawful purpose, the party, though particeps criminis, might recover at law; and that the reason was, that if courts of justice mean to prevent the perpetration of crimes, it must be not by allowing a man who has got possession to remain in possession, but by putting the parties back to the state in which they were before. In the following century, the same approach was adopted in Taylor v Bowers (1876) 1 QBD 291 (which involved transfer of goods rather than of cash). Cockburn CJ said at first instance at p 295 that it was well established that where money has been paid, or goods delivered, under an unlawful agreement, but there has been no further performance of it, then the party paying the money or delivering the goods may repudiate the transaction, and recover back his money or goods. The Court of Appeal agreed, and at p 300 Mellish LJ, with whom Baggallay JA and Grove J agreed, said this: To hold that the plaintiff is enabled to recover does not carry out the illegal transaction, but the effect is to put everybody in the same situation as they were before the illegal transaction was determined upon, and before the parties took any steps to carry it out . It is true that the actual decision in that case can be justified on the ground that property in the goods concerned had never passed (which was the basis of James LJs judgment), but it seems to me that the reasoning of Mellish LJ, like that of Cockburn CJ, reflects the proposition found in the 18th century judgments I have quoted. It is also fair to say that Fry LJ doubted the correctness of Mellish LJs dictum in Kearley v Thomson (1890) 24 QBD 742, 746, and that in some subsequent cases the principle has not been applied. An obvious example is Parkinson v College of Ambulance [1925] 2 KB 1, where a donor was held to be disentitled from recovering a gift to a charity obtained by the charitys illegal (and dishonest) promise to obtain an honour for the donor. I consider that that case was wrongly decided. It seems to me that the judgment in that case got close to representing what Bingham LJ described as the court on the first indication of unlawfulness affecting any aspect of a transaction, draw[ing] up its skirts and refus[ing] all assistance to the plaintiff, no matter how serious his loss nor how disproportionate his loss to the unlawfulness of his conduct (which he considered to be unacceptable) Saunders v Edwards [1987] 1 WLR 1116, 1134. I agree with the view that the decision in Parkinson represented a new and regrettable extension of the scope of the maxim of ex turpi causa (to quote from Professor Grodeckis article (1955) 71 LQR 254, 263), and I consider that it should be overruled. The Rule also derives some support from the Court of Appeals decision in Tribe v Tribe [1996] Ch 107, where the plaintiff was held to be entitled to recover shares which he had transferred to his son in order deceptively to improve his negotiating position in relation to an anticipated claim by his landlord, which in the event did not materialise. The question for the Court of Appeal was whether, following the controversial decision of the House of Lords in Tinsley v Milligan [1994] 1 AC 340 (the details of which are set out in paras 17 19 above), the father could rebut the presumption of advancement by giving evidence of his illegal purpose, to quote from Millett LJs judgment at pp 129H 130A. It was held that he could, on the basis that [t]he transferor can lead evidence of the illegal purpose whenever it is necessary for him to do so provided that he has withdrawn from the transaction before the illegal purpose has been wholly or partly carried into effect per Millett LJ at pp 134G H. There is some support in the cases for the notion that different considerations should apply depending whether the claimants claim for return of money or property paid pursuant to an unperformed illegal contract is based on a common law claim or a claim in equity (compare the Privy Council decisions in Singh v Ali [1960] AC 167 and Chettiar v Chettiar [1962] AC 294). I do not consider that such a distinction is appropriate (and it may be that in that connection I differ from Millett LJ in Tribe at p 129G although see at p 130E). I agree with Lord Browne Wilkinsons observation in Tinsley at p 371, where he said that [i]f the law is that a party is entitled to enforce a property right acquired under an illegal transaction, the same rule ought to apply to any property right so acquired, whether such right is legal or equitable. That proposition is supported, as I see it, by the second reason supporting the Rule, namely policy. As Millett LJ said in Tribe at p 133F, the justification for this rule [which precludes the court from lending its assistance to a man who founds his cause of action on an illegal or immoral act] is not a principle of justice but a principle of policy, citing Lord Mansfield in Holman v Johnson (1775) 1 Cowp 341, 343. That approach is also supported by Lord Hoffmann in Gray v Thames Trains Ltd [2009] AC 1339, para 30, where he went on to say that the policy is not based upon a single justification but on a group of reasons, which vary in different situations. Similarly, in Bakewell Management Ltd v Brandwood [2004] 2 AC 519, para 60, Lord Walker said that the maxim ex turpi causa must be applied as an instrument of public policy, and not in circumstances where it does not serve any public interest. More broadly, it appears to me that policy supports the Rule, in part for the simple reasons given in the passages cited in para 147 above. Further, as Lord Mance points out, there is obvious attraction in the notion that, if all transfers made pursuant to an unexecuted illegal contract are re transferred, then the parties are back in the position that they were, ie as if there had been no illegal contract, which again would seem to comply with policy. It also appears to me that the Rule is consistent with the approach adopted in McLachlin Js analysis in the Canadian Supreme Court case Hall v Hebert [1993] 2 SCR 159, 176. She explained that the basic justification for refusing relief to a plaintiff who relied on an illegal contract was that to allow recovery 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. Later at pp 179 180, she suggested that the courts power to refuse relief in a claim where illegality is involved is a limited one and that the use of the power is justified where allowing the plaintiffs claim would introduce inconsistency into the fabric of the law, either by permitting the plaintiff to profit from an illegal or wrongful act, or to evade a penalty prescribed by criminal law. This approach (which is more fully analysed by Lord Mance) finds an echo in Lord Rodgers observation in Gray, para 82, that the civil court should cleave to the same policy as the criminal court. For some time, it was assumed that the Rule could be invoked not merely when the anticipated illegal purpose not been proceeded with at all, but with the super added requirement that it had not done so because of the repentance of the plaintiff who was seeking to get his money back. Like Millett LJ in Tribe at p 135D E, I would reject that notion. As he said, [j]ustice is not a reward for merit, and in any event the notion that repentance is needed could lead to bizarre results. Further, a claimants repentance may be born of, or combined with, self interest, in which case, if repentance is the essential factor, the court would face a real difficulty. In my opinion, the notion that the application of a rule should depend on whether or not the claimant has repented typifies the inappropriately moralistic approach of some courts when they have to deal with claims based in some way on illegality, which was rightly criticised by Bingham LJ in Saunders [1987] 1 WLR 1116, 1134. Rather, the courts should adopt a more objective and analytical approach like that of McLachlin J in Hall. Quite apart from principle, it appears to me that the Rule would establish, or maintain, a degree of clarity and certainty in relation to one aspect of the law on the vexed topic of the effect of illegality on contractual claims. One thing which is clear from reading only some of the large number of judgments on the law on that topic over the past 350 years is the inconsistency of reasoning and outcome in different cases. Those responsible for making and developing the law in any area must strive to achieve as much clarity and as much certainty as are consistent with principle and practicality. There is, I acknowledge, some attraction in the point that the need for certainty in this area is diminished by the fact that parties to an arrangement which is illegal have less cause for complaint if the law is uncertain. However, criminals are entitled to certainty in the law just as much as anyone else. In any event, third parties are often affected by the enforceability of rights acquired or lost under contracts, and innocent third parties, it could be said with force, are in a particularly strong position to expect certainty and clarity from the law. Quite apart from this, there is a general public interest in certainty and clarity in all areas of law, not merely because it is a fundamental aspect of the rule of law, but also because the less clear and certain the law on any particular topic, the more demands there are on the services of the courts. That leaves open two issues. First, the issue of what constitutes an illegal contract for the purpose of the Rule. In my view, as a general proposition, the rule would apply to any contract where the illegality would result in the court (if it could otherwise do so) not being able to order specific performance of the contract or damages for its breach. It would thus normally apply to any contract whose performance would inevitably involve the commission of a crime (i) because the whole purpose of the contract was the commission of a crime (eg a contract killing), or (ii) because it was a contract whose essential ingredient was the commission of a crime (the present case is an example), or (iii) because the contract could not be performed without the commission of a crime. In practice, of course, category (iii) would cover the other two categories, but setting out the three categories may help to illustrate the extent of the application of the rule. As to category (iii), I have difficulties in seeing how a court could order specific performance of a contract which necessarily involved one or other of the parties committing a crime (even a minor crime). Requiring the contract to be performed would involve the court ordering a party to act illegally: that cannot be a course open to a court. For the same reason I have difficulties in seeing how a court could normally award damages for breach of such a contract. Conceptually, damages are a substitute for non performance, and performance is not something the court can award; and it seems inconsistent with the courts function to penalise a defendant in damages for not doing something illegal or to compensate a claimant for not having a benefit which would have required either or both of the parties doing something illegal. For the court to make an order for specific performance or damages in such cases would seem to infringe the principle of consistency discussed in the judgment of McLachlin J in Hall. The second issue is foreshadowed by the fact that I have described the Rule as being generally applicable. That is because the need for certainty must, particularly given the importance of policy, yield to the fact that, in this difficult and potentially multi faceted area, there will inevitably be exceptions. Experience and common sense both suggest that any attempt to lay down a clear and inflexible rule on even one aspect of the topic of illegality in the context of contractual claims will lead to difficulties. (Both the majority and the minority reasoning in Tinsley are a good example of this). Indeed, the very fact that the approach of the courts in cases on this topic is based on policy suggests that strict immutable rules are inappropriate. Nonetheless, that does not negate any attempt to identify principles such as that suggested by McLachlin J and general rules such as that described in the cases mentioned in paras 147 and 148 above. The fact that the approach of the law to contracts with an illegal aspect is based on policy does not discharge judges from the normal duty of ensuring that the law on any topic is as clear and certain as it can be. By way of example, I would mention two possible exceptions. First, where one of the parties, especially the defendant, is in a class which is intended to be protected by the criminal legislation involved, it may well be inappropriate to invoke the Rule. Secondly, there could well be no recovery (or only partial recovery) by a plaintiff where the defendant was unaware of the facts which gave rise to the illegality especially if he had received the money and had altered his position so that it might be oppressive to expect him to repay it. There will no doubt be other exceptions, but I do not think that that undermines the usefulness of having the Rule as the prima facie or presumptive approach. (I discuss in paras 172 175 below with the test for determining whether it is appropriate to apply the Rule in any particular case). In the present case, Mr Patel paid 620,000 to Mr Mirza pursuant to a contract, under which Mr Mirza was to use the money to trade in RBS shares with the benefit of inside information for their common benefit. That was a contract whose agreed fundamental purpose was illegal. In fact, the anticipated inside information was not forthcoming and the contract effectively lapsed. I can see no good reason on these simple facts for not applying the Rule and accordingly I consider that Mr Patel is entitled to the return of the 620,000. Venturing further The majority, and indeed Lord Mance and Lord Sumption, would go wider in their judgments on this appeal, by laying down some wider and more general principles or rules relating to the effect of illegality on contracts. There is considerable attraction in doing so, not least because the law is in a state of uncertainty. The reasoning of the majority in the most recent decision of the House of Lords, Tinsley, is generally thought to be unsatisfactory: for a convincing analysis see the judgments in the decision of the High Court of Australia in Nelson v Nelson (1995) 184 CLR 538 (discussed more fully in paras 50 54 above). And the result arrived at by the minority in Tinsley is plainly unsatisfactory. I fear that the different approaches adopted by members of this court in the recent cases of Hounga v Allen [2014] 1 WLR 2889, Les Laboratoires Servier v Apotex Inc [2015] AC 430 and Bilta (UK) Ltd v Nazir (No 2) [2016] AC 1 have left the law on the topic in some disarray. As I said in Bilta, para 15, 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. Nonetheless, there are arguments for not looking more widely at the issue of illegality in the contractual context. Thus, in all three recent Supreme Court cases (as in the present one), while there are some fairly sharp differences of opinion as to the proper approach, there is no real dispute as to the outcome. More broadly, the common law traditionally develops on a case by case basis, and there are self evident dangers for a court to paint on an unnecessarily broad canvas, particularly bearing in mind that it is proceeding by reference to the facts of one particular case. And that can be said to be particularly true in the area of illegal contracts, where, as already mentioned, experience has shown that it is a topic fraught with difficulties, as is evidenced by the fact that the reasoning and outcomes in a number of cases concerning contracts affected by illegality over the past 300 years are hard to reconcile. Reading those cases also shows that it would be impossible to envisage, and therefore to cater for, every type of problem which might arise in this field. Nonetheless, it seems to me right to venture further in this case, essentially for the reasons summarised in para 164 above. The first general point I should make is that, in my view, even where the contemplated illegal activity has been performed in part or in whole, it would be right to apply the Rule in appropriate cases. Thus, in the case of an illegal contract where money is paid by the claimant to the defendant, and the contract is then partly or wholly performed by the defendant paying a lesser sum to the claimant, I do not see why, at least in the absence of good reasons to the contrary, the court should not order that the claimant should recover the money that he paid the defendant, albeit reduced by the lesser sum which the claimant subsequently received from the defendant. Similarly, where the contract is wholly performed. In effect, the reasons supporting the application of the Rule in cases where the illegal activity has not occurred, apply for the same reasons to contracts where the contemplated illegal activity has been wholly or partly performed. And there is the added reason of consistency with a case where the contract has not been performed. Thus, in my view, if the defendant in this case had only been able to purchase just a few shares on inside information and had accounted to the claimant for the proceeds of sale of those shares in the sum of, say 10,000, the contract would have been partly performed, but I consider that the claimant could have successfully sued to recover the 620,000 he had paid, less the 10,000 which he had received. There are, I think, three arguments against such a conclusion. The first is that there are a number of judgments, including those in and Taylor v Bowers 1 QBD 291, Kearley v Thomson 24 QBD 742 and Tribe v Tribe [1996] Ch 107, where it has been expressly stated that the Rule only applies where the illegal purpose has [not] been wholly or partly performed to quote from Millett LJ in Tribe at p 124E. However, perhaps particularly once one strips away the notion that repentance is irrelevant, I can see no good reason for not extending the rule to partly or even wholly performed contracts where restitutio in integrum can be achieved in practical terms and would be consistent with policy and proportionality. In the present case, for example, it would seem to be penal on the claimant that he could be deprived of 610,000 (and by the same token it would seem absurdly gratuitous that the defendant could benefit to the tune of 610,000) simply because the contract had been performed to a small extent. Secondly, it may be argued that, once the contract has been partly performed, the basis for restitutio in integrum has gone. But that argument is only right if the basis of the Rule is total failure of consideration. In my view, that is not necessarily the correct analysis (unless the illegal consideration for which the money was paid is treated in law as no consideration, because it is illegal). Indeed, in the end, the correct analysis is not the centrally important issue, given that the question as to how the court deals with illegal contracts is ultimately based on policy. The ultimate function of the courts in common law and equity is to formulate and develop rules of a clear and practical nature. Now that the judiciary (rightly) pay more attention than we did to legal books and articles, we judges can look to legal academics not only to identify what they think are judicial inconsistencies and errors, but also to develop and modify their analyses of legal principles when we consider it necessary to change, develop or clarify the law. Thirdly, it may be said that application of the Rule would result in the court sometimes getting precious close to enforcing an illegal contract a course which the court most certainly cannot take, as already mentioned. I accept that application of the Rule would sometimes involve the court making an order whose effect in practice is similar to performance of the illegal contract. But there is nothing in that point. If a particular outcome is correct, then the mere fact that the same outcome could have been arrived at on a wrong basis does not make it the wrong outcome. Indeed, it is worth noting that the outcome in Tribe was precisely what it would have been if the contract in question had been enforced. The father had transferred the shares on the basis that it would help him avoid a threatened claim and that they would be transferred back when the claim was no longer threatened; he sought an order for the retransfer after the threat had gone away, and application of the rule resulted in that order. That, of course, leaves open what would constitute an appropriate case for the application of the Rule and good reasons to the contrary for these purposes. The exceptions which I have referred to in para 162 above would be examples of where it might not be appropriate to invoke the Rule. However, it seems to me to be clear that there could be many other circumstances where application of the Rule would not be appropriate in circumstances where the illegal activity has been wholly or partly put into effect. In that connection, some assistance can be obtained from the guidance given by McLachlin J. Beyond that, it may be that some or all of the factors identified by Professor Burrows in the passage quoted by Lord Toulson in para 93 above could be relevant depending on the facts and issues in any particular case. However, I am not convinced that it is helpful to list all the potentially relevant factors and say that it is a matter for the court in each case to decide which of those factors apply in that case and what weight to give them. Once a judge is required to take into account a significant number of relevant factors, and the question of how much weight to give each of them is a matter for the judge, the difference between judgment and discretion is, I think, in practice pretty slight. I have come to the conclusion that the approach suggested by Lord Toulson in para 101 above provides as reliable and helpful guidance as it is possible to give in this difficult field. When faced with a claim based on a contract which involves illegal activity (whether or not the illegal activity has been wholly, partly or not at all undertaken), the court should, when deciding how to take into account the impact of the illegality on the claim, bear in mind the need for integrity and consistency in the justice system, and in particular (a) the policy behind the illegality, (b) any other public policy issues, and (c) the need for proportionality. I must admit that I was initially not attracted by this approach because it seemed close to giving a discretion to judges when it comes to deciding how to deal with a claim based on a contract with an illegal element. However, on further reflection, it appears to me that, unlike the multi factorial approach proposed by Professor Burrows, the structured approach proposed by Lord Toulson is not akin in practice to a discretion, and, in any event, it is the best guidance that can sensibly be offered at the moment. Experience shows that it is simply not possible to identify a more helpful or rigorous test. When considering whether it is possible to give more specific or firm guidance, I have considered some examples, which ultimately have helped to persuade me that greater clarity, strictness or specificity is simply not possible, at any rate at this stage, and they have served to conform the aptness of the approach set out in para 101 above. A simple example is a case where the consideration for which the claimant paid or owed money was inherently illegal, rather than happening to involve an illegal act in order to be achieved. In such cases, it seems to me that considerations of certainty and policy indicate that the claimant should generally be able to refuse to pay any money which is due under the contract and, indeed, to recover the money he had paid. Thus, if the claimant paid a sum to the defendant to commit a crime, such as a murder or a robbery, it seems to me that the claimant should normally be able to recover the sum, irrespective of whether the defendant had committed, or even attempted to commit, the crime. If the defendant had not attempted the crime, the Rule would generally apply. If he had actually succeeded in carrying out the crime, he should not be better off than if he had not done so. I suppose one could justify that conclusion on the ground that the law should not regard an inherently criminal act as effective consideration. That example might appear to suggest that more specific guidance could be given. However, even in relation to cases of the type described in para 176, there could be exceptions such as those mentioned in para 162 above. And, bearing in mind the enormous number of different crimes and different factual circumstances which could arise, it would be little short of foolhardy to imagine that there could not be other cases of this type where it would be inappropriate to apply the Rule. Further, different considerations would often, I suspect very often, apply where the contract was not inherently illegal, but necessarily involved an illegal action. An extreme case might be where an employer employed a builder to carry out construction work which they both knew would inevitably require the builder to park illegally say on a double red line. As already explained in para 160 above, if the defendant refused to carry out the work, the contract could not be enforced prospectively by the employer, but he would be entitled to recover any money he had paid. However, if the builder carried out the work, the employer would not be able to avoid liability to pay in full: the fact that the defendant could not perform his obligations under the contract without committing a relatively technical and incidental crime would not deprive him of the right to payment in full for such performance. However, greater problems and uncertainties could arise in other cases eg where the nature of the criminal activity was more serious and/or more central to the activity involved, where the illegal activity was expressly included in the contract, or where one of the parties did not know or intend that the activity in question to be carried out was illegal but the other did, or where the proceedings arose out of the fact that such a contract had only been partly performed. Further, where a claimant has performed his part of a contract which was inherently lawful but was unlawful for some other reason, there is real room for debate in any particular case whether he should be entitled to claim payment on a quantum meruit basis, even though he cannot enforce his right to contractual payment compare Mohamed v Alaga & Co [2000] 1 WLR 1815 and Taylor v Bhail [1996] CLC 377. While it would be possible to lay down a general rule as to whether or not a claimant could recover in such a case, it seems to me to be more satisfactory for the outcome to turn on the factors mentioned in para 174 above. Similarly, it seems to me that the justification for the decision of the majority in Tinsley was, as Lord Toulson says, that it would have been disproportionate to have refused to enforce Miss Milligans equitable interest in the relevant property on the grounds of her illegal activity, and the policy behind the law making the activity in question illegal was not infringed by acceding to her claim. It is also worth referring back to the two examples set out in para 162 above. If the purpose of rendering an activity illegal is to protect a class of persons which includes only one of the parties to the contract, then, absent any other argument based on policy or proportionality, it would seem appropriate that that party should not be disadvantaged by the illegality, and/or should be entitled to rely on the fact that the activity is illegal, as against the other party. And, if a claimant seeks recovery of money paid to a defendant under a contract which can only be performed illegally, and has not been performed, proportionality and policy may well justify the court refusing repayment if the defendant has spent the money and was unaware of the facts giving rise to the illegality at the time he spent it. I would make three concluding points. First, quite apart from being persuaded by the reasons which justify the approach I have summarised in para 174 above, I consider that the fact that it is consistent with judgments of the courts in Australia and Canada, as explained by Lord Toulson in paras 50 61 above is a good reason for adopting the approach. When considering how to characterise, or whether to develop, any fundamental principle of the common law, it is normally sensible for a judge to consider how the principle has been approached in other common law jurisdictions, and it is desirable, if not always achievable, that all common law jurisdictions adopt the same approach. Secondly, I should briefly address the fact that the criminal law and the Proceeds of Crime Act 2002 (POCA) may inevitably have some impact on the rights and duties of parties who have entered into contracts with an illegal connection. The involvement of the criminal law played a very important part in the judgment of McLachlin J in Hall v Hebert. It seems to me to have two main components. First, it is for the criminal law, not the civil law, to penalise a party or parties for entering into and/or performing a contract with an illegal component. Secondly, in so far as the civil law is fashioned by judges in a particular case, they must ensure that it is not inconsistent with the criminal law. So far as POCA is concerned, it enables the courts, through statutory powers, to do that which a common law judge cannot do, and which many might think was the best outcome in many of the more serious cases involving illegality, namely to ensure that the proceeds of crime are retained by neither party, but are paid over to the Government. This is not the occasion to discuss the effect of POCA, save to say that I would take some persuading that the common law should be influenced by the fact that POCA is or is not being invoked in any particular case, although the civil courts should not make any order, or at least permit the enforcement of any order, if its effect would run counter to the provisions of POCA or to any step which was being contemplated under POCA by the relevant authorities. Finally, I should say that, although my analysis may be slightly different from that of Lord Toulson, I do not think that there is any significant difference between us in practice. I agree with his framework for arriving at an outcome, but I also consider that there is a prima facie outcome, namely restitution in integrum. LORD MANCE: That the law of illegality, particularly as it results from Tinsley v Milligan [1994] 1 AC 340, merits at the highest level the consideration now being given to it, I would be among the first to accept. I indicated as much as a party to the unsatisfying decision which the Court of Appeal had to reach in Collier v Collier [2002] BPIR 1057: see in particular para 106. Whether it is, however, appropriate to abandon basic principles going back nearly 250 years, resting on the sound appreciation of as a great a judge as Lord Mansfield CJ and approved and elucidated by the Supreme Court of Canada in an authoritatively reasoned judgment in 1993, is a different matter. The basic problem, identified clearly and succinctly by Lord Mansfield in Holman v Johnson (1775) 1 Cowp 341, is that there are at least three potential interests when questions of illegality arise for consideration: those of two parties and the public interest. It is, as he said, for reasons of public interest that an otherwise good cause of action may sometimes fail, where there has been illegality. In the absence of any relevant statutory power, the court has no direct power to mediate between these three interests, by for example requiring the public interest to be satisfied by a payment to the public purse. It does not even have the power, conferred by statute in New Zealand, to vary or validate an illegal contract in part or otherwise howsoever (New Zealand Illegal Contracts Act 1970, section 7). The application of the principle stated by Lord Mansfield was expanded in scope after his day (notably by Lord Eldon in Muckleston v Brown (1801) 6 Ves 52 as described by Lord Browne Wilkinson in Tinsley v Milligan at p 372F. But, more recently it has diminished, Tinsley v Milligan being itself actually an example of this, in so far as it confirmed both that legal title to property could pass under an illegal contract and that equitable title was capable of recognition. The courts recognition of the equitable title was, however, made subject to the (problematic) pre condition that the claimant could avoid reliance on illegality by relying on a procedural presumption. The court was able, in Tinsley v Milligan, to derive this presumption from the objectively demonstrable contribution made by Miss Milligan to the cost of acquiring the property. At the same time the court was prepared to ignore the fact, perfectly well known to it, of the parties illegal intentions. In common with Lord Toulson (paras 100 101), I consider that valuable insight into the appropriate approach to the significance of illegality under todays conditions is found in the judgment of McLachlin J (as she was) writing for the majority the Supreme Court of Canada in Hall v Hebert [1993] 2 SCR 159. The case concerned a claim in tort by a passenger against the owner of a car, who lost the keys when they fell out of the ignition when the car stalled and who decided in these circumstances that his passenger (who he knew to have drunk 11 or 12 bottles of beer) should drive while he tried to push start the car. Unsurprisingly, the manoeuvre led to the passenger losing control, the car turning over and the passenger being injured. The Canadian Supreme Court upheld the passengers claim, subject to contributory negligence. The majority in the Canadian Supreme Court rightly regarded the case as one of great importance. A number of points emerge with great clarity from McLachlin Js judgment: i) First, rejecting Cory Js suggestion that a power to reject claims on considerations of public policy should replace the maxim ex turpi causa non oritur action, McLachlin J expressed her concern that public policy would provide no clear guidance as to when judges could exercise this draconian power and upon what grounds. She went on: I fear that unless placed upon a firm doctrinal foundation and made subject to clear limits, this general power to invalidate actions on grounds of public policy might prove more problematic than has the troubled doctrine of ex turpi causa non oritur actio. We would be trading one label for another without coming to grips with the fundamental problem. (p 169) ii) Second, she saw tort, not contract, as the real problem area in relation to illegality, expressing the view that: The use of the doctrine of ex turpi causa to prevent abuse and misuse of the judicial process is well established in contract law and insurance law, where it provokes little controversy. The same cannot be said for tort. (p 171) iii) Third, after examining authorities where the maxim applied to prevent claimants from profiting or obtaining exemplary damages in circumstances of illegality, she identified its rationale in todays world, in terms which have equal relevance to contract and tort: The narrow principle illustrated by the foregoing examples of accepted application of the maxim of ex turpi causa non oritur actio in tort, is that a plaintiff will not be allowed to profit from his or her wrongdoing. This explanation, while accurate as far as it goes, may not, however, explain fully why courts have rejected claims in these cases. Indeed, it may have the undesirable effect of tempting judges to focus on the issue of whether the plaintiff is getting something out of the tort, thus carrying the maxim into the area of compensatory damages where its use has proved so controversial, and has defeated just claims for compensation. A more satisfactory explanation for these cases, I would venture, is that 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 web: Weinrib [Illegality as a Tort Defence (1976) 26 UTLJ 28], at p 42. We thus see that the concern, put at its most fundamental, is with the integrity of the legal system. (pp 175 176) iv) Fourth, McLachlin J said that such compensatory damages as were claimed in Hall v Hebert are not properly awarded as compensation for an illegal act, but only as compensation for personal injury. Such damages accomplish nothing more than to put the plaintiff in the position he or she would have been in had the tort not occurred. No part of the award which compensates injury can be said to be the profit of, or the windfall from, an illegal act. (p 176) In substance, McLachlin J can in this passage be said to have been applying a reliance test in tort. To establish a right to compensation, all that the plaintiff had to rely on was the tortious conduct, consisting of the causing of injury by negligent driving. v) Finally, she concluded that: there is a need in the law of tort for a principle which permits judges to deny recovery to a plaintiff on the ground that to do so would undermine the integrity of the justice system. The power is a limited one. Its use is justified where allowing the plaintiffs claim would introduce inconsistency into the fabric of the law, either by permitting the plaintiff to profit from an illegal or wrongful act, or to evade a penalty prescribed by criminal law. Its use is not justified where the plaintiffs claim is merely for compensation for personal injuries sustained as a consequence of the negligence of the defendant. (pp 179 180) In my opinion, what is called for is a limited approach to the effect of illegality, focused on the need to avoid inconsistency in the law, without depriving claimants of the opportunity to obtain damages for wrongs or to put themselves in the position in which they should have been. This will offer the opportunity of resolving such problems as have, rightly, been identified in the present law, without replacing it wholesale with an open and unsettled range of factors. The latter might, in McLachlin Js words, prove more problematic than has the troubled doctrine of ex turpi causa itself. McLachlin Js emphasis on the admissibility of compensatory claims leads me to the principle traditionally addressed under the head of locus poenitentiae. This principle in fact had a relevant role in the Tinsley v Milligan in so far as it was recognised as demonstrating that the effect of illegality is not to prevent a proprietary interest in equity from arising or to produce a forfeiture of such right: the effect is to render the equitable interest unenforceable in certain circumstances: per Lord Browne Wilkinson, p 374D. But its true significance is considerably greater. Where it applies, it fulfils a not dissimilar function to a claim for damages in tort. It puts the parties back in the position that they should have been in, in this case but for the entry into of the contract which was or became affected and unenforceable by reason of the illegality. In early authorities the principle was put in wide terms. Smith v Bromley (1760) 2 Doug KB 696n was a case where the plaintiff was able to recover money she had paid to procure her brothers discharge from bankruptcy, which was an illegal payment. The primary reason was that the law making it illegal was for the protection of bankrupts and their families (so that the plaintiff and the defendant were non in pari delictu). An editors footnote (F7) on p 697 gives this as one of two exceptions to the principle that, in a case of illegality, matters are left to lie where they fall (potior est conditio defendentis). But Lord Mansfield CJ reinforced this reason by the more general consideration at p 698, that, although the payment had been made for an illegal purpose: Upon the whole, I am persuaded it is necessary, for the better support and maintenance of the law, to allow this action; for no man will venture to take, if he knows he is liable to refund. The other exception identified in the footnote was that where the contract is not excecuted, there is a locus poenitentiae, the delictum is incomplete, and the contract may be rescinded by either party. In Neville v Wilkinson (1782) I Bro Ch 543, 547, Lord Thurlow LC approved this approach, and declared his opinion that: [I]n all cases where money was paid for an unlawful purpose, the party, though particeps criminis, might recover at law; and that the reason was, that if courts of justice mean to prevent the perpetration of crimes, it must be not by allowing a man who has got possession to remain in possession, but by putting the parties back to the state in which they were before. In Taylor v Bowers (1876) 1 QBD 291 possession of goods had been passed by the plaintiff, their owner, to A, in exchange for fictitious bills of exchange, in order to deceive creditors. But no compromise was achieved with creditors, the illegal transaction was not carried out, and it wholly came to an end (p 300). In these circumstances, the plaintiff successfully sought recovery of the goods: To hold that the plaintiff is enabled to recover does not carry out the illegal transaction, but the effect is to put everybody in the same situation as they were before the illegal transaction was determined upon, and before the parties took any steps to carry it out. (p 300) The plaintiff was not seeking to enforce the illegal transaction, but, on the contrary, setting it aside and not setting up his own fraud in order to make a title, but repudiating the fraud and setting up his own prior rightful title as owner of the goods (p 301). Like Lord Sumption (paras 245 252), I see this principle of rescission as having become unduly limited with time, particularly in 20th century authority, and I consider that it should be restored to its former significance and generalised. Further, I consider that there is no reason why rescission should necessarily be restricted, as it was even in these earlier authorities, by reference to a test of execution or carrying out of the illegal purpose. The logic of the principle is that the illegal transaction should be disregarded, and the parties restored to the position in which they would have been, had they never entered into it. If and to the extent that the rescission on that basis remains possible, then prima facie it should be available. In addition, as at present advised, I would not see any necessary objection to permitting rescission after part performance, by making, where possible, appropriate adjustments for benefits received. Equally, picking up points in Lord Neubergers judgment (para 162) which I have read since writing the bulk of this judgment, I would not as at present advised see an imbalance or lack of parity of delict between the parties as a necessary or even probable bar to rescission, though I would agree that, in accordance with general principle, factors such as change of position could well preclude rescission. Complications may also arise in a context where a benefit received under an illegal transactions is capable of forfeiture under the Proceeds of Crime Act 2002. We did not hear submissions on the position in such circumstances, and I express no opinion on it. On the above basis, reliance on illegality remains significant as a bar to relief, but only in so far as it is reliance in order to profit from or otherwise enforce an illegal contract. Reliance in order to restore the status quo is unobjectionable. The result is, as I see it, not dissimilar to that which (leaving aside the potential effects of section 7) results under section 6(1) of the New Zealand Illegal Contracts Act 1970, providing that: Notwithstanding any rule of law or equity to the contrary, but subject to the provisions of this Act and of any other enactment, every illegal contract shall be of no effect and no person shall become entitled to any property under a disposition made by or pursuant to any such contract The approach I adopt avoids unsatisfactory results such as that reached in Collier v Collier, where it would have been entirely possible to achieve rescission even though the illegal scheme had been in some measure executed or carried out. The father there could require the restoration of the property of which he had for an illegal purpose allowed his daughter to have the legal title. Similarly, in a situation like that in Tinsley v Milligan, it should be possible to avoid reliance on the artificial procedural concept of a presumption of a resulting trust. Such a presumption was available in that case to give effect to (though without necessarily referring to) the parties actual intentions regarding equitable ownership or the reason (although the court was well aware of it) for structuring the transactions as they were. But, as Collier v Collier demonstrates, an artificial procedural presumption of this nature cannot be relied upon to be available in every case. In future, Miss Milligan should simply be able to reverse the effect, as between herself and Miss Tinsley, of the property transactions which they arranged for the illegal purpose, which they carried out, of deceiving public authorities. Because the court would be reversing, rather than enforcing the illegal transactions, the court could take into account both the objective fact of joint contributions and the parties actual and, by itself, legal purpose of joint ownership. Setting on one side the transactions by which they sought to achieve their illegal purpose, the underlying equitable interests, which they shared based on their contributions and intentions, would be enforceable as such. The court could on that basis order the property to be registered in the joint names of Miss Tinsley and Miss Milligan. It follows from what I have so far said that I cannot accept Lord Toulsons view (para 116) that it is unnecessary to consider the scope of locus poenitentiae. The underlying concept behind locus poenitentiae is restitutionary. It recognises that neither an admission of nor reliance on illegality is a bar to relief involving the reversal of an illegal transaction. In the full restitutionary sense I have discussed, the concept must be seen as an integral part of the overall principle governing illegality, and as the corollary of McLachlin Js limited rationalisation of that principle. Understood in that sense, free of early 20th century moralising, it restores the position to what it would and should have been, without any illegality. It avoids windfall benefits and disproportionate losses, without involving the positive enforcement of or the recovery of profits based on illegal bargains. No doubt, however, it would be desirable to avoid the moral undertones of the Latin brocard, and to encapsulate the full width of the modern principle, by referring in future simply to parties normal entitlement to reverse the effects of an illegal transaction, where possible, even though the transaction may have been wholly or in part executed or carried into effect. It also follows that in the present case I consider that no problem exists about recognising that Mr Patel is entitled to require Mr Mirza to return the stake which Mr Patel put up for the illegal purpose of use by Mr Mirza to make profits for their joint benefit by misuse of inside information. The claim does not seek to enforce or profit by the illegality. It seeks merely to put the position back to where it should have been, and would have been had no such illegal transaction ever been undertaken. I add that, having written the above and read Lord Neubergers judgment in draft, it seems to me that, thus far, my analysis is essentially the same as that which Lord Neuberger describes in his judgment as the Rule. Before leaving the case, I must however return to the suggestion, unnecessary in my view for the resolution of this appeal, that the law of illegality should be generally rewritten. The new approach is advocated primarily by Lord Toulson, but Lord Neuberger appears, unless I have misunderstood him, to suggest that it could serve both as a potential modification or qualification of the Rule and as an approach to be adopted to claims positively to enforce a contract, and to claims for damages for breach of contract or a quantum meruit for services rendered under an illegal contract (see his paras 174 175 and 178 180). The new approach is ostensibly based by Lord Toulson on Hall v Hebert, but it is transmuted by the statement (by Lord Toulson in para 101) that: one cannot judge whether allowing a claim which is in some way tainted by illegality would be contrary to the public interest, because it would be harmful to the integrity of the legal system, without a) considering the underlying purpose of the prohibition which has been transgressed, b) considering conversely any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and c) keeping in mind the possibility of overkill unless the law is applied with a due sense of proportionality. We are, after all, in the area of public policy. That trio of necessary considerations can be found in the case law. Under consideration c), it is then indicated (paras 107 and 108) that: 107. In considering whether it would be disproportionate to refuse relief to which the claimant would otherwise be entitled, as a matter of public policy, various factors may be relevant. Professor Burrows list is helpful but I would not attempt to lay down a prescriptive or definitive list because of the infinite possible variety of cases. Potentially relevant factors include the seriousness of the conduct, its centrality to the contract, whether it was intentional and whether there was marked disparity in the parties respective culpability. 108. The integrity and harmony of the law permit and I would say require such flexibility. The reference to Professor Burrows list is to the list which Lord Sumption sets out and analyses in his paras 259 and 260. What is apparent is that this approach, would introduce not only a new era but entirely novel dimensions into any issue of illegality. Courts would be required to make a value judgment, by reference to a widely spread mlange of ingredients, about the overall merits or strengths, in a highly unspecific non legal sense, of the respective claims of the public interest and of each of the parties. But courts could only do so, by either allowing or disallowing enforcement of the contract as between the two parties to it, unless they were able (if and when this was possible) to adopt the yet further novelty, pioneered by the majority of the Australian court in Nelson v Nelson [1995] HCA 25, (1995) 184 CLR 538, of requiring the account to the public for any profit unjustifiably made at the public expense, as a condition of obtaining relief. Although other jurisdictions are invoked, it is notable how slender the basis for doing so is. It comes down to the New Zealand statute and the Australian authorities of Nelson v Nelson and Fitzgerald v F J Leonhardt Pty Ltd [1997] HCA 17, (1997) 189 CLR 215. We have no idea or information as to whether or not the approach there has proved unproblematic for the profession or the courts. What we do however have is an authoritative decision of the Canadian Supreme Court in Hall v Hebert, which does not in any way support the wholesale abandonment of a clear cut test, but rather explains and redefines the principle ex turpi causa in a manner which (consistently with the way in which the common law usually develops) offers every prospect of avoiding the evident anomalies which an over formalistic approach has in the past evidenced. Lord Toulson also starts his judgment with a series of paragraphs (1 to 9) instancing what are supposed to be problems existing under the present law. I would only say as to Holman v Johnson (1775) 1 Cowp 341 and Pearce v Brooks (1866) LR 1 Ex 213 that the question what constitutes knowing participation sufficient to render a contract unenforceable is a discrete problem, which is unlikely to be resolved any more simply under the range of factors approach now advocated. Likewise, the St John Shipping case [1957] 1 QB 267 and Ashmore Benson Pease & Co Ltd v A V Dawson Ltd [1973] 1 WLR 828 arose in areas where the purpose and effect of statutory provisions were central to the decision (as it was in cases such as Hall v Woolston Hall Leisure Ltd [2001] 1 WLR 225, Still v Minister of National Revenue (1997) 154 DLR (4th) 229 and Nizamuddowlah v Bengal Cabaret Inc (1977) 399 NYS 2d 854, mentioned by Lord Toulson in paras 6, 58 61 and 63 66). Questions as to the effect of collateral or minor illegality (such as parking on a double red line, instanced by Lord Neuberger in para 178) on the enforceability of contractual rights have not, I believe, led to real difficulty in achieving just solutions under these and other authorities (compare also McLachlin Js view cited in para 191(ii) above) and certainly not to such difficulty as to justify tearing up the existing law and starting again. Again, the new approach now advocated, with its wide range of additional factors, over and above statutory purpose and effect, would be unlikely to avoid similar analysis of statutory policy and similarly nice issues. More importantly, these are problems in areas far removed from the present, and do not to my mind throw any light on the issues we have to decide on this appeal. For the reasons I have given, which correspond with those given by Lord Clarke and Lord Sumption, I would dismiss this appeal. LORD CLARKE: As I see it, there is no disagreement between members of the court as to the correct disposal of this appeal. It is that the appeal must be dismissed because Mr Patel is entitled to restitution of the 620,000 that he paid to Mr Mirza on the basis that otherwise Mr Mirza would be unjustly enriched. As it seems to me, the application of orthodox principles of unjust enrichment, rescission and restitutio in integrum leads to this conclusion. Those principles are consistently set out by Lord Mance and Lord Sumption. Although Lord Sumption sets out a broader statement of principle, he agrees with Lord Mance and vice versa. As it seems to me, there is no difference between their approach and the application by Lord Neuberger of what he calls the Rule, which he defines in paras 145 and 146, as the right to return of money paid by the claimant to the defendant pursuant to a contract to carry out an illegal activity and the illegal activity is not in the event proceeded with owing to matters beyond the control of either party. Lord Sumption, at para 252, emphasises that the Rule arises automatically and by operation of law; a right to restitution that in principle follows from the legal ineffectiveness of the contract . I do not understand Lord Neuberger or Lord Mance to disagree with that. As Lord Neuberger says in para 146, the Rule is consistent with authority and with policy and renders the outcome in cases of contracts involving illegality and the maxim ex turpi causa non oritur action relatively clear and certain. As Lord Neuberger says at para 154, in agreement with Lord Mance, there is obvious attraction in the notion that, if all transfers made pursuant to an unexecuted illegal contract are re transferred, then the parties are back in the position they were, ie as if there had been no illegal contract, which would seem to comply with public policy. This approach does not require any balancing of a series of different factors. It simply applies the principles derived from the authorities to the facts of the case. Lord Neuberger, Lord Mance and Lord Sumption have referred in detail, and (so far as I can see) consistently, to the authorities over very many years. None of them supports a balancing of the kind suggested by Lord Toulson. To my mind the most important sources are the judgments of Lord Mansfield CJ in Holman v Johnson (1775) 1 Cowp 341 and McLachlin J (now CJ) in Hall v Hebert [1993] 2 SCR 159. Lord Mance sets out in para 191 what he calls a number of points which emerge with great clarity from McLachlin Js judgment. I will not repeat those passages here. The critical point for present purposes is that she stressed the importance of having a firm doctrinal foundation for what she described as a narrow principle. She was concerned, at p 169, that public policy would provide no clear guidance as to when judges could exercise this draconian power and upon what grounds. The draconian power was a power to reject claims on considerations of public policy. On the facts of Hall v Hebert she concluded that such compensatory damages as were claimed in that case were not properly to be regarded as awarded as compensation for an illegal act but only as compensation for personal injury. Then, as Lord Mance says, finally she concluded that: there is a need in the law of tort for a principle which permits judges to deny recovery to a plaintiff on the ground that to do so would undermine the integrity of the justice system. The power is a limited one. Its use is justified where allowing the plaintiffs claim would introduce inconsistency into the fabric of the law, either by permitting the plaintiff to profit from an illegal or wrongful act, or to evade a penalty prescribed by criminal law. Its use is not justified where the plaintiffs claim is merely for compensation for personal injuries sustained as a consequence of the negligence of the defendant. I entirely agree with that approach. I have always thought that the power of the court to deny recovery on the ground of illegality should be limited to well defined circumstances. I agree with Lord Mance in para 192 that, in the absence of such circumstances, claimants should not be deprived of the opportunity to obtain damages for wrongs or to put themselves in the position in which they should have been. As I see it, there is no need to replace that approach with what he calls an open and unsettled range of factors. I agree with Lord Sumptions opinion in this regard. As he puts it at para 257, the search for principle which led McLachlin J to identify consistency as the foundation of this area of the law was a response to Cory J, who had favoured a more flexible approach which would have depended upon whether the relevant public policy required that result on the facts of each case. The majority, including McLachlin J, did not agree. In para 258 Lord Sumption draws attention to the similar opinion of Lord Goff in Tinsley v Milligan [1994] 1 AC 340 at 358E F, where he objected to the public conscience test adopted in the Court of Appeal, under which the court must weigh, or balance, the adverse consequences of respectively granting or refusing relief. Lord Goff added that that was little different, if at all, from stating that the court has a discretion whether to grant or refuse relief and that it was very difficult to reconcile with the principle of policy stated by Lord Mansfield in Holman v Johnson. As Lord Sumption observes, on this point Lord Goff was supported by the whole of the Appellate Committee. Between paras 259 and 265 Lord Sumption considers what he calls the range of factors approach and gives his reasons for rejecting it. I agree with him, and will not repeat his reasoning here, save for the following passage at para 262(iv): The range of factors test discards any requirement for an analytical connection between the illegality and the claim, by making the nature of the connection simply one factor in a broader evaluation of individual cases and offering no guidance as to what sort of connection might be relevant. I have already observed that the reliance test is the narrowest test available. If it is no longer to be decisive, the possibility is opened up of an altogether wider ambit for the illegality principle, extending to cases where the relevant connection was remote or non existent but other factors not necessarily involving any connection at all, were thought to be compelling. In short, such a test does not apply the principles laid down in the cases, and is inconsistent with the approach in Tinsley v Milligan and, in particular, the reliance test. In para 265 Lord Sumption says that he cannot agree with the conclusion of Lord Toulson (at para 109) that the application of the illegality principle should depend on the policy factors involved and the nature and circumstances of the illegal conduct, in determining whether the public interest in preserving the integrity of the justice system should result in the denial of the relief claimed. I agree with Lord Sumption that this is far too vague and potentially far too wide to serve as the basis on which a person may be denied his legal rights. As he says, it converts a legal principle into an exercise of judicial discretion, in the process exhibiting all the vices of complexity, uncertainty, arbitrariness and lack of transparency which Lord Toulson attributes to the present law. The illegality defence deprives claimants of their legal rights. The correct response for us is not to leave the problem to a case by case evaluation by the lower courts by reference to a potentially unlimited range of factors, but to address the problem by supplying a framework of principle which accommodates legitimate concerns about the present law. Lord Mance expresses much the same conclusion in paras 204 to 207, with which I also agree. It is to my mind noteworthy that Lord Toulson puts his conclusion thus in para 109: The courts must obviously abide by the terms of any statute, but I conclude that it is right for a court which is considering the application of the common law doctrine of illegality to have regard to the policy factors involved and to the nature and circumstances of the illegal conduct in determining whether the public interest in preserving the integrity of the justice system should result in denial of the relief claimed. I put it in that way rather than whether the contract should be regarded as tainted by illegality, because the question is whether the relief claimed should be granted. The striking feature of that approach is as I see it that it puts the question, not whether the contract should be regarded as tainted by illegality but whether the relief claimed should be granted. That seems to me to be essentially a question of discretion, or at least a consideration of all the relevant factors in order to decide where the balance should be struck. As I see it, there is no support in any of the authorities for that approach and it is directly contrary to many of the cases referred to by Lord Sumption and Lord Mance, in particular the reasoning of the majority in Hall v Hebert and of the House of Lords in Tinsley v Milligan, where it was expressly rejected by Lord Goff. It would be close to reviving the public conscience test. In my opinion the question posed in para 109 is the wrong question. I recognise that common law principles develop from time to time. Two such developments are relevant here. The first is this. Lord Sumption and Lord Mance both focus on the scope of the principle of restitutio in integrum, as does Lord Neuberger. For example, Lord Neuberger first sets out the basis of the Rule, which seems to me to be consistent with the principles identified by Lord Sumption and Lord Mance. Thus in much of his judgment, notably in paras 145 to 160, Lord Neuberger stresses that the Rule supports the importance of certainty in the law. He then gives some examples of possible extensions of the Rule. So, for example, he says in paras 167 to 169 that the Rule may apply where the illegal contract is wholly or partly performed by the plaintiff paying a lesser sum to the defendant. I agree, but that is on the basis that it is essentially ordering restitution so far as appropriate in accordance with the underlying principle embodied in the Rule. As Lord Neuberger puts it in para 169, there is no good reason for not extending the Rule to partly or even wholly performed contracts where restitutio in integrum can be achieved in practical terms and would be consistent with policy and proportionality. As I read his judgment, save at the very end his approach is orthodox and contemplates a development of the legal principles identified by Lord Sumption and Lord Mance. The second relevant development is this. It is now recognised that some of the reasoning in Tinsley v Milligan can no longer stand: see in particular Lord Sumption at paras 236 to 239 and Lord Mance at paras 199 to 201. It is I think now accepted on all sides that, if Collier v Collier [2002] BPIR 1057 came before the courts today it would be decided differently. That is not however because the court will adopt the proposals of Lord Toulson but because the relevant legal principles have developed in a normal way. Finally, I should note that it is not in dispute that the appeal should be dismissed on conventional principles. I recognise that Lord Neuberger has expressed some support for the approach of Lord Toulson but I am not persuaded by his reasoning that it is appropriate. LORD SUMPTION: (with whom Lord Clarke agrees) Two questions arise on this appeal. The first is whether the contract between these parties is affected by the principle of public policy ex turpi causa non oritur actio (the illegality principle, as I shall call it). The second is whether, if so, Mr Patel is entitled to restitution of the 620,000 that he paid to Mr Mirza. The first question has divided the courts below. The Deputy Judge (David Donaldson QC) and the majority of the Court of Appeal (Rimer LJ and Vos LJ) thought it plain that Mr Patels claim was founded on an illegal agreement and could not be sustained unless he could invoke a special exception for executory agreements. They considered that there was such an exception. Gloster LJ on the other hand declined to see the problem in terms of rule and exception. At the risk of a rather crude summary of her thoughtful analysis, I would summarise her reasons as follows. Her first and main point (paras 67, 69 70, 72, 79 80) was that the rationale of the illegality rule did not require Mr Patel to be denied restitutionary relief, because it did not involve enforcing his contract with Mr Mirza or enabling him to derive any benefit from it. Mr Patels right to restitution was, she considered, collateral. Second, that Mr Mirza and Mr Patel were not equally blameworthy because Mr Mirza was a finance professional while Mr Patel was not, and would not necessarily have known that insider dealing was illegal. Third, section 63(2) of the Criminal Justice Act 1993 provided that no contract should be void or unenforceable by reason of the prohibition of insider dealing in section 52. The fourth was that Mr Patel did not need to rely on the illegal character of his agreement with Mr Mirza in order to recover the money. It was enough that he had paid it for a speculation that never occurred. The illegality principle and its rationale The present appeal exposes, not for the first time, a long standing schism between those judges and writers who regard the law of illegality as calling for the application of clear rules, and those who would wish address the equities of each case as it arises. There are recent statements of this court in support of both points of view: see Les Laboratoires Servier v Apotex Inc [2015] AC 340 and Hounga v Allen [2014] 1 WLR 2889, paras 44 45. It also raises one of the most basic problems of a system of judge made customary law such as the common law. The common law is not an uninhabited island on which judges are at liberty to plant whatever suits their personal tastes. It is a body of instincts and principles which, barring some radical change in the values of our society, is developed organically, building on what was there before. It has a greater inherent flexibility and capacity to develop independently of legislation than codified systems do. But there is a price to be paid for this advantage in terms of certainty and accessibility to those who are not professional lawyers. The equities of a particular case are important. But there are pragmatic limits to what law can achieve without becoming arbitrary, incoherent and unpredictable even to the best advised citizen, and without inviting unforeseen and undesirable collateral consequences. Ancient as it is, the classic statement of the principle as it has traditionally been understood remains that of Lord Mansfield CJ in Holman v Johnson (1775) 1 Cowp 341: 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. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon 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 he has no right to be assisted. There was a time when the courts approached the application of the illegality principle on the footing that a court should not be required to sully its hands by dealing with criminal ventures. In Everet v Williams (1725), noted at (1893) LQR 197, the notorious case in which two highwaymen sought an account of the division of their profits, the court not only dismissed the action but fined the plaintiffs solicitors for the indignity visited upon it. There are periodic echoes of this attitude in later cases, notably Parkinson v College of Ambulance Ltd [1925] 2 KB 1, 13, in which Lush J thought that no adjudication on a contract to procure an honour could be undertaken with propriety or decency. This notion has sometimes been thought to derive support from Lord Mansfields reference to the court withholding its aid. But the truth is that it has rarely risen above the level of indignant judicial asides. There are many purposes for which courts must necessarily inquire into the illegal acts of litigants. There are principled exceptions to the illegality principle, which may entitle a party to base a claim on an illegal act. There are statutory schemes of apportionment which may require liability for dishonest acts to be distributed among the wrongdoers. The notion of judicial abstention could never be unqualified, nor has it been historically. The law, as Bingham LJ observed in Saunders v Edwards [1987] 1 WLR 1116, 1134, must 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. In its consultative report of 2009, The Illegality Defence (LCCP 189), at para 2.5, the Law Commission identified six policy rationales for the rule, which could be found in the case law and the academic literature. They were: (1) furthering the purpose of the rule which the claimant's illegal behaviour has infringed; (2) consistency; (3) the need to prevent the claimant profiting from his or her own wrong; (4) deterrence; (5) maintaining the integrity of the legal system; and (6) punishment. By maintaining the integrity of the legal system (rationale (5)), the Law Commission meant sparing the judiciary from involvement in serious wrongdoing: see para 2.24. I have given my reasons for rejecting this rationale. The Law Commission itself (paras 2.28 2.29) rejected rationale (6), punishment, on the ground that although rules of civil law might have a punitive effect, this was no part of their purpose. With very limited exceptions, such as certain rules of causation in fraud cases or the rare occasions for awarding punitive damages, I think that this is correct. The other four rationales overlap. All of them to my mind are subsumed in no (2), the principle of consistency. The most influential statement of that principle is to be found in the much admired judgment of McLachlin J delivering the judgment of the majority of the Supreme Court of Canada in Hall v Hebert [1993] 2 SCR 159, 169: Whether we describe the principle under which judges are allowed to deny recovery to a plaintiff by an old fashioned Latin name or by the currently fashionable concept of public policy, the underlying problem remains the same: under what circumstances should the immoral or criminal conduct of a plaintiff bar the plaintiff from recovering damages to which he or she would otherwise be entitled. My own view is that courts should be allowed to bar recovery in tort on the ground of the plaintiffs immoral or illegal conduct only in very limited circumstances. The basis of this power, as I see it, lies in 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 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. After examining cases in which damages were refused when they represented a loss of benefits which would have been derived from an illegal contract or activity, she observed, at p 176: A more satisfactory explanation for these cases, I would venture, is that 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 web. Her conclusion, at pp 179 180, was that: there is a need in the law of tort for a principle which permits judges to deny recovery to a plaintiff on the ground that to do so would undermine the integrity of the justice system. The power is a limited one. Its use is justified where allowing the plaintiffs claim would introduce inconsistency into the fabric of the law, either by permitting the plaintiff to profit from an illegal or wrongful act, or to evade a penalty prescribed by criminal law. Hall v Hebert was a tort case, and the implications of illegality are not in all respects the same in the law of tort as in they are other branches of law. I shall return to this point below. But, as McLachlin J pointed out in the passage cited, the law is a unified institution. At the most fundamental level of policy, its internal coherence requires that contract, tort and criminal law should be in harmony. In practice the illegality principle has almost invariably been raised as a defence to a civil claim based on a breach of the criminal law. In Les Laboratoires Servier v Apotex Inc [2015] AC 430, this court held that with immaterial exceptions the defence is available only in such cases. This conclusion tends to reinforce the significance of the principle of consistency as a rationale. The civil courts of the state cannot coherently give effect to legal rights founded on criminal acts which are contrary to the states public law. There is no reason to regard this as any less important according to whether the civil claim lies in contract or tort. The English courts have taken a broader view than McLachlan J did of what constitutes profiting from an illegal act, but that is by the way. Her rationalisation of the illegality principle as being based on the consistency and internal coherence of the law has been consistently adopted in England in tort and contract cases alike by this court and by the Appellate Committee of the House of Lords before it: see R v Islam [2009] AC 1076, para 38 (Lord Mance); Stone and Rolls Ltd v Moore Stephens [2009] 1 AC 1391, paras 128 (Lord Walker), 226 (Lord Mance); Hounga v Allen [2014] 1 WLR 2889, para 43 (Lord Wilson); Les Laboratoires Servier v Apotex Inc [2015] AC 430, para 24 (Lord Sumption); Bilta (UK) Ltd v Nazir (No 2) [2016] AC 1, para 172 (Lord Toulson and Lord Hodge). In Gray v Thames Trains [2009] 1 AC 1339, Lord Hoffmann (with whom the rest of the Appellate Committee agreed) put forward the principle of consistency as the rationale of what he called the narrower rule precluding the recovery of damages representing loss directly arising from the sentence of a criminal court. He was inclined to think that the wider rule that a person cannot recover for damage which is the consequence of his own criminal act was based on a different principle concerned with public notions of the fair distribution of resources: para 51, and cf Lord Rodger at para 84. Certainly, the inconsistency of awarding damages representing loss arising from a criminal sentence is more obvious and direct than it is when the claimant is claiming other damages causally flowing from his commission of a crime. But it seems to me, as it did to McLachlan J and those who have adopted her approach more generally, that the internal coherence of the law is also the reason why it will not give effect in a civil court to a cause of action based on acts which it would punish in a criminal court. As Lord Hughes put it in Hounga v Allen (para 55), a dissenting judgment but not on this point, 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. When is a civil claim founded on an illegal act? The starting point is that the courts exist to provide remedies in support of legal rights. It is fundamental that any departure from that concept should have a clear justification grounded in principle, and that it should be no more extensive than is required by that principle. The underlying principle is that for reasons of consistency the court will not give effect, at the suit of a person who committed an illegal act (or someone claiming through him), to a right derived from that act. The test which has usually been adopted for determining whether this principle applies is the reliance test. The question is whether the person making the claim is obliged to rely in support of it on an illegal act on his part. The reliance test is implicit in Lord Mansfields statement of principle, which assumes that the plaintiffs action is founded on his illegal act. But the modern origin of the test is the decision of the Court of Appeal in Bowmakers Ltd v Barnet Instruments Ltd [1945] 1 KB 65, which concerned a hire purchase agreement illegal under wartime regulations. When the hirer disposed of the goods, the owner was held entitled to damages for conversion notwithstanding the illegality, because his right of action was based on his ownership. He could establish that without relying on the illegal hire purchase agreement. The reliance test was subsequently approved by the Privy Council in Singh v Ali [1960] AC 167 and Chettiar v Chettiar [1962] AC 294 and by the House of Lords in Tinsley v Milligan [1994] 1 AC 340. All of these decisions, were about title to property, real or personal. But in Clunis v Camden and Islington Health Authority [1998] QB 978 the Court of Appeal applied it to a claim in tort. In St John Shipping Co Ltd v Joseph Rank Ltd [1957] 1 QB 267, 291 292, Devlin J had applied it to a claim for freight under a contract of carriage. In Hewison v Meridian Shipping Services PTE Ltd [2003] ICR 766, the Court of Appeal applied it to a concurrent claim for damages in contract and tort in which the measure of damages depended on the terms of a contract. The claimants action for damages against his employer for an injury at work failed because in order to prove his loss of earnings he had to show that he would have continued to deceive his employer about his fitness to operate machinery, as he had in the past. There is, as these decisions suggest, nothing about the reliance test that limits its relevance to certain causes of action. But the test may apply in different ways, depending on what it is that the law regards as illegal. In a tort case or a property case it is generally enough to identify the illegal act and demonstrate the dependence of the cause of action upon the facts making it illegal. In a contract case, the position is less straightforward. A contract may be affected by illegality because terms lawful in themselves are intended to be performed in an illegal way or for an illegal purpose not apparent from the contract itself. This does not mean that contracts vitiated by this circumstance can be enforced simply by putting the case without reference to the illegal purpose or proposed mode of performance. It is enough to give rise to the defence that the claimant must rely on a contract which is in fact illegal, whether that is apparent from the terms or not. The problem about the reliance test is not so much the test itself as the way in which it was applied in Tinsley v Milligan. The facts of that case are well known. Ms Tinsley and Ms Milligan contributed in approximately equal shares to the cost of buying a house in which both of them intended to live and run their lodging rooms business. They decided that it would be conveyed into the sole name of Ms Tinsley so as to enable Ms Milligan to defraud the Department of Social Security by pretending that she did not own her home and paid rent. Ms Tinsley claimed an order for possession on the footing that she was the sole owner. The Appellate Committee held by a majority that Ms Milligan was entitled to assert a 50% interest in the house notwithstanding the illegal purpose for which it had been conveyed into Ms Tinsleys sole name. There were two stages in the reasoning of Lord Browne Wilkinson, who delivered the leading speech for the majority. The first was that where property is transferred for an illegal purpose, the transferee nevertheless obtains a good title, notwithstanding that the transaction being illegal it would not have been specifically enforced. This is so whether the title in question is legal or equitable. The decision of the majority on this point settled a question on which there had been inconsistent authorities dating back to the beginning of the 19th century. It did so in a way which reflected the laws traditional reluctance to disturb settled titles. The result represents a notable difference between the law relating to the creation of legal or equitable titles and the law relating to contractual obligations generally. It means that although a contract may be vitiated by its illegal purpose or the illegal way in which it was intended to be performed, this is not true of title to property. It followed in that case that Ms Tinsley had a good title to the disputed property. The second stage of the reasoning was that an equitable interest in the property would also be recognised, provided that the person claiming it was not forced to plead or rely on the illegality (p 376E). In Ms Milligans case, equity presumed a resulting trust in her favour by virtue only of her contribution to the purchase price. She did not therefore have to plead or prove the reasons why the property had been conveyed into Ms Tinsleys sole name. It followed that she could make good her claim to an interest. The problem about this is that it makes the illegality principle depend on adventitious procedural matters, such as the rules of pleading, the incidence of the burden of proof and the various equitable presumptions. If Ms Tinsley had been a man and Ms Milligan had been his daughter, the decision would have gone the other way because the presumption of resulting trust would have been replaced by a presumption of advancement. She would have had to rebut it by reference to the actual facts. This is what the Privy Council decided in Chettiar v Chettiar [1962] AC 294 and the Court of Appeal in Collier v Collier [2002] BPIR 1057, in both of which property was gratuitously transferred for an illegal purpose by a father to his son or daughter. The father was accordingly unable to establish his interest. Yet the distinction between these cases and Tinsley v Milligan is completely arbitrary. This is because the equitable presumptions operate wholly procedurally, and have nothing to do with the principle which the court is applying in illegality cases. In Nelson v Nelson (1995) 184 CLR 538, the majoritys analysis in Tinsley v Milligan was criticised on this ground in the High Court of Australia: see pp 579 580 (Dawson J), 592 593 (Toohey J), 609 610 (McHugh J). In my opinion, these criticisms are justified, although I would not go as far as McHugh did in Nelson v Nelson. He, alone among the judges of the High Court of Australia, would have jettisoned the reliance test altogether. What then is the true principle? In property cases, as the House held in Tinsley v Milligan, title is not vitiated by an antecedent illegal arrangement. An equitable interest in property may accordingly arise from a tainted scheme. Whether an equitable interest exists depends on the intentions of the parties. The true principle is that the application of the illegality principle depends on what facts the court must be satisfied about in order to find an intention giving rise to an equitable interest. It does not depend on how those facts are established. Ms Milligan was entitled to the interest which she claimed in the property because she paid half of the price and there was no intention to make a gift. That was all that the court needed to be satisfied about. Likewise, if Collier v Collier were to come before the courts today, the result should be the same notwithstanding that the equitable presumption went the other way. Mr Collier leased his property to his daughter for an illegal purpose, namely to deceive his creditors in the event that he became insolvent. He had an equitable interest in the property because the lease was gratuitous and there was no intention to make a gift. It would make no difference to the recognition of that interest that the purpose of the transaction was illegal. Why he chose to organise his affairs in that way would no doubt emerge in the course of the evidence, but would be irrelevant to the facts which founded his claim. The point was well made by Dawson J in Nelson v Nelson, at p 580: There may be an illegal purpose for the transfer of the property and that may bear upon the question of intention, but it is the absence of any intention to make a gift upon which reliance must be placed to rebut the presumption of advancement. Intention is something different from a reason or motive. The illegal purpose may thus be evidentiary, but it is not the foundation of a claim to rebut the presumption of advancement. Shorn of the arbitrary refinements introduced by the equitable presumptions, which in any event apply only in property cases, the reliance test accords with principle. First, it gives effect to the basic principle that a person may not derive a legal right from his own illegal act. Second, it establishes a direct causal link between the illegality and the claim, distinguishing between those illegal acts which are collateral or matters of background only, and those from which the legal right asserted can be said to result. Third, it ensures that the illegality principle applies no more widely than is necessary to give effect to its purpose of preventing legal rights from being derived from illegal acts. The reliance test is the narrowest test of connection available. Every alternative test which has been proposed would widen the application of the defence as well as render its application more uncertain. This last objection applies in particular to the main alternative test which has been proposed in the case law, namely that the facts relied upon should be inextricably linked with the illegal act. The difficulty about inextricable linkage as a test of connection is that it is far from clear what it means. On the face of it, the only link between the illegal act and the claim which is truly inextricable, is a link based on causation and necessary reliance. So far as the test of inextricable linkage broadens the required connection more widely, it seems to me to be contrary to principle. Its vices may be illustrated by reference to the decision in Cross v Kirkby [2000] EWCA Civ 426, The Times 5 April 2000, where it was first proposed by Beldam LJ. The facts were that a hunt saboteur started a fight with a hunt follower at a meet and came out of it worst. He ended up with a fractured skull, and sued the hunt follower for damages occasioned by his injuries. The main issue was whether the hunt follower had defended himself with excessive force. Beldam LJ held that he had not. But in case he was wrong about that, he held that the saboteurs injuries were inextricably linked with the fact that he had started the fight, so that his claim was barred by the illegality principle. Otton LJ agreed generally with Beldam LJ, but Judge LJ agreed only on the primary ground. To my mind, Beldam LJs alternative ground was unprincipled. It only arose if the hunt follower responded to the attack with excessive force, and on that footing it was irrelevant who started the fight. The illegality principle served simply to deprive the plaintiff of a proper claim arising from the unlawful use of excessive force against him. The case illustrates the tendency of any test broader than the reliance test to degenerate into a question of instinctive judicial preference for one party over another. Exceptions To the principle that a person may not rely on his own illegal act in support of his claim, there are significant exceptions, which are as old as the principle itself and generally inherent in it. These are broadly summed up in the proposition that the illegality principle is available only where the parties were in pari delicto in relation to the illegal act. This principle must not be misunderstood. It does not authorise a general enquiry into their relative blameworthiness. The question is whether they were legally on the same footing. The case law discloses two main categories of case where the law regards the parties as not being in pari delicto, but both are based on the same principle. One comprises cases in which the claimants participation in the illegal act is treated as involuntary: for example, it may have been brought about by fraud, undue influence or duress on the part of the defendant who seeks to invoke the defence. The best known example is Burrows v Rhodes [1899] 1 QB 816, where the illegality consisted in the plaintiff having enlisted in the defendants private army for the Jameson raid, contrary to the Foreign Enlistment Act 1870. The illegality principle was held not to arise because he had been induced to do so by the defendants fraudulent misrepresentation that the raid had the sanction of the Crown, which if true would have made it legal. Cases in which the illegality consisted in the act of another for which the claimant is responsible only by virtue of a statute imposing strict liability, fall into the same category: see Osman v J Ralph Moss Ltd [1970] 1 Lloyds Rep 313; Les Laboratoires Servier v Apotex [2015] AC 430, para 29. In such cases, however, the construction and purpose of the statute in question will call for careful attention. The other category comprises cases in which the application of the illegality principle would be inconsistent with the rule of law which makes the act illegal. The paradigm case is a rule of law intended to protect persons such as the plaintiff against exploitation by the likes of the defendant. Such a rule will commonly require the plaintiff to have a remedy notwithstanding that he participated in its breach. The exception generally arises in the context of acts made illegal by statute. In Browning v Morris (1778) 2 Cowp 790, 792, Lord Mansfield expressed the point in this way: Where contracts or transactions are prohibited by positive statutes for the sake of protecting one set of men from another set of men, the one, from their situation and condition being liable to be oppressed or imposed upon by the other, there the parties are not in pari delicto; and in furtherance of these statutes, the person injured, after the transaction is finished and completed, may bring his action and defeat the contract. The classic modern illustration is Kiriri Cotton Co Ltd v Dewani [1960] AC 192, in which a tenant was held entitled to recover an illegal premium paid to the landlord, notwithstanding that his payment of it involved participating in a breach of an ordinance regulating tenancies. Lord Denning, delivering the advice of the Privy Council, observed at p 205 that: The duty of observing the law is firmly placed by the Ordinance on the shoulders of the landlord for the protection of the tenant. Hounga v Allen [2014] 1 WLR 2889 on its facts illustrates the same principle. The claimant had been illegally trafficked into the United Kingdom by her employer. Her vulnerability on that account enabled her employer to exploit and ultimately to dismiss her. An attempt to bar her claim for unlawful discrimination on account of her participation in her own illegal trafficking failed. There was no claim under the employment contract itself, which was illegal, but it may well be that a claim for a quantum meruit for services performed would have succeeded on the same ground. There is New York authority for such a result: see Nizamuddowlah v Bengal Cabaret Inc (1977) 399 NYS 2d 854. Protective statutes are the plainest examples of rules of law which implicitly exclude the operation of the illegality principle, but they are not the only ones. Some statutes, on their proper construction, are inconsistent with the application of the illegality principle even if they are in no sense protective. The statutory prohibitions against the overloading of ships are wholly directed to the operational safety of ships and their crews. On that ground, among others, Devlin J held in St John Shipping Corpn v Joseph Rank Ltd [1957] 1 QB 267 that a breach of the Merchant Shipping (Safety and Load Line Conventions) Act 1932 did not justify shippers and bill of lading holders in defending an action for freight. For the same reason, the illegality principle has been held to have no application to claims to contribution under the Civil Liability (Contribution) Act 1978. The reason is that this would be inconsistent with the scheme of the Act: K v P [1993] Ch 140. In Stone and Rolls Ltd v Moore Stephens [2009] AC 1391, three members of the Appellate Committee, Lord Phillips, Lord Scott and Lord Mance, regarded the application of the illegality principle to an auditors negligence as turning on the purpose of the auditors statutory functions, although they reached different conclusions about what that purpose was. Restitution and loci poenitentiae The next question is whether the illegality principle bars an action for the recovery of the money which Mr Patel paid under the contract. English law does not have a unified theory of restitution. Failure or absence of basis, which supplies such a theory in most civil law systems, was rejected as the overarching rationale of the law of restitution in Woolwich Equitable Building Society v Inland Revenue Comrs [1993] AC 70, 172 (Lord Goff). For the moment, therefore, as Lord Hoffmann observed in Deutsche Morgan Grenfell Group plc v Inland Revenue Comrs [2007] 1 AC 558, para 21, the claimant has to prove that the circumstances in which the payment was made come within one of the categories which the law recognizes as sufficient to make retention by the recipient unjust. It is nonetheless true that failure of basis is the reason (or at least a reason) why the retention of a benefit is treated in some categories of case as unjust. One of these is the category of case in which a money benefit is conferred on the recipient under or in anticipation of a contract and the basis for that transfer has failed, for example by frustration, total failure of consideration or want of contractual capacity or vires on the part of one of the parties. As a general rule, benefits transferred under a contract which is void or otherwise legally ineffective are recoverable: Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1994] 4 All ER 890 (Hobhouse J), approved (obiter) on appeal to the House of Lords [1996] AC 669, 681 682 (Lord Goff), 714 (Lord Browne Wilkinson), 723 (Lord Woolf). In Guinness Mahon & Co Ltd v Kensington and Chelsea Royal London Borough Council [1999] QB 215, the Court of Appeal held that the ineffectiveness of the transaction was a ground of restitution independent of total failure of consideration, and therefore available even if the contract had been partly performed. The reason, as Morritt LJ observed (p 230) is that: The bank did not get in exchange for that performance all it expected, for it did not get the benefit of the contractual obligation. One would expect the same reasoning to apply where the contract is unenforceable for illegality. In fact, however, the courts have not said this. The reason is that they have treated restitution as being available only where the payer was entitled to a locus poenitentiae in which to withdraw from the transaction. The breadth of this locus has varied with judicial fashion, but for much of the 20th century it was very narrowly interpreted indeed. This approach is not consistent with the recognition of a general right to the restitution of money paid under an illegal contract, in spite of the close analogy with other cases of ineffective contracts. In one sense, the contract between these parties may be said to have been frustrated by the failure of the inside information to materialise, or to have resulted in a total failure of consideration because as a result the shares were never purchased. But that cannot be an adequate explanation of the reason why someone in Mr Patels position may be entitled to restitution even on the limited basis which the concept of a locus poenitentiae allows. That concept permits the recovery of money paid even before (indeed, especially before) the time for performance has arrived, and therefore in many cases before the contract was frustrated or the question of failure of consideration could arise. The ground of restitution in these circumstances can only be that the contract was illegal and that the basis for the payment had failed. Of course, in order to demonstrate that the basis for the payment had failed, Mr Patel must say what that basis was, which would necessarily disclose its illegality. In my opinion, the reason why the law should nevertheless allow restitution in such a case is that it does not offend the principle applicable to illegal contracts. That principle, as I have suggested above, is that the courts will not give effect to an illegal transaction or to a right derived from it. But restitution does not do that. It merely recognises the ineffectiveness of the transaction and gives effect to the ordinary legal consequences of that state of affairs. The effect is to put the parties in the position in which they would have been if they had never entered into the illegal transaction, which in the eyes of the law is the position which they should always have been in. The judges who first formulated the modern law of illegality at the end of the 18th century had no difficulty about this. In Smith v Bromley (1760) 2 Doug 696n, 697, one of Lord Mansfields earliest statements on this area of law, he thought that restitution of an illegal consideration was necessary for the better support and maintenance of the law. In Neville v Wilkinson (1782) Lord Chancellor Thurlow referred to this statement and declared his opinion, that, in all cases where money was paid for an unlawful purpose, the party, though particeps criminis, might recover at law; and that the reason was, that if courts of justice mean to prevent the perpetration of crimes, it must be not by allowing a man who has got possession to remain in possession, but by putting the parties back to the state in which they were before. This was the basis on which relief was granted, at any rate by Mellish LJ and Bagallay LJ, in Taylor v Bowers (1876) 1 QBD 291 traditionally regarded as the leading case, and by Lord Atkinson delivering the advice of the Privy Council in Petherpermal Chetty v Muniandi Servai (1908) LR 35 Ind App 98, 103. In the course of the twentieth century, the law took a different and to my mind less satisfactory turn. The courts began to treat the right of restitution as depending on the moral quality of the plaintiffs decision to withdraw. They reasoned that if the object of allowing restitution was to encourage withdrawal from an illegal venture, it ought to be withheld if the claimant had withdrawn involuntarily, for example because the other party withdrew first or the venture became impossible or failed for some reason other than his genuine regret. Although there are earlier traces of this notion, it is first overtly expressed in Parkinson v College of Ambulance [1925] 2 KB 1, 16, where Lush J suggested that there was no locus poenitentiae if there was no penitence. It may be said to have reached its high point in the three decisions in Alexander v Rayson [1936] 1 KB 169, Berg v Sadler & Moore [1937] 2 KB 158 and Bigos v Bousted [1951] 1 All ER 92. The concept of penitential withdrawal leads to difficult distinctions and suggests an enquiry into a partys state of mind of a kind which the law rarely contemplates. It was rejected, rightly to my mind, by Millett LJ in Tribe v Tribe [1996] Ch 107, 135 Justice is not a reward for merit, he said: restitution should not be confined to the penitent. I agree. But for the same reason I would reject the suggestion that Millett LJ went on to make that the right to restitution should still depend on the voluntary character of the plaintiffs withdrawal. As with the notion of penitence, this is to put a moral gloss on a principle that depends simply on the right to restitution that in principle follows from the legal ineffectiveness of the contract under or in anticipation of which the money was paid. The courts view about when the right of restitution ceases to be available has closely reflected the way in which they have analysed that right. At the outset, and throughout the 19th century, they held that the right of restitution ceased in contract cases once the contract had been executed at least in part. The reason for this was that they viewed the right of restitution as arising from a principle analogous to rescission for mistake or misrepresentation. They therefore applied to it the then current doctrine that an executed contract could not be rescinded at law except for fraud. In Lowry v Bourdieu (1780) 2 Doug 468, 471, Buller J observed that in this context there was a sound distinction between contracts executed and executory; and if an action is brought to rescind a contract, you must do it while the contract continues executory. Lord Mansfield, who sat in that case, presumably agreed, for he had expressed the same view less expansively in Browning v Morris (1778) 2 Cowp 790. Later, when the courts came to regard the locus poenitentiae as depending on the moral quality of the plaintiffs reason for resiling, they reframed the proposition so as to suggest that the right of restitution ceased to be available when the illegal purpose of the venture had been carried out. This might be the same as the point of time when the contract was executed. But it might be later, as in the numerous cases where a person nominally transferred his property to another with a view to defrauding his creditors. This test seems to me to be practically unworkable. Are we to distinguish between cases where the relevant representation was never made to the creditors and cases where it was but they did not believe it? More fundamentally, it proceeds from the same spurious moral gloss on the legal principle as the notion that the claimants withdrawal must have been voluntary or penitent. The rule against rescinding executed contracts has now gone, and the limitation to cases in which the unlawful purpose has not been carried out never was sound. The rational rule, which I would hold to be the law, is that restitution is available for so long as mutual restitution of benefits remains possible. In most such cases, the same facts will give rise to a defence of change of position. I would also reject the dicta, beginning with Tappenden v Randall (1801) 2 B&P 467, 470 and Kearley v Thomson (1890) 24 QBD 742, 747, to the effect that there may be some crimes so heinous that the courts will decline to award restitution in any circumstances. There are difficulties about distinguishing between degrees of illegality on what must inevitably be a purely subjective basis. But the suggestion is in any event contrary to principle. If I pay 10,000 to a hitman to kill my enemy, he should not kill my enemy and should not have 10,000. The fact that when it comes to the point he is unwilling or unable to kill my enemy does not give him any legal or moral entitlement to keep the 10,000. If he does kill him, the rational response is the same. He should be convicted of murder, but he should never have received the money for such a purpose and by the same token should not be allowed to retain it. Of course, in practice, this is all rather artificial. In a case involving heinous crimes, both parties would be exposed to confiscation orders under the Proceeds of Crime Act 2002. St Thomas Aquinas thought the ideal solution to such a conundrum was that neither party should have the money, which should be paid to charity: Summa Theologica II.2, Q 62, para 5. The courts have no power to order that, but statute has now intervened to produce something like the same result. I say nothing about cases in which an order for restitution would be functionally indistinguishable from an order for enforcement, as in a case of an illegal loan or foreign exchange transaction. The traditional view is that if the law will not enforce an agreement it will not give the same financial relief under a different legal label: Boissevain v Weil [1950] AC 327. I am inclined to think that the principle is sound, but I should prefer not to express a concluded view on the point. It is not the position here. The rule based approach and the range of factors approach I can now return to the judicial schism to which I referred at the outset of this judgment. A convenient starting point is the Supreme Court of Canadas decision in Hall v Hebert, to which I have already referred. It is important to remember that the search for principle which led McLachlin J to identify consistency as the foundation of this area of law was a response to the judgment of Cory J in the same case. He had favoured a more flexible test for applying the illegality principle, which would have depended on whether the relevant public policy required that result on the facts of each case: see p 205. That approach was not accepted by the rest of the court. Part of McLachlin Js concern about it arose from the absence of clear guidance as to when judges could exercise this draconian power and upon what grounds. I fear that unless placed upon a firm doctrinal foundation and made subject to clear limits, this general power to invalidate actions on grounds of public policy might prove more problematic than has the troubled doctrine of ex turpi causa non oritur actio. We would be trading one label for another without coming to grips with the fundamental problem. (p 169) In Tinsley v Milligan [1994] 1 AC 340, a similar view was taken by Lord Goff. I have cited extensively from this part of his speech in my judgment in Les Laboratoires Servier v Apotex Inc [2015] AC 430, para 16, and the exercise need not be repeated here. In summary, Lord Goff objected to a test for applying the illegality principle which would require the court to weigh, or balance, the adverse consequences of respectively granting or refusing relief (p 358E F). The adoption of such a test, he considered, at p 363, 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. On this point, Lord Goff was supported by the whole of the Appellate Committee. For many years, the chief critic of this approach was the Law Commission, which at one stage proposed legislation along the lines of the New Zealand Illegal Contracts Act 1970 to make the application of the illegality principle subject to a broad judicial discretion. More recently, Professor Burrows has proposed that the same solution should be adopted by judicial decision, in his Restatement of the Law of Contract (2016). He would make the application of the illegality principle dependent, at any rate in contract cases, on a range of factors approach. This would require the judge to assess whether to deny a remedy would be an appropriate response to the claimants conduct, taking account where relevant of eight factors. These factors are for the most part derived from the Law Commissions Consultative Report (paras 8.3, 8.11). They are: (a) how seriously illegal or contrary to public policy the conduct was; (b) whether the party seeking enforcement knew of, or intended, the conduct; (c) how central to the contract or its performance the conduct was; (d) how serious a sanction the denial of enforcement is for the party seeking enforcement; (e) whether denying enforcement will further the purpose of the rule which the conduct has infringed; (f) whether denying enforcement will act as a deterrent to conduct that is illegal or contrary to public policy; (g) whether denying enforcement will ensure that the party seeking enforcement does not profit by the conduct; (h) whether denying enforcement will avoid inconsistency in the law, thereby maintaining the integrity of the legal system. Lord Toulson, in his judgment on the present appeal, supports this approach while suggesting that yet further factors may also be relevant. With the arguable exception of (a) and (d) all of the considerations identified by Professor Burrows have been influential factors in the development of the rules of law comprised in the illegality principle as it stands today. Thus (b) is reflected in the requirement that, except where the making of the contract was itself illegal, there should have been some degree of participation by the claimant in the illegal act. It is also reflected in the exception for cases in which he was liable for the acts of another by virtue only of a rule imposing strict liability. As to (c), the purpose of the reliance test is to confine the illegality principle to cases in which the illegal act was truly central. Factor (e) is the basis of the exception discussed earlier in this judgment for cases in which the application of the illegality principle would be inconsistent with the legal rule which makes the act illegal, for example because its object is the protection of someone in the position of the claimant. It is also the basis on which claims are allowed for the restitution of money paid under an illegal contract. As to (f) and (g), there can be no doubt that historically the hope of deterring illegal conduct and depriving those responsible of any benefit arising from it have been important factors in the development of the illegality principle, although I personally doubt whether any but the best advised litigants have enough knowledge of the law to be deterred by it. Factor (h), as I have suggested, is the most widely accepted rationale for the illegality principle in the modern law. The real issue, as it seems to me, is whether the range of factors identified by the Law Commission and Professor Burrows are to be regarded (i) as part of the policy rationale of a legal rule and the various exceptions to that rule, or (ii) as matters to be taken into account by a judge deciding in each case whether to apply the legal rule at all. As matters stand, the former approach represents the law. The latter would require the courts to weigh, or balance, the adverse consequences of respectively granting or refusing relief on a case by case basis, which was the very proposition that the House of Lords unanimously rejected in Tinsley v Milligan. We are entitled to change the law, but if we do that we should do it openly, acknowledging what we are doing and assessing the consequences, including the indirect consequences, so far as we can foresee them. In my opinion, it would be wrong to transform the policy factors which have gone into the development of the current rules, into factors influencing an essentially discretionary decision about whether those rules should be applied. Neither party contended for such a result, and their reticence was in my view entirely justified. It would be unprincipled and uncertain, and far from confining the ambit of the illegality principle to its essential minimum, it could only broaden it beyond its proper limits. Perhaps most important of all, justice can be achieved without taking this revolutionary step. The reason why the application of the range of factors test on a case by case basis is unprincipled is that it loses sight of the reason why legal rights can ever be defeated on account of their illegal factual basis. It is I think right to make four points: i) Whatever rationale one adopts for the illegality principle, it is manifestly designed to vindicate the public interest as against the interests and legal rights of the parties. That is why the judge is required to take the point of his own motion even if the parties have not raised it, as the deputy judge did in this case. The operation of the principle cannot therefore depend on an evaluation of the equities as between the parties or the proportionality of its impact upon the claimant. ii) The range of factors test largely devalues the principle of consistency, by relegating it to the status of one of a number of evaluative factors, entitled to no more weight than the judge chooses to give it in the particular case. The criminal law, which is in almost every case the source of the relevant illegality, is a critical source of public policy. It is the prime example of the positive law (Lord Mansfields phrase) which has always moulded the law of illegality in civil proceedings. The courts cannot consistently or coherently recognise legal consequences for an act which the law treats as punishable. Gloster LJ, for example, thought it relevant that there was no finding that Mr Patel knew that insider dealing was illegal. Yet that would have been of no relevance in a criminal court, and it is difficult to see why it should be any more relevant in a civil one. Professor Burrows factor (f) (whether denying enforcement will ensure that the party seeking enforcement does not profit by the conduct) is surely fundamental to the principle of consistency, and not just a factor to be weighed up against others. iii) The main justification for the range of factors test has always been that it enables the court to avoid inflicting loss on the claimant disproportionate to the measure of his badness. This was the instinct that led the Court of Appeal in Euro Diam Ltd v Bathurst [1990] 1 QB 1 to propose that the illegality principle should be applied only where the alternative would be shocking to the public conscience. That concept was rejected in Tinsley v Milligan. Since then, it has been suggested that there may be cases at the opposite end of the spectrum of gravity, in which the offence was too trivial to engage the illegality principle: see Gray v Thames Trains Ltd, at para 83 (Lord Rodger). One would expect most if not all such offences to be covered by the exception for cases in which the application of the illegality principle would be inconsistent with the legal rule which makes the act illegal. But, extremes apart, it is difficult to reconcile with any kind of principle the notion that there may be degrees of illegality, as Professor Burrows factor (a) seems to envisage. If the application of the illegality principle is to depend on the courts view of how illegal the illegality was or how much it matters, there would appear to be no principle whatever to guide the evaluation other than the judges gut instinct. This was why this court recently rejected the view expressed by the Court of Appeal in Les Laboratoires Servier v Apotex Inc [2013] Bus LR 80 that an illegal act might nevertheless found a cause of action if it was not as wicked as all that. iv) The range of factors test discards any requirement for an analytical connection between the illegality and the claim, by making the nature of the connection simply one factor in a broader evaluation of individual cases and offering no guidance as to what sort of connection might be relevant. I have already observed that the reliance test is the narrowest test available. If it is no longer to be decisive, the possibility is opened up of an altogether wider ambit for the illegality principle, extending to cases where the relevant connection was remote or non existent but other factors not necessarily involving any connection at all, were thought to be compelling. The reason why the adoption of a range of factors test on a case by case basis would be uncertain is obvious in the light of these considerations. An evaluative test dependent on the perceived relevance and relative weight to be accorded in each individual case to a large number of incommensurate factors leaves a great deal to a judges visceral reaction to particular facts. Questions such as how illegal is illegality would admit of no predictable answer, even if the responses of different judges were entirely uniform. In fact, it is an inescapable truth that some judges are more censorious than others. Far from resolving the uncertainties created by recent differences of judicial opinion, the range of factors test would open a new era in this part of the law. A new body of jurisprudence would be gradually built up to identify which of a large range of factors should be regarded as relevant and what considerations should determine the weight that they should receive. No one factor would ever be decisive as a matter of law, only in some cases on their particular facts. The size of the authorities bundles in this and other recent appeals to this court on the illegality principle is testimony to the volume of litigation which the principle has generated in every period of its history. I do not suppose that those who are about to enter into an illegal transaction are in the habit of studying the decisions of the courts on the point, but those who advise them after the event do, and the resultant uncertainty is likely to generate a great deal of wasteful and unnecessary litigation. I would readily accept that certainty is not the only value, or even necessarily the most important. But we are concerned in this case with the law of contract, an area in which the value of certainty is very great. It is one thing to say that a legal right may be overridden by a rule of law. It is another thing altogether to make a legal right, and particularly a contractual right, dependent on a judges view about whether in all the circumstances it ought to be enforced. Finally, I would point out that the adoption of such a revolutionary change in hitherto accepted legal principle is unnecessary to achieve substantial justice in the great majority of cases. The unsatisfactory features of the illegality principle as it has traditionally been understood have often been overstated, in part because of the way in which they were emphasised by Lord Goff in Tinsley v Milligan. It was, he said, 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 (p 355B C). That observation, however, reflected his view that no equitable interest in property could ever be claimed where the legal title had been vested in another for dishonest purposes. The law had been stated in this way by Lord Eldon at the beginning of the 19th century: see Muckleston v Brown (1801) 6 Ves 52 and Curtis v Perry (1802) 6 Ves 739. But Lord Eldons approach, although adopted by Lord Goff, was rejected by the majority of the Committee. When the law of illegality is looked at as a whole, it is apparent that although governed by rules of law, a considerable measure of flexibility is inherent in those rules. In particular, they are qualified by principled exceptions for (i) cases in which the parties to the illegal act are not on the same legal footing and (ii) cases in which an overriding statutory policy requires that the claimant should have a remedy notwithstanding his participation in the illegal act. Properly understood and applied, these exceptions substantially mitigate the arbitrary injustices which the illegality principle would otherwise produce. At the same time, the wider availability of restitutionary remedies which will result from the present decision will do much to mitigate the injustices which have hitherto resulted from the principle that the loss should lie where it falls. For these reasons, I regret that I cannot agree with the conclusion of Lord Toulson (para 109) that that the application of the illegality principle should depend on the policy factors involved and the nature and circumstances of the illegal conduct, in determining whether the public interest in preserving the integrity of the justice system should result in the denial of the relief claimed. In my opinion, this is far too vague and potentially far too wide to serve as the basis on which a person may be denied his legal rights. It converts a legal principle into an exercise of judicial discretion, in the process exhibiting all the vices of complexity, uncertainty, arbitrariness and lack of transparency which Lord Toulson attributes to the present law. I would not deny that in the past the law of illegality has been a mess. The proper response of this court is not to leave the problem to case by case evaluation by the lower courts by reference to a potentially unlimited range of factors, but to address the problem by supplying a framework of principle which accommodates legitimate concerns about the present law. We would be doing no service to the coherent development of the law if we simply substituted a new mess for the old one. Application to the present case Against that background it is in my view entirely clear that the transaction into which these parties entered was affected by the illegality principle. The agreement pleaded, and found by the deputy judge to have been made, was not simply that Mr Mirza would place bets on movements of RBS shares for the joint account of himself and Mr Patel, but that he would do so with the benefit of inside information. Subject to immaterial exceptions, section 52 of the Criminal Justice Act 1993 makes it an offence for a person in possession of inside information to deal or encourage another person to deal in securities, including contracts for differences. This was accordingly an agreement for Mr Mirza to commit a criminal offence. It was also a criminal conspiracy to that end. Section 63(2) of the 1993 Act provides that: No contract shall be void or unenforceable by reason only of section 52. The contracts affected by section 52 are contracts by way of dealing in securities. It follows that if Mr Mirza had placed the spread bets with IG Index, as he had conditionally promised to do, the contract would have been enforceable as between himself and IG Index. But Mr Patel could not have obtained specific performance of the distinct contract between himself and Mr Mirza or damages for breach of it. This is because, first, he would have had to rely on the contract, which provided as one of its terms that the dealing should be carried out with the benefit of inside information. Mr Patel could not have avoided this result by simply characterising it as an agreement to speculate in RBS shares without referring to the basis on which it was agreed that that should happen. Secondly, none of the possible exceptions apply. The parties were on the same legal footing. Both would be liable to conviction for conspiracy in a criminal court, and any difference in the degree of their fault would be relevant only to the sentence. Section 52 of the Criminal Justice Act 1993 is not a statute designed to protect the interests of persons entering into an agreement to commit the offence of insider dealing, and there is no other overriding statutory policy which requires their participation in the offence to be overlooked when it comes to determining its civil consequences. However, restitution still being possible, none of this is a bar to Mr Patels recovery of the 620,000 which he paid to Mr Mirza. The reason is simply that although Mr Patel would have to rely on the illegal character of the transaction in order to demonstrate that there was no legal basis for the payment, an order for restitution would not give effect to the illegal act or to any right derived from it. It would simply return the parties to the status quo ante where they should always have been. The only ground on which that could be objectionable is that the court should not sully itself by attending to illegal acts at all, and that has not for many years been regarded as a reputable foundation for the law of illegality. This was Gloster LJs main reason for upholding Mr Patels right to recover the money. Although my analysis differs in a number of respects from hers, I think that the distinction which she drew between a claim to give effect to a right derived from an illegal act, and a claim to unpick the transaction by an award of restitution, was sound. In the circumstances, Mr Mirzas only arguable defence was that he had paid the money to Mr Georgiou, the intermediary who had proposed the deal. But the judge declined to make a finding to this effect, and rejected a defence of change of position on the ground that even if it was true, Mr Mirza had had no reason to repay the money to anyone but Mr Patel from whom he had received it. The Court of Appeal gave judgment for Mr Patel for 620,000 with interest. For the reasons which I have given, which correspond to those given by Lord Mance and Lord Clarke, I would dismiss the appeal against that order.	Mr Patel gave Mr Mirza 620,000 to place bets on a banks share prices with the benefit of insider information. Mr Mirza expected his contacts to inform him of a government announcement about the bank. Mr Mirzas expectation was not fulfilled and the intended betting did not take place. But Mr Mirza did not return the money to Mr Patel. Mr Patel brought a claim against Mr Mirza for the money and Mr Mirza contended that the claim should fail because of the illegality of the arrangement with Mr Patel. The issue was when involvement in illegality bars a claim. Mr Patel succeeded in the Court of Appeal and Mr Mirza was required to repay the money. Mr Mirza appealed to the Supreme Court. The Supreme Court unanimously dismisses Mr Mirzas appeal. Mr Patel is entitled to restitution of the 620,000 which he paid to Mr Mirza. Lord Toulson (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Hodge agree) gives the lead judgment. Lord Neuberger, Lord Mance, Lord Clarke and Lord Sumption concur in the result, but by different processes of reasoning. Lord Mansfield said in Holman v Johnson (1775) 1 Cowp 341, 343 that no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act [1]. Behind this maxim, there are two broad policy reasons for the common law doctrine of illegality as a defence to a civil claim. First, a person should not be allowed to profit from his own wrongdoing. Second, the law should be coherent and not self defeating, condoning illegality by giving with the left hand what it takes with the right hand [99]. The reliance test expressed in Tinsley v Milligan [1994] 1 AC 340 bars the claimant if he/she relies on the illegality in order to bring the claim. This test has been criticised and Tinsley should no longer be followed [110]. The essential rationale of the illegality doctrine, as explained by the Supreme Court of Canada in Hall v Hebert [1993] 3 RCS 159, is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system. In assessing whether the public interest would be harmed in that way, it is necessary to consider a) the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, b) any other relevant public policy on which the denial of the claim may have an impact and c) whether denial of the claim would be a proportionate response to the illegality. Various factors may be relevant, but the court is not free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate [120]. In considering whether it would be disproportionate to refuse relief to which the claimant would otherwise be entitled, as a matter of public policy, various factors may be relevant. Potentially relevant factors include the seriousness of the conduct, its centrality to the contract, whether it was intentional and whether there was marked disparity in the parties respective culpability [107]. A claimant, such as Mr Patel, who satisfies the ordinary requirements of a claim for unjust enrichment, should not be debarred from enforcing his claim by reason only of the fact that the money which he seeks to recover was paid for an unlawful purpose. There may be rare cases where for some particular reason the enforcement of such a claim might be regarded as undermining the integrity of the justice system, but there are no such circumstances in this case [121]. Lord Kerr writes a concurring judgment elaborating on aspects of Lord Toulsons judgment. Lord Kerr identifies that there is a choice of approaches between a rule based approach on the one hand and on the other a more flexible approach, taking into account the policy considerations that are said to favour recognising the defence of illegality [133]. A rule based approach to the question has failed to lead to the predictability it sought. Further, it is questionable whether particular weight should be given to predictability where a claimant and defendant have been parties to an illegal agreement [137]. Lord Neuberger [143, 163], Lord Mance [197 199], Lord Clarke [210] and Lord Sumption [250, 253] all conclude there is no inconsistency in the law in permitting a party to an illegal arrangement to recover any sum paid under it, so long as restitution is possible. An order for restitution simply returns the parties to the positon in which they would and should have been, had no such illegal arrangement been made. Lord Neuberger goes on however to express the further view that, in relation to other issues involving illegal arrangements, the approach suggested by Lord Toulson provides as reliable and helpful guidance as it is possible to give [174, 186]. Lord Mance, Lord Clarke and Lord Sumption, in separate judgments expressing general agreement with each other, consider that, with the above clarification of the operation of restitution, there is no basis for substituting for the clear cut principle identified in Holman v Johnson and Hall v Hebert, founded on the need to maintain the integrity of the law, a mix of factors as advocated by Lord Toulson, which would not offer the same coherence or certainty [206 207, 216 219 and 259 265].
The appellants, Mrs Sheila Davies and Mrs Maureen Mowat, operate a childrens nursery, known as All Stars Nursery, at 95 Don Street, Aberdeen. As it was a care service within the meaning of section 2(1)(m) of the Regulation of Care (Scotland) Act 2001 (the 2001 Act), it required to be registered under Part I of that Act. It was a criminal offence to provide a care service which is not registered: section 21. Section 1 of the 2001 Act established the Scottish Commission for the Regulation of Care (the Commission) as a body corporate with the aim of creating a national body for the regulation of care services provided in Scotland. It was to the Commission that applications for registration had to be made under section 7. The Commission had power under section 9 to grant an application unconditionally or subject to such conditions as it thought fit to impose. It also had a continuing duty to ensure that the national care standards and any regulatory requirements were complied with. Where a service was failing, it could give notice under section 10 that unless improvements were made within a specified period steps would be taken for its registration to be cancelled. If those steps were not taken it could propose to cancel the registration and, after having given notice of the proposal, adhere to that proposal and give notice of its decision to do so under section 17(3). There was a right of appeal to the sheriff under section 20 against a decision of which notice had been given under that subsection. The appellants application for registration of the nursery was granted, subject to certain conditions, in 2004. It was not very long before the Commission became concerned at the way the nursery was being operated. On 5 March 2008 it served an improvement notice on the appellants under section 10. As in its view significant improvements had not been made within the period which had been specified, it served a further notice under section 15(2) of the 2001 Act of a proposal that the nurserys registration should be cancelled. On 18 August 2008 it gave notice to the nursery under section 17(3) of its decision to implement that proposal. The appellants disputed the factual basis for the Commissions concerns. They appealed to the sheriff against the decision to implement the proposal under section 20 of the 2001 Act. Section 20 of the 2001 Act is in these terms: (1) A person given notice under section 17(3) of this Act of a decision to implement a proposal may, within fourteen days after that notice is given, appeal to the sheriff against the decision. (2) The sheriff may, on appeal under subsection (1) above, confirm the decision or direct that it shall not have effect; and where the registration is not to be cancelled may (either or both) (a) vary or remove any condition for the time being in force in relation to the registration; (b) impose an additional condition in relation to the registration. On 10 October 2008 the Commission gave notice under section 15(2) of a second proposal that the appellants registration should be cancelled. This was followed on 30 March 2009 by a further notice under section 17(3) of the Commissions decision that the proposal should be implemented. The appellants appealed to the sheriff against this decision also. The two appeals then proceeded together as summary applications under rule 1.4 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999. The primary crave in each case was that the sheriff should direct that each of the decisions should have no effect, as they were unreasonable and disproportionate and based on findings that were inaccurate. The appeals proceeded to proof before the sheriff. There appears to have been, in that court, a marked and highly regrettable lack of case management. Evidence was heard on 24 days spread over a period of about 15 months. 20 of those days were taken up by counsel for the Commission in his cross examination of the first named appellant. At the end of her cross examination, when several witnesses on both sides still had to give evidence, counsel for the appellants moved the sheriff to be allowed to lead evidence in re examination about the current circumstances of the nursery. The evidence up to that point had been directed to the manner in which the nursery was being run prior to the two notices of cancellation. Counsel for the Commission objected, on the ground that the appeals should be decided on the basis of the facts as they were at the dates of the decisions to cancel. The sheriff heard legal argument on this issue over a period of five days. On 3 February 2011 he upheld the objections and ruled that evidence as to the state of the nursery after 30 March 2009 was inadmissible. The Sheriff gave leave to appeal his decision on this point to the Sheriff Principal. The appellants appealed against the sheriffs decision to the sheriff principal. The hearing of the appeal was fixed for 12 April 2011. In the meantime the Public Services Reform (Scotland) Act 2010 (the 2010 Act) had been enacted. The overarching purpose of this statute was to simplify and improve what the policy memorandum which accompanied the Bill when it was introduced in the Scottish Parliament in May 2009 described as the landscape of public bodies in Scotland. Part 5 of the 2010 Act contained provisions for the furthering of improvement in the quality of social services, and the setting up under section 44 of a body to be known as Social Care and Social Work Improvement Scotland (SCSWIS). Part 6 provided for the furthering of improvement in the quality of health care and the setting up of a body to be known as Healthcare Improvement Scotland (HIS). The functions of the Commission were to be divided between these two bodies, and section 52 provided that the Commission was to be dissolved. Section 47 provided that day care of children, which was the service for the provision of which the appellants had been registered under the 2001 Act, was to be one of the care services for which SCSWIS was to be responsible. Provision was made in section 102 for the transfer of staff and all property (including rights) and liabilities of the Commission existing immediately before the date when section 44 was to come into force to SCSWIS. By paragraph 37 of Schedule 14 it was provided that Part 1 of the 2001 Act was to be repealed. The relevant provisions of the 2010 Act were brought into force by the Public Services Reform (Scotland) Act 2010 (Commencement No 4) Order 2011 (SSI 2011/122) (the No 4 Commencement Order) on 1 April 2011. The effect of that Order was, among other things, to establish SCSWIS under section 44 and, by bringing sections 52 and 102 into force, to dissolve the Commission and transfer all the Commissions staff and property to SCSWIS. It also brought into force the repeal of Part 1 of the 2001 Act. At the outset of the hearing on 12 April 2011 before the sheriff principal counsel for the appellants said that he wished to raise a preliminary point. This was that the Commission could no longer be a party to the appeal, as it had been dissolved and replaced by SCSWIS. But SCSWIS had no title or interest to enter the proceedings, as the proceedings were concerned only with things that had been done under the 2001 Act before it came into existence. His submission was that each of the decisions of the Commission of which notice had been given under section 17(3) of the 2001 Act was a nullity, and that it should be so directed. Counsel on both sides were agreed that the sheriff principals decision on this point might render the discussion of the principal issue in the appeal unnecessary. So he heard argument on the preliminary point only. It was common ground that the effect of the No 4 Commencement Order was that on 1 April 2011 Part 1 of the 2001 Act was repealed, that the Commission was dissolved and that its staff, property and liabilities were transferred to SCSWIS which came into existence on the same day. The question was whether there was anything in the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions Order 2011 (SSI 2011/121) and the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions (No 2) Order 2011 (SSI 2011/169) which showed that it was still open to counsel to appear for the Commission and that the Commission itself could continue to participate in the proceedings and oppose the appellants appeals. On 9 May 2011 the sheriff principal held that, as the Commission had ceased to exist and there was no provision in either of the transitional orders that the decisions which the Commission made were to be treated as if they had been made by SCSWIS, those decisions could no longer have any meaning or effect: 2011 SLT (Sh Ct) 208, para 17. As he saw it, he had no alternative but to so hold, given that the Scottish Ministers had chosen to bring sections 52 and 102 of the 2010 Act into force. He removed a condition that had been imposed on the first named appellant to the effect that she was not to have contact with, or access to, children enrolled or enrolling at the nursery. He also held that the effect of his order was that the nursery was to be treated for all purposes as if it had been registered under Part 5 of the 2010 Act, with the result that SCSWIS would have all the necessary powers to monitor the situation at the nursery and to take any action under that Act in the interests of the children that might be necessary. The Commission appealed against the sheriff principals decision to the Court of Session. On 24 January 2012 the First Division (Lord President Hamilton and Lord Drummond Young, Lord Marnoch dissenting) allowed the appeal and continued it to a later date to enable the parties to consider their position on the issue of whether the sheriff was in error in refusing to permit the appellants to lead evidence as to the current condition of their care service: [2012] CSIH 7, 2012 SLT 269. The majority were of the opinion that the effect of the transitional provisions was that the proceedings were still governed by the 2001 Act, that the Commission continued in existence for the purposes of these proceedings and that it was the proper respondent: para 26. The relationship between it and SCSWIS, which had taken over all the Commissions staff and its financial resources and in practical terms was performing all the Commissions functions, was one of implied agency: para 31. Lord Marnoch was of the opinion that the effect of the transitional provisions was that the proceedings should be adjudicated on as if, so far as relevant, Part 1 of the 2001 Act remained in force, that SCSWIS should be held to have taken over the conduct of the proceedings as from 1 April 2011 and that, while the proceedings should be allowed to proceed, the Commission was no longer the proper contradictor: para 42. The appellants have now appealed against that decision to this court. The judgment of the First Division was an interlocutory judgment within the meaning of section 40(1)(a) of the Court of Session Act 1988. It comes before us on appeal without the leave of the Inner House of the Court of Session. Section 40(1)(a) provides that it is competent to appeal from the Inner House to the Supreme Court against an interlocutory judgment without the leave of the Inner House where there is a difference of opinion among the judges. The respondents position, as set out in paragraph 9 of the statement of facts and issues, is that they do not accept that there was any relevant difference of opinion as to the substantive issue before the court, which was the correctness or otherwise of the sheriff principals disposal of the case. But Mr Mitchell QC did not insist on this point at the hearing of the appeal, and I think that he was right not to do so. There plainly was a difference of opinion on the question whether the Commission remained in existence for the purpose of conducting the proceedings or had been replaced for this purpose by SCSWIS. This was more than a mere technicality, as a proper understanding of the effect of the transitional provisions is needed to resolve questions as to who is in a position to serve any further notices that may be needed and to give instructions for the future conduct of any further proceedings before the sheriff. In my opinion this appeal, albeit without leave of the Inner House, is competent. The transitional provisions It is obvious that a reorganisation of existing public services such as that which the 2010 Act was designed to achieve requires transitional provisions to ensure that there is an orderly transfer of the old system to the new one. As Ian McLeod, Principles of Legislative and Regulatory Drafting (2009), p 98 points out, savings and transitional provisions are intended to smooth the operation of the law when an Act is repealed. He adds that it is particularly important that drafters are able to identify the gaps in their instructions which the instructing department would have plugged if it had appreciated the need to do so. Then at p 99 headed Matters requiring particular care and attention he draws attention to the fact that, where an existing statutory corporation is being replaced by a new one, transitional provisions are necessary to deal with a range of purely practical matters. These include the transfer of rights of action vested in the old corporation to the new one, and the power to take over litigation which was being carried on by or against the old one at the time of its demise. By section 132 of the 2010 Act it was provided that the Scottish Ministers were to have power by order to make such consequential, supplementary, incidental, transitional or saving provision as they considered necessary or expedient for the purposes of giving full effect to any provision of the Act. Section 133(1) provided that the power was to be exercised by statutory instrument. That power was exercised by the making on 18 February 2011 of the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions Order 2011 (the No 1 Order) and by the making ten days later, presumably to fill a gap that had been perceived in the No 1 Order, of the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions (No 2) Order 2011 (the No 2 Order). One might have expected the solution to the issue which the sheriff principal was asked to consider to have been obvious upon an examination of these orders. Unfortunately that is not so. There is a gap which needs to be filled and, as the division of opinion in the Inner House shows, there is room for argument as to how this can be done. Careful drafting ought not to have allowed this to happen. It is a pity that Mr McLeods advice was not followed. The result has been the compounding of the delay caused by the protracted proceedings in the sheriff court. It has taken almost two years ^ for this issue to be argued out in the appeal courts. The No 1 Order was in five parts. Article 1 in Part I defined the expressions used elsewhere in the Order, including the appointed day. It was to mean 1 April 2011. Part II set out a number of transitional provisions relating to care services, as did Part III for independent health care services. Part IV set out a number of savings provisions. Part V did the same thing in relation to the provisions of another statute with which this case is not concerned. The effect of articles 2 to 8 of Part II was that steps taken under the relevant provisions of the 2001 Act with regard to registration, the giving of improvement, cancellation and condition notices, applications for the variation or removal of conditions and the registration of authorised persons were to be treated for all purposes as if they had been made under the corresponding provisions of the 2010 Act and that national care standards published under the 2001 Act were to be treated as if they were the standards applicable to care services under the 2010 Act. Article 9 was in these terms: Where immediately before the appointed day, the Commission has received a complaint relating to (a) the Commission; (b) a care service; or (c) an independent health care service, and investigation of that complaint has not concluded, the investigation of that complaint is to be carried out by SCSWIS. The savings provisions in articles 15 to 18 of Part IV dealt with what was to happen in the case of applications for registration, inspections by the Commission, integrated inspections by the Commission and Her Majestys inspectors and urgent cancellation proceedings that had been commenced before the appointed day and had not concluded or been determined. The effect of these provisions was that the provisions of the 2001 Act under which these actions or proceedings had been commenced were to continue in force until they had come to an end. Article 19 dealt with appeals taken against decisions notified 14 days before the appointed day by the Commission under section 17(3) of the 2001 Act. Article 20 dealt with offences, and article 21 listed a number of regulations that were to continue in force despite the repeal of the 2001 Act. Of these various provisions, article 15 is of particular interest. It was in these terms: (1) Subject to paragraphs (2) and (3), where a person who seeks to provide a care service or an independent healthcare service has made an application to the Commission in accordance with section 7 or 8 of the 2001 Act in respect of that service, and that application has not been determined by the Commission before the appointed day, that application is to continue to be dealt with under those provisions, and sections 9 and 15 of the 2001 Act remain in force for that purpose. (2) Where paragraph (1) applies (a) if the application relates to a care service all references to the Commission are to be read as references to SCSWIS; and (b) if the application relates to an independent health care service all references to the Commission are to be read as references to HIS. (3) Where SCSWIS or HIS determine that such an application should be granted, SCSWIS or HIS, as the case may be, must grant registration under section 60 of the 2010 Act or section 10Q of the NHS Act, as the case may be, subject to such conditions as they think fit. Sections 9 and 15 of the 2001 Act set out various steps that were to be taken by the Commission following upon the applications provided for by sections 7 and 8 of that Act. The direction set out in article 15(2) that references to the Commission were to be read as references to SCSWIS or HIS, as the case might be, addressed the problem as to which of those bodies was to exercise those functions after the appointed day. But it was not repeated in any of the following articles. They were silent on that point. The No 2 Order contained only three articles. The first set out the relevant definitions, amongst other things. Article 2, which was headed Appeal proceeds (sic) savings provision, dealt in paragraph (1) with appeals against notices given by the Commission under section 17(3) of the 2001 Act that had been raised under section 20 of that Act and had not been finally determined before 1 April 2011. The direction that was set out in that paragraph with respect to such appeals was as follows: Part I of the 2001 Act will continue to apply for the purposes of the care service or independent health care service which is the subject of those appeal proceedings until the final determination of those proceedings. Article 2(2) provided that article 2(1) of the No 1 Order, which provided that where on the appointed day a person was providing a care service which immediately before that day was registered under the 2001 Act that service was to be treated for all purposes as if it had been registered under the 2010 Act, was not to apply to any care service to which article 2(1) of the No 2 Order applied. Article 3 provided that, where the final determination of an appeal under section 20 of the 2001 Act was that the registration of a care service was not cancelled, it was to be treated for all purposes as if it had been registered under Part 5 of the 2010 Act. The explanatory note to the No 2 Order referred to the fact that the No 1 Order had already made various savings and transitional provisions in the light of the 2010 Act relating to SCSWIS and HIS. It then said that the No 2 Order made further provisions for SCSWIS and HIS. But nowhere in any of the articles of the No 2 Order is mention made of either of these bodies. As was the case in articles 16 to 18 of the No 1 Order, the direction set out in article 15(2) that references to the Commission in the relevant provisions of the 2001 Act that were to continue in force were to be read as references to SCSWIS or HIS, as the case might be, does not appear in article 2. It too was silent on that point. The issues The question which is at the heart of the appeal is whether the Commission is to be taken to have remained in existence for the purpose of conducting these proceedings, or whether SCSWIS must be held to have taken its place for that purpose after 1 April 2011. Its answer is to be found on a consideration of the effect of article 2 of the No 2 Order, read in the context of the whole of the statutory background including the terms of the No 1 Order. But the matter has been complicated by the service between July and December 2012 of further improvement notices, of further notices of proposals to cancel the appellants registration and of further notices of decisions to implement these proposals. The appellants have challenged the validity of these various notices, on the ground that they were not served by a body which had power to do this under the relevant Act. They have also appealed against the decision notices under section 20 of the 2001 Act and section 75 of the 2010 Act. The result is that the proceedings that began in the sheriff court in 2008 and 2009 with reference to the state of affairs in the nursery in those years are now being duplicated by parallel proceedings which are directed to the state of affairs in the nursery in 2012. Two further questions therefore need to be addressed. The first is as to the validity of the decisions that were the subject of the notices that were given between July and December 2012. The second is as to the future conduct of these proceedings, given the lapse of time since the section 17(3) notices were served in 2008 and 2009 and the fact that the notices served in 2012 are now also under appeal. The effect of article 2 of the No 2 Order The savings provision in this article does make one thing plain. Article 2(1) states in the clearest terms that Part 1 of the 2001 Act is to continue to apply for the purposes of the care service which is the subject of appeal proceedings until the final determination of those proceedings. It is accompanied by article 2(2) which makes it clear that, in the circumstances referred to in article 2(1), the care service is to remain registered under Part 1 of the 2001 Act. The service is not to be treated, for the time being, as if it had been registered under Part 5 of the 2010 Act. The Order might have directed that the appeal proceedings were to continue and be determined under section 75 of the 2010 Act as if the notices that were under appeal had been served under Part 5 of that Act. Had it done this, it would not have been open to doubt that SCSWIS was the body which had title and interest to oppose the appeal. As it is, the direction that Part 1 of the 2001 Act is to continue to apply until the appeals have been determined raises the question as to which body is in a position to do this. It is a question which the No 2 Order fails to answer. There is a gap here that requires to be filled. Mr Gale QC for the appellants said that he favoured the solution to the problem that had been adopted by Lord Marnoch. By operation of law, reading the provisions of the No 2 Order in context, the proper body to resist the appeals was SCSWIS. The proceedings should be remitted to the sheriff, before whom the issue as to whether evidence could be led as to the current state of the nursery remained open as the sheriff principal did not deal with that question. But the sheriff would also have to regularise the position by giving permission to SCSWIS to enter the process by being sisted as a party to the appeals. He made it clear that the appellants would seek to oppose its being sisted on the ground that the proceedings had been so long delayed. If they were successful in their opposition to a motion to sist, the decisions that had been taken in 2008 and 2009 would fall to be treated as no longer having any effect. Mr Mitchells primary position, as it was put in his written case, was that the decision of the majority was correct and that the Commission remained in existence for the purpose of conducting these proceedings. At the outset of his reply to Mr Gales submissions, however, he said that it was not a matter of concern to his clients whether the Commission or SCSWIS, on whose instructions he appeared, was to be regarded as being in a position to perform that function. The majoritys view that the relationship between the Commission and SCSWIS was one of implied agency was difficult to support, and he submitted that it was not necessary for him to attempt to do so. His point was that all that needed to be done was to note, if this was to be the case, that as a matter of law SCSWIS had taken the place of the Commission. It was not his clients intention to apply for SCSWIS to be sisted. He acknowledged that it would be simpler if SCSWIS were to be held to be the proper party. This would accord with the way things were in practice, since the Commission in reality no longer existed. But it should be understood that, whichever body it was, it was the proper body for the performance of all the functions in Part 1 of the 2001 Act so long as they continued to have effect in terms of article 2(1) of the No 2 Order, including the service of any new notices. Mr Wolffe QC for the Lord Advocate, who had entered the process on behalf of the Scottish Government, said that those instructing him wanted to know what was the correct analysis. If the correct position was that, as Part 1 of the 2001 Act remained in force until the final determination of the proceedings, the dissolved Commission was the body that required to perform the functions that needed to be performed under it, the Scottish Government would have to do something to address that situation. His primary position in his written case was to adopt the reasoning of the majority in the Inner House. But he too acknowledged that the solution preferred by Lord Marnoch would provide a more satisfactory outcome, as all the Commissions staff and financial resources had been transferred to SCSWIS. There was no practical reason for wishing to argue that the Commission still remained in being for the limited purpose envisaged by article 2(1) of the No 2 Order. The intention of the Scottish Parliament was that there should be a seamless transfer. I am in no doubt that, of the two alternative approaches that are to be found in the judgment of the Inner House, that proposed by Lord Marnoch is the one which should be adopted. The reality is that the Commission no longer exists. It is nearly two years since it was dissolved and all its staff and resources were transferred to SCSWIS. But the position today must be taken to be the same as it was on the appointed day. As from that date it ceased to exist, and it was incapable in law and in fact of performing any functions. This makes it hard to support the majoritys suggestion that the relationship between the Commission and SCSWIS was one of implied agency. Lord Drummond Young said in para 31 that there was no difficulty in implying such a relationship, as it was in essence an extremely simple one which could readily be implied in almost any case where one person performs a task on behalf of another, either consensually or under a statutory scheme. That implication may present no difficulty in other contexts, but I do not see how that can be so in this case. The Commission, once it had been dissolved, was not in a position to enter into any consensual relationship with anybody. The proposition that it is possible to imply a relationship of agency from the statutory scheme under which the Commission is to be taken to have a continued existence begs the question as to what that scheme provides. That is the question which we are having to answer. Lord Marnoch rejected the majoritys approach because he was not convinced that the effect of article 2 of the No 2 Order was to resurrect the Commission. Its purpose was to ensure that only the substantive law was applied in the course of the proceedings. It was not necessary to re establish the Commission for that purpose. The intention was that SCSWIS should replace the Commission. It was not necessary to insert or alter any words to give effect to it. One could simply read the provisions as a whole: para 42. I agree, but I think that it is possible to say a bit more to reinforce his argument. The No 2 Order, looked at on its own and on its own terms, leaves this problem unsolved. There is, as I have said, a gap in its provisions that has to be filled. The explanatory note says that the Order makes further provisions for SCSWIS, but it does not explain what they are. So I do not think that it offers any assistance. The No 1 Order, on the other hand, does contain a provision which is directly in point. Article 15 deals with the question what was to happen where applications made under sections 7 or 8 of the 2001 Act had not been determined by the Commission before the appointed day: see para 20, above. It states that in that situation, if the application relates to a care service, all references to the Commission are to read as references to SCSWIS. There is an echo here of the direction in article 9 of the No 1 Order that, where a complaint was made before the appointed day and the investigation had not been concluded, the investigation of the complaint was to be carried out by SCSWIS: para 18, above. Why, one asks, was it thought appropriate to give these directions? The answer must surely be that it was appreciated that, as the Commission was to be dissolved on the appointed day and all its staff and resources transferred to SCSWIS, the logical consequence was to transfer responsibility for the performance of the relevant functions after the appointed day to SCSWIS. The method that was chosen in article 15 is particularly instructive. All references to the Commission in relation to an application under sections 7 or 8, and the functions referred to in sections 9 and 15, are to read as references to SCSWIS. No other mechanism was thought to be necessary. Can the gap that is left by article 2 of the No 2 Order be filled by reading all references to the Commission as references to SCSWIS in that context too? A similar question arose in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, where it was plain that when making a consequential amendment the draftsman had not used language apt to achieve the intention of the legislature. This had the effect of wholly excluding a right to appeal which it had not previously been suggested should be abolished or restricted. Lord Nicholls of Birkenhead said at p 592 that the wording of the provision should be read in a manner which gave effect to the Parliamentary intention. It had long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors too, and in suitable cases this would mean adding or omitting or substituting words in discharging its interpretative function. Lord Nicholls went on, however, to say that the courts must exercise considerable caution before doing so: Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation. I do not think that any of these conditions would be breached if we were to adopt the formula that article 15 of the No 1 Order used and read it into the direction given in article 2(1) of the No 2 Order: that until the final determination of the proceedings all references to the Commission in Part 1 of the 2001 Act are to read as references to SCSWIS. There is here clearly a case of inadvertence. The No 2 Order needed to say how the provisions of Part 1 of the 2001 Act were to be put into effect after the Commission was dissolved. The intended solution, and the substance of the provision that would have been written in if the draftsman had spotted the point, is to be found in article 15(2) of the No 1 Order. There is a template there that is apt for use in this context too. To do otherwise and follow the solution adopted by the majority would leave the dissolved Commission in existence for some of the purposes of Part 1 of the 2001 Act and require a reference to the Commission to be read as a reference to SCSWIS for others. That would be very untidy. I think that it can safely be assumed that, if the draftsman had considered the point, he would have written the words he used in article 15(2) into article 2(1). I would so hold. This solution is also supported by article 19 of the No 1 Order, because its effect is that an appeal taken prior to 1 April 2011 against a decision notified by the Commission within 14 days prior to that date is thereafter to be treated as taken under the 2010 Act. It follows that the respondent in the appeal should be SCSWIS. The validity of the 2012 notices On 23 July 2012 two notices were served on the appellants to inform them that it had been concluded that the nursery was not operating in accordance with the statutory requirements or conditions and that unless there was a significant improvement in the provision of the service the intention was to make a proposal to cancel its registration. One of these notices was given by SCSWIS in the name of the Commission under section 10 of the 2001 Act. The other was given by SCSWIS in its own name under section 62 of the 2010 Act. In a covering letter of the same date, which was written by a solicitor employed by SCSWIS, it was stated that nothing in these two notices should be taken to prejudice the position of SCSWIS, whether on its own account or as acting for the Commission, as to the true statutory position. Those notices were followed by an improvement notice given by SCSWIS in the name of the Commission under section 10 of the 2001 Act and an improvement notice given by SCSWIS in its own name under section 62 of the 2010 Act. Both of these notices extended the timescale for making the improvements. On 9 November 2012 two further notices were issued. The first was a notice given by SCSWIS in the name of the Commission under sections 12 and 15 of the 2001 Act of a proposal to cancel the nurserys registration. The second was a notice to the same effect given by SCSWIS in its own name under sections 64 and 71 of the 2010 Act. The appellants solicitors responded to the notice that had been given under the 2001 Act by letter dated 23 November 2012, saying that the notice issued in the name of the Commission was a nullity as the Commission had ceased to exist. In a letter of the same date in response to the notice given under the 2010 Act they said that it was not accepted that SCSWIS was capable of or competent at law to regulate the nursery, as in terms of article 2 of the No 2 Order the registration of the nursery had not been transferred to it pending determination of the appeal. So this notice too was a nullity. SCSWIS did not agree, and on 4 December 2012 two further notices were issued. The first was given by SCSWIS as agents for the Commission under section 17 of the 2001 Act giving notice of its decision to cancel the nurserys registration. The other was a notice to the same effect given by SCSWIS in its own name under section 73 of the 2010 Act. The appellants have appealed to the sheriff against the decisions that were the subject of those notices. Those appeals are not before us. But I think that it would be wrong of us not to address the question whether, as the appellants have asserted, the notices that were given are to be regarded as nullities. This is so for two reasons. First, it is appropriate that we should explain how they are to be regarded in the light of our decision as to the effect of the No 2 Order. The question is whether either, and if so which, of them can be given effect. A view expressed by us on that issue now will save the cost and delay of arguing that point in the sheriff court. Second, the fact that SCSWIS have taken these further steps to achieve cancellation of the nurserys registration has the result that appeals are now being taken against them while the other appeals have not been finally determined. This raises a very real problem of case management. It needs to be addressed before a decision is taken as to how we should dispose of the appeal to this court. The notice of the decision that was given under the 2010 Act must be regarded as ineffective. Article 2(1) of the No 2 Order provides in the clearest terms that Part 1 of the 2001 Act is to continue to apply for the purposes of the care service until the final determination of the appeals that were taken against the decisions of which notice was given in 2008 and 2009. Article 2(2) disapplies article 2(1) of the No 1 Order, with the result that the nursery is still registered under the 2001 Act. So it is with reference to the provisions of the 2001 Act, not those of the 2010 Act, that any steps with a view to the cancellation of the nurserys registration would have had to have been taken until the final determination of these appeals. The notice of the decision that was given under the 2001 Act was said to have been given in terms of article 2 of the No 2 Order by SCSWIS as agents for the Commission. SCSWIS were, of course, proceeding on the basis that Lord Drummond Youngs analysis of the effect of article 2 of that Order, with which the Lord President agreed, was correct. For the reasons given above, I am of the opinion that his was not the right analysis. The effect of the article is that references to the Commission are to be read as references to SCSWIS. SCSWIS has, as a matter of law, taken the place of the Commission for these purposes. So it was unnecessary for SCSWIS to adopt the formula that it did when taking the various steps that it was open to it to take with regard to the nurserys registration under Part 1 of the 2001 Act. The fact that it did so cannot be regarded, however, as incompatible with the true position that it was SCSWIS and not the dissolved Commission which was taking these steps. The notice was given by an employee of SCSWIS from its address in Aberdeen under SCSWISs letter heading. The true position was obvious for all to see, and it cannot be said that the appellants have been in the least prejudiced by the fact that the formula that was chosen was inaccurate. As this notice was given under the right statute by the body that was empowered to take the decision referred to in it, I would hold that it was a valid notice for the purposes of Part 1 of the 2001 Act. The future conduct of these proceedings The situation in which this case now finds itself is highly unsatisfactory. The appeal process which was provided by section 20 of the 2001 Act was designed to provide a person who had been given notice of a decision to implement a proposal with a remedy that was to be sought under the summary procedure. It was not intended to be an obstacle to giving prompt effect to the proposal, which is what has been happening in this case. The registration system is intended to ensure that care services are provided which satisfy the published national care standards: see section 5 of the 2001 Act. It is in the public interest, and especially in the interests of those who wish to make use of those services, that those standards are adhered to and that prompt steps are taken to address a failure to do so and, if necessary, remove the service from the register. The fact that the question whether decisions to cancel the registration of the nursery are the subject of two parallel appeal proceedings directed to the state of affairs in the nursery on significantly different dates is a cause for real concern. The problem is one of SCSWISs own making. It has chosen, no doubt for good reasons, not to rely on the Commissions 2008 and 2009 decision notices but to rely instead on a decision that was taken with reference to the situation that is now current in the nursery. The obvious consequence would seem to be for the 2008 and 2009 decisions to be withdrawn so that the sheriff can concentrate on the issues raised by the decision that was taken in 2012. Mr Mitchell made it clear, however, that he was not prepared to do this, in case this would lead to another challenge to the validity of the notices that were given on 4 December 2012. Mr Gale, when asked to clarify his position, said that he accepted that at least one of the appeals would have to proceed. He gave an express undertaking at the bar to the effect that his ground of challenge to the various notices issued by SCSWIS as agents for the Commission under the 2001 Act would not be insisted on. For the reasons already given (see para 39, above) they must fall in any event to be regarded as valid notices. Mr Mitchell accepted that, if the appeal against the 2012 decision were to be successful, SCSWIS could not continue to seek cancellation of the appellants registration based on shortcomings in the running of the nursery at least four years earlier. The question whether the 2008 and 2009 decisions should have effect is no longer of any practical importance. In my opinion, were SCSWIS to insist that this question be left to the sheriff, that would, in the events that have happened and in the light of this courts ruling as to the validity of the 2012 decision notice, be an abuse of process. It is well established in Scots law that the court can exercise its inherent jurisdiction in the case of an abuse of process by way of a procedural sanction such as dismissal without express parliamentary authority: Tonner v Reiach and Hall [2007] CSIH 48, 2008 SC 1, para 62, per Lord Abernethy; Moore v The Scottish Daily Record and Sunday Mail Ltd [2008] SCIH 66, 2009 SC 178, para 14, per Lord Justice Clerk Gill. Mr Mitchell, for understandable reasons, declined to commit his clients to a final decision as to whether or not they should insist on the decisions that the Commission took in 2008 and 2009. The time has come, however, for this court to intervene in order to minimise further delay and expense. In the very unusual circumstances of this case it is open to it to proceed on the basis that, if SCSWIS were to adhere to those decisions, that would be, in the light of the undertaking given to the court by Mr Gale, an abuse of process and, in the interests of appropriate case management, to take steps now to prevent such an abuse. The sheriff has power on an appeal under section 20(2) of the 2001 Act to confirm the decision that has been appealed against or direct that it shall not have effect. Those powers are available to this court on the disposal of this appeal: rule 29(1) of the Supreme Court Rules 2009 (SI 2009/1603). It would normally only be open to us to exercise those powers after considering the merits of the appeal. But where a procedural sanction is being imposed for an abuse of process a consideration of the merits is unnecessary. I would therefore direct that the decisions that were the subject of the Commissions notices of 18 August 2008 and 30 March 2009 shall not have effect. That would leave unaffected the appellants appeal, also taken in 2008, against the condition imposed in 2007, which was the subject of their third crave. That should also be dismissed. I would also direct, for the avoidance of doubt, that the effect of the order making that direction is that the appeal proceedings against those decisions have been finally determined. The decision that was the subject of the notice that was given on 4 December 2012 under section 17(3) of the 2001 Act was taken by SCSWIS, not by the Commission. It follows that article 2(1) of the No 2 Order, which refers to decisions by the Commission, will no longer apply. So I would also direct, again for the avoidance of doubt, that the nursery must now be treated for all purposes in terms of article 2(1) of the No 1 Order as if it had been registered under Part 5 of the 2010 Act: see article 3 of the No 2 Order. This means that the decision under section 17(3) of the 2001 Act of which notice was given by SCSWIS on 4 December 2012, which Mr Gale accepted was validly given, must be treated as if it had been given under section 73 of the 2010 Act, and that the appeal against that decision must now proceed under section 75 of that Act. There is no material difference between the relevant provisions of the 2001 Act and those of the 2010 Act. The appeal to the sheriff should proceed on this basis from now on. Conclusion aim should be to bring the appeal against the decision of which notice was given on 4 December 2012 to a conclusion as expeditiously as the administration of justice will allow (see MacPhail, Sheriff Court Practice (3rd edition, 2006), para 26.01). I would affirm that part of the interlocutors of 24 January 2012 by which the Inner House allowed the appeals against the Sheriff Principals interlocutors. Quoad ultra I would recall the Inner Houses interlocutors of 24 January 2012 and remit the case to the Inner House for any further orders that may be required.	Mrs Sheila Davies and Mrs Maureen Mowat operate a childrens nursery known as All Stars Nursery in Aberdeen which was registered in 2004 by the Scottish Commission for the Regulation of Care (the Commission) under the Regulation of Care (Scotland) Act 2001 (the 2001 Act). The Commission became concerned at the way the nursery was being operated and in 2008 and again in 2009 it gave notice to the nursery under the 2001 Act of its decisions to implement its proposals to cancel the nurserys registration. The nursery disputed the factual basis for the Commissions concerns and appealed to the sheriff against the decisions. The appeals proceeded together before the sheriff, who, at a particular point in the proceedings, made a decision against the nursery on an evidential issue. The nursery appealed that decision to the Sheriff Principal [1 3, 5 7]. In the meantime, provisions of the Public Services Reform (Scotland) Act 2010 (the 2010 Act) had been enacted. The 2010 Act provided, among other things, that a new body, Social Care and Social Work Improvement Scotland (SCSWIS), would take over from the Commission the responsibility for the regulation of the day care of children. By virtue of a commencement order, as from 1 April 2011, SCSWIS was established, the Commission was dissolved, all the Commissions staff and property were transferred to SCSWIS, and Part 1 of the 2001 Act (which dealt with the regulation by the Commission of care services such as the nursery) was repealed. Two transitional orders (the No 1 Order and the No 2 Order) dealt with what was to happen to various outstanding actions and proceedings as a result of the handover. Article 2(1) of the No 2 Order dealt with appeals (such as the present) outstanding at 1 April 2011 and directed that Part 1 of the 2001 Act continued to apply for the purposes of the care services involved until the appeals had been finally determined [7, 8, 14 22]. At the appeal hearing on 12 April 2011 the nursery argued that the Commission could no longer be a party to the appeals, as it had been dissolved and replaced by SCSWIS. But SCSWIS had no title or interest to enter the proceedings, as the proceedings were concerned only with things that had been done under the 2001 Act before it came into existence. Therefore each of the Commissions decisions notified under the 2001 Act was a nullity. The Sheriff Principal held that, as the Commission had ceased to exist and there was no provision in either of the transitional orders that the Commissions decisions were to be treated as if they had been made by SCSWIS, those decisions could no longer have any meaning or effect [9, 11]. The Commission appealed to the Inner House of the Court of Session. In January 2012, by a majority, the First Division allowed the appeals on the basis that the effect of the transitional provisions was that the proceedings were still governed by the 2001 Act, that the Commission continued in existence for the purposes of the proceedings and that it was the proper respondent. Lord Marnoch, dissenting, thought that SCSWIS should be held to have taken over the conduct of the proceedings and be considered as the respondent as from 1 April 2011. Further notices were served on the nursery in 2012, culminating in parallel notices under the 2001 Act and the 2010 Act issued in December 2012 of decisions to implement proposals to cancel the nurserys registration. The nursery have challenged the validity of the notices and appealed against the decisions [12, 24]. The issues in the appeal are as follows. (1) Whether the Commission remains in existence for the purpose of conducting these proceedings, or whether SCSWIS took its place for that purpose after 1 April 2011. (2) validity of the 2012 notices. (3) The future conduct of these proceedings, given the lapse of time since the 2008 and 2009 decisions and the fact that the 2012 decisions are now also under appeal [23, 25]. The Supreme Court unanimously affirms the orders of the Inner House to the extent that they allowed the appeals against the Sheriff Principals orders and remits the case to the Inner House for any further orders that may be required [48]. The No 2 Order on its own leaves issue (1) unsolved. However, article 15 of the No 1 Order directs that, where an application for registration of a care service under the 2001 Act had not been determined by the Commission before 1 April 2011, the application is to be decided under the 2001 Act and that all references to the Commission are to be read as references to SCSWIS. This is echoed by the direction in article 9 of the No 1 Order that, where there is an outstanding complaint against the Commission or a care service as at 1 April 2011, the investigation of the complaint is to be carried out by SCSWIS. The reason for these directions must be that it was appreciated that, as the Commission was to be dissolved and all its staff and resources transferred to SCSWIS on 1 April 2011, the logical consequence was to transfer responsibility for the performance of the relevant functions after 1 April 2011 to SCSWIS [18, 20, 33, 34]. The gap in the No 2 Order can be filled by adopting the formula that article 15 of the No 1 Order uses and by then reading it into the direction given in the No 2 Order, so that it says that until the final determination of the appeal proceedings all references to the Commission in Part 1 of the 2001 Act are to be read as references to SCSWIS. There is here clearly a case of inadvertence. The No 2 Order needed to say how the provisions of Part 1 of the 2001 Act were to be put into effect after the Commission was dissolved. The intended solution, and the substance of the provision that would have been written in if the draftsman had spotted the point, is to be found in article 15(2) of the No 1 Order. There is a template there that is apt for use in this context too. To do otherwise would leave the dissolved Commission in existence for some of the purposes of Part 1 of the 2001 Act and require a reference to the Commission to be read as a reference to SCSWIS for others, which would be very untidy. It can safely be assumed that, if the draftsman had considered the point, he would have written the words he used in article 15(2) into article 2(1). This solution is also supported by article 19 of the No 1 Order, because its effect is that an appeal taken prior to 1 April 2011 against a decision notified by the Commission within 14 days prior to that date is thereafter to be treated as taken under the 2010 Act. It follows that the respondent in the appeal should be SCSWIS [36, 37]. On issue (2), in light of the decision on issue (1) and on a correct construction of the relevant provisions, the December 2012 notice that was issued by SCSWIS (albeit unnecessarily in the name of the Commission) under the 2001 Act is valid. The notice issued under the 2010 Act is invalid [41, 42]. On issue (3), there was considerable delay in the sheriff court and it has taken almost two years for issue (1) to be argued out in the appeal courts. The fact that the question whether decisions to cancel the registration of the nursery are the subject of two parallel appeal proceedings directed to the state of affairs in the nursery on significantly different dates is a cause for real concern. The time has come for the Supreme Court to intervene in order to minimise further delay and expense. In the very unusual circumstances of this case it is open to it to proceed on the basis that, if SCSWIS were to adhere to its 2008 and 2009 decisions, that would be an abuse of process and, in the interests of appropriate case management, to take steps now to prevent such an abuse. It would normally only be open to the Supreme Court to direct that a decision by the Commission shall not have effect after considering the merits of the appeal. But where a procedural sanction is being imposed for an abuse of process a consideration of the merits is unnecessary. The Supreme Court therefore directs that the 2008 and 2009 decisions shall not have effect. This means that the appeal proceedings against those decisions have been finally determined, and that the nursery must now be treated for all purposes as if it had been registered under the 2010 Act. The December 2012 decision notified under the 2001 Act must therefore be treated as if it had been notified under the 2010 Act. The appeal against the decision must now proceed under the 2010 Act and the aim should be to bring it to a conclusion as expeditiously as the administration of justice will allow [16, 43, 44, 46 48].
Section 1(1) of the Protection from Harassment Act 1997 provides that a person must not 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. Harassment is both a criminal offence under section 2 and a civil wrong under section 3. Under section 7(2), references to harassing a person include alarming the person or causing the person distress, but the term is not otherwise defined. It is, however, an ordinary English word with a well understood meaning. Harassment is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress: see Thomas v News Group Newspapers Ltd [2002] EMLR 78, para 30 (Lord Phillips of Worth Matravers MR). One of the more egregious forms of harassment is the stalking of women. But the Act is capable of applying to any form of harassment. Among the examples to come before the courts in recent years have been repeated offensive publications in a newspaper (as in Thomas); victimisation in the workplace (Majrowski v Guys and St. Thomass NHS Trust [2007] 1 AC 224); and campaigns against the employees of an arms manufacturer by political protesters (EDO MBM Technology Ltd v Axworthy [2005] EWHC 2490 (QB)). The present appeal arises out of an action for damages for harassment and for an injunction to restrain its continuance. The question at issue is in what circumstances can such an action be defended on the ground that the alleged harasser was engaged in the prevention or detection of crime. Section 1(3) of the Act provides: (3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows (a) that it was pursued for the purpose of preventing or detecting crime, (b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or (c) that in the particular circumstances the pursuit of the course of conduct was reasonable. The plaintiff, Mr Timothy Hayes, is a businessman who used to manage a number of companies involved in software development. There is an issue about whether he also owns them, but for present purposes that does not matter. One of Mr Hayess companies, IT-Map (UK) Ltd, used to employ the defendant, Mr Michael Willoughby. In 2002, the two of them fell out. Mr Hayes accused Mr Willoughby of attempting in conjunction with three employees of another of his companies, Nucleus Information Systems Ltd, to undermine Nucleus with a view to forcing it into liquidation and buying back its business for themselves. These accusations were not fanciful. The findings of an employment tribunal in 2006 and of Judge Moloney in these proceedings show that they were substantially justified. In 2003, the two companies and the four employees were locked in litigation before employment tribunals, and Nucleus was suing all four men in the High Court for conspiracy, malicious falsehood and copyright infringement. The High Court litigation was resolved at the end of 2004, when Nucleus accepted a payment into court. The disputes about the conduct of the four employees and the resultant litigation are not themselves said to be part of the course of harassment. They are part of the background and they are the occasion for it. The course of conduct on which Mr Hayes relies began in late 2003, when Mr Willoughby embarked on an unpleasant and obsessive personal vendetta against him. Mr Willoughby alleged that his management of his companies, principally in the accounting year 2002-3, was characterised by fraud, embezzlement and tax evasion. The campaign was mainly carried on by pressing these allegations in very many letters addressed over the years to the Official Receiver, the police, the Department of Trade and Industry and other public bodies. The judge recorded that the Official Receiver estimated that no less than 400 communications on the matter were exchanged between Mr Willoughby and the Official Receiver alone. The Official Receiver obtained access to the companys records and investigated the allegations. The DTI commenced two investigations under section 447 of the Companies Act 1985. The police looked into the allegations. All of them concluded that there was nothing in them. They reported their conclusions to Mr Willoughby in increasingly strong terms, but he was not to be moved and continued to raise queries about what he professed to regard as their inadequate inquiries and illogical conclusions. The position has now been reached, said the judge, that most of the relevant bodies are refusing to have any more to do with him, in particular because of their perception that when one of his allegations is conclusively refuted he will simply change his ground and put forward another with equal force. The judge found that Mr Willoughbys words and acts constituted a course of conduct, linked by a common purpose and subject-matter, calculated to cause and in fact causing alarm, distress and anxiety to Mr Hayes. Although he did not communicate directly with Mr Hayes, Mr Willoughby was well aware that his allegations and other conduct would get back to Mr Hayes and have that effect on him. The judge concluded that this amounted to harassment, and it is no longer disputed that it does. The sole remaining issue is whether Mr Willoughby is entitled to a defence under section 1(3)(a), on the ground that his campaign was pursued for the purpose of preventing or detecting crime. On that point, the judges findings were as follows: (1) Mr Willoughbys conduct was gratuitous, for apart from some modest financial claims against Mr Hayes, almost all of which were resolved at an early stage of his campaign, he had no personal interest in establishing his allegations against Mr Hayes. He was animated, the judge said, by mixed motives, including personal animosity to H (in fairness based largely on the same suspicions) and a sort of intellectual curiosity. He quoted Mr Willoughbys evidence that it was an intellectual problem, like playing bridge. (2) Mr Willoughby has at all times sincerely believed that Mr Hayes had stolen large sums from his companies in the United Kingdom and committed a variety of offences in the course of doing so. He continues to believe this to the present day. His campaign was throughout subjectively directed at the prevention or detection of crime. (3) At the outset of the campaign, there was a reasonable basis for Mr Willoughbys suspicions. But Mr Willoughby accepted, indeed asserted, that the crucial evidence was that of the companies bank statements which if examined would either prove or refute his allegations. Once it became clear that the Official Receiver had examined this material and that it did not support Mr Willoughbys case, the judge considered that his persistence ceased to be reasonable. The judge found that this stage had been reached by 14 June 2007, when the Official Receiver reported to him the conclusion of his investigation, or at the latest by 21 September 2007 when the Official Receiver sent him a schedule accounting for substantially the whole of the book debts of IT-Map in the relevant period. Thereafter, Mr Willoughbys persistence exceeded even the widest limits of reasonableness and became unreasonable and obsessive. The inevitable conclusion, the judge said, is that he has developed an unshakeable conviction of Hs criminal guilt which now precedes rather than follows any objective assessment. (4) The three incidents of personal intrusions into Mr Hayess private life (such as the contact with his GP) were never reasonable and had no relevant connection with the prevention or detection of crime. But they did not constitute a separate course of conduct capable of amounting to harassment independent of the correspondence with the public authorities. Some of these findings seem unduly charitable to Mr Willoughby. But the judge heard the witnesses, and it is not for an appellate court lacking that advantage to substitute its own assessment of his state of mind. The question is what is the effect of the findings as a matter of law. It is common ground that in respect of the period up to June 2007 their effect is that Mr Willoughby is entitled to rely on section 1(3)(a) as a defence to the allegation of harassment. The question at issue is whether he remained entitled to do so thereafter. The judge dismissed the claim in respect of the entire period, because he considered that the test for section 1(3) of the Act was wholly subjective. It was therefore enough that Mr Willoughby genuinely believed in his allegations and wished to persist in investigating them. The Court of Appeal allowed the appeal, granted an injunction and remitted the matter to the county court to assess damages. Their reasons are given in the judgment of Moses LJ, with whom Sullivan and Gross LJJ agreed. There were, in summary, two reasons. In the first place, Moses LJ distinguished between the purpose of the alleged harasser and the purpose of his conduct, only the latter being in his view relevant. Whatever the avowed purpose of Mr Willoughby himself, the purpose of his conduct was not reasonably or rationally connected to the prevention or detection of crime after June 2007. To the extent that the course of conduct is adjudged irrational, or lacking in any reasonable connection to the avowed purpose of preventing or detecting crime, the likely conclusion will be that the purpose of the conduct was not preventing or detecting crime. As I read this statement, it is a conclusion of law derived from the judges findings, and not a rejection of those findings. Secondly, Moses LJ considered that the prevention and detection of crime had to be the sole purpose of the alleged harasser, and the intrusions upon Mr Hayess privacy, which the judge had found to be unrelated to the prevention or detection of crime, showed that it was not. The starting point of any analysis of this question is that there is no general rule as to how purpose is to be established when it is relevant to a crime or civil wrong. When purpose is relevant to the operation of a statutory provision, the question will depend on the construction of the statute in the light of the mischief to which it is directed. When it is relevant to a rule of common law, the answer will normally be found in the object of the rule. In his concurring judgment in the High Court of Australia in Williams v Spautz (1992) 174 CLR 509, para 4, Brennan J attempted a partial definition of purpose in the context of the tort of abuse of process, which is committed when a person conducts litigation for a purpose other than that for which the courts process is designed: Purpose, when used in reference to a transaction, has two elements: the first, a result which the transaction is capable of producing; the second, the result which the person or persons who engage in or control the transaction intend it to produce. Or, to express the concept in different terms, the purpose of a transaction is the result which it is capable of producing and is intended to produce. This is probably as much as can usefully be said in general terms about this protean concept. I do not accept that any distinction can be drawn of the kind that Moses LJ suggests, between the purpose of a course of conduct and the purpose of the person engaging in it. Acts such as these can have no purpose other than that of their perpetrator. The question is by what standard that persons purpose is to be assessed. In the authorities about section 1(3)(a) of the Protection from Harassment Act 1997, discussion of this question has generally been conducted in terms of a stark choice between an objective and a subjective test. In EDO MBM Technology Ltd v Axworthy [2005] EWHC 2490 (QB), paras 28-29, Paul Walker J held that the test of purpose was subjective. The trial judge in the present case agreed with him. On the other hand, Tugendhat J in KD v Chief Constable of Hampshire [2005] EWHC 2550 (QB) at [144] thought that the test was whether the conduct was objectively justified as a means of preventing or detecting crime, at any rate when it infringed the victims rights under article 8 of the European Convention on Human Rights, and Eady J in Howlett v Holding [2006] EWHC 41 (QB), para 33, thought that there must be objectively judged some rational basis for it. On this appeal the parties have adopted one or other view, according to their interest, fortifying their arguments with authorities relating to other legal contexts in which purpose is relevant. The difficulty about a wholly objective test is that it is not consistent with either the language or the purpose of the Act. The only wholly objective test which could work in this context is one based on the reasonableness of the alleged harasser in supposing that there was a crime to be prevented or detected or that his conduct was calculated to achieve those ends. But where the draftsman intended to apply a test of reasonableness, he said so in terms, notably in sections 1(1)(b) (knows or ought to know), section 1(2) (if a reasonable person... would think) and 1(3)(c) itself (if... the course of conduct was reasonable). If the defence under section 1(3)(a) was limited to cases where it was reasonable to seek to prevent or detect crime in the way that the alleged harasser set about it, it would have been unnecessary because it would have been subsumed in the general defence of reasonableness provided by section 1(3)(c). Moreover, it is hard to imagine that such a limitation would be workable as applied to public authorities even if it could be reconciled with the language of section 1. A wholly subjective test, on the other hand, such as the one that the judge applied to Mr Willoughby, is equally problematic. Before the defence can arise, it must be shown that the victim has been harassed. As Lord Nicholls pointed out in Majrowski v Guys and St. Thomass NHS Trust [2007] 1 AC 224, para 30, bearing in mind that we are concerned with conduct that is a criminal offence as well as a civil wrong, section 1 is confined to serious cases. The conduct relied upon must cross the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2. A large proportion of those engaging in the kind of persistent and deliberate course of targeted oppression with which the Act is concerned will in the nature of things be obsessives and cranks, who will commonly believe themselves to be entitled to act as they do. Section 1(3)(a), although it was no doubt drafted mainly with an eye to the prevention or detection of crime by public authorities, applies equally to private persons who take it upon themselves to enforce the criminal law. Within broad limits, the law recognises the right of private persons to do this, but vigilantism can easily and imperceptibly merge into unlawful harassment. Cases such as the present one, where the harassment is said to consist in repeated and oppressive attempts to detect crime are quite likely to involve conduct falling within the sub- category of harassment defined as stalking by section 2A (added by section 111(1) of the Protection of Freedoms Act 2012). This includes not just sexual stalking, but any persistent course of harassment that consists in repeatedly following a person, contacting or attempting to contact them, publishing material about them, monitoring their use of the internet, loitering in any place, or watching or spying on them: see section 2A(3). Conduct said to be directed to preventing crime is likely to be an even more significant category than conduct said to be directed to its detection. Recent cases before the courts illustrate the propensity of obsessives to engage in conduct which is oppressive enough to constitute harassment, in the genuine belief that they are preventing crime. These ranging from the more extreme wings of the animal rights movement to the lone schizophrenic vigilante whom Mr Wolman (appearing for Mr Willoughby) submitted would be protected by section 1(3)(a). Those who claim to be acting for the purpose of either preventing or detecting crime may at a purely subjective level entertain views about what acts are crimes which have no relation to reality, let alone to the law. Private persons seeking to enforce the law are not amenable to judicial review, as the police are. Unless they commit some other offence or civil wrong, such as assault or criminal damage, the Act of 1997 will be the only means of controlling their activities by law. It cannot be the case that the mere existence of a belief, however absurd, in the mind of the harasser that he is detecting or preventing a possibly non-existent crime, will justify him in persisting in a course of conduct which the law characterises as oppressive. Some control mechanism is required, even if it falls well short of requiring the alleged harasser to prove that his alleged purpose was objectively reasonable. I do not doubt that in the context of section 1(3)(a) purpose is a subjective state of mind. But in my opinion, the necessary control mechanism is to be found in the concept of rationality, which Eady J touched on in Howlett v Holding [2006] EWHC 41 (QB) and Moses LJ seems to have been reaching for in his judgment in the present case. Rationality is a familiar concept in public law. It has also 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: see Ludgate Insurance Co Ltd v Citibank NA [1998] Lloyds Rep IR 221, para 35 and Socimer International Bank Ltd v Standard Bank Ltd [2008] Bus LR 1304, para 66. Rationality is not the same as reasonableness. Reasonableness is an external, objective standard applied to the outcome of a persons thoughts or intentions. The question is whether a notional hypothetically reasonable person in his position would have engaged in the relevant conduct for the purpose of preventing or detecting crime. 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. For the avoidance of doubt, I should make it clear that, since we are concerned with the alleged harassers state of mind, I am not talking about the broader categories of Wednesbury unreasonableness, a legal construct referring to a decision lying beyond the furthest reaches of objective reasonableness. Before an alleged harasser can be said to have had the purpose of preventing or detecting crime, he must have sufficiently applied his mind to the matter. He must have thought rationally about the material suggesting the possibility of criminality and formed the view that the conduct said to constitute harassment was appropriate for the purpose of preventing or detecting it. If he has done these things, then he has the relevant purpose. The court will not test his conclusions by reference to the view which a hypothetical reasonable man in his position would have formed. If, on the other hand, he has not engaged in these minimum mental processes necessary to acquire the relevant state of mind, but proceeds anyway on the footing that he is acting to prevent or detect crime, then he acts irrationally. In that case, two consequences will follow. The first is that the law will not regard him as having had the relevant purpose at all. He has simply not taken the necessary steps to form one. The second is that the causal connection which section 1(3)(a) posits between the purpose of the alleged harasser and the conduct constituting the harassment, will not exist. The effect of applying a test of rationality to the question of purpose is to enable the court to apply to private persons a test which would in any event apply to public authorities engaged in the prevention or detection of crime as a matter of public law. It is not a demanding test, and it is hard to imagine that Parliament can have intended anything less. The judges findings of primary fact, fairly read, mean that after June 2007 Mr Willoughbys vendetta against Mr Hayes was more than objectively unreasonable. It was irrational. His persistence was obsessive. He was no longer guided by any objective assessment of the evidence of Mr Hayess supposed criminality and there was no longer any logical connection between his supposed purpose and his acts. In the judges words, his unshakeable conviction of Mr Hayess guilt now preceded rather than followed any objective assessment of the evidence. He was proceeding with his campaign for its own sake, regardless of the prospect of detecting any crimes of Mr Hayes. There is no other way of characterising his persistence in pressing his allegations on the official Receiver and other investigatory authorities long after they had refused to deal further with him, so that his conduct was no longer capable of furthering the supposed purpose. It follows that Mr Willoughby cannot, in the sense meant by section 1(3)(a) of the Act, be regarded as having had that purpose or of having been guided by it. In these circumstances, it is strictly speaking unnecessary to decide whether the purpose specified in section 1(3)(a) must be the sole purpose of the alleged harasser. But I should record that Mr Allen QC (who appeared for Mr Hayes) did not attempt to defend this particular ground of the Court of Appeals decision and in my view it was indefensible. A persons purposes are almost always to some extent mixed, and the ordinary principle is that the relevant purpose is the dominant one. It follows that the only relevance of the three intrusions upon Mr Hayess privacy found by the judge, is that they were evidence of Mr Willoughbys state of mind. The judge might have concluded that they demonstrated that Mr Willoughby was predominantly actuated by malice and resentment. But he did not and that is all that there is to say about this aspect of the matter. I would dismiss the appeal. On that footing there is no issue about the terms of the Court of Appeals order, which will stand. I agree that this appeal should be dismissed, essentially for the reasons given by Lord Sumption. Parliament in enacting section 1(3) of the Protection from Harassment Act 1997 must have regarded paragraphs (a) and (b) as representing situations in which the stated purpose under paragraph (a), or the relevant enactment, rule, condition or requirement under paragraph (b), would by itself constitute sufficient justification of the course of conduct constituting the assumed harassment, without any need to enquire whether in the particular circumstances the pursuit of the course of conduct was reasonable. The Court of Appeal was clearly in error both in identifying a distinction under paragraph (a) between Mr Willoughbys purpose and the purpose of his course of conduct and in holding that the purpose of preventing or detecting crime must be the sole purpose for paragraph (a) to apply. Paragraph (a) focuses on Mr Willoughbys subjective purpose and it is sufficient if his predominant purpose fell within it. The judge, as I read his judgment, found that Mr Willoughbys predominant subjective purpose was to detect crime. Very often that finding would conclude the case. But, like Lord Sumption, I do not consider that it does here. If one asks whether Parliament can really have intended there to be no limits to the pursuit of a course of conduct for the purpose of preventing or detecting crime, no matter how irrational, perverse or abusive its pursuit may have become, the answer I would give is negative. Mere unreasonableness is not the limit. But the law recognises looser control mechanisms such as complete irrationality, perversity, abusiveness or, indeed, in some contexts gross negligence. (As to the last, see eg Spread Trustee Co Ltd v Hutcheson [2011] UKPC 13, [2012] 2 AC 194, paras 50- 51 per Lord Clarke.) Which of these is in the present context adopted does not in my view ultimately matter. They all probably amount to very much the same thing. On the judges findings, Mr Willoughbys state of mind took his course of conduct outside paragraph (a), whether one describes it as irrational, perverse or abusive or as so grossly unreasonable that it cannot have been intended to be covered by that head of justification. LORD REED (dissenting) I agree that section 1(3)(a) of the Protection from Harassment Act 1997 is not subject to any requirement that the pursuit of the course of conduct, for the purpose of preventing or detecting crime, should have been reasonable: otherwise, given the terms of section 1(3)(c) (that in the particular circumstances the pursuit of the course of conduct was reasonable), section 1(3)(a) would be otiose. Having reached that conclusion, I am with respect unable to agree that Parliament may nevertheless have intended to impose a requirement that the pursuit of the course of conduct should have been rational. That is so for three reasons. First, Parliament did not say so. On its face, a test of purpose usually refers to the object or aim which the defendant had in mind: purpose connotes an intention by some person to achieve a result desired by him (Sweet v Parsley [1970] AC 132, 165 per Lord Diplock). The purpose for which a course of conduct is pursued is therefore ordinarily ascertained by reference to the intention of the person who pursues it. To introduce a requirement of objective rationality requires the court to read in words which Parliament did not use. Furthermore, as Walker J observed in EDO MBM Technology Ltd v Axworthy [2005] EWHC 2490 at para 36, in enacting the Act Parliament was significantly extending the reach of the criminal and civil law in controversial circumstances. In doing so, care was taken to identify expressly occasions when conduct was to be judged by an objective standard. I have already referred to the terms of section 1(3)(c). The language employed in section 1(1)(b) (knows or ought to know), section 1(2) (if a reasonable person would think) and section 8(1)(b) (where it would appear to a reasonable person), to give only a few examples, similarly demonstrates that Parliament made it clear when it intended to impose an objective requirement. The implication is that it did not intend to impose such a requirement in section 1(3)(a), or in the similarly worded sections 4(3)(a), 4A(4)(a) (as inserted by section 111(2) of the Protection of Freedoms Act 2012) and 8(4)(b). Moreover, I cannot readily bring to mind any example, in any context, of a statutory requirement not of reasonableness but of rationality, the latter being understood as conceptually distinct from the former. Secondly, section 1(3)(a) and the similarly worded provisions elsewhere in the Act provide defences to criminal as well as civil liability. It is trite that a statute is not normally to be construed as extending criminal liability beyond the limits which Parliament itself made clear in its enactment. Thirdly, bearing in mind again that section 1(3)(a) and the other provisions to like effect limit the scope of criminal offences, some of which are triable on indictment, I would be slow to infer that criminal liability was intended to turn upon the subtle distinction between what is unreasonable and what is irrational. Are defendants to be convicted on the basis that their conduct has overstepped the boundary separating the unreasonable from the irrational? Are juries to be required to determine where that boundary lies? It may be that appropriate directions can be devised by judges, although I do not underestimate the difficulty of devising directions which accurately reflect Lord Sumptions analysis. I have to confess that I am not sure that I understand the distinction drawn at para 14 between on the one hand rationality [as] a familiar concept in public law, which is not the same as reasonableness, and on the other hand the broader categories of Wednesbury unreasonableness; or the statement that there should be an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse, but that the court is not referring to a decision lying beyond the furthest reaches of objective reasonableness; or how that test is related to the causal connection between the purpose and the conduct, discussed in para 15; or whether it is the same test as is reflected in the various standards, ranging from gross negligence to complete irrationality, mentioned by Lord Mance. In any event, a meaningful jury trial requires not merely that the jury is given a legally accurate direction, but that it is one which they can make sense of in practice and apply with confidence to the evidence they have heard. I am not convinced that Parliament can have intended that a jury should be expected to understand and apply the sophisticated distinctions which Lord Sumption seeks to draw. That Parliament should have intended section 1(3)(a) to apply, regardless of whether the pursuit of the course of conduct was objectively reasonable or not, may at first sight seem surprising, given that the conduct must otherwise constitute harassment before section 1(3)(a) can come into play. It is however understandable that Parliament should not have intended that persons genuinely pursuing a course of conduct for the purpose of preventing or detecting crime should be vulnerable to prosecution or civil action under the Act, and should then have to justify their conduct to a court. The possibility of such proceedings could inhibit not only the activities of the numerous public agencies with responsibilities relating to the prevention or detection of crime, but also other activities of other persons such as investigative journalists. The possibility that such activities might, in the absence of immunity, be the subject of proceedings under the Act is by no means fanciful, as is demonstrated by the example of the late Robert Maxwell amongst others. Indeed, journalism has already been the subject of proceedings under the Act (Thomas v News Group Newspapers Ltd [2002] EMLR 78). I do not demur from the view that it may be desirable that the courts should be able to restrain the activities of a person who causes real distress through his irrational behaviour; and this case demonstrates that mental health legislation does not provide a complete answer. But that is not in my view a sufficient reason for extending the scope of the Act beyond what Parliament intended. If Parliament wished to amend the legislation in order to apply it to persons such as the appellant, it could do so; and, if it contemplated such an amendment, it could also consider whether, and if so how, it wished to preserve the immunity which had until now been thought to be conferred by section 1(3)(a), and the other provisions to like effect, upon public agencies exercising investigative powers and upon other persons, such as investigative journalists, whose conduct may be equally upsetting to those whom they are investigating and will also, as a result of this decision, be susceptible to challenge in the courts.	This appeal arises out of an action for damages for harassment and for an injunction to restrain its continuance. The question at issue is in what circumstances can such an action be defended on the ground that the alleged harasser was engaged in the prevention or detection of crime. Mr Willoughby was employed by one of Mr Hayess companies. In 2002, the two men fell out. In late 2003, Mr Willoughby embarked on a campaign against Mr Hayes centring on allegations of fraud, embezzlement and tax evasion in relation to Mr Hayess management of his companies. This took the form of sending numerous letters to the Official Receiver, the police and the Department of Trade and Industry. These bodies investigated and found no basis in the allegations, but Mr Willoughby continued to press these bodies and made a series of intrusions into Mr Hayess private life. The Protection from Harassment Act 1997 (the Act) makes harassment a civil wrong and a criminal offence, but under s.1(3) of the Act it is a defence for a person to show (a) that it was pursued for the purpose of preventing or detecting a crime; (b) that it was pursued under any enactment or rule of law, or (c) that in the particular circumstances, the pursuit of the course of conduct was reasonable. The trial judge found that Mr Willougbys conduct constituted harassment under s.1(1) of the Act but that he had a defence under s.1(3)(a) because he genuinely believed in the allegations involving Mr Hayes and wished to persist in investigating them. The Court of Appeal allowed Mr Hayess appeal on two main grounds: (1) only the purpose of the conduct not the purpose of the alleged harasser was relevant, and in this case it was not reasonably or rationally connected to the prevention of crime; and (2) the prevention of crime had to be the sole purpose of the alleged harasser, and the intrusions on Mr Hayess privacy were not related to that purpose. The Supreme Court dismisses the appeal by Mr Willoughby by a majority of four to one (Lord Reed Dissenting). Lord Sumption gives the judgment of the Court. There is no distinction between the purpose of the conduct and the purpose of the alleged harasser as such acts have no purpose other than that of their perpetrator. The issue is by what standard that persons purpose is to be assessed [10]. A wholly objective test (adopted by the Respondent) is not consistent with the wording or purpose of the Act. A test of reasonableness was not included in s.1(3)(a), as it was in other sections of the Act. It would also render the general defence of reasonableness in s.1(3)(c) otiose [11]. A wholly subjective test (adopted by the Appellant) is equally problematic [12]. Those who claim to be acting for the purpose of preventing or detecting crime may, at a purely subjective level, entertain views about what acts are crimes and what steps are calculated to prevent or detect them which have no relation to reality. Mere existence of belief, however absurd, in the mind of the harasser that he is detecting or preventing a crime, cannot justify him persisting in a course of conduct which the law recognises as oppressive. Some control mechanism is therefore required, even if it falls short of what is objectively reasonable [13]. The necessary control mechanism is to be found in the concept of rationality, familiar in public law but also increasingly significant in other areas, such as contractual discretions. Rationality is different to reasonableness. Reasonableness is an external, objective standard applied to the outcome of a persons thoughts or intentions. A test of rationality only applies a minimum objective standard to the relevant persons mental processes. It imports a notion of good faith in requiring some rational connection between the evidence and the ostensible reasons for the decision, and an absence of arbitrariness, capriciousness or reasoning so outrageous in its defiance of logical as to be perverse [14]. If the alleged harasser has rationally applied his mind to the material suggesting criminality and formed the view that the conduct said to constitute harassment was appropriate for its detection or prevention, the court will not test his conclusions by reference to what view a hypothetical reasonable man in his position would have formed. If he has not done so but proceeds anyway, he acts irrationally. He will not have a relevant purpose and there will be no causal connection between his purpose and the conduct constituting harassment. Such a test would in any event apply to public authorities. It is not a demanding test, and it is hard to imagine that Parliament could have intended anything less [15]. Applied to the facts, this tests means that after June 2007, Mr Willoughbys conduct against Mr Hayes was more than objectively unreasonable. It was irrational. He was no longer guided by any assessment of evidence, nor was there a rational connection between his supposed purpose and acts. By persisting in pressing his allegations on the Official Receiver and other investigatory bodies long after they refused to deal with him, he was acting in way that was incapable of furthering the alleged purpose [16]. Although not strictly necessary to decide the point, it was also held that for the purpose of s.1(3)(a) the prevention or detection of crime need not be the sole purpose of the alleged harasser, but only the dominant one [17]. Lord Reed (dissenting) agrees that reasonableness is not required under s.1(3)(a), but rejects the idea that Parliament intended to impose a rationality requirement for three reasons: (1) Parliament did not provide for any rationality test. (2) A statute should not be construed as extending criminal liability beyond the limits which Parliament itself enacted it. (3) Criminal liability would turn on the subtle distinction between irrationality and unreasonableness, which could create particular difficulties in giving clear directions to juries [24 28].
Section 15(1) of the Equality Act 2010 (the 2010 Act) provides that A person (A) discriminates against a disabled person (B) 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. The central issue in this appeal is the meaning of the expression treats unfavourably. The facts can be shortly stated by reference to the agreed statement. Mr Williams was employed by the second respondent (the University) from 12 June 2000 until he retired for ill health reasons with effect from 30 June 2013, at the age of 38. He suffers from Tourettes syndrome and other conditions which satisfy the definition of disability under section 6 of the 2010 Act. He had been an active member of the second respondents pension scheme (the Scheme) throughout his employment, and had over 13 years pensionable service at the date of termination. For the first ten years of his employment, he had worked full time (35 hours per week). Thereafter, he worked anything from 17.5 26 hours per week when he was fit to work. By June 2013 his agreed working hours were half of his full time hours (17.5 hours per week) and had been so for nearly two years, even though he was not at work for approximately 11 months. It is agreed that each reduction in hours of working arose from his disabilities. The variations in his working hours were made at his request as a reasonable adjustment, with the Universitys agreement. Between June 2012 and April 2013, he took unpaid leave so that he could undergo specialist brain surgery, which took place in late November 2012. He commenced a phased return to work in late April 2013. However, in May 2013 he applied for ill health early retirement (IHR) under the Scheme, and his application was successful, the agreed medical view being that he was likely to be permanently incapable of efficiently discharging the duties of his post with the University or in relation to any comparable post. He retired with effect from 30 June 2013. The Scheme provided for accrual of benefits on a final salary basis up until 1 August 2009, from which time the Scheme was amended so that accrual of benefits on and after that date was on the basis of Career Average Revalued Earnings (CARE). Under the IHR provisions of the Scheme, Mr Williams is and was entitled to, and received, the following: i) A lump sum and annuity, payable immediately, based on his accrued benefits without any actuarial reduction for early receipt. The annuity and lump sum were calculated on the basis of his actual salary at the relevant times, whether full time or part time; ii) An enhancement to both his lump sum and annuity (the enhanced element), again payable immediately and without any actuarial reduction for early receipt. The enhanced element was calculated on the basis of his actual salary at date of retirement and a period of deemed pensionable service, as though he had continued to be employed in active service to his Normal Pension Date (NPD) under the Scheme (age 67). The dispute relates solely to the enhanced element. Mr Williams contends that the reduced figure, resulting from its calculation by reference to his part time rather than full time salary, constitutes unfavourable treatment because of something arising in consequence of his disabilities, that is his inability to work full time. It therefore involves discrimination within the meaning of section 15(1)(a), unless shown under section 15(1)(b) to be a proportionate means of achieving a legitimate aim, or in other words justified. This contention was upheld by the Employment Tribunal, but rejected on appeal by the Employment Appeal Tribunal (Langstaff J) [2015] ICR 1197 and by the Court of Appeal (Arden, Briggs and Bean LJJ) [2018] ICR 233. It is common ground that if the appeal succeeds, the appeal will have to be remitted to the Employment Tribunal to consider the issue of justification under section 15(1)(b). Comparison with the previous law It is accepted by both sides that section 15 needs to be considered in the context of the previous law, as interpreted by the House of Lords in Lewisham London Borough Council v Malcolm [2008] UKHL 43; [2008] 1 AC 1399. We have been referred to the words of the Solicitor General in a Public Bill Committee on what was then clause 14 of the Equality Bill (Hansard (HC Debates), 16 June 2009, col 275): Like the provision in the 1995 Act, clause 14 is intended to provide that the disabled person demonstrates that they have been subjected to detrimental treatment because of something connected with their disability and, secondly, that the duty holder should be able to justify that treatment. However, we have revised the wording from the 1995 Act because we cannot simply carry it forward as the finding in the courts said that we did not achieve the protection that we intended. We therefore dropped the requirement for a comparator. Similarly, the Explanatory Note to section 15 of the Act states: This section is a new provision. The Disability Discrimination Act 1995 provided protection from disability related discrimination but, following the judgment of the House of Lords in the case of London Borough of Lewisham v Malcolm [2008] UKHL 43, those provisions no longer provided the degree of protection from disability related discrimination that is intended for disabled people. This section is aimed at re establishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability, and providing an opportunity for an employer or other person to defend the treatment. The direct predecessor of section 15 was section 3A of the Disability Discrimination Act 1995: (1) For the purposes of this Part, a person discriminates against a disabled person if (a) for a reason which relates to the disabled persons disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and (b) he cannot show that the treatment in question is justified. Malcolm itself had been concerned with section 22 of the 1995 Act, directed at disability related discrimination in the management of property, including in that case by eviction. Section 24(1) defined discrimination for that purpose in similar terms to section 15. It required consideration of whether, on the assumption that the eviction was for a reason related to a persons disability, it involved treating him less favourably than others to whom that reason does not or would not apply. In Malcolm a council tenant who suffered from schizophrenia had sublet his flat in breach of the tenancy agreement. When the council sought to determine the tenancy, he argued that the reason for his action related to his illness and that the eviction constituted discrimination contrary to section 22. It is convenient to refer to the helpful summary of the background and substance of the decision by Elias LJ in Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265; [2017] ICR 160 (a case directly concerned with reasonable adjustments under section 20 of the 2010 Act). As he explained (paras 52 54), one of the issues for the House was how the relevant comparison should be made: Who were the others to whom that reason does not or would not apply? This had been considered in detail by Mummery LJ giving judgment in the Court of Appeal in Clark v Novacold Ltd [1999] ICR 951. He illustrated the two competing constructions by taking the example of a blind man who wished to take his guide dog into a restaurant which had a no dogs rule. Should the comparison be with an able bodied man who wished to take his dog into the restaurant? If so, there would be no less favourable treatment because all are treated the same. The able bodied man too would be refused entry for the same reason, namely that he wished to take his dog into the restaurant. Or should the comparison be with an able bodied man who did not need to take a dog into the restaurant and would not therefore be excluded? In that case there would be unfavourable treatment. In the context of Malcolm the first approach would require the comparison with an able bodied man who had sublet, and the second with someone who had not sublet. The problem with the first analysis was that it effectively rendered disability related discrimination a dead letter and equated it for practical purposes with direct disability discrimination as Lord Brown of Eaton under Heywood recognised in terms. The problem with the second analysis was that it effectively did away with the comparison exercise altogether, as all their Lordships accepted. It requires a comparison with persons to whom the reason for the treatment does not apply; logically the claimant will always be treated less favourably than such persons. The Court of Appeal in Clark v Novacold Ltd had preferred the latter approach on the grounds that it was what Parliament had intended, but in Malcolm their Lordships held, by a majority on this point that the former was the proper comparison. So, in the view of the majority, the comparison is a like for like exercise; the comparator must be similarly placed to the disabled claimant in all relevant respects save for the disability. This is precisely what is required in direct discrimination cases. Although it is not in dispute that the wording of section 15 was intended in broad terms to reverse the ruling in Malcolm, our task is not to try to re construct the pre Malcom law. It is to the section itself, interpreted in accordance with ordinary principles, that we must look for the applicable tests in the present case. The most obvious feature, in line with the Solicitor Generals explanation, is the removal of any element of comparison. Instead, section 15 appears to raise two simple questions of fact: what was the relevant treatment and was it unfavourable to the claimant? The judgments below The Employment Tribunal (para 32) accepted as correct the case as presented on behalf of Mr Williams. Its essence appears from the passage quoted by the tribunal at para 23 of their judgment. It was argued that, in line with previous authority on the equivalent term detriment, the expression unfavourable treatment should be given a broad meaning, including any financial or economic disadvantage. The submission continued: A simple reasonable and logical analysis of the pension rules leads to the inevitable realisation that a person who retires suddenly following a heart attack or stroke would receive their deemed years of service at their full time salary whilst a disabled employee who before retiring is forced to work part time due [to] an increasing disability only receives their deemed years of service at their part time salary. The disabled employee is consequently at a substantial financial disadvantage. (para 23) On its face, that formulation appeared to re introduce a form of comparison which the new section was intended to eliminate, but this time by reference to a hypothetical comparison with the treatment of someone with a different form of disability. In the EAT Langstaff J (President) held that in this respect the tribunal had been in error (para 30). I do not understand that aspect of his reasoning to be under challenge before us. As Ms Crasnow QC says (in her speaking note for Mr Williams): Comparing Mr W to others who have different medical histories (stroke/heart attack) is the wrong approach. At the beginning of Langstaff Js judgment, he had commented on the effect of the scheme for Mr Williams, which he described as immensely favourable: Under the rules of the pension scheme applicable to him employees were entitled to a pension on retirement at age 67, but not earlier, unless retiring when their ill health was such that they were plainly incapable of continuing in work. In the latter case, employees would be entitled not only to the immediate payment of pension without actuarial reduction in respect of the work they had already done (accrued pension) but also to an enhanced pension. This was also paid without actuarial reduction for early receipt as if they had continued working until normal retirement age (in the claimants case 67) continuing to receive the salary they had been receiving when they retired. This was plainly an immensely favourable arrangement for anyone eligible for it. Those eligible for it were necessarily disabled (within the meaning of the Equality Act 2010). Any other 38 year old who left the service of the university at that age would have no prospect of receiving the payment of any accrued pension entitlement until they reached what would have been their normal retirement age, nor any prospect of receiving any enhanced pension. (para 1) In a section under the heading Unfavourably, he gave his own view of the meaning of the term (paras 27 29). He did not think the word could be equated with the word detriment used elsewhere in the Act; nor, as was agreed, did it require a comparison with an identifiable comparator, actual or hypothetical. It was to be measured against an objective sense of that which is adverse as compared with that which is beneficial. He noted that the same word was used elsewhere in the Act, in provisions which have a longer pedigree, in relation to discrimination on the grounds of pregnancy (section 18(2)). In that context it had the sense of placing a hurdle in front of, or creating a particular difficulty for, or disadvantaging a person . It was likely to be intended to have much the same sense in section 15. It was for a tribunal to recognise when an individual has been treated unfavourably, and it was not possible to be prescriptive. However, in his view treatment which is advantageous cannot be said to be unfavourable merely because it is thought it could have been more advantageous, or, put the other way round, because it is insufficiently advantageous. The determination of that which is unfavourable involves an assessment in which a broad view is to be taken and which is to be judged by broad experience of life. Persons may be said to have been treated unfavourably if they are not in as good a position as others generally would be. He cited Malcolm as an obvious example of a life event which would generally be regarded as adverse. He also disagreed with the tribunals reasons for rejecting the respondents case on justification (paras 40ff). However, he was unable to say that there was necessarily only one result to which a properly directed tribunal could come. Accordingly he ordered that the appeal should be remitted to a different panel for a full rehearing (paras 50 51). In the Court of Appeal, the leading judgment was given by Bean LJ. He adopted a similar approach to that of Langstaff J, although he also considered the application of the competing interpretations to different hypothetical examples. For the substance of his reasoning it is sufficient to refer to two passages. In the first (paras 42 43) he distinguished decided cases, including Malcolm, in which there had been an act which in itself caused disadvantage: In the leading cases cited to us the treatment complained of has been an act which itself disadvantages the claimant in some way. In Clark v Novacold Ltd the claimant was dismissed. In the Lewisham London Borough Council case Mr Malcolm was evicted. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 the claimant chief inspector had part of her duties as a manager (the appraisal of subordinates) removed. The House of Lords held that it was not necessary for her to show financial loss in order to establish a detriment; it was enough that she might reasonably feel demeaned by this decision in the eyes of those over whom she had authority. Ms Casserley [counsel for Mr Williams] placed the Shamoon case at the forefront of her argument, but I do not consider that it assists her. Mr Williams case does not turn on a question of reasonable perception. His pension is undoubtedly less advantageous or less favourable than that of a hypothetical comparator suddenly disabled by a heart attack or stroke. But it is far more advantageous or favourable than it would be if he had not become permanently incapacitated from his job. The Shamoon case is not authority for saying that a disabled person has been subjected to unfavourable treatment within the meaning of section 15 simply because he thinks he should have been treated better. Ms Casserleys argument begins by treating unfavourable as not requiring any comparator but in reality it does depend on a comparator, namely another disabled member of the scheme with a different medical history. No authority was cited to us to support the view that a disabled person who is treated advantageously in consequence of his disability, but not as advantageously as a person with a different disability or different medical history would have been treated, has a valid claim for discrimination under section 15 subject only to the defence that the treatment was a proportionate means of achieving a legitimate aim. If such a claim were valid it would call into question the terms of pension schemes or insurance contracts which confer increased benefits in respect of disability caused by injuries sustained at work, or which make special provision for disability caused by one type of disease (for example cancer). The critical question In the second (paras 48 49) he rejected what he saw as counsels implicit comparison with the treatment of different disability: can be put in this way: whether treatment which confers advantages on a disabled person, but would have conferred greater advantages had his disability arisen more suddenly, amounts to unfavourable treatment within section 15. In agreement with the President of the Employment Appeal Tribunal I would hold that it does not. He differed from Langstaff J only in respect of the disposal of the appeal, having taken the view, shared as he thought with the EAT, that the undisputed facts of this case cannot amount to unfavourable treatment within section 15 (para 52), the issue of justification did not arise, and accordingly he saw no purpose in remitting to the tribunal. Accordingly the court substituted an order simply dismissing Mr Williams claims. The submissions in this court For Mr Williams, Ms Crasnows submissions, as I understood them, had a somewhat different emphasis from the case below. I have already noted her rejection of the comparison (drawn before the tribunal) with a person with a different disability. Although her case was developed at considerable length, both in the appellants written case and in a speaking note presented to the court, her central submission can be shortly stated. In the words of her speaking note, it was unfavourable to calculate the enhanced element of his pension using his final salary (that is, the lower part time salary) given that he had been working part time: only because of his disabilities. Had he not been disabled he would have continued to work full time. The same point was expressed slightly more fully in the written case (para 51): It is submitted that if the Court of Appeal had correctly understood the meaning of unfavourable, as advocated by the appellant, it would have been bound to find that Mr Williams was treated unfavourably, suffering detriment. The unfavourable treatment was the adoption of his part time salary as the multiplier when calculating the enhanced element of his pension, when at all times he was on a full time contract and his hours had been reduced solely as a temporary reasonable adjustment by way of a phased return. The detriment was that he was unable to achieve the full payment under that scheme. The two concepts are very similar and here one is an inevitable consequence of the other. Her supporting submissions took issue with various aspects of the reasoning of the EAT and the Court of Appeal, including the suggestion of Langstaff J that the word unfavourably must be taken to have a different meaning from the word detriment as used elsewhere in the Act. She referred to the guidance given in the Equality and Human Rights Commissions Code of Practice (2011), which she said adopts a more flexible approach. Under the heading What is unfavourable treatment?, the Code states: 5.7 For discrimination arising from disability to occur, a disabled person must have been treated unfavourably. This means that he or she must have been put at a disadvantage. Often, the disadvantage will be obvious and it will be clear that the treatment has been unfavourable; for example, a person may have been refused a job, denied a work opportunity or dismissed their employment. But sometimes unfavourable treatment may be less obvious. Even if an employer thinks that they are acting in the best interests of a disabled person, they may still treat that person unfavourably. from The reference in that passage to disadvantage took her to an earlier passage dealing with the word disadvantage as it appears elsewhere in the statute (section 19): 4.9 Disadvantage is not defined by the Act. It could include denial of an opportunity or choice, deterrence, rejection or exclusion. The courts have found that detriment, a similar concept, is something that a reasonable person would complain about so an unjustified sense of grievance would not qualify. A disadvantage does not have to be quantifiable and the worker does not have to experience actual loss (economic or otherwise). It is enough that the worker can reasonably say that they would have preferred to be treated differently. Those passages, Ms Crasnow submitted, show that words such as unfavourably, disadvantage, and detriment are similar in effect. The last sentence also supports a test which is not purely objective; regard may be had to what is reasonably seen as unfavourable by the person affected. In this connection she relied also on the UN Convention on the Rights of Persons with Disabilities, which was said to require a broad interpretation of discrimination, and in particular to support the need to have regard to the subjective experience of the person concerned, albeit tempered by a reasonableness test. For the respondents, Mr Bryant QC generally supported the reasoning of the EAT and the Court of Appeal. In particular he adopted Langstaff Js interpretation (paras 28 29) of the word unfavourably: it has the sense of placing a hurdle in front of, or creating a particular difficulty for, or disadvantaging a person The determination of that which is unfavourable involves an assessment in which a broad view is to be taken and which is to be judged by broad experience of life. This objective test, he submitted, was to be contrasted with the mixed subjective/objective test held to apply when determining whether an individual has been subjected to a detriment under section 39 of the Act, that is whether the treatment is of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? (per Lord Hope in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] ICR 337, para 35). However, as he submitted, whichever test is adopted the conclusion is the same. Mr Williams had not been treated unfavourably. He had not received a lower or lesser pension than would otherwise have been available to him if he had not been disabled. If he had not been disabled, and had been able to work full time, the consequence would not have been calculation of his pension on a more favourable basis, but loss of entitlement to any pension at all until his normal retirement date. Discussion Since I am substantially in agreement with the reasoning of the Court of Appeal, I can express my conclusions shortly, without I hope disrespect to Ms Crasnows carefully developed submissions. I agree with her that in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word unfavourably in section 15 and analogous concepts such as disadvantage or detriment found in other provisions, nor between an objective and a subjective/objective approach. While the passages in the Code of Practice to which she draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section. It is unnecessary to refer to more remote sources such as the United Nations Conventions. Nor do I find it useful to speculate about the application of the section or the Code in hypothetical cases which are not before the court. On the other hand, I do not think that the passages in the Code do anything to overcome the central objection to Mr Williams case as now formulated, which can be shortly stated. It is necessary first to identify the relevant treatment to which the section is to be applied. In this case it was the award of a pension. There was nothing intrinsically unfavourable or disadvantageous about that. By contrast in Malcolm, as Bean LJ pointed out (para 42), there was no doubt as to the nature of the disadvantage suffered by the claimant. No one would dispute that eviction is unfavourable. Ms Crasnows formulation, to my mind, depends on an artificial separation between the method of calculation and the award to which it gave rise. The only basis on which Mr Williams was entitled to any award at that time was by reason of his disabilities. As Mr Bryant says, had he been able to work full time, the consequence would have been, not an enhanced entitlement, but no immediate right to a pension at all. It is unnecessary to say whether or not the award of the pension of that amount and in those circumstances was immensely favourable (in Langstaff Js words). It is enough that it was not in any sense unfavourable, nor (applying the approach of the Code) could it reasonably have been so regarded. For these reasons I would dismiss the appeal.	Mr Williams was employed by Swansea University from 12 June 2000 until he retired for ill health reasons on 30 June 2013 at the age of 38. He suffers from Tourettes syndrome and other conditions satisfying the definition of disability under section 6 of the Equality Act 2010 (the 2010 Act). He had been an active member of the universitys pension scheme (the pension scheme) throughout his employment. He was employed by the university for 13 years. For the first 10 he worked full time and then, for the final three, he worked between 17.5 and 26 hours per week when he was fit to do so. The reduction in working hours arose from his disabilities. When he retired he was working half his full time hours (17.5 hours a week). The pension scheme provided for accrual of benefits on a final salary basis until 1 August 2009, from which time it was amended so that accrual of benefits on and after that date was on the basis of Career Average Revalued Earnings. Under the ill health early retirement provisions, Mr Williams was entitled to a lump sum and annuity, calculated on the basis of his actual salary at relevant times, whether full or part time. The amount of this part of the pension was not in dispute. He was also entitled to an enhancement, calculated on the basis of his actual salary at the date of retirement. This element was the point of dispute. Section 15(1) of the 2010 Act provides that: A person (A) discriminates against a disabled person (B) 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. Mr Williams claimed that the calculation of the enhancement constituted discrimination within this section, as it was based upon his final part time salary, rather than his full time salary. He said this was unfavourable treatment because of something arising in consequence of his disabilities, namely his inability to work full time. The Employment Tribunal agreed with Mr Williams, but this was overturned by the Employment Appeal Tribunal and the Court of Appeal. The central issue for the Supreme Court is the meaning of the expression treats unfavourably. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the lead judgment. The Supreme Court held that in most cases, including this one, little is likely to be gained by seeking to draw distinctions between the word unfavourably in section 15 of the 2010 Act and analogous concepts such as disadvantage or detriment found in other provisions of the Act, or between an objective and a subjective/objective approach [27]. Passages in the Equality and Human Rights Commissions Code of Practice (2011) provide helpful guidance as to the relatively low threshold of disadvantage sufficient to trigger the requirement to justify under section 15 of the 2010 Act, but they do not overcome the central objection to Mr Williams case [27 28]. First, it is necessary to identify the relevant treatment to which section 15 of the 2010 Act is to be applied. In this case it was the award of a pension. There is nothing intrinsically unfavourable or disadvantageous about that. The appellants argument depends on an artificial separation between the method of calculation and the award to which it gave rise. The only basis on which Mr Williams was entitled to any award at this time was by reason of his disabilities. Had he been able to work full time, the consequence would have been, not an enhanced entitlement, but no immediate right to a pension at all. In those circumstances the award was not in any sense unfavourable, nor (applying the approach of the Code) could it reasonably have been so regarded [28].
This appeal concerns an alleged infringement of Community Registered Design No 43427 0001 (the CRD), which is owned by the appellant, Magmatic Ltd. The CRD consists of six images prepared by a 3D Computer Assisted Design (CAD) program, in monochrome, with grey scale shading and distinct tonal contrasts. These are two of those images: Although it might appear from these images that the horns, and possibly the front and rear clasps, are differently shaded from the body, it is clear from the six images, viewed collectively, that they are the same light grey shade as the rest of the body, whereas the wheels and spokes, the strap on the top and the strips in the front and the rear are shaded black. Magmatics founder, Robert Law, won a prize in 1998 for a design of a ride on suitcase for children. It had four wheels and a handle, and was known as the Rodeo. He updated the design, which he then applied to register at the Office for Harmonization in the Internal Market (OHIM), who published it on 28 October 2003 as the CRD, with the express indication that the product depicted in the six images is for use as suitcases. Since May 2004, Magmatic has (initially through a licensee and since 2006 by itself) manufactured and sold ride on suitcases for children under the trade mark Trunki, whose shape is very similar indeed to that shown on the CRD. The Trunki case was initially marketed with the body and strap one colour, the horns and wheels another colour, and the strips, clasps and wheel spokes a third colour, but without ornamentation. Subsequent models had slightly different colouring and included ornamentation. Two examples of such subsequent models, which are based on images which are contained in Community Registered Designs, applied for in 2010 by Magmatic, are shown below. The images included in these later registrations included both coloured CADs with markings and drawings with markings. Two of those registered designs included CADs shown below: The first example has a red body, with black horns, nose, spots, bottom front, strip, handles, and wheels, and a white centre to the nose and white spokes. The second example is coloured orange, with horns, front feet, nose and wheels which are white, but with black markings, nose centre, spokes, handles and strip. In February 2013, Magmatic issued proceedings seeking damages and an injunction against the respondent, PMS International Group plc, alleging that PMS was importing into, and selling in, the United Kingdom and Germany a Kiddee Case which infringed the CRD. These are two examples of a Kiddee Case: It will be noted that in each example, the Kiddee Case is a suitcase with a number of features similar to the CRD; for instance, it is designed to look like an animal, with a wheel at each of its four bottom corners, and has a clasp at the front, and a saddle shaped top so that it can be ridden on. On the other hand, it has differences from the CRD, such as being brightly coloured (in the first example it has two main colours, namely, red and black, and in the second example it is orange), and with eyes in the front, and (in the first example) a group of large spots or circles towards the rear and (in the second example) stripes and whiskers, and having an unsculptured ridge and covered wheels. There are some aspects of the Kiddee Case which can be said to cut both ways in terms of similarity with the CRD: for instance it has two protuberances at the front, but they are antennae or ears rather than horns, and, while it has a ridge along the front, centre and rear, the ridge has a different shape from that of the CRD. Community Design Community Design Right is governed by Council Regulation (EC) No 6/2002 (the Principal Regulation). Recital (14) of the Regulation mentions that a design has individual character if the overall impression produced on an informed user viewing the design clearly differs from that produced on him by the existing design corpus, taking into consideration the nature of the product to which the design is applied . Recital (24) states that it is a fundamental objective that the procedure for registering a design should present the minimum cost and difficulty to applicants. Article 4(1) of the Principal Regulation explains that a design shall be protected to the extent that it is new and has individual character. The word design is defined in article 3(a) as the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation. Article 6 explains that a design has individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public. Article 10(1) states that [t]he scope of the protection shall include any design which does not produce on the informed user a different overall impression. Article 10(2) states that, when assessing the scope of protection, the degree of freedom of the designer in developing his design is to be taken into consideration. Article 36(1) of the Principal Regulation sets out the requirements of a valid application for registration of a design, which include a representation of the design suitable for reproduction. Article 36(2) also requires an application to contain an indication of the products in which the design is intended to be incorporated or to which it is intended to be applied. Article 36(3) states that an application may contain various things, including (d) the classification of the products in which the design is intended to be incorporated or to which it is intended to be applied. Article 36(6) states that [t]he information contained in the elements mentioned in paragraph 2 and in paragraph 3(a) and (d) shall not affect the scope of protection of the design. Commission Regulation (EC) No 2245/2002 (the Implementing Regulation) implements the Principal Regulation. Article 4(1) of the Implementing Regulation states that the representation of the design shall consist in a graphic or photographic reproduction of the design, either in black and white or in colour. Up to seven different views of the design are permitted. Reflecting article 36 of the Principal Regulation, article 4(1)(c) of the Implementing Regulation states that no explanatory text, wording or symbols, other than the indication top may be displayed. And article 4(1)(e) provides that the images accompanying an application to register a design shall be of a quality permitting all the details of the matter for which protection is sought to be clearly distinguished for entry in the Register of Community Designs. As Jacob LJ said in Procter & Gamble Co v Reckitt Benckiser (UK) Ltd [2008] FSR 8, para 3: The most important things in a case about registered designs are: (1) (2) (3) the registered design; the accused object; and the prior article And the most important thing about each of these is what they look like. And at para 27, he said that [t]he point of protecting a design is to protect that design as a design. So what matters is the overall impression created by it: will the user buy it, consider it or appreciate it for its individual design? The proceedings: first instance Magmatic alleged that the Kiddee Case infringed the CRD on the ground that the Kiddee Case did not produce on the informed user a different overall impression from the CRD within article 10(1) of the Principal Regulation. Magmatic also contended that the Kiddee Case infringed certain other IP rights of Magmatic, including United Kingdom unregistered design rights and copyright. PMSs defence included a classic squeeze, namely the contention that, if, which it denied, the CRD covered the Kiddee Case then it also must extend to the Rodeo, and therefore it was invalid as it did not have individual character because it did not produce a different overall impression from the existing design corpus within article 4(1) of the Principal Regulation. The matter came on for hearing before Arnold J, and after a trial which lasted four days, he gave a reserved judgment, in which he found that the CRD was not invalid over the Rodeo, but that the Kiddee Case infringed the CRD and the UK unregistered design rights, but not the copyright [2013] EWHC 1925 (Pat). After setting out the facts, Arnold J made a number of initial findings before turning to the crucial issue of whether the Kiddee Case produce[s] on the informed user a different overall impression from the CRD. At para 52, he rightly said that the most important thing about each of (i) the registered design [the CRD], (ii) the accused design [the Kiddee Case] and (iii) the prior art [the Rodeo] is what they look like. At para 55, he identified the informed user primarily as the parent, carer or relative of a three to six year old child. And at para 56, Arnold J mentioned that the only item of prior art relied on by PMS was the Rodeo which had been publicly disclosed in 1998. However, that disclosure was, he said, on too limited a basis to be part of the design corpus, which, he held in para 57, was limited to a range of adult clamshell suitcases. He went on at para 61 to say that, as the CRD represents a substantial departure from the design corpus and that the designer of the CRD had considerable design freedom, it follows that, subject to the impact of the Rodeo, the CRD is entitled to a broad scope of protection. Having compared the CRD with the Rodeo, Arnold J said that PMS was right not to challenge the validity of the CRD except as part of its squeeze argument (para 64). In paras 66 69 of his judgment, Arnold J addressed the question whether, when comparing the Kiddee Case with the CRD, the graphical designs on the surface of the Kiddee Case are to be ignored and concluded that they were, because, as he put it in para 69, the CRD is evidently for the shape of the suitcase, and the proper comparison is with the shape of the Kiddee Case. In paras 70 75, he then identified and discussed the detailed similarities and differences between the CRD and the Kiddee Case. In particular, he identified 11 items of similarity including [t]wo horns/protrusions located at the top of the front of the case, and six features of the Kiddee Case which were absent from the CRD, although he said that two of the six, namely [p]rominent animal markings and [e]yes at front were to be ignored, as the registration in this case was for a shape, as he had explained in para 69. At para 76, Arnold J said that the informed user would notice both similarities and differences, but that what mattered was how those similarities and differences would affect the informed users overall impression, and identified the differences as being (i) the more rounded contours of the Kiddee Case around the seating area , (ii) the covered wheels of the Kiddee Case, (iii) the more flared areas around the clasps and (iv) the absence of [a] lip [at the bottom of front and rear] in the Kiddee Case. At para 77, having said that, were it not for the Rodeo, he would have had little hesitation in holding that the Kiddee Case produced the same overall impression as the CRD, Arnold J described himself as rather more doubtful, given that the scope of protection to be afforded to the CRD was reduced by the prior art of the Rodeo. Nonetheless, he concluded that: Despite the differences between the Kiddee Case and the CRD, the overall impression the Kiddee Case creates shares the slimmer, sculpted, sophisticated, modern appearance, prominent ridge and horn like handles and clasps looking like the nose and tail of an animal which are present in the CRD, but which are absent from the Rodeo. Moreover, neither the Kiddee Case nor the CRD have anything like the handle which is a prominent feature of the Rodeo. The proceedings: the Court of Appeal PMS appealed to the Court of Appeal solely on the issue of whether the Kiddee Case infringed the CRD. For reasons given by Kitchin LJ, with which Moses and Black LJJ agreed, the appeal was allowed [2014] RPC 24. Kitchin LJ considered that Arnold J had erred in two respects, and he gave his reasons in paras 47 48. Because Kitchin LJs reasoning in those two paragraphs is particularly reliant on what he had said in paras 41 42, it is appropriate to quote from all four paragraphs. In para 41, Kitchin LJ began by saying that he thought that the judge had made two errors; he then explained that the CRD images were not simple line drawings, but three dimensional images which show the effect of light upon [the suitcases] surfaces. He continued: 41. Further and importantly, the suitcase looks like a horned animal with a nose and a tail, and it does so both because of its shape and because its flanks and front are not adorned with any other imagery which counteracts or interferes with the impression the shape creates. As Mr Vanhegan submits, the CRD is, in that sense, relatively uncluttered and it conveys a distinct visual message. Here then the first of the judges errors can be seen: he failed to appreciate that this is a design for a suitcase which, considered as a whole, looks like a horned animal. In para 42, Kitchin LJ accepted that, as the CRD images were shown in monochrome, the design claimed is not limited to particular colours, so that PMS cannot point to the colour of the Kiddee Case as being a point of distinction. He continued: 42. That is not the end of the analysis, however, because each of the representations shows a distinct contrast in colour between the wheels and the strap, on the one hand, and the rest of the suitcase, on the other. I have given anxious consideration to whether this is simply an artefact of the computer generation process or a visual cue to indicate that the wheels and the strap are each separate components. However, I do not find either of these alternative explanations convincing. The clasps are also separately functioning components and they are not shown in a contrasting colour and it seems to me that the wheels could perfectly well have been shown and depicted as separate components in the same colour as the rest of the body. Moreover, depicted as they are and standing as they do at the four corners of the animal, the wheels are, to my eye, a rather striking aspect of the design as a whole. Kitchin LJ next discussed Arnold Js analysis, and then at para 47, he returned to his first criticism, which involved a fuller discussion of what he had said in para 41, namely: 47. First and most importantly, it seems to me the judge failed to carry out a global comparison having regard to the nature of the CRD and the fact that it is clearly intended to create the impression of a horned animal. This is plainly one of its essential features. Necessarily, therefore, a global assessment of the CRD and the accused designs requires a consideration of the visual impression they each create and in so far as that impression is affected by the features appearing on their front and sides, it seems to me those other features must be taken into account. Thus taking the insect version of the Kiddee Case, I believe that the impression its shape creates is clearly influenced by the two tone colouring of the body and the spots on its flanks. As a result it looks like a ladybird and the handles on its forehead look like antennae. Overall the shape conveys a completely different impression from that of the CRD. It was, in my judgment, wrong for the judge to eliminate the decoration on the accused design from his consideration entirely because it significantly affects how the shape itself strikes the eye, and the overall impression it gives. At least in the case of this particular registered design, the global comparison necessarily requires account to be taken of the context in which the accused shape appears. In para 48 of his judgment, Kitchin LJ identified the second error, as being the judges failure to take account of the colour contrast between the wheels and the body of the CRD, which Kitchin LJ had explained in para 42. He described this contrast as a fairly striking feature of the CRD which was simply not present in the accused designs, and which was another matter which the judge ought to have taken into account in carrying out the global comparison. Although Kitchin LJ said that he had identified two errors, it is convenient, in order to understand the arguments on this appeal, to treat him as raising three criticisms. The first, discussed in para 41 and (more fully) in para 47, is that Arnold J failed to give proper weight to the overall impression of the CRD as an animal with horns, which was significantly different from the impression made by the Kiddee Case, which, in the examples shown in para 4 above, were either an insect with antennae or an animal with ears. The second criticism, also considered in para 41 and, again more fully, in para 47, is that the judge failed to take into account the effect of the lack of ornamentation on the surface of the CRD. The third criticism, in para 42 and, more summarily in para 48, is that the judge ignored the colour contrast in the CRD between the body and the wheels. Given his conclusion that the judge had gone wrong in the respects he had identified in his paras 47 and 48, Kitchin LJ explained in para 49 that the Court of Appeal was free to form its own view on the central issue of whether the Kiddee Case infringed the CRD. He then turned to address that issue, and concluded, at para 53, that the overall impression created by the two designs is very different, and therefore decided that the Kiddee Case did not infringe the CRD. Accordingly, PMSs appeal succeeded. Magmatic now appeals to this court. The appellate courts function Where it falls to a judge to determine whether an item infringes a Community Registered Design, the decision to be made is whether the item produce[s] on the informed user a different overall impression from the design. That is an issue which involves a type of judgmental conclusion that often has to be reached in intellectual property cases [in respect of] which appellate courts should be slow to interfere with the judgment of the trial judge Lucasfilm Ltd v Ainsworth [2012] 1 AC 208, para 45 (Lord Walker and Lord Collins). To the same effect, Lord Hoffmann said in Designers Guild Ltd v Russell Williams (Textiles) Ltd (trading as Washington DC) [2000] 1 WLR 2416, 2423: because the decision involves the application of a not altogether precise legal standard to a combination of features of varying importance, an appellate court should not reverse a judges decision unless he has erred in principle. Kitchin LJ was therefore right to imply in para 49 of his judgment that it was only because he had concluded that Arnold J had gone materially wrong in his approach to the issue whether the Kiddee Case infringed the CRD that the Court of Appeal could reconsider that issue. Once they had reached the conclusion that there had been material errors, it was, at least in principle, open to the Court of Appeal to consider and determine the issue for itself. In this case, correctly in my view, Magmatic does not suggest that, if, contrary to its submission, the judge erred as Kitchin LJ held, the Court of Appeal was not entitled to consider and determine the issue for itself. The Court of Appeal found that there was no infringement, and this court could only interfere with that conclusion, if we considered that Kitchin LJ had gone materially wrong in his approach see para 24 above. In these circumstances, the arguments of substance before us have been limited (and rightly so) to the questions whether the Court of Appeals criticisms of Arnold Js approach, as set out in paras 41 42 and 47 48 of Kitchin LJs judgment, were correct. Subject to one point, if we consider that those criticisms were justified, then Magmatics appeal should be dismissed and the Court of Appeals order upheld; and if we consider that they were unjustified, Magmatics appeal must be allowed and Arnold Js order restored. The possibility of a reference However, although its primary argument is that its appeal should be allowed, Magmatic alternatively contends that the issues raised by what I have identified in para 21 above as the second and third criticisms, involve a point of EU law which is not acte clair or acte clair, and which therefore should be referred to the Court of Justice of the European Union, the CJEU. The Comptroller General of Patents, Designs and Trade Marks, in his capacity of Registrar of Designs, while very properly taking no other position in relation to the issues on this appeal, supports the argument that there are questions which ought to be referred to the CJEU. There is no doubt that, if we are of the view that this appeal could only be resolved by determining a point of EU law which has not already been determined by the CJEU (ie is not acte clair) or whose determination nonetheless leaves room for reasonable doubt (ie is not acte clair), then, as the final court of appeal in the United Kingdom, we would be obliged to refer it to the CJEU pursuant to article 267 of the Treaty for the Functioning of the European Union see CILFIT Srl v Ministero della Sanit (Case 283/81) [1983] 1 CMLR 472. It is rightly common ground that no question of acte clair arises, so the issue in this connection is whether this appeal raises an issue of EU law which is not acte clair and ought to be referred. I turn then to the three criticisms made by Kitchin LJ of Arnold Js judgment. The first concerns the impression created by the shape of the CRD as against the Kiddee Case. The second criticism concerns the effect on that impression of the respective presence and absence of decoration on the body of the Kiddee Case and of the CRD. The third concerns the effect of the allegedly contrasting colours of the CRD. I shall discuss these criticisms in turn, but, before doing so, it is right to consider the proper approach to the images of a community registered design as it has a significant bearing on all three criticisms. The images incorporated in a Community Registered Design Article 3(a) of the Principal Regulation identifies what is meant by design, and, unsurprisingly, it refers to the appearance, which is expressed to include a number of different factors, all, some or one of which can be included in a particular registered design. It is, of course, up to an applicant as to what features he includes in his design application. He can make an application based on all or any of the lines, contours, colours, shape, texture materials and/or ornamentation of the product in question. Further, he can make a large number of different applications, particularly as the Principal Regulation itself provides that applications for registration have to be cheap and simple to make. As Lewison J put it in Procter & Gamble Co v Reckitt Benckiser (UK) Ltd [2007] FSR 13, para 48, [t]he registration holder is entitled to choose the level of generality at which his design is to be considered. If he chooses too general a level, his design may be invalidated by prior article If he chooses too specific a level he may not be protected against similar designs. So, when it comes to deciding the extent of protection afforded by a particular Community Registered Design, the question must ultimately depend on the proper interpretation of the registration in issue, and in particular of the images included in that registration. Accordingly, it is right to bear in mind that an applicant for a design right is entitled, within very broad limits, to submit any images which he chooses. Further, in the light of article 36(6), an applicant should appreciate that it will almost always be those images which exclusively identify the nature and extent of the monopoly which he is claiming. As Dr Martin Schltelburg, the co ordinator of OHIMs Designs Department, has written, the selection of the means for representing a design is equivalent to the drafting of the claims in a patent: including features means claiming them The Community Design: First Experience with Registrations [2003] EIPR 383, 385. And, as Dr Schltelburg went on to explain, an applicant is free to indicate which, if any, aspects of the images of a Community Registered Design are disclaimed: Where an applicant wishes to exclude features which are shown in the representation for explanatory purposes only, but do not form part of the claimed design, he may disclaim those auxiliary features by depicting them in broken lines (for drawings) or by means of colouring them (for black and white drawings or photos) or encircling them (for any drawing or photo). This is entirely consistent with what is stated in paragraph 4.3 of OHIMs Manual Concerning Proceedings Before the Office for Harmonization in the Internal Market (Trade Marks and Designs), Registered Community Designs, Examination of Applications (2nd ed, in force at the relevant time for present purposes). Over and above these considerations, it is also worth remembering that an applicant is entitled to make any number of applications. More broadly, it is for an applicant to make clear what is included and what is excluded in a registered design, and he has wide freedom as to the means he uses. It is not the task of the court to advise the applicant how it is to be done. That it may be said is a matter of practice rather than law, and if further guidance is needed it can be sought from other sources, such as OHIM. So far as the presence or absence of colouring in any image is concerned, in para 32 of his judgment on this case Kitchin LJ explained that: [a]n application for a Community Registered Design may be filed in black and white (monochrome) or in colour. If colour forms no part of the design then it is conventional to file the design in black and white. Similarly, if a particular colour does form part of an aspect of a design then it may be filed wholly or partly in that colour. So also, if monochrome colours are a feature of the design, this can be shown by placing the design against a background of a uniform but different colour. I now turn to address the three criticisms which the Court of Appeal made of That this has long been well established is supported by Dr Schltelburgs article, in which he wrote that where a design is shown in colours, the colours are claimed, while a black and white drawing or photo covers all colours [2003] EIPR 383, 385. Accordingly, as Kitchin LJ observed at para 42 of his judgment, the various representations [in the CRD] are shown in monochrome, and so it must be concluded that this design is not limited to particular colours, and therefore PMS cannot point to the colour of the Kiddee Case as being a point of distinction. There is, rightly in my judgment, no challenge to that conclusion, which is consistent with what was said by the Fourth Chamber of the General Court in Sphere Time v OHIM (Case T 68/10) [2011] ECDR 20, para 82. However, there is disagreement between Kitchin LJ and Arnold J as to the effect of the monochromatic nature and the shading on the CAD images included in the CRD in this case. In that connection, there are two disagreements. The first concerns the absence of ornamentation (which gives rise to Kitchin LJs second criticism of Arnold Js judgment). The second disagreement is about the effect of the two tone colouring on the CRD images mainly grey but some black (which gives rise to Kitchin LJs third criticism of Arnold Js judgment). the first instance judgment. The Court of Appeals first criticism: the horned animal appearance So far as the first criticism mentioned in para 21 above is concerned, Kitchin LJs statements in paras 41 and 47 of his judgment that the overall impression given by the CRD is that of a horned animal is clearly right. Further, it is not a factor to which Arnold J specifically referred when carrying out the exercise of comparing the CRD and the Kiddee Case. Having conducted a detailed analysis of the similarities and differences between the CRD and the Kiddee Case in paras 70 75 of his judgment, he rightly focussed on the overall impression in para 76. In that paragraph, he identified specific items of difference, but, crucially, he did not mention the horns on the images of the CRD, let alone the horned animal appearance of those images. In addition, while he rightly referred to the overall impression in para 77, Arnold J did not mention in that paragraph the fact that the CRD images present as a horned animal. It is true that he observed that the Kiddee Case shares the horn like handles of the CRD, which may at first sight appear to undermine the criticism. However, it appears to me that this observation actually supports the view that the judge did not consider the horned animal impression of the CRD as being particularly distinctive for present purposes, because he wrongly seems to have treated the antennae and ears of the Kiddee Case as horn like. It is also true that, as Magmatic argues, Arnold J observed, at para 64, that the horns form an important part of the CRDs appearance and that the clasps look much more like the nose and tail of an animal, but these were comments made when comparing the CRD with the Rodeo not with the Kiddee Case, and, in any event, they were directed to detail, not to overall impression. It is unrealistic for an appellate court to expect a trial judge in every case to refer to all the points which influenced his decision. As Lord Hoffmann said in Piglowska v Piglowski [1999] 1 WLR 1360, 1372, reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. He also rightly said that an appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself, and that applies equally to an assessment such as that required by article 10(1) of the Principal Regulation. However, when a judge has given a full and careful judgment, conscientiously identifying and specifying a significant number of points which weigh with him, an appellate court can properly conclude that his failure to mention a significant point means that he has overlooked it. That conclusion is particularly valid here, given that the point in question is more significant than many of the points which the judge mentioned, because it goes to the overall impression of the image rather than detailed features, and it is with the overall impression with which one is ultimately concerned see article 10 of the Principal Regulation. And, while it is important that an appellate court should not be over critical of any judgment, it is equally important to bear in mind that one of the main purposes of requiring a judge to give reasoned judgments is to ensure that the parties and an appellate court can see why he reached the conclusion which he did, and can assess whether he made any errors of law or fact. Accordingly, while I am in full agreement with Lord Hoffmanns observations, I consider that the Court of Appeal was justified in its first criticism of the trial judge. The Court of Appeals second criticism: decoration of the Kiddee Case As he explained in paras 41 and 47 of his judgment, Kitchin LJ disagreed with Arnold J when it came to the question of the decoration on the Kiddee Case. Kitchin LJ was of the view that the fact that the CRD image was not adorned with any imagery reinforced the impression it gave of a horned animal with a nose and a tail. By contrast, he said, the impression which the shape in the first example of the Kiddee Case in para 4 above creates is clearly influenced by the two tone colouring of the body and the spots on its flanks, so that it looks like a ladybird and the handles on its forehead look like antennae. This, he said, effectively reinforced the conclusion that the Kiddee Case produced on the informed user a completely different overall impression from the horned animal embodied in the CRD design. The same conclusion, he said, applied to the second example of the Kiddee Case, as [t]he stripes on its flanks and the whiskers on either side of its nose immediately convey to the informed user that this is a tiger with ears. It is plainly not a horned animal. In my view, the point which Kitchin LJ was making in this second criticism was that the absence of decoration on the CRD reinforced the horned animal impression made by the CRD. In other words, he considered that it supported what I have called his first criticism of Arnold Js judgment. In my view, there is limited force in this point, in that, unless the decoration had been positively distracting in nature, such as flashing lights, it would have been unlikely to have much effect in diluting the horned animal impression made by the CRD. However, I accept that the point has some force, in the sense that, unless it included items such as eyes and a mouth, any decoration could well detract from the animal impression, and, even if it consisted of such items, it could be said to distract the observers attention from the horns. Magmatic, however, argued that this second criticism raised a significant question of principle, namely whether the absence of ornamentation can, as a matter of law, be a feature of a registered design, and, if so, whether it was a feature of the CRD in this case. Magmatic further argued, with the support of the Comptroller General, that this question is one which should be referred to the CJEU as it is neither acte clair nor acte clair. I do not agree with either argument. As I have sought to explain, when making his second criticism, Kitchin LJ was not raising a free standing contention that a feature of the CRD was that it contained no decoration. In the first place, that is not what Kitchin LJ said. Secondly, if it had been what he had intended, it would not have been expressed as part of the first criticism. Both points appear clear from what he said in para 47 of his judgment, namely that it would be wrong to eliminate the decoration on the accused design from consideration entirely because it significantly affects how the shape itself strikes the eye, and the overall impression it gives. At least in the case of this particular registered design, the global comparison necessarily requires account to be taken of the context in which the accused shape appears. In those circumstances, anything I say as to whether a Community Design can include an absence of decoration, would be obiter. Nonetheless, it is worth expressing some views on the topic, as it was fully canvassed. First, despite Magmatics argument to the contrary, it seems plain to me that absence of decoration can, as a matter of principle, be a feature of a registered design. Simplicity or minimalism can notoriously be an aspect of a design, and it would be very curious if a design right registration system did not cater for it. Secondly, whether absence of ornamentation is a feature of a particular design right must turn on the proper interpretation of the images on the registered design. Thirdly, I accept that it may sometimes be hard to decide if absence of ornamentation is a feature of a particular registered design, because article 36(3) of the Principal Regulation and article 4(1) of the Implementing Regulation preclude any verbal descriptions (see paras 8 and 9 above). Fourthly, if absence of ornamentation is a feature of a registered design, that does not mean that because an item has ornamentation, it cannot, for that reason alone, infringe the registered design in question: it merely means that the fact that an allegedly infringing item has ornamentation is a factor which can be taken into account when deciding whether or not it does infringe that design. Two domestic cases are worth mentioning in this connection. In Procter & Gamble, the registered design was illustrated by line drawings, which were clearly concerned purely with external shape. Both Lewison J ([2007] FSR 13) and the Court of Appeal held, as Jacob LJ put it at [2008] FSR 8, para 40, that [t]he registration is evidently for a shape. The proper comparison is with the shape of the alleged infringement. Graphics on that (or on the physical embodiment of the design) are irrelevant. Many line drawings simply show a physical shape, as in Procter & Gamble, but while they can show colouring and decoration, they are generally less appropriate for that purpose than photographs or CAD images, which can easily show subtle shadings and contours, as well as decoration, such as colours and ornamentation. Accordingly, while each Community Registered Design image must be interpreted in its own context, a line drawing is much more likely to be interpreted as not excluding ornamentation than a CAD image. That is consistent with what Dr Schltelburg wrote in the article from which I have already quoted, namely that [b]asically, the broadest claims can be achieved by drawings showing only the contours of the design. In contrast, a photo specifies not only the shape, but the surface structure and the material as well, thereby narrowing the scope of protection accordingly [2003] EIPR 383, 385. The notion that absence of ornamentation can be a feature of a registered design, even where the images consist of line drawings, was accepted by His Honour Judge Birss QC and the Court of Appeal (albeit that it was not in dispute between the parties in the case) in Samsung Electronics (UK) Ltd v Apple Inc [2013] ECDR 1 and [2013] FSR 9. In that case, the line drawings included one or two small features (an opening catch and a rim around the edge), and the natural implication was that no other ornamentation was intended, a view supported by the fact that the plainness and transparency of the surface was subtly indicated by a few pairs of short lines suggesting the incidence of light on that surface. As Jacob LJ put it at para 18 in that case, If an important feature of a design is no ornamentation, as Apple contended and was undisputed, the judge was right to say that a departure from no ornamentation would be taken into account by the informed user. I note that the same view was taken of the same Community Registered Design by the Dsseldorf Court of Appeal (I 20W, 141/11, 24 July 2012, pp 2, 22, 26 without a pattern and without any patterning), and the Hague Court of Appeal (Case number 200.094.132/01, Apple Inc v Samsung Electronics Co Ltd, 24 January 2012, paras 5.1B and 5.3B1 and 6.4 without any embellishment and without any ornamentation). Further, the Sixth Chamber of the General Court of the CJEU also appears to have taken the same view in the context of a different design in H & M Hennes & Mauritz BV & Co KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Cases T 525/13 and T 526/13), 10 September 2015, GC, para 37, when contrasting one designs formal simplicity with anothers surface which is adorned with ornamental motifs. Thus, in summary, while the observations in paras 44 48 above are obiter, I consider that the Court of Appeals second criticism of the first instance judgment was correct, although it amounted to a relatively minor point which simply reinforced the first criticism. It is right, however, to address the argument whether absence of ornamentation was a feature of the CRD in the present case. There are powerful practical arguments against such a conclusion, namely the absence of any apparent reason for such a limitation and the inherent unlikelihood of the design of a childs ride on suitcase positively requiring no ornamentation. On the other hand, there is the elegant uncluttered appearance of the CRD with the play of light on the products surface as described by Kitchin LJ, the use of a CAD rather than a line drawing, the existence of some specific limited colour differentiation (the strap, strips, wheels and spokes), and (in so far as admissible) the initial unornamented product and the contrast with Magmatics subsequent registered designs (see para 3 above). Given that the Court of Appeal did not (despite Magmatics suggestion to the contrary) resolve this issue in the present case and it is unnecessary for us to do so in order to resolve this appeal, I would prefer to leave it open. It is not as if a decision whether the absence of ornamentation in this particular CRD would be of much assistance in other cases; it is, I think, enough that we have decided (albeit on a strictly obiter basis) the point of principle that absence of ornamentation can be a feature of a Community Registered Design. The Court of Appeals third criticism: the two tone colouring of the CRD Kitchin LJs third criticism of Arnold Js judgment was that he failed to take into account the fact that the CRD image, as exemplified in para 1 above, was in two colours, one, shown grey, for the greater part of the body (including the horns), and the other, shown black, for the wheels and spokes, the strap and the strip. As mentioned in para 14 above, Arnold J described the CRD as constituting a claim evidently for the shape of the suitcase and that decorations on the Kiddee Case were therefore to be ignored. On the other hand, Kitchin LJs view was that the colouring contrasts on the CRD and the allegedly infringing articles represented a potentially significant difference, as the wheels and handles (ie horns) on the CRD rather stood out as features, whereas on the Kiddee Case the wheels were very largely covered, and the handles (at least on the first of the two examples in para 4 above) had the same colour as the body. If, as in the case of the CRD, an applicant for a Community Registered Design elects to submit CADs of an item, whose main body appears as a uniform grey, but which has a black strip, a black strap and black wheels, the natural inference is that the components shown in black are intended to be in a contrasting colour to that of the main body. That conclusion is reinforced by the short passages from Dr Schltelburgs article cited in paras 31 and 46 above. It is also supported, as Kitchin LJ pointed out, by the fact that other features such as the clasps or the horns are not shown in a contrasting colour. It was argued by Magmatic that the wheels were shown black because they had a specific function, but I find that unconvincing: there is no logical connection between the colour and the function, and it does not explain the black strip. Accordingly, I consider that Kitchin LJ was right in concluding that the CRD claimed not merely a specific shape, but a shape in two contrasting colours one represented as grey and the other as black on the images, and that Arnold J was correspondingly wrong in holding that the CRD was a claim simply for a shape. Once one concludes that a registered design claims not just a three dimensional shape, but a three dimensional shape in two contrasting colours, one colour for the body and another colour (or possibly other colours) for specified components, then it seems to me that it must follow that, when one compares the allegedly infringing article with that design on a like for like basis, one must take into account the colouring on that article. If the predominant colour of the first example of the Kiddee Case shown in para 4 above was the front part and was coloured red, then one would presumably compare it with the CRD on the basis that the CRD was principally coloured red, but that the wheels and spokes, strap and strips of the CRD were in a contrasting colour, and the Kiddee Case was differently coloured. I therefore consider that Kitchin LJ was right in his third criticism of the judge. I should perhaps add that counsel for Magmatic pointed out that Arnold J rightly took into account that the wheels on the Kiddee Case were substantially covered by wheel arches whereas the wheels on the CRD were not. That is plainly correct, but Kitchin LJs criticism was that the judge nowhere referred to the fact that the wheels of the CRD were shown having a different colour from the rest of the image (other than the strap and the strip). Conclusions The effect of this analysis is that the Court of Appeal was right to hold that the design claimed in this case was for a wheeled suitcase in the shape of a horned animal, but that it was not a claim for the shape alone, but for one with a strap, strips and wheels and spokes in a colour (or possibly colours) which contrasted with that of the remainder of the product. Given that the Court of Appeal was right to hold that Arnold J misdirected himself in the respects discussed above, I consider that they were, to put it at its lowest, entitled to hold that the judge materially misdirected himself, and that the Court of Appeal should reconsider the question of infringement for itself. For the reasons given in para 25 above, because the Court of Appeal addressed the question of infringement on the correct basis in law, this court should be very slow indeed to interfere with their conclusion that the Kiddee Case did not infringe the CRD. I see no grounds for questioning Kitchin LJs conclusion, even if I considered that another judge (or even I) might have reached a different conclusion. I should perhaps add that, while it may be little comfort to Magmatic, I think I would have reached the same conclusion. It is a conclusion I would have reached with some regret, as the conception of the Trunki, a ride on wheeled case which looks like an animal, seems to have been both original and clever; as Arnold J said at para 16 of his judgment, [t]here is no dispute that the Trunki was an innovative design and it has won numerous awards and has been a significant commercial success. Furthermore, it appears clear that Mr Beverley of PMS conceived the idea of manufacturing a Kiddee Case as a result of seeing a Trunki, and discovering that a discount model was not available. Unfortunately for Magmatic, however, this appeal is not concerned with an idea or an invention, but with a design. That leaves the question of a reference to the CJEU, discussed in paras 27 28 above. Even if one accepts that it is arguable whether the criticisms made by the Court of Appeal were correct, the mere fact that an issue involving Community Registered Design is not beyond argument does not mean that it has to be referred pursuant to article 267. Such a conclusion is mandated only where the issue raises a point of EU law. Despite the fact that the Comptroller General supports the contention that there should be a reference, I do not consider that this appeal raises any issue which should be referred to the CJEU. All the criticisms made by the Court of Appeal raise the question of how to interpret particular images on a particular Community Registered Design. I do not consider that these criticisms raise a point of EU law, or indeed a point which is suitable to be referred to the CJEU. If we were to refer such an issue to the CJEU, it appears to me that they would say that we should interpret the images on a Community Registered Design by reference to how it would appear to a reader in the light of the terms of the Principal Regulation, the Implementation Regulation and the practice of OHIM. It is appropriate in this context to refer back to Magmatics contention that absence of ornamentation cannot be a feature of a Community Registered Design. I accept that that contention raises a point of EU law. However, I would not refer the point for two reasons. First, as explained in para 43 above, it does not arise on this appeal; secondly, as explained in paras 44 48 above, while the Comptroller suggests that the contention may be right, I cannot regard it as arguable. Minimalism can self evidently be an important aspect of a design just as intensive decoration can be. It would be extraordinary if absence of ornamentation could not be a feature of a design, and, unsurprisingly, no authority has been cited to support such a proposition. On the contrary. For these reasons, I would not make a reference to the CJEU and would dismiss Magmatics appeal.	The founder of Magmatic Limited (Magmatic), Robert Law, won a prize in 1998 for a design of a ride on suitcase for children. Mr Law subsequently updated the design and applied to register it at the Office for Harmonization in the Internal Market, who published it on 28 October 2003 as Community Registered Design No 43427 0001 (the CRD). The CRD consists of six images prepared by a 3D Computer Assisted Design (CAD). Since May 2004, Magmatic has manufactured and sold ride on suitcases for children under the trade mark Trunki whose shape is very similar to the design shown on the CRD. In February 2013, Magmatic issued proceedings seeking damages and an injunction against PMS International Limited (PMS), alleging that PMS were importing into, and selling in, the United Kingdom and Germany ride on suitcases for children under the name Kiddee Case which infringed the CRD. At first instance, the judge, Arnold J, found, amongst other matters, that the Kiddee Case infringed the CRD. The Court of Appeal allowed PMS appeal. Magmatic now appeal to the Supreme Court. The Supreme Court unanimously dismisses Magmatics appeal. Lord Neuberger gives the only judgment, with which the other Justices agree. Community Design Right is governed by Council Regulation (EC) No 6/2002 (the Principal Regulation), which provides that a design shall be protected to the extent that it is new and has individual character [7]. What matters is the overall impression created by it, and that potential customers will appreciate it on the basis of its distinctiveness [6, 10]. In considering an issue of this nature, an appellate court should not reverse a judges decision unless he has erred in principle [24]. The Court of Appeal decided that issue for itself and came to a different conclusion from the judge on the basis of three criticisms of the judges approach [16 22]. Therefore the essential question in this appeal is whether those criticisms were justified [26]. The first criticism was that the judge failed to give proper weight to the overall impression of the CRD as an animal with horns, which was significantly different from the impression made by the Kiddee Case, which were either an insect with antennae or an animal with ears [21]. The overall impression given by the CRD is indeed that of a horned animal; and the judge did not specifically refer to this when comparing the CRD with the Kiddee Case [37]. A trial judge cannot be expected in every case to refer to all the points which influenced his decision, but when a judge has given a full and careful judgment, conscientiously identifying a significant number of points which weigh with him, an appellate court can properly conclude that his failure to mention an important point means that he has overlooked it. This was the case here [39]. The second criticism was that the judge failed to take into account the effect of the lack of ornamentation to the surface of the CRD [21], i.e. that the absence of decoration reinforced the horned animal impression [40]. This has limited force; unless it simply consisted of items such as eyes and a mouth, any decoration could well detract from the animal impression and even such items could be said to distract attention from the horns [41]. The Court of Appeals second criticism was correct, although it is only a relatively minor point which mildly reinforces the first criticism [49]. The third criticism was that the judge ignored the colour contrast in the CRD between the body of the suitcase and its wheels [21]. He described the CRD as constituting a claim evidently for the shape of the suitcase and decorations on the Kiddee Case were therefore to be ignored [51]. The CRD consisted of CADs of an item whose main body appears as a uniform grey but which had black strips, a black strap and black wheels. The natural inference to be drawn is that the components shown in black are intended to be in a contrasting colour to that of the main body. Accordingly, the Court of Appeal was correct: the CRD claimed not merely a shape, but a shape in two contrasting colours [53] and the judge was wrong in holding that the CRD was simply a claim for shape [53]. Accordingly, the Court of Appeal were right to hold that the judge materially misdirected himself and could properly consider the question of infringement for themselves. As they approached the question of infringement on the correct basis in law, this Court should be very slow indeed to interfere with their conclusion that the Kiddee Case did not infringe the CRD [56]. The Court has sympathy for Magmatic and Mr Law, as the idea of the Trunki case was a clever one, but Design Right is intended to protect designs not ideas [57]. Magmatic contended that the second criticism raised the question whether the absence of ornamentation can as a matter of law be considered a feature of design and if so whether it was a feature of the CRD in this case [42]. Magmatic further argued, with the support of the Comptroller General of Patents Designs and Trademarks, that this question should be referred to the Court of Justice of the European Union as it is neither acte clair nor acte clair [42]. This Court rejects both arguments. The Court of Appeal was not raising a freestanding point that absence of decoration was a feature of the CRD [43]. In any event, it is not arguable that that an absence of ornamentation cannot be a feature of a CRD [44 48, 60]. As to the question of whether absence of ornamentation was a feature of the CRD in the presence case, the Court of Appeal did not resolve this issue and it is unnecessary to do so in the present appeal [50]. Accordingly, no reference to the CJEU needs to be made, and the appeal is dismissed [59 61].
The issues raised by this appeal are whether the Court of Appeal (i) adopted the wrong approach to the assessment of the impact of MAs lies to the Asylum and Immigration Tribunal (AIT) on his claim for international protection on the basis of Article 3 of the European Convention on Human Rights (ECHR); and (ii) impermissibly interfered with the assessment of the facts made by the AIT, including the impact of MAs lies on a relevant aspect of his claim. As will become apparent, there was little debate or disagreement between the parties to this appeal about the questions raised by the first issue, although they are unquestionably of general importance. The second issue raises the question of how far it is legitimate for an appeal court to interfere with the assessment of facts made by a specialist tribunal on the grounds of error of law. The facts MA is a citizen of Somalia. He is a member of the Isaaq clan, sub clan Habr Yunis. He entered the United Kingdom illegally on 7 May 1995 and applied for asylum on 24 May 1995. That application was refused on 14 February 1996, but he was granted exceptional leave to remain until February 1997. He was then granted further leave until 14 February 2000. On 23 July 1998, he was convicted of rape and indecency with a child. He was sentenced to eight years imprisonment. On 21 May 2002 the Secretary of State for the Home Department (the Secretary of State) served him with a notice of intention to make a deportation order. MA appealed against the notice on human rights grounds. The Secretary of State decided (under the Immigration Rules) that the grounds of appeal amounted to a fresh claim for asylum; but refused the claim in a letter dated 26 June 2003. MA appealed. His appeal was dismissed by an adjudicator on 25 November 2003. On 5 April 2004, the Secretary of State made a deportation order, which was served on MA on 19 April 2004. On 4 March 2005, MAs solicitors made further representations to the Secretary of State, who decided that these did not amount to a fresh claim. Removal directions were set for 29 November 2006, but MA applied for judicial review, raising issues under Article 3 of the ECHR. Following further submissions, on 1 February 2007 the Secretary of State accepted that MA had made a fresh claim for asylum, but refused the claim. MA appealed again. In a determination promulgated on 19 April 2007, the AIT allowed his appeal. They did so on human rights grounds only, as they held that the appellant was precluded by section 72 of the Nationality, Immigration and Asylum Act 2002 from claiming protection under the Refugee Convention, and, by paragraph 339D of the Immigration Rules, from claiming humanitarian protection. The AIT accepted the concession made by the Secretary of State that MA was a member of the Isaaq clan. They also found that he was from Mogadishu, and that his parents were from Hargeisa in Somaliland. After considering evidence about the situation of the Isaaq clan in Mogadishu, they held that the Isaaq in Mogadishu were in the position of a minority clan who did not have protection, and that he would be at a real risk of physical violence which crossed the Article 3 threshold. The Secretary of State applied for an order requiring the AIT to reconsider their decision. An order for reconsideration was made on 10 May 2007. At the first stage reconsideration hearing on 28 February 2008, Senior Immigration Judge Spencer ordered a second stage hearing at which the appeal would be determined afresh. He further ordered that the limited positive credibility findings made by the AIT about MA and their decision to prefer the evidence of Mr Hhne (MAs expert) to that relied on by the Secretary of State should be preserved. MAs appeal was re heard on 18 December 2008, and in a determination promulgated on 1 July 2009 the AIT dismissed the appeal. His application for permission to appeal to the Court of Appeal was granted by Sedley LJ on 18 December 2009. In a judgment delivered on 23 April 2010 [2010] EWCA Civ 426, the Court of Appeal allowed the appeal. It will be necessary to examine parts of the AITs determination of 1 July 2009 and the decision of the Court of Appeal in some detail. In short, the Court of Appeal held that, although the AIT directed themselves impeccably, they did not apply that direction properly and they failed to take account of a material factor in reaching their conclusion. The relevant country guidance decision of the AIT The relevant country guidance for Somalia is to be found in the AIT decision of AM and AM (armed conflict: risk categories)(Somalia) [2008] UKAIT 00091. At para 178, the AIT said: On the present evidence we consider that Mogadishu is no longer safe as a place to live for the great majority of its citizens. We do not rule out that notwithstanding the above there may be certain individuals who on the facts may be considered to be able to live safely in the city, for example if they are likely to have close connections with powerful actors in Mogadishu, such as prominent businessmen or senior figures in the insurgency or in powerful criminal gangs. However, barring cases of this kind, we consider that in the case of persons found to come from Mogadishu who are returnees from the UK, they would face on return to live there a real risk of persecution or serious harm and it is reasonably likely, if they tried staying there, that they would soon be forced to leave or that they would decide not to try and live there in the first place. The Standard of Proof It was not contended in the Court of Appeal or in this court that the AIT had applied the wrong standard of proof. It is well established that a breach of Article 3 of the ECHR is proved where substantial grounds have been shown for believing that the person concerned faced a real risk of being subjected to torture or inhuman or degrading treatment (Vilvarajah v UK (1991) 14 EHRR 248 para 103) (emphasis added). There was, however, some brief discussion before us on the question whether it is appropriate to apply the civil test of the balance of probabilities to some of the elements of what has to be proved in an Article 3 claim. This is a difficult topic which has occupied the attention of our courts in recent years in the analogous context of extradition and Refugee Convention cases. It was authoritatively decided by the House of Lords in R v Secretary of State for the Home Department, ex p Sivakumaran [1988] AC 958 that in order for a fear to be well founded for the purposes of the Refugee Convention, there must be a reasonable degree of likelihood that the applicant will be persecuted on return. It will be seen that this test is expressed in slightly different terms from the Article 3 test. But no argument was addressed to this court to suggest that there is a material difference between the two. Although it is not necessary for the determination of this appeal to decide whether there is any difference, we are inclined to the view that there is no practical difference between them. It would add considerably to the burdens of hard pressed immigration judges, who are often called upon to decide claims based both on the Refugee Convention and the ECHR at the same time, if they were required to apply slightly different standards of proof to the same facts when considering the two claims. The question that was touched on in argument is whether the same standard of proof should be applied in relation to the proof of past or existing facts as in relation to the assessment of future risk. In the extradition context, in Fernandez v Government of Singapore [1971] 1 WLR 987, the House of Lords had to interpret section 4(1)(c) of the Fugitive Offenders Act 1967, which entitled the applicant to avail himself of a prohibition on return if he might be restricted or detained if extradited. Lord Diplock said that the balance of probabilities was a convenient phrase to use in relation to the existence of facts; but was inappropriate when applied not to ascertaining what had already happened, but to prophesying what, if it happened at all, could only happen in the future (994A). In the latter situation, Lord Diplock found that a lesser degree of likelihood was sufficient (994G). Prior to Sivakumaran, it seems that the general view in extradition and asylum cases was that past and existing facts should be determined according to the civil standard of proof (ie on the balance of probabilities); and the lower test propounded in Fernandez applied to assessing the risk of adverse treatment on the basis of those facts. An example of this approach is to be found in R v Immigration Appeal Tribunal, ex p Jonah [1985] Imm AR 7 (Nolan J). Following Sivakumaran, it was unclear whether the real risk/real possibility test should be applied to the proof of past and existing facts. In Kaja v Secretary of State for the Home Department [1995] Imm AR 1 (IAT), the majority rejected a two stage test of a determination of past and present facts on the balance of probabilities and an assessment of real risk in relation to future possibilities. They held that the test of reasonable degree of likelihood should be applied to all aspects of the determination. Following Kaja, the practice of the IAT was to apply the real possibility test to past and present facts. In Horvath v Secretary of State for the Home Department [2000] INLR 15, however, the Court of Appeal, obiter, favoured the Jonah approach. Although Horvath was appealed to the House of Lords, nothing was said by their Lordships as to the correctness of these observations. The Court of Appeal considered the issue fully in the asylum context in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449. We do not propose to examine the judgments of Brooke and Sedley LJJ in detail (with both of which Robert Walker LJ, as he then was, agreed). They endorsed the approach of the majority in Kaja. The degree of probability of the occurrence or non occurrence of past events was no more than a relevant factor to be taken into account in deciding whether there was a well founded fear of persecution. The decision maker was bound to take account of all material considerations when making its assessment about the future. GM (Eritrea), YT (Eritrea) and MY (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 833 (which we shall refer to as GM (Eritrea)) was a group of three asylum cases which we shall consider in some detail later in this judgment in the context of the question of the relevance of lies. But in relation to the standard of proof, it may be worth recording that the Court of Appeal stated that the applicants had to do no more than prove that there was a reasonable degree of likelihood that the past facts that they asserted (viz that they had left Eritrea illegally) were true. This is consistent with the approach adopted by the Grand Chamber of the ECtHR in relation to Article 3 claims in Saadi v Italy (App no 37201/06, 28 February 2008): 132. In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes . that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned (emphasis added). Nevertheless, the approach in Jonah and Horvath to the ascertainment of past facts may also be seen as consistent with the requirement for substantial grounds or serious reasons. The argument before us, however, proceeded on the basis that real possibility was the correct test to apply to past and present facts both in Refugee Convention and Article 3 cases. Without deciding the point, we are content to do the same in this appeal. We express no view on the issue which is both difficult and important. We think it would be desirable for the point to be decided authoritatively by this court on another occasion. Relationship between lack of credibility and the assessment of risk For appellants who appeal to the AIT in Refugee Convention or Article 3 cases, the stakes are often extremely high. The consequences of failure for those whose cases are genuine are usually grave. It is not, therefore, surprising that appellants frequently give fabricated evidence in order to bolster their cases. The task of sorting out truth from lies is indeed a daunting one. It is all too common for the AIT to find that an appellants account is incredible. And yet there may be objective general undisputed evidence about the conditions in the country to which the Secretary of State wishes to send the appellant which shows that most of the persons who have the characteristics of, or fall into the category claimed by, the appellant would be at real risk of treatment contrary to Article 3 of the ECHR or persecution for a Refugee Convention reason (as the case may be), but that a minority of these, because of special circumstances, are not subject to such risk. How should the AIT approach such general evidence where they do not believe the evidence given by the appellant that bears on the question of whether such special circumstances apply? That was the problem which confronted the AIT in the present case. The Secretary of State wished to return MA to Somalia. This involved sending him to Mogadishu. The objective evidence about conditions in Somalia was that only a person who had close connections with powerful actors (such as prominent businessmen or senior figures in the insurgency or in powerful criminal gangs) was likely to be safe if returned to Mogadishu. MA gave a great deal of conflicting evidence to the effect that he had no connections in Mogadishu at all. The AIT found that he had not told them the truth about his links and circumstances in Mogadishu (para 109). But they were unable to find positively that he did have connections there, still less that he had close connections with powerful actors. A similar problem arose in GM (Eritrea). The undisputed objective evidence in these cases was that there was a reasonable likelihood that a person who left Eritrea illegally would be persecuted on return. The question for the AIT was whether there was a reasonable likelihood that the appellants had left Eritrea illegally. Each of the appellants gave an account about his or her exit from Eritrea which was almost entirely disbelieved. The issue was whether, in those circumstances and in the light of the objective background evidence, the AIT had been entitled to find that it was not reasonably likely that the appellants had left illegally. The objective evidence was that more people left Eritrea illegally than legally, but that there were classes of people who could leave legally (party activists, Ministers and ex Ministers, persons over 40 who wished to visit relatives or go on Haj and government officials), and that those classes were not closed (eg it included those who had obtained student visas). All three members of the Court agreed that two of the appeals (those of GM and YT) should be dismissed. In these cases, Buxton LJ (with whom Laws and Dyson LJJ agreed) stated: 39. While they are unlikely to have fallen into any of the categories reported in para 9 above, they were of an age to have moved into the student category envisaged by the AIT. Since they put forward no truthful material about what they were doing in the relevant period, it is in my view impossible to say that there is a reasonable degree of likelihood that during that period the appellants did not move into the student category. 40. At the same time, it is equally impossible to say that it is likely that they did enter that category. That however is not the test. Mr Nicol was wrong in suggesting that it was for the Secretary of State to produce evidence to that effect. That would indeed be to reverse the burden of proof. As this court put it in Ariaya and Sammy v Secretary of State for the Home Department [2006] EWCA Civ 40, cited in para 12 above, it may not be necessary for the appellant in such circumstances to say much, but he must say something, adduce some evidence that puts him in a vulnerable position, before the effective burden of contradicting his case passes to the Secretary of State. The third appeal concerned MY. The AIT found that MY (a 17 year old girl) had failed to show that she had left Eritrea illegally, because she had not given credible evidence as to how she had left the country. The objective evidence showed that there were categories of 17 year old girls who were allowed to leave the country legally. Buxton LJ would have allowed the third appeal, but Laws and Dyson LJJ agreed that it, too, should be dismissed. In assessing the argument in the case of MY, Buxton LJ said (para 43) that her age alone made it very difficult indeed, even arguably, to fit her into any of the categories of person who might obtain exit visas, including the student category. That being so, he held (para 44) that the immigration judge should have considered, on the basis of all the evidence, whether there was a reasonable degree of likelihood that during her residence in Eritrea MY did not fall into one of the categories that could or might leave the country legally. He said (para 45) that the failure of the [evidential] case advanced by the appellant does not lead as a matter of necessity to the failure of her case if there is other evidence of general circumstances or probabilities against which what little is known about the applicant can be assessed. Finally, at para 46, he expressed himself in these terms: The evidence referred to above, and despite MYs failure to give truthful evidence either about her activities in Eritrea or about her actual exit from that country, drives me to the conclusion that even though I cannot say how MY actually left Eritrea, there must, if only by elimination of other possibilities, be a reasonable likelihood that she left illegally. Laws LJ, with whom Dyson LJ agreed, said that the concrete question for the immigration judge was whether there was a reasonable degree of likelihood that MY had left Eritrea illegally (para 51); there may be cases where the appellants testimony is disbelieved but other evidence proves his/her asylum claim (para 52). He continued: 53. In my judgment that circumstance poses great difficulties for MY's case. The fact (if it be so) that it is reasonably likely that any 17 year old girl from Eritrea, about whom nothing else relevant is known, left the country illegally does not entail the conclusion that this particular 17 year old girl did so. The reason is that the probability that a particular person has or has not left illegally must depend on the particular facts of her case. Those facts may produce a conclusion quite different from that relating to illegal exit by members of such a class of persons about whose particular circumstances, however, the court knows nothing more than their membership of the class. There may indeed be a general probability of illegal exit by members of the class; but the particular facts may make all the difference. I think with respect that this consideration lies behind the observations approved by Richards LJ in Ariaya and Sammy v Secretary of State for the Home Department [2006] EWCA Civ 40, and para 449 in MA, which Buxton LJ cites at paras 12 and 13. 54. The position would only be otherwise if the general evidence was so solid as to admit of only fanciful exceptions; if the court or tribunal concluded that the 17 year old must have left illegally whatever the particular facts. He then applied this approach to the facts of MYs case. At para 57 he said that, since her account of her departure had been rejected by the immigration judge, her claim could not succeed on the basis of general evidence unless the possibility that the particular facts may make a difference is effectively excluded. Dyson LJ agreed that MYs appeal should be dismissed substantially for the reasons given by Laws LJ. At para 61, he said: Unless it can safely be said that exit by any 17 year old girl is illegal, whether it is reasonably likely that the exit by an individual 17 year old girl was illegal will depend on the facts of her particular case. Her failure to give a credible account of those facts may lead to the conclusion that she has not shown that there is a reasonable likelihood that her exit was illegal. Like Laws LJ, he concluded on the basis of the general evidence that it was entirely possible that MY left Eritrea legally (para 64). The appeal to this court has been conducted on the basis that the approach adopted by Laws and Dyson LJJ is substantially correct. But Mr Drabble questioned para 54 of Laws LJs judgment. We think that what Laws LJ had in mind was a case where (i) the claimants account is rejected as wholly incredible (it is riddled with contradictions and the tribunal is left in a state of being unable to believe anything that the claimant has said); but (ii) there is undisputed objective evidence about conditions in the relevant country which goes a long way to making good the shortcomings in the claimants own evidence. In GM (Eritrea), for example, the AIT did not believe the account given to them by MY as to how she had left the country. They could not, therefore, rely on her account as a basis for concluding that she had left the country illegally. But if there had been objective evidence that no 17 year old girls were allowed to leave the country, her appeal would surely have succeeded despite her dishonest evidence. In fact, the objective evidence did not go nearly that far and the appeal was dismissed. What Laws LJ was saying at para 54 was that, where a claimant tells lies on a central issue, his or her case will not be saved by general evidence unless that evidence is extremely strong. It is only evidence of that kind which will be sufficient to counteract the negative pull of the lie. But much depends on the bearing that the lie has on the case. The Court of Appeal correctly stated at para 104 of its judgment in the present case: The lie may have a heavy bearing on the issue in question, or the tribunal may consider that it is of little moment. Everything depends on the facts. For example, if in the Eritrea cases the Secretary of State had prima facie evidence that the appellants had left legally, the tribunal might think it appropriate to put considerable weight on the fact that the claimant told lies when seeking to counter that evidence. The lie might understandably carry far less weight where, as in YL itself, the judge is satisfied that the appellant has lied where the lie is against her interests. Where the appellant has given a totally incredible account of the relevant facts, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence. Suppose, for example, that at the interview stage the appellant made an admission which, if true, would destroy his claim; and at the hearing before the AIT he withdraws the admission, saying that his answer at interview was wrongly recorded or that he misunderstood what he was being asked. If the AIT concludes that his evidence at the hearing on this point is dishonest, it is likely that his lies will assume great importance. They will almost certainly lead the tribunal to find that his original answers were true and dismiss his appeal. In other cases, the significance of an appellants dishonest testimony may be less clear cut. The AIT in the present case was rightly alive to the danger of falling into the trap of dismissing an appeal merely because the appellant had told lies. The dangers of that trap are well understood by judges who preside over criminal trials before juries. People lie for many reasons. In R v Lucas [1981] QB 720, the Court of Appeal had to consider whether a statement containing a lie was capable of amounting to corroboration. At p 724F, Lord Lane CJ said: To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly, it must relate to a material issue. Thirdly, the motive for the lie must be a realisation of guilt and fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Although the analogy is not exact, it is close enough for these words to be of relevance in the present context. So the significance of lies will vary from case to case. In some cases, the AIT may conclude that a lie is of no great consequence. In other cases, where the appellant tells lies on a central issue in the case, the AIT may conclude that they are of great significance. MAs appeal was such a case. The central issue was whether MA had close connections with powerful actors in Mogadishu. The AIT found that he had not told the truth about his links with Mogadishu. It is in such a case that the general evidence about the country may become particularly important. It will be a matter for the AIT to decide whether the general evidence is sufficiently strong to counteract what we have called the negative pull of the appellants lies. The AITs determination in more detail This was a second stage reconsideration at the behest of SIJ Spencer who had decided that there was a material error of law in the earlier decision in failing to consider whether the appellant would be able to make arrangements for protection by the Hawiye through his connections with the Isaaq. The immigration judge added: I take the view that in this regard the appellant had at least an evidential burden, which he failed to discharge, since what contacts and relationships he had was exclusively within his own knowledge and not that of the Secretary of State. Thus the nature of those connections was of central importance at the second stage reconsideration. At para 17 of their determination, the AIT recorded that it was for MA to prove his case. He had to show that there was a real risk of his suffering ill treatment of such severity that his Article 3 rights would be breached. MA gave evidence to the tribunal. He did not need an interpreter. He gave conflicting accounts about his connections with Mogadishu. For example, para 31 of the determination records that his SEF form showed that his family tried to leave Somalia for Kenya, but had found that too risky. His evidence before the tribunal was that his family left Somalia for Kenya together in 1992 or 1993. But para 45 of the determination states that in his application form he said that he left his family behind in Somalia when he fled to Kenya in 1994. Para 48 records that MA said that he left his family behind in Somalia, but they followed him to Kenya later. Para 54 refers to his interview on 12 September 2002 when he said that, when he left Kenya for the UK, he believed that his family was in Somalia, although he did not know whether they were safe there. This is to be contrasted with his witness statement dated 27 July 2008 in which he said that he last saw his parents in Kenya when he was leaving for the UK. He said that his mother was in South Africa and his father divided his time between South Africa and Kenya. He accepted that he had spoken to his sister about their parents while he was in prison. He said that she had told him that she did not know where they were. And yet in his witness statement he had said that he was in contact with his sister while he was in prison and she had told him that their parents were fine, but did not say where they were. Unsurprisingly, the AIT found that it was so unlikely that his sister would know that her parents were fine but not know where they were, that they found MAs account as to what he knew about the whereabouts of his parents incredible. MA told the AIT that he had not been in contact with his parents because he did not know how to contact them, but he was in contact with his sister. He gave no satisfactory answer as to why he did not contact his parents. The AIT then reviewed the expert evidence of Marcus Hhne on behalf of MA. At para 88, they said: [W]e emphasise that although we have indicated our findings when we have considered the submissions, and, in places, the evidence, we did not make any findings until we had considered the entirety of the evidence in the round, with the submission made. At para 104, they said that the submission made on behalf of the Secretary of State that MA was not believable and could not prove his case was wholly justified. They continued: 105. The Tribunal is not unfamiliar with the difficulties created by appellants who have not been truthful but who still may be at risk. This was considered by the Court of Appeal in GM (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 833. We must be very careful not to dismiss an appeal just because an appellant has told lies. Even if very large parts of his story have been disbelieved it is still possible that the appellant has shown that he would be at risk on return. An appellant's own evidence has to be considered in the round with other evidence and that can include unimpeachable evidence from expert reports or country guidance cases or other evidence about the general state of affairs in that country. 106. For reasons very properly emphasised by Mr Drabble and spelled out in the case of AM, Mogadishu is a desperately difficult place and it is probably not going too far to say that the respondent should think twice before making anybody go there against his or her will. 107. We do not believe the appellant but we have to decide if the background conditions show that he will be at risk. In para 178 of AM the Tribunal identified people as examples of people who may be safe in Mogadishu. The Tribunal said: "We do not rule out that notwithstanding the above there may be certain individuals who on the facts may be considered to be able to live safely in the city, for example if they are likely to have close connections with powerful actors in Mogadishu, such as prominent businessmen or senior figures in the insurgency or in powerful criminal gangs. However, barring cases of this kind, we consider that in the case of persons found to come from Mogadishu or returnees from the UK, they would face on return to live there a real risk of persecution or serious harm. " 108. We are not able to find positively that the appellant is a person with close connections with powerful actors in Mogadishu and so on. 109. The difficulty is that the appellant has not told us the truth about his links and circumstances in Mogadishu and we cannot exclude the possibility that he is a person with connections of this kind. The point is that it is not fanciful to say that he would not necessarily be at risk on return. Some people are not. Even though the appellant has to prove only a real risk rather than a probability of him being at risk we cannot make the necessary findings when he will not tell the truth about his connections and contacts there. 118. [Mr Drabble] submitted that it was fanciful to suggest that the appellant came into any of the categories of people identified at para 178 of AM as being not at risk. The appellant would be at risk in Mogadishu and his appeal should be allowed. 119. Drawing all these things together we find that this appellant would be returned to Mogadishu. We find that he has links with Somaliland and would probably be accepted by the community there if he could get there. We find that it would be dangerous in fact too dangerous for him to travel from Mogadishu to Somaliland if he is telling the truth when he claims not to have any links with the country. We accept that some people do make the journey. There is no clear evidence about how they travelled. We cannot find that this appellant could follow their example. It is clearly the case (and no one has suggested otherwise) the appellant would be allowed through the airport at Hargeisa. Whilst we accept that the risks diminish as a traveller gets further away from Mogadishu a traveller has to get away from Mogadishu before that becomes an advantage and there are risks travelling around there. This appellant is going to be at risk if we accept his evidence of having no contacts there. 120. We do not accept his evidence about that. He was manifestly untruthful. We have reflected carefully on this because we are aware of the time that has elapsed, of which a full explanation has been given, since the appeal was heard. It is not a matter of nuance or inference. The appellant is blatantly untruthful and no passage of time has impacted our findings on that point. 121. Para 178 of AM does not give an exclusive list of people who are not at risk. It makes the point there are people who are not at risk. The burden is on the appellant and he has not told the truth about his links with Mogadishu and we are not able to say that he is a person who has shown he would be at risk there. He has stopped proper enquiry of a kind that might reveal the links and protection he would have. It would be very sad if, by so doing, the appellant has deprived himself of protection that he would otherwise need but he has told lies and must accept the consequence of that. It does diminish his credibility and makes it harder for him to prove his case. 122. In all the circumstances we dismiss the appeal. Decision of the Court of Appeal The court summarised the two submissions made by Mr Drabble. The first was that the AIT could not properly have concluded in the light of the country guidance given in AM and AM, as they did at para 109, that it was not fanciful to say that MA may not be at risk on return. The court rejected this submission. At para 110 of their judgment, they said that the AIT were entitled on the basis of AM and AM to conclude that this case did not fall into the category of case identified by Laws LJ in GM where the general evidence would suffice, because anyone in MAs situation would necessarily be subject to persecution on return. The second submission was that the AIT had misdirected themselves when considering the question of risk on return. They had focused on the difficulties caused by MAs failure to tell the truth, but they should have asked whether there was other evidence relating to MAs own particular situation, even if his own rejected testimony was left out of account, which would support his case. Mr Drabble submitted that there was such evidence which the Tribunal failed properly to evaluate. This was summarised by the Court of Appeal at para 113 in these terms: The evidence he relies upon is in particular the fact that the appellant has been in the UK for some 15 years, and that for almost all of the last 12 or so he has been in detention of one sort or another. In addition, his parents were from Hargeisa, not Mogadishu, and the evidence of Mr Hhne was to the effect that he would not get protection from the Isaaq clan in Mogadishu given the dramatic evacuation from that city. In the circumstances, Mr Drabble submits that it is fanciful to think that the appellant would be likely to fall into the exceptional category of persons with contacts in Mogadishu who could provide the requisite protection. At para 116, the court acknowledged that the AIT had directed themselves impeccably at para 105 of the determination. But they said that the tribunal had not properly applied that direction. They continued: 117. We think, with respect to the Tribunal, that it is there adopting the wrong approach. Their analysis suggests that the fact that the appellant has lied has of itself disabled them from reaching a conclusion on the article 3 risk. They seem to be throwing up their hands in despair; since the appellant has concealed the truth, they cannot make any necessary findings. This is further confirmed by para 121 when they say that because his lying has prevented a full and proper inquiry, there is no relevant finding the Tribunal can make. 118. That does not, however, follow from GM. They first have to ask whether there is other evidence, independently of his unreliable testimony, casting light on the appellant's particular situation. If so, they must have regard to that evidence. As Buxton LJ put it in GM see para 98 above), there does not need to be much evidence, only sufficient to suggest that there is a real risk of persecution and thereby shift the burden to the Secretary of State to show otherwise. Nowhere does the Tribunal say that the only potential evidence is the appellant's rejected testimony and that without it there is no relevant evidence, and we do not think that it can be fairly inferred from their decision that this was how they approached the matter. For example, there is no reference in the whole judgment to the fact that the appellant has spent the best part of the last 12 years in prison or administrative detention in the UK. In our view that must on any view have relevance to the likelihood of this particular appellant having current contacts in Mogadishu which will afford him the necessary protection. 119. In any event, in our judgment, if they did analyse the issue in that way, we agree with Mr Drabble that it was not a conclusion open to them on the evidence. That evidence was that the appellant was from a clan which was in the minority in Mogadishu; that he had not been there for some 15 years; and that for most of that time he had been in detention. Whatever links might exceptionally exist to provide protection for an Isaaq returning to Mogadishu, there was in our view sufficient evidence adduced before the Tribunal at least to establish a real risk that it was unlikely to apply to him. He was not simply putting himself into the general category of persons returning to Mogadishu, nor even of a minority clan member taking that step, and then relying on the relevant statistics as to how such persons would in general be treated. There was the particular feature of his history in the UK the lengthy period and the fact of detention which constituted evidence relevant to the particular and specific risks which he faced and which enabled the court to make an assessment of risk on the basis of evidence independent of his own testimony. 120. We agree that the Tribunal ought to have made an assessment on the basis of that evidence, and had they done so, they must have concluded that there was a real risk that he would not obtain the relevant protection. Without it, in the light of AM and AM he was plainly at risk of adverse article 3 treatment, and therefore his deportation would be unlawful. Should the Court of Appeal have interfered in this case? It is important to note what the Court of Appeal did not say. They did not say that the AIT had misdirected themselves as to the correct test to be applied whether in relation to Article 3 cases generally or as to the impact of lies. They accepted that the AIT were right to direct themselves in accordance with the majority in GM (Eritrea). They acknowledged that the AIT did not commit the cardinal error of dismissing the appeal simply because MA had told lies. The error they identified in the AITs approach was in relation to the application of GM (Eritrea). In summary, they made two criticisms. First, they said that paras 109 and 121 of the AITs determination showed that they did dismiss the appeal simply because MA had told lies. As they put it at para 117 of their judgment, [t]hey seem to be throwing up their hands in despair; since the appellant has concealed the truth, they cannot make any necessary findings. Secondly, they said that the AIT overlooked significant material which enabled the court to make an assessment of risk independent of MAs testimony and which, if it had been taken into account, must have led to the conclusion that there was a real risk that he would not obtain the relevant protection. Before we examine these two criticisms, we need to make some general points about the proper role of the Court of Appeal in relation to appeals from specialist tribunals to it on the grounds of error of law. Although this is not virgin territory, the present case illustrates the need to reinforce what has been said on other occasions. The court should always bear in mind the remarks of Baroness Hale of Richmond in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2008] 1 AC 678 at para 30: This is an expert Tribunal charged with administering a complex area of law in challenging circumstances.[T]he ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the Tribunal will have got it right. They and they alone are judges of the factsTheir decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently. Those general observations were made in a case where the Court of Appeal had allowed an appeal against a decision of the AIT. The role of the court is to correct errors of law. Examples of such errors include misinterpreting the ECHR (or in a refugee case, the Refugee Convention or the Qualification Directive); misdirecting themselves by propounding the wrong test on some legal question such as the burden or standard of proof; procedural impropriety such as a breach of the rules of natural justice; and the familiar errors of omitting a relevant factor or taking into account an irrelevant factor or reaching a conclusion on the facts which is irrational. But the court should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the AITs assessment of the facts. Moreover, where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account. We turn to the first of the Court of Appeals criticisms. In our view, the court was wrong to interpret paras 109 and 121 of the determination as if the AIT were saying that they were dismissing the appeal because MAs account was incredible. In the light of the clear and impeccable self direction set out only a few paragraphs earlier (at para 105), and having regard to the need for restraint to which we have referred, the court should surely have been very slow to reach the conclusion that it did. It should only have interpreted these paragraphs in the way that it did if there was no doubt that this is what they meant. It is often easy enough to find some ambiguity or obscurity in a judgment or determination, particularly in a field as difficult and complex as immigration, where the facts may be difficult to unravel and the law difficult to apply. If, as occurred in this case, a tribunal articulates a self direction and does so correctly, the reviewing court should be slow to find that it has failed to apply the direction in accordance with its terms. All the more so where the effect of the failure to apply the direction is that the tribunal will be found to have done precisely the opposite of what it said it was going to do. The striking feature of the present case is that the Court of Appeal was of the view that at para 109, the AIT failed to apply the direction that they had set for themselves only four paragraphs earlier. In our view, there was no need to interpret paras 109 and 121 in the way that the Court of Appeal did. There is an interpretation of these paragraphs which is consistent with the self direction at para 105 and is unimpeachable. In our view, all that the AIT were saying at para 109 was that, because MA had not told the truth about his links and circumstances in Mogadishu, the possibility that he was a person with connections in Mogadishu could not be excluded. In other words, he had not discharged the burden of proof which the AIT had correctly said rested on him. The fact that the AIT were considering the burden of proof is demonstrated by the last sentence of para 109: Even though the appellant has to prove only a real riskwe cannot make the necessary findings when he will not tell the truth (emphasis added). So too at para 121 which we have set out at para 38 above. The third sentence says: The burden is on the appellant and he has not told the truth about his links with Mogadishu. Later in the paragraph, the AIT says that MA has told lies: It does diminish his credibility and makes it harder for him to prove his case (emphasis added). In our view, on a fair reading of paras 109 and 121 in the light of para 105, it is clear that the AIT were not throwing up their hands and rejecting MAs appeal because he had lied without more. They were saying that, because he had told lies, they were unable to make any relevant findings and the appeal failed because MA had not discharged the burden of proof. We turn to the second criticism. The first limb of this criticism is that the AIT overlooked the fact that MA had spent the last 12 years in prison and administrative detention in the UK. It is true that there is no explicit reference to this fact in the determination. But the AIT were well aware of it. As we have already said, they considered the extent of his contact with his family when he was in prison during this period and set out MAs conflicting evidence at length at paras 35 to 65 of the determination. There are various references to his having been in prison (paras 35, 40, 59, 60, 61 and 64). In these circumstances, there is no warrant for holding that the AIT failed to have regard to the fact that MA was in custody or detention. They said in terms at para 88 that they had considered the entirety of the evidence in the round. This was a detailed and careful determination running to 122 paragraphs. For that reason, as well as because of the need for restraint to which we have referred, the court should have been very slow to reach the conclusion that the AIT had not taken into account the fact that MA was in custody and detention for 12 years. It was obvious from his own evidence that MA was able to communicate with some members of his family, presumably by using his mobile phone. In these circumstances, the tribunal is likely to have thought that the fact that MA was deprived of his liberty for 12 years would not prevent him from maintaining his connections with the outside world. It is of some significance that in his detailed skeleton argument for the appeal to the AIT, Mr Drabble made the point at paras 20 to 22 that MAs case was that he had no knowledge of or contact with his family or friends in Somalia. But he did not say that MA would be unlikely to have such knowledge or contact because he was in prison and then administrative detention. This brings us to the other limb of the second criticism made by the Court of Appeal, which is that, if the AIT had taken into account the fact that MA had been in prison and detention for 12 years, they must have concluded that there was a real risk that he would not obtain the relevant protection. If this had been such an inevitable conclusion to draw from the fact of custody and detention for 12 years, it is indeed surprising that Mr Drabble did not invite the AIT to make it in his skeleton argument. Although they did not use the language of perversity, what the Court of Appeal were saying in effect was that it would have been perverse of the AIT not to draw this conclusion if they had thought about the significance of the custody and detention. In our view, this is quite untenable. It was possible that the deprivation of liberty for 12 years would have prevented MA from maintaining or developing the necessary protective links. But it was certainly not inevitable. It was for the AIT to assess the matter in the light of all the evidence. Conclusion We would, therefore, allow this appeal. The AIT did not adopt the wrong approach in their assessment of the impact of MAs lies and there was no error of law in their determination which warranted interference by the Court of Appeal.	The issues raised in this appeal are: (1) the correct approach to the relevance of lies told by an asylum seeker in the assessment of real risk of persecution on return to his or her country of origin; and (2) how far it is legitimate for an appeal court to interfere with the assessment of facts made by a specialist tribunal on the grounds of error of law. MA is a citizen of Somalia. He is a member of the Isaaq clan. He entered the UK illegally on 24 May 1995. He claimed asylum which was refused but he was granted exceptional leave to remain. In 1998 he was convicted of rape and indecency with a child and was sentenced to eight years imprisonment. On 21 May 2002, the Secretary of State for the Home Department served him with notice of intention to make a deportation order. Following a series of failed appeals and fresh submissions, the Secretary of State made a deportation order on 5 April 2004 and removal directions were set. MAs further submissions were accepted by the Secretary of State as a fresh claim to asylum. The Asylum and Immigration Tribunal (AIT) on 19 April 2007 accepted this claim but reconsideration was ordered on 26 February 2008, directed to the issue whether MA as a member of the Isaaq clan would be able to arrange protection against a real risk of physical violence if returned to Mogadishu. After hearing MA give evidence, the AIT concluded that MA had not told the truth about his links and circumstances in Mogadishu, and could not say that he had shown he would be at risk there contrary to Article 3 of the European Convention on Human Rights. The Court of Appeal allowed MAs appeal on the grounds that the AIT seemed to be throwing up their hands in despair and saying that since [MA] has concealed the truth, they cannot make any relevant findings, and that had the AIT made an assessment, they must have concluded that there was a real risk that he would not obtain the relevant protection, having regard to the lengthy period he had been in the UK, including 12 years in prison. The Supreme Court allows the Secretary of States appeal. The AIT did not err in their assessment of MAs lies and there was no error of law which warranted interference by the Court of Appeal. The Court recognises the difficulties facing the AIT in distinguishing truth from lies. A particular problem arises where, as in MAs case, the AIT has disbelieved the majority of the claimants evidence, but there is objective evidence indicating that the majority of individuals with the characteristics of, or alleged by, the claimant would be at risk if returned to the home state: [21]. The Court of Appeal were faced with this problem in GM (Eritrea) [2008] EWCA Civ 833. The Court endorses the approach in GM (Eritrea), the substance of which was not challenged in this appeal. Where the claimants account is rejected as incredible, he or she will only succeed where there is undisputed objective evidence which goes a long way to making good the shortcomings in the claimants own evidence. This, in essence, is what Laws LJ meant in para 54 of his judgment GM (Eritrea): [30]. The weight a lie has in each case is fact sensitive. In some cases, the AIT may conclude that the lie is of no great significance. In others, where, for example, the appellant tells lies on a central issue in the case, the AIT may conclude that it is of great significance. The AIT in this case was rightly alive to the danger of falling into the trap of dismissing the case merely because the appellant has told lies. As recognised by the Lucas direction in the criminal context, people lie for many reasons: [32] [33]. In MAs case, the central issue was whether MA had connections with powerful actors in Mogadishu. The AIT found that he had not told the truth about his links in Mogadishu. Accordingly, in MAs case, the AIT concluded that his lie was of great significance: [33]. The AITs determination records the conflicts in the evidence given by MA about his connections with Mogadishu. The AIT then directed itself on the basis of GM (Eritrea) as to the significance of MAs lies. This direction was accepted by the Court of Appeal to be impeccable. However, the Court of Appeal found that having so directed itself, the AIT then proceeded to misapply it: [34] [41]. The Supreme Court finds that the AIT did not misapply the direction. The AIT did not dismiss the appeal because MAs account was incredible. It is possible to interpret the AITs judgment consistently with the correct self direction: [42], [46] [48]. The Supreme Court also finds that the AIT had not overlooked the fact that MA had spent the last 12 years in prison and administrative detention in the UK. There is no explicit reference to his imprisonment, however, it is clear from the AITs judgment that they were well aware of it: [49]. The AITs conclusion that MA did not satisfy them that he did not have the necessary protective links in Mogadishu was one which was open to them to make: [50]. The Court also makes some general observations about the proper role of the Court of Appeal in relation to appeals from specialist tribunals on grounds of error of law. The appellate court should not characterise as an error of law what is, in reality, no more than a disagreement with the AITs assessment of the facts. Furthermore, where a relevant point is not expressly mentioned in the judgment of the AIT, the court should be slow to infer that it has not been considered and taken into account: [43] [45]. Whilst expressing no view on the issue, the Court also comments on the question of standard of proof, in particular the correct test to apply to past and present facts: [12] [20]. The Court indicates the desirability for the point to be decided authoritatively in another case: [20].
The three appellants in these two appeals were each convicted of murder. Each had his conviction quashed pursuant to a reference to the Court of Appeal by the Criminal Cases Review Commission (CCRC) in the exercise of its powers under Part II of the Criminal Appeal Act 1995 (the 1995 Act). In each case no order was made for a retrial. Each claimed compensation from the Secretary of State pursuant to section 133 of the Criminal Justice Act 1988 (section 133). That section applies to England and Wales, to Northern Ireland and to Scotland. I shall not refer to provisions which cater for differences of procedure in Scotland. The most material part of that section provides: (1)when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction In each case the claim for compensation was refused by the Secretary of State, whose decisions were upheld on judicial review both at first instance and on appeal. The common issue that arises in relation to each appeal is the meaning of miscarriage of justice in section 133. In the case of Adams there is a second issue, which is the meaning of a new or newly discovered fact. Lord Hope has set out the background to the statutory right to compensation provided by section 133 and I need not repeat his summary. Lord Kerr has set out in detail the relevant facts in the appeals of Mr MacDermott and Mr McCartney and I gratefully adopt his account of these. It remains for me to summarise the facts relevant to the appeal of Mr Adams. They can be shortly stated. A more detailed summary can be found in the extract of the judgment of Simon J at first instance, annexed to the judgment of the Court of Appeal [2009] EWCA Civ 1291; [2010] QB 460. The facts in Mr Adams appeal On 18 May 1993 Mr Adams was convicted in the Crown Court at Newcastle of the murder of a man called Jack Royal and sentenced to life imprisonment. He appealed to the Court of Appeal and on 16 January 1998 his appeal was dismissed. Some nine years later his case was referred to the Court of Appeal by the CCRC on three grounds. The first, and only material ground, was that incompetent defence representation had deprived him of a fair trial. On 12 January 2007 the Court of Appeal allowed his appeal on this ground. The relevant shortcomings in the conduct of Mr Adams defence were, in large measure, the result of a late change of his counsel. This was made when those originally instructed to represent him had to withdraw from the case because of a conflict of interest. Those instructed to replace them were hard pressed to prepare for the trial and failed to consider relevant unused material. Some of this had been disclosed by the prosecution. Some was available on a computer database known as the Holmes database. The case against Mr Adams was essentially based on the evidence of a single witness, Mr Kevin Thompson. His evidence was supported by that of two police officers. It was the defence case that Mr Thompson was lying, that he had entered into a deal with the police to give evidence against Mr Adams, and that he had been fed with information about Mr Royals murder by the police. The evidence which had been overlooked by defence counsel would have provided valuable assistance in cross examining Mr Thompson and the two police officers. The Court of Appeal concluded that, had it been available and deployed, the jury might not have been satisfied of Mr Adams guilt. Accordingly the court quashed the conviction, but in doing so stated expressly that they were not to be taken as finding that, if the failings on the part of the defence lawyers had not occurred, Mr Adams would inevitably have been acquitted: [2007] 1 Cr App R 449 at para 157. Miscarriage of Justice Section 133(1) reproduces, in almost identical wording, the following provision in article 14(6) of the International Covenant on Civil and Political Rights 1966, which this country ratified in May 1976 (article 14(6) of the ICCPR). I shall emphasise the material differences: When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law The reference to a final decision is accommodated by a provision in section 133(5) which defines reversed as referring to a conviction which has been quashed on an appeal out of time or on a reference under the 1995 Act. The possible meanings of miscarriage of justice The meaning of miscarriage of justice in section 133 received consideration by the House of Lords in R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18; [2005] 1 AC 1, when rejecting a claim for compensation by Mr Mullen. He had been convicted of terrorist offences. His conviction had been quashed by an appeal out of time. This was not because there was any doubt that he had committed the offences of which he was convicted. His conviction was quashed because he had been seized and brought to this country from Zimbabwe in circumstances that had involved a flagrant abuse of power. It was not suggested that there was any defect in the trial process itself. The House held that in these circumstances Mr Mullens conviction had not been quashed on the ground of a miscarriage of justice within the meaning of section 133. Lord Steyn expressed the view that this phrase only extended to the conviction of someone subsequently shown to be innocent. Lord Bingham of Cornhill expressed doubt as to whether this was correct. Both were agreed that section 133 was enacted to give effect to article 14(6) and that the meaning of the latter should govern the interpretation of the section. They were not, however, agreed as to the meaning of article 14(6). Lord Rodger of Earlsferry accepted the interpretation reached by Lord Steyn. Lord Walker of Gestingthorpe considered that Lord Steyn had given powerful reasons for his conclusion, but preferred not to go beyond the limited common ground for allowing the appeal. Lord Scott expressed no view on the difference between Lord Bingham and Lord Steyn. Miscarriage of justice is a phrase that is capable of having a number of different meanings. In giving the judgment of the Court of Appeal in relation to Adams case Dyson LJ divided the circumstances in which convictions may be quashed on the basis of the discovery of fresh evidence into four categories, which I shall summarise in my own words. (1) Where the fresh evidence shows clearly that the defendant is innocent of the crime of which he has been convicted. (2) Where the fresh evidence is such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant. (3) Where the fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant. (4) Where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted. These four categories have provided a useful framework for discussion. There are relatively few domestic authorities that bear on the meaning of miscarriage of justice in section 133 and none which provides a definitive answer. In these circumstances, before considering those authorities, I propose to consider extrinsic sources that might be expected to assist with the interpretation of this phrase. Parliamentary material Mr Bailin QC, appearing for JUSTICE as intervener, submits that a statement made by Earl Ferrers, the Minister of State at the Home Office, throws light on the meaning of miscarriage of justice. The statement was made in the course of debate on the clause that was to become section 133: see Hansard (HL Debates), 22 July 1988, cols 1630 1632. At the outset Earl Ferrers explained that the object of the clause was to give statutory effect to the United Kingdoms obligations under article 14. Lord Hutchinson of Lullington then asked the very question that lies at the heart of these appeals. He contrasted a new fact which resulted in the quashing of a conviction because it raised a lurking doubt in the mind of the Court of Appeal about the safety of the conviction and a new fact which caused the Secretary of State to advise that a defendant should be pardoned because he had been shown to be innocent. Which, he asked, amounted to a miscarriage of justice under the clause? This, he stated, was a crucial point. If it is not contempt of Parliament to observe that Lord Bingham, in his judicial capacity, was uncertain of the answer to this question, after giving it detailed consideration in Mullen, it is not, I hope, contempt of Parliament to suggest that Earl Ferrers, when faced with the question ex improviso in the course of debate, may have had to seek assistance from an official before giving the answer. At all events the answer that he gave was: The normal course is to refer cases to the Court of Appeal and to regard its view as binding. Mr Bailin submits that, in accordance with Lord Hopes observations on the use that can be made of parliamentary material in R v A (No 2) [2002] 1 AC 45 at para 81, this statement binds the Secretary of State to accept that the question of whether there has been a miscarriage of justice must be determined from the judgment of the Court of Appeal in the particular case and that, as the Court of Appeal does not and cannot rule on whether the defendant is innocent, that cannot be the test of whether there has been a miscarriage of justice. I do not accept this submission. The reply given by Earl Ferrers did not answer the question posed by Lord Hutchinson. To be blunt it made no sense. It affords no guidance on the meaning in section 133 of miscarriage of justice. The relevant part of the debate clearly indicates that the intention of Parliament in enacting section 133 was to give effect to the obligation imposed by article 14(6). It does not suggest that Parliament intended that the meaning of section 133 should differ in any way from the meaning of article 14(6). This reinforces the rule of statutory interpretation that raises a presumption that, where a statute is passed in order to give effect to the obligations of the United Kingdom under an international convention, the statute should be given a meaning that conforms to that of the convention: see Salomon v Customs and Excise Commissioners [1967] 2 QB 116, 141 and Bennion on Statutory Interpretation, 5th ed (2008), section 221.6. What then is the meaning of miscarriage of justice in article 14(6)? In answering this question the provisions of the Vienna Convention on the Law of Treaties should be applied: see Fothergill v Monarch Airlines Ltd [1981] AC 251, 283, per Lord Diplock. The interpretation of Article 14(6) As the wording of the English text of article 14(6) is virtually identical to that of section 133, the former throws no light on the meaning of the latter. Article 33 of the Vienna Convention permits reference to the text of a convention in an alternative authenticated language. In Mullen Lord Steyn at para 47 derived assistance from the French text of article 14(6). This uses the phrase une erreur judiciare for miscarriage of justice. Lord Steyn stated that this was a technical expression indicating a miscarriage of justice in the sense of the conviction of someone who was innocent. He did not explain the basis for this assertion and Lord Bingham did not agree with it. He expressed the view at para 9 that erreur judiciare could be understood as equivalent to miscarriage of justice in its broad sense. Lord Binghams interpretation of the French text is to be preferred to that of Lord Steyn. The difference between them received detailed consideration by Girvan LJ in In re Boyles Application [2008] NICA 35 at paras 11 13. He concluded that the French term was as elastic as the English miscarriage of justice. In his written case at para 4.32 Mr Tam QC for the Secretary of State invited the Court to reject Girvan LJs analysis of the French law. In these circumstances the Court allowed Mr Owen to adduce a witness statement from Dr Cristina Mauro, who teaches Criminal Procedure as an Assistant Professor at Universit Panthon Assas at Paris. She confirmed that Girvan LJs interpretation of erreur judiciare was correct, and Mr Tam accepted this to be the case. Had the French text given a more precise meaning to article 14(6) than the English this would have been a legitimate aid to the interpretation of the latter. As it is the French text leaves us no further forward. Article 31(3)(b) of the Vienna Convention also permits one to take into account any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. Lord Steyn, Girvan LJ and Dr Mauro, in progressively greater detail, have examined articles 622 to 626 of the French Code de Procdure Pnale, which give effect to article 14(6). Once again the analysis of the latter two is to be preferred to that of Lord Steyn. This indicates that in France a conviction will be reviewed where a new element gives rise to serious doubts about guilt and that the reviewing court can then either quash the conviction on the ground that the new element proves that the defendant is not guilty or direct a retrial. Compensation will be recoverable in the former event or, if there is a retrial, if this results in an acquittal. This practice on the part of only one of the many signatories to the ICCPR does not provide a guide to the meaning of article 14(6) but it does demonstrate that proof of innocence has not been universally adopted as the test of entitlement to compensation. It has not been suggested that there is any consistency of practice on the part of the signatories that assists in determining the meaning of article 14(6). If it is not possible to deduce the meaning of article 14(6) from subsequent practice in its application, what of the travaux prparatoires? Article 32 of the Vienna Convention permits recourse to these where necessary to determine the meaning to be attributed to the term of a treaty in the light of its object and purpose see article 31. The Court has been provided with relevant comments on the travaux in The Right to a Fair Trial under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights by D Weissbrodt (2001) and Guide to the Travaux Prparatoires of the International Covenant on Civil and Political Rights by M Bossuyt (1987). So far as the precise meaning of miscarriage of justice is concerned the travaux are inconclusive. They disclose that Mrs Roosevelt was opposed to the inclusion of article 14(6) on the ground that its implementation would cause significant technical difficulties because of the diversity of national legislation. They show concern by some, including the British delegate, that the provision should not create an obligation to pay compensation when a conviction was reversed on appeal. Of most significance is the rejection by 22 votes to 11 with 40 abstentions of an amended provision initially proposed by Israel, with input from France and Afghanistan. This reads: The judicial recognition of the innocence of a convicted person shall confer on him the right to request the award of compensation in accordance with the law in respect of any damage caused him by the conviction. While this provides no positive indication of precisely what the state parties intended miscarriage of justice to mean, it makes it difficult to argue that they intended it to mean conviction of the innocent. Lord Bingham suggested at para 9 in Mullen that the phrase miscarriage of justice may have commended itself to the parties because of the latitude of interpretation that it offered and it seems to me that this may well be the case. It is, I believe, possible to make some more positive conclusions about what it was that the states who were involved in the drafting of article 14(6) were trying to achieve. They were concerned with the emergence of a new fact after the completion of the trial process, including review on appeal. Article 14(5) provides that everyone convicted of a crime shall have the right to have his conviction and sentence reviewed by a higher tribunal according to law. Article 14(6) applies to the discovery of a new fact after that final decision. Compensation was only payable where the new fact demonstrated conclusively that there had been a miscarriage of justice. Thus miscarriage of justice had to be the kind of event that one could sensibly require to be proved conclusively. Article 14 is, in general, concerned with the right to a fair trial. Most of its provisions relate to procedure. One might have expected article 14(6) similarly to have been concerned with the consequences of shortcomings in procedure. The travaux do not suggest that this was the primary concern of the delegates. It is perhaps significant that Mrs Roosevelt and Ms Bowie did not consider that the provision belonged in the Covenant and suggested deleting it. What the delegates appear to have been primarily concerned about was not errors of procedure, but the emergence of fresh facts that were inconsistent with the conviction of the defendant. Thus, at the outset, the Philippines suggested that the circumstances in which the provision should apply should be spelt out and that these should be where the true offender had confessed and there were no reasonable grounds to doubt his confession or where the fact or event which was the basis of the conviction was shown beyond reasonable doubt never to have taken place. A comment by Mrs Roosevelt that compensation should be denied to someone who deliberately concealed facts which would have exonerated him if discovered (my emphasis) is a further example of this approach, as is the proposed amendment to which I have referred at para 19 above. The fact remains, however, that this amendment was not carried and that the travaux show concern on the part of some delegates that the provision under discussion would allow compensation to persons who were clearly guilty but whose conviction had been annulled for reasons of form or procedure while others appear to have considered that the provision should provide a guarantee for lawful process. The travaux clearly demonstrate that the parties intended article 14(6) to cover the situation where a newly discovered fact demonstrated conclusively that the defendant was innocent of the crime of which he had been convicted. They were not, however, prepared to agree an interpretation which restricted the ambit of article 14(6) to this situation. In the 14th and final session it is recorded that most of the Committee agreed that only adequate legislation could solve the technical difficulties involved in the problem of compensation for a miscarriage of justice. Thus, while the principle was agreed that there should be compensation for the consequences of a conviction reversed on the ground of conclusive proof of a miscarriage of justice as a result of the discovery of new evidence after the conclusion of the criminal process, and that this would cover the case of a convicted man who was shown to be innocent, it seems to have been left to the individual parties by domestic legislation to identify the precise parameters of the miscarriage of justice that would give rise to a right to compensation. The words according to law were added to the article by a late amendment. It would have been possible for the contracting parties to have agreed that any person whose conviction was reversed by reason of a newly discovered fact should be given compensation for the consequences of the conviction. This could have been justified on the basis that the reversal of the conviction raised a presumption of innocence and that compensation should be paid on the basis of that presumption. The parties did not take that course. The fact that they did not do so, and the requirement that the miscarriage of justice should be established conclusively, indicates so it seems to me, an anxiety not to agree to an entitlement to compensation that would result in compensation being paid to those who had in fact committed the crimes of which they were convicted, at least on a substantial scale. In these circumstances the fact that section 133 is intended to give effect to the obligation imposed by article 14(6) is of limited assistance in interpreting that section. It would not be right, however, when interpreting section 133 to lose sight of the fact that it is giving effect to a convention agreed by parties with varying systems of criminal justice. Article 14(6) is applicable to criminal trials in jurisdictions that have jury trials and jurisdictions that do not, to civil and to common law jurisdictions. The meaning given to miscarriage of justice should be one that is capable of application to the systems of criminal justice of the other parties to the covenant. I have not found any other extrinsic material to be of assistance. In Mullen Lord Bingham at para 9(3) considered the jurisprudence of the United Nations Human Rights Committee and concluded that this did not assist. He reached the same conclusion in relation to the explanatory report of the Steering Committee for Human Rights in relation to article 3 of the Seventh Protocol to the European Convention on Human Rights. I agree with Lord Bingham for the reasons which he gave. Mullen I now turn to consider the decision of the House of Lords in Mullen. This task has been undertaken in a little detail by Lord Hope, which shortens the comments that I wish to make on this decision. The reason why the appeal in Mullen did not succeed was that the House of Lords were unanimous in holding that the abuse of power that had led to the quashing of Mr Mullens conviction did not fall within the definition of miscarriage of justice, whatever the meaning of that phrase. At para 8 Lord Bingham said: It is for failures of the trial process that the Secretary of State is bound, by section 133 and article 14(6), to pay compensation. On that limited ground I would hold that he is not bound to pay compensation under section 133. It was this statement that led Mr Owen to advance, initially, an argument that section 133 was directed at some failure in the trial process. This led him to submit that if, after an impeccably conducted trial, the discovery of DNA evidence demonstrated conclusively that the convicted defendant was innocent, no claim for compensation would lie under section 133. He was right subsequently to acknowledge that this could not be correct, but that acknowledgement raised a question as to the validity of Lord Binghams observation that section 133 applied to failures of the trial process. I also question that statement. It is not the failure of the trial process that constitutes a miscarriage of justice, but the wrongful conviction that may be caused by it. A wrongful conviction is capable of amounting to a miscarriage of justice whether or not it has been caused by a failure of the trial process. I do not believe that Lord Bingham can have intended to exclude from the ambit of section 133 convictions quashed as the result of the discovery of new facts in circumstances where there has been no failure of the trial process. That, I believe, is the situation with which section 133 is, at least primarily, concerned. There is a question as to the assistance that is to be derived from the following earlier comments in para 4 of Lord Binghams judgment: The expression wrongful convictions is not a legal term of art and it has no settled meaning. Plainly the expression includes the conviction of those who are innocent of the crime of which they have been convicted. But in ordinary parlance the expression would, I think, be extended to those who, whether guilty or not, should clearly not have been convicted at their trials. It is impossible and unnecessary to identify the manifold reasons why a defendant may be convicted when he should not have been. It may be because the evidence against him was fabricated or perjured. It may be because flawed expert evidence was relied on to secure conviction. It may be because evidence helpful to the defence was concealed or withheld. It may be because the jury was the subject of malicious interference. It may be because of judicial unfairness or misdirection. In cases of this kind, it may, or more often may not, be possible to say that a defendant is innocent, but it is possible to say that he has been wrongly convicted. The common factor in such cases is that something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted. In R (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin) at para 25 I stated that in this passage Lord Bingham was identifying the types of miscarriage of justice that would fall within section 133. On reflection I believe that I was wrong. As Lord Hope has pointed out in para 90 Lord Bingham was discussing the meaning of wrongful conviction in the context of the previous ex gratia scheme. There is a further point to be made in relation to para 4 of Lord Binghams speech. He has included in the catalogue of cases resulting in the conviction of someone who should not have been convicted the case of a judicial misdirection. A judicial misdirection could not be a new or newly discovered fact, but if it were it would fall into Dyson LJs third category. So might a conviction based on flawed expert evidence: see R (Allen) (formerly Harris)) v Secretary of State for Justice [2008] EWCA Civ 808; [2009] 2 All ER 1. Thus para 4 would appear to embrace all four of Dyson LJs categories. In para 9 Lord Bingham observed, when considering section 133, that, while miscarriage of justice can be used to describe the conviction of the demonstrably innocent, it can be and has been used to describe cases in which defendants, guilty or not, certainly should not have been convicted. This also has been treated by some as expressing Lord Binghams view of the scope of section 133, but I do not think that it is clear that this was so. In these circumstances, I agree with Lord Hope that Lord Binghams speech does not provide significant positive assistance in interpreting miscarriage of justice in section 133. It is of assistance in respect of his comments on Lord Steyns answer to that question. Lord Steyns conclusion in Mullen that miscarriage of justice was restricted to the conviction of an innocent person was largely founded on his misreading of the French text of article 14(6) and of the position in France. Shorn of that support, his speech does not provide compelling justification for his conclusion. For all these reasons I do not believe that Mullen helps very much in determining the meaning of miscarriage of justice in section 133. The cases that have followed Mullen, including those before this Court, have proceeded on the basis that Lord Bingham had laid down an alternative test to that of Lord Steyn, and concluded, in each case, that neither test was satisfied. In the circumstances there is nothing to be gained by considering those decisions. I agree with Lord Hope that a fresh approach is required. I propose to adopt the four categories identified by Dyson LJ as the framework for discussion. The nature of the exercise The wording of section 133, following that of article 14(6), might suggest that the terms of the judgment of the court that reverses the conviction will establish whether the entitlement to compensation has been made out. It speaks of a conviction being reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice (emphasis added). That is not, however, the test for quashing a conviction in this jurisdiction. The words on the ground that must, if they are to make sense, be read as in circumstances where. Section 133(1) provides that the compensation will be paid by the Secretary of State, and section 133(2) provides for a two year time limit for application for compensation to the Secretary of State. Thus it is for the Secretary of State to decide whether the requirements of section 133 are satisfied, an exercise which is, of course, subject to judicial review. The Secretary of State first has to consider whether a new or newly discovered fact has led to the quashing of a conviction. If it has, he then has to consider whether that fact shows beyond reasonable doubt that there has been a miscarriage of justice, applying the true meaning of that phrase. The Secretary of State will plainly have regard to the terms of the judgment that quashes the conviction, but ultimately he has to form his own conclusion on whether section 133 is satisfied. The object of the exercise I think that the primary object of section 133, as of article 14(6), is clear. It is to provide entitlement to compensation to a person who has been convicted and punished for a crime that he did not commit. But there is a subsidiary object of the section. This is that compensation should not be paid to a person who has been convicted and punished for a crime that he did commit. The problem with achieving both objects is that the quashing of a conviction does not of itself prove that the person whose conviction has been quashed did not commit the crime of which he was convicted. Thus it is not satisfactory to make the mere quashing of a conviction the trigger for the payment of compensation. It was this problem which led to the adoption of the imprecise language of article 14(6), which has been reproduced in section 133. In interpreting section 133 it is right to have in mind the two conflicting objectives. It is necessary to consider whether the wording of the section permits a balance to be struck between these two objectives and, if so, how and where that balance should be struck. I turn to consider Dyson LJs four categories having in mind these considerations. I shall deviate from the order in which he set them out. Category 4: where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted This category is derived from Lord Binghams speech in Mullen. As I have explained, I do not believe that he put it forward as falling within the scope of section 133. As I understand it, the category embraces an abuse of process so egregious that it calls for the quashing of a conviction, even if it does not put in doubt the guilt of the convicted person. I would not interpret miscarriage of justice in section 133 as embracing such a situation. It has no bearing on what I have identified as the primary purpose of the section, which is the compensation of those who have been convicted of a crime which they did not commit. If it were treated as falling within section 133 this would also be likely to defeat the subsidiary object of section 133, for it would result in the payment of compensation to criminals whose guilt was not in doubt. Category 3: Fresh evidence rendering the conviction unsafe Dyson LJ propounded this test as requiring consideration of whether a fair minded jury could properly convict if there were to be a trial which included the fresh evidence. This raises the question, which I shall consider further when I come to category 2, of whether section 133 requires the Secretary of State to consider the reaction to fresh evidence of a fair minded jury. Put another way, the situation under consideration is one where the fresh evidence reduces the strength of the case that led to the claimants conviction, but does not diminish it to the point where there is no longer a significant case against him. I would not place this category within the scope of section 133 for two reasons. The first is that it gives no sensible meaning to the requirement that the miscarriage of justice must be shown beyond reasonable doubt, or conclusively in the wording of article 14(6). It makes no sense to require that the new evidence must show conclusively that the case against the claimant is less compelling. It is tantamount to requiring the Secretary of State to be certain that he is uncertain of the claimants guilt. My second reason is that, if category 3 were adopted as the right definition of miscarriage of justice, it would not strike a fair balance between the two objectives of section 133. The category of those who are convicted on evidence which appears to establish guilt beyond reasonable doubt, but who have their convictions quashed because of fresh evidence that throws into question the safety of their convictions, will include a significant number who in fact committed the offences of which they were convicted. This is the inevitable consequence of a system which requires guilt to be proved beyond reasonable doubt. When these two factors are considered together they lead to the conclusion that section 133 does not, on its true interpretation, apply to category 3. Category 1: Fresh evidence that shows clearly that the defendant is innocent of the crime of which he was convicted Having considered the categories which were at one extremity of Dyson LJs list, I now turn to the category at the other. Plainly section 133 will embrace this category, but does it provide the exclusive definition of miscarriage of justice in that section? There are a number of points to be made in favour of this suggestion. The first is that it gives section 133 a perfectly natural and logical meaning, indeed it is the meaning that the man in the street would be likely to accord to the wording of section 133. More particularly, if miscarriage of justice is read as meaning the conviction of someone who is innocent, it makes perfect sense of the requirement that the new fact should prove this beyond reasonable doubt. Next it gives section 133 a meaning which is eminently practicable. Objection has been made to category 1 on the ground that it is not the role of the Court of Appeal, when reviewing a conviction, to rule whether the defendant is innocent of the crime of which he was convicted. In R v McIlkenny (1991) 93 Cr App R 287, 311 Lloyd LJ observed that the Court of Appeal was neither obliged nor entitled to state that an appellant was innocent. Its task was simply to decide whether the verdict of the jury could stand. He described this as a point of great constitutional importance. I think that he was right. The point was well put by the Court of Appeal for Ontario in R v Mullins Johnson 2007 ONCA 720; 87 OR (3d) 425. The appellant had been convicted of murder of his 4 year old niece and served 12 years in prison. His conviction was based on expert evidence that the autopsy indicated that the young girl had been sexually abused and suffocated. Subsequent medical evidence totally discredited the evidence given at the trial, so that it became clear that there was no reliable pathological evidence either of sexual abuse or of homicidal asphyxia of the child. The case was referred to the Court of Appeal on terms that it should treat it as an appeal on fresh evidence. In a passage which merits citation in full, the Court explained why it would not be proper for it in these circumstances to make a declaration that the appellant was in fact innocent: 22 The fresh evidence shows that the appellants conviction was the result of a rush to judgment based on flawed scientific opinion. With the entering of an acquittal, the appellants legal innocence has been re established. The fresh evidence is compelling in demonstrating that no crime was committed against Valin Johnson and that the appellant did not commit any crime. For that reason an acquittal is the proper result. 23 There are not in Canadian law two kinds of acquittals: those based on the Crown having failed to prove its case beyond a reasonable doubt and those where the accused has been shown to be factually innocent. We adopt the comments of the former Chief Justice of Canada in The Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons, Randy Druken, Annex 3, pp. 342: [A] criminal trial does not address factual innocence. The criminal trial is to determine whether the Crown has proven its case beyond a reasonable doubt. If so, the accused is guilty. If not, the accused is found not guilty. There is no finding of factual innocence since it would not fall within the ambit or purpose of criminal law. 24 Just as the criminal trial is not a vehicle for declarations of factual innocence, so an appeal court, which obtains its jurisdiction from statute, has no jurisdiction to make a formal legal declaration of factual innocence. The fact that we are hearing this case as a Reference under section 696.3(3)(a)(ii) of the Criminal Code does not expand that jurisdiction. The terms of the Reference to this court are clear: we are hearing this case as if it were an appeal. While we are entitled to express our reasons for the result in clear and strong terms, as we have done, we cannot make a formal legal declaration of the appellants factual innocence. 25 In addition to the jurisdictional issue, there are important policy reasons for not, in effect, recognizing a third verdict, other than guilty or not guilty, of factually innocent. The most compelling, and, in our view, conclusive reason is the impact it would have on other persons found not guilty by criminal courts. As Professor Kent Roach observed in a report he prepared for the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell, there is a genuine concern that determinations and declarations of wrongful convictions could degrade the meaning of the not guilty verdict (p 39). To recognize a third verdict in the criminal trial process would, in effect, create two classes of people: those found to be factually innocent and those who benefited from the presumption of innocence and the high standard of proof beyond a reasonable doubt. But the decision whether there has been a miscarriage of justice within section 133 is not for the court but for the Secretary of State. He should have no difficulty in deciding whether new evidence that has led to the quashing of a conviction shows beyond reasonable doubt that the defendant was innocent of the crime of which he was convicted. Where the prosecution has satisfied the jury beyond reasonable doubt that a defendant is guilty, evidence that demonstrates beyond reasonable doubt that he was in fact innocent will not be equivocal. Even though it is not for the Court of Appeal, when quashing the conviction, to express its opinion that the defendant is innocent, the reasons given for quashing the conviction are unlikely to leave any doubt of this, just as was the position in Mullins Johnson. The other obvious point in favour of category 1 is that it precludes all possibility of a defendant who in fact committed the crime of which he was convicted receiving compensation for the consequences of his conviction. If this is to be treated as being of paramount importance, then category 1 is the only satisfactory interpretation of section 133. The Law Commission of New Zealand in its 1998 Report No 49 on Compensating the Wrongly Convicted advised at para 127 A requirement to prove innocence is, however, necessary to prevent the guilty claimant, acquitted on a technicality, from profiting from the crime. It recognises that it is a persons innocence which provides the justification for compensation in the first place. This brings me to the last point that is advanced in favour of category 1. It is argued that it is not in practice possible to draw a line between category 2 and category 3. Unless category 1 is adopted as the correct interpretation of section 133, defendants whose convictions are quashed on technicalities will profit from compensation. I shall consider this argument when I deal with category 2. The first argument against restricting the ambit of section 133 to category 1 is that the parties to article 14(6) voted against an amendment which would have done this. The second is that this will deprive some defendants who are in fact innocent and who succeed in having their convictions quashed on the grounds of fresh evidence from obtaining compensation. It will exclude from entitlement to compensation those who no longer seem likely to be guilty, but whose innocence is not established beyond reasonable doubt. This is a heavy price to pay for ensuring that no guilty person is ever the recipient of compensation. Does category 2, or some similar formulation of miscarriage of justice, provide a more satisfactory approach to the desire to provide compensation to the innocent without rewarding the guilty that both accords with the language of the section and is workable in practice? Category 2: Fresh evidence such that, had it been available at the trial no reasonable jury could convict the defendant This category applies to the evidence, including the fresh evidence, the test that a judge has to apply when considering an application at the end of the prosecution case for dismissal of a charge on the ground that the defendant has no case to answer. It focuses on the evidence before the jury. If the fresh evidence were always evidence of primary fact, or new expert evidence, the test might be satisfactory. The position is not, however, as simple as that. The new evidence that leads to the quashing of a conviction is very often not primary evidence that bears directly on whether the defendant committed the crime of which he was convicted, but evidence that bears on the credibility of those who provided the primary evidence on which he was convicted. Both of the appeals before the Court fall into this category. So does the example of category 2 given by Dyson LJ: fresh evidence which undermines the creditworthiness of the sole witness for the prosecution. Here one can run into a problem that is peculiar to the criminal procedures that apply in common law jurisdictions. Under common law procedures the evidence that is permitted to be placed before the jury is screened by a number of rules that are designed to avoid the risk that the jury will be unfairly prejudiced and to ensure that the trial is fair. Thus section 78 of the Police and Criminal Evidence Act 1984 gives the judge a general jurisdiction to exclude evidence on the grounds of fairness and section 76A of the same Act contains a little code governing the admissibility of a confession. So does section 8(2) of the Northern Ireland (Emergency Provisions) Act 1978, which was applicable to the critical evidence adduced against the defendants in the second appeal. Often it will be appropriate for the judge to hold a voir dire in order to decide whether or not evidence can be admitted. The question of whether there is evidence upon which a jury can properly convict is taken after the judge has screened from the jury evidence which, under the relevant procedural code, he has ruled to be inadmissible. That is often a difficult judicial task. I do not believe that section 133 should be so interpreted as to impose on the Secretary of Sate the task of deciding whether the fresh evidence would have rendered inadmissible the primary evidence to which it related, in order to answer the question whether there would have been a case upon which a reasonable jury could convict. There is a further difficulty with category 2. The question of whether a reasonable jury could properly convict falls to be answered having regard to the fact that a jury must be satisfied of guilt beyond reasonable doubt. Section 133 requires the Secretary of State to be satisfied beyond reasonable doubt that a miscarriage of justice has occurred. Category 2 thus operates as follows: compensation will be payable where the Secretary of State is satisfied beyond reasonable doubt that no reasonable jury could have been satisfied beyond reasonable doubt that the defendant was guilty. This does not seem a very sensible test. The final point to make about category 2 is that it applies a test the result of which depends critically on common law procedural rules. As the test is derived from article 14(6), it would be preferable if it were one more readily applicable in other jurisdictions. For these reasons I do not consider the second category, as formulated by Dyson LJ, provides a satisfactory definition of miscarriage of justice. I would replace it with a more robust test of miscarriage of justice. A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it. This is a matter to which the test of satisfaction beyond reasonable doubt can readily be applied. This test will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt. I find this a more satisfactory outcome than that produced by category 1. I believe that it is a test that is workable in practice and which will readily distinguish those to whom it applies from those in category 3. It is also an interpretation of miscarriage of justice which is capable of universal application. Retrial The provisions in relation to retrial introduced into section 133 in the circumstances described by Lord Hope at paras 103 and 104 of his judgment raise a problem. A retrial will only be ordered where, although it quashes the defendants conviction on the grounds of fresh evidence, the Court of Appeal considers that there remains a case against him that is fit for trial. Assuming that they are correct in that view, the fresh evidence could never fall within the scope of section 133 if it is right to interpret that section as being limited to either category 1 or category 2, as formulated by Dyson LJ or as I have reformulated it. The introduction into the section of the provisions in relation to retrial would make more sense if section 133 embraced category 3. In that case, however, one might have expected compensation to be payable automatically if the retrial ended in an acquittal, but the amended section 133 does not so provide. It does not follow, however, that category 1 or category 2 cannot stand with section 133, as amended. Entitlement to compensation does not turn on the view that the Court of Appeal takes of the new evidence. The defendant may contend, even where a retrial is ordered, that the fresh evidence proves his innocence. Although the Court of Appeal is not persuaded of this, it may become apparent in the course of the retrial that the defendant is correct. Thus the provisions in relation to retrial make sense, even if category 1 or category 2 represents the correct interpretation of miscarriage of justice. Article 6(2) of the European Convention on Human Rights The Strasbourg Court has stated that one of the functions of article 6(2) is to protect an acquitted persons reputation from statements or acts that follow an acquittal which would seem to undermine it see Taliadorou and Stylianou v Cyprus (Application Nos 39627/05 and 39631/05) (unreported) 16 October 2008, at para 26. The Courts expansion of what would seem to be a rule intended to be part of the guarantee of a fair trial into something coming close to a principle of the law of defamation is one of the more remarkable examples of the fact that the Convention is a living instrument. Mr Owen QC for Mr Adams referred the Court to a series of decisions of the Strasbourg Court in which it was held to be a violation of article 6(2) for a state to refuse compensation to which an applicant who had been held in preventative detention was normally entitled on acquittal at the end of a criminal trial on the ground that his acquittal did not establish his innocence. Lord Hope has summarised the details and effect of those authorities. Mr Owen argued that their effect was that, once Mr Adams conviction had been quashed, he was entitled to be treated as innocent in the context of his claim for compensation. A rather different argument based on article 6(2) was rejected by Lord Steyn in Mullen at para 44. Mr Owen first advanced the present argument when appearing for the claimant in R(Allen) (formerly Harris)) v Secretary of State for Justice [2009] 2 All ER 1. In that case the claimants claim for compensation under section 133 was rejected on the grounds that his case satisfied neither Lord Steyns test in Mullen nor the test that Lord Bingham had been thought to advance in that case. Giving the only reasoned judgment, Hughes LJ comprehensively rejected Mr Owens argument based on article 6(2) for a series of ten reasons. On the present appeals Lord Hope has held that reliance on article 6(2) is misplaced for reasons that have much in common with those of Hughes LJ. I agree with both of them. I would add this. The appellants claims are for compensation pursuant to the provisions of section 133. On no view does that section make the right to compensation conditional on proof of innocence by a claimant. The right to compensation depends upon a new or newly discovered fact showing beyond reasonable doubt that a miscarriage of justice has occurred. Whatever the precise meaning of miscarriage of justice the issue in the individual case will be whether it was conclusively demonstrated by the new fact. The issue will not be whether or not the claimant was in fact innocent. The presumption of innocence will not be infringed. Newly discovered fact Mr Adams appeal raises a second issue. Were the facts that led to the quashing of his conviction newly discovered despite the fact that they were contained in documents disclosed to his legal representatives before his trial or available on the Holmes database? The phrase newly discovered raises a further difficult problem of interpretation, for it does not indicate to whom the discovery must be new. Procedure Act 1993. Section 9(6) of that Act provides: Ireland has given effect to article 14(6) by section 9 of the Criminal newly discovered fact means ( a ) where a conviction was quashed by the Court on an application under section 2 or a convicted person was pardoned as a result of a petition under section 7, or has been acquitted in any re trial, a fact which was discovered by him or came to his notice after the relevant appeal proceedings had been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings. I would adopt this generous interpretation of newly discovered fact. Section 133(1), following the almost identical wording of article 14(6), ends with the proviso : unless the non disclosure of the unknown fact was wholly or partly attributable to the person convicted. This proviso is significant in more than one way. First, the use of the word non disclosure would seem to equate the new discovery with disclosure. The latter word has a broad ambit and, in context, suggests to me the bringing of a fact into the public domain and, in particular, the disclosure of that fact to the court. Secondly, I read the provision as excluding a right to compensation where the person convicted has deliberately prevented the disclosure of the relevant fact, or where the non discovery of that fact is otherwise attributable to his own fault. We are envisaging a situation where a claimant has been convicted, and may well have served a lengthy term of imprisonment, in circumstances where it has now been discovered that a fact existed which either demonstrates that he was innocent or, at least, undermines the case that the prosecution brought against him. If he was aware of this fact but did not draw it to the attention of his lawyers, and he did not deliberately conceal it (which would bring the fact within the proviso), this will either be because the significance of the fact was not reasonably apparent or because it was not apparent to him. Many who are brought before the criminal courts are illiterate, ill educated, suffering from one or another form of mental illness or of limited intellectual ability. A person who has been wrongly convicted should not be penalised should this be attributable to any of these matters. It is for those reasons that I would adopt the same interpretation of newly discovered fact as the Irish legislature. Conclusions It has always been common ground that Mr Adams case falls into category 3. The newly discovered facts (as I would hold them to be) in his case do not show that a miscarriage of justice has occurred within the meaning that I would give to that phrase in section 133. Accordingly, I would dismiss his appeal. The newly discovered facts in the case of Mr McCartney and Mr MacDermott, as described by Lord Kerr, so undermine the evidence against them that no conviction could possibly be based upon it. There can be no reasonable doubt of this. Accordingly I would allow their appeal and hold that they are entitled to compensation pursuant to the provisions of section 133. LORD HOPE I accept with gratitude Lord Phillips description of the facts in the case of Andrew Adams and Lord Kerrs description of the facts in the cases of Eamonn MacDermott and Raymond McCartney. With that advantage I can go straight to the issues of principle that these cases have raised. Mention should also be made of Barry George, who was granted permission to intervene in this appeal. On 2 July 2001 he was convicted of the murder on 26 April 1999 of the television presenter Jill Dando, who was killed by a single shot to the head as she was about to enter her home in Fulham. His appeal against conviction was dismissed on 29 July 2002: [2002] EWCA Crim 1923. A major part of the Crowns case against him was that a single particle of firearms discharge, which matched particles found in the cartridge case of the bullet which killed Miss Dando, in her coat and in samples of her hair, had been found nearly 12 months later in the pocket of a coat owned and worn by Mr George. Following a review of his case, the Criminal Cases Review Commission decided to refer his conviction to the Court of Appeal under section 9 of the Criminal Appeal Act 1995 on the ground that new evidence called into question the evidence at the trial about the firearms discharge and the significance that had apparently been attached to that evidence. New reports obtained from the Forensic Science Service had shown that it had no evidential value in the case against Mr George. On 15 November 2007 the Court of Appeal quashed the conviction and ordered a retrial: [2007] EWCA Crim 2722. The evidence of the firearms discharge was not admitted at the trial. On 1 August 2008 the jury by a unanimous verdict found Mr George not guilty. On the day of the acquittal the Crown Prosecution Service issued a press statement in which it was stated that Mr George now had the right to be regarded as an innocent man. On 7 October 2009 Mr George applied for compensation under section 133 of the Criminal Justice Act 1988. By letter dated 15 January 2010 the Secretary of State for Justice told Mr George that he was not prepared to authorise an award of compensation as the new forensic evidence did not prove beyond reasonable doubt that he was innocent. He referred to the fact that in its judgment of 15 November 2007 the Court of Appeal stated that in the absence of the evidence of the firearms discharge there was circumstantial evidence capable of implicating Mr George, and that it had ordered a retrial which defence counsel conceded should take place. Mr George applied for judicial review of that decision on 14 April 2010. On 25 August 2010 Collins J granted permission. But he stayed the proceedings pending the decision of this Court as to the meaning of miscarriage of justice in section 133 of the 1988 Act. Mr Glen QC for Mr George submitted that it was sufficient to entitle a person to an award of compensation under that section that his conviction had been reversed on the ground of a new or newly discovered fact and that, in the event of his being subjected to a retrial, he had been acquitted of the offence. As that was what had happened in his case it should be made clear by this Court in its judgment that, where a person had suffered punishment in such circumstances, compensation should be paid to him under the scheme that had been set up by the statute. With that introduction I can go straight to the issues of principle that these cases have raised. Background The background to the introduction of a statutory right to compensation for miscarriages of justice by section 133 of the Criminal Justice Act 1988 was described in In re McFarland [2004] UKHL 17, [2004] 1 WLR 1289, paras 6 9 by Lord Bingham of Cornhill and R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18, [2005] 1 AC 1, paras 25 28 by Lord Steyn. Lord Bingham drew attention in McFarland, para 6, to the underlying principles. In any liberal democratic state there will be those who are accused of crime and are acquitted at trial, or whose convictions are reversed following an appeal. Those affected will have suffered the stigma of being accused and the trauma of standing trial and of imprisonment before the process is brought to an end. In principle it might seem that the state, which initiated the unsuccessful prosecution, should compensate those who have been acquitted, or at least some of them. How this was to be done and in what circumstances was much debated before the current system was adopted: see David Harris, The Right to a Fair Trial in Criminal Proceedings as a Human Right (1967) 16 ICLQ 352, 372 375. It was, as Lord Steyn said in Mullen, para 52, a process of evolution. First, there was the adoption on 16 December 1966 of the International Covenant on Civil and Political Rights (the ICCPR), article 14(6) of which made provision for what it described as compensation according to law to a person whose conviction had been reversed or had been pardoned in the circumstances to which it referred and who had suffered punishment as a result of such a conviction. The ICCPR was ratified by the United Kingdom on 20 May 1976. On 29 July 1976 the Home Secretary (Mr Roy Jenkins) set out in a written answer the procedure which was being adopted for the making of ex gratia payments in recognition of the hardship caused by what he referred to as a wrongful conviction: Hansard (HC Debates), WA cols 328 330. Three weeks later, on 20 August 1976, the ICCPR entered into force. Thereafter the United Kingdom continued to fulfil its international obligations under article 14(6) under the ex gratia scheme. The scheme was put onto a more formal basis on 29 November 1985: see Hansard (HC Debates), WA cols 689 690. The then Home Secretary (Mr Douglas Hurd) said that he would be prepared to pay compensation where this was required by the international obligations, and that he remained prepared to pay compensation to people who did not fall within the terms of article 14(6) but who had spent a period in custody following a wrongful conviction or charge, where he was satisfied that it had resulted from serious default on the part of a member of a police force or of some other public authority. He said that the Secretary of State for Northern Ireland intended to follow a similar practice. A similar scheme was already in operation in Scotland. There was however international pressure on the United Kingdom to put its obligations under article 14(6) on a statutory footing: see R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18, [2005] 1 AC 1, para 28 by Lord Steyn. The response to it was section 133 of the Criminal Justice Act 1988. The new statutory right superseded in part the existing scheme for ex gratia payments, which remained in being until April 2006, when it was terminated both in England and Wales and Northern Ireland. This has had the inevitable, but unfortunate, consequence that claimants in those jurisdictions are now dependent solely upon the scheme provided by the statute. The ex gratia scheme which has been operated in Scotland by the Scottish Ministers still remains in force there, alongside the system for the payment of compensation in respect of all reversals of convictions that fall within section 133 of the 1988 Act. This enables those against whom criminal proceedings were taken which can properly be regarded with hindsight as wrongful to be compensated even though their cases cannot be brought within the terms of the statute. The way the scheme is currently operated in England and Wales was set out by the Minister of State (Lord McNally) in a written answer which was published on 1 March 2011 (Hansard (HL Debates), WA col 318), in which he said: Compensation is paid under [section 133] where a conviction is quashed following an out of time appeal or following a reference by the Criminal Cases Review Commission to the relevant appeal court on the basis that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. Section 133 fully meets our international obligations. The Government do not operate a compensation scheme for those who have convictions quashed at in time appeals or those who are acquitted at trial. Figures disclosed by the Ministry of Justice about the number of applications received and the number of applications approved in England and Wales show that there has been a very substantial drop in the number of applications approved since the abolition of the ex gratia scheme in 2006. The system prior to that date was that all applications were considered first under section 133 and then, if not approved, were considered under the ex gratia scheme. The following table shows all applications for compensation received since May 2004 and those which were approved under section 133 : Year 2004 05 2005 06 2006 07 2007 08 2008 09 2009 10 The statutory scheme Article 14(6) of the ICCPR provides: Total Applications Received 88 74 39 40 38 37 Applications Approved Under s 133 39 21 23 7 7 1 When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non disclosure of the unknown fact in time is wholly or partly attributable to him. The wording of section 133(1) of the 1988 Act follows that of article 14(6). It provides: (1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non disclosure of the unknown fact was wholly or partly attributable to the person convicted. Subsection (2) provides that no payment of compensation is to be made unless an application for compensation is made to the Secretary of State, for which a time limit of two years beginning with the date when the persons conviction is reversed or he is pardoned was introduced in relation to England and Wales and Northern Ireland by section 61(3) of the Criminal Justice and Immigration Act 2008. Section 133(5) of the 1988 Act, as amended by paragraph 16(4) of Schedule 2 to the Criminal Appeal Act 1995, provides: In this section reversed shall be construed as referring to a conviction having been quashed or set aside (a) on an appeal out of time; or (b) on a reference (i) (ii) under section 194B of the Criminal Procedure (Scotland) Act under the Criminal Appeal Act 1995; or 1995. Subsection (5A), which was inserted in relation to England and Wales and Northern Ireland by section 61(5) of the Criminal Justice and Immigration Act 2008, provides: (5A) But in a case where (a) a persons conviction for an offence is quashed on an appeal out of time, and (b) the person is to be subject to a retrial, the conviction is not to be treated for the purposes of this section as reversed unless and until the person is acquitted of all offences at the retrial or the prosecution indicates that it has decided not to proceed with the retrial. To be entitled to compensation under section 133(1) the claimant must show that he has been convicted of a criminal offence and that subsequently his conviction has been reversed on an appeal out of time or on a reference by the CCRC, or he has been pardoned: on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. The words that I have quoted from the subsection differ from the equivalent part of article 14(6) of the ICCPR in one respect only. The statute uses the phrase beyond reasonable doubt where article 14(6) uses the word conclusively. One might have thought at first sight that, when applications for compensation were made to the Secretary of State, such simple wording could be applied to each case without much difficulty. But that has proved not to be the case, as can be seen from the speeches in R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1, where the meaning of the words miscarriage of justice was under scrutiny. Lord Bingham said that he would hesitate to accept the submission of the Secretary of State that section 133 obliged him to pay compensation only when a defendant, finally acquitted in the circumstances satisfying the statutory conditions, is shown beyond reasonable doubt to be innocent of the crime of which he had been convicted: para 9. Lord Steyn, on the other hand, said that the words miscarriage of justice extend only to cases where the person concerned is acknowledged to be clearly innocent: para 56. Then there are the words new or newly discovered fact. What is a fact for this purpose? And to whom does it have to be new or by whom does it have to be newly discovered? The meaning of those words is in issue in the appeal by Adams, whose conviction was reversed because of a failure by his representatives to make themselves aware of and make use of three pieces of important material at his trial which had been made available to them by the prosecution but of which Adams himself was not aware. The issue as to what is meant by the words miscarriage of justice is common to his appeal and the appeals of MacDermott and McCartney. It will be convenient to examine this issue first. Miscarriage of justice Attempts have been made in subsequent cases to reconcile the differing views as to the meaning of miscarriage of justice that were expressed in Mullen: see R (Murphy) v Secretary of State for the Home Department [2005] EWHC 140 (Admin), [2005] 1 WLR 3516; R (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin); In re Boyles Application [2008] NICA 35; R (Allen) (formerly Harris) v Secretary of State for Justice [2008] EWCA Civ 808, [2009] 2 All ER 1; R (Siddall) v Secretary of State for Justice [2009] EWHC 482 (Admin). In the Court of Appeal in Adamss case Dyson LJ said that, like Lord Phillips of Worth Matravers CJ in Cliberys case and Richards J in Murphy, he did not propose to express a view as to whether Lord Binghams interpretation was to be preferred to that of Lord Steyn: R (Adams) v Secretary of State for the Home Department [2009] EWCA Civ 1291, [2010] QB 460, para 42. The assumption has been that Lord Binghams reference in para 4 of his speech in Mullen to something having gone seriously wrong in the investigation of the offence or the conduct of the trial could be taken as a test of whether the right to compensation under section 133 was available that could sit alongside that preferred by Lord Steyn. In Allen, para 26 Hughes LJ said that this was made the plainer by Lord Binghams references to a defendant who should clearly not have been convicted in para 4 and who certainly should not have been convicted in para 9(1). Dyson LJ set the scene for a discussion of this issue in these appeals in para 19 of his judgment in R (Adams) v Secretary of State for the Home Department [2009] EWCA Civ 1291, [2010] QB 460, when he said: The question what is meant by miscarriage of justice has not been resolved by the courts. As Toulson LJ said when giving permission to appeal in the present case, there are at least three classes of case where the Court of Appeal allows an appeal against conviction on the basis of fresh evidence. I shall call them category 1, category 2 and category 3 cases. A category 1 case is where the court is sure that the defendant is innocent of the crime of which he has been convicted. An obvious example is where DNA evidence, not obtainable at the trial, shows beyond reasonable doubt that the defendant was not guilty of the offence. A category 2 case is where the fresh evidence shows that he was wrongly convicted in the sense that, had the fresh evidence been available, no reasonable jury could properly have convicted. An example is where the prosecution case rested entirely on the evidence of a witness who was put forward as a witness of truth and fresh evidence undermines the creditworthiness of that witness, so that no fair minded jury could properly have convicted on the evidence of that witness. It does not follow in a category 2 case that the defendant was innocent. A category 3 case is where the fresh evidence is such that the conviction cannot be regarded as safe, but the court cannot say that no fair minded jury could properly convict if there were to be a trial which included the fresh evidence. The court concludes that a fair minded jury might convict or it might acquit. There is a fourth category of case to which Lord Bingham referred in R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1. This is where a conviction is quashed because something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted. This list of the different types of case where appeals are allowed according to the practice of the Court of Appeal (Criminal Division) was used in argument to focus the positions adopted by either side in these appeals. It was assisted later in the judgment by an acknowledgment that there were two limbs to Lord Binghams interpretation as set out in his speech in Mullen, para 4: [2010] QB 460, para 43. The first limb was where the person was innocent of the crime of which he had been convicted: category 1 according to Toulson LJs analysis. The second limb was where something had gone seriously wrong in the investigation or the conduct of the trial and the person should clearly not have been convicted. For the Secretaries of State it was submitted that only cases falling within category 1 would satisfy the requirements of section 133(1). For Adams Mr Owen QC submitted that it was not possible to draw a clear line between categories 2 and 3, so it was sufficient for him to bring his case within category 3. In any event, he submitted that Lord Binghams interpretation of the phrase in his second limb in Mullen was to be preferred, that proof of innocence was not required and that his case came within category 4. Counsel for the appellants McCartney and MacDermott submitted that Lord Binghams interpretation was to be preferred, and that their cases too fell within his second limb and category 4. It would be wrong to regard the way these categories were identified and described by the Court of Appeal as a substitute for looking at the language of section 133(1) itself and reaching our own view as to its effect. Lord Bingham said in R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1, para 2 that he would allow the Secretary of States appeal on a narrow ground which made it unnecessary for him to reach a concluded view as to whether the right to compensation under the statute was available only to those who were innocent of the crime of which they had been convicted. We do not have that luxury in the cases that are before us in these appeals. A choice has to be made. It is time to take a fresh look at the arguments. Our task is made less onerous, although no less difficult, by the fact that the materials that were said to be relevant were discussed so fully by Lord Bingham and Lord Steyn in Mullen. It is striking how little assistance they were able to derive from the materials that were before the House. On many points both Lord Steyn and Lord Bingham were in agreement. They were agreed that the wording of section 133(1) was intended, as Lord Bingham put it in para 9, to reflect article 14(6). In para 5 he said that the parties were rightly agreed that the key to interpretation of section 133 was a correct understanding of article 14(6). They were also agreed that, as Lord Bingham said in para 9(1), the expression miscarriage of justice is not a legal term of article Taken on its own and out of context, it has no settled meaning. Lord Steyn said that the expression had to be looked at in the relevant international context, and that the only relevant context here was the international meaning of the words in article 14(6) on which section 133 is based: para 36. The question then was, what did the materials reveal as to its international meaning? The travaux prparatoires disclosed no consensus of opinion on the meaning to be given to it. Lord Steyn said that they were neutral and did not assist in any way on the proper construction of article 14(6): para 54. Lord Bingham seems to have seen this as a possible pointer towards a more generous interpretation. He said that the expression miscarriage of justice may have commended itself because of the latitude of interpretation that it offered: para 9(2). But this was no more than a straw in the wind. The jurisprudence of the United Nations Human Rights Committee was of little assistance either indeed, Lord Steyn does not mention it at all. And there was no consensus of academic opinion on the issue. In this situation Lord Steyn resorted first to an examination of article 14(6) on its own terms: para 45. Lord Bingham did not undertake this exercise. Instead he took as his starting point the statements that Mr Jenkins and Mr Hurd made when they were explaining the ex gratia scheme to Parliament: para 4. As he said at the outset of this paragraph, they were addressing the subject of wrongful convictions and charges. He observed that, like the expression miscarriage of justice, the expression wrongful convictions is not a legal term of art and it has no settled meaning. He then set out to describe in some detail the situations to which in ordinary parlance, as he put it, the expression would be taken to extend. Here we find the first and second limbs, as Dyson LJ in the Court of Appeal described them at [2010] QB 460, para 43, set out. The first is the conviction of those who are innocent of the crime of which they were convicted. The second embraces cases where those who, whether guilty or not, should not have been convicted. The manifold reasons where this might happen were impossible and unnecessary to identify. The common factor however was that something had gone seriously wrong in the investigation of the offence or the conduct of the trial. It is important not to lose sight of the fact that Lord Bingham was not seeking in para 4 to describe what, in the context of article 14(6), was meant by the expression miscarriage of justice. He was concentrating here on the expression wrongful conviction in the statements about the ex gratia scheme. He did not refer to the fact that it is a precondition of the right to compensation under article 14(6), and in its turn section 133, that the conviction was reversed because of a new or newly discovered fact. The descriptions of the ex gratia scheme did not mention this as a prerequisite. Quite what part this discussion had to play in the interpretation of article 14(6), to which he turned in para 5, is unclear. He took account of the fact that in the course of his statement Mr Hurd recited the terms of, and undertook to observe, article 14(6): para 5. There is an indication in that paragraph that he saw the only difference between that part of Mr Hurds statement and the enactment of section 133 as being that the right to be compensated should more obviously be, as article 14(6) requires, according to law. But, as he said at the end of that paragraph, the task of the House was to interpret section 133. He did not say and it would have been surprising if he had done that the key to this was to be found in Mr Hurds description of the cases where he was willing to pay compensation for a wrongful conviction under the ex gratia scheme. When he said at the end of para 8 that it is for failures of the trial process that the Secretary of State is bound by section 133 and article 14(6) to pay compensation, he was not offering a considered view as to what those provisions actually mean. He was explaining why, because there was no failure in the trial process, he could decide the case against Mullen on that limited ground without forming a concluded view as to what the convicted person had to show to be entitled to compensation. In R (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin), para 25, Lord Phillips of Worth Matravers CJ said that in para 4 of his speech in Mullen Lord Bingham considered two different situations, each of which he (that is, Lord Bingham) considered fell within the description of miscarriage of justice in section 133 of the 1988 Act. It is true, as Lord Phillips went on to point out, that in para 6 of his speech Lord Bingham referred to the core right with which article 14(6) is concerned as the right to a fair trial. But I think, with respect, that Lord Phillips was wrong to say that in para 4 of his speech Lord Bingham was considering what was meant by miscarriage of justice in section 133, as he himself has accepted: see para 30, above. Hughes LJ drew attention to this point in R (Allen) (formerly Harris) v Secretary of State for Justice [2009] 2 All ER 1, para 25. He said that it must be remembered that in Mullen both the statutory and the ex gratia schemes were under consideration. In my opinion the value of Lord Binghams speech in Mullen lies not in any attempt on his part to subject section 133 to textual analysis, for he did not do this. It is to be found in the reasons he gave for hesitating to accept the argument for the Secretary of State that section 133 was satisfied only when the defendant was shown beyond reasonable doubt to have been innocent of the crime of which he had been convicted, and in particular in the three points on which he disagreed with Lord Steyn. Lord Steyns textual analysis of article 14(6) begins with a warning that there was no overarching purpose of compensating all who are wrongly convicted. For the reasons he gives in para 45, the fundamental right under article 14(6) is narrowly circumscribed. There was no intention to compensate all those whose convictions were quashed within the ordinary time limits, only those whose convictions were quashed on appeal out of time. And this was only where a new or newly discovered fact showed conclusively that there had been a miscarriage of justice. Having made this point, he then concentrated in para 46 on the requirement that the new or newly discovered fact must show conclusively (or beyond reasonable doubt in the language of section 133) that there has been a miscarriage of justice. He said that this filtered out cases of two kinds, (1) where there may have been a wrongful conviction and (2) where it is only probable that there may have been a wrongful conviction. He concluded that the only relevant context pointed to a narrow interpretation, that is to say the case where innocence is demonstrated. This approach leans very heavily on the use of the word conclusively. That word certainly points towards a narrow interpretation. But it does not point inevitably to the demonstration of innocence as the only case that could qualify for compensation under the article. The fact that a person who has been pardoned is brought within the scheme does not have that effect either. It would plainly have been wrong to exclude those who are pardoned from the scheme when those whose convictions have been reversed are given the benefit of it. But the reversal of a conviction and a pardon are processes which are distinct from each other. It does not follow from the mere fact that they are both covered by the same scheme that the only reversals of convictions that can be contemplated are those which would otherwise have deserved a pardon. Lord Steyn might have examined these points more fully, had he not been persuaded by two considerations to which he then turned that he had found the right answer. The first was the use of the words une erreur judiciaire in the French text of the ICCPR. In para 47 of his speech in Mullen Lord Steyn said that this was a technical expression indicating a miscarriage of justice in the sense of the conviction of the innocent. In para 9(4) of his speech Lord Bingham expressed some unease about this, as he contrasted these words with the reference to un condamn reconnu innocent in article 626 of the French Code de Procdure Pnale. He said that the expression une erreur judiciaire could be understood as equivalent to miscarriage of justice in its broad sense, and that it was not obviously apt to denote proof of innocence. In In re Boyles Application [2008] NICA 35, para 11 Girvan LJ said that he considered that Lord Binghams hesitation in not accepting Lord Steyns stringent requirement of proof of innocence was justified. In para 12 he pointed out that the term erreur judiciaire is defined by Grard Cornu in his Vocabulaire Juridique, 7th ed (1998), as une erreur de fait commise par une juridiction de jugement dans son appreciation de la culpabilit dune personne poursuivie. In para 13 he enlarged on Lord Binghams reference to article 626 of the Code de Procdure Pnale, pointing out that it did not require proof of innocence but rather that, where a defendants conviction is quashed and he is subsequently acquitted, he is reconnu innocent in consequence in other words, the annulment of the conviction itself leads to the establishment of his innocence. Although Mr Tam QC for the Secretary of State sought to defend Lord Steyns interpretation in his written case, he accepted in the course of Mr Owens oral argument that it was probably incorrect. For my part, I think that Girvan LJs researches have shown that Lord Steyns understanding of the words une erreur judiciaire in the French text of article 14(6), for which he gave no authority, was mistaken. The second consideration on which Lord Steyn relied was an observation in para 25 of an explanatory report by the Steering Committee for Human Rights appointed by the Council of Europe which accompanied the Seventh Protocol of the European Convention when it was published in November 1984: Mullen, para 48. It said of article 3, which follows the wording of article 14(6) of the ICCPR, that the intention was that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be an acknowledgment that the person concerned was clearly innocent. Having noted that in the introduction to the report it was stated that participation in the Protocol would not affect the application of provisions containing obligations under any other international instrument, Lord Steyn said that the explanatory report nevertheless had great persuasive value in the process of interpretation. In para 9(4), on the other hand, Lord Bingham set out five reasons for thinking that this passage does not bear the weight that Lord Steyn attached to it. Among those reasons are two which seem to me to be particularly significant. First, many more states are parties to the ICCPR than to the European Convention or the Seventh Protocol, which the United Kingdom has not signed or ratified. Second, para 25 does not appear to be altogether consistent with para 23, which suggests that a miscarriage of justice occurs where there is a serious failure in the judicial process involving grave prejudice to the convicted person. Furthermore, as Lord Bingham noted in para 9(5), van Dijk and van Hoof, Theory and Practice of the European Convention on Human Rights, 3rd ed (1998), p 689 take a different view, suggesting that the explanatory reports interpretation is too strict and that reversal of the conviction on the ground that new facts have been discovered which introduce a reasonable doubt as to the guilt of the accused is enough. Lord Steyn said in para 48 that the explanatory report had great persuasive value. I think that, for the reasons Lord Bingham gives, this overstates the position. The better view is that it lends some support the Secretary of States argument, but that it must be for the court to work out for itself what the words mean. There was one further difficulty about Lord Steyns interpretation to which Lord Bingham drew attention in para 9(6). This is that courts of appeal, although well used to deciding whether convictions are safe or whether reasonable doubts exist about their safety, are not called upon to decide whether a defendant is innocent and in practice rarely do so. In R (Allen) (formerly Harris) v Secretary of State for Justice [2009] 2 All ER 1, para 40(iii) Hughes LJ said that cases where the innocence of the convicted defendant is genuinely demonstrated beyond reasonable doubt by the new or newly discovered fact will be identifiable in that court and the judgment will, in virtually every case, make this plain. I do not think that this entirely meets Lord Binghams point. I have no doubt that there will be cases of the kind that Hughes LJ describes. But it remains true that courts of appeal are not called upon to say whether or not a defendant was innocent, and it is at least questionable whether restricting the right to compensation to cases where the establishment of innocence is apparent from the courts judgment imposes too severe a test for the entitlement to compensation. A fresh analysis If one accepts, as I would do, Lord Binghams reasons for doubting whether Lord Steyn was right to find support for his reading of article 14(6) in the French text and in para 25 of the explanatory committees report on article 3 of the Seventh Protocol, one is driven back to the language of the article itself as to what the words miscarriage of justice mean. Taken by itself this phrase can have a wide meaning. It is the sole ground on which convictions can be brought under review of the High Court of Justiciary in Scotland: Criminal Procedure (Scotland) Act 1995, section 106(3). But the fact that these words are linked to what is shown conclusively by a new or newly discovered fact clearly excludes cases where there may have been a wrongful conviction and the court is persuaded on this ground only that it is unsafe. It clearly includes cases where the innocence of the defendant is clearly demonstrated. But the article does not state in terms that the only criterion is innocence. Indeed, the test of innocence had appeared in previous drafts but it was not adopted. I would hold, in agreement with Lord Phillips (see para 55 above) that it includes also cases where the new or newly discovered fact shows that the evidence against the defendant has been so undermined that no conviction could possibly be based upon it. In that situation it will have been shown conclusively that the defendant had no case to answer, so the prosecution should not have been brought in the first place. There is an important difference between these two categories. It is one thing to be able to assert that the defendant is clearly innocent. Cases of that kind have become more common and much more easily recognised since the introduction into the criminal courts, long after article 14(6) of the ICCPR was ratified in 1976, of DNA evidence. It seems unlikely that the possibility of demonstrating innocence in this way was contemplated when the test in article 14(6) was being formulated. Watson and Crick published their discovery of the double helix in 1951, but DNA profiling was not developed until 1984 and it was not until 1988 that it was used to convict Colin Pitchfork and to clear the prime suspect in the Enderby Murders case. The state should not, of course, subject those who are clearly innocent to punishment and it is clearly right that they should be compensated if it does so. But it is just as clear that it should not subject to the criminal process those against whom a prosecution would be bound to fail because the evidence was so undermined that no conviction could possibly be based upon it. If the new or newly discovered fact shows conclusively that the case was of that kind, it would seem right in principle that compensation should be payable even though it is not possible to say that the defendant was clearly innocent. I do not think that the wording of article 14(6) excludes this, and it seems to me that its narrowly circumscribed language permits it. The range of cases that will fall into the category that I have just described is limited by the requirement that directs attention only to the evidence which was the basis for the conviction and asks whether the new or newly discovered fact has completely undermined that evidence. It is limited also by the fact that the new or newly discovered fact must be the reason for reversing the conviction. This suggests that it must be the sole reason, but I do not see the fact that the appellate court may have given several reasons for reversing the conviction as presenting a difficulty. All the other reasons that it has given will have to be disregarded. The question will be whether the new or newly discovered fact, taken by itself, was enough to show conclusively that there was a miscarriage of justice because no conviction could possibly have been based on the evidence which was used to obtain it. For these reasons it is plain that category 1 in Dyson LJs list (see para 83, above) falls within the scope of section 133. I think that it is equally plain that category 4 (Lord Binghams second limb) does not, as it is taken from para 4 of Lord Binghams speech in Mullen where he was discussing what was included within the phrase wrongful convictions, not what was meant by section 133. This leaves category 2, where the fresh evidence shows that the defendant was wrongly convicted in the sense that, had the fresh evidence been available, no reasonable jury could properly have convicted; and category 3, where the fresh evidence is such that the conviction cannot be regarded as safe, but the court cannot say that no fair minded jury could properly convict if there were to be a trial which included the fresh evidence. Bearing in mind that we must form our own view as to what section 133 means, can the wording of that section on a correct understanding of article 14(6) include either or both of these categories? I have put the words fresh evidence, which of course echo the wording of section 23 of the Criminal Appeal Act 1968 (see also section 106(3) of the Criminal Procedure (Scotland) Act 1995), into inverted commas because they depart from the words of section 133. The statute, like article 14(6), refers to a new, or newly discovered fact, not to fresh evidence. And it must be a fact which shows beyond reasonable doubt, or conclusively, that there was a miscarriage of justice. Fresh evidence does not attain that status until the matter to which it relates has been proved or has been admitted to be true. Fresh evidence that justifies the conclusion referred to in category 3 will usually not be, and certainly need not be, of that character. If it shows that the conviction is merely unsafe, the court may order a retrial. Under our system of trial by jury there will be no way of knowing, beyond reasonable doubt, whether it was a new or newly discovered fact that led to the acquittal. For these reasons I would exclude category 3 from the scope of section 133. This leaves category 2. As Hughes LJ indicates in R (Allen) (formerly Harris) v Secretary of State for Justice [2009] 2 All ER 1, para 40(iii), we are dealing here with a new or newly discovered fact that is identifiable as such by the Court of Appeal. Category 2, as described in Dyson LJs list, is of course accurate as a description of what happens according to the Court of Appeals practice. But it is too broadly framed for use as a reliable guide to what falls within the scope of section 133 read with article 14(6). It lacks the limiting factors indicated by the words new or newly discovered fact and shows conclusively. It may not be easy in practice to distinguish cases that fall within it from those that fall within category 3. So in my opinion a more precise, and more exacting, formula must be found. I am uneasy too about requiring the Secretary of State, whose function it is to administer the scheme under the statute, to apply a test which refers to what a reasonable jury would do. This is a judgment that is best left to the courts. While he will be guided by what the appellate court said when it reversed the conviction, he is entitled to look at the new or newly discovered fact for himself and draw his own conclusions as to its consequences so long as they are not in conflict with what the court has said in its judgment. This brings me back to what I said in para 94 above. For the reasons I give there I would rephrase category 2, so that it fits with the narrowly circumscribed language of article 14(6) and section 133. I would limit it to cases where the new or newly discovered fact shows conclusively that there was a miscarriage of justice because the evidence that was used to obtain the conviction was so undermined by the new or newly discovered fact that no conviction could possibly be based upon it. This would include cases where the prosecution depended on a confession statement which was later shown by a new or newly discovered fact to have been inadmissible because, as the defendant had maintained all along, it was extracted from him by improper means. It may be quite impossible to say in such a case that he was, beyond reasonable doubt, innocent. But, as the evidence against him has been completely undermined, it can be said that it has been shown beyond reasonable doubt, or conclusively, that there has been a miscarriage of justice in his case which was as great as it would have been if he had in fact been innocent, because in neither case should he have been prosecuted at all. Retrial Section 133(5A), which was inserted by section 61 of the Criminal Justice and Immigration Act 2008, changed the timetable as to when a persons conviction was to be taken to have been reversed in a case where a retrial is ordered. This amendment has to be read with the amendment which was made at the same time to section 133(2) by inserting a time limit for making an application for compensation under section 133. This is a period of two years beginning with the date when the conviction is reversed. Section 133(5A) provides that where the person is to be subject to a new trial the conviction is not to be treated as reversed unless and until the person is acquitted of all offences at the retrial or the prosecution indicates that it has decided not to proceed with the retrial. This provision introduces a feature of the statutory scheme which was not before the House in Mullen. But I do not think that it affects Lord Steyns interpretation of section 133, or the qualification which I would make to it to include cases where the prosecution should never have been brought. It is not to be taken as suggesting that compensation is payable in every case where the appellate court has ordered a new trial because it is satisfied that the conviction was unsafe in the light of fresh evidence. What it does, as it seems to me, is to allow for the possibility that something may emerge either before or during the retrial which would require compensation to be paid. Nor is it to be taken as suggesting that compensation is payable in every case, such as that of Mr George, where the person was acquitted at his retrial. The tests laid down in section 133(1) must still be applied. It is only where a new fact or a newly discovered fact shows conclusively that the person was innocent or that the prosecution should never have been brought that there will be a right to compensation. This will not be the case where a retrial has been ordered, and it may not be apparent from the jurys verdict at the retrial. The fact that it returned a verdict of not guilty will not be enough. But if new facts emerge during the retrial process that have the effect of showing conclusively that the person was innocent or that the prosecution should never have been brought they can be taken into account, even though they emerged after the date when the conviction was reversed by the Court of Appeal. New or newly discovered fact A question that is raised in Adamss case is to whom these words are addressed. His appeal was allowed by the Court of Appeal on the basis that, owing to inadequacies in the conduct of his case by his then legal team, there had been a failure by them to discover and make use at the trial of three pieces of important material which had been made available to them by the prosecution but of which Adams himself was not aware: [2007] 1 Cr App R 449, para 155. In other words, this was material that was available at the trial but not used. Could it be said that these were new or newly discovered facts? His case is that all he needed to show was that he himself was unaware of them. They were new to him because they were not revealed to him by his legal team. They did not have to be new, as the Secretary of State maintains, to everyone involved in the trial. The Divisional Court (Maurice Kay LJ and Simon J) held that the Secretary of State was right to reject Adamss claim for compensation on the ground that his conviction was not quashed because of a new or newly discovered fact: [2009] EWHC 156 (Admin). The Court of Appeal (Waller, Dyson and Lloyd LJJ) disagreed, for three reasons: [2010] QB 460, paras 14 16. First, it was difficult to accept that those who drafted the article intended to deny compensation to a person whose conviction was reversed on the basis of material which was available to his legal team and would have shown that he was innocent. Second, there was no need to interpret the phrase in a way that yielded such an extreme result. Third, the focus of the language was on the convicted person. There was no mention of his legal representatives in the article. So compensation was not to be denied to him if facts emerged that were new to him, although they were known to his legal representatives. I do not think that the language of article 14(6) bears this interpretation. It seems to me that the focus of attention is on what was known or not known to the trial court, not to the convicted person. The assumption is that the trial court did not take the fact into account because it was not known or had not been discovered at the time of the trial. If this was attributable wholly or in part to the convicted person because he deliberately chose not to reveal what he knew to his defence team compensation must be denied to him, as the coda to article 14(6) makes clear. But, leaving that point out of account, the only relevant questions are whether it was not available to the trial court because it was not known then at all or whether, although knowable, it had not been discovered by the time of the trial. Material that has been disclosed to the defence by the time of the trial cannot be said to be new or to have been newly discovered when it is taken into account at the stage of the out of time appeal. To focus on the state of mind of the convicted person goes too far. It ignores the fact that in practice the defendants legal representatives are unlikely to have discussed with him every piece of information that they come across in the course of their preparation for and conduct of the trial. I agree with Lord Judge that a fact is not new or newly discovered for the purposes of section 133 just because the defendant himself, who was previously unaware of that fact, ceases to be ignorant of it. Does denial of compensation infringe the presumption of innocence? Mr Owen submitted that a narrow interpretation of article 14(6) would conflict with the presumption of innocence in article 6(2) of the European Convention. He relied on a series of decisions by the European Court of Human Rights which show that the presumption of innocence may be violated in particular circumstances where, following an acquittal, a court or other authority expresses an opinion of continuing suspicion which amounts in substance to a determination of guilt of the person concerned: Sekanina v Austria (1993) 17 EHRR 221; Leutscher v The Netherlands (1996) 24 EHRR 181; Rushiti v Austria (2000) 33 EHRR 1331; Weixelbraun v Austria (2001) 36 EHRR 799; Orr v Norway (Application No 31283/04) (unreported) 15 May 2008; and Hammern v Norway (Application No 30287/96) (unreported) 11 February 2003. These cases, other than Orr v Norway, were examined in Mullen by Lord Bingham in para 10 and by Lord Steyn in paras 41 44. Mr Owen said that the reasons that Lord Steyn gave for finding these cases of no assistance on the question as to whether article 6(2) requires an expansive interpretation of article 3 of the Seventh Protocol or of article 14(6) of the ICCPR were correct but irrelevant. Lord Bingham on the other hand said in para 10 that they were of no assistance, since Mullens acquittal was based on matters entirely unrelated to the merits of the accusation against him. So it was open to this court to take a fresh look at the issue. As Mr Tam for the Secretary of State pointed out, article 6(2) applies according to its own terms to the criminal process. The Strasbourg cases show that its jurisprudence is designed to protect the criminal acquittal in proceedings that are closely linked to the criminal process itself. In Sekanina v Austria (1993) 17 EHRR 221, para 30, for example, the court said that the voicing of suspicions regarding a persons innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits but that it was no longer admissible to rely on such suspicions once an acquittal has become final. That was a case where the applicant had been charged with murder and remanded in custody but was subsequently acquitted at his trial. His claim for compensation was dismissed on the ground that there were still strong suspicions regarding his guilt. The problem was that Austrian legislation and practice linked the two questions the criminal responsibility of the accused and the right to compensation to such a degree that the decision on the latter issue could be seen to be regarded as a consequence and, to some extent, the concomitant of the decision on the former: para 22. The court was careful to point out in para 25, however, that the situation in that case was not comparable to that governed by article 3 of the Seventh Protocol. This distinction shows that a person might properly be refused compensation under that article, and thus under article 14(6) of the ICCPR which marches together with article 3 of the Seventh Protocol, without violating the presumption of innocence under article 6(2). The same approach was taken in Hammern v Norway (Application No 30287/96) 11 February 2003 where the conditions for obtaining compensation were linked to the issue of criminal responsibility in such a manner, by the same court sitting largely in the same formation, so as to bring the proceedings within the scope of article 6(2): para 46. A further example of this line of reasoning is provided by Y v Norway (2003) 41 EHRR 87, where the applicant was acquitted by the High Court which then went on to refuse his claim for compensation the next day on the ground that it was clearly probable that he had committed the offences with which he had been charged. So too in Orr v Norway (Application No 31283/04) 15 May 2008, where the High Court dealt with the acquittal and the payment of compensation to the complainant in two clearly distinct parts of its judgment, but in several places highlighted that the standard of proof for civil liability to pay compensation was less strict than for criminal liability: para 52. This was held in para 53 to cast doubt on the correctness of the acquittal. The principle that is applied is that it is not open to the state to undermine the effect of the acquittal. What article 14(6) does not do is forbid comments on the underlying facts of the case in subsequent proceedings of a different kind, such as a civil claim of damages, when it is necessary to find out what happened. The system that article 14(6) of the ICCPR provides does not cross the forbidden boundary. The procedure laid down in section 133 provides for a decision to be taken by the executive on the question of entitlement to compensation which is entirely separate from the proceedings in the criminal courts. As Lord Steyn pointed out in Mullen, paras 41 43, in none of the cases from Austria or Norway, nor in Leutscher v The Netherlands 24 EHRR 181, was the court called upon to consider the interaction between article 6(2) and article 3 of the Seventh Protocol. On the contrary, the fact that the court was careful to emphasise in Sekanina v Austria, para 25 that the situation in that case was not comparable to that governed by article 3 of the Seventh Protocol is an important pointer to the conclusion that, as Lord Steyn put it in Mullen, para 44, article 14(6) and section 133 of the 1988 Act are in the category of lex specialis and that the general provision for a presumption of innocence does not have any impact on them. A refusal of compensation under section 133 on the basis that the innocence of the convicted person has not been clearly demonstrated, or that it has not been shown that the proceedings should not have been brought at all, does not have the effect of undermining the acquittal. Conclusions I would dismiss the appeal by Adams on the ground that the phrase new or newly discovered fact does not encompass the material that was available to but not used at the trial by the convicted persons legal representatives. But I would add that the second limb of the test that has been attributed to Lord Bingham because of what he said in para 4 of his speech in Mullen, on which Mr Owen relied, does not meet the requirements of article 14(6). So, even if the material in question could be said to have been newly discovered, his case would not have entitled him to compensation under the statute. I would allow the appeals by McCartney and MacDermott, for the reasons given by Lord Kerr. It is not possible to say in their cases that the newly discovered facts show conclusively that they were innocent of the crimes of which they were convicted. But it is possible to say, in the light of the newly discovered facts, that these were proceedings that ought not to have been brought because the evidence against them has been so completely undermined that no conviction could possibly be based upon it. I would hold that their cases fall within the narrowly circumscribed language of article 14(6) and section 133 of the 1988 Act, and they are entitled to be compensated. LADY HALE I agree that a miscarriage of justice in section 133 of the Criminal Justice Act 1988 (see para 1 above) should be interpreted as proposed by Lord Phillips in para 55 of his judgment. The phrase is clearly capable of bearing a wider meaning than conclusive proof of innocence. Both the inspiration for section 133, in article 14(6) of the ICCPR (see para 6 above) and the meaning of miscarriage of justice in domestic law in 1988 support a wider meaning. The drafters of article 14(6) rejected all attempts to confine it to proof of innocence. In 1988, the Criminal Appeal Act 1968 permitted the Court of Appeal to dismiss an appeal if they considered that no miscarriage of justice has actually occurred (section 2(1) before its amendment by the Criminal Appeal Act 1995). This points strongly to the meaning of miscarriage of justice as the conviction of someone who ought not to have been convicted. The addition in section 133 of the requirement that this be shown beyond reasonable doubt (in substitution for conclusively in article 14(6)) indicates that this refers to someone who definitely should not have been convicted rather than to someone who might or might not have been convicted had we known then what we know now. As I understand it, Lord Phillips formulation, with which both Lord Hope and Lord Kerr agree, would limit the concept to a person who should not have been convicted because the evidence against him has been completely undermined. Unlike Lord Clarke, therefore, he would not include a person who should not have been convicted because the prosecution was an abuse of process. I agree with Lord Phillips that the object of this particular exercise is to compensate people who cannot be shown to be guilty rather than to provide some wider redress for shortcomings in the system. I do sympathise with Lord Browns palpable sense of outrage that Lord Phillips test may result in a few people who are in fact guilty receiving compensation. His approach would of course result in a few people who are in fact innocent receiving no compensation. I say a few because the numbers seeking compensation are in any event very small. But Lord Phillips approach is the more consistent with the fundamental principles upon which our criminal law has been based for centuries. Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty. A person is only guilty if the state can prove his guilt beyond reasonable doubt. This is, as Viscount Sankey LC so famously put it in Woolmington v Director of Public Prosecutions [1935] AC 462, at p 481, the golden thread which is always to be seen throughout the web of the English criminal law. Only then is the state entitled to punish him. Otherwise he is not guilty, irrespective of whether he is in fact innocent. If it can be conclusively shown that the state was not entitled to punish a person, it seems to me that he should be entitled to compensation for having been punished. He does not have to prove his innocence at his trial and it seems wrong in principle that he should be required to prove his innocence now. Of course, it is not enough that the evidence supporting his conviction has been fatally undermined. This has to be because of a new or newly discovered fact. On this point, I also agree with Lord Phillips, who adopts the definition contained in section 9(6) of the Criminal Procedure Act 1993 in Ireland (see para 60). This means that the person convicted either did not know or did not appreciate the significance of the information in question. It seems difficult to make sense of the proviso to section 133(1) unless the non disclosure of the unknown fact was wholly or partly attributable to the person convicted in any other way. For these reasons, in agreement with Lord Phillips, I would dismiss Mr Adams appeal but allow the appeals of Mr MacDermott and Mr McCartney. The evidence against Mr Adams has not been so undermined that no conviction could possibly be based upon it, whereas Lord Kerr has demonstrated that this is indeed the case with Mr MacDermott and Mr McCartney. LORD KERR The appeals of Eamonn MacDermott and Raymond McCartney Introduction On 12 January 1979, after a trial by a judge, sitting without a jury at Belfast City Commission, Raymond Pius McCartney was convicted of two offences of murder and one of membership of the Irish Republican Army. The two murder victims were Geoffrey Agate and Detective Constable Liam Patrick McNulty. Mr McCartney was sentenced to life imprisonment on each of the murder counts and to five years imprisonment for the offence of membership of a proscribed organisation. On the same date and at the same court Eamonn MacDermott was convicted of various offences including the murder of Detective Constable McNulty. He was sentenced to life imprisonment for that offence and to various terms of imprisonment for the other offences. The sole evidence on which Mr McCartney and Mr MacDermott were convicted consisted of written and verbal admissions that they were said to have made during interviews by police. Both contested the admissibility of the statements, alleging that they had either been the product of ill treatment by interviewing police officers or that they had been concocted. The admissibility of the statements was considered by the trial judge after a long voire dire hearing. He rejected the allegations of the appellants and stated that he was satisfied that neither had been ill treated. The judge also considered whether to exercise his residual discretion to exclude the statements from evidence if he considered it proper to do so. He concluded that it would not be proper to do so and the statements were duly admitted. An appeal by Mr MacDermott and Mr McCartney against their convictions was dismissed by the Court of Appeal in Northern Ireland (Jones LJ, Gibson LJ and Kelly J) on 29 September 1982. Both spent several years in prison. On 18 January 2006 the Criminal Cases Review Commission referred the convictions of Mr MacDermott and Mr McCartney to the Court of Appeal. On 15 February 2007 their convictions were quashed, the Court of Appeal declaring that they had a distinct feeling of unease about their safety. Following the quashing of their convictions by the Court of Appeal, Mr McCartney and Mr MacDermott applied to the Secretary of State for Northern Ireland for compensation under section 133 of the Criminal Justice Act 1988 on the basis that they had been victims of a miscarriage of justice. The applications were refused. They then sought judicial review of that decision. The application for judicial review was rejected by Weatherup J on 25 June 2009. An appeal against that decision was dismissed by the Court of Appeal in Northern Ireland (Morgan LCJ, Girvan LJ and Coghlin LJ) on 8 February 2010. The appellants trials Mr McCartney Mr McCartneys case on trial had been that he did not make any verbal admissions and that the two written statements attributed to him had been fabricated by police officers. He claimed that he had been ill treated before each statement had been written out. He had refused to sign them but he had initialled the caution that appeared at the head of the first statement and had drawn a line and had written the words "end of statement" at the concluding part of the second statement. Mr McCartney claimed that his ill treatment began during the second of a series of interviews that took place in Castlereagh Police Office between 3 and 7 February 1977. The ill treatment continued during a number (although not all) of the succeeding interviews. Two police officers in particular were identified by him as having been the most persistent and determined perpetrators. He gave evidence that he had been told that they had been specially chosen in order to extract confessions from him. The suggestion was made by Mr McCartneys counsel that proper supervision of interviews had broken down and that a concerted campaign of abuse had been conducted in order to obtain confessions that would lead to convictions. The interviewing police officers denied that they had been guilty of any form of ill treatment. Superior officers rejected the suggestion that there had been any lack of supervision or that particular officers were chosen in order to extract confessions. It was accepted, however, that a new team of detectives had been selected to continue interviews with Mr McCartney on the second day of interviewing. This new team was chosen, according to one of the senior officers in charge of interviews, because Mr McCartney, despite having shown signs of co operation on the first evening of interviews, had evinced a less co operative attitude the following day. The detectives thus selected were those identified by Mr McCartney as his principal abusers. During the course of Mr McCartneys trial, an application was made on his behalf for leave to call three witnesses who had been arrested at the same time as he and who had been interviewed at Castlereagh Police Office during the same period. In the event, two of the witnesses gave evidence. One of these was a man called John Thomas Pius Donnelly. He had been arrested at the same time as Mr McCartney. He was interviewed about and subsequently charged with one of the murders of which Mr McCartney was later convicted. He was also charged with having caused an explosion. For reasons that will appear presently, the charges against Mr Donnelly were not proceeded with and he did not stand trial. During the trial of Mr McCartney and Mr MacDermott, Mr Donnelly gave evidence that he had been subjected to serious assaults during his interviews and had sustained significant injuries in consequence. Although the detectives who, according to Mr Donnelly, had assaulted him, Detective Constable French and Detective Constable Newell, were not those who were alleged to have ill treated Mr McCartney, they were members of the group of officers who had been conducting interviews into the murders of Mr Agate and Detective Constable McNulty. Detective Constable French had interviewed Mr MacDermott and had recorded the most significant statement of admission from him. Mr MacDermott alleged that he had been assaulted by Detective Constable French and by the officer who accompanied him, Detective Constable Dalton. This second detective had also interviewed Mr McCartney and Mr McCartney claimed to have been assaulted by him also. On 6 February 1977, after he had been interviewed for several days, two doctors carried out a joint examination of Mr Donnelly. One of them was a forensic medical officer, retained by the police. No fewer than ten areas of injury on Mr Donnellys body were recorded. Substantial bruising, particularly in the abdominal area was found. The trial judge observed that both doctors were shocked and horrified by what they found on examination. How Mr Donnellys injuries had been caused was the subject of acute controversy on trial. It was trenchantly put to him by counsel for the prosecution that some had been sustained during a series of struggles while he was being taken to and from interview rooms and that the remaining injuries were self inflicted. This was a highly significant cross examination when seen in the light of the subsequently discovered reasons that the charges against Mr Donnelly had not been proceeded with. The decision not to proceed with the prosecution of Mr Donnelly was itself highly significant for he was alleged to have made verbal and written admissions of murder and causing an explosion. The second witness, Hugh Brady, also gave evidence of having been assaulted during interviews which took place during the same period as those of Mr McCartney and Mr Donnelly. One of the detectives identified by Mr Brady as having assaulted him (Detective Constable Dalton) had also interviewed Mr McCartney and, as noted at para 126 above, Mr McCartney claimed that he too had been assaulted by this officer. Mr Brady was also found on medical examination to have multiple injuries, most notably bruising of the abdomen and a burn to his hand which he claimed had been caused by the hand being forcibly held against a hot radiator. One of the doctors who examined him, Dr Hendron, who had been retained by Mr Bradys solicitors, concluded his medical report by saying that he had no doubt that Mr Brady had been assaulted, although he conceded during cross examination at the trial of Mr McCartney and Mr MacDermott that Mr Brady may have exaggerated. Other doctors who examined Mr Brady believed that he had exaggerated and gave evidence to that effect. Mr Brady did not make admissions and was not charged with any offences. Under cross examination at the trial of Mr McCartney and Mr MacDermott it was also suggested to him that his injuries had been self inflicted. The trial judge, MacDermott J, did not find him an impressive witness for reasons that I will turn to presently. Mr McCartney was examined by two doctors, Dr Henderson, the Force medical officer and Dr Hendron, who attended at the request of Mr McCartneys solicitors. The medical examination took place shortly after the tenth interview which had ended at 5.20 pm on 6 February 1977. A linear abrasion, 1 1/4 inches long was observed in the centre of McCartney's forehead, with two further small abrasions above and below it. Dr Hendron noted that Mr McCartneys right cheek was red and puffy. Dr Henderson had no note of this but on the form used to record the findings on examination he wrote "claimed struck on face no evidence of any bruises". The mark on Mr McCartney's forehead was superficial; it was considered to have been present for a couple of days and was of a type that could be caused by a finger nail. When asked for his conclusions on the evidence, Dr Hendron stated that he had no doubt that Mr McCartney had been assaulted. Mr MacDermott Mr MacDermott had been arrested on 31 January 1977 and his interviews took place in Strand Road Police Station in Derry between the date of his arrest and 2 February. He claimed that he had been beaten before making admissions and had been abused and threatened on his way to the interview room. He also gave evidence that the principal statement of admission had been prepared by a detective officer while he, MacDermott, lay on a bed. It was claimed that his mental resolve had been so eroded by the assaults and threats that by the time the statement was being recorded, he did not care what it contained. Mr MacDermott was examined by a number of doctors, including his own father who was a general medical practitioner. No significant signs of physical injury were found. He was observed to have tenderness of the jaw and ears which, he claimed, had been areas of assault. He also exhibited signs of anxiety tension. Towards the end of the trial, the judge asked counsel for the prosecution about the charges against Donnelly. He said, Am I right in saying that the position is that he was charged and then what happened? The court was informed that no evidence was being offered? Counsel for the prosecution replied, He was never returned for trial. The charges were not proceeded with. In a lengthy judgment the trial judge found that neither Mr McCartney nor Mr MacDermott had been ill treated as they had alleged. Indeed, in relation to Mr McCartney, the judge declared that his certain conclusion [was] that the Crown has satisfied me beyond reasonable doubt that McCartney was not ill treated and in relation to Mr MacDermott that he was absolutely satisfied that he had not been ill treated in any way or threatened. The judge fully accepted the evidence of the police officers denying ill treatment at all times. In relation to Mr Donnelly, the judge said that he was satisfied that the police had not assaulted or ill treated him. Mr Brady was condemned as a dishonest and unreliable witness whose evidence the judge found did not assist in deciding whether Mr McCartney had been ill treated. Dr Hendron had expressed the strong opinion that Mr McCartney, Mr Donnelly and Mr Brady had been assaulted by police officers. MacDermott J said this about the doctors evidence: There is no doubt in my mind that Dr. Hendron believes, I am sure genuinely, that McCartney, Brady, Donnelly and others have been ill treated at Castlereagh, and such a conclusion could be reached by anyone who is prepared to form a conclusion after hearing only what might be described as one side of the case. To my mind, Dr. Hendron's evidence throughout was coloured by this belief and lacked the professional objectivity displayed later by other doctors Robert Barclay On 2 January 1977 Robert Barclay was arrested and taken to Omagh Police Station where he was interviewed over a number of days by Detective Constables French and Newell (the same officers who had interviewed Mr Donnelly approximately one month later). Mr Barclay was said to have made admissions during these interviews. He also complained of ill treatment at the hands of both detective officers. He alleged that they assaulted him by slapping him and punching him and that they had threatened him. On 2 December 1977, after a trial in which he gave evidence that he had been assaulted by the officers, Mr Barclay was convicted on foot of the admissions that he had made during interview. He appealed his convictions. A solicitor had given evidence on his trial that when he saw Mr Barclay in court on 4 January he had a black eye. Two doctors who had examined him while he was at Omagh Police Station found signs of injury. On 12 April 1978, the then Lord Chief Justice of Northern Ireland, Lord Lowry, delivering the judgment of the Court of Appeal, quashed the convictions. Although no written judgment appears to have been given, Lord Lowry was recorded as having said: It is not possible to exclude the conclusion that the injuries found on the accused were inflicted at Omagh Police Station and this renders inadmissible any statement made by him. Subsequently, Mr Barclay brought a private prosecution against Detective Constable French and Detective Constable Newell. In his judgment, which was delivered on 25 April 1979, the trial judge in that case accepted that there was a strong prima facie case that Mr Barclay had been assaulted. He said that Mr Barclay had undoubtedly sustained injuries in Omagh Police Station. He referred, however, to Mr Barclays admission that, on other occasions quite unconnected with the proceedings against the police officers, he had been dishonest. Also, on certain matters relating to his interviews by the detectives (such as, for instance, which of them had taken the notes of the interview) Mr Barclay was found by the judge to have been inaccurate. But the medical evidence that was called on the prosecution of the police officers was found to be consistent with Mr Barclays allegations. The judge said, however, that he could not be certain that the injuries had occurred at the time that Mr Barclay alleged they had been inflicted. The effect of the evidence made it unlikely that they were self inflicted but this was a possibility in the estimation of the judge. Therefore, on the basis that there was a reasonable doubt as to their guilt, he considered that he was left with no alternative but to acquit the officers. Although the private prosecution of Detective Constables French and Newell took place after the trial of Mr McCartney and Mr MacDermott, Mr Barclays appeal against his convictions had succeeded before their trial began. Their trial commenced on 18 September 1978. Of course, no reference to Mr Barclays successful appeal was made during the trial of Mr McCartney and Mr MacDermott. There is no reason to believe that anything was known of that by those involved in their trial. On the contrary, the fact that such a relevant circumstance was not referred to is a clear indication that nothing was known about it. The reasons that the prosecution of John Donnelly did not proceed In a memorandum of 29 June 1977, Mr Roy Junkin, then an assistant director in the Department of the Director of Public Prosecutions, considered the prospects of success for the prosecution of Mr Donnelly. He concluded that a court would not accept that the statement of admission made by Mr Donnelly was voluntary. He therefore recommended that the prosecution should not proceed. That recommendation was accepted by Mr Junkins superior, Mr George McLaughlin, to whom the memorandum had been addressed and a direction of no prosecution was duly issued. Mr Donnelly was interviewed about his complaint of ill treatment after being informed that the prosecution against him was not to proceed. Following the interview, Mr Junkin considered the papers again. In a further memorandum to Mr McLaughlin dated 6 October 1977, Mr Junkin reviewed all the evidence including that obtained from Mr Donnelly during the interview about his complaint. He stated that he had no doubt that Donnelly was assaulted whilst in police custody at Castlereagh. The only detective identified by Mr Donnelly was Detective Constable Newell. He had claimed that this was the only police officer who had disclosed his name. Since this police officer had interviewed Mr Donnelly with Detective Constable French and since Mr Donnelly had said that both Detective Constable Newell and the other officer present had assaulted him, Mr Junkin recommended that both be prosecuted for assault. In his response to Mr Junkins recommendation, Mr McLaughlin, in a memorandum dated 10 March 1978 (6 months before the trial of Mr McCartney and Mr MacDermott began), agreed that there was no doubt that Mr Donnelly had been assaulted while in custody at Castlereagh. But Mr McLaughlin concluded that not all of Mr Donnellys complaints were supported by findings on medical examination. He also considered that because 8 or 9 other police officers had interviewed Mr Donnelly the prosecution would not be able to establish that any particular injury had been inflicted by Detective Constables Newell and French. He therefore declined to accept Mr Junkins recommendation that the officers be prosecuted. The quashing of the appellants convictions On the hearing before the Court of Appeal of the reference by CCRC, Ms McDermott QC, appearing on behalf of Mr McCartney, submitted that if counsel for the prosecution had known the reason that the prosecution of Donnelly had been discontinued, he would not have put to him in cross examination that his injuries were self inflicted. This submission does not appear to have been countered by counsel who appeared for the Crown on the hearing of the reference and it does not feature in the conclusions expressed by the Court of Appeal in its judgment on the reference. At the same hearing, counsel for the appellant Mr MacDermott drew attention to what he suggested was a striking similarity between the manner in which, on Mr Donnellys account, a statement was taken from him by Detective Constable French and the way in which, according to Mr MacDermott, the most important statement of admission had been recorded from him by the same police officer. Generally, it was submitted that if the trial judge had been aware of the reasons that Mr Donnelly had not been prosecuted (viz that an assistant director in the office of the DPP and a senior assistant director considered that he had certainly been assaulted by police officers) he would not have admitted the confession statements. It was suggested that the judge would have formed a more favourable view of the evidence of Mr Donnelly and Mr Brady and would have considered that the police officers credibility was wholly undermined. The Court of Appeal gave its decision on these arguments in the final paragraph of its judgment as follows: We cannot rule out the possibility that the evidence of the police officers may have been discredited by evidence that is now available. The admission in evidence of MacDermott's confessions depended upon the acceptance by the judge of the evidence of DC French. If the judge had known of the finding of a prima facie case in the prosecution brought by Mr Barclay against DC French he may well have reached a different conclusion. To this is to be added the striking similarity between the description given by Donnelly and MacDermott as to the manner in which their admissions were recorded. If the allegations by Donnelly had been supported and strengthened by the new evidence this could have served also to discredit the evidence given by the police officers in McCartney's case. In both cases we are left with a distinct feeling of unease about the safety of their convictions based as they were on admissions and the convictions must therefore be quashed. The challenge to the refusal of compensation On 7 November 2007 a letter in the following terms was sent to Mr McCartneys solicitors in response to the application that they had made on his behalf for compensation under section 133 of the 1988 Act: The Secretary of State has not yet reached a decision about the application; before he does so I would like to give you the opportunity to comment in writing on the views set out below. Under section 133 compensation is payable to an applicant where his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. Mr McCartneys convictions were, we believe, reversed within the meaning of section 133, by the decision of the Court of Appeal on 15 February 2007. We also tend to the view that this reversal was based on a new or newly discovered fact. However, in light of the available case law on these matters, we believe that your client has so far failed to establish that a new or newly discovered fact has shown beyond reasonable doubt that there has been a miscarriage of justice either on the basis that your client is demonstrably innocent or on the basis of a failure of the trial process. Further representations were made on behalf of Mr McCartney. Rejecting these, a letter dated 16 May 2008 sent on behalf of the Secretary of State, communicated his decision that Mr McCartney was not eligible under section 133. It contained the following passage: The reasons for that decision are those as previously set out in my letter of 7 November. In your further representations you made two main points. Firstly, you suggest that there was a comprehensive failure to disclose material critical to Mr McCartney's defence. The Secretary of State does not consider that anything went wrong with the investigation of the offence or in the conduct of the trial so as to result in a failure of the trial process. Secondly, you suggest that the tape of the appeal should be listened to. It is the written judgment of the CoA that sets out the basis for the decision that a conviction was unsafe and therefore the basis on which the Secretary of State decides if the conditions for statutory compensation are fulfilled. Similar letters were sent to solicitors acting for Mr MacDermott. These solicitors also made further representations and on 17 November 2008 a final responding letter was sent in which the following appeared: We have now considered the other points you put to us on 1 August in relation to the Boyle case [In re Boyles Application [2008] NICA 35]. The majority of the Court of Appeal in that case posed the test of whether the claimant should not have been convicted. We do not believe that the terms of the Court of Appeal's judgment in your client's appeal mean that he should not have been convicted. Therefore, the Boyle case does not alter the Secretary of State's decision that your client is not entitled to compensation. Both appellants sought judicial review of the Secretary of States decision. These applications were dismissed by Weatherup J, although it is clear that he felt that they might have succeeded if he had felt able to apply the test which, he considered, had been propounded by Lord Bingham in R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18, [2005] 1 AC 1. Weatherup J considered that there were two types of new or newly discovered fact (necessary as a prerequisite for eligibility under section 133, as explained by Lord Hope in paras 79 and 81 of his judgment). The first was the evidence that it had been accepted by the assistant director and the senior assistant director in the DPPs office that Mr Donnelly had been assaulted and that this would have tended to throw doubt on the credibility of the police witnesses. The second type was described by the judge in paras 23 and 24 of his judgment: 23another part of the new evidence relating to the prosecution of Donnelly concerned the manner in which his evidence was dealt with at the trial. When Donnelly was called as a defence witness, counsel for the DPP, rather than proceeding on the position of the DPP officials dealing with the prosecution of Donnelly, adopted and put to Donnelly in cross examination the police approach rejected by those officials, namely that Donnelly had received injuries after an attack on police officers and that some injuries were also self inflicted. Further, when the trial judge was considering the evidence of Donnelly, he asked counsel for the DPP about the absence of a prosecution of Donnelly and a complete reply was not furnished. It is important to note that this was a non jury Diplock trial. It is apparent that the tria1 Judge was inviting counsel to disclose, as delicately as the situation demanded, whether there was a reason for the decision not to prosecute that related to matters other than the alleged ill treatment of Donnelly, in respect of which the answer of counsel implied that there was. The trial judge was not told that the DPP had concluded that Donnelly had been ill treated, that his confession was not to be considered as being voluntary and there was no other evidence against him. There is no suggestion that counsel in the applicants trial had been made aware of the DPP position relating to the prosecution of Donnelly. Had counsel for the DPP been aware of the DPPs approach to the prosecution of Donnelly two aspects of the trial would have been different. First of all, the cross examination of Donnelly would have taken a different course and counsel would not have put to Donnelly that his injuries had been occasioned by defensive action by the police and by his own hand. Secondly, the submission of counsel for the DPP in relation to the prosecution of Donnelly would not have rested on the bald assertion that the prosecution was not proceeded with but should have indicated the basis of the DPP decision. 24 Thus the issue of the treatment of the Donnelly evidence is not directly a matter about the credibility of the evidence given by the police officers, nor is it directly a matter about withholding disclosure from the defence. Rather it is a matter about the conduct of the prosecution in relation to the evidence of a witness who was central to the defence challenge to the voluntariness of the admissions on which the applicants were convicted. In light of the above discussion of the Donnelly evidence there is a basis for concluding that something had gone seriously wrong with the conduct of the trial. This is a matter that is capable of satisfying the wider interpretation of miscarriage of justice expounded by Lord Bingham. It is evident from these passages that Weatherup J considered that it would have been quite wrong for prosecuting counsel, had he known of the reasons that Mr Donnelly had not been prosecuted, to pursue the line of questioning that he did. On the hearing of the appeal before this court Mr Maguire QC, who appeared on behalf of the Secretary of State for Northern Ireland, was unable to confirm that Crown counsel was unaware of the reasons that the prosecution of Mr Donnelly was not pursued but I share Weatherup Js view that this is the only possible explanation for his having cross examined Mr Donnelly as he did. Mr Junkin and Mr McLaughlin had concluded that Mr Donnelly had been assaulted by police officers. If that view (which was the product of extensive consideration of all the relevant material) had been communicated to prosecuting counsel, it would have been improper for him to advance a case which was quite at odds with the conclusion that had been reached by two experienced officers in the department of the Director of Public Prosecutions. At a more fundamental level, however, it was not open to the prosecuting authority to adopt a different stance in relation to Mr Donnellys evidence according to the context in which it was being considered or, as Lord Rodger so pertinently put it during argument, to face both ways. The decision not to prosecute Mr Donnelly on a charge of murder and one of causing an explosion when, according to police evidence, he had voluntarily admitted to both was a momentous one. It is unsurprising that Mr Junkin and Mr McLaughlin only felt able to take that course because they were convinced that he had been assaulted by police officers. It is simply incompatible with the prosecutions duty of fairness for a different position to be taken thereafter as to the manner in which Mr Donnellys injuries were caused unless there was fresh evidence that warranted a different view. In this instance there was no such evidence. Weatherup J was therefore perfectly right when he said that something had gone seriously wrong with the conduct of the trial. Crown counsel ought to have been aware of the DPPs position on this and, if he had been, cross examination of Mr Donnelly challenging his account of how he sustained his injuries would not have taken place. Although Weatherup J concluded that the circumstances of the reversal of the appellants convictions were capable of satisfying the test that Lord Bingham had propounded for eligibility for compensation under section 133, he felt bound to follow more recent authority in England and Wales, particularly R (Allen) (formerly Harris) v Secretary of State for Justice [2009] 1 Cr App R 36 which had expressed a clear preference for the test advocated by Lord Steyn in Mullen. The appellants appeal against the decision of Weatherup J was dismissed by the Court of Appeal. That court did not share Weatherup Js view that the circumstances revealed by the judgment which had quashed the appellants convictions were sufficient to satisfy Lord Binghams formulation of the correct test. The conclusions of the court are contained in para 15 of the judgment of the Lord Chief Justice: In the second category of cases it is necessary to demonstrate that something has gone seriously wrong in the conduct of the trial resulting in the conviction of someone who should not have been convicted. In this case the new facts upon which the appellants rely raise issues about the credibility of one police officer and one other witness. It is not possible to come to any conclusion as to whether the new facts would have led to a different outcome in respect of the assessment of either witness. The new evidence was sufficient to give rise to unease about the safety of the conviction but this is a case in which at its height it can only be said that the appellants might not have been convicted. Such a case lies outside either of the categories identified by Lord Bingham. That is also the reasoning of the decision in Boyles Application [2008] NICA 35 by which we are bound. Should the appellants have been acquitted? In re Boyles Application [2008] NICA 35 was an appeal in which the appellant claimed entitlement to compensation under section 133 and the ex gratia scheme which was then still extant. Some years after the appellants conviction a note taken of one of a series of interviews had been shown by electrostatic detection apparatus (ESDA) testing techniques to have been made at a time other than that claimed by police officers. Another version of the note for that single interview existed, contrary to the denials of the interviewing police officers. The differences were not substantial and nothing which was inculpatory of the appellant had been written in to the version of the notes that had been presented to the court and which the police officers claimed was the only note of the interview. Nevertheless, because the police officers had firmly denied that a different version had been prepared and because that had been shown to be incorrect, it was considered that doubt had been thrown on their credibility and the appellants conviction could not be regarded as safe. In dismissing Mr Boyles appeal against the finding that he was not eligible to apply for compensation under section 133, the Court of Appeal said at para 22: it is impossible for the appellant to assert that he should not have been convicted. One can certainly say that the police officers should not have given the evidence that they did. One may even say with confidence that the trial judge is bound to have taken an entirely different view of their credibility from the extremely favourable impression that he appears to have formed. But it is impossible to conclude that the appellant would not have been found guilty (much less that he should have been acquitted) if evidence of the other version of the interview notes had been given. The circumstances in the Boyle case were obviously and markedly different from those that arise in the present appeals of Mr McCartney and Mr MacDermott. The most that could be said in Boyle was that the newly discovered fact (that there was a different version of the notes of a single interview) cast doubt on the credibility of the police officers who asserted to the contrary. By contrast, although the Court of Appeal which quashed Mr McCartneys and Mr MacDermotts convictions expressed itself in a restrained fashion, there is simply no doubt that these appellants ought not to have been convicted. For the reasons that I have given, it was not open to prosecuting counsel to challenge Mr Donnellys account that he had been assaulted by police officers. I am satisfied that he would not have done so if he had been aware of the true circumstances in which the decision not to continue with the prosecution of Mr Donnelly had been taken. Mr Donnellys evidence that he had been assaulted would therefore have been received without challenge. That evidence, if uncontradicted, is bound to have changed the entire course of the trial. It could not have done less than establish the reasonable possibility that Detective Constable French had assaulted Mr Donnelly and that he had recorded a statement purporting to come from him but which was not given at Mr Donnellys dictation. When those inevitable findings were brought to bear on Mr MacDermotts case they could not have done other than create a doubt as to the voluntariness of his admissions. Section 8(2) of the Northern Ireland (Emergency Provisions) Act 1978 was in force at the date of the trial. It provided: If, in any such proceedings [ie criminal proceedings for a scheduled offence] where the prosecution proposes to give in evidence a statement made by the accused, prima facie evidence is adduced that the accused was subjected to torture or to inhuman or degrading treatment in order to induce him to make the statement, the court shall, unless the prosecution satisfies it that the statement was not so obtained (a) exclude the statement, or (b) if the statement has been received in evidence, either (i) continue the trial disregarding the statement; or (ii) direct that the trial shall be restarted before a differently constituted court (before which the statement in question shall be inadmissible). The trial judge had reminded himself of this provision at the beginning of his judgment. He said that the appellants had raised a prima facie case as required by the section and that, in those circumstances, the burden passes to the Crown to satisfy me beyond reasonable doubt that the statement, whose admissibility is challenged, was not obtained by ill treatment. In other words, a prima facie case of ill treatment having been established the burden rests squarely on the Crown of satisfying me (and by that I mean satisfying me beyond reasonable doubt) that the accused was not ill treated. In making these observations the trial judge was reflecting the well known statement of the law in this area provided by Lowry LCJ in R v Hetherington [1975] NI 164, 168 where he said: It is not for the defence to prove but for the prosecution to disprove beyond reasonable doubt in relation to each accused that he was not subject even to any degrading treatment in order to induce him to make a statement on which the Crown rely, the decision under section 6(2) [the precursor of section 8(2) of the 1978 Act] must be based solely on how the statement is proved to have been obtained and not on whether it was true. The prosecution would therefore have had to prove beyond reasonable doubt that the statements made by Mr McCartney and Mr MacDermott had not been obtained by any degrading treatment whatever. It can now be seen that this would have been an impossible task had the full facts and circumstances come to light. A person detained at the same time as Mr McCartney had been assaulted while in Castlereagh Police Office during the same period; the police officers who carried out the assaults on Mr Donnelly were part of the group of officers who were investigating the murders with which Mr McCartney was charged; one of the officers who had assaulted Mr Donnelly had been accused by Mr MacDermott of assaulting him; and the other officer who, according to Mr MacDermott, had assaulted him, had also interviewed Mr McCartney and had been accused of assault by him. Quite apart from these considerations, two further factors of substantial importance must be taken into account. Firstly, by the time that Mr McCartney and Mr MacDermott stood trial, Mr Barclays conviction, based on statements of admission allegedly obtained by Detective Constable French and Detective Constable Newell on interview, had been quashed. If the trial judge had been aware that this conviction had been quashed because the possibility that Mr Barclay had been assaulted by these two officers could not be excluded (which was the necessary implication from the finding of the Court of Appeal) he could not have concluded with the same firmness that he did that Detective Constable French had not engaged in ill treatment of Mr MacDermott. Secondly, once it was established, even as a reasonable possibility, that Mr Donnelly had been assaulted, the judges view of Dr Hendrons evidence could not have remained as he had expressed it in his judgment. Dr Hendron had stated unequivocally that he was convinced that Mr McCartney, Mr Donnelly and Mr Brady had been assaulted. The judge found that this opinion was sincerely held but that Dr Hendrons evidence was coloured by his conviction that the men had been attacked and on that account his testimony lacked professional objectivity. If it had become known that the doctors view about Mr Donnelly was shared by an assistant director and a senior assistant director in the department of the Director of Public Prosecutions, it is not likely that his opinion would have been dismissed in the manner that it was by the trial judge. The combined effect of all these factors makes it inevitable, in my opinion, that, had the judge been fully acquainted with all the material information about the reasons for the decision not to continue the prosecution of Mr Donnelly and the circumstances of the quashing of Mr Barclays convictions, he would not have convicted the appellants. Should the appellants have been prosecuted? Not only should the appellants have been acquitted, in my opinion they should not have been put to their trial. If prosecuting counsel had become aware of the shadow that necessarily fell on Detective Constable Frenchs evidence by the decision not to proceed with the prosecution of Mr Donnelly and by the quashing of Mr Barclays conviction, it is, in my view, inevitable that he could not have proffered this officer as a witness of truth on the issue of whether Mr MacDermott had been ill treated. Moreover, the conclusion of Mr Junkin and Mr McLaughlin that Mr Donnelly had been assaulted cast significant doubt on the evidence of the entire interviewing team. Although Mr McLaughlin considered that there was insufficient evidence to charge Detective Constables French and Newell, he was of the clear view that Mr Donnelly had been physically attacked by some police officers. It was therefore the case that the office of the Director of Public Prosecutions had determined that some officers within the team that conducted interviews of Mr Donnelly, Mr Brady and Mr McCartney had been guilty of assault on Mr Donnelly. Mr Brady alleged that he had been assaulted in much the same manner as Mr Donnelly had been. Despite this, he had not made admissions. He had no personal advantage to gain by fabricating his account of the attacks on him. The trial judge found, however, that he was prepared to do so in order to help a friend (Mr McCartney) and because of his animus towards the police. I cannot believe that the judge would have reached that view if he had known that the DPP had concluded that Mr Donnelly had been assaulted and that Mr Barclays conviction had been quashed because of the reasonable possibility that two members of the same interviewing team had also assaulted him. Likewise, I cannot believe that if experienced Crown counsel had been aware of these matters he would have done other than advise that the prosecution of Mr McCartney and Mr MacDermott should not proceed. That prosecution was only viable if there was a realistic prospect of the Crown establishing beyond reasonable doubt that Mr McCartney and Mr MacDermott had not been ill treated. Any objective assessment of all the circumstances as they are now known was bound to have resulted in the conclusion that there was no such prospect. In reaching this view I intend no criticism whatever of counsel who, for the reasons that I have given, must have been wholly unaware of why it had been decided not to prosecute Mr Donnelly. He must also have been ignorant of the fact that Mr Barclays conviction had been quashed and of the circumstances in which that had occurred. A fortiori, no criticism of the trial judge is warranted. On the contrary, he made what in retrospect was an astute and pertinent inquiry as to why Mr Donnelly had not been prosecuted and was not given the information which, if it had been provided, would certainly have led to a completely different outcome. While it might be said that the assistant director and the senior assistant director in the department of the Director of Public Prosecutions ought to have been alive to the impact that their conclusion about the assaults on Mr Donnelly was bound to have on the propriety of proceeding with the prosecution of Mr McCartney and Mr MacDermott, there is no reason to suppose that they were aware of the quashing of Mr Barclays convictions or of the evidence of Mr Brady. Neither is discussed in the exchange of memoranda between Mr Junkin and Mr McLaughlin. These are matters which have played a significant part in leading me to the conclusion that the prosecution of Mr McCartney and Mr MacDermott ought not to have taken place. In deciding that the appellants ought not to have been convicted and, indeed, ought not to have been required to stand trial, I have gone beyond the findings of the Court of Appeal which quashed their convictions. On one reading, the letter of 16 May 2008 sent on behalf of the Secretary of State suggests that the judgment of the Court of Appeal provides the exclusive basis on which the Secretary of State decides if the conditions for statutory compensation are fulfilled. And much was made in the course of argument of an answer given by Earl Ferrers in the course of the passage through the House of Lords of the Bill which ultimately became the 1988 Act. Earl Ferrers answer was to the effect that the Secretary of State would regard the Court of Appeals view as to whether there had been a miscarriage of justice as binding. In my opinion, the decision as to whether the statutory conditions have been fulfilled is one for the Secretary of State to make and he may not relinquish that decision to the Court of Appeal. True, of course, it is that the material on which the decision is taken will derive in most cases from the judgment of the Court of Appeal. True it also is that it would not be appropriate for the Secretary of State to depart from the reasoning that underlies that judgment unless for good reason it is shown to be erroneous but the Secretary of State must make his own decision based on all relevant information touching on the question whether there has been a miscarriage of justice. In the present appeals, Weatherup J considered that it was open to him to examine the question whether there had been a miscarriage of justice not merely by reference to what the Court of Appeal had said but by taking into account the circumstances revealed by its judgment. At para 20 of his judgment he said: Counsel for the respondent contends that there is nothing in the judgment of the Court of Appeal indicating that the applicants should not have been convicted. It should not be expected that a Court of Appeal will state in terms that an appellant should not have been convicted. The approach of the Court of Appeal on an appeal against conviction is concerned with whether that conviction is unsafe. In taking the cue from the Court of Appeal in determining a successful appellants entitlement to compensation it is necessary to have regard to the circumstances set out in the judgment of the Court of Appeal as well as the wording adopted in the judgment in relation to the position of the appellant. I agree with these observations and they appear, implicitly at least, to have been approved by the Court of Appeal. As Weatherup J stated, the task of the Court of Appeal is not to decide whether the appellant should have been convicted, much less to determine whether the appellant is innocent. It is to decide whether the conviction is safe. The decision whether there has been a miscarriage of justice (whatever meaning is to be given to that phrase) of necessity takes place on a different basis and on foot of consideration of issues beyond those which sound only on whether the conviction is safe. Section 133 As Lord Hope has said, it has been possible until now for courts to avoid a final resolution of the question of what is required in order to establish entitlement to compensation under section 133 of the 1988 Act. Must a person whose conviction has been reversed as the result of a new or newly discovered fact show that he was innocent (Lord Steyns view in Mullen) or can eligibility arise in somewhat wider circumstances (Lord Binghams provisional opinion)? These appeals require this court to confront that debate and to resolve that conflict. For the reasons given by Lord Hope and Lord Clarke, with which I agree, the analysis of Lord Bingham in Mullen as to the possible scope of section 133 is to be preferred to that of Lord Steyn. I cannot accept that the section imposes a requirement to prove innocence. In the first place, not only does such a requirement involve an exercise that is alien to our system of criminal justice, that system of justice does not provide a forum in which assertion of innocence may be advanced. An appeal against conviction heard by the Court of Appeal Criminal Division is statutorily required to focus on the question whether the conviction under challenge is safe. In a number of cases, evidence may emerge which conclusively demonstrates that the appellant was wholly innocent of the crime of which he or she was convicted but that will inevitably be incidental to the primary purpose of the appeal. The Court of Appeal has no function or power to make a pronouncement of innocence. It may observe that the effect of the material considered in the course of the appeal is demonstrative of innocence but it has no statutory function to make a finding to that effect: R v McIlkenny (1991) 93 Cr App R 287. It is therefore not surprising that in New Zealand when the Law Commission proposed that a prerequisite of establishing entitlement to compensation for a wrongful conviction was proof of innocence, it was careful to recommend that a tribunal be set up in which that issue could be frankly addressed and confidently determined: see New Zealand Law Commission Report No 49 (1988) Compensating the Wrongly Convicted paras 124 127 and 136 137. In Canada in 1988 Federal/Provincial Guidelines on Compensation for Wrongly Convicted and Imprisoned Persons likewise required that there be proof of innocence in order to qualify under the ex gratia scheme operated there. In the case of Dumont v Canada (Communication 1467/2006, 21 May 2010) the UN Human Rights Committee held that the failure of the state authorities to establish a procedure for conducting an investigation to examine whether the applicant was innocent and to possibly identify the real perpetrator constituted a breach of article 2(3) of ICCPR read in conjunction with article 14(6). Article 2(3)(a) requires that state authorities provide an effective remedy in the form of access to a procedure in which adequate compensation can be claimed. The respondents in this case rely on the experience in New Zealand and Canada in support of their argument that a miscarriage of justice within the meaning of article 14(6) of the Covenant occurs only when the convicted person is in fact innocent of the offence with which he is charged. The Human Rights Committee in Dumont, while recording the states submission to that effect, reached its decision without adjudicating on it. The New Zealand Law Commissions report does not suggest that article 14(6) must be given that meaning. On the contrary para 71 of the report states that article 14(6) while an important normative statement by the international community and a reference point for domestic compensation schemes was not relied on as a model for the Commissions recommended scheme. There was no unanimity as to the meaning to be given to miscarriage of justice among the delegates who were involved in the negotiations which led to the adoption of ICCPR: see para 9(2) of Lord Binghams speech in Mullen. As he observed, it is possible that the expression commended itself because of the latitude in interpretation which it offered. Or, as the New Zealand Law Commission put it, it is a normative statement which provides a general template for domestic provisions in the subscribing states which can vary as to content. Certainly, while the travaux prparatoires may be regarded as neutral on the meaning of the expression, it is unquestionably clear from these that every proposal that its ambit should be confined to compensating those whose innocence was established was roundly defeated. Against that background, it would be a surprising conclusion that article 14(6) had the very effect that a majority of delegates clearly did not intend. The twin theses on which Lord Steyn relied to support his conclusion that proof of innocence was required in order to establish entitlement to compensation under section 133 have been subject to scrupulous examination in paras 93 and 94 of Lord Hopes judgment. For the reasons that appear there, with which I fully agree, these arguments can no longer be regarded as sound. I also agree with Lord Clarkes reasons for rejecting Lord Steyns formulation of the test. As Lord Clarke has pointed out, if Parliament had intended that a proof of innocence test was to be preferred, that could surely have been easily prescribed. The debate as to whether such a test was appropriate had been extensively referred to in the travaux prparatoires and it is to be presumed that Parliament was aware of this when it came to enact section 133. Confining the application of the section to those who could show that they were innocent was, in any event, a perfectly obvious option. The failure to articulate that test in the legislation can only be explained on the basis that Parliament decided not to choose that option. This conclusion is fortified by the consideration that the expression miscarriage of justice, although its meaning may vary according to context, is a very familiar one in our system of law. In no other context has it been used to connote proof of innocence. I am therefore satisfied that proof of innocence cannot be the criterion on which entitlement to compensation under section 133 is to be determined. Rejection of this hypothesis brings with it the need to determine how miscarriage of justice is to be interpreted. As Lord Hope has said, a fresh analysis is required and for the reasons that he gives the answer is not necessarily provided by the speech of Lord Bingham in Mullen. The use of the word conclusively in article 14(6) of ICCPR and the expression beyond reasonable doubt lends support to the view that the section does not contemplate that all whose convictions have been quashed and who satisfy the other requirements of the section will be entitled to compensation. On this there is no dispute between the parties to these appeals. Lord Hope has proposed that the section should be interpreted as targeting those cases where, as a consequence of the state of affairs revealed by the new or newly discovered fact, it can be concluded that no prosecution ought to have taken place. Lord Clarke prefers to define the category of eligibility as extending to those cases where the new or newly discovered fact leads inexorably to the conclusion that no jury, properly directed, would have convicted. As a matter of practical experience, there may be little difference as to which of these tests should be applied. But it is important that, if possible, clear guidance be given by this court as to the circumstances in which the section should be held to apply. Lord Hope has pointed out that requiring the Secretary of State to apply a test which refers to what a reasonable jury would do is not appropriate since this is a matter best left to the courts. Lord Clarke, on the other hand, suggests that a test which requires the Secretary of State to focus on whether the claimant should never have been prosecuted runs the risk of the inquiry wrongly focusing on the propriety of the decision to prosecute by reference to the circumstances that obtained when the decision was taken. There is substance in both concerns. I believe that a simple test can cater for these concerns and will also faithfully reflect the intention of article 14 (6) and section 133 that only truly deserving applicants should be included in the compensatory scheme. The test which I would have proposed was: whether, on the facts as they now stand revealed, it can be concluded beyond reasonable doubt that the applicant should not have been convicted. Lord Phillips has suggested that the test should be worded in the following way: the new fact shows that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it. This appears to me to achieve the same result as the test which I would have proposed and I am therefore quite content to subscribe to his formulation. The proper application of either test ties entitlement to compensation firmly to the true factual situation. Procedural deficiencies that led to irregularities in the trial or errors in the investigation of offences will not suffice to establish entitlement to compensation. A claimant for compensation will not need to prove that he was innocent of the crime but he will have to show that, on the basis of the facts as they are now known, he should not have been convicted or that conviction could not possibly be based on those facts. Of course, if innocence can be proved, the test, on either formulation, will be amply satisfied. The adoption of a single, simple test dispenses with the need to consider possible categories of entitlement which, I believe, tends more to confuse than to enlighten. As it happens, although it is possible to construct from Lord Binghams observations a fourth category of case beyond the three that were identified by Toulson LJ in giving permission to appeal in the Adams case, I do not believe that Lord Bingham intended that this be considered a freestanding category. New or newly discovered fact I find myself in complete agreement with the reasoning of Dyson LJ on this issue in the judgment of the Court of Appeal in Adams [2010] QB 460, paras 14 16 and with what Lord Phillips has had to say on the matter in paras 59 63 of his judgment. The newly discovered limb of the requirement clearly, to my mind, connotes discovery by the party who prays it in aid to demonstrate that he should not have been convicted. It would be wholly anomalous, as Dyson LJ has pointed out, that a person whose innocence can be conclusively proved, should be deprived of compensation simply because his lawyers failed to communicate the vital information or failed to grasp its significance. Does denial of compensation infringe the presumption of innocence? Lord Hope has dealt comprehensively with the arguments made by the appellants on this issue in paras 108 to 111 of his judgment. I agree with his reasons for rejecting the arguments. There is nothing further that I could usefully say on the topic. Conclusions I would allow the appeals of Mr McCartney and Mr MacDermott. For the reasons that I have given, I am satisfied that, on the facts as they are now known, they should not have been convicted. As it happens, I am also satisfied that they ought not to have been prosecuted and their cases therefore fulfil the requirement that Lord Hope has formulated. Clearly they also satisfy the test preferred by Lord Clarke of being cases in which no reasonable jury, properly directed, could convict. Like Lord Phillips and Lord Hope I consider that both are entitled to be compensated under section 133. Although I would hold that the material on which Mr Adams relied constituted a newly discovered fact, I do not consider that he has demonstrated that, on the facts as they now stand revealed, it can be concluded beyond reasonable doubt that he should not have been convicted. I would dismiss his appeal. LORD CLARKE Introduction I gratefully adopt Lord Hopes description of the background to the introduction of the statutory right to compensation for miscarriages for justice in section 133 of the Criminal Justice Act 1988 in the light of article 14(6) of the ICCPR. He has set out the relevant provisions of section 133 and article 14(6). I shall not therefore repeat them. The principal issues for decision in this appeal are the meaning of the expressions miscarriage of justice and new or newly discovered fact in those provisions. Miscarriage of justice The meaning of this expression has been considered in a number of cases as described by Lord Hope. I agree with him that it is helpful to consider its meaning in the present context by reference to the categories identified by Toulson LJ when giving permission to appeal to the Court of Appeal in the Adams appeal which are described by Dyson LJ [2010] QB 460, at para 19 of his judgment which is quoted in full by Lord Hope. Dyson LJ described the categories of case thus: A category 1 case is where the court is sure that the defendant is innocent of the crime of which he has been convicted. An obvious example is where DNA evidence, not obtainable at the time of trial, shows beyond doubt that the defendant was not guilty of the offence. A category 2 case is where the fresh evidence shows that he was wrongly convicted in the sense that, had the fresh evidence been available at the trial, no reasonable jury could properly have convicted. An example is where the prosecution case rested entirely on the evidence of a witness who was put forward as a witness of truth and fresh evidence undermines the creditworthiness of that witness, so that no fair minded jury could properly have convicted on the evidence of that witness. It does not follow in a category 2 case that the defendant was innocent. A category 3 case is where the fresh evidence is such that the conviction cannot be regarded as safe, but the court cannot say that no fair minded jury could properly convict if there were to be a trial which included the fresh evidence. The court concludes that a fair minded jury might convict or it might acquit. There is a fourth category of case to which Lord Bingham referred in R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1. This is where a conviction is quashed because something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted. The respondents say that there is only a miscarriage of justice within the meaning of article 14(6) and section 133 in a category 1 case. They say that the provision that the new or newly discovered fact must show conclusively (in article 14(6)) or beyond reasonable doubt (in section 133(1)) that there has been a miscarriage of justice points to the conclusion that it is only where the claimant can prove his innocence that there has been a miscarriage of justice. The appellants say, by contrast, that the words conclusively and beyond reasonable doubt do not inform the meaning of miscarriage of justice but only indicate the standard of proving the miscarriage of justice, once its meaning has been established. They say that if the Court of Appeal allows an appeal in any of the three categories of case there will have been a miscarriage of justice, unless the claimant is convicted at a retrial. Another possibility is, of course, that section 133 applies in a category 1 and a category 2 case, but not to a category 3 case. Category 1 proof of innocence I turn first to the question whether the expression miscarriage of justice is confined to the case where the claimant can prove beyond reasonable doubt that he was innocent. This was of course the view espoused by Lord Steyn in Mullen. Lord Bingham expressed a different view in that case, albeit without reaching a firm conclusion, and Lord Hope has taken a different view in this case. I agree with him. To my mind there is nothing in either the language or the context to limit the meaning of miscarriage of justice to the case where the claimant can prove that he was innocent. If that is so, it is not for the court to limit the meaning because its own view is that it would be desirable to do so as a matter of policy. Such matters of policy are for Parliament and not for the courts. It is common ground that the expression is capable of a broader meaning than that espoused by Lord Steyn. For reasons which I explain below, to my mind the natural meaning is broader, but I will begin with the context because I appreciate that, as has famously been said, context is everything. The context of section 133 is of course article 14(6). Both Lord Steyn and Lord Bingham considered the travaux prparatoires in Mullen. In para 9(2) of his speech Lord Bingham said this: The House was referred to the travaux prparatoires of the negotiations which culminated in adoption of the ICCPR. It is plain that some delegates contended that compensation should not be paid save to those who were shown to be innocent, and such delegates found no difficulty in expressing this very simple principle. But it is equally plain, as Mr Pleming submitted, that every proposal to that effect was voted down. The travaux disclose no consensus of opinion on the meaning to be given to this expression. It may be that the expression commended itself because of the latitude in interpretation which it offered. It is common ground that the expression miscarriage of justice in article 14(6) and therefore section 133(1) should if possible be given an autonomous meaning. Although the travaux are far from conclusive, they do seem to me to point the way because, as Lord Bingham put it, every proposal that innocence should be the test was turned down. So, if the expression is to be given an autonomous meaning, it cannot be limited to cases where innocence can be shown. It follows that I do not agree with Lord Steyns view that the travaux do not assist in any way. On the contrary, they assist on the first question in this appeal, namely whether proof of innocence should be the test. I agree with Lord Steyn (at para 35) that there is no foundation in the language of article 14(6) and section 133, or by reference to any relevant external aids to construction, for the suggestion that Parliament intended to use the words miscarriage of justice in any wider sense than it bears in article 14(6) and that Parliament intended to give effect to the United Kingdoms international obligations in article 14(6) and no more. I would add and no less. Parliament used the same or almost the same language, so that there is to my mind no warrant for holding that it intended to confer narrower rights to compensation than those afforded by article 14(6). As Lord Hope observes at para 91, Lord Steyn correctly said at para 45 that both article 14(6) and section 133 show that there was no overarching purpose of compensating all who are wrongly convicted. This is demonstrated by the fact that compensation only arises at all in the case of appeals out of time and by the indispensable pre condition that a new or newly discovered fact shows conclusively (or beyond reasonable doubt) that there has been a miscarriage of justice. So, for example, in the case of a recognition that an earlier dismissal of an appeal was wrong, the case falls outside article 14(6). That is so, however palpable the error in the first appellate decision may have been, and however severe the punishment that the victim suffered unjustly. As Lord Steyn put it, those considerations demonstrate that the fundamental right under article 14(6) was unquestionably narrowly circumscribed. Para 46 is the only paragraph in which Lord Steyn focuses on the relevant language. In it, as Lord Hope explains at paras 91 and 92, Lord Steyn focused on the language of article 14(6) and section 133, and in particular on the use of conclusively and beyond reasonable doubt respectively. He said that that language filters out cases where it is only established that there may have been a wrongful conviction and cases where it is only probable that there has been a wrongful conviction. He observed that those two categories would include the vast majority of cases where an appeal is allowed out of time. He concluded that those considerations militated against an expansive interpretation of miscarriage of justice and ultimately held that: While accepting that in other contexts a miscarriage of justice is capable of bearing a narrower or wider meaning, the only relevant context points to a narrow interpretation, viz, the case where innocence is demonstrated. I accept that the language points to a narrow construction but not that it is restricted to the case where innocence is demonstrated. Indeed, to my mind Lord Steyn did not point to any reason why the right to compensation should be so confined. There is nothing in the language or the context to lead to the conclusion that cases in category 2 should be excluded. Yet the expression miscarriage of justice naturally includes such a case. Indeed it seems to me to be the paradigm case. A criminal trial is concerned (and concerned only) with the question whether the prosecution has proved beyond reasonable doubt to the satisfaction of the jury that the defendant is guilty of the offence charged. If the new or newly discovered fact shows that, in the light of it, no reasonable jury, properly directed, could have convicted the accused, to my mind his conviction would, in ordinary language, be a miscarriage of justice. I see no reason why such a case should not be a miscarriage of justice within the meaning of article 14(6) or section 133(1). None of Lord Steyns reasoning leads to the conclusion that it is not. He himself did not address this possibility. In paras 91 to 95 Lord Hope has given his reasons for disagreeing with Lord Steyn that innocence must be proved. I agree with them. I would very briefly summarise my own reasons (in addition to those already given) in this way. (a) (b) If Parliament had intended to limit miscarriages of justice to cases where the claimant could prove innocence, it would have been easy to say so. As Lord Bingham put it in Mullen at para 9(2) quoted above, those delegates who wished to limit compensation in that way found no difficulty in expressing this very simple principle. In para 9(1) Lord Bingham noted that when what was to become section 133 was debated in the House of Lords, the minister, Earl Ferrers, was pressed by Lord Hutchinson QC to say whether a miscarriage of justice connoted the innocence of a defendant or the raising of a doubt about his guilt, but the minister said nothing to suggest that compensation would be payable only to the innocent: Hansard (HL Debates), 22 July 1988, cols 1631 1634. (c) Lord Steyns reliance upon the words une erreur judiciaire in the French text of article 14(6) was unsound for the reasons given by Lord Hope at para 93. (d) The five reasons given by Lord Bingham in para 9(4) of Mullen for thinking that reliance upon para 25 of the explanatory report prepared by a committee of experts on human rights with reference to article 3 of the Seventh Protocol was not of the persuasive value which Lord Steyn identified are convincing: see Lord Hope at para 94. (e) Little assistance is to be gained from either the jurisprudence of the United Nations Human Rights Committee or academic opinion. (f) Courts of appeal are not called upon to decide whether defendants are innocent: see Lord Bingham at para 9(6) and Lord Hope at para 95. If, as I believe is the case, Lord Steyns test is too narrow, the question arises what is the correct construction of the expression miscarriage of justice in this context. I will consider the possibilities in turn. Category 2 no reasonable jury properly directed could convict Category 2 would of course include category 1, but not vice versa. Mr Owen QC submitted that cases in this category would involve a miscarriage of justice, although he also sought to include category 3, to which I will return. I have already expressed my view that there is nothing in the language or context of article 14(6) or section 133 to exclude category 2 and that the expression naturally includes it. Absent any clear indication in the language or context, it is to my mind permissible to have regard to the approach to it within the United Kingdom. In 1988 the Court of Appeal in England and Wales determined criminal appeals by reference to the unamended section 2(1) of the Criminal Appeal Act 1968. The proviso to that subsection provided that, notwithstanding that the Court of Appeal were of the opinion that the point raised in the appeal might be decided in favour of the appellant, they may dismiss the appeal if they consider that no miscarriage of justice has actually occurred. In R v Secretary of State for the Home Department, Ex p Bateman (1994) 7 Admin LR 175 the Court of Appeal (Sir Thomas Bingham MR, Farquharson and Simon Brown LJJ) dismissed an appeal from an order of the Divisional Court refusing judicial review of a decision refusing the appellant compensation under section 133. He had been convicted of several counts of receiving stolen goods and sentenced to six years imprisonment. He had appealed to the Court of Appeal on the ground that he had been convicted on the basis of evidence in statement form given by witnesses from New Zealand. His appeal failed. Some time later his case was referred back to the Court of Appeal under section 17 of the Criminal Appeal Act 1968. This time his appeal succeeded on what was essentially the same ground as that which had failed before and his convictions were quashed. In the Court of Appeal he argued inter alia that the second Court of Appeal must have regarded his conviction as a miscarriage of justice because they would otherwise have applied the proviso. Sir Thomas Bingham (with whom the other members of the court agreed) said this: Therefore, it follows, he says, that he is a victim of a miscarriage of justice and from that it follows that he is entitled to compensation. To deny him compensation is, he argues, to undermine his acquittal and the presumption of innocence which flows from the fact that his convictions have been quashed. I am, for my part, unable to accept that argument, although I hasten to assure Mr Bateman that in doing so I have no intention whatever to undermine the effect of the quashing of his convictions. He is entitled to be treated, for all purposes, as if he had never been convicted. Nor do I wish to suggest that Mr Bateman is not the victim of what the man in the street would regard as a miscarriage of justice. He has been imprisoned for three and a half years when he should not have been convicted or imprisoned at all on the second decision of the Court of Appeal (Criminal Division). The man in the street would regard that as a miscarriage of justice and so would I. But that is not, in my judgment, the question. The question is whether the miscarriage of justice from which Mr Bateman has suffered is one that has the characteristics which the Act lays down as a pre condition of the statutory right to demand compensation. That, therefore, is the question to which I now turn. The Master of the Rolls then held that there was no new or newly discovered fact, so that Mr Bateman could not satisfy the relevant criteria under section 133. The relevance of the statement quoted above is that it supports the conclusion that the Master of the Rolls accepted that there had been a miscarriage of justice within the meaning of section 133, which in turn supports the conclusion that that expression is not limited to cases in which the claimant can prove his innocence. It is perhaps the forerunner of Lord Binghams approach in Mullen. A similar conclusion can be drawn from the terms of section 106, of the Criminal Procedure (Scotland) Act 1995, which sets out the test for criminal appeals in Scotland. By subsection (3) it provides: By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on (a) subject to subsections 3A to 3D below, the existence and significance of evidence which was not heard at the original proceedings; and (b) the jurys having returned a verdict which no reasonable jury, properly directed, could have returned. It can thus be seen that a miscarriage of justice for the purposes of a fresh evidence appeal in Scotland includes the case where the jurys verdict is one which no reasonable jury, properly directed, could have returned. That is of course a category 2 case. Section 106(3) is thus an example of the expression miscarriage of justice being used in a very similar context to that with which we are concerned. It has been suggested that to include category 2 within the test of miscarriage of justice in section 133 would cause difficulties of application. For my part, I would not accept that suggestion. It is a test used at the end of the prosecution case in countless criminal trials in England and Wales. Moreover, it is used in the Court of Appeal in England and Wales. While it is not the question for decision in an English appeal because the question is now simply whether the conviction is safe, it is plainly relevant when a retrial is sought. The Court of Appeal would not make an order for a retrial if it formed the view that the effect of the new or newly discovered evidence led to the conclusion that no reasonable jury, properly directed, could convict. Moreover, so far as I am aware, this test has caused no difficulty in criminal appeals in Scotland. It is a test which is familiar to the criminal trial and appeal process, which the proposed test of innocence is not. As Lord Hope has observed at para 95, in R (Allen) (formerly Harris) v Secretary of State for Justice [2009] 2 All ER 1 at para 40(iii) Hughes LJ said that cases where the innocence of the convicted defendant is genuinely demonstrated beyond reasonable doubt by the new or newly discovered fact the Court of Appeal will, in virtually every case, make that plain. However, that may not be the case and, as Lord Hope says, the Court of Appeal is not bound to say whether or not a defendant is innocent. In this regard there is authority for the proposition that the Court of Appeal is neither obliged nor entitled to say whether an appellant is innocent: see R v McIlkenny (1991) 93 Cr App R 287 at 310 311. Whether that is correct or not, I agree with Lord Hope that, to put it no higher, it is at least questionable whether it can be right to restrict the entitlement to compensation to cases where the establishment of innocence is apparent from the Court of Appeals judgment. It is of interest in the context of this debate to note that it is common ground that it was only after the decision in Mullen that Secretaries of State have applied an innocence test and that they do not do so in Scotland even now. It was suggested in argument that it is not appropriate for the Secretary of State, and not a court, to make judgments of this kind. However, section 133(3) expressly provides that the question whether there is a right to compensation shall be determined by the Secretary of State. Nobody has suggested that it is not appropriate for the Secretary of State to decide whether the claimant has proved that the new or newly discovered fact shows that he is innocent. It does not seem to me to be any less appropriate for the Secretary of State to decide whether he has proved that it shows that no reasonable jury could have convicted him. In reaching his or her conclusion the Secretary of State is of course bound to have regard to what the Court of Appeal which reverses the conviction has said. In In re McFarland [2004] UKHL 17, [2004] 1 WLR 1289 Lord Bingham said at para 16, albeit in the context of a claim under the ex gratia scheme, that the Secretary of State must properly be guided by the judgment of the Court of Appeal. However, it seems to me that it is for the Secretary of State to have regard to all relevant material when deciding whether the claimant has established beyond reasonable doubt that, in the light of the new or newly discovered fact, no reasonable jury, properly directed, could have convicted him. I see no reason why the Secretary of State could not decide that question, whether on the grounds of innocence or otherwise. As I see it, the matter has to be tested as at the date of the reversal, having regard both to the evidence that was available at the trial and to the new or newly discovered facts. I would include in the evidence available at the trial, all such evidence, not just that adduced on behalf of the prosecution, but also that adduced during the defence case. I would therefore include admissions made by the defendant in cross examination in a case in which the new evidence showed that the case should have been stopped. The question is whether, on that material, he had a case to answer or, put another way, whether a reasonable jury properly directed could have convicted him. If he proves beyond reasonable doubt that the answer to those questions is no, he is in my opinion entitled to compensation under section 133 on the basis that there has been a miscarriage of justice. I entirely accept that the cases in which compensation can be claimed are limited by the necessity to satisfy the criteria in the section and by the need to show beyond reasonable doubt that the new or newly discovered fact demonstrates, in the light of the other material before the court that no reasonable jury, properly directed, could have convicted him. The Secretary of State would of course have to be satisfied that the alleged fact was indeed a fact. I should add by way of postscript that, as I see it, category 2 potentially includes a case where the new or newly discovered fact is such that, if it had been known at the trial, the trial judge would have stopped the trial on the ground of abuse of process. If the Court of Appeal concluded that a new trial could not properly be ordered on the basis that it was not possible to cure the abuse, so that no reasonable jury, properly directed, could convict, there would, in my opinion have been a miscarriage of justice within section 133. It seems to me that this must be within the kind of miscarriage of justice which Lord Bingham had in mind in Mullen, namely where a conviction is quashed because something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who certainly should not have been convicted. Since Mullen, some doubt has been expressed as to whether the basis upon which it was decided is correct. See, for example, R (Siddall) v Secretary of State for Justice [2009] EWHC 482 (Admin) per Leveson LJ at paras 47 48. The basis on which it was decided by the majority, comprising Lord Bingham, Lord Scott, Lord Rodger and Lord Walker was that Mr Mullens conviction had been reversed by the Court of Appeal on the ground that there had been an abuse of executive power and not any failure in the trial process: see per Lord Bingham at para 8, Lord Scott at para 65, Lord Rodger at para 69 and Lord Walker at para 70. In particular, Lord Bingham said that it was for failures in the trial process that the Secretary of State is bound by article 14(6) and section 133 to pay compensation. He distinguished those from abuse of executive power. He did so by reference to R v Horseferry Road Magistrates Court, Ex p Bennett [1994] 1 AC 42 per Lord Griffiths at pp 61 62 and R v Looseley [2001] 1 WLR 2060 at para 40. Lord Scott said that the Court of Appeal had not reversed the conviction because there had been any failure in the trial process but because, prior to the commencement of the trial process, there had been serious abuse of executive power which had led to the removal of the claimant from Zimbabwe to this country and thus enabled the trial to take place. Although Leveson LJ observed that this distinction has its difficulties and noted that Lord Steyn said at para 57 that, if that abuse had been disclosed the trial would have been stopped, and in its written submissions Justice suggested that Mullen might now be decided differently on its facts. There is I think scope for argument in the future as to whether there is a class of cases in which the section would not apply, of which Mullen is an example. They are cases in which it has been held that the trial should not be permitted to proceed, not because of anything related to the case against the defendant, but because to permit it would offend against the rule of law or would seriously affect the integrity of the administration of justice. In quashing Mullens conviction Rose LJ, giving the judgment of the Court of Appeal, said at [2000] QB 520, 535 536: This court recognises the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted and furthered the violent operations of the IRA and other terrorist organisations. In the discretionary exercise, great weight must therefore be attached to the nature of the offence involved in this case. Against that, however, the conduct of the security services and police in procuring the unlawful deportation of the defendant in the manner which has been described represents, in the view of this court, a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts. The need to discourage such conduct on the part of those who are responsible for criminal prosecutions is a matter of public policy to which, as appears from R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42 and R v Latif [1996] 1 WLR 104, very considerable weight must be attached. It appears to me to be at least arguable that such a case would not fall within section 133. None of the cases before the Court in these appeals is such a case. I recognise that Lord Phillips rejects category 2 as a test and that he has suggested an alternative test. However, section 133 inevitably requires the Secretary of State to consider the effect of the new or newly discovered fact upon the other evidence before the court and thus on the validity of the conviction. This involves the evaluation of the evidence in its legal context. It also expressly requires the Secretary of State to decide whether in the light of all the evidence the claimant has shown beyond reasonable doubt that there has been a miscarriage of justice. In considering all these questions, the Secretary of State can of course always take such advice as is appropriate. I remain of the view that category 2 is an appropriate formulation of the test and that the position is or should be as stated above. Compensation is only payable where, in the light of the new or newly discovered fact, no reasonable jury, properly directed, could have convicted or, subject perhaps to the point made in para 215 above, where the new or newly discovered fact would have led the judge to stop the case on the ground of abuse in the trial process. However, I recognise that Lord Phillips suggests replacing the category 2 test with a more robust test. It is that a new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it. I have assumed that the second it means the evidence against the defendant. To my mind that test is consistent with the category 2 test identified above because, in such a case, no reasonable jury properly directed, could convict the defendant. For that reason and on that basis, I would accept the proposed test, with which Lord Hope, Baroness Hale and Lord Kerr agree. Category 3 unsafe conviction Section 2(1) of the Criminal Appeal Act 1968, as substituted by section 2(1) of the Criminal Appeal Act 1995, provides that the Court of Appeal shall allow an appeal if they think the conviction is unsafe. The proviso in the previous section 2(1) was repealed. Mr Owen submitted that where a qualifying appeal is allowed on the basis that the claimant has shown beyond reasonable doubt that the conviction was unsafe because of a new or newly discovered fact, it follows that there was a miscarriage of justice within the meaning of section 133. It is certainly possible to construe the expression miscarriage of justice as wide enough to include such a case. I do not however think that Parliament can have intended the expression to have such a wide meaning in section 133(1) because it would have been easy for the section to have been drafted in such a way as to include every case where the relevant appeal was allowed on the basis of a new or newly discovered fact. Moreover none of the courts which have considered section 133 have suggested that it might have such a wide meaning: see the cases referred to by Lord Hope at para 82. In particular, the formulation of the test by Lord Bingham in Mullen does not encompass every case where the conviction was held to be unsafe on the basis of new evidence. His formulation was that there is a miscarriage of justice where a conviction is quashed because something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who certainly should not have been convicted. It is not possible to say that, merely because a conviction has been quashed because it was unsafe, the appellant should not have been convicted. A conviction may be unsafe because the Court of Appeal concludes that, but for the successful ground of appeal, the jury might not have convicted. Indeed, this is by far the most common case in which an appeal is allowed. It is a category 3 case in which, as Dyson LJ put it in the passage quoted above, a fair minded jury might convict or might acquit. In such a case I do not think that one can say as a matter of course that the defendant should not have been convicted. It seems to me that it is only in a category 2 case (which of course includes a category 1 case) that it can be said that a person should not have been convicted. It can be so held in such a case because it follows from the conclusion that no reasonable jury, properly directed, could have convicted the defendant that he should not have been convicted. Any lesser test is to my mind too uncertain and would not satisfy the statutory test that, in order to be entitled to compensation, the claimant must prove beyond reasonable doubt that there has been a miscarriage of justice. If he might have been convicted by a jury on all the evidence including the new or newly discovered fact, he cannot show for sure that there has been a miscarriage of justice within section 133(1). Retrial Section 133(5A) was not part of section 133 when Mullen was decided. It makes it clear that, where the claimant succeeds on appeal but is convicted at a retrial, he is not entitled to compensation because his conviction has not been reversed. If his appeal succeeds and the Court of Appeal orders a retrial, but the prosecution decides not to proceed with the retrial, the conviction is treated a reversed when it so indicates. In these circumstances, the position is as described above. If a retrial takes place and the claimant is acquitted of all offences at a retrial, there is scope for debate as to the position. By subsection (5A) the conviction is treated as reversed when he is so acquitted. It is not necessary to decide this question in this appeal but it is my provisional view that the same approach as described above would apply. Thus, in order to be entitled to compensation, he would have to prove beyond reasonable doubt that on the basis of the new or newly discovered fact no reasonable jury would have convicted him. New or newly discovered fact The question is what is meant by a new or newly discovered fact. In particular the question is what is meant by a newly discovered fact. Mr Tam QC submitted that a fact which was known to the prosecution and knowable to the defence because it was available to them, but which they did not know because they did not take the steps they should have taken to examine the evidence was not a newly discovered fact. I would not accept that submission. If the fact was not in fact discovered at or before the trial or at an in time appeal but was discovered thereafter, it follows that it was a newly discovered fact. The question is whether it was discovered earlier, not whether it was discoverable earlier. In my opinion the fact that it was discovered by the prosecution before the appeal is irrelevant. In neither of the appeals before the Supreme Court were the relevant facts discovered by the defendants or their lawyers at or before the trial or the in time appeal. It follows that they were newly discovered facts. The fact that in the Adams case they were discoverable by the defendants lawyers is irrelevant. As I see it, therefore, on the facts of these appeals this part of the test is satisfied. However, there was much debate as to whether it is possible for a fact to be a newly discovered fact if it was known to the defendants lawyers. In my opinion it is. Section 133(1) is subject to the proviso unless the non disclosure of the unknown fact was wholly or partly attributable to the person convicted. The proviso does not apply if the non disclosure of the fact was attributable to his lawyers. It could have done so. As Dyson LJ explained at paras 14 16 of his judgment, there is no mention of the convicted persons legal advisers in article 14(6) or section 133, whereas article 14(3) does refer to legal advisers. Moreover, there is no suggestion that the person convicted in section 133(1) includes his lawyers. In my opinion the Court of Appeal correctly held that knowledge of the fact by the defendants lawyers would not prevent it being a newly discovered fact. I note in this regard that in a case where the fact was known to the defendants lawyers and not used at the trial, the failure to use it would be very relevant to the question whether the evidence of the fact would be admissible under section 23 of the Criminal Appeal Act 1968. It might well be held that in the light of the fact that the lawyers failed to deploy it, it was not necessary or expedient in the interests of justice to admit it on an appeal. In that event the appeal would not be allowed or the conviction reversed on the basis of it. The remaining question is whether it is possible for a fact to be a newly discovered fact if it was known to the defendant himself at trial or at an in time appeal. The Court of Appeal held that it was, for the reasons given by Dyson LJ at paras 14 to 18. I agree. Section 133(1) contains the proviso unless the non disclosure of the unknown fact was wholly or partly attributable to the person convicted. This proviso would not be necessary if the question whether evidence was new or newly discovered were tested by reference to the knowledge of the convicted person himself. The proviso seems to me to assume that a fact may be newly discovered even though it is known to the defendant at the relevant time. Otherwise it would have very little effect because it would only apply where the defendant did not know the fact but its non disclosure was attributable to him. Such a situation is perhaps theoretically possible but the natural meaning of the proviso is that it covers the case where the defendant is aware of the fact at the relevant time but does not deploy it either personally or through his lawyers. So understood, the proviso seems to me to point to the conclusion that a fact may be a newly discovered fact even if it was known to the defendant himself at trial or at an in time appeal. For these reasons I agree with Lord Hopes conclusion at para 107 and Lord Phillips conclusion at para 62 that the relevant knowledge is that of the trial court, but do not agree with Lord Hopes conclusion, also at para 107, that material disclosed to the defence by the time of the trial cannot be said to have been newly discovered when it is taken into account at the stage of the out of time appeal. For the reasons given earlier, it is my view that material that was not discovered either by the defendant or his lawyers but was discovered only after the in time appeal was newly discovered on the simple basis that, whether or not it ought to have been discovered, it was not in fact discovered. That was the position in both the Adams appeal and the Northern Irish appeals. Article 6(2) of the European Convention of Human Rights Other members of the Court have considered the issues under this head in some detail. The European Court of Human Rights (ECtHR) has applied article 6(2) in cases which are not covered by its language. For my part, I do not think that this is a case in which it is necessary or would be appropriate to analyse that jurisprudence in detail. I will only say that I am not at present persuaded that article 14(6) and section 133 are a form of lex specialis to which article 6(2) can never be relevant. For present purposes I shall simply assume that it is in principle possible for article 6(2) to apply to proceedings under section 133. I can see that it is inappropriate, to put it no higher, to impute criminal liability to a person who has been acquitted. In each of the cases in which a claim for compensation arises under section 133(1) the claimants conviction has been reversed by the Court of Appeal in an out of time appeal. Section 2(3) of the Criminal Appeal Act 1968 (as substituted in 1995) provides: (3) An order of the Court of Appeal quashing a conviction shall, except when under section 7 below the appellant is ordered to be retried, operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal. Thus the effect of the reversal of the conviction by the order of the Court of Appeal quashing it, is that the person concerned is formally acquitted. In these circumstances the court hearing and determining a claim for compensation under section 133(1) must not say or do anything inconsistent with the claimants acquittal. If the analysis set out above is adopted, there is no risk of its doing so. The question in each case is whether the claimant has proved beyond reasonable doubt that the new or newly discovered fact has demonstrated that there was a miscarriage of justice on the basis that no reasonable jury, properly directed, could convict him. The trial of that question does not in any way affect or impugn the acquittal of the claimant as provided by section 2(3) of the Criminal Appeal Act 1968 quoted above. The question at such a trial is different and so is the burden of proof. The position is not unlike a civil process where a claimant seeks damages from a defendant who has been acquitted of, say, causing grievous bodily harm to A at a criminal trial. Under English law it is permissible for A to seek damages from the defendant on the ground that he was unlawfully injured by him, alleging all the same facts as had been relied upon at the criminal trial. The critical difference between the two processes is that at the criminal trial the prosecution has to prove guilt beyond reasonable doubt, whereas at the civil trial A only has to prove liability on the balance of probabilities. The ECtHR has expressly recognised that civil proceedings of that kind do not infringe article 6(2) of the Convention: see eg Y v Norway (2003) 41 EHRR 87, where the court expressly said at para 41 that, while the acquittal from criminal liability ought to be maintained in compensation proceedings, it should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof. It did add in para 42 that, if the national decision on compensation contains a statement imputing the criminal liability of the respondent party, this could raise an issue falling within the ambit of article 6(2) of the Convention. See also Bok v The Netherlands, (Application No 45482/06), 18 January 2011. Similarly, here, where, at any rate on the analysis set out above, there is no question of anything said or done in the section 133 proceedings impugning the acquittal in the criminal proceedings, I see nothing in article 6(2) which is in any way inconsistent with the conclusions I have reached. Disposal I agree with Lord Phillips, Lord Hope, Baroness Hale and Lord Kerr that the appeal in the Adams case must be dismissed. Lord Phillips has set out the relevant facts. As Dyson LJ observed at para 59, the Court of Appeal allowed the appeal because the undeployed material was important and might have led the jury to acquit. The decision to quash the conviction was founded on the potential that the undeployed material had for affecting the jurys verdict. It was thus a category 3 case and, for the reasons given earlier, section 133(1) does not cover such a case. I also agree that the appeals in the Northern Irish cases should be allowed. Lord Kerr has set out the facts in some detail. They show, at any rate to my mind, that, in the light of the newly discovered facts, no reasonable jury, properly directed, could have convicted them. DISSENTING JUDGMENTS LORD JUDGE The legislation Section 133(1) of the Criminal Justice Act 1988 (section 133) provides: when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non disclosure of the unknown fact was wholly or partly attributable to the person convicted. Reversed refers to a conviction which is quashed on an appeal out of time or following a reference by the Criminal Cases Review Commission (section 133(5)). By section 133(2) compensation is not payable unless the application for compensation has been made: Before the end of the period of 2 years beginning with the date on which the convictionis reversed or he is pardoned. This limitation was inserted by sections 61(1) (3) and (9) of the Criminal Justice and Immigration Act 2008 and came into force on 1 December 2008. Simultaneously, in accordance with section 61(1), (2), (5) and (9) of the 2008 Act, provision was made for the cases where the conviction is quashed on an appeal out of time, and a retrial ordered, so that: The conviction is not to be treatedas reversed unless and until the person is acquitted of all offences at the retrial or the prosecution indicates that it has decided not to proceed with the retrial. (Section 133(5A)) The determination whether there is an entitlement to compensation is vested exclusively in the Secretary of State, (section 133(3)) who in exceptional circumstances may extend the time for making an application. (section 133(2A)) When section 133 was enacted an ex gratia system operated in tandem with it. In England and Wales and Northern Ireland, but not in Scotland, the ex gratia scheme was abolished in 2006. In his article Compensation for Wrongful Imprisonment [2010] Crim LR 805, Professor John Spencer QC convincingly criticised the narrowness of and consequent anomalies which arise from the limitations of the statutory scheme. No alternative remedy is provided unless, perhaps, and subject to limitation periods, where malpractice in the investigative process is established, the victim may pursue a remedy in tort, or when the individual suffered a wrongful conviction as a consequence of negligence by his legal advisors, a claim in damages may be available. In short, the statutory scheme does not preclude any relevant action which may, in theory, be available in tort, but it is in any event unsupported by the ex gratia scheme. Nevertheless we must analyse section 133 and the ambit of the scheme for the payment of compensation without reference to its anomalies and disadvantages. When it was examined by the House of Lords in R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1 the meaning and effect of section 133 produced contradictory opinions with no authoritative decision. Lord Steyn concluded that the statutory scheme was confined to cases where the person concerned was clearly innocent. Lord Bingham of Cornhill, while agreeing with the result, for carefully explained reasons, hesitated to accept this restriction on the ambit of the statutory scheme. The differences between their respective approaches to the problem have been considered and examined in a number of subsequent decisions, of which the most recent is R (Allen (formerly Harris) v Secretary of State for Justice [2009] 1 Cr App R 36. They must finally be resolved now. As we are not agreed, without embarking on what would be a repetitious discourse of much of the voluminous material drawn to our attention, I shall briefly explain the reasons why I agree with Lord Steyn. In Mullen the parties were agreed that the interpretation of section 133 required what was described as a correct understanding of article 14(6) of the International Covenant on Civil and Political Rights, dated 16 December 1966. (ICCPR) That view was adopted by the House of Lords and it is unchallenged in the present proceedings. Article 14(6) provides: When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the grounds that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non disclosure of the unknown fact in time is wholly or partly attributable to him. In short, the enactment of section 133 in virtually identical terms represented the response of the United Kingdom to a Treaty obligation. One further Treaty provision needs immediate attention. In November 1984 article 3 of Protocol 7 to the Convention of Human Rights also made what was effectively an identical provision to article 14(6) of the ICCPR. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non disclosure of the unknown fact in time is wholly or partly attributable to him. Article 3, Protocol 7 will become relevant when the jurisprudence of the European Court of Human Rights falls to be considered. In the context of a statutory provision reflecting the international obligations undertaken by the United Kingdom, it would be productive of confusion for the phrase miscarriage of justice to be analysed by reference to the many different ways in which, looking at our own statutes which enable convictions to be quashed, and the language used, sometimes loosely, in the course of numerous judgments bearing on these questions. The phrase reflects an autonomous concept, in which the words miscarriage of justice reflect the international obligations of the United Kingdom under article 14(6). Like article 14(6), section 133 distinguishes the reversal of the conviction (or a pardon) and a miscarriage of justice. Within the section itself, as with article 14(6), these concepts are distinct. Even if the remaining pre conditions to the payment of compensation are established, the reversal of the conviction is an essential prerequisite to but is not conclusive of the entitlement to compensation. In short, for the purposes of section 133 the reversal of the conviction and the consequent revival of the legal presumption of innocence is not synonymous with a miscarriage of justice. Therefore before compensation is payable under the statutory scheme more than the reversal of the conviction is required. The requirement is that a miscarriage of justice must be demonstrated beyond reasonable doubt. In my view the use of this phrase was deliberate and significant. The phrase is not relevant to the evidential question whether the conviction has been reversed and it is not directed to any individual feature or aspect of the investigation or trial processes. If the reversal of the conviction alone were sufficient, that fact would be proved beyond reasonable doubt by the court record, and if any specific feature of the investigation or trial processes were relevant, appropriate provision could readily have been made in section 133 itself. Instead the phrase describes the characteristics or attributes of the miscarriage of justice which must be established. The word conclusively in article 14(6) was not repeated. Rather the familiar description of the standard of proof in criminal cases and, significantly in the context of a claim for the payment of compensation (normally a civil claim), the standard normally applied to the prosecution in the criminal justice process was imposed on the defendant. For this purpose the balance of probabilities was expressly ignored. Accordingly, for section 133 to apply, following a conviction of an offence which was proved beyond reasonable doubt, the emergence of a new or newly discovered fact should demonstrate not only that the conviction was unsafe, or that the investigative or trial processes were defective, but that justice had surely miscarried. In the present context, the ultimate and sure miscarriage of justice is the conviction and incarceration of the truly innocent. This leads me to the conclusion that as a matter of construction the operation of the compensation scheme under section 133 is confined to miscarriages of justice in which the defendant was convicted of an offence of which he was truly innocent. In my judgment nothing less will do, and no alternative or half way house or compromise solution consistent with this clear statutory provision is available. I must therefore address some of the contentions which suggest that this construction is over restrictive. The unsafe conviction Mr Tim Owen QC highlighted the absence of word innocent from section 133. The omission reflects not only the autonomous concept of miscarriage of justice, but more significantly, the absence of an innocent verdict in the criminal justice process. The defendant is either proved to be guilty of the crime alleged, or he is entitled to a not guilty verdict and acquittal. A verdict of innocent is unknown. On acquittal, or the reversal of a conviction, the presumption of innocence revives. It applies when the jury considers that there is a high probability that the defendant is guilty, and indeed to cases like Mullen, whose conviction was quashed notwithstanding the assessment of the court that he was undoubtedly guilty. Just because it is a concept to which the criminal justice process is not directed, the word innocent could have no place in section 133. The only ground for quashing a conviction in the Court of Appeal Criminal Division (the Court) is that it is unsafe. There are however occasions when a new or newly discovered fact may well demonstrate the factual innocence of the appellant. And if it does, the judgment of the court may say so. I respectfully disagree with the observation in R v McIlkenny (1991) 93 Cr App R 287 that the court is not entitled to state that an appellant is innocent. The processes of the Court of Appeal do not allow for a formal declaration of factual innocence, any more than the trial process recognises a verdict of innocent. However there can surely be no stronger case for doubting the safety of a conviction than evidence which unmistakenably demonstrates that the appellant is in truth an innocent man or woman. (See R v Fergus (1994) 98 Cr App R 313: R v Hodgson [2009] EWCA Crim 490.) Although the conviction is quashed not on the ground that the defendant is innocent, but because his conviction is unsafe, the terms of the judgment should conscientiously reflect the true reasons for its decision that the conviction should indeed be quashed as unsafe. At the risk of stating the obvious, the decision whether to quash a conviction is for the Court: so are all features of the trial process, and indeed any order for retrial. If the end of the judicial process is that the conviction is quashed, or if following a retrial, the defendant is acquitted, the administrative decision whether compensation is payable for a miscarriage of justice is vested exclusively in the Secretary of State. The determination is not limited to some kind of administrative assessment of the circumstances in which the judicial process has come to an end. Therefore while the Secretary of State should pay the closest possible attention to the terms of the judgment of the Court, whatever the terms in which the judgment is expressed, when making the decision whether a miscarriage of justice has occurred, he is not confined to the judgment of the Court. Retrial The circumstances in which a retrial will be ordered following the quashing of a conviction vary enormously. The single question is whether in a fact specific context the interests of justice should lead to such an order. Dealing with it generally it is most unusual for an order for retrial to be made many years after conviction, or when the sentence imposed at the original trial has been or is close to being completed. On the other hand, again dealing with it generally, where a conviction is recent, and the sentence substantial, and the evidence relied on the prosecution is likely to be available at the retrial, then a retrial may well be ordered. Exceptions can be found both ways. At the risk of repetition, the decision is fact specific. It can however be confidently stated that it would be inconceivable for the Crown to seek or the Court to order a new trial if it were made clear in the terms of the judgment that the conviction was being quashed on the basis that the fresh evidence demonstrated that the defendant was innocent. This reinforces my view that if that conclusion is justified, the court is entitled to say so in its judgment. These considerations bring me to section 133(5A). This subsection addresses the newly introduced statutory time limit in which an application for compensation may be made in the context of an order for retrial. If for any reason (including the conclusion of the Court that the defendant is truly innocent) no order for retrial is made, time runs from the date when the conviction is quashed. If however (again, for whatever reason) the order quashing the conviction is accompanied by an order for retrial, notwithstanding the presumption of innocence, for the purposes of the scheme for the payment of compensation the conviction is not reversed or quashed and the time for making an application is accordingly postponed until the retrial process is completed. This enables first, the defendant to concentrate his attention on the forthcoming retrial. Second, it is conclusive of the question (adversely to the defendant) if he is convicted, when his position is exactly the same as it would have been if the original conviction had not been quashed. Third, if he is acquitted, the process may provide the Secretary of State with further material on which to base his determination. In my judgment section 133(5A) has no bearing on the proper construction of the words beyond reasonable doubt that there has been a miscarriage of justice, and the entitlement to compensation under the statutory scheme was not expanded with effect from 1 December 2008 when section 133(5A) came into force. That was not the purpose of this new inserted provision which was directed to the consequences of the introduction of the new timetable within which applications should be made. It was procedural only. European Court of Human Rights In my judgment the jurisprudence of the European Court of Human Rights drawn to our attention by Mr Owen does not bear on the issues which arise in this litigation. As already indicated once a conviction has been reversed the presumption of innocence applies. Subject only to the provisions of sections 76 83 of the Criminal Justice Act 2003 the rule against double jeopardy applies and the defendant cannot be prosecuted a second time for an offence of which he has been acquitted, or when his conviction has been reversed and for the purposes of the administration of criminal justice the prosecution process is at an end. Nevertheless the acquittal, or the successful appeal against conviction, does not operate as an absolute bar to litigation. It remains open to any individual to assert that notwithstanding the acquittal or quashing of the conviction, the defendant was guilty. That is what Lord Steyn said about Mullen in his judgment in that case. A defendant who has been acquitted of rape may face proceedings for damages by the complainant and she may successfully establish on the balance of probabilities that he did indeed rape her and is liable in damages. In proceedings for defamation on the basis that the defendants innocence is questioned, the acquittal does not create an irrebuttable presumption that the assertion cannot be justified and must be unjustifiable. Article 3, Protocol 7 forms part of the Convention. It must be read together with the Convention. The jurisprudence of the European Court of Human Rights relied on by Mr Owen was not directed to and did not address the provisions of article 3, Protocol 7. If the decisions he relied on apply in the present case it will in effect mean that the reversal of the conviction carries with it an obligation to pay compensation in accordance with section 133, although such a conclusion would be inconsistent with the wording of article 3, Protocol 7 itself. Bok v The Netherlands (Application No 45482/06) (unreported) 18 January 2011 confirms that it does not. Section 133 therefore provides an individual whose conviction has been reversed with the opportunity (but no obligation) to make a claim for compensation based on a statutory test which is effectively identical to the provisions of the European Convention. The Secretary of State must allow or reject the application in accordance with that test. Conviction Impossible This heading is used to encompass some of the alternative ways of approaching the concept of miscarriage of justice adopted in the majority judgments which have reached the conclusion that the phrase has a rather broader ambit than I do. A newly discovered fact which demonstrates that the prosecution against the defendant is shredded to the extent that no conviction could have been based on it, or that no evidence would properly have been offered or, if there had been a trial, there would have been no case to answer at the close of the prosecution case, is likely to provide powerful material which may lead the Secretary of State to conclude that the defendant is indeed innocent. However that conclusion does not automatically follow, and unless it does, section 133 does not apply. In short, these considerations are of evidential significance, maybe of crucial evidential significance, but not determinative. There are a variety of different circumstances in which the Court may make a decision on appeal in relation to decisions at trial that what appeared to be powerful evidence for the Crown should have been excluded. For example, in the light of some newly discovered fact the Court may conclude that the decision of the trial judge to allow crucial prosecution eye witnesses to give their evidence anonymously was wrong, or no longer tenable: without that evidence there would be no case against the defendant. The Court may order a retrial, but without the protection of an anonymity order, the crucial witnesses may then refuse to give evidence at all. Accordingly no further evidence would be offered against the defendant. In my judgment it should not, and it would not, follow that the defendant would be entitled to compensation. Similar considerations would arise if, on the basis of fresh evidence, the Court concluded that the judge had wrongly admitted crucial hearsay evidence without which there would have been no prosecution. Taking the matter further, R v Smith [1999] 2 Cr App R 238 illustrates the difficulty of equating the no case to answer situation with the concept of miscarriage of justice within section 133. The judge rejected a submission that there was no case to answer. The Court concluded that he was wrong and went on to examine the question, what if a submission is wrongly rejected but the defendant is cross examined into admitting his guilt? It concluded that the conviction would still be unsafe because the defendant was entitled to be acquitted at the close of the prosecution case. It would be surprising if notwithstanding his own sworn admission of guilt, the discovery of a new fact which demonstrated that the decision that there was a case to answer was wrong, should be followed by the payment of compensation. Again, where fresh evidence is advanced on behalf of the appellant which undermines the safety of the conviction, and indeed puts into question a substantial part of the prosecutions case, the prosecution may seek to adduce fresh evidence demonstrative of guilt. The jurisdiction to permit the Crown to do so is available (for example, see R v Hanratty [2002] EWCA Crim 1141; [2002] 3 All ER 534). In the interests of justice the Court may order a new trial to enable all the issues to be resolved by a jury notwithstanding that, standing on its own, the original evidence advanced by the Crown was no longer sufficient to found a case for the appellant to answer. Finally, I must return to Mullen itself, which at [1999] 2 Cr App R 143 sets out the reasons why the conviction was quashed. The matters which constituted the abuse of process occurred before Mullen was returned from Zimbabwe to this jurisdiction. The British authorities procured his deportation by unlawful means, in breach of public international law. The prosecution itself was held to be unlawful. Mullen therefore should not have been charged, let alone prosecuted to trial. Yet the House of Lords was agreed that he was not entitled to compensation, and I wholeheartedly agree. Considerations like these underline some of the practical difficulties with any approach to the construction of section 133 which goes beyond the limits suggested by Lord Steyn in his judgment in Mullen, that compensation within the statutory scheme is payable only when the defendant was convicted of an offence of which he was truly innocent, and therefore beyond reasonable doubt the victim of a miscarriage of justice. In my judgment the principle is that section 133 is concerned with the fact rather than the presumption of innocence in the context of the administrative decision to be made by the Secretary of State. It is not related to different (and if so which?) aspects of the trial processes, or the likely or possible impact which the new or newly discovered fact would have had on the decision to prosecute or on the forensic processes which culminated in conviction. Their practical effect is demonstrated in the case of MacDermott and McCartney. The confessions on which the prosecution relied would have been inadmissible if they had been made not as a result of violence, but rather of inducements. Assuming for present purposes that the newly discovered material demonstrated that Donnelly had been offered identical inducements to those which MacDermott and McCartney had asserted at their trials, their convictions would have been no less liable to be quashed than they were in the light of the fresh evidence relating to police violence. As there was no evidence beyond their inadmissible confession there would have been no basis for any prosecution. And there would, if they were prosecuted, have been no case for either to answer. Yet, in the context of an inducement or inducements, there might, if the confessions were sufficiently detailed, be no reason to doubt that the confessions were true, even if inadmissible. In my judgment their cases would not qualify for compensation. We are here dealing not with inducements which cast doubt on the voluntariliness of the confessions, but with violence. The newly discovered material would have borne on the decision of the trial judge whether the defendants confessions were voluntary or not. The fresh evidence led the Court of Appeal in Northern Ireland to conclude that if it had been available at trial there was a realistic possibility that the evidence of the police officers (who asserted that there had been no intimidation of the defendants, and no grounds for doubting that the confession statements were voluntary) may have been discredited. If so the statements would have been excluded from consideration, and there would then have been no prosecution and no case for either of them to answer. In principle, however, the impact on the admissibility of their confessions would have been the same, whether they responded to inducements to confess or succumbed to violence. Although I share the distinct unease of the Court of Appeal in Northern Ireland about the circumstances in which the confessions were made by the appellants, it does not follow that the Secretary of State was obliged to conclude that they were innocent for the purposes and within the ambit of section 133. New or newly discovered fact In the discussion about the meaning of new or newly discovered fact the rival contentions went too far. It would be unrealistic, and removed from the realities of the conduct of the defence at trial that his legal advisers should inform the defendant personally of each and every fact and matter to which their attention is drawn by the prosecution. When all is said and done, the defence advocate is not a mouthpiece or echo chamber for his client. The responsibility for giving advice and assisting the defendant to make whatever decisions which he must make for himself is one aspect of the responsibilities: the deployment of evidence and argument on his behalf is another. Sometimes the lines overlap, but often they do not. It therefore follows that merely because the defendant himself is personally ignorant of a particular fact, it is not new or newly discovered when the defendant personally ceases to be ignorant of it. On the other hand, when the prosecution has complied with all its obligations in relation to disclosure of material to the defence lawyers, and they, for whatever reason, do not then deploy material which appears to be adverse to the prosecution or which would assist the defendant, that material should not automatically be excluded from the ambit of the section on the basis of prosecutorial compliance with its disclosure obligations. Rather the approach should coincide with the circumstances in which fresh evidence is sought to be deployed before the Court in accordance with section 23 of the Criminal Appeal Act 1968. This normally predicates that there should be a reasonable explanation for the earlier failure to adduce the evidence at the trial. In the present case, it is clear from the judgment of the Court in Adams that the conviction was quashed on the basis of fresh evidence in circumstances in which, notwithstanding that the prosecution had fully performed its responsibilities in relation to disclosure, Adamss legal team had failed adequately to respond and fulfil theirs. In my judgment that failure or omission was a new or newly discovered fact within the ambit of section 133. Conclusion In my judgment the appeal of Adams should be dismissed: as to the appeals of MacDermott and McCartney, I should have agreed with Lord Browns proposal that they should be remitted to the Secretary of State for further consideration. LORD BROWN (with whom Lord Rodger agrees) I have had the advantage of reading in draft the judgment of Lord Judge, the Lord Chief Justice, and, agreeing with it as I do, I shall try not to repeat the bulk of its reasoning. So troubled am I, however, that apparently ours is the minority view on these appeals that I wish to add some additional thoughts of my own. That section 133 of the Criminal Justice Act 1988 was intended to give effect to the United Kingdoms international obligation under article 14(6) of the International Covenant on Civil and Political Rights 1966 is, of course, plain and obvious. Section 133(1) omits the phrase in article 14(6) by a final decision reflecting it instead in the definition of reversal in section 133(5) by referring there to an appeal out of time or on a reference and substitutes for the word conclusively in article 14(6) the hallowed expression beyond reasonable doubt. Otherwise the language of the two provisions is virtually identical. It is clear, therefore, that the right to compensation arises only when each of four conditions is satisfied: (i) the conviction is quashed on an appeal out of time or a reference (not, therefore, when a timeous appeal succeeds, nor, of course, on an acquittal at trial); (ii) the appeal succeeds on the ground of a new or newly discovered fact; (iii) the appellant was in no way responsible for the previous non disclosure of that fact; and (iv) that fact shows beyond reasonable doubt that there has been a miscarriage of justice. The critical question for decision here, of course, is what precisely is meant in this context by a miscarriage of justice. As to this, whilst recognising that the expression has an autonomous meaning, I share the view expressed in several of the judgments that there is no real assistance to be derived here from any of the extrinsic material, for example, the travaux or other states practices. Rather, as Lord Bingham suggested in R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1, 27, para 9(2): It may be that the expression [miscarriage of justice] commended itself because of the latitude in interpretation which it offered. That being so, it was perfectly open to the UK to introduce legislation intended to compensate only those shown to be clearly innocent of the crime of which they had been convicted and in this connection I see no reason to ignore the explanatory report relating to article 3 of Protocol 7 to the European Convention on Human Rights (an article almost precisely reproducing the language of article 14(6)) which, at para 25, states: The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgment that the person concerned was clearly innocent. True, the UK never ratified Protocol 7 and I am far from suggesting that the explanatory report shows plainly that section 133(1) is to be construed in the way para 25 suggests. But it does surely show that this is both a permissible view to take of the extent of the article 14(6) obligation undertaken by the UK and a perfectly possible construction of section 133(1) itself. Before turning more particularly to whether it is the right construction, it is I think worth pointing out too that the provision whereby those benefiting from article 14(6) are entitled to be compensated according to law similarly accords to individual states a wide discretion as to how such compensation is to be assessed. As to this the UKs approach seems to me notably generous. In reaching his assessment, the Secretary of States assessor is directed to apply principles analogous to those governing the assessment of damages for civil wrongs including, therefore, claims for wrongful imprisonment although a deduction may be made on account of the claimants criminal record. An illustration of the size of the awards liable to be made in these cases is provided by R (OBrien) v Independent Assessor [2007] UKHL 10; [2007] 2 AC 312 concerning compensation claims arising out of the wrongful conviction of the Hickey brothers and others for the murder of Carl Bridgewater at Yew Tree Farm. The first instance decision in that case [2003] EWHC 855 (Admin) shows net final compensation assessments there of 990,000 for Michael Hickey and 506,220 for Vincent Hickey (wrongfully detained in prison respectively for just under thirteen years and something under fourteen years see para 8 of Lord Binghams judgment in the House of Lords). What, then, is the correct interpretation of a miscarriage of justice in section 133(1)? More particularly, is it: (i) the conviction of an innocent defendant, or (ii) the conviction of a defendant who, by a new fact, so undermines the evidence against him as to show that, on the undermined evidence, he could not possibly have been convicted essentially Lord Phillips (category 2) formulation (at para 55), apparently now subscribed to by the majority of the court. I mention only those two possible constructions since no member of the court appears to favour any yet wider construction of section 133 so as to embrace also cases where the fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant (Lord Phillips category 3 at para 9). Strikingly, and to my mind significantly, it was this wider construction that not just the appellants but also Mr Alex Bailin QC for the Intervener, JUSTICE, were urging upon the court; indeed, both Mr Owen QC for Mr Adams and Mr Bailin expressly submitted that there was no logical or principled dividing line between categories 2 and 3. And to my mind they were right to do so. Of course, innocence as such (factual as opposed to presumptive) is not a concept known to the criminal law. But nor too, in the context of criminal appeals, is the notion of a prosecution case so undermined that no jury could possibly convict. The criminal court deals only in the safety of convictions. On a fresh evidence appeal the sole question the court asks itself is whether the conviction is unsafe (essentially the lurking doubt test). If the case is a difficult one it sometimes finds it helpful to test its view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict R v Pendleton [2001] UKHL 66; [2002] 1 WLR 72, 83, para 19. The ultimate and only question, however, is for the court: is the verdict unsafe? The question raised by section 133, by contrast, is not one for the criminal court but rather one entirely for the Secretary of State. Similarly, no member of the court appears to suggest that Mullen itself was wrongly decided. Lord Steyn, of course, reached his decision there (to allow the Secretary of States appeal and reinstate the decision of the Divisional Court) on the ground that section 133 compensates only those who are clearly innocent whereas Lord Bingham reached his on the altogether narrower ground that: It is for failures of the trial process that the Secretary of State is bound . to pay compensation (para 8). Mr Mullens conviction was, of course, quashed not because of anything that had gone wrong in the trial process but because he would not have been on trial at all but for having been unlawfully returned to this country. Certainly Lord Bingham disagreed with Lord Steyns approach. But it cannot be pretended that Lord Binghams own approach supports the particular formulation suggested by the majority in the present case. My own reasoning in the Divisional Court in Mullen [2002] 1 WLR 1857, 1864 was essentially that later to be adopted by Lord Steyn: 25 What was shown beyond reasonable doubt here was that there had been an abuse of process in bringing the claimant to trial. That was the newly discovered fact. But that fact did not itself show beyond reasonable doubt that there had been a miscarriage of justice. All that it showed was that the court needed to conduct a discretionary exercise to decide in effect which of two important public interests should prevail: the public interest in trying, convicting and punishing the guilty or that in discouraging breaches of the rule of law and preserving the integrity of the criminal justice system. It preferred the latter. True, it had no doubt that the balance came down decisively in the defendants favour. But that was by no means to find that he was innocent, still less that he was plainly so. Rather it was a judgment that the lawful administration of justice would be affronted by his remaining convicted and imprisoned. 26 In short, a miscarriage of justice in the context of section 133 means, in my judgment, the wrongful conviction of an innocent accused. Compensation goes only to those ultimately proved innocent, not to all those whose convictions are adjudged unsafe. The quashing of the claimants conviction in this case was a vindication of the rule of law, not the righting of a mistaken verdict. As I shall come to suggest, the quashing of the conviction in many cases which would fall within the majoritys formulation for compensation here is more properly to be characterised as a vindication of the rule of law than as the righting of a mistaken verdict. Par excellence, indeed, this seems to me to be so in cases where confession statements, even though perhaps demonstrably true (by referring, say, to facts known only to the perpetrator of the crime) are excluded because of intimidation or inducement see particularly in this regard paras 264 and 265 of Lord Judges judgment. My reasons for remaining precisely of the view I expressed in the Divisional Court in Mullen are essentially a combination of the considerations in favour of the category 1 test (that of innocence) and the considerations weighing against the category 2 test (that of critical evidence undermined). As for the factors favouring the test of innocence, it is difficult to improve upon those listed by Lord Phillips at paras 43 48 of his judgment. As Lord Phillips there points out, this construction gives section 133 a perfectly natural and logical meaning, indeed it is the meaning that the man in the street would be likely to accord to the wording of section 133 (para 43); it makes perfect sense of the requirement that the new facts should prove this beyond reasonable doubt (para 44); and it gives section 133 a meaning which is eminently practicable (para 45). It seems to me unnecessary to decide whether Lloyd LJ was right to say in R v McIlkenny (1991) 93 Cr App R 287, 311 that the Court of Appeal is not entitled to state that an appellant is innocent a point on which Lord Phillips (at para 45) and Lord Judge (at para 251) disagree. The all important consideration in this respect is, as Lord Phillips says, that it is for the Secretary of State, not the Court of Appeal, to decide whether there has in fact been a miscarriage of justice (and, therefore, on the innocence test, whether the fresh evidence shows beyond reasonable doubt that the defendant was innocent) and the reasons given for quashing the conviction are unlikely to leave any doubt of this (para 46). As, moreover, Lord Phillips observes (at para 47) the innocence test will ensure that a guilty defendant is not compensated for the consequences of his conviction. If I may revert to the man in the street, he would, I think, be appalled at a construction which, on the contrary, would not infrequently result in the compensation of the guilty, sometimes, as already indicated, to the extent of hundreds of thousands of pounds. As for the factors weighing against the category 2 test, prominent amongst these is undoubtedly the converse of the point just made, the fact that it would result in very substantial compensation for many defendants who are in truth guilty. I have already instanced (para 275 above and paras 264 and 265 of Lord Judges judgment) those whose confession statements (even if true) come to be undermined. Equally this is so in cases where it comes to be seen that anonymous or hearsay evidence should not have been allowed (see particularly in this regard para 260 of Lord Judges judgment). This point, indeed, can be illustrated by the facts of R v Secretary of State for the Home Department, Ex p Bateman (1994) 7 Admin LR 175 (where, as Lord Clarke notes at para 199, I was sitting in the Court of Appeal with Sir Thomas Bingham MR and Farquharson LJ). Mr Batemans appeal for compensation failed in the event because the success of his second criminal appeal owed nothing to a new or newly discovered fact. Obiter, however, the Master of the Rolls suggested that he had suffered a miscarriage of justice. On an appeal out of time his conviction had been quashed because certain statements had been wrongly admitted in evidence at trial. These were statements from important New Zealand witnesses whom he had wanted called and cross examined. But why, I am now inclined to ask, should a successful appellant be compensated in those circumstances? The case against him might well have become more, rather than less, damning had the witnesses indeed been called and given their evidence orally (as was held should have happened). One other case I want to mention which to my mind strikingly illustrates the dangers of adopting the category 2 construction is a recent decision of this court. The case concerned the conviction of each of two brothers (A and B) for murder and two robberies following, as later investigations and a reference by the Criminal Cases Review Commission were to show, police misconduct of the gravest kind (most notably by colluding with the main prosecution witness). On a second appeal some twelve years after conviction there was accordingly no dispute but that As and Bs convictions had to be quashed. The only issue for the Court of Appeal had been whether A should be retried, this time not on the basis of the irredeemably tainted evidence given at his original trial but rather based on a series of admissions of guilt he had made following his conviction and the failure of his first appeal. Because the decision upheld by the majority in this court was to order a retrial, the reporting of the detailed judgments both of the Court of Appeal and of this court has had to be delayed. As, however, these judgments make plain, although B could not be retried (he having made no confession of guilt), the guilt of both was in reality plain. True, the most critical evidence in the case against them had been that of a supergrass (without whose evidence, indeed, it was agreed that there could have been no prosecution at all), upon whose evidence the Crown could no longer rely because of the polices misconduct in conferring upon him a whole host of benefits to secure his continuing cooperation in the brothers prosecution at trial. But his evidence had been supported by a jigsaw of other pieces of evidence. That said, however, in the language of the majoritys category 2 test, no conviction could possibly be based upon it. Is it then to be said that B must be compensated for the twelve years or so he spent in prison before being released at his second appeal? And, indeed, that A too would have had to be compensated had the Court of Appeal not decided to order his retrial? Will the Court of Appeal in future, when deciding at the conclusion of an out of time appeal whether the interests of justice require a retrial, have to factor in the consideration that, unless a retrial is ordered, the successful appellant will or may be found entitled to compensation under the majoritys approach to section 133? The other centrally important consideration militating against a category 2 construction of section 133 is the difficulty indeed, to my mind, impossibility of reconciling this with the language of the section as a whole, and most especially with its requirement that the new facts establish a miscarriage of justice beyond reasonable doubt. It seems to me nonsensical to suggest that the category 2 test is one that can sensibly be satisfied (or not) beyond reasonable doubt. For good measure although, I accept, less conclusively the alternative basis of entitlement to compensation provided for by the section, namely a pardon, naturally connotes innocence rather than some less exacting test. Even the language of a new or newly discovered fact (rather than fresh evidence) to my mind tends to suggest the revelation of something clear and certain namely innocence, rather than merely the undermining of the prosecutions overall case. I entirely accept, of course, that a new fact which does so undermine this case as to show that the appellant could not properly have been convicted on the evidence in fact adduced against him may well in many cases suggest actual innocence and duly persuade the Secretary of State of this. Lord Judge expressly recognises this at para 259 of his judgment. But what if, say, as a result of inadmissible intercept evidence or other reliable intelligence the Secretary of State reasonably believes (perhaps, indeed, is convinced) that the appellant is in fact guilty. Must he nevertheless compensate him? I would hope and respectfully maintain not. Naturally I recognise that the application of the innocence test will exclude from compensation a few who are in fact innocent. Even on the majoritys test, of course, some who are innocent will be excluded. That, however, seems to me preferable to compensating a considerable number (although mercifully not so many as would be compensated on the category 3 approach) who are guilty. After all, this whole compensation scheme operates by creating only a narrow and exceptional class who qualify. The claimant qualifies only by producing a new or newly discovered fact. And only if his conviction is quashed on a reference or an appeal out of time. (It will, indeed, often be a matter of chance whether an appeal is out of time the lawyers may simply have missed the time limit.) Why should the state not have a scheme which compensates only the comparatively few who plainly can demonstrate their innocence and, as I have shown, compensate them generously rather than a larger number who may or may not be innocent? That, at all events, is the scheme which in my opinion Parliament enacted here. On certain of the questions raised there is nothing I wish to add to what Lord Judge has said. I agree with him (at para 252) about the material to be considered by the Secretary of State (indeed, as to this, I agree too with what Lord Phillips says at para 36 of his judgment, subject only to applying the correct test). I agree with all that Lord Judge says (at para 254) as to the relevance here of section 133(5A). I agree with him too (at paras 255 and 256) about the relevance of the Strasbourg jurisprudence in this context. (It hardly needs pointing out that, were the Strasbourg cases to present a problem, they would do so no less for the majority than for the minority view.) And I agree with Lord Judges approach (at paras 266 and 267) to a new or newly discovered fact. In common, as I understand it, with every other member of the Court, I too would dismiss Mr Adamss appeal. Had Lord Judges and my view as to the meaning of section 133 prevailed, I would have been inclined to remit Mr MacDermotts and Mr McCartneys compensation claims to the Secretary of State for his further consideration in the light of our judgments and more particularly of Lord Kerrs masterly analysis of the facts of those two cases. LORD WALKER I agree with the judgments of Lord Judge and Lord Brown.	Section 133 of the Criminal Justice Act 1988 (s 133) provides that the Secretary of State for Justice shall pay compensation when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. It was enacted to give effect to Article 14(6) of the International Covenant on Civil and Political Rights 1966 (Article 14(6)), which the United Kingdom ratified in May 1976. Article 14(6) also refers to a miscarriage of justice. The principal issue in these appeals was the meaning of this phrase in this context; in particular whether compensation should only be given if someone was subsequently shown conclusively to have been innocent of the offence. The three appellants each claimed compensation following the quashing of their convictions for murder by the Court of Appeal. In each case the claim was refused on the ground that the appellant had not shown that a miscarriage of justice had occurred. In Mr Adams case, it was also refused on the ground that he had not shown that his conviction had been reversed by reason of a new or newly discovered fact. Mr Adams was convicted on 18 May 1993 of the murder of Jack Royal. His conviction was referred to the Court of Appeal in 2007 on the ground that incompetent defence representation had deprived him of a fair trial. His representatives had failed to consider unused material provided by the police which would have assisted in undermining the evidence given by the sole prosecution witness. The Court of Appeal found that if this had been done the jury might not have been satisfied of Mr Adams guilt, although he would not inevitably have been acquitted. Mr McCartney was convicted of the murders of Geoffrey Agate and DC Liam McNulty, and Mr MacDermott that of DC McNulty, on 12 January 1979. The sole evidence was their admissions during interviews with the police. They alleged that these had been made after ill treatment and called other witnesses who claimed to have suffered similar treatment from the same group of police officers. The judge rejected their evidence. He had been told that a prosecution brought against one of these witnesses had not been proceeded with. But he was not told that this was because senior officers in the Department of the Director of Public Prosecutions considered that he had been assaulted by police officers to obtain his confession and that a conviction in another case, based on a confession obtained in similar circumstances and involving one of the same officers, had been quashed. The Court of Appeal in Northern Ireland quashed the convictions of Mr McCartney and Mr MacDermott on 15 February 2007 on the ground that this new evidence left it with a distinct feeling of unease about the safety of their convictions. The Supreme Court unanimously dismisses the appeal of Mr Adams and by a majority (Lord Rodger, Lord Walker, Lord Brown and Lord Judge dissenting) allows the appeals of Mr MacDermott and Mr McCartney. The majority hold that a miscarriage of justice has occurred for the purposes of s 133 when a new or newly discovered fact shows conclusively that the evidence against a defendant has been so undermined that no conviction could possibly be based upon it. Miscarriage of justice Miscarriage of justice was a phrase capable of a number of different meanings. It was useful to consider four categories of cases in which the Court of Appeal would quash a conviction on the basis of fresh evidence: Where it showed a defendant was innocent of the crime (category 1) Where it was such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant (category 2) Where it rendered the conviction unsafe in that, had it been available at the trial, a reasonable jury might or might not have convicted the defendant (category 3) Where something had gone seriously wrong in the investigation of the offence or the conduct of the trial resulting in the conviction of someone who should not have been convicted (category 4) [9] The primary object of s133, and of Article 14(6), was clearly to compensate a person who had been convicted and punished for a crime which he did not commit. A subsidiary objective was not to compensate someone who had in fact committed the crime [37]. Category 4 fell outside this purpose as it dealt with abuses of process so shocking that the conviction should be quashed even if it did not put in doubt the guilt of the convicted person [38]. Category 3 was also outside s 133 because the miscarriage of justice had to be shown beyond reasonable doubt. Category 3 would include a significant number who had in fact committed the offences, as an inevitable consequence of a system which required guilt to be proved beyond reasonable doubt [42]. Category 1 cases were clearly covered by s 133. However, the majority (Lord Phillips, Lord Hope, Lady Hale, Lord Kerr and Lord Clarke) held that the ambit of s 133 was not restricted to category 1 as it would deprive of compensation some defendants who were in fact innocent but could not establish this beyond reasonable doubt. A wider scope was plainly intended at the time of the drafting of Article 14(6). Even though it would not guarantee that all those entitled to compensation were in fact innocent, the test for miscarriage of justice in s 133 (in more robust terms than category 2) was as follows: A new or newly discovered fact will show conclusively that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it [55]. A miscarriage of justice in a case of that kind would be as great as it would have been if he had in fact been innocent, because in neither case would he have been prosecuted at all [102]. Four justices dissented on this issue. Lord Judge considered that the words beyond reasonable doubt in s 133 meant that the miscarriage of justice was the conviction and incarceration of the truly innocent [248]. Lord Brown considered that there was no logical or principled dividing line between categories 2 and 3 [274] and the arguments in favour of an interpretation limited to category 1 were compelling [277]. Lord Rodger agreed with Lord Brown, and Lord Walker agreed with Lord Brown and Lord Judge. Application of s 133 to cases involving a retrial An amendment to s 133 (subsection 5A) which referred to a retrial changed the timetable for a claim for compensation. It did not mean that compensation was payable in every case in which a retrial had been ordered and the defendant then acquitted, as was argued by counsel for the intervener Barry George. The same test was to be applied. The amendment allowed for the possibility that something might emerge in the retrial which would require compensation [104]. New or newly discovered fact Lord Phillips (with whom Lady Hale, Lord Kerr and Lord Clarke agreed) held that the phrase new or newly discovered fact should be interpreted generously in accordance with the effect given to Article 14(6) by legislation in Ireland as including facts the significance of which was not appreciated by the convicted person or his advisers during the trial [60]. Lord Hope disagreed, considering that material disclosed to the defence by the time of the trial could not be said to be new and the focus on the state of mind of the convicted person went too far [107]. Lord Judge (with whom Lords Brown, Rodger and Walker agreed) preferred an approach which coincided with the test for admission of fresh evidence before the Court of Appeal, which required a reasonable explanation for the failure to adduce the evidence at the trial. This had been satisfied by Mr Adams in his case [281]. Disposal of the appeals Mr Adams appeal was unanimously dismissed on the ground that his was a category 3 case and did not fall within s 133. The majority allowed the appeals of Mr McCartney and Mr MacDermott as it had been shown conclusively that the evidence against them had been so undermined that no conviction could possibly be based upon it. The minority would have remitted their cases to the Secretary of State for further consideration in the light of the judgment.
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.	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.
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.	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].
The facts of this case can fairly be described as exotic, but very few of them are relevant to the present appeal. Dr Williams claims to be the victim of a fraud instigated by the Nigerian State Security Services which occurred in 1986. His case is that he was induced to serve as guarantor of a bogus transaction for the importation of foodstuffs into Nigeria. In connection with that transaction, he paid $6,520,190 to an English solicitor, Mr Reuben Gale, to be held on trust for him on terms that it should not be released until certain funds had been made available to him in Nigeria. Dr Williams says that in fraudulent breach of that trust, Mr Gale, knowing that those funds were not available to him in Nigeria, paid out $6,020,190 of the money to an account of the Central Bank of Nigeria with Midland Bank in London, and that he pocketed the remaining $500,000. The Central Bank is said to have been party to Mr Gales fraud. The Bank applied for an order setting aside the permission given to Dr Williams to serve the claim form and particulars of claim on the Central Bank in Nigeria and declaring that the English court lacked, or at any rate should not exercise, jurisdiction in respect of it. That in turn depended on whether there was a serious issue to be tried. Supperstone J, who heard the matter in the High Court, held that of the various claims then advanced by Dr Williams, the only ones which raised a serious issue to be tried on the pleaded facts were the so called 1986 trust claims: [2011] EWHC 876 (QB). Dr Williams no longer challenges that. The 1986 trust claims comprised (i) a claim to require the Central Bank to account for the $6,520,000 on the footing that it dishonestly assisted Mr Gales breach of trust; (ii) a claim to require it to account for $6,020,190 on the footing that it received that sum knowing that it was being paid by Mr Gale in breach of trust; and (iii) a claim to trace the $6,020,190 in the Central Banks hands. As far as these claims were concerned, the issue turns wholly on whether they were subject to statutory limitation by virtue of section 21 of the Limitation Act 1980, which deals with time limits for actions in respect of trust property. It is common ground that so far as any of the 1986 trust claims is subject to statutory limitation, the limitation period has expired and that on that footing those claims would give rise to no serious issue to be tried. Since Supperstone J gave judgment, Dr Williams has received permission to amend his Particulars of Claim to add three further causes of action, collectively known as the Nigerian law claim. This court has not been concerned with that claim, and I say nothing more about it. The result is that regardless of the outcome of this appeal, permission to serve out of the jurisdiction will stand, so that the Nigerian law claim may be tried. Section 21 of the Limitation Act 1980 provides (so far as relevant) as follows: 21. (1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action (a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy ; or (b) to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use. (3) Subject to the preceding provisions of this section, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued. Section 23 provides: An action for an account shall not be brought after the expiration of any time limit under this Act which is applicable to the claim which is the basis of the duty to account. Section 38(1) of the Limitation Act 1980, defines the terms trust and trustee as having the same meanings, respectively, as in the Trustee Act 1925. This is a reference to section 68(17) of the Trustee Act 1925, which provides that subject to immaterial exceptions, the expressions trust and trustee extend to implied and constructive trusts. and to the duties incident to the office of a personal representative, and trustee where the context admits includes a personal representative. As applied to the 1986 trust claims, these provisions give rise to two questions. The first is whether a stranger to a trust who is liable to account (as the Central Bank is alleged to be) on the footing of dishonest assistance in a breach of trust or knowing receipt of trust assets is a trustee for the purposes of section 21(1)(a). If the answer to that question is No, then the second question is whether an action in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy includes an action against a party such as the Central Bank which is not itself a trustee. Both questions were argued before Supperstone J. He held that the Central Bank could not be described as a trustee, but that it was at least arguable that section 21(1)(a) was not confined to actions against the trustee and extended to an action against the Bank arising out of its participation in the trustees fraud. He therefore refused to set aside the order for service. Before the Court of Appeal (Sir Andrew Morritt C, Black and Tomlinson LJJ), Dr Williams conceded the first question, as a result of which only the second was argued: [2013] QB 499. They decided that question in favour of Dr Williams, and affirmed the judges decision. Before this court, Mr Adkin QC, who appeared for Dr Williams, has partially withdrawn his concession on the first issue. He still accepts that a person liable to account on the footing of dishonest assistance in anothers breach of trust is not a trustee. But he says that a person liable to account on the footing of knowing receipt is a trustee. Mr Philipps QC, appearing for the Central Bank did not object to his being allowed to take this point, and was clearly right not to do so. Not only is it a pure question of law, but a proper understanding of section 21 requires an examination of both questions. We are not concerned (as the Judge thought he was) with the question whether Dr Williams case on limitation is merely arguable. Dr Williams case is certainly arguable, and has been exceptionally well argued. Both parties now accept that we can and should decide whether it is right. In my opinion it is not. The 1986 trust claims are time barred, essentially because section 21(1)(a) of the Limitation Act 1980 is concerned only with actions against trustees and the Central Bank is not a trustee. This is because a constructive trust of the kind alleged against the Bank is not a true trust. To explain why this is so, it is necessary to examine the rather complicated interaction between the successive statutes of limitation and the equitable rules regarding the limitation of actions against trustees. Two categories of constructive trust The combined effect of the definition sections of the Limitation Act 1980 and the Trustee Act 1925 is that in section 21 of the Limitation Act a trustee includes a constructive trustee. Unfortunately, this is not as informative as it might be, for there are few areas in which the law has been so completely obscured by confused categorisation and terminology as the law relating to constructive trustees. The starting point for any consideration of this subject remains the well known statement of principle of Lord Selborne in Barnes v Addy (1874) LR 9 Ch App 244, 251: Now in this case we have to deal with certain persons who are trustees, and with certain other persons who are not trustees. That is a distinction to be borne in mind throughout the case. Those who create a trust clothe the trustee with a legal power and control over the trust property, imposing on him a corresponding responsibility. That responsibility may no doubt be extended in equity to others who are not properly trustees, if they are found either making themselves trustees de son tort, or actually participating in any fraudulent conduct of the trustee to the injury of the cestui que trust. But, on the other hand, strangers are not to be made constructive trustees merely because they act as the agents of trustees in transactions within their legal powers, transactions, perhaps of which a Court of Equity may disapprove, unless those agents receive and become chargeable with some part of the trust property, or unless they assist with knowledge in a dishonest and fraudulent design on the part of the trustees. It is clear that Lord Selborne regarded as a constructive trustee any person who was not an express trustee but might be made liable in equity to account for the trust assets as if he was. The problem is that in this all embracing sense the phrase constructive trust refers to two different things to which very different legal considerations apply. The first comprises persons who have lawfully assumed fiduciary obligations in relation to trust property, but without a formal appointment. They may be trustees de son tort, who without having been properly appointed, assume to act in the administration of the trusts as if they had been; or trustees under trusts implied from the common intention to be inferred from the conduct of the parties, but never formally created as such. These people can conveniently be called de facto trustees. They intended to act as trustees, if only as a matter of objective construction of their acts. They are true trustees, and if the assets are not applied in accordance with the trust, equity will enforce the obligations that they have assumed by virtue of their status exactly as if they had been appointed by deed. Others, such as company directors, are by virtue of their status fiduciaries with very similar obligations. In its second meaning, the phrase constructive trustee refers to something else. It comprises persons who never assumed and never intended to assume the status of a trustee, whether formally or informally, but have exposed themselves to equitable remedies by virtue of their participation in the unlawful misapplication of trust assets. Either they have dishonestly assisted in a misapplication of the funds by the trustee, or they have received trust assets knowing that the transfer to them was a breach of trust. In either case, they may be required by equity to account as if they were trustees or fiduciaries, although they are not. These can conveniently be called cases of ancillary liability. The intervention of equity in such cases does not reflect any pre existing obligation but comes about solely because of the misapplication of the assets. It is purely remedial. The distinction between these two categories is not just a matter of the chronology of events leading to liability. It is fundamental. In the words of Millett LJ in Paragon Finance Plc v DB Thakerar & Co (a firm) [1999] 1 All ER 400, at 413, it is the distinction between an institutional trust and a remedial formula between a trust and a catch phrase. Selangor United Rubber Estates Ltd v Craddock (no. 3) [1968] 1 WLR 1555, is a decision of Ungoed Thomas J about the elements of ancillary liability. It has been much criticised for drawing the net of liability too wide, and for making excessively fine distinctions between different mental states. But it contains a clear and entirely orthodox statement of the different categories of constructive trustee. The judge observed, at p 1579: It is essential at the outset to distinguish two very different kinds of so called constructive trustees: (1) Those who, though not appointed trustees, take upon themselves to act as such and to possess and administer trust property for the beneficiaries, such as trustees de son tort. Distinguishing features for present purposes are (a) they do not claim to act in their own right but for the beneficiaries, and (b) their assumption to act is not of itself a ground of liability (save in the sense of course of liability to account and for any failure in the duty so assumed), and so their status as trustees precedes the occurrence which may be the subject of claim against them. (2) Those whom a court of equity will treat as trustees by reason of their action, of which complaint is made. Distinguishing features are (a) that such trustees claim to act in their own right and not for beneficiaries, and (b) no trusteeship arises before, but only by reason of, the action complained of. Later in his judgment, at p 1582, the judge expanded upon the characteristics of his category (2): It seems to me imperative to grasp and keep constantly in mind that the second category of constructive trusteeship (which is the only category with which we are concerned) is nothing more than a formula for equitable relief. The court of equity says that the defendant shall be liable in equity, as though he were a trustee. He is made liable in equity as trustee by the imposition or construction of the court of equity. This is done because in accordance with equitable principles applied by the court of equity it is equitable that he should be held liable as though he were a trustee. The same point was made in very similar language by Millett LJ in Paragon, at pp 408 409: Regrettably, however, the expressions constructive trust and constructive trustee have been used by equity lawyers to describe two entirely different situations. The first covers those cases already mentioned, where the defendant, though not expressly appointed as trustee, has assumed the duties of a trustee by a lawful transaction which was independent of and preceded the breach of trust and is not impeached by the plaintiff. The second covers those cases where the trust obligation arises as a direct consequence of the unlawful transaction which is impeached by the plaintiff. A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another. In the first class of case, however, the constructive trustee really is a trustee. He does not receive the trust property in his own right but by a transaction by which both parties intend to create a trust from the outset and which is not impugned by the plaintiff. His possession of the property is coloured from the first by the trust and confidence by means of which he obtained it, and his subsequent appropriation of the property to his own use is a breach of that trust. In these cases the plaintiff does not impugn the transaction by which the defendant obtained control of the property. He alleges that the circumstances in which the defendant obtained control make it unconscionable for him thereafter to assert a beneficial interest in the property. The second class of case is different. It arises when the defendant is implicated in a fraud. Equity has always given relief against fraud by making any person sufficiently implicated in the fraud accountable in equity. In such a case he is traditionally though I think unfortunately described as a constructive trustee and said to be liable to account as constructive trustee. Such a person is not in fact a trustee at all, even though he may be liable to account as if he were. He never assumes the position of a trustee, and if he receives the trust property at all it is adversely to the plaintiff by an unlawful transaction which is impugned by the plaintiff. In such a case the expressions constructive trust and constructive trustee are misleading, for there is no trust and usually no possibility of a proprietary remedy; they are nothing more than a formula for equitable relief. Relevance of the distinction to limitation Before the Trustee Act 1888, no statutory time bar applied to a claim by a beneficiary against a trustee. The practice of equity was to apply statutory limitation periods by analogy to equitable claims, in addition to its own doctrines of laches and acquiescence. But by way of exception statutory limitation periods were not applied, even by analogy, to claims by a beneficiary against a trustee for breach of trust. Trustees were accountable to their beneficiaries without limitation of time. It is important to understand why equity adopted this rule, for its rationale will not necessarily apply to every kind of constructive trust. The reason was that the trust assets were lawfully vested in the trustee. Because of his fiduciary position, his possession of them was the beneficiarys possession and was entirely consistent with the beneficiarys interest. If the trustee misapplied the assets, equity would ignore the misapplication and simply hold him to account for the assets as if he had acted in accordance with his trust. There was nothing to make time start running against the beneficiary. It will be apparent that this reasoning can apply only to those who, at the time of the misapplication of the assets have assumed the responsibilities of a trustee, whether expressly or de facto. Persons who are under a purely ancillary liability are in a different position. They are liable only by virtue of their participation in the misapplication of the trust assets itself. Their dealings with the assets were at all times adverse to the beneficiaries, and indeed to the true trustees holding the legal interest. This point was first articulated by Lord Redesdale, Lord Chancellor of Ireland, in Hovenden v Lord Annesley (1806) 2 Sch & Lef 607, a classic judgment delivered (according to the reporter) after several days of argument around his sickbed at home. Referring to a judgment of Lord Maccelsfield on the application of statutory limitation by analogy to claims against trustees for breach of trust, he continued at pp 632 633: Now I take it that the position which has been laid down, that trust and fraud are not within the statute, is qualified just as he qualifies it here: that is, if a trustee is in possession and does not execute his trust, the possession of the trustees is the possession of the cestui que trust; and if the only circumstance is, that he does not perform his trust, his possession operates nothing as a bar, because his possession is according to his title. But the question of fraud is of a very different description: that is a case where a person who is in possession by virtue of that fraud, is not, in the ordinary sense of the word, a trustee, but is to be constituted a trustee by a decree of a court of equity, founded on the fraud; and his possession in the meantime is adverse to the title of the person who impeaches the transaction on the ground of fraud. The position of a person who is not an express or a de facto trustee but is constituted a trustee by a decree of a court of equity may be illustrated by another early case, Beckford v Wade (1805) 17 Ves Jun 87, a decision of the Privy Council on appeal from Jamaica. The claim was to recover trust assets from a stranger to the trust into whose hands they had come. The issue concerned the application of the English statutes of limitation, which were held to apply in Jamaica subject to a Jamaican statute excepting (among other people) trustees. Delivering the advice of the Board, Sir William Grant MR said, at pp 95, 97: The question then is, what the true construction of the Act is in this particular: whether it meant only actual and express trusts, as between cestui que trusts and trustees properly so called, upon which length of time ought to have no effect: or whether it intended to leave open to perpetual litigation every equitable question relative to real property. It is certainly true, that no time bars a direct trust, as between cestui que trust and trustee. But if it is meant to be asserted that a court of equity allows a man to make out a case of constructive trust at any distance of time, after the facts and circumstances happened, out of which it arises, I am not aware that there is any ground for a doctrine, so fatal to the security of property as that would be. Inconsistent case law These cases gave a coherent and rational explanation of the reason why, exceptionally, limitation could not be taken by an express or de facto trustee against his beneficiary, but was available to strangers who had incurred an ancillary liability. Courts of equity, however, later lost sight of the underlying principle and for much of the 19th century continued to deal with the issue on a confusing and inconsistent basis, generally without analysis or reference to earlier authority. For many years, Bonney v Ridgard (1784) 17 Ves 87 and Beckford v Wade (1805) 17 Ves Jun 87 were the principal authorities for the proposition that limitation was available to strangers who were under an ancillary liability arising from a breach of trust. Wilson v Moore (1834) 1 My&K 337 and Bridgman v Gill (1857) 24 Beav 302 were authority for the opposite proposition. I do not propose to analyse the facts of these cases, some of which are very summarily reported. The story can conveniently be taken up in 1893, when Soar v Ashwell [1893] 2 QB 390 came before the Court of Appeal. Soar v Ashwell was decided under the general principles of equity relating to limitation as they stood before the Trustee Act 1888. The facts were similar to those of many other cases about Victorian family trusts. The fund had been entrusted by the trustees to Ashwell, the solicitor to the trust, who exercised all of their administrative and investment powers for them and misapplied the assets. The actual question at issue was whether the reasoning which deprived trustees of the right to raise limitation against their beneficiaries applied to him, given that he was not an express trustee. The Court of Appeal held that it did. According to Lord Esher MR and Bowen LJ, this was because he stood in a fiduciary position to the trustees as his clients. According to Kay LJ it was because he was a trustee de son tort. For present purposes, the difference does not matter. In either case, as Lord Esher put it at pp 393, 394, he had assumed to act as if he were a trustee. The Court of Equity treats the defendant as a trustee become so by construction, and the trust is called a constructive trust. Lord Esher recognised the distinction explained by Lord Redesdale between a person liable by reason of his pre existing status as a trustee and a person liable only by reason of his involvement in a misapplication of the assets. At p 394 he observed: Assume that he misappropriated that money to his own use, and that was all; the misappropriation would at once of itself make him the holder of the money in trust for the rightful owner, but if that were all only a trustee by construction of a constructive trust. But the questions in this case are whether Ashwell was not, in view of a Court of Equity, a trustee of the money before the alleged breach by misappropriation and, if he was, under which class of trust he was with regard to limitations. The moment the money was in his hands, he was in a fiduciary relation to the nominated trustees; he was a fiduciary agent of theirs; he held the money in trust to deal with it for them as directed by them; he was a trustee for them. He was therefore a trustee of the money before he committed, if he did commit, the alleged breach of trust, and was in possession of and had control over the money before he committed, if at all, the alleged breach of trust. Notwithstanding this impeccable statement of the reasons why Ashwell could not rely on limitation, all three members of the court went on to deal, in terms which had no regard to it, with the position of other kinds of constructive trustee. Lord Esher expressed the view, at pp 394 395, that a stranger to the trust who knowingly assisted in a dishonest misapplication of trust assets would be treated for limitation purposes in the same way as an express trustee. Bowen LJ, at pp 396 397, while recognising that the authorities were irreconcilable, identified three cases where a constructive trustee would be treated for limitation purposes like an express trustee, namely the case of de facto trustees, which was the case before the court; the case of a stranger to the trust knowingly assisting the fraud of a trustee; and the case of a stranger knowingly receiving trust property in breach of trust. Kay LJ, whose own examination of the authorities at pp 400 405 disclosed the same inconsistency, seems to have been of the same view as Bowen LJ. None of them suggested that a stranger liable to account as a constructive trustee on the footing of knowing assistance or knowing receipt was actually a trustee, only that for the purpose of the general equitable principles governing limitation such persons were to be treated in the same way as trustees. None of them sought to explain why the rather special rationale of the rule of equity applicable to express or de facto trustees should apply to a person who was not a trustee but had a purely ancillary liability to account as a constructive trustee. Nonetheless in the years immediately following the decision in Soar v Ashwell, most judges were content to follow the dicta in that case: see In re Gallard [1897] 2 QB 8; Heynes v Dixon [1900] 2 Ch 561; In re Eyre Williams [1923] 2 Ch 533 (although only the first of these cases was a true case of ancillary liability). Statutory modification From this unsatisfactory state of affairs, the law was rescued by the intervention of statute, which provoked some fresh judicial analysis. Section 25(2) of the Judicature Act 1873 gave statutory effect to the rule which deprived trustees of the right to raise limitation, at any rate so far as express trustees were concerned. It provided: No claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any statute of limitations. The first significant change in the law came with the Trustee Act 1888, which sought to relieve honest trustees who had parted with the assets and had not converted them to their own use from the harshness of the rule which held them accountable without limitation of time. Section 8(1) of the Act applied in any action or other proceeding against a trustee or any person claiming through him, except where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property, or the proceeds thereof still retained by the trustee, or previously received by the trustee and converted to his use If these conditions were satisfied, the trustee was entitled to the same statutory period of limitation as would have been available if he had not been a trustee or, in the case of an action to recover trust money or property, to the limitation period applicable to a common law action for money had and received. This meant, in effect, six years. For the purpose of section 8(1), trustee was defined in section 1(3) as including an executor or administrator and a trustee whose trust arises by construction or implication of law as well as an express trustee. The leading case on the effect of sections 1(3) and 8(1) of the Trustee Act 1888 was Taylor v Davies [1920] AC 636, a decision of the Privy Council on a Canadian statute in the same terms. Davies was a secured creditor of an insolvent firm whose property had been the subject of an assignment for the benefit of creditors. He was also a member of the committee of inspection appointed to supervise the assignee. He took a conveyance of the mortgaged property from the assignee in satisfaction of the debt at what was alleged to be an undervalue. Twelve years later, the other creditors sought to set aside the conveyance, on the ground that as a member of the committee of inspection Davies had been a fiduciary and as such precluded by the self dealing rule from acquiring the property himself, at any rate without fuller disclosure. There was no allegation of dishonesty. The Board held that Mr Davies was not an express trustee because the assets of the insolvent were vested in the assignee and the committee of creditors had no power to dispose of them. The same point would have been fatal to any suggestion that he was a de facto trustee. They considered that he was a constructive trustee, apparently on the footing of knowing receipt of assets held in trust by the assignee. In those circumstances, the question arose whether the Act applied. It was argued for Davies that the Act had no application to constructive trustees whose liability was purely ancillary, because such persons had always been entitled in equity to raise limitation. The creditors argument was that the definition of trustee extended to constructive trustees, and that Davies was deprived of the right to raise limitation by the statutory exception for cases where the property or its proceeds was still in the hands of the alleged trustee. The Board decided this question in favour of Davies. Their reason was that the Act did not extend to constructive trustees whose liability to account arose from the wrongful misapplication itself. Two passages from the advice of the Board, given by Viscount Cave, are relevant. At pp 650 651, Viscount Cave said: The possession of an express trustee was treated by the Courts as the possession of his cestuis que trust, and accordingly time did not run in his favour against them. This disability applied, not only to a trustee named as such in the instrument of trust, but to a person who, though not so named, had assumed the position of a trustee for others or had taken possession or control of property on their behalf, such (for instance) as the persons enumerated in the judgment of Bowen L.J. in Soar v Ashwell or those whose position was in question in Burdick v Garrick, In re Sharpe, Rochefoucauld v Boustead, and Reid Newfoundland Co v Anglo American Telegraph Co. These persons, though not originally trustees, had taken upon themselves the custody and administration of property on behalf of others; and though sometimes referred to as constructive trustees, they were, in fact, actual trustees, though not so named. It followed that their possession also was treated as the possession of the persons for whom they acted, and they, like express trustees, were disabled from taking advantage of the time bar. But the position in this respect of a constructive trustee in the usual sense of the words that is to say, of a person who, though he had taken possession in his own right, was liable to be declared a trustee in a Court of equity was widely different, and it had long been settled that time ran in his favour from the moment of his so taking possession. This rule is illustrated by the well known judgment of Sir William Grant MR in Beckford v Wade. Turning to the extended definition of trustee to include constructive trustees, Viscount Cave said at p 653: The expressions trust property and retained by the trustee properly apply, not to a case where a person having taken possession of property on his own behalf, is liable to be declared a trustee by the Court; but rather to a case where he originally took possession upon trust for or on behalf of others. In other words, they refer to cases where a trust arose before the occurrence of the transaction impeached and not to cases where it arises only by reason of that transaction. The exception no doubt applies, not only to an express trustee named in the instrument of trust, but also to those persons who under the rules explained in Soar v Ashwell and other cases are to be treated as being in a like position; but in their Lordships' opinion it does not apply to a mere constructive trustee of the character described in the judgment of Sir William Grant. There is some confusion in these passages, arising from the references to Soar v Ashwell. Some of Viscount Caves turns of phrase, taken in isolation, might be thought to suggest that he was approving Bowen LJs extension of the equitable rule to cases of ancillary liability. But I think that he must have been referring to the ratio of that case, ie to the extension of the equitable rule to de facto trustees. Otherwise, he could not have decided the case in the way he did. Nor could he have distinguished cases in which the liability to account was imposed by equity by reason of the wrongful act itself, such as the decision of Sir William Grant in Beckford v Wade, the relevant part of which he had quoted at 651 652. Three years later, in Clarkson v Davies [1923] AC 100, the Privy Council applied the same reasoning to the same statute, in another case involving the knowing receipt of a companys funds by its directors. Taylor v Davies, they said at 110 111, was authority for a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arose only by reason of that transaction. In 1936, the Law Revision Committee under the chairmanship of the then Master of the Rolls Lord Wright presented its fifth interim report, on statutes of limitation. Paragraph 11 of the report dealt with section 8 of the Trustee Act 1888, so far as relevant to the present issues. The Committee regarded the section as generally satisfactory. But it identified a problem about actions against persons, in particular executors, who owed fiduciary obligations in relation to property but were not express trustees. In two cases decided after the Act of 1888 but under the previous law, it had been held that executors were entitled to rely on a statutory time bar even if they were still in possession of the assets. This was because section 25(1) of the Judicature Act, in giving statutory effect to the rule of equity preventing trustees from raising limitation against their beneficiaries, had referred only to express trustees and executors were not express trustees: see In re Jane Davies [1891] 3 Ch 119; In re Lacy [1899] 2 Ch 149. This result was not consistent with section 8(1) of the Act of 1888, which had excluded from its ambit cases in which the trustee was still in possession when sued. But the anomaly would nevertheless persist because section 8(3) preserved any pre existing right to rely on limitation. The Committees conclusion, at para 11, was as follows: It is difficult to find any real justification for the rule that an executor or other person holding property as a trustee, but not on an express trust, can plead the statute, though he still retains the trust property or has converted it to his own use. The rule has been extensively modified by decisions giving such a wide meaning to express trust as to bring most cases of fiduciary relationship within the exception to the Trustee Act, and to raise serious doubt as to where the line is to be drawn for this purpose between express and constructive trusts. See the judgment of the Bowen LJ in Soar v Ashwell [1893], 2, QB at p 395, and the authorities there cited, and the cases referred to by Romer J in In re Eyre Williams [1923] 2 Ch 533. It is perhaps too late now to suggest that the Trustee Act, 1888 was intended to do away with the distinction between express and constructive trusts for the purpose of the limitation of actions, though the definition of trustee in section 1 (8) seems to point to that conclusion. At any rate we consider that the distinction should now be abolished, and we recommend that the exception in section 8 of the Trustee Act, 1888 should be expressly made to extend to trustees whether holding on express or constructive trusts, including personal representatives. Recommendation (7) of the Committee was that the Statutes of Limitation should only apply to constructive trustees to the extent to which they do to express trustees. It will be apparent from these observations that the only distinction which needed to be abolished for limitation purposes in order to dispose of the anomaly identified by the Committee was the distinction between express trustees and executors. It is clear that in referring to the position of persons who still held the property in their possession the Committee had in mind de facto trustees and other persons such as executors owing fiduciary duties in relation to property by virtue of their office. Notwithstanding the ambiguous reference to Bowen LJs judgment in Soar v Ashwell, there is nothing in the Committees reasoning to suggest that they had in mind ancillary liabilities. The Limitation Act 1939 was both a consolidating and an amending Act. So far as it amended the law, it was intended to give effect to the principal recommendations of the Wright Committee. It is, however, necessary to be cautious about transposing the views of the Wright Committee into the statutory language. The Committee did not produce a draft bill and the language of section 19 does not follow that of the report as some other sections do. It may therefore have been influenced by other considerations. As far as trustees were concerned the Act repealed the Trustee Act 1888 and replaced section 8 of that Act by section 19 of the new Act. Section 19(1) and (2) were in substantially the same terms as section 21(1) and (3) of the Limitation Act 1980, which I have set out above. They employed a different drafting technique from the old section 8(1). Instead of creating a right on the part of trustees to raise limitation by analogy with statute, subject to the two exceptions for cases of fraud by the trustee or actions to recover trust property in the possession of the trustee or previously converted to his use, it reversed the order of ideas. It provided that no limitation period prescribed by the Act should apply in those two cases, and then that the limitation period in other cases should be six years. The effect was to address the Wright Committees specific concerns about the survival of pre existing rights to raise limitation in cases falling within the exceptions, by excluding such rights in terms. If, which I doubt, the Wright Committee intended to propose the abolition of the distinction for limitation purposes between express trustees and every kind of constructive trustee, including those whose liability was ancillary, then it is clear that this proposal was not adopted by Parliament. Section 31(1) of the 1939 Act adopted the meaning given to trust and trustee in section 68(17) of the Trustee Act 1925. This had the effect of broadening the definition to include personal representatives, whose unsatisfactory position had been the main source of concern to the Committee. Otherwise the scope of the new definition was no broader than that of the Trustee Act 1888. But it goes further than that. By adopting the meaning and not just the language of the definition in the Trustee Act 1925, Parliament made it even clearer that the intention was simply to cover de facto trustees. The Trustee Act 1925 is concerned with the administration of true trusts. It is not concerned with constructive trusts imposed by equity on strangers to the trust in the exercise of its remedial jurisdiction. As Millett LJ observed when making this point in Paragon, at p 412, constructive trustees required to account in the exercise of equitys remedial jurisdiction, have no trust powers or duties; they cannot invest, sell or deal with the trust property; they cannot retire or appoint new trustees; they have no trust property in their possession or under their control, since they became accountable as constructive trustees only by parting with the trust property. They are in reality neither trustees nor fiduciaries, but merely wrongdoers. All of these considerations apply equally to section 21 of the Limitation Act 1980, which is in the same terms. It was suggested to us that in enacting section 19 of the Limitation Act 1939, Parliament must have intended to abolish for limitation purposes the distinction between true trustees and others upon whom equity imposed a liability to account as if they were trustees. This was because it intended to adopt the recommendations of the Wright Committee, and that (it was said) is what the Wright Committee intended. It is I think important to remember that we are construing the Act, not the report of the Committee. But the submission cannot in any event be correct for a number of reasons. In the first place, there is nothing in the report of the Wright Committee which suggests that they intended to abolish that distinction. What they were concerned with was the distinction between different kinds of true trustees. In particular, they were concerned with the anomalous distinction which had crept into recent case law between the application of the law of limitation to express trustees and an executor or other person holding property as a trustee, but not on an express trust. Second, if the Committee had intended to abolish for limitation purposes any distinction between true trustees and persons incurring an ancillary liability, it is hardly conceivable that they would have done so without discussing or even mentioning the two recent decisions of the highest persuasive authority, Taylor v Davies and Clarkson v Davies, which were based on precisely that distinction. The reason why they ignored the two Privy Council decisions was not that they were ignorant of them, or that they regarded them as outliers or wrong, but because they were not at all concerned with the question of ancillary liabilities which arose in those cases. Third, if Parliament had understood the Wright Committee as having recommended the abolition for limitation purposes of the distinction between true trustees and persons incurring an ancillary liability, they would not have done so by adopting the definition of trustee in the Trustee Act 1925. That definition extends the category of trustees to a personal representative, but says nothing about ancillary liabilities, with which the Trustee Act was not concerned. The latter point raises an altogether more fundamental objection to using the Committees report to elucidate not the rules of limitation as such but the categories of trustee to which they were intended to apply. By adopting not just the language but the meaning of the ready made definition in the Trustee Act 1925, Parliament directed the courts to discover its meaning in the latter Act. On that question, the intentions of a Committee reporting 11 years later cannot be of the slightest assistance. The above analysis of section 21 of the Limitation Act 1980 has now been accepted by the English courts at every level below this court. The turning point was the decision of the Court of Appeal in Paragon Finance Plc v DB Thakerar & Co (a firm) [1999] 1 All ER 400, which is notable mainly for an extended obiter dictum of Millett LJ on the distinction, for limitation purposes, between a liability for breach of a true trust and an ancillary liability. I have already quoted freely from this valuable and characteristically trenchant judgment, which among other things draws attention to the importance of the decisions in Beckford v Wade and Taylor v Davies. There is a briefer dictum to the same effect by Lord Millett, as he had by then become, in Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366, 404. In Cattley v Pollard [2007] Ch 353, Richard Sheldon QC sitting as a deputy judge of the High Court, after an impressive review of a substantial body of case law and academic literature, held that section 21(1)(a) of the Limitation Act 1980 applied only to express and de facto trustees and not to persons liable only by virtue of their dishonest assistance in a breach of trust. In JJ Harrison (Properties) v Harrison [2002] 1 BCLC 162, and again in Gwembe Valley Development Co Ltd v Koshy (no. 3) [2004] 1 BCLC 131, the Court of Appeal adopted the analysis of Millett LJ and applied it to a case of knowing receipt of the assets of a company. It was held in both cases that no period of limitation applied, but only because the defendant was a director and as such to be treated as a true trustee. It is clear from the courts reasoning that the limitation position would have been different if he had not been. In Halton International (Holdings) Inc Sarl v Guernroy Ltd [2006] WTLR 1241, the Court of Appeal adopted the same reasoning and held that section 21(1) applied only to claims against express or de facto trustees, and not to claims against constructive trustees whose liability came into being as a result of the transaction impeached. In Peconic Industrial Development Ltd v Lau Kwok Fai [2009] 5 HKC 135, the Court of Final Appeal of Hong Kong held that the relevant provision of the Hong Kong Ordinance, which was in the same terms as section 19(1) of the English Limitation Act 1939, did not apply to a person liable to account as a constructive trustee on the footing of dishonest assistance. Lord Hoffmann, delivering the leading judgment, declined to follow the dicta of the Court of Appeal in Soar v Ashwell, which he regarded as wrong in principle and unsupported by authority. He was also unimpressed by the submission that this put a dishonest assister in a better position than an innocent or merely negligent trustee: The principle is not that the limitation defence is denied to people who were dishonest. It plainly applies to claims based on ordinary common law fraud. The principle is that the limitation period is denied to fiduciaries. But dishonest assisters are not fiduciaries. Para 24 These decisions represent a formidable corpus of modern and carefully reasoned authority in favour of a principle which is in my view correct. Is knowing receipt different? Mr Adkin realistically acknowledged that so far as his clients claim was based on dishonest assistance in a breach of trust, the Central Bank could not be regarded as a trustee for the purposes of the Limitation Act. But he submitted that so far as his claim was based on knowing receipt or on a right to follow the money into the hands on the Central Bank, the position was different. I do not think that it is. It is true that many of the authorities which I have reviewed involved the participation of the defendant in a fraud, and some of the statements of principle are expressed by reference to that situation. But others, notably Taylor v Davies, did not involve fraud and can only be analysed as cases of knowing receipt. The difficulty about Mr Adkins submission is that the principle does not depend on the difference between assistance and receipt, dishonesty or innocence. It depends on the difference between the liability of a true trustee, and the liability which a stranger incurs solely by reason of his participation in the very misapplication of trust assets which the claimant seeks to impeach. The essence of a liability to account on the footing of knowing receipt is that the defendant has accepted trust assets knowing that they were transferred to him in breach of trust and that he had no right to receive them. His possession is therefore at all times wrongful and adverse to the rights of both the true trustees and the beneficiaries. No trust has been reposed in him. He does not have the powers or duties of a trustee, for example with regard to investment or management. His sole obligation of any practical significance is to restore the assets immediately. It is true that he may be accountable for any profit that would have been made or any loss that would have been avoided if the assets had remained in the hands of the true trustees and been dealt with according to the trust. There may also, in some circumstances, be a proprietary claim. But all this is simply the measure of the remedy. It does not make him a trustee or bring him within the provisions of the Limitation Act relating to trustees. Application of section 21(1)(a) to an action against a non trustee If, as I conclude, the Central Bank was not a trustee, the question arises whether it is nevertheless a party sued in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy. Section 8 of the Trustee Act 1888 applied to any action or other proceeding against a trustee or any person claiming through him. Accordingly, it was expressly confined to actions against a trustee. However, the words which I have quoted were lost when the provision was reformulated in 1939. Did this change, which carried through into section 21 of the Act of 1980, extend the scope of that provision to actions against a stranger who was not a trustee? Mr Adkin submits that it did. But no authority has ever supported that contention apart from a tentative dictum of Danckwerts J in GL Baker Ltd v Medway Building and Supplies Ltd [1958] 1 WLR 1216, at 1222 and an alternative ratio of Evans Lombe J in Statek Corporation v Alford [2008] EWHC 32 (Ch). For my part, I would accept that this is a linguistically possible construction. But I think that it is mistaken because it overlooks the principles of equity which provide the background and subject matter of this section. In my opinion, it clear that section 21(1)(a) of the Act of 1980 is concerned only with actions against trustees on account of their own fraud or fraudulent breach of trust. In the first place the whole of the legislative history, as I have summarised it above, demonstrates that what is now section 21(3) was intended to relieve trustees, save in the two cases specified in section 21(1), from the harsh consequences of the equitable rule which held them liable to account without limitation of time. The exceptions must apply to the same persons as the rule. On a correct analysis of the law, restated in Taylor v Davies and Clarkson v Davies, the rule had never applied to strangers who were subject only to an ancillary liability, and they had therefore never needed to be relieved. This was essentially the ground on which Lord Hoffmann in Peconic Industrial Development Ltd v Lau Kwok Fai [2009] 5 HKC 135, paras 24 and 25 considered that the corresponding provision in the Hong Kong ordinance had no application to claims against such persons. Second, unlike section 21(3), which introduces the general limitation period for trust claims, section 21(1)(a) is limited to cases of fraud or fraudulent breach of trust to which the trustee was a party or privy. These words are there to relieve trustees who acted in good faith, including the honest co trustees of a dishonest trustee. They would be unnecessary if the provision applied to actions against strangers to the trust, because any fraudulent breach of trust must necessarily be one to which the trustee is a party or privy. The inclusion of the phrase makes sense only on the footing that the section applies to actions against trustees and that it was intended to limit the circumstances in which it applied to them. The point is reinforced by the use of the definite article (the trustee), which can only mean that the draftsman was referring to fraud or fraudulent breach of trust on the part of the particular trustee sued. Third, the ancillary liability of a stranger to the trust arises independently of any fraud on the part of the trustee. This has always been recognised in the case of ancillary liabilities on the footing of knowing receipt. A liability on that basis does not require proof of any dishonesty on anyones part. Knowing assistance is different. It is based on fraud. But it is now clear that that knowing assisters are liable on account of their own dishonesty, irrespective of the dishonesty of the trustees: Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 There is no rational reason why the draftsman of section 21(1)(a) should have intended that the availability of limitation to a non trustee should depend on a consideration which had no bearing on his liability, namely the honesty or dishonesty of the trustee. Mr Adkin submitted that the Act was drafted on the mistaken assumption that liability for knowing assistance depended on the dishonesty of the trustee, because that was how Lord Selborne had expressed it in Barnes v Addy and everyone assumed it to be the law when the legislation assumed its current form in 1939. I do not accept this. The liability of a knowing assister has always depended on the unconscionability of his conduct. Cases involving an honest trustee and a dishonest assister have rarely arisen, whether before or after 1939. In practice the trustee usually is dishonest and the alleged constructive trustees conscience is affected because he has participated in the scheme with knowledge of that fact. That was why Lord Selborne spoke as he did. But the authorities cited by Lord Nicholls of Birkenhead in Royal Brunei Airlines, at 385, show that in those, older, cases where the question of the honest trustee and the dishonest assister had been considered, the critical question was the state of mind of the assister. The problem, as he pointed out at 386, was the tendency since Selangor United Rubber Estates Ltd v Craddock (no. 3) [1968] 1 WLR 1555 to read Lord Selbornes statement like a statute. Finally, section 21(1)(b), which deals with actions to recover trust property in the possession of the trustee, is unquestionably limited to actions against the trustee. It does not apply to actions against third parties such as knowing recipients of trust property. I can discern no rational reason why Parliament, if it wished to exclude persons under an ancillary liability, should have done so in cases where such persons were liable to account on the footing of knowing assistance but not in cases of knowing receipt. The truth is that both paragraphs (a) and (b) are concerned with actions against the trustee. The Report of the Wright Committee seems to me to have no bearing on this issue. The relevant part of it is concerned only with the question how a trustee should be defined for the purposes of statutory limitation. The present issue arises only once it is concluded that the Bank was not a trustee for the purposes of statutory limitation. I agree with Lord Neuberger that if anything the Committees analysis tends to militate against giving a wider meaning to section 21(1)(a) of the Act. Conclusion For these reasons, and for the very similar reasons given by Lord Neuberger, I would allow the appeal and declare that the English court has no jurisdiction which it ought to exercise in respect of the 1986 trust claims. It follows that those claims should be struck out. LORD NEUBERGER, (with whom Lord Hughes agrees) Introductory This appeal, whose substantive and procedural history is summarised in paras 1 and 2 above, raises two questions, both of which concern the scope of section 21(1)(a) of the Limitation Act 1980 (the 1980 Act), which, together with the other relevant statutory provisions, is set out in para 3 above. The questions which arise are: a) Is a stranger to a trust who is liable to account on the grounds of knowing receipt of trust assets and/or on the grounds of dishonest assistance in a breach of trust, a trustee for the purposes of section 21(1)(a) of the 1980 Act (section 21(1)(a))? b) Does an action in respect of any fraud or fraudulent breach of trust under section 21(1)(a) to which the trustee was a party or privy, include an action against a party which is not itself a trustee? Given the rather tangled way in which the law has developed in this area, through both cases and statutes, it is important to bear in mind that these are separate questions, although they are concerned with resolving the same issue. In the courts below, the respondent, Dr Williams conceded that the answer to the first question was no, but he now contends that it is yes; he also contends, as he contended below, that the answer to the second question is yes, and the Court of Appeal (Sir Andrew Morritt C, and Black and Tomlinson LJJ) agreed see [2013] QB 499. The appellant, Central Bank of Nigeria, contends that the answer to both questions is no. There is a divergence of opinion in this Court as to the outcome of Central Bank of Nigerias appeal to this Court. I agree with Lord Sumption that this appeal should be allowed. However, because the resolution of the two issues is not easy, the first issue has been raised for the first time in this Court, we are not all agreed, and I differ from the Court of Appeal, I propose to give my reasons for allowing the appeal. In doing so, I shall consider the two questions in turn. The meaning of trustee in section 21(1)(a) Limitation bars on claims against trustees It is important to bear in mind the history of the law relating to limitation and trustees, now contained in section 21 of the 1980 Act, particularly when considering earlier judicial decisions. Until 1888, there was no express statutory limitation period applicable to claims in equity. However, as Lord Redesdale LC (Ireland) explained in Hovenden v Lord Annesley (1806) 2 Sch & Lef 607, 632, the Courts of Equity took the view that wherever the legislature has limited a period for law proceedings, equity will, in analogous cases, consider the equitable rights, as bound by the same limitation. He added that the Courts of Equity also proceeded on the basis that trust and fraud are not within the statute ie that there was no virtual enact[ment], to use his language at 631, which applied to claims for breach of trust or claims based on fraud. The sweeping procedural reforms of the 1870s maintained this position, in that section 25(2) of the Judicature Act 1873 (the 1873 Act) specifically excluded from the ambit of any Statute of Limitations, any claim of a cestui que trust against his trustee in respect of any breach of trust. Thirteen years later, section 8 of the Trustee Act 1888 (the 1888 Act) entitled a trustee to raise a limitation defence against a claim brought by a beneficiary. The relevant parts of section 8 of the 1888 Act (section 8), which did not involve a repeal of section 23(2) of the 1873 Act, are set out in para 22 above. The law on limitation of actions generally was considered by the Law Revision Committee in its Fifth Interim Report (Statutes of Limitation) Cmd 5334 (the 1936 Report), which was presented to Parliament in December 1936. The recommendations in the 1936 Report resulted in the Limitation Act 1939 (the 1939 Act). In para 24, Lord Sumption sets out the centrally relevant passages in the 1936 Report, and Lord Mance, in paras [146 147] quotes passages from the speeches of the Lord Chancellor, Lord Wright and Lord Romer in the House of Lords, and of the Solicitor General in the House of Commons, when introducing the Bill which became the 1939 Act. The 1939 Act repealed all previous legislation relating to limitation (including section 25(2) of the 1873 Act and section 8) and contained provisions which were, for present purposes, to the same effect as the sections of the 1980 Act summarised in para 3 above. The 1980 Act repealed the 1939 Act, and re enacted almost all its provisions, albeit with many significant amendments, none of which is relevant to the first (or indeed the second) issue on this appeal. The proper approach The word trustee in section 21(1)(a) is defined in section 38(1) of the 1980 Act, which provides that trust and trustee have the same meaning respectively as in the Trustee Act 1925. Where a term in a later statute is defined by reference to a definition in an earlier statute, it seems to me self evident that the meaning of the definition in the later statute must be the same as the meaning of the definition in the earlier statute. Hence, the meaning of the term in the later statute is determined by the definition in the earlier statute. Further, the adoption of the definition in the later statute cannot somehow alter the meaning of the definition in the earlier statute. It accordingly follows that one has to determine the meaning of the term in the later statute simply by construing the definition in the earlier statute. Thus, the meaning of trustee in section 21(1)(a) must be determined by construing the definition of trustee in section 68(1)(17) of the 1925 Act (section 68(1)(17)). In the light of Lord Mances judgment, it is, I think, important to emphasise that the way in which the definition of trustee in section 68(1)(17) is incorporated into the 1980 Act appears to leave no scope for contending that the meaning of the expression in the 1980 Act can somehow be different from that which it bears in the 1925 Act. It follows from this that a correct reformulation of the first question raised on this appeal is whether the definition of trustee in section 68(1)(17) includes a stranger to a trust who is a knowing recipient or a dishonest assister ie a person, not otherwise a trustee, who is liable to account on the grounds of knowing receipt of trust assets and/or on the grounds of dishonest assistance in a breach of trust. The 1925 Act was, of course, a consolidating statute, with amendments, which formed part of the sweeping property law reforms of that year. It was concerned with the powers and duties of trustees, not with limitation, and the definition in section 68(1)(17) largely follows the wording of the definition of trustee in earlier legislation concerned with the powers and duties of trustees, the Trustee Acts 1850 and 1893. In my view, therefore, judicial decisions as to the meaning of trustee, or related expressions, in a non statutory context or in connection with different legislation, have to be approached with a degree of caution. I also consider that it is self evident that statements made in the 1936 Report, and by the Solicitor General in Parliament in connection with the Bill which became the 1939 Act must be irrelevant to the resolution of the first issue on this appeal. What a committee recommended in 1936, or what was said in Parliament in 1939, cannot, as I see it, possibly affect the meaning of a definition in a statute enacted in 1925. The problem thrown up by the first issue The definition of trustee in section 68(1)(17) (the Definition) obviously extends to a person who accepts property expressly (or impliedly) on the basis that he is to hold it for the benefit of another, a classic definition of a trustee. It is also apparent that the term includes a trustee de son tort, a somewhat archaic expression, explained thus in Lewin on Trusts 18th ed, (2008) para 42 74: If a person by mistake or otherwise assumes the character of trustee when it does not really belong to him, he becomes a trustee de son tort and he may be called to account by the beneficiaries for the money he has received under the colour of the trust. A trustee de son tort closely resembles an express trustee. The principle is that a person who assumes an office ought not to be in any better position than if he were what he pretends: he is accountable as if he had the authority which has been assumed. However, as Millett LJ explained in Paragon Finance Plc v DB Thackerar & Co (a firm) [1999] 1 All ER 400, 409, the Courts of Equity treated as a trustee not only an express or implied trustee and a trustee de son tort, but also a person, who though not expressly appointed as trustee, has assumed the duties of a trustee by a lawful transaction which was independent of and preceded the breach of trust and is not impeached by the [claimant]. As he then said, such a person is known as a constructive trustee, and really is a trustee, as his possession of the property is coloured from the first by the trust and confidence by means of which he obtained it, and his subsequent appropriation of the property to his own use is a breach of that trust. It is, rightly, common ground that the persons described in paras 16 and 17 above are properly called trustees and are within the scope of the Definition. The question which arises is whether a person who is treated as accountable to the claimant in equity solely as a result of (i) knowingly wrongly receiving property, or (ii) dishonestly assisting a trustee in committing a breach of trust, is a constructive trustee for the purposes of the Definition. Knowing recipients: the authorities A number of clear and considered judicial observations over the past two centuries seem to me to make it clear that a knowing recipient is not a trustee. I have in mind what was said by Lord Redesdale in Hovendens case at pp 632 633, Lord Selborne LC in Barnes v Addy (1874) 9 Ch App 244, 251 Viscount Cave LC in Taylor v Davies [1920] AC 636, 650 1 and 653, Ungoed Thomas J in Selangor United Rubber Estates Ltd v Cradock (no. 3) [1968] 1 WLR 1555, 1579 and 1582, Millett LJ in the Paragon case at pp 409 410, and Lord Hoffmann NPJ in the Hong Kong Court of Final Appeal in Peconic Industrial Development Ltd v Lau Kwok Fai [2009] 5 HK 135, para 24, quoted, respectively, by Lord Sumption in paras 14, 8, 23, 10, 11 and 28 above. The point at issue in Hovendens case involved a question of alleged knowing receipt. Lord Redesdale referred, at pp 632 633, to a trustee [who] does not execute his trust, and described such a person at p 633 as having possession according to the right of the party against whom he seeks to set it up. He then went on to explain that the question of fraud is of a very different description because a person who is in possession by virtue of that fraud is not, in the ordinary sense of the word, a trustee, but is to be constituted a trustee by a decree of a court of equity founded on the fraud. He contrasted such a persons possession in the meantime with that of a trustee on the ground that it was adverse to the title of the person who impeaches the transaction on the ground of fraud. In Barnes v Addy, Lord Selborne similarly distinguished between those who were clothe[d] with a legal power and control over the trust property, imposing on [them] a corresponding responsibility, and those to whom a similar responsibility [was] extended in equity to others who are not properly trustees, such as those actually participating in any fraudulent conduct of the trustee. In Taylor v Davies, the Privy Council adopted the same approach in connection with a Canadian limitation statute, which was in very similar terms to its contemporary English equivalent, section 8. At p 651, Viscount Cave, giving the judgment of the Board, said that, although time did not run in favour of a trustee properly so called, the position in this respect of a constructive trustee in the usual sense of the words that is to say, of a person who, though he had taken possession in his own right, was liable to be declared a trustee in a Court of Equity was widely different, and it had long been settled that time ran in his favour from the moment of his taking possession. Like section 8 and, now, section 21, the definition of trustee in the Canadian statute extended to a constructive trustee, but Viscount Cave said two pages later, that the references to constructive trustee apply to a case where he originally took possession upon trust for or on behalf of others, so that they refer to cases where a trust arose before the occurrence of the transaction impeached and not to cases where it arises only by reason of that transaction. (It is true that the defendant in that case was not alleged to be a knowing recipient in the normal sense, but the principle expressed by Viscount Cave is clear, and, in one sense, the facts were stronger against the defendant than in this case, as he already had fiduciary obligations to the plaintiff). That approach was followed by the Privy Council in another appeal concerning the same Canadian statutory provision, Clarkson v Davies [1923] AC 100. In that case, at pp 110 111, the Board (which included Viscount Cave), in a judgment written by Lord Scott Dickson, the Lord Justice Clerk (who died before it was given) said Taylor was authority for a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arose only by reason of that transaction. In the Selangor case [1968] 1 WLR 1555, 1582, Ungoed Thomas J explained that a person who was held liable to account as a knowing recipient was made liable in equity as trustee by the imposition or construction of the court of equity, and explained that this was because the Court of Chancery considered it equitable that he should be held liable as though he were a trustee ie he was liable to account in the same way as a trustee, not that he was a trustee and was therefore liable to account. Millett LJ (with whom Pill and May LJJ agreed) reached the same conclusion in his closely reasoned, bravura judgment, from which I have briefly quoted at para 54 above, in the Paragon case. It was also the conclusion reached by Lord Hoffmann (with whom the other four Justices of the Court of Final Appeal agreed) in the Peconic case at paras 19 24. To my mind, those observations are convincing and in accordance with principle. It is unreal to refer to a person who receives property dishonestly as a trustee, ie a person in whom trust is reposed, given that the trust is said to arise simply as a result of dishonest receipt. Nobody involved, whether the dishonest receiver, the person who passed the property to him, or the claimant, has ever placed any relevant trust and confidence in the recipient. As Millett LJ expressed the point in the Paragon case at p 409, a knowing recipient never assumes the position of a trustee and if he receives the trust property at all it is adversely to the [claimant]; and, while he is not a trustee at all, he may be liable to account as if he were. Knowing assistance: the authorities While the cases I have just been discussing suggest a clear and consistent approach to knowing recipients, they do not, as Lord Mance says, deal with dishonest assisters. Indeed, dishonest assisters were expressly discussed by Millett LJ in the Paragon case in the passage Lord Mance quotes at para 124 below. However, I have some trouble with that observation of Millett LJ. First, it misses the essential point that the meaning of trustee in section 21(1)(a) is not to be determined by reference to earlier cases or statutes on limitation, but by reference to the definition in section 68(1)(17). Secondly, there is no reason why an accessory to a fraud should not be subject to a shorter limitation period than the principal fraudster. In any event, Millett LJ was merely saying that there was a case for treating dishonest assisters in the same way as fraudulent trustees, when it came to limitation. In my judgment, given that knowing recipients are not constructive trustees, it must follow that dishonest assisters are not either. As Professor Mitchell observed in Dishonest Assistance, Knowing Receipt and the Law of Limitation [2008] 72 Conv 226, 233, it is harder to characterise dishonest assistants as trustees than it is knowing recipients, not least because dishonest assisters do not take possession of any of the funds at issue (as if they did, they would be knowing recipients). If a dishonest trustee was assisted by X in stealing trust funds, and then passed on some of those funds to Y, and X and Y both were aware of the dishonesty, it would be remarkable if X, who merely helped the trustee and did not receive any of the trust funds, was deemed a trustee when Y, who actually received (and maybe still holds) some of the funds was not. Furthermore, many of the points made by Millett LJ in the Paragon case as to why a knowing recipient is not a trustee (reflecting what was said in the earlier cases mentioned in para 19 above) apply equally to a dishonest assister. Two examples should suffice, but there are many others. At p 409, he said that a knowing recipient never assumes the position of a trustee, and if he receives the trust property at all it is adversely to the plaintiff by an unlawful transaction which is impugned by the plaintiff and that there is no trust and usually no possibility of a proprietary remedy. That is at least as true of a dishonest assister. And Millett LJs description at p 413 of Taylor v Davies as mark[ing] a real difference between trustees (whether or not expressly appointed as such) who commit a breach of trust (however created) and persons who are not trustees at all but are described as trustees for the purpose of enabling equitable relief to be granted against them applies to dishonest assisters just as it applies to knowing recipients. Accordingly, I agree with the conclusion reached by Mr Sheldon QC in his impressive judgment in Cattley v Pollard [2007] Ch 353, para 82, where he said that Millett LJs class of claims which do not give rise to a constructive trust, but simply amount to an obligation to account is apt to cover the position of claims for dishonest assistance in a fraudulent breach of trust. As he went on to explain, this was on the basis that in the Paragon case Millett LJ was drawing the distinction first expressed in the Privy Council cases [viz Taylor v Davies and Clarkson v Davies] between those whose trusteeship preceded the transaction impugned and those who only became trustees on the occurrence of the transaction . The statutory context When one looks at the Definition, at least on its own, there is no reason to think that the drafter of section 68(1)(17) intended constructive trust or trustee to have a wider meaning than that which they had been accorded by the Courts of Equity over the years. Indeed, it would be 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. If one casts ones eyes more widely, the provisions of the 1925 Act appear to me to reinforce the notion that knowing recipients or dishonest assisters were not intended to be covered by the Definition. The Act is concerned with classic trusts, or, as Millett LJ put it in the Paragon case at p 412, with the powers and duties of trustees properly so called, rather than persons whose trusteeship is merely a formula for giving restitutionary relief. It appears to me that a dishonest assister cannot be within the statutory definition as he does not have trust property without also being a knowing recipient, and, as for a knowing recipient, he never assumes the position of a trustee because his receipt of trust property is adversely to the [claimant], to quote Millett LJ again. I should add that that is a vital distinction between a trustee de son tort and a knowing recipient, which is why, assuming (which is almost certainly right) that a trustee de son tort is included within the section 68(1)(17) definition, that does not assist Dr Williamss case. The first four Parts of the 1925 Act deal with permitted investments, general powers of trustees, appointment and discharge, and the powers of the court; and the remaining, fifth, Part contains general provisions. It is a little difficult to see how most of the sections of the 1925 Act could apply to a dishonest assister (at least unless he was also a knowing recipient), because he has no assets in respect of which he can he said to be a trustee. Further, many of the provisions appear inappropriate in relation to property for which a knowing recipient is obliged to account. I have in mind provisions such as sections 8, 30 (exculpatory where trust money lost on loans, or due to agents defaults), section 25 (delegation of trustees functions), 31 and 32 (powers of maintenance and advancement), 36 39 (power to retire and appoint fresh trustees) and 57 (power of court to authorise dealings). As Lord Sumption says in para 31 above, a knowing recipient has one overriding duty, and that is to account for and return the property. Given the unambiguous way in which the 1939 and 1980 Acts incorporate the definition in the 1925 Act, the definition of trustee in the 1925 Act simply cannot have a different meaning in the later Acts from that which it has in the 1925 Act itself, simply because any wording is subject to the context, or because of the mischief being addressed in the later Acts, or because of Parliaments evident intention when enacting the later Acts. When interpreting a statute, the courts function is to determine the meaning of the words used in the statute. The fact that context and mischief are factors which must be taken into account does not mean that, when performing its interpretive role, the court can take a free wheeling view of the intention of Parliament looking at all admissible material, and treating the wording of the statute as merely one item. Context and mischief do not represent a licence to judges to ignore the plain meaning of the words that Parliament has used. As Lord Reid said in Black Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG [1975] AC 591, 613, We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. In the present instance, the definition sections of the 1939 and 1980 Acts unambiguously state that the meaning of trustee is to be determined by reference to the definition in the 1925 Act. For a court to suggest that, in the 1939 or 1980 Acts, the definition or the expression can have a different meaning from that which it has in the 1925 Act is both inconsistent with the plainly expressed will of Parliament as set out in the definition sections of the 1939 and 1980 Acts and a recipe for uncertainty in future cases of statutory interpretation. The obiter dicta in Soar v Ashwell I have not so far referred to observations in Soar v Ashwell [1893] 2 QB 390, which are strongly relied on to support the wider interpretation of trustee, so that it incorporates a dishonest assister and/or a knowing recipient. The actual decision in Soar v Ashwell that limitation could not be relied on was unexceptionable, because, as the court held, the deceased solicitor whose estate was being sued was liable, on any view, as a trustee either because he received the property concerned as a trustee for the trustees of a pre existing and fully constituted trust (per Lord Esher MR at p 394 and Bowen LJ at pp 397 and 398), or because he became a trustee de son tort of that trust (per Kay LJ at pp 405 406). However, each member of the Court of Appeal in Soar v Ashwell expressed obiter views which are said to support the notion that a dishonest assister or a knowing recipient is a trustee. After explaining that a trustee de son tort could not rely on limitation, Lord Esher added this at pp 394 395: There is another recognised state of circumstances in which a person not nominated a trustee may be bound to liability as if he were a nominated trustee, namely, where he has knowingly assisted a nominated trustee in a fraudulent and dishonest disposition of the trust property. Such a person will be treated by a Court of Equity as if he were an express trustee of an express trust. Bowen LJ, again after referring to the fact a trustee de son tort could not rely on limitation, said this at pp 396 397: Secondly, the rule as to limitations of time which has been laid down in reference to express trusts has also been thought appropriate to cases where a stranger participates in the fraud of a trustee . Thirdly, a similar extension of the doctrine has been acted on in a case where a person received trust property and dealt with it in a manner inconsistent with trusts of which he was cognizant . And Kay LJ observed at p 405, after reviewing the authorities: [T]here are certain cases of what are, strictly speaking, constructive trusts, in which the Statute of Limitations cannot be set up as a defence. Amongst these are the case where a stranger to the trust has assumed to act and has acted as a trustee, and the case where a stranger has concurred with the trustee in committing a breach of trust, and has taken possession of the trust property, knowing that it was trust property, and has not duly discharged himself of it by handing it over to the proper trustees or to the persons absolutely entitled to it. Properly analysed, I am of the view that these observations (the obiter dicta in Soar v Ashwell) do not support a positive answer to the issue posed in para 40(a) above. In the passage quoted in para 76 above, Lord Esher did not say that a dishonest assister is a trustee; he said that a dishonest assister is liable as if he were a nominated trustee, and that he is treated in equity as if he were an express trustee. In other words, he was saying that, at least in some circumstances for the purpose of limitation, Courts of Equity treated such a person not as a trustee, but as if he were a trustee. For present purposes it does not matter whether Lord Esher intended that passage to apply to limitation cases, which is not as clear as it may seem, because to read it in this way would be inconsistent with what he said at p 394 (quoted by Lord Sumption at para 18 above), as well as with the reasoning of Lord Redesdale in Hovendens case and Sir William Grant MR in Beckford v Wade (1805) 17 Ves Jr 87 (discussed above by Lord Sumption at para 15). The essential point, it seems to me, is that Lord Esher was saying that a dishonest assister is not actually a trustee. Accordingly, as the meaning of trustee in the limitation legislation has been taken from the 1925 Act, where it has an orthodox meaning, I am of the view that Lord Eshers observations, if anything, actually assist the interpretation I favour. The same is true of Bowen LJs observations. The statement that the rule as to limitations of time which has been laid down in reference to express trusts has also been thought appropriate to cases of dishonest assistance, highlights two points. The first part of that statement shows that Bowen LJ was concerned with limitation law, not with the meaning of trustee; the subsequent words appear to distinguish between a stranger as opposed to a trustee. The latter point is reinforced by the closing words of the passage I have quoted, namely that a similar extension of the doctrine is made in relation to knowing recipients. In other words, Bowen LJ expressed himself in a way which indicated that he did not consider dishonest assisters or knowing recipients to be trustees, but that the Court of Equitys disapplication of limitation periods to claims against trustees was extended to such people, even though they are not trustees. Again, when one bears in mind the issue which we have to determine, namely the meaning of the word trustee, Bowen LJ appears to have regarded a dishonest assister or a knowing recipient as not being a trustee. Kay LJ does not seem to me to have expressly dealt with dishonest assisters or knowing recipients, although he may well have agreed with his colleagues obiter dicta, particularly in the light of his suggestion that in some earlier cases where limitation had been raised, courts had treated the trustee exemption as going wider than was laid down in Hovendens and Beckfords cases. The two strongest cases for this purpose are Wilson v Moore (1834) 1 My&K 337 and Bridgman v Gill (1857) 24 Beav 302. In each case, the defendants, merchants in one case and bankers in the other, held money which they knew to be trust money, which they then took for themselves to pay a debt owed to them by the trustee personally, which they knew was a breach of trust. However, neither in Wilson v Moore nor in Bridgman v Gill did the plaintiff beneficiary need to assert a trust arising as a result of, or even at the moment of, the misappropriation. He simply relied on fact that, at the time of the misappropriation, the defendants held the money subject to a pre existing trust whose terms they knew precluded their taking the money for themselves. The decisions therefore can be said to fall within the principle stated by Lord Redesdale in Hovendens case, and by Millett LJ in the Paragon case. Whether or not they were so intended (and, as indicated, I accept that they may very well have been), the obiter dicta in Soar v Aswell were regarded as representing the law on limitation in a number of subsequent cases. In In re Gallard [1897] 2 QB 8, 14, they were cited, relied on and applied by Vaughan Williams J. In In re Dixon [1900] 2 Ch 561, 574, Sir Richard Webster MR considered the obiter dicta, and regarded them as binding authority, but neither Rigby LJ nor Collins LJ addressed the point (although Rigby LJs slightly cryptic comment at the bottom of p 580 suggests that he may have agreed with the Master of the Rolls on the point). In re Eyre Williams [1923] 2 Ch 533 deserves special consideration because, at pp 537 541, Romer J considered the obiter dicta in some detail and regarded them as binding; he also referred to them briefly as representing the law in In re Mason [1928] 1 Ch 385, 394. And Maugham J referred to the obiter dicta very briefly, on the apparent assumption that they were correct in In re Blake [1932] Ch 54, 63. Soar v Ashwell was decided on the basis of the law of limitation as developed by the Courts of Equity. Thus Lord Esher said at p 393 that the two questions to be answered were was the plaintiff within a meaning of the word trustee attributed to it in equity, and was he such a trustee as a Court of Equity will not allow to rely on the Statutes of Limitation, and Bowen LJ at p 395 described the question at issue as being whether the claim of the plaintiff can be barred through lapse of time, by analogy to the Statute of Limitations. The only reference to any statutory provision was made by Kay LJ who at p 403 referred to section 25 of the 1873 Act. However, he mentioned that provision simply to say that it effected no change in the law. The absence of any reference in Soar v Ashwell to section 8(1) may seem a little mystifying, as the action was commenced in 1891, and section 8(3) provided that section 8(1) applied to an action started in or after 1890. However, as I see it, section 8(1) could not have been relied on by the defendant in that case, as, even if the solicitor had been a trustee, his estate still retained the trust property, or the proceeds thereof. Given that section 25(2) of the 1873 Act was still in force, the limitation argument had to be decided on the basis of the law as developed by the Courts of Equity. In In re Eyre Williams at p 537, Romer J specifically explained why section 8(1) did not apply (namely because the money at issue had been received by the testator [viz the deceased trustee] and applied to his own use), and, in those circumstances, he similarly dealt with the limitation defence by reference to the law as developed by the judges in relation to equitable claims. Having considered that case law, he concluded at p 541 that he was bound by the obiter dicta in Soar v Ashwell. The judges in the other cases referred to in para 81 appear to have adopted the same approach, but their reasoning was much more attenuated. Thus, in all the cases in which the obiter dicta in Soar v Ashwell have been followed, the courts approached the issue before them (i) on the basis that the question at issue concerned limitation rather than a statutory definition of trustee, (ii) on the assumption that the relevant law on limitation was as it had been developed by the Courts of Equity rather than as laid down in statute, (iii) on the assumption that the obiter dicta in Soar v Ashwell were intended to apply to limitation, (iv) on the basis that the obiter dicta were effectively binding, and (v) without considering the principles enunciated in Hovendens or Beckfords cases. Given that, since 1939, the definition of trustee for limitation purposes has been that in section 68(1)(17), and it is with that statutory definition with which the first issue on this appeal is concerned, I do not consider that it would be very helpful to say much more about the obiter dicta in Soar v Ashwell and the cases in which they were applied. The approach in those cases, all of which of course preceded the 1939 Act, is, at least in some respects, as likely to mislead as to assist when it comes to interpreting section 68(1)(17). Having said that, I consider that the obiter dicta in Soar v Ashwell were probably incorrect (if they were intended to suggest that a knowing recipient or dishonest assister could not rely on common law limitation periods), because they were inconsistent with the earlier decisions discussed, and for the reasons given, in paras 57 68 above, as well as for the fuller reasons given by Lord Sumption. Conclusion on the first issue Accordingly, I conclude that a trustee in section 21(1)(a) does not include a party who is liable to account in equity simply because he was a dishonest assister and/or a knowing recipient. This is because such a party, while liable to account in the same way as a trustee, is not, according to the law laid down by the courts, a trustee, not even a constructive trustee; and trust and trustee in the 1925 Act were meant to have orthodox meanings. Further, even if the obiter dicta in Soar v Ashwell (assuming that they were intended to apply to limitation, as Dr Williams contends, as they may well have been, and as they were understood to have been in subsequent cases) were correct (which I do not think they were), they do not call this into question. An action in respect of any fraud or fraudulent breach of trust The nature of the issue In the light of my conclusion on the first issue, namely that neither a dishonest assister nor a knowing recipient is a trustee for the purpose of section 21(1)(a), it is necessary to address the second issue, namely whether such a person, while not a trustee, is nonetheless properly a party who is sued in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy within section 21(1)(a). The second issue requires us to decide (i) whether section 21(1)(a) only applies to claims brought against the trustee who was a party or privy to the fraud or fraudulent breach of trust (the narrower meaning), or (ii) whether it applies to anyone, including such a trustee, who was involved in the fraud or fraudulent breach of trust (the wider meaning). Unlike the first issue, which involves interpreting a word in section 21(1)(a) by reference to a definition in another statute, this second issue involves construing section 21(1)(a) directly. Further, although the 1936 Report is of potential relevance to the second issue, this issue does not require much consideration of earlier judicial decisions. The arguments based on the wording of section 21(1)(a) It is convenient to start the examination by saying that, in agreement with Lord Mance, I consider that, if section 21(1)(a) has the wider meaning, it could be relied on against dishonest assisters or advisers, without applying to innocently (as opposed to fraudulently) negligent co trustees and professional advisers, of a fraudulent trustee. Where a trustee defrauds a trust, a claim against a dishonest assister or adviser can fairly be described as an action in respect of [that] fraud or fraudulent breach of trust, and that would also normally be true in the case of a dishonest recipient. However, as discussed more fully below, the words in respect of are flexible, in that they can have a broad or a restricted effect. Accordingly, while the contrary view is tenable as a matter of language, the context of section 21(1)(a) suggests that a claim against an innocently negligent co trustee or professional adviser of the fraudulent trustee is not an action in respect of fraud or fraudulent breach of trust. Rather it should be characterised as an action in respect of [their] negligence. In the case of a co trustee, this is borne out by what is stated in Article 96.1 of Underhill and Haytons The Law of Trusts and Trustees, 18th ed (2010), namely that a trustee is not vicariously answerable for the defaults of his co trustee, but only for his own acts or defaults. With that introductory point, I turn to the wording of section 21(1)(a). On a quick reading, one can well see how the provision may strike a reader as having either the wider or the narrower meaning. In particular, it may appear to bear the wider meaning, because, while para (a) limits the type of action to which it applies, there appears to be no express qualification as to the identity of the person against whom that action may be brought. However, closer examination calls that impression into question, and suggests that there are five reasons for thinking that section 21(1)(a) has the narrower meaning. First, if section 21(1)(a) has the wider meaning and is not limited to claims against the trustee referred to at the end of para (a), it is hard to see what effect can be given to the words to which the trustee was a party or privy. Given that the wider meaning involves giving a restricted effect to the words in respect of, so that only those involved in the fraud would be within section 21(1)(a) on the wider meaning, they must include the trustee, not least because there can be no breach of trust save one to which the trustee was a party or privy. On the other hand, if the narrower meaning is correct, the expression in respect of can be given a broad effect, so that the words to which the trustee was party or privy serve an important function, in that they limit the circumstances in which section 21(1)(a) can apply to a trustee. I note that this point caused Black LJ concern in the Court of Appeal, although she ultimately agreed that the wider meaning was correct see at [2013] QB 499, para 56. Approached in this way, I consider that the fact that it is common ground that the words an action in respect of any breach of trust in section 21(3) are broad enough to cover a claim against a dishonest assister or knowing recipient, actually support, rather than undermine this first reason. At first sight, there is force in Lord Clarkes argument that, if that expression in section 21(3) covers dishonest assistance or knowing receipt, the similar expression an action in respect of any fraudulent breach of trust in section 21(1)(a) should do so as well. But the vital words to which the trustee was a party or privy are not to be found in section 21(3). The essential point in this connection is that the fact that the expression in respect of in section 21(3) has a broad, rather than a restrictive, effect suggests that the expression should also have a broad effect in section 21(1)(a), in which case the words to which the trustee was a party or privy are otiose unless section 21(1)(a) as a whole is given the narrower meaning for which Central Bank of Nigeria contends, rather than the wider meaning supported by Dr Williams. Secondly, the expression the trustee at the end of section 21(1)(a) presents a difficulty unless the action in the opening part of the subsection is understood as meaning an action against a trustee, and in particular the trustee referred to in the closing words of the paragraph. If one does not read the opening part in this way, it is hard to justify the use of the definite article in the expression the trustee in para (a): it would have to mean a trustee. If it is said that the trustee means the trustee against whom the action is brought, then that would bring one back to the reading of the opening words of section 21(1) suggested at the start of this paragraph. Thirdly, the wider meaning would have the consequence that section 21(1)(a) could be relied on against a dishonest knowing recipient or a dishonest assister if one of the trustees was guilty of fraud, but it could not be relied on against such a person if the trustee was merely negligent, and not guilty of fraud. It seems inappropriate that the ability of a dishonest assister or dishonest knowing recipient to invoke the normal six year limitation period should depend on whether or not the trustee, whom he assisted or from whom he received trust assets, was fraudulent. This is not a fanciful possibility. As Mr Sheldon QC rightly pointed out in the Cattley case, para 41, Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 said in terms that an accessory will be liable if there is dishonest assistance on his part in the breach of trust by the trustee irrespective of whether or not the breach of trust by the trustee was itself dishonest. Fourthly, there is section 21(1)(b), which is concerned with claims to recover trust property or its proceeds from the trustee. Like section 21(1)(a), it disapplies the normal six year time limit, but it quite clearly only applies to claims against a trustee, and does not apply to claims against dishonest assisters or knowing recipients, even if the recipient is not only knowing, but dishonest. It may be hard to think of a case where such a claim could be brought against a dishonest assister who was not also a knowing recipient, but that does not weaken the point that it would be very odd if section 21(1)(a) applied to dishonest knowing recipients as well as to trustees, given that section 21(1)(b) only applies to trustees. Fifthly, and perhaps less tellingly, it is clear that section 21(1)(a) and (b) originate from section 8(1) of the 1888 Act (set out in para 22 above), and there is no doubt that the benefit of that provision was limited to a claim against the fraudulent trustee, and not any dishonest assister or knowing recipient. These points persuade me that section 21(1)(a) can only be invoked by a beneficiary against a trustee, and not against a knowing recipient or a dishonest assister. The narrower meaning is not called into question by the obiter dicta in Soar v Ashwell or judicial views expressed in any other case prior to the 1980 Act, save for some very tentative remarks of Danckwerts J in GL Baker Ltd v Medway Building and Supplies Ltd [1958] 1 WLR 1216, 1222 (reversed on other grounds at p 1225). It is only fair to add that, at least as far as I can see, there is no decision prior to the 1980 Act which calls the wider meaning into question, as neither in Taylor v Davies nor in Clarkson v Davies did this point arise; at any rate, it was not apparently considered. The 1936 Report In support of the wider meaning of section 21(1)(a), reference was made to the 1936 Report and what was said in Parliament when the Bill which became the 1939 Act was introduced by the Solicitor General. In that connection, provided certain requirements are satisfied, the contents of the 1936 Report and what was said in Parliament can be raised as an aid to interpretation. However, one must not lose sight of four important factors in that connection. First, the courts constitutional role in any exercise of statutory interpretation is to give effect to Parliaments intention by deciding what the words of the relevant provision mean in their context. Secondly, it follows that, in so far as any extraneous material can be brought into account, it is only as part of that context. Thirdly, before such material can be considered for the purpose of statutory interpretation, certain requirements have to be satisfied see eg per Lord Mance in The Presidential Assurance Co Ltd v Resha St Hill [2012] UKPC 33, para 23 and per Lord Browne Wilkinson in Pepper v Hart [1993] AC 593, 640. Fourthly, even where those requirements are satisfied, any court must be wary of being too ready to give effect to what appears to be the Parliamentary intention from what was said by the authors of a report or by the sponsors of the relevant Bill: one cannot always be sure that what they say has been read or heard, or accepted, by the Parliamentarians who voted in favour of the provision in question. Having said that, I accept that, as was said in the Presidential Assurance case, at para 23, in principle, assistance in interpreting legislation can be obtained as to the general background and as to the mischief which the legislation was addressing by looking at the reports of the proceedings in Parliament. Turning now to the 1936 Report, para 11 identified the only difficulty with section 8 of the 1888 Act as being that it does not apparently apply to a constructive trustee, eg an executor or an administrator. The Report went on to say that it was difficult to justify a rule whereby an executor or other person holding property as a trustee, but not on an express trust, can plead [a limitation defence] though he still retains the trust property or has converted it to his own use. The Report then explained that the courts had given the concept of an express trust a very wide meaning, citing Bowen LJs judgment in Soar v Ashwell and the cases cited by Romer J in In re Eyre Williams. The Report then recommended that the exception to [section 8] should be expressly made to extend to trustees whether holding on express or constructive trusts, including personal representatives. The specific recommendation at the end of the 1936 Report was that limitation should only apply to constructive trustees to the extent that [it does] to express trustees. When the Bill which became the 1939 Act was introduced into Parliament, it was described as based on the 1936 Report. In my judgment, the 1936 Report is of no assistance when it comes to resolving the second issue. The only relevant recommendation of the Report related to the definition of trustee, which does not apply to the second issue in this appeal at all. In any event, even in relation to the first issue, it takes matters no further, because the recommendation was simply that the definition of trustee should extend to personal representatives which was achieved by adopting the section 68(1)(17) definition. It also may be worth adding that the reference to constructive trustee in the 1936 Report could be a little misleading as I do not think that it is intended thereby to refer to a constructive trustee in the sense that it has been used in the present appeal. As mentioned, the Report itself refers to the fact that section 8(1) does not apparently apply to a constructive trustee, eg an executor or an administrator, who are not constructive trustees in the sense that the term is currently normally used, and, in any event, section 8 already included a trust by construction within the meaning of trust. Nonetheless, it is said that the 1936 Report accepts the correctness of the obiter dicta, or at least the obiter dictum of Bowen LJ, in Soar v Ashwell. In addition, or perhaps in amplification, of what is said in para 103 above, there are a number of reasons why I consider that the references to the judgments of Bowen LJ and Romer J in the 1936 Report do not help the argument in support of the wider meaning of section 21(1)(a). First, it is not entirely clear that the 1936 Report does accept the correctness of the obiter dicta which are relied on by the respondent in this appeal and are set out in paras 74 76 above. The reference to Bowen LJs judgment is very general in that it simply identifies the first page of the judgment, and the only one of the cases referred to by Romer J in In re Eyre Williams which can actually be said to support the respondents case in any way on this appeal is Soar v Ashwell itself. Secondly, even assuming that the obiter dicta in Soar v Ashwell were being approved in para 11 of the 1936 Report, the authors of the Report were in that paragraph considering the ambit of the words trustee and trust, and were (on this assumption) saying that the words extended to a dishonest assister and a knowing recipient, and the trust funds they held. While that could have a bearing on the first issue on this appeal (were it not ruled out for the reasons given in paras 49 53 above), it cannot assist on the second issue on this appeal which is concerned with a different issue. Indeed, if anything, it could be said that, if the 1936 Report approved the obiter dicta, any such approval would support the narrower meaning of section 21(1)(a), because, on the view taken by the authors of the 1936 Report, trustee would have embraced dishonest assisters and, possibly, knowing recipients, so there would have been no need for section 21(1)(a) to have the wider meaning. Thirdly, one is here concerned with the intention of Parliament and I cannot accept the contention that Parliament somehow approved the observations in the 1936 Report relating to the obiter dicta in Soar v Ashwell. The purpose of the Bill which became the 1939 Act was to consolidate the law on limitation and to give effect to the recommendations of the 1936 Report. To contend that, in enacting those proposals, Parliament was adopting those recommendations, which therefore may be looked at for the purpose of interpreting the 1939 Act, is one thing. To contend that, in enacting those proposals, Parliament was approving the legal analysis or reasoning behind those recommendations, which therefore may be looked at for the same purpose, is quite another. Save possibly in a very clear case indeed, I consider that such an approach would be inappropriate. That is particularly true in this case, where the analysis and reasoning were somewhat opaque, unspecific, and unnecessary to the ultimate recommendation. Opaque as I have explained in para 102 above; unspecific because there was no explanation in the 1936 Report or by the Solicitor General as to what Bowen LJ or Romer J actually decided, and to assume that Parliamentarians would have appreciated the analysis and reasoning appears to me unrealistic; unnecessary, because the ultimate recommendation related to personal representatives, and therefore did not involve the question whether dishonest assisters or knowing recipients should be within the scope of section 21(1)(a). Fourthly, it would not in any event be safe to assume that Parliament followed every recommendation in the 1936 Report, let alone the thinking behind those recommendations, to the letter. This is not a case where the Report had a draft Bill attached or proposed draft clauses. Further, as Lord Sumption says in para 27, rather than incorporating and amending the definition of trustee in section 8, as the Report effectively suggested, Parliament decided to incorporate a definition from an existing statute. Conclusion on the second issue I therefore disagree with the conclusion reached by the Court of Appeal on this second issue, and would hold that the narrower meaning of section 21(1)(a) is to be preferred. Conclusion For these reasons, which are much the same as those of Lord Sumption, with whose judgment I agree, I am of the view that, as against Dr Williams, Central Bank of Nigeria was not a trustee within the meaning of section 68(1)(17), and that he cannot rely on section 21(1)(a), as it only applies to claims against fraudulent trustees. It follows from this that the 1986 trust claims are barred by limitation, and I would therefore allow the appeal. I should add that this conclusion does not appear to me to give rise to difficulties. It is consistent with the case law before Soar v Ashwell; and, in any event, the obiter dicta in that case, and their application in the subsequent cases which followed them, cannot sensibly be invoked as a reliable aid to the interpretation of the definition of trustee in section 68(1)(17) or to the scope of section 21(1)(a). With the exception of the tentative remarks in GL Baker, in no reported case until Paragon was any consideration given to the meaning of trustee in the 1939 or 1980 Acts, or to the proper scope of section 21(1)(a). The powerful reasoning in the Paragon case is consistent with principle and the authorities, and it justifies the conclusion that neither a knowing recipient nor a dishonest assister is a trustee, and that section 21(1)(a) is limited to claims against trustees. That reasoning has been applied by the Court of Appeal in a number of recent cases, such as JJ Harrison (Properties) Ltd v Harrison [2002] 1 BCLC 162, Gwembe Valley Development Company Ltd v Koshy (no. 3) [2004] 1 BCLC 131, and Halton International (Holdings) Inc Sarl v Guernroy Ltd [2006] WTLR 1241. So far as raising a limitation defence is concerned, this conclusion places dishonest assisters and knowing recipients (i) in the same position as those who are liable in common law for improper or dishonest conduct, and (ii) in a better position than defaulting trustees. The first result seems appropriate: as Millett LJ said in the Paragon case at p 414, [t]here is no case for distinguishing between an action for fraud at common law and its counterpart in equity. As for the second result, it is plainly justifiable, as defaulting trustees have pre existing fiduciary duties to claimants which dishonest assisters and knowing recipients do not. Finally, it is right to mention that in some cases of dishonest assistance or knowing receipt, even though the normal six year period may have expired, a claimant may be able to invoke section 32 of the 1980 Act, which postpones the commencement of the six years, in cases based upon the fraud of the defendant, or where the defendant has deliberately concealed relevant facts from the claimant. LORD MANCE, dissenting I have read with interest the judgment prepared by Lord Sumption and supported by Lord Neuberger in his judgment. The rationalisation which Lord Sumption imputes to Parliament is coherent: the exception to the right to limit would be confined to trustees or those owing fiduciary duties. But it is not the only coherent rationalisation, and whether it is historically accurate or catches Parliaments real intention is another matter. The present appeal raises two potential issues: (i) how far are, first, dishonest assisters and, second, knowing recipients to be treated as trustees within the meaning of section 21(1) of the Limitation Act 1980, and (ii) does section 21(1)(a) of the 1980 Act cover only actions against the trustee, or does it also cover actions against a dishonest assister in respect of a trustees fraud? The rationalisation which Lord Sumption advances and Lord Neuberger adopts relies upon a general distinction drawn in Beckford v Wade (1805) 17 Ves Jun 87 between: (a) possession of trust assets obtained consistently with the trust by someone who later acts contrary to the trust and (b) possession which is taken from the outset adversely to the trust. It treats (b) as covering knowing recipients, and overlooks the fact that the distinction does not address at all: (c), the status of a person who, whether or not he also takes or has taken possession, dishonestly assists a trustee to dispose of trust assets contrary to the trust. Lord Neuberger in his paras 58 and 59 refers to passages in two other early cases as supporting a distinction between categories (a) and (c) for limitation purposes: Hovenden v Lord Annesley (1806) 2 Sch & Lef 607, 633 634 and Barnes v Addy (1874) 9 Ch App 244, 251. But in fact in Hovenden v Lord Annesley (1806) 2 SCh & lef 607, 633 634, the two categories (a) and (c) were identified not to distinguish them, but to explain that they were to be assimilated for limitation purposes. As to Barnes v Addy (1874) 9 Ch App 244, 251, Lord Neuberger suggests that it distinguished between (i) those clothe[d] with a legal power and control over the trust property, imposing on [them] a similar responsibility and (ii) those to whom a similar responsibility [was] extended in equity who are not properly trustees such as, he says, those actually participating in any fraudulent conduct of the trustee. But Lord Selborne LC actually identified his category (ii) as follows: others who are not properly trustees, if they are found either making themselves trustees de son tort, or actually participating in any fraudulent conduct of the trustee to the injury of the cestui qui trust. He was, in other words, assimilating categories (a) and (c) for limitation purposes. An executor de son tort is a person within category (a) as Lord Neuberger accepts in his paragraphs 73 and 74. Moreover and this is an important feature of the issue under discussion the assimilation of the dishonest assister with the dishonest trustee for limitation purposes has a coherent and principled basis, as Millett LJ observed in Paragon Finance plc v D B Thakerar & Co [1999] 1 All ER 400, 414a d, when he said: A principled system of limitation would also treat a claim against an accessory as barred when the claim against the principal was barred and not before. There is, therefore, a case for treating a claim against a person who has assisted a trustee in committing a breach of trust as subject to the same limitation regime as the claim against the trustee: see J W Brunyate, Limitation of Actions in Equity (1932). This assimilation is supported by Soar v Ashwell [1893] 2 QB 390 and a wealth of case law to which I refer in the following paragraphs. I shall also return below (paras 140 and 141) to the law as analysed by J W Brunyate and a unanimous body of other distinguished textbook writers in the 1930s, all to the same effect. Their work constitutes important background to a proper understanding of section 19 of the Limitation Act 1939, reproduced in substance in section 21(1), (3) and (4) of the Limitation Act 1980 with which the present appeal is concerned. Soar v Ashwell was itself concerned with a solicitor who fell within (a), either because he had received funds in a fiduciary capacity for clients (trustees under a will) or because he had assumed to act as such. The Court of Appeal held that he was to be considered as having been in the same position as an express trustee. So he was unable to plead limitation. But all three members of the Court of Appeal also identified another situation in which the rule as to limitations of time which had been laid down in reference to express trusts has also been thought appropriate (per Bowen LJ, p 396) : that is (c) dishonest assistance arising, as Lord Esher MR put it, where [a person not nominated a trustee] has knowingly assisted a nominated trustee in a fraudulent and dishonest disposition of the trust property (pp 394 395); or, as Bowen LJ put it, where a stranger participates in the fraud of a trustee: Barnes v Addy LR 9 Ch 244 (p 396) ; or, as Kay LJ put it, where a stranger has concurred with the trustee in committing a breach of trust, and has taken possession of the trust property, knowing that it was trust property, and has not duly discharged himself of it by handing it over to the proper trustees or to the person absolutely entitled to it (p 405). Consistently with Barnes v Addy, these formulations describe dishonest assistance by a stranger in terms indicating a form of liability accessory to that of the dishonest trustee. As Lewin on Trusts 18th ed (2008), paras 44 56 and 44 57 states, prior to Royal Brunei Airlines Sdn. Bhd. v Tan [1995] 2 AC 378, it was thought that liability was based on knowing assistance in a dishonest and fraudulent breach of trust on the part of the trustee, though since that case fraud of the express trustee is now irrelevant to the actual liability of a dishonest assister. In asserting its limitation defence to Dr Williams claim, the Central Bank of Nigeria submits that the six year limitation period provided by section 21(3) of the Limitation Act 1980 for an action by a beneficiary to recover trust property or in respect of any breach of trust is in terms wide enough to apply to an action by a beneficiary against a holder of trust property or against a trustee or someone assisting a trustee in respect of a breach of trust. The Central Bank has to assert this, since otherwise it has no basis for asserting any statutory limitation defence at all. But, when it comes to section 21(1)(a), the Bank alleges that the exception in respect of an action by a beneficiary under a trust, being an action (a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy does not cover an action by a beneficiary against someone dishonestly assisting in a fraud or fraudulent breach of trust to which the trustee was a party or privy. As Lord Clarke demonstrates in his judgment, it is unconvincing to suggest that the words an action in respect of any breach of trust do, yet the words an action . in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy do not, cover an action by a beneficiary against someone who is not the trustee but who dishonestly assists a fraudulent trustee. Yet that is and has to be the Central Banks case. The line between those who owe fiduciary duties and those who do not certainly does not offer any reason for implying such a distinction and Lord Neuberger does not suggest that it does. It is coherent and understandable if the law distinguishes, in the context of fraud or fraudulent breaches of trust, between, on the one hand, actions against trustees and others party or privy thereto, and, on the other hand, actions against trustees and others innocent of involvement therein. It is true that, since the Royal Brunei case, it has been recognised as conceptually possible that a dishonest stranger to a trust may assist in bringing about a fraud on a trust to which no trustee is party or privy. But that is a possibility barely, if at all, envisaged at the dates when the statutory language of section 21 and its predecessor crystallised. Even now that it is clearly recognised, it is possible to see logic in a distinction between situations in which a dishonest trustee does and does not exist. In the latter situation, beneficiaries are particularly prejudiced, and it is understandable that the law should lift the limitation period against them and their dishonest assisters. I will give an example of how that distinction would as I see it work. Take an action against an innocent trustee or against the innocent solicitors or accountants acting for trustees for failure to discover and prevent a fraud by a guilty trustee assisted in conjunction with a dishonest stockbroker. The action against the fraudulent trustee and dishonest assister would fall within section 21(1)(a). The action against the innocent trustee would not be in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy. Nor would be the action against the allegedly negligent solicitor or accountant. Indeed, I do not consider that it would even be in respect of any breach of trust within section 21(3). It would be an action for negligence for which there would be a six year time limit in tort under section 2 and/or contract under section 5. This analysis is consistent with that adopted by J W Brunyate, cited by Millett LJ: see para 124 above and para 140 below; and Lord Neuberger accepts it in his paragraph 94. Nevertheless, Lord Neuberger suggests, as it appears must Lord Sumption, that the phrase in respect of means different things in section 21(1)(a) and section 21(3). The reasons he gives are addressed and rebutted in Lord Clarkes judgment. As to the first, it is true that section 21(1)(a) applies to a case where the defendant is the dishonest trustee as well as a case where the defendant is a dishonest assister of a trustee. But the words in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy both preclude any suggestion that section 21(1)(a) extends the limitation period for a claim against a non fraudulent trustee who was party to a breach of trust in circumstances where a fraudulent trustee was also party, and put beyond doubt, in the case of a claim against a dishonest assister, that the only relevant dishonest assistance is assistance of a fraudulent trustee. As to the second reason, the words the trustee postulate that there is a fraudulent trustee whom the assister has dishonestly assisted. In a situation in which there was both a fraudulent and an innocent trustee, the language makes only the fraudulent trustee relevant. As to the third, in the state of the law as it was understood and developed at the relevant times, section 21(1)(a) and its predecessor were probably addressing the only type of dishonest assistance then clearly established, namely dishonest assistance of a fraudulent trustee. On that basis, section 21(1)(a) represented a coherent picture: see paras 124 and 127 of this judgment. For good measure, even now that dishonest assistance has clearly been recognised as a basis of liability when there is no fraudulent trustee, a coherent rationale still exists: see paras 124 and 157 of this judgment. As to the fourth, I see nothing strange about an analysis according to which a dishonest assister who is also a knowing recipient of trust property falls within section 21(1)(a), even if (contrary to the view which I express in paras 160 161 below) a knowing recipient is not, as such, a trustee for the purposes of section 21(1)(b). Dishonest assistance is a separate (and on its face, it may be thought, more opprobrious) category of liability, identified as such in the authorities and legal writings from Soar v Ashwell onwards, as well as by Millett LJ in Paragon. Finally, Lord Neuberger refers in his paragraph 100 to the 1888 Act. That evidences an error, which in my opinion underlies the majoritys analysis, namely treating the legislator by the deliberately chosen different wording of the 1939 Act as reproducing or restricting the previously understood exemption from the operation of limitation, rather than, as was clearly the case, expanding it: see the rest of this judgment. It is surprising to find such emphasis being now placed on the words to which the trustee was party or privy which were present in section 8(1) of the 1888 Act and remain in section 19(1)(a) of the 1939 Act and now section 21(1)(a) of the 1980 Act, but no weight at all given to Parliaments omission from section 19(1)(a) and section 21(1)(a) of the qualification against a trustee or any person claiming through him which had governed both limbs of the predecessor section 8(1). This is particularly surprising when the drafters took care to reinsert into section 19(1)(b), now section 21(1)(b), equivalent words in the form of the phrase from the trustee. It is the changes in the legislation in 1939 on which attention should focus but which the majority reasoning sets at naught contrary to the Law Revision Committees and Parliaments clear intention to maintain and expand upon existing previously understood exceptions from limitation: see paras 137 149 below. Let me therefore return to the historical position. In Soar v Ashwell the action brought in 1891 by a surviving trustee against a solicitors personal representatives concerned the solicitors failure to account to trustees in January 1879 (the solicitor himself having died later in 1879). The claim was equitable, and counsels submissions as reported turned upon whether or not the Statute of Limitations applied by analogy. The judgments refer more straightforwardly to the question as being whether the Statute of Limitations applied. The reason may lie in Kay LJs reference on p 403 to section 25 of the Judicature Act 1875, and of a statement by Baggallay LJ that section 25 is but a statutory declaration of a law which had always been recognised and administered in Courts of Equity. Section 25(2) of the Judicature Act 1873 read: No claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any Statute of Limitations. Section 25(2) was confined to claims against a trustee. But the Court of Appeal in Soar v Ashwell was clearly indicating that both categories (a) and (c), identified in paras 121 and 122 above, should be treated in the same way as claims against a trustee for breach of an express trust within section 25(2). However, in In re Jane Davies [1891] 3 Ch 119 (CA), dealing with a claim arising between 1858 and 1888 and In re Lacy [1899] 2 Ch 149 (Stirling J), dealing with a claim arising in 1873, it was held that executors were not express trustees within section 25(2) and so were entitled to limit. The Trustee Act 1888 (51 & 52 Vict c59) enacted on 24 December 1888 adopted a much wider definition of trustee, deeming the expression to include an executor or administrator and a trustee whose trust arises by construction or implication of law as well as an express trustee. Section 1(3) At the same time section 8(1)(b) enabled the trustee or person claiming through him to limit, where no existing statute of limitation applies, as if the claim had for money had and received. But it excepted from this any action or other proceeding where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property, or the proceeds thereof still retained by the trustee, or previously received by the trustee and converted to his use. Following the passing of the 1888 Act (though in most of the cases in relation to pre Act events), there was a series of cases in which the principles stated in Soar v Ashwell were cited with approval or applied. In re Gallard [1897] QBD 8 concerned post 1888 Act events consisting of a sale in 1889 by a trustee to a purchaser who knew that the sale was at a gross undervalue. Vaughan Williams J noted that the submission was that the Statute of Limitations applied by analogy, rather than directly; he then cited passages in Lord Eshers judgment in Soar v Ashwell identifying the two categories, (a) and (c), mentioned in paras 122 and 123 above, in which a person not nominated as a trustee would be treated as if he were an express trustee. On the basis that category (c) applied, i.e. that the defendant had dishonestly assisted in a fraudulent and dishonest disposition of the trust property, he held that the lapse of time could not be relied upon. In In re Dixon [1900] 2 Ch 561, 574, the facts of which concerned events between 1876 and 1896, Webster MR referred to the classes enumerated by Bowen LJ in Soar v Ashwell of persons who are subject to the rule that time is no bar in the case of express trusts, and applied the third (where a person received trust property and dealt with it in a manner inconsistent with trusts of which he was cognizant). In In re Eyre Williams [1923] 2 Ch 533, mortgage monies which had been agreed to be assigned to marriage settlement trustees had in 1887 been received by a testator who failed to pay them over to the trustees before his death. Romer J said (p 537) that there was of course, no express Statute of Limitations which would apply to the claim of the trustees to recover these moneys from the estate of the testator, unless it be the Trustee Act 1888. He noted the equitable rule that an express trustee could not avail himself by analogy of the Statute of Limitations, a rule which had been ultimately given statutory recognition and force by section 25(2) of the 1873 Act, and further noted that the exception has, however, in certain cases been extended by the Courts of Equity to constructive trustees. He then said that In the present case it cannot be contended that the testator was ever constituted an express trustee, but without any question he did become a constructive trustee of the mortgage moneys which he received. He then cited with approval, first, passages from Soar v Ashwell dealing with each of the exceptional classes of constructive trustee treated as being in the position of express trustees for limitation purposes, and, second, Webster MRs judgment in In re Dixon. On that basis, he held that the testator, although he had only been a constructive trustee, could not rely on limitation. In In re Mason [1928] 1 Ch 385, 394, Romer J referred to In re Eyre Williams as an instance of a case where the trust funds or the proceeds of the trust funds have been received by a person with knowledge that they have been wrongly paid to him. Under this case law, the principles in Soar v Ashwell were regarded as applicable, and dishonest assisters were clearly recognised as within the exception to limitation, whether the claim was or was not strictly to be regarded as falling within the 1888 Act. Against this background came the Law Revision Committees Fifth Interim Report (Cmd 5334), dated December 1936, which led in due course to s.19 of the Limitation Act 1939, and its consolidating successor, section 21 of the Limitation Act 1980. The Report described section 8 of the Trustee Act 1888, noted that it had been considered satisfactory and so left unaffected when the Trustee Act 1925 was passed, but identified, at para 11, as the only difficulty the fact that section 8 does not apparently apply to a constructive trustee, eg an executor or administrator; and doubts arise as to whether or not any statute of limitations applies to property still retained by an executor or administrator. Cited as authority for these concerns and doubts were In re Jane Davies and In re Lacy (see para 132 above). They concerned pre 1888 Act events, but there was apparently no more recent authority. The Report continued with the passages cited by Lord Sumption in his para 24, which I repeat for ease of reference: 11. It is difficult to find any real justification for the rule that an executor or other person holding property as a trustee, but not on an express trust, can plead the statute, though he still retains trust property or has converted it to his own use. The rule has been extensively modified by decisions giving such a wide meaning to express trust as to bring most cases of fiduciary relationship within the exception to the Trustee Act, and to raise serious doubt as to where the line is to be drawn for this purpose between express and constructive trusts. See the judgment of the Bowen LJ in Soar v Ashwell [1893], 2, QB at p 395, and the authorities there cited, and the cases referred to by Romer J in In re Eyre Williams [1923] 2 Ch 533. It is perhaps too late now to suggest that the Trustee Act, 1888 was intended to do away with the distinction between express and constructive trusts for the purpose of the limitation of actions, though the definition of trustee in Section 1(3) seems to point to that conclusion. At any rate we consider that the distinction should now be abolished, and we recommend that the exception in Section 8 of the Trustee Act, 1888 should be expressly made to extend to trustees whether holding on express or constructive trusts, including personal representatives. Recommendation (7) of the Committee was that the Statutes of Limitation should only apply to constructive trustees to the extent to which they do to express trustees. Several matters are clear from this passage. First, there is not a hint of disagreement with the principles stated in Soar v Ashwell, in In re Eyre Williams and in In re Dixon (the other case cited by Romer J in In re Eyre Williams). Second, the Report was, on the contrary, to the effect that these principles should be affirmed. Third, after an expression of regret about the possible missed opportunity to do this provided by the Trustee Act 1888, an unequivocally general intention was stated to do away with the distinction between express and constructive trusts for the purposes of limitation. There is nothing to support the suggestion by Lord Neuberger and Lord Sumption that the Law Revision Committee Report can and should be read as dealing only with some constructive trustees, effectively only category (a) trustees, that is anyone holding property subject to a trust or fiduciary obligations before the occurrence of the transaction impeached (a trustee de son tort). The language of the Report or its recommendations gives no support to it, it postulates a retreat from the English law position as established and understood at the time (when the Committee was clearly advocating a decisive move in the opposite direction), and it postulates the preservation of a distinction which the Committee was at pains to abolish. Fourth, and in contrast, the approach taken by the Committee is in no way surprising, particularly when Romer J, who had decided both In re Eyre Williams and In re Mason was a member of the Committee, as indeed was A F Topham KC who had successfully argued that there was no limitation in In re Mason. A fifth point is just as significant. There is no mention in the Report of either of the Privy Council decisions, Taylor v Davies [1920] AC 636 and Clarkson v Davies [1923] AC 100, cases under a Canadian statutory provision paralleling section 8 of the English 1888 Act. Lord Sumption suggests that Taylor v Davies was the leading case on the effect of sections 1(3) and 8(1) of the 1888 Act. He also suggests (para 27) that The reason why they [the authors of the Law Revision Committee] ignored the two Privy Council decisions was not that they were ignorant of them, or that they regarded them as outliers or wrong, but because they were not at all concerned with the question of ancillary liabilities which arose in those cases. Clairvoyance aside, I note that not only does the Committees Report focus exclusively on the relevant English case law, showing no awareness of either Privy Council case, but Lord Sumption cites no English authority in which either was mentioned and contemporary text books are also notable for their absence of any reference to them. The text books state the law exclusively in accordance with the principles in the English cases including Soar v Ashwell, In re Eyre Williams and In re Dixon to which I have referred: see eg Brunyates Limitation of Action in Equity (1932), Halsburys Laws of England 2nd ed (1936), Limitation of Actions, para 1036, Lewins Practical Treatise on The Law of Trusts 14th ed (1939), Chap VIII, Limitation of Actions, pp 839 840 and Underhills The Law relating to Trusts and Trustees 9th ed (1939), article 101. Thus, Brunyate (Fellow of Trinity, Cambridge, and barrister) said, at p 108: A person who assists a true trustee in committing a fraudulent breach of trust is very properly held liable as though he had himself been a trustee, and he cannot plead the Statute of Limitations (In re Gallard .; and see Soar v Ashwell.). A person who assists in a breach of trust which is not fraudulent is not generally liable in equity to the cestui que trusts, even apart from the Statute of Limitations, unless he has become chargeable with trust property (Barnes v Addy .; .). Thus a solicitor who has assisted in a wrongful investment of trust money by drawing up deeds will only be liable, if at all, to an action for negligence to which the statute will apply. Brunyate went on to identify as another class of persons said to be unable to plead the Statute of Limitations persons who have obtained possession of property which is subject to trusts of which they are cognizant, noting that the scope of this class is very doubtful. Halsbury (1936), para 1036, stated (citing In re Dixon, Soar v Ashwell and In re Eyre Williams) that if a person enters into possession or receives the rent of property with full notice of the trust, he is a trustee, and . cannot, when he is called upon to account for the property, avail himself of the lapse of time as a defence. Lewin (1939), p 841, recorded that Soar v Ashwell had separately enumerated at least three instances of a constructive trust in which it was not open to a constructive trustee to plead the Statute, footnoting in this connection In re Eyre Williams. In similar vein is Underhill (1939), article 101, stating that: All persons who knowingly meddle with trust funds, or mix themselves up with a breach of trust, are equally liable with the trustees; and equally subject to the restrictions on the right of pleading the Statutes of Limitation. The absence in all these passages of references to Taylor v Davies and Clarkson v Davies (which dealt only briefly with the present issue, citing Taylor v Davies) becomes perhaps less surprising in view of passages in Taylor v Davies, particularly at pp 651 and 653, which expressly refer with apparent approval to the persons enumerated in the judgment of Bowen LJ in Soar v Ashwell and those persons who under the rules explained in Soar v Ashwell and other cases are to be treated as in a like position to an express trustee. The Privy Council cases may well therefore have passed in their day as cases leaving undisturbed the rules established in Soar v Ashwell and its successor cases. The facts in Taylor v Davies are in this connection also instructive. The defendant, Davies, was not a trustee, but an inspector appointed by the assignee under an assignment made by a debtor for the benefit of creditors, and, as such, he was held to owe a fiduciary duty which precluded him from buying for his own benefit unless he made full disclosure, which he failed to do. Any liability he had as constructive trustee arose simply from that act. He was not someone who had assumed possession of any trust assets before or indeed by the breach of duty and so he was also not a dishonest assister in a breach of trust or even a knowing recipient of previously existing trust assets (see Lewin On Trusts, 18th ed, para 42 22 for the requirements for knowing receipt). So he was not within any of the categories identified in paragraph 122 above or considered in Soar v Ashwell. A constructive trust was imposed as a simple result of and in order to remedy his breach of fiduciary duty (see eg Lewin on Trusts, paragraph 4.24 et seq). The facts in Clarkson v Davies were similar. The directors were not trustees, and had not assumed possession of any assets. Nor were they dishonest assisters of any breach of trust or knowing recipients of any previously existing trust monies. Their liability arose upon a sale of the assets of the selling company, of which they were directors, to another company, in connection with which they had personally received a payment from the buying company. A constructive trust was imposed simply to remedy this breach of fiduciary duty. Whatever the reason, however, the two Privy Council cases do not feature as part of the English legal background leading to the 1939 Act. The Law Revision Committee Report is in contrast a powerful indication of the genesis and aims of section 19 of that Act. These were to reflect and build on the established principles set out in Soar v Ashwell and the other English case law discussed above. A comparison of section 8 of the 1888 Act and section 19 of the 1939 Act shows careful redrafting to achieve this. Under the 1888 Act, the right to limit was confined to actions by the trustee or persons claiming through him, and the exception for claims founded on fraud and claims to recover trust property was correspondingly limited to such actions. Under section 19(2) of the 1939 Act (now section 21(2) of the 1980 Act), the right to limit applies simply to an action by a beneficiary to recover trust property or in respect of any breach of trust, ie without any limit as to the persons against whom the action was brought. The exception is also, on its face, unrestricted as regards the persons against whom the action is brought, being defined by reference to the nature of the action. The question is simply: is the action in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy? The change (as I have said in para 132 above) must have been deliberate, particularly bearing in mind the preservation in section 19(1)(b) (now section 21(1)(b) of the 1980 Act) of a limitation that the action to recover trust property must be against the trustee. As to the definition of trustee, section 31(1) of the 1939 Act provides that: In this Act, unless the context otherwise requires, . Trust and trustee have the same meanings respectively as in the Trustee Act, 1925. The 1939 Act is therefore to be read as if these phrases were defined expressly to give this the same meaning as in the Trustee Act 1925. Section 68 of that Act provides that: In this Act, unless the context otherwise requires . (17) . the expressions trust and trustee extend to implied and constructive trusts, and to cases where the trustee has a beneficial interest in the trust property, and to duties incident to the office of a personal representative, and trustee where the context admits, includes a personal representative, and new trustee includes an additional trustee. It is not difficult to see why the draftsman should have thought that this was wide enough to overcome any possible difficulties that could arise from the 1888 Act and all such concerns and proposals as the Law Revision Committee had expressed. I return later in this judgment to the significance for this appeal of this redefinition, which I see as being primarily to assimilate knowing recipients of trust property with those obtaining possession within category (a). In other words, it was no longer to be significant whether possession of trust property was gained innocently, with its later wrongful handling converting the possessor into a trustee de son tort, or was knowingly taken from the outset contrary to the interests of the beneficiary. The 1939 Act was intended to give effect to the recommendations of the Law Revision Committee. The mischiefs at which it was aimed were those identified in that Committees Report. [A]ssistance can . be obtained as to the general background and as to the mischief which the legislation was addressing by looking at the reports of the proceedings in Parliament: see The Presidential Insurance Co Ltd v Resha St Hill [2012] UKPC 33, para 23 24, citing Gopaul v Iman Bakash [2012] UKPC 1, para 3 per Lord Walker, and R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262, para 97 per Lord Steyn. This is so without satisfying the requirements which Pepper v Hart [1993] AC 593 imposes when the aim is to rely on ministerial statements in Parliament to clarify ambiguity in a legislative text (although those requirements would, if necessary, also be capable of being satisfied in this case). The Bill was a House of Lords Bill. It was introduced for second reading by the Lord Chancellor on 27 June 1938 in the presence of Lord Wright, who had chaired the Law Revision Committee, and Lord Romer, as he now was. All three spoke. Clauses 19 and 20 of the Bill were in precisely the same form as became sections 19 and 20 of the 1939 Act. The Lord Chancellor said: The matter was put before the Law Revision Committee, who reported on the matter in December 1936, and I am glad to see here my noble and learned friends Lord Wright and Lord Romer, who were concerned with the hard work which was necessary before this Bill could attain its present simple, or comparatively simple, form. I do not propose to go through the provisions of this difficult and complex Bill, because I am quite satisfied that those who have done the work and are here present can tell your Lordships with much more accuracy and ability the reasons why any particular provision in the Bill is to be found there and can explain any conundrum that your Lordships may wish to put to them. (Hansard (HL Debates) 27 June 1938, vol 110, col 310). Lord Wright added: The Report on which this Bill is based has been before the country for a considerable number of months, and surely if it is to be criticised, if it has blemishes, it is for those who are concerned to point them out. We have done our best, and it is for Parliament to decide whether effect should be given to our recommendations, and what form that effect should take. (Hansard (HL Debates) 27 June 1938, vol 110, col 314). The Bill went to the House of Commons, where it was introduced by another member of the Law Revision Committee, the Solicitor General, Sir Terence OConnor QC. He opened the debate at 11.56 pm on 19 July 1938 by saying It is not a simple Bill and I feel to some extent a parental responsibility because I served on the Law Revision Committee on whose report it is based. their Report was laid before Parliament in December 1936, and this Bill introduced in another place last month in order to do something to clear up the confusion which was found to exist in the law. Clauses 19 and 20 extend the general exclusion from all limitations to actions to recover money from trustees and executors, and in the case of personal estates, make a similar exemption. (Hansard (HC Debates) 2 February 1939, vol 343, cols 487 515) Not surprisingly, due to the very late hour of its introduction, the Bill was then withdrawn, but was reintroduced by the Solicitor General at the more civilised hour of 9.00 pm on 2 February 1939 with similar explanations both generally and relating to clauses 19 and 20. It then received its second reading, no member of the House having raised any point on these clauses. Closing the debate on this occasion, the Solicitor General also made clear that: The whole of the material upon which this Bill is founded has been embodied in the report of the Law Revision Committee, and it has been available ever since 1936, so that there has been ample opportunity for everybody to know what the proposals of the Committee were. (Hansard (HC Debates) 2 Feb 1939, vol 343, cols 487 516) Reviewing the effect of the 1939 Act in the Modern Law Review vol 4 in July 1940, pp 45, 47, J Unger wrote: This Act, which came into operation on the 1st July, 1940, is founded upon the Fifth Interim Report of the Law Revision Committee. Section 19 simplifies the law of limitation of actions in respect of trust property. All constructive trustees are now subject to the same restrictions when claiming the protection of the Statute as express trustees. Thus the obstacle presented by Soar v Ashwell to a proper classification of trusts has been removed. The same view was expressed by Professor Donovan Waters in a book on Canadian law, The Constructive Trust (published 1964) cited by Millett LJ in Paragon Finance at p 411G. Professor Waters stated (with hindsight over optimistically) that with the Limitation Act 1939 it [the limitation controversy] passed, probably, for ever, the generally accepted view being that the false and limited trilogy of trusts in Soar v Ashwell had been swept away (p 411) and that the Limitation Act was intended to bury this issue (p 1020, as cited by Millett LJ). In this light, it is unsurprising that section 19(1)(a) of the 1939 Act gave rise to little litigation. The one decision worth noting was by Dankwerts J at first instance in G L Baker Ltd v Medway Building and Supplies Ltd [1958] 1 WLR 1216. The judgment suggests that there was only limited examination of the relevant history and case law. But Dankwerts J, in a part of his judgment not appealed, held that section 19(1)(a) was wide enough to cover a claim against a third party company based on a fraudulent payment of trust monies by a trustee to the company (of which the trustee was a director). Since the company was treated as innocent of the fraud, that conclusion went wider than category (c), and is in my opinion open to questions to that extent. It is only recently in litigation under section 21 of the 1980 Act that the theses have been developed, first that a knowing recipient cannot benefit by a limitation defence and, later, that a dishonest assister can benefit by a limitation defence although the dishonest trustee whom he assists cannot (in short, that category (c) cases are also outside section 21(1)(a)). These theses were initially, and in my view correctly, rejected by the Isle of Man Staff of Government Division in Barlow Clowes International Ltd v Eurotrust International Ltd (31 March 1998). The first thesis was however accepted by Millett LJ in Paragon Finance, but he was, as I have already noted, careful to make clear that he was not accepting, but was leaving undecided, the second thesis. It is however a thesis which it is suggested that Lord Millett (as he had by now become) accepted in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366, para 141. It was not, however, a thesis advanced or discussed in submissions by counsel (who included Mr Jonathan Sumption QC), because limitation was not advanced and was irrelevant. The issue in that case was simply one of contribution between joint tortfeasors. The remarks by Lord Millett at paras 140 143 in Dubai Aluminium were addressed to the question which was relevant, which was whether . a firm and its innocent partners may be vicariously liable for a partners dishonest assistance in a breach of trust (para 81). What Lord Millett was concerned to do was underline his previous remarks in Paragon Finance about the distinction between the two entirely different situations in which the expressions constructive trust and trustee were used. Lord Milletts statements in Dubai Aluminium that a person in the dishonest partners position in that case could not plead the Limitation Acts as a defence to the claim were passing comments relating to the informal remedial sense in which it is (he suggested unfortunately) used. They cannot be read as deciding sub silentio an issue which he had carefully left open in Paragon Finance. It is equally inappropriate to treat it as sharing the authority of the two other members of the House (Lord Hutton and Lord Hobhouse) whose judgments record their general agreement with the reasons given by both Lord Nicholls (who said nothing on the present subject) and Lord Millett. None of the Court of Appeal decisions in J J Harrison (Properties) Ltd v Harrison [2002] 1 BCLC 162, Gwembe Valley Development Co Ltd v Koshy (No 3) [2004] 1 BCLC 131 and Halton International (Holdings) Inc Sarl v Guernroy Ltd [2006] EWCA Civ 801 concerned a dishonest assister. In Harrison a director who without disclosing material information bought specific property from his company, which was under his control and in respect of which he owed pre existing fiduciary duties, was unable to plead limitation because of section 21(1)(b). In Gwembe Valley a director making an undisclosed profit from a currency transaction entered into by the company was liable only under a constructive remedial trust, so that section 21(1)(b) was not applicable: paras 120 and 161(10). However, since he was held to have been fraudulent, the claim did fall, directly or by analogy, within section 21(1)(a) see paras 120 and 161(9) and (12). Halton was another case, like Gwembe Valley, in which the benefit obtained by alleged fiduciaries did not consist of pre existing property belonging to the company, but consisted in shares which came into existence only because of the transaction impeached. The next cases are conflicting first instance authorities on the limitation position of dishonest assisters: Cattley v Pollard [2006] EWHC 3130 (Ch), [2007] Ch 353 (Richard Sheldon QC, sitting as a deputy) and Statek Corp v Alford [2008] EWHC 32 (Ch) (Evans Lombe J). In an impressive analysis of prior authority, Richard Sheldon QC concluded (para 81) that the dicta in Soar v Ashwell could no longer stand as good law in the light of Millett LJs analysis in Paragon Finance and Lord Milletts speech in Dubai Aluminium. He also held that section 21(1)(a) did not cover claims against a dishonest assister. A year later Evans Lombe J expressed his opposite view, albeit obiter. A yet further year later, the same point came before the Hong Kong Final Court of Appeal in Peconic Industrial Development Ltd v Lau Kwok Fai [2009] 5 HKC 135. Lord Hoffmann gave the main judgment. Speaking quite briefly, he acknowledged the high authority of the dicta in Soar v Ashwell, but thought them wrong in principle and unsupported by authority (para 24). He therefore saw no basis to treat a dishonest assister as a trustee within the meaning of section 21(1)(a) (paras 23 24). He also rejected the view that a claim against a dishonest assister would be within section 21(1)(a) because it is in respect of , in the sense of being accessory to, the actual trustees fraudulent breach of trust (para 25). He though that, had that been intended, then the language would have been a good deal clearer. He did not refer to the Law Revision Committee Report, the relevant Parliamentary material or the actual contemporary understanding of the law, evidenced by the case law and jurisprudence to which I have referred. Instead, he relied on Taylor v Davies as an authoritative statement of the previous position. Above all, however, he did not mention section 21(3) or therefore address the obvious objection presented by it to his analysis of the words in respect of. I cannot in these circumstances attach weight to the analysis or decision in Peconic. All the modern cases from Paragon Finance onwards in fact make reference to the Privy Council decisions in Taylor v Davies and Clarkson v Davies. As I have pointed out, these form no part of the actual background to section 19 of the 1939 Act or therefore section 21 of the 1980 Act, and were also not cases of dishonest assistance or knowing receipt in respect of any trust assets. Further, none of the modern cases analyses the position as it was (clearly) understood to be in the 1930s and in the report of the Law Reform Committee which led to the 1939 Act. All that Millett LJ said in the Paragon Finance case at p 412, was that The actual recommendation of the Law Reform Committee went wider than the mischief to which it drew attention [viz the interpretation of trustee to exclude an executor], and it is an open question whether Parliament intended to adopt the wider recommendation or merely to put an end to the mischief He thought that, if Parliament had intended the latter, it would have said so more clearly. In fact, it is clear from the Parliamentary material (paras 146 and 147 above) that Parliament intended to deal with all the mischiefs identified by the Law Revision Committee, so that it was wrong to describe the adoption of the Committees wider recommendation as an open question. In addition, Millett LJ was not concerned at all with the question, which he expressly left open later in his judgment, whether Parliament had intended to abolish the previously well understood rule that dishonest assisters were in the same position as regards limitation as the dishonest trustees who they assisted and his attack on the use of the term constructive trust was based on cases which involved neither dishonest assistance nor knowing receipt, but pure remedial trusts. To make dishonest assistance, and in my view also knowing receipt cases subject to limitation, Parliament would have had to have been imputed with the intention to do the opposite of what the Law Reform Committee had advised, that is to reverse rather than reflect the common understanding of the legal position stated in Soar v Ashwell, In re Dixon and other authorities. There is no basis or likelihood for that at all. Neither Millett LJ nor any of the other authorities suggests any. The Parliamentary material quoted in paras 146 and 147 above puts it beyond doubt (if any otherwise existed) that this was not the intention. The Courts role is to give to section 21 in the 1980 Act the effect which Parliament must be taken to have intended it to have. That in turn depends upon the effect to be given to section 19 of the 1939 Act. In my view, it is clear that this was to treat dishonest assisters as in the same position as regards limitation as the dishonest trustees they assist. That is the approach adopted by the Court of Appeal in its dicta in Soar v Ashwell. There is no difficulty about treating dishonest assisters as persons sued in respect of the fraud of the principal trustee within section 21(1)(a). It was the clear intention of the Law Revision Committee and Parliament under the 1939 and now 1980 Acts that dishonest assisters should not be able to plead limitation. It is only recently, since Royal Brunei in 1995, that it is clear that liability as a dishonest assister does not necessarily depend upon the existence of a dishonest trustee. Even if one looks at the position since Royal Brunei, the resulting position is still not incoherent. A beneficiary whose trustee is involved in fraud is particularly exposed. A third person who dishonestly procures the removal of trust assets without a trustee being complicit in the fraud can be compared with any other stranger committing a fraud on a property owner. But to equate a third person, who dishonestly joins with a dishonest trustee to defraud the trust, with the dishonest trustee for limitation purposes is entirely natural. See also Millett LJs statement in Paragon (para 124 above). Certainly, that was the understanding prior to and when the 1939 Act was passed, and it was, as I have shown, one which the Act was clearly intended to reflect. In these circumstances, I am of the opinion that Dr Williams claim against the Central Bank of Nigeria as alleged dishonest assisters falls within section 21(1)(a) of the 1980 Act and is not time barred. As to Dr Williams claim for knowing receipt by the Central Bank of Nigeria, to avoid limitation, he has to show that this claim falls within section 21(1)(b). It may be open to doubt how far the rules in Soar v Ashwell were themselves designed to cover this type of claim (category (b) identified in para 122 above) and take it outside the limitation defence. The class of case identified by Kay LJ at p 405 (see para 126 above) identified a situation involving a combination of knowing assistance and knowing receipt and J W Brunyate observed that the scope of the class of persons referred to in Soar v Ashwell who have obtained possession of property which is subject to trusts of which they are cognizant and could not on that basis plead limitation was very doubtful (para 140 above). However, by the time of the Law Revision Committee Report Romer J had decided both In re Eyre Williams and In re Mason, and, in the latter case he had (see para 136 above) specifically explained the former as a case where the trust funds or the proceeds of the trust funds have been received by a person with knowledge that they have been wrongly paid to him (ie as a category (b) case: see para 122 above). Further, Halsbury (1936) and Underhill (1939), cited in para 141 above, endorsed this approach. In its Report, the Law Revision Committee, on which Romer LJ (as he now was) sat, made clear that it was intending to endorse the approach taken not just in Soar v Ashwell, but also in the cases cited in In re Eyre Williams, which (apart from Soar v Ashwell and Lee v Sankey (1872) LR 15 Eq 204) consisted only of In re Mason. Finally, the Committee made clear that it intended to do away with the distinction between express and constructive trusts in the area of limitation, and the 1939 Act adopted a definition in terms wide enough to achieve that result. On that basis, Parliaments clear intention in 1939 appears as being that, for the purposes of limitation, those guilty of knowing receipt should be unable to plead limitation, falling to be treated as trustees within the scope of section 21(1)(b), in the same way as possessors falling within category (a) (see para 122 above). To that extent the distinction drawn in Beckford v Wade was to be abrogated. Lord Neuberger seeks to derive from an examination of the effect of the definition of trust and trustee in the context of the 1925 Act a conclusion that these phrases cannot embrace all express, implied and constructive trusts and trustees in the context of the 1939 Act. I do not agree that the phrases are limited in the context of the 1925 Act in such a way as to exclude a knowing recipient. I understand Lord Neuberger and Lord Sumption to accept that section 21(1)(a) covers a category (a) possessor that is an executor de son tort (a person, such as a solicitor, who is not strictly a trustee but receives trust property honestly, and only later decides to deal with it contrary to the trust). That being so, I fail to see why the 1925 Act definition is incapable of covering a category (b) knowing recipient (someone who knowingly receives trust property intending from the outset to deal with it contrary to the trust). On the contrary, it seems to me understandable that the Law Revision Committee in 1936 and Parliament in 1939 should decide to assimilate these two cases for the purposes of section 21(1)(b). Possession is the hallmark of a trustees role and shapes a trustees duties. A knowing recipient has possession just as does an executor de son tort. An executor de son tort is treated as a trustee under section 21(1)(b) because of the wrong he commits. Precisely the same reason justifies treating a knowing recipient as a trustee under section 21(1)(b). As regards taking possession, a knowing recipient and an executor de son tort differ from a simple dishonest assister. A dishonest assister conspiring with a fraudulent trustee can however also be seen as even less meriting of protection by limitation than a mere knowing recipient. That is quite apart from the evident oddity (on Lord Neubergers and Lord Sumptions case) of one conspirator (a dishonest assister) benefitting by limitation, while the other (the fraudulent trustee) does not. Hence, in my opinion, the formulation of section 21(1)(a) to cover a dishonest assister. I would only add, though not necessary for my decision, that the definitions in both the 1925 and the 1939 Acts are made subject to context. I do not see why the 1925 definition when read into the 1939 Act should not be capable of being shaped in effect by any factors generally admissible to shape the interpretation of the 1939 Act. Those factors include the case law background, the mischief being addressed and Parliaments evident intention when enacting section 21. I therefore consider that Dr Williams succeeds on both dishonest assistance and knowing receipt, and that the appeal by the Central Bank of Nigeria should be dismissed. LORD CLARKE, dissenting in part I appreciate that this is a minority judgment. I will therefore keep it short. In the course of the argument, I was attracted by the submission that the Central Bank of Nigeria was a trustee within the meaning of section 21(1)(a) of the Limitation Act 1980 for the reasons powerfully set out by Lord Mance in his judgment. However, somewhat reluctantly, I am persuaded by the reasoning of Lord Neuberger and Lord Sumption that he was not. In particular, I agree with them that it is not apt to describe a person who receives property dishonestly as a trustee where the trust is alleged to arise, as Lord Neuberger puts it at para 64, simply as a result of dishonest receipt. As he says, nobody has ever placed any relevant trust and confidence in the recipient. What then of the knowing assister? There is force in the point that, if a dishonest recipient is not a trustee, it is difficult to see why a dishonest assister should be one. However, as I see it, the critical points derive from the terms of the statute. Section 38(1) of the 1980 Act defines the terms trust and trustee as having the same meanings, respectively, as in the Trustee Act 1925. As Lord Neuberger puts it at para 69, there is no reason to think that the drafter of section 68(1)(17) of the 1980 Act intended constructive trust or trustee to have a wider meaning than that which they had been accorded by Courts of Equity over the years. As he says, it would be surprising if a statute consolidating the law governing the powers and duties of trustees did not adopt an orthodox definition of trust and trustee. The effect of the argument for Dr Williams is to give those expressions a wider meaning than they would have had in the Trustee Act standing alone. I agree with Lord Neuberger that, for the reasons he gives at paras 72 and 73, it is not permissible to achieve that result by reference to context. The point upon which I have reached a different conclusion from the majority is whether this action is an action by Dr Williams as the beneficiary of a trust, being an action in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy within the meaning of section 21(1)(a) of the 1980 Act. As Lord Sumption explains in para 2, the alleged trustee was a Mr Gale and Dr Williams asserts that the Central Bank of Nigeria dishonestly assisted Mr Gales breach of trust and/or received money knowing that it was being paid by Mr Gale in breach of trust. All three members of the Court of Appeal (the Chancellor and Black and Tomlinson LJJ) held that the action is such an action within section 21(1)(a). It is submitted that they were wrong so to hold on the ground that the section is limited to actions against the trustee. I would reject that submission. There is nothing in the language of the section to lead to that conclusion. I appreciate that section 21 has been set out by Lord Sumption. I set it out again because its wording is critical on this point. It provides, so far as relevant: 21. (1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action (a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy ; or (b) to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use. (3) Subject to the preceding provisions of this section, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued. Section 23 provides: An action for an account shall not be brought after the expiration of any time limit under this Act which is applicable to the claim which is the basis of the duty to account. Section 21(1)(a) contains two requirements: (a) the action must be brought by a beneficiary under a trust; and (b) it must be an action in respect of a fraud or fraudulent breach of trust to which the trustee was a party or privy. Here the action was brought by Dr Williams as a beneficiary of a trust in which Mr Gale was the trustee and the action was against the Central Bank of Nigeria in respect of a fraudulent breach of trust to which it is alleged that Mr Gale was a party. On this basis, the action in my opinion falls within the ordinary meaning of the language used in the section. There is nothing to suggest that the action must be against the trustee. It would have been very simple for the drafters so to provide if that was intended. In para 91 Lord Neuberger identifies the question as whether the person in the position of the Central Bank of Nigeria is sued in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy. In para 94 he treats the question as being whether the words in respect of should be given a wider meaning, in which case he accepts that they can properly be construed to extend to dishonest assisters or advisers without applying to innocently (as opposed to fraudulently) negligent co trustees and professional advisers of a fraudulent trustee. He says that the words in respect of are flexible in that they can have a broad or restricted effect. He concludes that, construed in their context, they should be given a narrow effect. The difficulty with an approach which depends upon the construction of the expression in respect of any fraud or fraudulent breach of trust as meaning that the action must be against the trustee is, as I see it, that it is common ground that in section 21(3) the expression an action by a beneficiary in respect of any breach of trust includes an action against a dishonest assister. It is only by construing subsection (3) in that way that, on the Central Banks case, the relevant time period under the 1980 Act is six years. The purpose of section 21(3) is to reflect the position in section 21(1)(a) and (b), albeit treating them in the reverse order. It refers first to an action by a beneficiary to recover trust property, which is a reference back to section 21(1)(b), which is expressly concerned only with an action to recover trust property. It then refers to an action by a beneficiary in respect of any breach of trust, which is surely a reference back to section 21(1)(a), which refers to an action by a beneficiary in respect of any fraud or fraudulent breach of trust. It seems to me to be clear that section 21(1)(a) and section 21(3) must be read together. The purpose of them was to provide the circumstances in which there would be no limitation period and the circumstances in which the period would be six years. Since section 21(3) is expressly subject to the preceding provisions of the section, which of course include section 21(1)(a), section 21(3) has the effect that a claim by a beneficiary against a dishonest assister is six years unless section 21(1)(a) applies. Section 21(1)(a) applies where the dishonest assister assists a fraud or fraudulent breach of trust to which the trustee was a party or privy. If, as is correctly common ground, an action against a dishonest assister is an action in respect of a breach of trust within section 21(3), it seems to me that such an action must also be an action in respect of a fraud or fraudulent breach of trust to which the trustee is a party or privy where that is the position on the facts. (My emphasis) Both the history of section 21 and the section itself show that the drafters could readily have limited section 21(1)(a) to actions against the trustee if they had wished. As to the history of the provision, section 21(1) of the 1980 Act was a re enactment of section 19 of the Limitation Act 1939. Prior to that, the relevant provision was section 8(1) of the Trustee Act 1888, which was confined to any action or other proceeding against a trustee or any person claiming through him. There is no such express provision in section 21(1)(a). As to section 21 itself, by contrast with section 21(1)(a), section 21(1)(b) is expressly limited to actions against the trustee to recover property and the like. It is suggested that this approach gives no sensible effect to the words to which the trustee was a party or privy. I respectfully disagree. It seems to me that that they emphasise that whoever is the defendant will only be deprived of the benefit of the six year limitation provision in section 21(3) if the trustee is privy to the fraud or fraudulent breach of trust. The purpose of the drafters was to ensure that the both the trustee and any other person liable in respect of the fraud would be treated in the same way for limitation purposes. To my mind that is an understandable purpose. It is further suggested that the use of the expression the trustee is inconsistent with this approach. Again, I respectfully disagree. The reference to the trustee is no more than a reference back to the trust in the opening words of the section. Thus, the action must be by a beneficiary of a trust and the reference to the trust in (a) does no more than make it clear that the trustee of that trust must be a party or privy to the fraud or fraudulent breach of trust concerned. Next, it is suggested that it seems inappropriate that the ability of a dishonest assistant or dishonest knowing recipient to invoke the normal six year period should depend upon whether or not the trustee was fraudulent. Reference is made to the speech of Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, where he said that a dishonest assistant may be liable whether or not the breach of trust on the part of the trustee was dishonest. I accept that that is the position but I am not persuaded that that was appreciated at the time of the Limitation Acts 1939 and 1980. Whether it was or not, I have already expressed the view that it is understandable that the drafters should have thought it appropriate to treat the trustee and the dishonest assister in the same way for limitation purposes. Finally, I am not persuaded that there is anything in section 21(1)(b) which leads to any different conclusion. I recognise that this conclusion is inconsistent with that expressed by Lord Hoffmann in Peconic Industrial Development Ltd v Lau Kwok Fai [2009] 5 HKC 135, where the Court of Final Appeal in Hong Kong was considering a Hong Kong Ordinance in the same terms as section 21. In para 25, after recognising that the words in respect of may have a very wide meaning and referring to the possibility of such a meaning being given to them being tentatively considered by Dankwerts J in GL Baker Ltd v Meday Builders and Supplies Ltd [1958] 1 WLR 1216, 1222, he said this: But I think that in the context of section 20 of the Ordinance it simply means that the beneficiary must be claiming against the trustee on the ground that he has committed a fraudulent breach of trust. If it had been intended to include claims against dishonest assisters or other non fiduciaries on the ground that they were accessories to the breach of trust, the language would have been a good deal clearer. Lord Hoffmann makes no reference to the use of the expression in respect of in section 21(3) as discussed above and, while I recognise the experience of Lord Hoffmann in this area, the question for decision is one of construction of the section and, as I see it, the section does not have the limited effect to which he refers. For the reasons I have given I would dismiss the appeal on this point.	Dr Williams claims to be the victim of a fraud instigated by the Nigerian State Security Services which occurred in 1986. His case is that he was induced to serve as guarantor of a bogus transaction for the importation of foodstuffs into Nigeria. In connection with that transaction, he paid $6,520,190 (USD) to an English solicitor, Mr Reuben Gale, to be held on trust for him on terms that it should not be released until certain funds had been made available to him in Nigeria. Dr Williams says that in fraudulent breach of that trust, Mr Gale, knowing that those funds were not available to him in Nigeria, paid out $6,020,190 of the money to an account held by the Central Bank of Nigeria with Midland Bank in London, and that he pocketed the remaining $500,000. The Central Bank is said to have been party to Mr Gales fraud. Dr. Williams claimed against the Central Bank on the basis that the Bank was a constructive trustee. The Bank was alleged to have dishonestly assisted Mr. Gale to pay away the $6,520,190, and to have received the $6,020,190 knowing that it represented trust funds paid to it in breach of trust. There was also a claim to trace to the latter sum into the Banks assets. The question on this appeal is whether the order permitting Dr Williams to serve the claim form and particulars of claim on the Central Bank in Nigeria should be set aside and a declaration made that the English court lacks, or at any rate should not exercise, jurisdiction in respect of it. That in turn depends on whether there is a serious issue to be tried [1]. This depends on whether Dr. Williams claims are time barred under the Limitation Act 1980. It is common ground that, in so far as any such trust claim is subject to statutory limitation, the limitation period has expired. The issue turns on whether these claims were exempt from statutory limitation by virtue of section 21 of the Limitation Act 1980 [2]. Section 21 provides that no period of limitation shall apply to (a) an action by a beneficiary under a trust, in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy or (b) recovery from the trustee of trust property or the proceeds of trust property [3]. Two questions arose. First, whether a stranger to a trust, who dishonestly assists in a breach of trust or knowingly receives trust property paid out in breach of trust, is a trustee for the purposes of the Act. If the answer to that question is No, then the second question is, whether an action in respect of any fraudulent breach of trust to which the trustee was a party is limited to an action against the trustee or includes an action against the stranger [4]. By a majority the Supreme Court allows the appeal and declares that the English court has no jurisdiction in respect of this action. The order for service out of jurisdiction and the service itself must be set aside [38]. Lord Sumption (with whom Lord Neuberger and Lord Hughes agree), writing the lead judgment, holds that the 1986 trust claims are time barred essentially because section 21 of the Limitation Act is concerned only with actions against true trustees and the Central Bank is not a true trustee. This is because a constructive trust of the kind alleged against the Bank is not a true trust but merely a basis for granting equitable relief [6]. Lord Sumption distinguishes between two categories of constructive trusts, namely one that comprises de facto trustees and cases of ancillary liability [8]. The distinction is relevant because the rationale behind the original rule that trustees are accountable to their beneficiaries without limitation of time will not necessarily apply to every kind of constructive trust. Trust assets are assets lawfully vested in a trustee. If the trustee misapplies the assets, equity ignores the misapplication and simply holds him to account for the assets as if he had acted in accordance with his trust. There is nothing to make time start running against the beneficiary. Persons who are under a purely ancillary liability are in a different position to this. Their acts and their receipt of the assets are at all times adverse to both the true trustees and the beneficiaries. They are liable to account in equity, but as wrongdoers, and not as true trustees. [13 31]. Once the first question is answered in the negative, the second question then arises whether the Central Bank is nevertheless a party sued in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy for the purposes of the Limitation Act. The majority hold that it is not. Section 21(3) is concerned only with actions against trustees on account of their own fraud or fraudulent breach of trust [32 36]. Lord Neuberger (with whom Lord Hughes also agrees) agrees with Lord Sumption that the appeal should be allowed [42]. On the first question Lord Neuberger concludes that a trustee does not include a party who is liable to account in equity simply because he was a dishonest assister and/or a knowing recipient. This is because such a party is not a constructive trustee and a trust and trustee were, pursuant to the legislation, meant to have orthodox meanings [90]. On the second question Lord Neuberger would hold that the narrower meaning of section 21(1)(a) is to be preferred, namely that it only applies to claims brought against the trustee who was a party or privy to the fraud or fraudulent breach of trust [92 & 113]. In a dissenting judgment, Lord Mance considers that the appeal by the Central Bank should be dismissed [163]. Lord Mance takes the view that Dr Williams claim against the Central Bank as an alleged dishonest assister falls within section 21(1)(a) and is not time barred because Parliament intended to treat dishonest assisters as in the same position as regards limitation as the dishonest trustees they assist [157]. As to Dr Williams claim for knowing receipt by the Central Bank, Lord Mance does not agree with Lord Neuberger that the phrases trust and trustee are limited in meaning so as to exclude a knowing receipt [161] and therefore considers that Dr Williams should also succeed on this point. In an additional dissenting judgment, Lord Clarke agrees with the majority that the central Bank is not a trustee within the meaning of section 21(1)(a) [165]. Further, he agrees with Lord Neuberger that a knowing assister is not a constructive trustee [166]. However, with regard to the second question in this appeal, Lord Clarke would hold that the action falls within the ordinary meaning of the language of the statute [171] and would thus dismiss the Central Banks appeal on this point [182].
Three of the appeals involve linked issues as to the treatment of qualifying children and their parents, under the statutory regime contained in Part 5A of the Nationality, Immigration and Asylum Act 2002. The fourth (AP (Sri Lanka)) raises a related issue under the Rules. Part 5A, headed Article 8 of the ECHR: Public Interest Considerations, was introduced by amendment with effect from 28 July 2014 (section 19 of the Immigration Act 2014). By section 117A it is to apply where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to respect for private and family life under article 8, and would so be unlawful under section 6 of the Human Rights Act 1998. For these purposes, the public interest question is defined as the question whether such an interference is justified under article 8(2). Section 117A(2) provides: (2) In considering the public interest question, the court or tribunal must (in particular) have regard in all cases, to the considerations listed in section (a) 117B, and (b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C. Section 117B, applicable in all cases, lists a series of such considerations. They include in summary, the public interest in the maintenance of effective immigration controls (subsection (1)); the public interest in those seeking to enter being able to speak English (subsection (2)), and be financially independent (subsection (3)); the little weight to be accorded to private life or relationships established when a person was in the country unlawfully (subsection (4)), or when immigration status was precarious (subsection (5)); and (directly relevant in this case) (6) In the case of a person who is not liable to deportation, the public interest does not require the persons removal where the person has a genuine and subsisting parental (a) relationship with a qualifying child, and (b) leave the United Kingdom. it would not be reasonable to expect the child to A qualifying child is defined for this purpose as a person under the age of 18 who is a British citizen, or (b) has lived in the United Kingdom for a continuous period of seven years or more (section 117D(1)). The exclusion of persons liable to deportation covers non British citizens whose deportation is deemed conducive to the public good and foreign criminals as defined by the UK Borders Act 2007 (see Immigration Act 1971 section 3(5); UK Borders Act 2007 section 32(1) (4)). Section 117C sets out additional considerations in cases involving foreign criminals. For this purpose a foreign criminal is defined by section 117D(2) as a person, who not a British citizen, and who has been convicted of an offence in the United Kingdom, if it attracted a sentence of at least 12 months, or the offence caused serious harm or he is a persistent offender. To show the more intricate structure of this section, it needs to be set out in full: (1) The deportation of foreign criminals is in the public interest. (2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. (3) In the case of a foreign criminal (C) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires Cs deportation unless Exception 1 or Exception 2 applies. (4) Exception 1 applies where (a) C has been lawfully resident in the United Kingdom for most of Cs life, (b) C is socially and culturally integrated in the United Kingdom, and (c) there would be very significant obstacles to Cs integration into the country to which C is proposed to be deported. (5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of Cs deportation on the partner or child would be unduly harsh. (6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. (7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted. It is unnecessary to refer in detail to the Changes to the Immigration Rules made at the same time (paragraphs 398 399), since it is not argued that any differences are material to the issues before us. It is to be noted however that the question whether the effect of Cs deportation would be unduly harsh (section 117C(5)) is broken down into two parts in paragraph 399, so that it applies where: it would be unduly harsh for the child to live in the (a) country to which the person is to be deported; and (b) UK without the person who is to be deported. it would be unduly harsh for the child to remain in the The Appellants case, in short, is that in determining whether it is reasonable to expect a child to leave the UK with a parent (under section 117B(6)), or whether the effect of deportation of the parent on the child would be unduly harsh (under section 117C(5)) the tribunal is concerned only with the position of the child, not with the immigration history and conduct of the parents, or any wider public interest factors in favour of removal. By contrast the Secretary of State argues that both provisions require a balancing exercise, weighing any adverse impact on the child against the public interest in proceeding with removal or deportation of the parent. Paragraph 276ADE(1)(iv) The fourth appeal (AP (Sri Lanka)) raises related issues under paragraph 276ADE(1)(iv). That paragraph of the Rules comes under the heading Requirements to be met by an applicant for leave to remain on the grounds of private life. It reads: The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of the application the applicant: . (iv) is under the age of 18 years and has lived continuously in the UK for at least seven years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK. It will be seen immediately that the substance of this provision, in particular the seven year criterion and the reasonableness tests, appears identical to that of section 117B(6), taken with the definition of qualifying child. However, in this context the so called seven year concession for children has a much longer history. It was reviewed by the Upper Tribunal (McCloskey J, President, sitting with UT Judge Bruce) in PD (Sri Lanka) v Secretary of State for the Home Department [2016] UKUT 108 (IAC), [2016] Imm AR 797, paras 8ff. He traced its ancestry back to Deportation Policy 5/96 (DP5/96), as revised in February 1999. For present purposes it may be noted that the policy in its original form did not incorporate a reasonableness test, but did include in a list of relevant factors any history of criminal behaviour by the parents. Unfortunately, as the Court of Appeal graphically explained in NF (Ghana) v Secretary of State for the Home Department [2008] EWCA Civ 906, [2009] Imm AR 155, paras 22ff, the application of the policy in practice was plagued by confusion caused by differing or uncertain Ministerial and Departmental statements over the ensuing years. It was eventually withdrawn in December 2008. The accompanying Ministerial statement indicated that it would be replaced by consideration under the Immigration Rules and article 8, which would ensure a fairer, more consistent approach to all cases involving children, whether accompanied or unaccompanied, across UKBA (Hansard (HC Debates), 9 December 2008, Written Ministerial Statements, cols 49 50WS) . Returning to the Presidents account in PD, the new paragraph 276ADE(1)(iv) was first introduced with effect from 9 July 2012, but without a specific reference to reasonableness. The President (para 12) referred to the accompanying Ministerial Statement of Intent including the following: The key test for a non British citizen child remaining on a permanent basis is the length of residence in the UK of the child which the Immigration Rules will set as at least the last seven years, subject to countervailing factors. The changes are designed to bring consistency and transparency to decision making. (Statement of Intent: Family Migration (June 2012), para 56) Paragraph (iv) was amended (with effect from 13 December 2012) to its present form, including the reasonableness test, apparently without further Ministerial explanation of the change. The President also cited (para 16) relevant guidance contained in an Immigration Directorate Instruction (IDI) of the Home Office entitled Family Life (as a partner or parent) and Private Life: Ten Year Routes, published in August 2015, extracts of which were appended to the judgment (Appendix 2). They included a section headed Would it be unreasonable to expect a non British citizen child to leave the UK?, under which were set out a number of relevant considerations, such as risk to the childs health, family ties in the UK and the likelihood of integration into life in another country and: b. Whether the child would be leaving the UK with their parent(s) It is generally the case that it is in a childs best interests to remain with their parent(s). Unless special factors apply, it will generally be reasonable to expect a child to leave the UK with their parent(s), particularly if the parent(s) have no right to remain in the UK. There was no reference in the list to the criminality or immigration record of the parents as a relevant factor. The most recent version of the IDI (22 February 2018), no doubt taking account of Court of Appeal decisions to which I shall refer below, includes an additional paragraph, which more closely reflects the Secretary of States submissions in the present case: The consideration of the childs best interests must not be affected by the conduct or immigration history of the parent(s) or primary carer, but these will be relevant to the assessment of the public interest, including in maintaining effective immigration control; whether this outweighs the childs best interests; and whether, in the round, it is reasonable to expect the child to leave the UK. (Family Migration: Appendix FM Section 1.0b. Family Life (as a Partner or Parent) and Private Life: Ten Year Routes, p 76) Interpretation General approach This group of sections needs to be looked at in the context of the history of attempts by the Government, with the support of Parliament, to clarify the application of article 8 in immigration cases. In Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799 this court had to consider rule changes introduced with similar objectives in July 2012. The background to those changes was explained by Lord Reed (paras 19 21), their avowed purpose being to promote consistency, predictability and transparency in decision making, and to reflect the Governments and Parliaments view of how, as a matter of public policy, the balance should be struck (para 21). In a case heard shortly afterwards, R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11; [2017] 1 WLR 823, paras 8 10, Lord Reed referred to the previous law as established in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, where it was held that non compliance with the Rules, not themselves reflecting the assessment of proportionality under article 8, was the point at which to begin, not end consideration of article 8. The new Rules, as he said by reference to government policy statements, were designed to change the position comprehensively by reflecting an assessment of all the factors relevant to the application of article 8 (para 10). Part 5A of the 2002 Act takes that process a stage further by expressing the intended balance of relevant factors in direct statutory form. It is profoundly unsatisfactory that a set of provisions which was intended to provide clear guidelines to limit the scope for judicial evaluation should have led to such disagreement among some of the most experienced Upper Tribunal and Court of Appeal judges. Rather than attempt a detailed analysis of all these impressive but conflicting judgments, I hope I will be forgiven for attempting a simpler and more direct approach. I start with the expectation that the purpose is to produce a straightforward set of rules, and in particular to narrow rather than widen the residual area of discretionary judgment for the court to take account of public interest or other factors not directly reflected in the wording of the statute. I also start from the presumption, in the absence of clear language to the contrary, that the provisions are intended to be consistent with the general principles relating to the best interests of children, including the principle that a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent (see Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690, para 10 per Lord Hodge). The specific provisions It is natural to begin with the first in time, that is paragraph 276ADE(1)(iv). This paragraph is directed solely to the position of the child. Unlike its predecessor DP5/96 it contains no requirement to consider the criminality or misconduct of a parent as a balancing factor. It is impossible in my view to read it as importing such a requirement by implication. As has been seen, section 117B(6) incorporated the substance of the rule without material change, but this time in the context of the right of the parent to remain. I would infer that it was intended to have the same effect. The question again is what is reasonable for the child. As Elias LJ said in MA (Pakistan) Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705, [2016] 1 WLR 5093, para 36, there is nothing in the subsection to import a reference to the conduct of the parent. Section 117B sets out a number of factors relating to those seeking leave to enter or remain, but criminality is not one of them. Subsection 117B(6) is on its face free standing, the only qualification being that the person relying on it is not liable to deportation. The list of relevant factors set out in the IDI guidance (para 10 above) seems to me wholly appropriate and sound in law, in the context of section 117B(6) as of paragraph 276ADE(1)(iv). On the other hand, as the IDI guidance acknowledges, it seems to me inevitably relevant in both contexts to consider where the parents, apart from the relevant provision, are expected to be, since it will normally be reasonable for the child to be with them. To that extent the record of the parents may become indirectly material, if it leads to their ceasing to have a right to remain here, and having to leave. It is only if, even on that hypothesis, it would not be reasonable for the child to leave that the provision may give the parents a right to remain. The point was well expressed by Lord Boyd in SA (Bangladesh) v Secretary of State for the Home Department 2017 SLT 1245: 22. In my opinion before one embarks on an assessment of whether it is reasonable to expect the child to leave the UK one has to address the question, Why would the child be expected to leave the United Kingdom? In a case such as this there can only be one answer: because the parents have no right to remain in the UK. To approach the question in any other way strips away the context in which the assessment of reasonableness is being made He noted (para 21) that Lewison LJ had made a similar point in considering the best interests of children in the context of section 55 of the Borders, Citizenship and Immigration Act 2009 in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874, para 58: 58. In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin? To the extent that Elias LJ may have suggested otherwise in MA (Pakistan) para 40, I would respectfully disagree. There is nothing in the section to suggest that reasonableness is to be considered otherwise than in the real world in which the children find themselves. Turning to section 117C the structure is not entirely easy to follow. It starts with the general rules (1) that deportation of foreign criminals is in the public interest, and (2) that the more serious the offence the greater that interest. There is however no express indication as to how or at what stage of the process those general rules are to be given effect. Instead, the remainder of the section enacts specific rules for two categories of foreign criminals, defined by reference to whether or not their sentences were of four years or more, and two precisely defined exceptions. For those sentenced to less than four years, the public interest requires deportation unless exception 1 or 2 applies. For those sentenced to four years or more, deportation is required unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. The difficult question is whether the specific rules allow any further room for balancing of the relative seriousness of the offence, beyond the difference between the two categories. The general rule stated in subsection (2) might lead one to expect some such provision, but it could equally be read as no more than a preamble to the more specific rules. Exception 1 seems to leave no room for further balancing. It is precisely defined by reference to three factual issues: lawful residence in the UK for most of Cs life, social and cultural integration into the UK, and very significant obstacles to integration into the country of proposed deportation. None of these turns on the seriousness of the offence; but, for a sentence of less than four years, they are enough, if they are met, to remove the public interest in deportation. For sentences of four years or more, however, it is not enough to fall within the exception, unless there are in addition very compelling circumstances. Given that exception 1 is self contained, it would be surprising to find exception 2 structured in a different way. On its face it raises a factual issue seen from the point of view of the partner or child: would the effect of Cs deportation be unduly harsh? Although the language is perhaps less precise than that of exception 1, there is nothing to suggest that the word unduly is intended as a reference back to the issue of relative seriousness introduced by subsection (2). Like exception 1, and like the test of reasonableness under section 117B, exception 2 appears self contained. On the other hand the expression unduly harsh seems clearly intended to introduce a higher hurdle than that of reasonableness under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word unduly implies an element of comparison. It assumes that there is a due level of harshness, that is a level which may be acceptable or justifiable in the relevant context. Unduly implies something going beyond that level. The relevant context is that set by section 117C(1), that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parents offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932, [2017] 1 WLR 240, paras 55, 64) can it be equated with a requirement to show very compelling reasons. That would be in effect to replicate the additional test applied by section 117C(6) with respect to sentences of four years or more. KO and the cases on section 117C(5) I will start by looking in detail at KO because it was the decision of the Upper Tribunal in that case which highlighted the area of disagreement lying at the heart of the main issues in these appeals. There is said to be a difference as to the extent to which account is to be taken of the relative severity of the relevant offences. As will be seen, when it comes to the actual determinations of the cases, the differences seem more apparent than real. KO the facts KO entered the UK unlawfully in 1986 and has no leave to enter or remain. He has a wife, a step daughter, and four children with his wife. The four children were born between 28 August 2005 and 9 August 2013 and are British citizens. The step daughter who has indefinite leave to remain was born on 23 December 1997 and is now an adult. KO is a foreign criminal as defined in section 117D(2) of the 2002 Act, having been convicted in August 2011 of conspiracy to defraud and sentenced to imprisonment for 20 months. On 8 April 2014, the Secretary of State decided to deport him. A determination of the First tier Tribunal allowing his appeal was set aside by the Upper Tribunal, while preserving certain findings of fact, and directions made for a resumed hearing. In a decision dated 25 September 2015, UT Judge Southern took the view that in applying the unduly harsh test it was necessary to take account of the criminality of the parent. In that respect he differed from the view recently taken by the Upper Tribunal in MAB (USA) v Secretary of State for the Home Department [2015] UKUT 435 16 June 2015 (UT Judge Grubb and Deputy UT Judge Phillips) (MAB). He determined that it would not be unduly harsh for the children to remain in the UK with their mother if KO were deported, but indicated that he would have reached a different view if required to focus solely on the position of the children. On 20 April 2016 the decision in KO was upheld by the Court of Appeal: MM (Uganda) v Secretary of State for the Home Department [2016] EWCA 617, [2016] Imm AR 954 (Laws, Vos, Hamblen LJJ). The earlier cases Authoritative guidance as to the meaning of unduly harsh in this context was given by the Upper Tribunal (McCloskey J President and UT Judge Perkins) in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC), [2015] INLR 563, para 46, a decision given on 15 April 2015. They referred to the evaluative assessment required of the tribunal: By way of self direction, we are mindful that unduly harsh does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. Harsh in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb unduly raises an already elevated standard still higher. On the facts of that particular case, the Upper Tribunal held that the test was satisfied: Approached in this way, we have no hesitation in concluding that it would be unduly harsh for either of the two seven year old British citizen children concerned to be abruptly uprooted from their United Kingdom life setting and lifestyle and exiled to this struggling, impoverished and plague stricken west African state. No reasonable or right thinking person would consider this anything less that cruel. This view was based simply on the wording of the subsection, and did not apparently depend on any view of the relative severity of the particular offence. I do not understand the conclusion on the facts of that case to be controversial. The Secretary of States submission that section 117C(5) required the tribunal to balance, not merely the general interest in deportation of foreign criminals, but the relative severity of the particular offences, seems to have been first considered in detail by the Upper Tribunal in MAB noted above, although in the end the point was not determinative. The appellant had been sentenced to three years imprisonment for a number of sexual offences involving children and was to be deported to USA. The First tier Tribunal allowed his appeal, holding that it would be unduly harsh for his three children to have to live in the USA or to remain in the UK without him. This decision was reversed by the Upper Tribunal, which held following MK that it could not be established that the effect on the children was excessive, inordinate or severe, and that the only proper finding was that the effect on them was not unduly harsh (para 80). Again this view was reached without any consideration of the relative severity of the particular offences. However, the tribunal in MAB had earlier recorded a submission of Mr Richards, the Home Office Presenting Officer: Mr Richards submitted that even though deportation might have very harsh consequences, whether it was unduly harsh could only be determined by looking at the magnitude of the public interest furthered by the individuals deportation. He submitted that the more serious the crime the greater must be the consequences for them to be properly characterised unduly harsh. (para 50) At this time it seems to have been accepted by the Department that the issue of reasonableness under section 117B focussed only on the position of the child, but it was submitted that section 117C (and the equivalent paragraph 399) represented a change of approach. This submission was rejected: Mr Richards accepted the issue of whether it would be reasonable for a child to live in the deportees country or remain in the UK without the deportee did not involve an assessment of the public interest. We had also never understood it to require that. We do not consider that the replacement of reasonableness with unduly harsh had changed the approach to the Rules. Now, as then, the focus is on the impact upon the individual child (or partner) (para 72) The tribunal found some support for that approach in the use of the same expression, unduly harsh, in the context of asylum claims, where the possibility of internal relocation is in play, and where there is no balancing exercise but rather an evaluative exercise as to whether an individual cannot be expected to move and live within their own country because of the impact upon him or her. (para 73) Given that the decision in MAB was a fully reasoned judgment of a two judge Upper Tribunal, it is not clear why the Secretary of States representative felt it appropriate to argue for a different approach in KO, heard only three months later. (I will return to this point at the end of the judgment.) Nor is it clear from the report what if any submission was made about the relationship of sections 117B and 117C. However in KO Upper Tribunal Judge Southern disagreed with the approach of the tribunal in MAB. He thought that they had given insufficient weight to the need to give effect to different levels of criminality under section 117C(2). As he explained: One response to this difficulty might be thought to be as follows. As the rules themselves distinguish between levels of criminality by providing a different framework for those who have been sentenced to more than four years imprisonment, is that sufficient to accommodate the requirements of section 117C(2)? However, an example illustrates how that is not an adequate response. Imagine two persons, A and B, who are foreign criminals facing deportation. A has been sentenced to 12 months imprisonment for, say, making a fraudulent motor insurance claim. B has been sentenced 47 months imprisonment for a serious offence of possession [of] class A drugs with intent to supply, a category of offence that the Secretary of State considers to be particularly serious in the context of immigration control. If the approach advocated in MAB were correct there would be no basis upon which to distinguish between those two foreign criminals, despite the demand of section 117C(2) (para 15) The same emphasis on section 117C(2) was at the heart of the key passage of the judgment of Laws LJ in MM (Uganda) in holding that MAB was wrongly decided: 23. The context in these cases invites emphasis on two factors, (1) the public interest in the removal of foreign criminals and (2) the need for a proportionate assessment of any interference with article 8 rights. In my judgment, with respect, the approach of the Upper Tribunal in MAB ignores this combination of factors. The first of them, the public interest in the removal of foreign criminals, is expressly vouched by Parliament in section 117C(1). Section 117C(2) then provides (I repeat the provision for convenience): The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. 24. This steers the tribunals and the court towards a proportionate assessment of the criminals deportation in any given case. Accordingly the more pressing the public interest in his removal, the harder it will be to show that the effect on his child or partner will be unduly harsh. Any other approach in my judgment dislocates the unduly harsh provisions from their context. It would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation in the particular case. But in that case the term unduly is mistaken for excessive which imports a different idea. What is due or undue depends on all the circumstances, not merely the impact on the child or partner in the given case. In the present context relevant circumstances certainly include the criminals immigration and criminal history. He found no assistance in parallels with the use of the same term in the refugee law, since the asylum context of internal relocation issues was far removed from that of the present rules (para 25). He concluded that MAB was wrongly decided and that the expression unduly harsh in section 117C(5) and in the rules, requires regard to be had to all the circumstances including the criminal's immigration and criminal history (para 26). Laws LJs approach has the advantage of giving full weight to the emphasis on relative seriousness in section 117C(2). However, on closer examination of the language of the two exceptions, and of the relationship of the section with section 117B, as discussed above, I respectfully take a different view. Once one accepts, as the Department did at that stage (rightly in my view), that the issue of reasonableness under section 117B(6) is focussed on the position of the child, it would be odd to find a different approach in section 117C(5) at least without a much clearer indication of what is intended than one finds in section 117C(2). It is also difficult to reconcile the approach of Judge Southern or Laws LJ with the purpose of reducing the scope for judicial evaluation (see para 15 above). The examples given by Judge Southern illustrate the point. On his view, the tribunal is asked to decide whether consequences which are deemed unduly harsh for the son of an insurance fraudster may be acceptably harsh for the son of a drug dealer. Quite apart from the difficulty of reaching a rational judicial conclusion on such a question, it seems to me in direct conflict with the Zoumbas principle that the child should not be held responsible for the conduct of the parent. The decision in KO However, when one comes to the actual decision of Judge Southern in KO, it is not clear that his approach was materially different from that of the President in MK or indeed the tribunal in MAB. He adopted with one qualification the guidance in MAB as to the meaning of unduly harsh test: The consequences for an individual will be harsh if they are severe or bleak and they will be unduly so if they are inordinately or excessively harsh taking into account all of the circumstances of the individual Although I would add, of course, that all of the circumstances includes the criminal history of the person facing deportation. (para 26) Applying that test he said: 43. There is undoubtedly a close relationship between this father and his children, as one would expect in any family living together as does this one. The preserved finding of fact is that, although it would not be unduly harsh for the four younger children to move to Nigeria, the reality of the situation is that they will remain here and, as the family relationships cannot be maintained by modern means of communication, there will be a complete fracture of these family relationships. The claimant is not authorised to work and so has been unable to provide financial support for his family but his role within the household has meant that his wife has been able to work, which she would find hard or impossible if she had to care on a daily basis for the children without her husband's assistance. Thus it is said that if the claimant is removed, the main household income will be lost and the children would be subject to economic disadvantage. But, again, that is not an experience that can, in my judgment, be categorised as severe or bleak or excessively harsh as, like any other person lawfully settled in the United Kingdom, the claimant's wife and family will have access to welfare benefits should they be needed. 44. Nor do I have any difficulty in accepting the submission that the children, who have enjoyed a close and loving relationship with their father, will find his absence distressing and difficult to accept. But it is hard to see how that would be any different from any disruption of a genuine and subsisting parental relationship arising from deportation. As was observed by Sedley LJ in AD Lee v Secretary of State for the Home Department [2011] EWCA Civ 248: Judge Southern went on to consider how he would have decided the case applying his understanding of the approach in MAB. He described the difference as stark: The tragic consequence is that this family, short lived as it has been, would be broken up for ever, because of the appellants bad behaviour. That is what deportation does. This family relationship was not, of course, short lived but the point is the same. Nothing out of the ordinary has been identified to demonstrate that in the case of this particular family, when balanced against the powerful public interest considerations in play, although the children will find separation from their father to be harsh, it will not be, in all of the circumstances, unduly harsh for them each to remain in the United Kingdom after their father is removed to Nigeria. (paras 43 44, emphasis added) It will be recalled that the MAB approach has been summarised as follows: The phrase unduly harsh in paragraph 399 of the Rules (and section 117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned. In this appeal if there is to be no balancing exercise requiring the public interest to be weighed and if the focus is solely upon an evaluation of the consequences and impact upon the claimants children, it is clear that the application of paragraph 399(a) can deliver only one answer, that being that it would be unduly harsh for the claimant's children to remain in the United Kingdom without their father, given that there is a close parental relationship which cannot be continued should their father be deported. (para 45) Miss Giovanetti for the Secretary of State takes issue with that alternative reasoning, which she criticises as applying too low a standard. I agree. The alternative seems to me to treat unduly harsh as meaning no more than undesirable. Contrary to the stated intention it does not in fact give effect to the much stronger emphasis of the words unduly harsh as approved and applied in both MK and MAB. Conversely, I find the main reasoning difficult to fault. It is notable that, in that passage, contrary to the thrust of the earlier discussion, no account is taken of the seriousness of the particular offences, or of the particular criminal history of the father. On its face that approach seems no different from that which I have accepted as correct in the earlier discussion. It is also consistent with that in the end adopted by the Upper Tribunal on the facts of MAB and by contrast with its response to the much more severe situation considered in MK. For these reasons I would dismiss the appeal in KO. The other cases Against that background I can deal more shortly with the other cases. IT is also a foreign criminal by reason of his conviction on four counts of supplying class A drugs, for which he was sentenced to imprisonment for 42 months. A deportation order was made against him on 29 October 2009, an appeal against that decision was dismissed and IT was deported to Jamaica on 21 July 2010, where he continues to reside. He has a wife (the sponsor) and child (R, born 30 September 2002) in the UK, who are both British nationals. IT applied to revoke his deportation order on 23 September 2013. That application was refused on 9 May 2014. In a decision given on 5 September 2014, the First tier Tribunal allowed ITs appeal, holding that the consequences were unduly harsh for the child R. It acknowledged the seriousness of the appellants offences, and that the more serious the offence the greater the public interest in deportation (para 33). However it noted that R had special educational needs and medical problems associated with microcephaly, and that he was about to start secondary school and was on the brink of puberty. The consequences were not unduly harsh for the sponsor, who could relocate to Jamaica. In Rs case however the threshold was crossed. It found that the parental relationship between IT and R was subsisting and genuine, adding: It is claimed that [R] cannot join the appellant in Jamaica because [R] has a flying phobia. There is no objective evidence of that. Following Sanade (British Children Zambrano Dereci) [2012] UKUT 48 (IAC); [2012] Imm AR 597, however, we find that [R] is a British citizen and it is not possible to expect him to relocate outside the European Union (para 30) The tribunal concluded: 33. [R] has reached an important stage in his life where his particular needs are likely to increase. The Sponsor cannot reasonably be expected to cope alone. 34. The consequences of deportation for the appellant are harsh: he is separated from his wife and child and step children but we find that that is the foreseeable consequence of his serious criminal behaviour. All other things being equal, those consequences could be mitigated by the Sponsor and [R] joining the appellant in Jamaica and living with him there, alternatively by visits and regular contact by telephone and other means. It is clear from the decision of the Upper Tribunal in Sanade however that as the Sponsor and [R] are British citizens and therefore citizens of the European Union, it is not possible to require them to relocate outside the European Union. Moreover, although the Sponsor has visited the appellant three times in the last four years [R] has not done so because of a phobia of flying. As a result [R] has not seen his father for over four years and has no prospect of doing so for the remainder of his childhood while the deportation order remains in effect. Given [R]s condition and special educational needs, we find that the consequences of not revoking the deportation order are unduly harsh and we allow the appeal. On 12 January 2015 the Upper Tribunal dismissed the Secretary of States appeal. It confirmed the relevance of the decision in Sanade (para 18). It accepted that the tribunal had found no evidence to support the alleged phobia of flying but saw this as one aspect of the determination, which did not have any material effect on the overall outcome (para 22). The Court of Appeal [2017] 1 WLR 240 took a different view, in a judgment given by Arden LJ. Although this was a case about revocation of a previous deportation, rather than deportation as such, she noted that it was effectively common ground that section 117C applied so that the deportation order could only be revoked if its retention is determined to be unduly harsh; the dispute was as to the weight to be given in that determination to the public interest in deporting foreign criminals who have committed serious offences (para 2). By that time MM (Uganda) had been decided. Following the approach in that case, she said: the public interest must be brought into account. Therefore, the court must know what that public interest is in any particular circumstance in order to give appropriate weight to it (para 51). She added: 54. Moreover, it is clear from section 117C(2) that the nature of the offending is also to be taken into account. The tribunal will have access to the circumstances of the offence and to the length of the sentence and so on. 55. Subsection (1) and (2) of section 117C together make manifest the strength of the public interest. In order to displace that public interest, the harshness brought about by the continuation of the deportation order must be undue, ie it must be sufficient to outweigh that strong public interest. Inevitably, therefore, there will have to be very compelling reasons She found little evidence that the tribunal had given appropriate weight to the public interest, for example by considering alternative ways in which Rs care needs could be met, or whether his phobia about flying ruled out other forms of contact, for example in some other part of Europe which he could access by car or train. She concluded: 62. I conclude that the FTT did not demonstrate that they had given appropriate weight to the public interest. If the FTT indeed considered that the circumstances were very compelling, it was for them to demonstrate this in the reasons they gave . 64. The balancing exercise in this case has to be performed again. The FTT did not seek to analyse whether there were very compelling reasons why the deportation order should be revoked Mr Drabble for IT submits that the courts reasoning is open to the same criticisms as the decision in MM (Uganda) on which it relied. In any event he criticises the courts introduction of a compelling reasons test which is not found in the relevant sub section. I agree that for that reason at least the Court of Appeals reasoning cannot stand. The FTT could not be criticised for not applying a test which was not in the relevant provision. For the reasons I have given, I also think it was wrong to proceed on the basis that section 117C(2) required the nature of the offending to be taken into account. It is to be noted that the decisions of both tribunals were made before the guidance given in MK and later cases as to the high hurdle set by the unduly harsh test. It may be that with the benefit of that guidance they would have assessed the facts in a different way. However, I do not consider that the decisions can be challenged for that reason alone. If the tribunals applied the correct test, and, if that may have resulted in an arguably generous conclusion, it does not mean that it was erroneous in law (see R (MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10; [2017] 1 WLR 771, para 107). The Court of Appeals suggestion that they should have considered alternatives ways of meeting, perhaps in Europe, does not seem to have been part of the Departments case before the tribunal. However, Miss Giovanetti submits that the tribunal erred in proceeding on the basis that R, as a British citizen, could not be expected to relocate outside the UK. In so far as a concession to that effect was made in Sanade (British children Zambrano Dereci) [2012] UKUT 48, [2012] Imm AR 597, it was in error, as had since been confirmed by the Court of Appeal (Secretary of State for the Home Department v VM (Jamaica) [2017] EWCA Civ 255, para 64). I agree that on this point the First tier Tribunal erred in law (although there appears to be some uncertainty about the Departments current practice on this issue). There is also a significant inconsistency in the tribunals reasoning in the other part of its concluding paragraph. Having earlier accepted that the alleged phobia of flying was unsupported by evidence, it went on to treat it as one of the reasons for allowing the appeal. I cannot agree with the Upper Tribunal that this point was immaterial. For these reasons I would dismiss the appeal and confirm the order of the Court of Appeal for remittal to the Upper Tribunal. NS and AR both entered the UK as students, on 19 February 2004 and 4 February 2003 respectively. NSs wife and elder child entered as dependants of NS in December 2004. NS has a second child, born in the UK in 2008. ARs wife and child entered as his dependants in February 2004. In October 2008, NS and AR made separate applications for leave to remain as Tier 1 (post study worker) migrants. In early 2009 the Secretary of State refused these applications on the basis that both NS and AR were involved in a scam by which they (and numerous others) falsely claimed to have successfully completed postgraduate courses at an institution called Cambridge College of Learning (CCL). NS and AR both appealed against the Secretary of States decisions. After some procedural delays, their appeals were ultimately joined, and came before UT Judge Perkins. In a determination issued on 5 November 2014, he dismissed the appeals, finding that NS and AR had deliberately submitted false documents to support applications to extend their stays, and by so doing were acquiescing in a cynical plot to undermine the Rules by issuing meaningless certificates (para 179). He acknowledged however that the difficulty is the children (para 182). It is unnecessary to set out in full the extended passage in which he carefully considered their position against the principles set out in section 117B. He started by referring to section 117B(6), of which he said: I remind myself that this is a NOT a deportation case and so the public interest does not require the persons removal where (a) the person has a genuine and subsisting parental relationship with a qualifying child (as is clearly the case here) and (b) it would not be reasonable to expect the child to leave the United Kingdom (see section 117B(6)). (para 183) He also referred to section 117B(5) requiring that little weight should be given to a private life established by a person at a time when the persons immigration status is precarious: I am satisfied that their status became precarious [at latest] when their applications for further leave were refused in 2009 so much of the private life relied upon attracts little weight. (para 186) He referred in detail to the evidence of the childrens experience of this country and their likelihood of being able to adapt to Sri Lanka. He thought that the parents would do well for the children in Sri Lanka just as they have in the United Kingdom, but added: He concluded: Nevertheless the children will lose much. They have no knowledge of life outside the United Kingdom and have done well in the United Kingdom. If they remained they could be expected [to] take full advantage of the education system and removing them will unsettle them. I have no difficulty in concluding that the best interests of the children require that they remain in the United Kingdom with their parents where they are settled. That, from their point of view, would be an ideal result. (paras 193 194) I do remind myself that one of the children, particularly, has been in the United Kingdom for more than ten years and that this represents the greater part of a young life by someone who can be expected to be establishing a private and family life outside the home. I remind myself, too, that none of the children here have any experience of life outside the United Kingdom and they are happy and settled and doing well. The fact is their parents have no right to remain unless removal would contravene their human rights. I remind myself of my findings concerning the need to maintain immigration control by removing the first, second and third appellants. Given their behaviour I would consider it outrageous for them to be permitted to remain in the United Kingdom. They must go and in all the circumstances I find that the other appellants must go with them. (paras 198 199) Mr Knafler supports the other appellants in their challenge to the reasoning of MM (Uganda). He says that it is even clearer in the context of section 117B that parental misconduct is to be disregarded. I accept that UTJ Perkins final conclusion is arguably open to the interpretation that the outrageousness of the parents conduct was somehow relevant to the conclusion under section 117B(6). However, read in its full context I do not think he erred in that respect. He had correctly directed himself as to the wording of the subsection. The parents conduct was relevant in that it meant that they had to leave the country. As I have explained (para I would dismiss this appeal. 18 above), it was in that context that it had to be considered whether it was reasonable for the children to leave with them. Their best interests would have been for the whole family to remain here. But in a context where the parents had to leave, the natural expectation would be that the children would go with them, and there was nothing in the evidence reviewed by the judge to suggest that that would be other than reasonable. Pereira (AP) AP is now 19 years of age. He first came to the UK on 6 August 2006, with his parents, and as the dependant of his father (Mr P) who had been granted leave to enter as a student, and obtained further grants of leave, up until 15 August 2012. On 15 August 2012, Mr P applied for a Tier 1 (Entrepreneur) visa. His leave, and that of his family including AP, were extended whilst that application was determined and the refusal unsuccessfully appealed. On 5 November 2013, AP applied for leave to remain in reliance upon paragraph 276ADE(1)(iv) of the Rules, since he had by that time been living continuously in the UK for seven years. The Secretary of State refused this application on 18 March 2014. APs appeal against this decision initially succeeded before the First tier Tribunal, but on 19 June 2015 the Upper Tribunal set aside this determination and, re determined and then dismissed APs appeal. It held that it was reasonable for AP to accompany his parents to their country of origin at what was a natural break in his education, and that the decision was proportionate. APs appeal was one of the cases before the Court of Appeal in MA (Pakistan) [2016] 1 WLR 5093. The Court of Appeal allowed his appeal on the basis, not of an error under the rule, but that the tribunal judge had erred in his approach to proportionality by failing to identify APs best interests or recognise them as a primary consideration (para 116 per Elias LJ). It ordered that the case should be remitted to the Upper Tribunal for a fresh determination. Mr Gill argues that, applying the correct approach to paragraph 276ADE(1)(iv), APs appeal should have succeeded under that rule also. The Secretary of State points out that, since AP is now aged 19 and has spent more than half of his life living continuously in the UK, he is in principle qualified for leave to remain under paragraph 276ADE(1)(v) of the Rules. It seems to me unnecessary to say more about this case, which is to be remitted in any event to the tribunal. The issues before the tribunal were not limited by the order. If it is not disposed of by agreement as suggested by the Secretary of State, it will fall to be considered in accordance with the law as stated in this judgment including the correct approach to para 276ADE(1)(iv). I would therefore simply dismiss the appeal, and confirm the order of the Court of Appeal remitting the case to the tribunal. Concluding remarks I end with a brief comment on procedure. It has taken almost four years for these cases to reach the Supreme Court. In the meantime there have been significant differences of approach and conflicting decisions at each level. The view of the Department itself, at least of the effect of section 117B(6), seems to have changed over time. I have noted the continuing debate before the Upper Tribunal and the Court of Appeal. Unfortunately these differences are far from surprising given the unhappy drafting of the statutory provisions. But it was clearly desirable that a definitive interpretation could be settled as quickly as possible. At the Upper Tribunal level Judge Southern was not strictly bound by the previous decision in MAB, although judicial comity would normally lead to it being treated as persuasive unless there were clear reasons for taking a different view. There is provision under the relevant Practice Directions for starred decisions to be treated as authoritative (Para 12.1 of the Practice Directions for the Immigration and Asylum Chamber of the First tier Tribunal and the Upper Tribunal); and see Nationality, Immigration, and Asylum Act 2002, section 107(3)) (as inserted by para 22 of Sch 2 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and as substituted by para 28 of Sch 1 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 (SI 2010/21)) . It may be that the uncertainty at that level could have been resolved at an early stage by selecting a suitable case for such treatment. This of course would not resolve the problem of disagreements at Court of Appeal level. However, I note that there is now provision in suitable cases for leapfrog of appeals from the Upper Tribunal to the Supreme Court. This was introduced by section 64 of the Criminal Justice and Courts Act 2015, by way of insertion of new section 14A and B into the Tribunal, Courts and Enforcement Act 2007. The procedure requires a certificate from the Upper Tribunal, one ground being that a point of law is involved of general public importance relating wholly or mainly to the construction of a statutory provision, which has been fully argued and considered in the Upper Tribunal (section 14A(4)(a)). It is then for the Supreme Court to decide whether it is expedient to grant permission (section 14B(3)). Clearly it is a procedure which should be used with care, since it will normally be more satisfactory for these issues to be resolved at Court of Appeal level, and in any event for the Supreme Court to have the benefit of its views. However, these appeals raised a relatively narrow point of construction of a new set of provisions intended to clarify a contentious area of law applicable to many cases before the Secretary of State and the tribunals. I say no more than that its use could properly be considered in future cases raising comparable issues, and calling for speedy resolution in the public interest.	Part 5A of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) is headed Article 8 ECHR: Public Interest Considerations. Section 117A applies where a court or tribunal needs to determine whether an immigration decision breaches a persons right to respect for private and family life. In considering the public interest question whether an interference is justified under Article 8(2) the court must have regard to the considerations listed in section 117B and, in cases concerning the deportation of foreign criminals, to the considerations in section 117C. A foreign criminal is a person who is not a British citizen and who is convicted of an offence in the UK that attracted a sentence of at least 12 months, caused serious harm, or is a persistent offender. Section 117B includes a provision that where a person is not liable to deportation as a foreign criminal, the public interest does not require the persons removal if that person has a genuine and subsisting relationship with a qualifying child and it would not be reasonable to expect the child to leave the UK. A qualifying child is a person under 18 and is a British citizen or has lived in the UK for a continuous period of seven years or more. Section 117C provides that deportation of foreign criminals is in the public interest but, if sentenced to less than four years imprisonment, there is an exception where there is a genuine and subsisting parental relationship with a qualifying child, and the effect of deporting the person would be unduly harsh on the child. Three appellants (KO, IT and NS) argue that when determining whether it is reasonable to expect a child to leave the UK, or whether the effect of deportation of a person would be unduly harsh on their child, the tribunal is only concerned with the position of the child and not with the conduct of the parents. The respondent argued that both provisions require a balancing exercise, weighing the impact on the child against the wider public interest. The fourth appeal (Pereira, regarding AP) concerns immigration rule 276ADE(1)(iv), which provides that leave to remain on the grounds of private life should be granted to an applicant who is under 18, has lived continuously in the UK for seven years, and whom it would not be reasonable to expect to leave the UK. APs application was refused on the basis that it was reasonable for him to accompany his parents to their country of origin. The Supreme Court unanimously dismisses the appeals. Lord Carnwath gives the sole judgment, with which the other Justices agree. General approach The purpose of Part 5A of the 2002 Act is to produce a straightforward set of rules and to reduce the need for discretionary judgement when taking account of public interest or other factors not directly reflected in the wording of the statute. It also presumed that those rules are intended to be consistent with the general principles relating to the best interests of children [15]. The specific provisions Rule 276ADE(1)(iv) contains no requirement to consider the criminality or misconduct of a parent as a balancing factor and such a requirement cannot be read in by implication [16]. Section 117B of the 2002 Act does not include criminality as a consideration [17]. However, it is inevitably relevant to consider where the parents, apart from the relevant provision, are expected to be, as it will normally be reasonable for the child to be with them. To that extent the record of the parents may become indirectly material if it leads to them having to leave the UK. It is only if it would not be reasonable for the child to leave with them that the provision may give the parents a right to remain [18]. In section 117C of the 2002 Act, unduly harsh introduces a higher hurdle than that of reasonableness under section 117B. Unduly goes beyond a level of harshness that may be acceptable or justifiable in the relevant context. It does not require a balancing of relative levels of severity of the parents offence, other than is inherent in the distinction drawn by the section itself regarding length of sentence, and it does not require very compelling reasons [23]. The cases KO and IT concerned section 117C of the 2002 Act. In KO the Upper Tribunal judge was wrong to decide that he should take account of the criminality of the parent in applying the unduly harsh test [26, 32]. However, this did not affect the correctness of his conclusion, as his overall approach seemed no different to that which the Supreme Court accepts as correct [33 36]. In IT the Court of Appeal was wrong to introduce a compelling reasons test and to proceed on the basis that the assessment of harshness required the nature of offending to be considered [42]. However, the First tier Tribunal had erred in proceeding on the basis, unsupported by the evidence, that ITs child, as a British citizen, could not be expected to relocate outside the UK [44]. The Supreme Court confirms the order of the Court of Appeal for remittal to the Upper Tribunal [45]. NS concerned section 117B of the 2002 Act. The parents had falsely claimed to have completed a postgraduate course in order to obtain leave to remain [46]. The Upper Tribunal judges conclusion, read in its full context, did not involve any error of approach. He was entitled to regard the parents conduct as relevant to the extent that it meant they had to leave the country, and to consider the position of the child on that basis [51]. Pereira concerned rule 276ADE(1)(iv). The Court of Appeal ordered that the case should be remitted to the Upper Tribunal for a fresh determination and it did not limit the issues before the tribunal. As AP is now aged 19 he is in principle qualified for leave to remain under rule 276ADE(1)(v) and so the appeal may be disposed of by agreement. If not, it will fall to be considered in accordance with the law stated in this judgment. No further order is required [54 56].
These appeals raise several matters which are important to the international market in telecommunications. The first (in all three appeals) is whether a court in the United Kingdom (UK) has jurisdiction and may properly exercise a power, without the agreement of both parties, to (a) grant an injunction to restrain the infringement of a UK patent where the patented invention is an essential component in an international standard of telecommunications equipment, which is marketed, sold and used worldwide, unless the implementer of the patented invention enters into a global licence of a multinational patent portfolio, and (b) determine royalty rates and other disputed terms of such a global licence. Secondly, there is a dispute (in the Conversant appeals: para 17 below) whether England is the appropriate forum to determine those matters. Thirdly, (in the Unwired appeal: para 16 below) there is a question as to the nature of the requirement that the licence, which the owner of a Standard Essential Patent (SEP) must offer to an implementer, be non discriminatory. Fourthly, (again in the Unwired appeal) there is a question whether the court should refuse to grant the owner of such a SEP an injunction on the ground that it has breached EU competition law because it has not complied with the guidance given in the judgment of the Court of Justice of the European Union (CJEU) in Huawei v ZTE (Case C 170/13) EU:C:2015:477; [2015] 5 CMLR 14; [2016] RPC 4. Fifthly, the appeals raise a more general question as to the circumstances in which it is appropriate for an English court to grant a prohibitory injunction or to award damages instead. Each member of the panel has contributed to this judgment which addresses those matters. Patents: the legal background The starting point is the patent bargain which promotes innovation and justifies the monopoly which a patent gives an inventor. The patent bargain is this: an inventor receives the reward of a time limited monopoly of the industrial use of its invention in return for disclosing the invention and dedicating it to the public for use after the monopoly has expired. See for example Actavis Group PTC EHF v ICOS Corpn [2019] UKSC 15; [2019] Bus LR 1318, para 53. The patents conferring such monopoly rights are national in scope and are usually conferred by national governments. Legal questions as to their validity and their infringement are determined by the national courts of the state which has conferred the patent right or, in the case of a European patent, in a designated state. An inventor has to protect its invention by applying for patents to the national authorities of each of those states in which it seeks to obtain a monopoly (unless it obtains a patent from the European Patent Office under the European Patent Convention which creates a nationally enforceable patent within each designated state). It is not unusual for a national patent for an invention to be upheld by the courts of one state and another national patent for what in substance is the same invention to be invalidated by the courts of another state. Within Europe, the same European patent can on occasion be upheld by the courts in one signatory state but be invalidated in another. Much may depend on the differing evidence led and arguments advanced in national legal proceedings. In English law, once a patent owner has established that a patent is valid and has been infringed, it is prima facie entitled to prevent further infringement of its property rights by injunction. In Scots law an interdict provides a similar remedy. We discuss this matter (the fifth issue) in more detail in paras 159 169 below. This prima facie entitlement and the patent owners entitlement in other jurisdictions to obtain similar prohibitory remedies form part of the backdrop to the contractual arrangements which lie at the centre of these appeals. To promote the development of global markets for telecommunications products, including mobile phones, the infrastructure equipment and devices produced by competing manufacturers need to communicate and inter operate with one another and the phones need to be available for use internationally by consumers who travel with their phones from one jurisdiction to another. Two attributes of patent law have militated against this development. First, the prima facie entitlement of the owner of a patent to prohibit by injunction the use of its invention within a national jurisdiction has the potential to disrupt a global market for equipment using that invention. Secondly, the national nature of patent monopolies, which forces the patent owner seeking to protect its monopoly to raise proceedings in individual national courts, makes it very difficult, if not wholly impracticable, for a patent owner to protect an invention which is used in equipment manufactured in another country, sold in many countries and used by consumers globally. The first attribute may give owners of patents included in an agreed standard excessive power to disrupt an otherwise global market to the prejudice of manufacturers of equipment using such inventions (implementers) and to exact excessive royalties for the use of their inventions. The second attribute may enable implementers to avoid paying an inventor a proper price for the use of its invention internationally. There was therefore potential for the alternative evils of the abuse by a patent owner of its monopoly rights and of the denial by implementers of the patent owners legitimate rights. Organisations involved in the telecommunications industry have sought to address those evils by establishing Standard Setting Organisations (SSOs) to which they bring their most advanced technologies, promoting standards using those technologies, and putting in place contractual arrangements to which we now turn. SSOs aim to promote both technological innovation, which is made available to the public, and competition between manufacturers, and thereby to benefit consumers through more convenient products and services, interoperability, lower product costs and increased price competition. Standard Setting Organisations Telecommunications SSOs have been established in China, Europe, India, Japan (two), South Korea and the United States. The first telecommunications SSO was the European Telecommunications Standards Institute (ETSI), which is a French association formed in 1988 and which has adopted an intellectual property rights (IPR) policy and contractual framework governed by French law. ETSI is recognised as the SSO in the European Union telecommunications sector. It has over 800 members from 66 countries across five continents. Its purposes, as set out in article 2 of its Statutes (5 April 2017), include the production of the technical standards which are necessary to achieve a large unified European market for telecommunications [etc] and to contribute to world wide standardization in that field. SSOs bring together industry participants to evaluate technologies for inclusion in a new standard. ETSI is the relevant SSO as the patents which are the subject of these appeals are the UK designations of European patents (UK patents) which have been declared to ETSI as essential. The relevant standards in these appeals are telecommunications standards for 2G (GSM), 3G (UMTS) and 4G (LTE) telecommunications equipment and devices. The seven SSOs have cooperated to form the 3rd Generation Platform Partnership (3GPP) to develop and oversee those standards. ETSI through its secretariat manages the process by which its members contribute to the development of international standards. Participants in SSOs have an incentive to put forward their technology as a component of a proposed standard as inclusion in the standard ensures a market for the technology. Alternative technologies which are not included in a standard may well disappear from the market. Participants also accept obligations to declare IPRs which might potentially have an effect on the implementation of standards developed by the SSOs. Although it is necessary to examine the arrangements in more detail below, it may be useful to give an overview of how ETSI deals with Essential IPRs, a term which we equate with SEPs, when it devises those standards. Owners of patented inventions which might be used in a telecommunications industry standard, which is under preparation, declare their patents to ETSI. When considering whether to include a technology in a standard, ETSI requires the patent owner to enter into an irrevocable undertaking or contract with it to allow implementers of the standard to obtain a licence to use the relevant patented technology on fair, reasonable and non discriminatory (FRAND) terms. If the declared patented invention is included in a standard and it is not possible to make, sell, use or operate etc equipment or methods which comply with the standard without infringing that IPR, it is treated as an Essential IPR. The irrevocable undertaking to give a licence on FRAND terms to implementers applies to any such Essential IPRs. But ETSI is not under an obligation to check whether patents declared to be essential are in fact essential. Nor does ETSI make any binding judgment on the validity or status of any such patents: ETSI Guide on IPRs (19 September 2013) (the Guidance) para 3.2.1. Those are matters for the relevant national courts. ETSI leaves it to the relevant parties, if they so wish, to resolve those questions by court proceedings or alternative dispute resolution: the Guidance para 4.3. The purpose of the ETSI IPR Policy is, first, to reduce the risk that technology used in a standard is not available to implementers through a patent owners assertion of its exclusive proprietary interest in the SEPs. It achieves this by requiring the SEP owner to give the undertaking to license the technology on FRAND terms. Secondly, its purpose is to enable SEP owners to be fairly rewarded for the use of their SEPs in the implementation of the standards. Achieving a fair balance between the interests of implementers and owners of SEPs is a central aim of the ETSI contractual arrangements. The ETSI IPR Policy The ETSI IPR Policy (the IPR Policy) is a contractual document, governed by French law. It binds the members of ETSI and their affiliates. It speaks (clause 15(6)) of patents which are inevitably infringed by the sale, lease, use, operation etc of components which comply with a standard as Essential IPR. By requiring an IPR holder whose invention appears to be an Essential IPR to give an irrevocable undertaking to grant a licence of the IPR on FRAND terms, it creates a stipulation pour autrui, in other words an obligation which a third party implementer can enforce against the IPR holder. The IPR Policy falls to be construed, like other contracts in French law, by reference to the language used in the relevant contractual clauses of the contract and also by having regard to the context. In this case, that context is both the external context and the internal context of the IPR Policy document itself, such as the policy objectives declared in the document. The external context includes (i) the Guidance (above) which ETSI has produced on the operation of the IPR Policy, (ii) ETSIs statutes (above), (iii) the globalised market which ETSI and other SSOs were and are seeking to promote, which we have discussed in para 4 above, and (iv) the fact that ETSI is a body comprising experts and practitioners in the telecommunications industry who would be expected to have a good knowledge of the territorial nature of national patents, the remedies available to patent owners against infringement of their patents, the need to modify by contract the application of patent law to promote the development of a globalised market in telecommunications products, and the practice of the industry in negotiating patent licensing agreements voluntarily. The policy statements which provide the internal context include the objectives set out in clause 3 of the IPR Policy. They include the statement in clause 3.1 that the IPR Policy: seeks to reduce the risk to ETSI, MEMBERS, and others applying ETSI STANDARDS and TECHNICAL SPECIFICATIONS, that investment in the preparation, adoption and application of STANDARDS could be wasted as a result of an ESSENTIAL IPR for a STANDARD or TECHNICAL SPECIFICATION being unavailable. That statement clearly reveals a policy of preventing the owner of an Essential IPR from holding up the implementation of the standard. But that policy is to be balanced by the next sentence of clause 3.1 which speaks of seeking a balance, when achieving that objective, between the needs of standardization for public use in the field of telecommunications and the rights of the owners of IPRs. The importance of protecting the rights of the owners of IPRs is declared in the second policy objective (clause 3.2) in these terms: IPR holders whether members of ETSI and their AFFILIATES or third parties, should be adequately and fairly rewarded for the use of their IPRs in the implementation of STANDARDS and TECHNICAL SPECIFICATIONS. This objective seeks to address the mischief of holding out by which implementers, in the period during which the IPR Policy requires SEP owners not to enforce their patent rights by seeking injunctive relief, in the expectation that licence terms will be negotiated and agreed, might knowingly infringe the owners Essential IPRs by using the inventions in products which meet the standard while failing to agree a licence for their use on FRAND terms, including fair, reasonable and non discriminatory royalties for their use. In circumstances where it may well be difficult for the SEP owner to enforce its rights after the event, implementers might use their economic strength to avoid paying anything to the owner. They may unduly drag out the process of licence negotiation and thereby put the owner to additional cost and effectively force the owner to accept a lower royalty rate than is fair. Having looked at context, we turn to the operative clauses of the IPR Policy. A member of ETSI is obliged to use its reasonable endeavours to inform ETSI in a timely manner of Essential IPRs during the development of a standard or technical specification. If a member submits a technical proposal for a standard or technical specification it is obliged to inform ETSI of its IPRs which might be essential (clause 4.1). Clause 4.3 confirms that this obligation of disclosure applies to all existing and future members of a patent family and deems the obligation in respect of them to be fulfilled if an ETSI member has provided details of just one member of the patent family in a timely manner, while also allowing it voluntarily to provide information to ETSI about other members of that family. A patent family is defined as all the documents having at least one priority in common, including the priority document(s) themselves and documents in this context means patents, utility models, and applications therefor (clause 15(13)). The patent family thus extends to patents relating to the same invention applied for and obtained in several jurisdictions. It shows an intention for the arrangement to apply internationally. This is important because the undertaking to grant a licence under clause 6, to which we now turn, extends to all present and future Essential IPRs in that patent family. The key to the IPR Policy is clause 6, which provides the legal basis on which an owner of an Essential IPR gives an irrevocable undertaking to grant a licence and thereby protects both ETSI and implementers against holding up. Clause 6.1 provides so far as relevant: When an ESSENTIAL IPR relating to a particular STANDARD or TECHNICAL SPECIFICATION is brought to the attention of ETSI, the Director General of ETSI shall immediately request the owner to give within three months an irrevocable undertaking in writing that it is prepared to grant irrevocable licences on fair, reasonable and non discriminatory (FRAND) terms and conditions under such IPR It provides that the licences must at least cover the manufacture of equipment, the sale, lease or other disposal of equipment so manufactured, and the repair, use or operation of such equipment. FRAND licensing undertakings made pursuant to clause 6 are intended to bind all successors in interest in respect of a SEP, and upon transfer of a SEP the SEP owner is required to take steps to ensure that this is achieved (clause 6.1bis). The undertaking made in respect of a specified member of a patent family is applied to all existing and future Essential IPRs of that patent family unless specified IPRs are excluded in writing when the undertaking is made (clause 6.2). It is envisaged in the IPR Policy that this process will usually take place while ETSI is working to create a standard because clause 6.3 provides that, if the IPR owner does not grant the requested undertaking, relevant office bearers in ETSI will decide whether to suspend work on the relevant parts of the standard or technical specification until the matter is resolved, or to submit any relevant standard or technical specification for adoption. Similarly, if, before a standard or technical specification is published, an IPR owner is not prepared to license an IPR, clause 8.1 provides for the adoption of a viable alternative technology for the standard or technical specification if such a technology exists. If such technology does not exist, clause 8.1 provides an option for work on the standard or technical specification to cease. If the refusal to grant a licence occurs after ETSI has published a standard or a technical specification, clause 8.2 provides the option of modifying the standard so that the relevant IPR is no longer essential. Clause 6bis instructs members of ETSI to use one of the declaration forms annexed to the Policy. So far as relevant, the licensing declaration is an irrevocable declaration by the declarant and its affiliated legal entities that, to the extent that disclosed IPRs are or become and remain Essential IPRs, they (a) are prepared to grant irrevocable licences in accordance with clause 6.1, and (b) will comply with clause 6.1bis. It appears from this brief review of the IPR Policy in its context that the following conclusions may be reached. First, the contractual modifications to the general law of patents are designed to achieve a fair balance between the interests of SEP owners and implementers, by giving implementers access to the technology protected by SEPs and by giving the SEP owners fair rewards through the licence for the use of their monopoly rights. Secondly, the SEP owners undertaking, which the implementer can enforce, to grant a licence to an implementer on FRAND terms is a contractual derogation from a SEP owners right under the general law to obtain an injunction to prevent infringement of its patent. Thirdly, the obtaining of undertakings from SEP owners will often occur at a time when the relevant standard is being devised and before anyone may know (a) whether the patent in question is in fact essential, or may become essential as the standard is developed, in the sense that it would be impossible to implement the standard without making use of the patent and (b) whether the patent itself is valid. Fourthly, the only way in which an implementer can avoid infringing a SEP when implementing a standard and thereby exposing itself to the legal remedies available to the SEP owner under the general law of the jurisdiction governing the relevant patent rights is to request a licence from the SEP owner, by enforcing that contractual obligation on the SEP owner. Fifthly, subject only to an express reservation entered pursuant to clause 6.2, the undertaking, which the SEP owner gives on its own behalf and for its affiliates, extends to patents in the same patent family as the declared SEP, giving the implementer the right to obtain a licence for the technology covering several jurisdictions. Finally, the IPR Policy envisages that the SEP owner and the implementer will negotiate a licence on FRAND terms. It gives those parties the responsibility to resolve any disputes as to the validity of particular patents by agreement or by recourse to national courts for determination. Industry practice in negotiating licensing agreements The parties do not dispute that SEP owners, which have a large portfolio of patents covering many countries, and implementers, which market their products in many countries, would as a matter of practice voluntarily negotiate worldwide licences, or at least licences from which a given territory is carved out while the rest of the world is licensed. Implementers in the telecommunications industry are often also owners of many SEPs and negotiate cross licences with other implementers. As Birss J explained in his judgment at first instance ([2017] EWHC 2988 (Pat); [2017] RPC 19, para 544), no rational business would seek to license products country by country if it could be avoided. This is, as Birss J said, in part because of the effort required to negotiate and agree so many different licences and thereafter to keep track of so many different royalty calculations and payments. It is also, as he recognised, because businesses and consumers will move mobile handsets across borders and an implementer would want to be able to bind the SEP owner into allowing the entry of otherwise unlicensed handsets into the jurisdictions in which the SEP owner had a valid SEP or valid SEPs. The Court of Appeal in its judgment in the Unwired appeal ([2018] EWCA Civ 2344; [2018] RPC 20, paras 55 56) also referred to the prohibitive cost of litigating the validity and essentiality of patents territory by territory. These obvious considerations must have been part of the factual background of which the expert framers of the IPR Policy were aware when they devised that Policy. The parties to the appeals In this judgment the court addresses three appeals. In the first, the appellants are Huawei Technologies Co Ltd (Huawei (China)), a Chinese company which develops telecommunications technology and also implements the technology of others, and Huawei Technologies (UK) Co Ltd (Huawei (UK)), a UK subsidiary of Huawei (China) (collectively Huawei). The respondents are Unwired Planet International Ltd and Unwired Planet LLC (collectively Unwired) which are registered in Ireland and the United States of America respectively. They are both intellectual property licensing companies (sometimes called Patent Assertion Entities) which obtain income from the licensing of patents to companies which make and sell telecommunications equipment. In 2013 Unwired acquired a portfolio of patents and patent applications from Ericsson, which was a major developer of telecommunications technology and a participant in standard setting. At the time of trial, the portfolio covered 42 countries and comprised 276 patents and applications declared as essential, of which 29 were UK patents or applications. Each of Ericsson and Unwired made an ETSI IPR Licensing Declaration and a Specific IPR Licensing Declaration in respect of patent families which encompass five of the UK patents on which Unwired sued Huawei in England. Ericsson had licensed patents to Huawei, including the UK patents which are the subject of these proceedings, but the licence expired in 2012. Huaweis continued use of the technology covered by the patents in suit forms the backdrop to its appeal. In the second and third appeals the appellants are respectively (i) Huawei and (ii) ZTE Corporation (ZTE (China)), a Chinese company, and its UK subsidiary ZTE (UK) Ltd (ZTE (UK)), collectively ZTE and both part of the ZTE group, which is a global supplier of telecommunications and information technology equipment. The respondent in both appeals is Conversant Wireless Licensing SRL (Conversant), a company registered in Luxembourg and part of a Canadian group of companies which is managed from the United States. It is an intellectual property licensing company or Patent Assertion Entity, which licenses patents for royalty income. Conversant acquired a portfolio of about 2,000 patents and patent applications, covering over 40 countries, from Nokia in 2011. Conversant pleads that the portfolio includes 28 patent families which are essential. It also pleads that it and/or Nokia have given an ETSI IPR Licensing Declaration and a Specific IPR Licensing Declaration in respect of its portfolio, which include the UK patents in suit, and that Conversant gave a General IPR Licensing Declaration on 22 July 2014. We also received short written interventions from Apple Inc, Ericsson and Qualcomm Incorporated, in the in which telecommunications industry set out their views on industry practice and on the principal issues of these appeals, including the interpretation of the IPR Policy. We are very grateful for their assistance. The legal proceedings important players three (i) Unwired v Huawei Unwired commenced proceedings in England on 10 March 2014 against Huawei, Samsung and Google, alleging infringement of the UK designation of six European patents (EP), and requesting, among other remedies, an injunction to prevent further infringement. Unwired began parallel proceedings in Germany at the same time. Before the proceedings commenced, Unwired and Huawei had discussed the possibility of Huawei buying some of Unwireds patents but Huawei did not do so. We discuss the further exchanges between Unwired and Huawei, both before the proceedings commenced and during the course of those proceedings, when we address the fourth issue (whether the court should refuse an injunction because of any failure to comply with the guidance of the CJEU in Huawei v ZTE) in paras 128 158 below. In 2015 and 2016 three trials were held to determine whether the UK patents in suit were valid and infringed. After a seven day trial, Birss J held that one patent (EP 744) was both valid and essential. His findings were upheld on appeal. In the second trial, after a hearing over eight days, two patents (EP 287 and EP 514) were held to be invalid, permission to appeal was granted, and the appeal was stayed in July 2017. In the third trial, after a five day hearing, a patent (EP 818) was held to be valid and essential. Permission to appeal was granted and the appeal was stayed in July 2017. The equivalent technical trial on the remaining UK SEP (EP 991) has been postponed indefinitely. At the same time Unwired brought proceedings in Germany, in which it had mixed success and from which appeals are pending. In particular, the German designation of EP 744 has been held to be valid but not infringed and an appeal on infringement is pending. The German designations of EP 287 and EP 514 have been held to be infringed but the Opposition Division of the European Patent Office has held those patents to be invalid and appeals from those decisions to the EPO Technical Board of Appeal are pending. The German designation of EP 818 has been held to be valid and infringed and those judgments have been upheld on appeal. The claims of EP 991 which were alleged to be infringed were revoked for the German designation and an appeal against that judgment is pending, as is a proceeding relating to the infringement of that patent. Huawei (China) challenged several of Unwireds patents in China. The Patent Re examination Board (PRB) has held that two Chinese family members of Unwireds European patents (EP 287 and 514) are invalid but those findings are under appeal. The PRB has held the Chinese family member of EP 744 to be valid and Huawei (China) has appealed. Huawei (China) has also challenged five other patents, which Unwired declared to be SEPs; three have been upheld, one upheld in part and one invalidated. Appeals from those decisions are pending. As matters currently stand, and subject to continuing appeal proceedings in Germany and China, Huawei has been held to be infringing one or more of Unwireds SEPs through its use of patented technology in both the UK and Germany and in China challenges to two patents have failed. Unwired settled with Google in 2015 and with Samsung in July 2016, after the technical trials of the UK patents but before Birss J held the trial to determine remedies for infringement of its UK patents, in an arrangement in which it granted Samsung a global licence for its portfolio. Unwired was sold to the PanOptis group of companies in July 2016. It was in serious financial trouble and was close to insolvency. We address in more detail the Samsung settlement when we discuss the third issue, namely what is required to make the licence offered by a SEP owner non discriminatory, in paras 105 127 below. Between October and December 2016 Birss J held a trial to determine the remedies for the infringement of Unwireds valid SEPs. In his judgment of 5 April 2017 ([2017] EWHC 711 (Pat)), later reissued with revised redactions on 30 November 2017, [2017] EWHC 2988 (Pat)) he concluded, among other things, that the FRAND undertaking was justiciable and enforceable in the English courts and that an implementer who refused to take a licence on terms which the court held to be FRAND exposed itself to an injunction for infringing a UK patent which the court held to be valid and infringed. He held that a willing licensor, with Unwireds portfolio of patents, and a willing licensee, with almost global sales, acting reasonably and on a willing basis would agree a worldwide licence. He concluded that such parties would regard the negotiation of licences country by country as madness. Having been presented with detailed expert evidence, Birss J determined the rates of royalty and other terms of the licence, so far as they were in dispute, that he considered to be FRAND. He held that in the circumstances a UK portfolio licence, for which Huawei had argued, would not be FRAND but that a FRAND licence between Unwired and Huawei had to be a worldwide licence. In case he was wrong in his conclusion that only a worldwide licence was FRAND, he also determined the rates and terms of a UK only licence covering Unwireds UK portfolio. The judge also made findings which are relevant to the third and fourth issues which we discuss below. He held that the royalty rates which he settled for the global licence were FRAND notwithstanding that they were higher than those in the licence which Unwired gave to Samsung. He also held that Unwired had not breached article 102 of the Treaty on the Functioning of the European Union (TFEU) and that the Huawei v ZTE case did not give Huawei a defence if it decided not to enter into the global licence which he had settled. In a hearing on 7 June 2017 Birss J granted an injunction to restrain infringement of the relevant UK patents with a proviso that the injunction would cease to have effect if the defendant entered into the FRAND global licence which he had settled. He stayed the injunction pending appeals: [2017] EWHC 1304 (Pat); [2017] RPC 20. Huawei has given certain undertakings to the court and has sought to conduct itself according to those undertakings pending the determination of all appeals in the English proceedings. Huawei appealed against Birss Js orders. On 23 October 2018 the Court of Appeal (Lord Kitchin, and Floyd and Asplin LJJ) handed down a judgment dismissing the appeal: [2018] EWCA Civ 2344; [2018] RPC 20. The court disagreed with the judges conclusion that in any particular case there could only be one set of FRAND terms. Ifa circumstance were to arise in which either a local or a global licence would be FRAND, it would be for the SEP owner to choose which it preferred because the SEP owner performed its obligation by offering a licence on FRAND terms. But this aspect of the judges reasoning had no material effect on the conclusion which he had reached because he had not erred in deciding that, in the circumstances of this case, only a global licence would be FRAND. (ii) Conversant v Huawei and ZTE Conversant commenced proceedings against Huawei and ZTE in England in July 2017. It seeks among other things a declaration that the global licence which it offered the defendants is FRAND, alternatively, if that is not granted, a determination of FRAND terms. It also seeks, after amending its pleadings, injunctions in respect of UK patents found to be valid and infringed which will last until the defendants enter into a licence which the court determines is FRAND. Huawei and ZTE challenged the jurisdiction of the English courts on the grounds of (a) a lack of jurisdiction to determine the validity of foreign patents and (b) forum non conveniens. Conversant sought permission to serve the Chinese defendants out of the jurisdiction. In a judgment handed down on 16 April 2018, Henry Carr J dismissed the jurisdiction challenges and granted Conversants application to serve out of jurisdiction: [2018] EWHC 808 (Pat); [2018] RPC 16. Commenting on Birss Js judgment, he held that the English courts had jurisdiction to enforce the contract contained in the IPR Policy and to determine such terms of a licence as were in dispute. Enforcing the contract and determining the terms of a FRAND licence did not involve the English courts intruding on the jurisdiction of foreign courts in relation to the validity or infringement of foreign patents. The licences determined by the English courts could be adjusted to reflect the rulings of foreign courts on such matters. The effect of this jurisdiction was to put the onus on an implementer to challenge foreign patents once the court had found a UK SEP to be valid and infringed. The royalty rates which the court could adopt would be based on evidence of comparable real life licences which could be expected to take into account the competition policies of foreign states. He concluded on the basis of expert legal evidence led before him that the Chinese courts did not have jurisdiction to determine FRAND royalty rates in respect of non Chinese patents without the agreement of the parties. He regarded it as no more than speculative whether the Chinese courts would have such jurisdiction, even if the parties consented, and he rejected the plea of forum non conveniens. Before the hearing in England on the jurisdiction challenges, Huawei and ZTE raised proceedings in China to challenge the validity of Conversants declared Chinese patents. After Henry Carr J handed down his judgment on the jurisdiction challenge in England, Conversant raised proceedings in Germany against Huawei (China) and ZTE (China) and their German subsidiaries claiming infringement of its German patents. In England, four UK patents were in suit but trials of two of them were stayed once they had expired. After a technical trial of EP (UK) 659 Arnold J handed down a judgment on 4 July 2019 in which he held that the patent was infringed but that the patent was invalid for added matter. Conversant was given permission to appeal and that appeal has now taken place. The technical trial of EP (UK) 177 and its divisional family members (EP (UK) 722 and EP (UK) 206) took place in the autumn of 2019. Birss J handed down a judgment on 8 January 2020 in which he held that EP (UK) 177 and EP (UK) 722 were partially valid and infringed and that EP (UK) 206 was invalid. An appeal is scheduled to take place in November 2020. A FRAND trial was listed for April 2020 with a time estimate of 15 days but was adjourned due to the Coronavirus pandemic and to await the outcome of these appeals. Huawei and ZTE appealed the judgment of Henry Carr J on jurisdiction. On 30 January 2019, the Court of Appeal (Patten, Floyd and Flaux LJJ) handed down judgment, dismissing the appeal: [2019] EWCA Civ 38; [2019] RPC 6. In the Conversant appeals to this court therefore, Huaweis and ZTEs cases relate to the preliminary questions of jurisdiction and forum non conveniens. In the Chinese proceedings Huawei (China) and ZTE (China) challenged 11 Chinese patents. As at the date of the chronology which the parties provided, the PRB had ruled that of those 11, eight are invalid, two are valid and one is partially valid. Those decisions are under appeal. None of the Chinese patents held to be valid are of the same families as the UK patents in suit. Huawei (China) and ZTE (China) have raised separate proceedings in China with the aim of obtaining a determination of FRAND royalty rates for Conversants Chinese patents if they are found to be valid and essential. Huawei and ZTE have offered Conversant to allow the Chinese courts to address global FRAND terms and rates for Conversants non Chinese patents in its portfolio. Conversant did not accept those offers and Henry Carr J held that it acted reasonably in so doing. In the German proceedings Conversant has claimed infringement of the German designations of EP 177, EP 659 and EP 986. Hearings on those claims took place on 18 June 2020 and Conversant has given undertakings which seek to address the possibility of conflict between judgments of the English courts and the German courts. (iii) Overview of the markets and the proceedings It is clear from the UK, German and Chinese proceedings that ascertaining the validity, essentiality and infringement of national patents within a portfolio by legal proceedings in several different jurisdictions involves the expenditure of a prodigious amount of money and effort by both claimants and defendants, although the proceedings in China are significantly less costly than those in the West. It is not disputed that it would be impracticable for the parties to litigate these matters in each of the countries which the portfolio covers. It also appears to be clear and it is not disputed that within a substantial portfolio of patents there may be many patents, which (if subject to examination in proceedings) would be found to be invalid in whole or in part or not infringed by the technology used in the standard. These are in our view relevant facts when one addresses the fair balance between the interests of the SEP owner and the implementer which the IPR Policy seeks to achieve. At the same time, Huawei and ZTE point out that only a very small proportion of their worldwide sales are made in the UK. Huawei manufactures in China and its principal market is in China. It asserts that 64% of its relevant sales occur in China or in countries in which Unwired has no patent protection and is dependent on the validity and infringement of Chinese patents for its claim for royalties. In relation to the Conversant claim, Huawei asserts that the Chinese market accounts for 56% of its groups worldwide sales on which Conversant makes claims, and a further 19% of such sales occur in countries in which Conversant has no patents, so that Conversants claims in those countries depend on the Chinese patents. The UK market comprises only 1% of Huaweis sales of those products. Similarly, ZTE manufactures in China and in the first six months of 2017 60% of the groups operating revenue was from China. At that time only 0.07% of its turnover was generated in the UK. Thus, Huawei and ZTE submit that questions as to the validity and infringement of Chinese patents, which are within the jurisdiction of the Chinese courts, are of central importance to the value of a global licence of declared SEPs. The force of this contention can be seen from the current state of play in litigation which Huawei commenced in China, seeking declarations that Conversants Chinese patents were invalid or were not essential. Of the 15 patents which Conversant put forward for trial from its portfolio of Chinese patents, 14 were held to be either invalid or not infringed and only one was found to be essential but the trial of its validity has yet to take place. In China, the Nanjing Intermediate Peoples Court of Jiangsu Province in a judgment dated 16 September 2019 in actions raised by Huawei ((2018) Su 01 Min Chu No 232, 233 and 234) criticised Conversant for seeking to obtain a global rate for its patents from a foreign judge without obtaining the view of the Chinese courts on the validity and infringement of its Chinese patents. As we have said, many of the foreign judgments have been appealed, but they nonetheless show what is in fact common ground between the parties, that declared SEPs within a portfolio are often invalid or not essential. Before turning to the challenges raised in these appeals we set out briefly the methodology which Birss J adopted in determining what was a FRAND licence between Unwired and Huawei. An understanding of the nature of the exercise which he undertook is important to an analysis of the relationship between the determination of the terms of a FRAND licence on the one hand and, on the other, the exclusive right of foreign courts to adjudicate on the validity and infringement of their national patents. (iv) Birss Js methodology in the Unwired case Birss J did not purport to determine the validity of any non UK patent or to find that any such patent was or was not a SEP. What he sought to do was to value the portfolio as a whole, recognising that it was likely to include patents which were not valid and patents which although valid were not infringed and so were not SEPs. One possible method, called the top down method, was to take a view on what the total aggregate royalty burden would be for all the intellectual property relating to the standardised telecommunications technology in a product such as a handset. We refer to that aggregate burden as T. Various companies in the industry had made public statements as to the value of T. The task was then to share out the aggregate royalty T across all licensors in proportion to the value of each licensors patent portfolio as a share S of the total relevant patent portfolio essential to the standard. By this method the FRAND rate for a portfolio was the product of T and S (ie T x S). The second method was to use comparable licences. These are licences which parties engaged in the telecommunications industry had already agreed and operated. As the experts who gave evidence recognised and Birss J accepted, many patent licences including cross licences may have different terms, including different ways of calculating royalties, which make comparison difficult. The experts had to adopt methods of unpacking the licences in order to make them comparable and this introduced uncertainty into the exercise of comparison. Unwired had obtained most of the patents in its portfolio from Ericsson. Thus, Ericssons licences in the past had included all the SEPs in issue. That made Ericssons licences particularly relevant as comparables. As Birss J explained (para 180), if the rate for Ericssons portfolio was E and the relative value of Unwireds portfolio to Ericssons portfolio was R, the Unwired rate is E x R. Birss J accepted evidence that parties when agreeing licences of a substantial portfolio of declared SEPs did not evaluate the importance of individual patents but adopted methods involving patent counting. While it may be possible sometimes to identify a patent which is a keystone invention underpinning the technical approach on which a standard is based, none of Unwireds patents were in that category. Patent counting therefore involved identifying from among the declared SEPs those which were to be treated as essential, which he described as Relevant SEPs. There is a problem that more patents are declared to be essential than in fact are essential. This problem of over declaration is in part the result of the IPR Policy process which requires patent owners to declare SEPs in a timely manner when a standard is being prepared, as it encourages patent owners to err on the safe side by making a declaration. In part, there are difficulties in interpreting both the patents and the standards. In part also, patent claims are amended over time; different national patents within a patent family will vary in scope around the world; and standards themselves will vary over time. Further, the process of negotiating rates by counting patents within a portfolio creates a perverse incentive to over declare. This phenomenon must be recognised and be taken into account when identifying Relevant SEPs and calculating shares and ratios S and R above. Significantly, Birss J held, on the evidence led before him, that no one in counting Relevant SEPs takes account of the validity of the patents. Much of Birss Js impressive judgment involved an analysis of the competing methods by which the parties sought to carry out this exercise. He also analysed a number of licences which Unwired and Ericsson had agreed and identified those licences to which Ericsson was a party on which he was prepared to place any weight (para 462) in determining a rate for E in relation to each of the standards for handsets and infrastructure. Birss J also looked for guidance to decisions of courts in Japan and China (paras 472 474). The Intellectual Property High Court in Japan used the top down method described above (ie looking to the total royalty burden) in Apple Japan v Samsung Electronics (Case No 2013 [Ne] 10043). In China, the Guangdong High Peoples Court in Huawei v Interdigital (2013), Guangdong High Ct Civ. Third Instance No 305, fixed a FRAND rate for Interdigitals portfolio in China by unpacking other Interdigital licences. The Chinese courts judgment supported Huaweis case that rates in China were low in comparison with rates elsewhere. But of more significance for present purposes is the fact that the Japanese and Chinese courts used methods similar to those presented to and adapted by Birss J, who relied principally on the analysis of comparable licences and used the top down method as a cross check. Birss J, having heard the evidence, including that of the parties experts, and having analysed comparable international licences, concluded that on a FRAND approach the royalty rates for China would be 50% lower than the rest of the world. He divided the rest of the world into major markets and other markets and held that the rate applicable in the latter markets would be the same as in China. He provided a mechanism for the adjustment of royalties payable in major markets if successful challenges to the validity or infringement of SEPs reduced the number of declared SEPs in any of those markets (paras 582 592). In deciding that a worldwide licence was FRAND Birss J had regard to practice in the telecommunications industry to agree portfolio licences and observed that every patent licence which the parties had produced in the trial bundles was a worldwide portfolio contract, although some licences carved out a particular territory while licensing the rest of the world (paras 524 534). Unwireds portfolio covered 42 countries and was large enough that it would not be practicable to fight over every patent. A willing licensor of such a portfolio and a willing licensee such as Huawei with global sales would agree on a worldwide licence (paras 538 543). He recorded that it was common ground that the industry assessed patent families rather than individual patents within a family (para 546). He thus drew on industry practice in deciding that a FRAND licence would be a worldwide licence. Against that background we turn to address the first issue. Issue 1: Whether the English courts have jurisdiction and may properly exercise a power without the agreement of both parties (a) to grant an injunction restraining the infringement of a UK SEP unless the defendant enters into a global licence on FRAND terms of a multinational patent portfolio and (b) to determine royalty rates and other disputed items for a settled global licence and to declare that such terms are FRAND. The principal arguments which Huawei advances against the finding that it must take a worldwide licence of the SEP owners relevant patents on FRAND terms fixed by the English court in order to avoid an injunction restraining the infringement of a UK SEP are as follows. First, the English courts are not entitled to grant an injunction for the infringement of a UK patent unless an implementer agrees to take a licence of disputed foreign patents because this involves the implementer having to compromise foreign rights, including the right to challenge (a) the validity of those foreign patents and (b) the assertion that they are SEPs in the use of the standards in the foreign jurisdictions. The validity or infringement of disputed foreign patents is not justiciable in the courts of England and Wales. If the declared SEPs were foreign patents, the relevant national courts alone can determine validity and infringement. Foreign patents should be exposed to proper scrutiny by the national courts which determine their validity and infringement. An English court cannot compel a company to take a licence in respect of rights which may not exist. Thus, once an implementer disputes the validity or infringement of a foreign patent, the English courts have no jurisdiction to require the implementer to take a global licence to avoid an injunction. Secondly, the English courts in so acting are fixing the terms and the royalty rates on which foreign patents are to be licensed without regard to what the foreign courts with jurisdiction over the foreign patents would decide. English judges were, in Mr Howard QCs words, setting up the English jurisdiction as a de facto international or worldwide licensing tribunal for the telecommunications industry. In so acting the English courts were out of step with the approach of other national courts. Thirdly, a clear distinction falls to be drawn between what two global telecommunications companies might do voluntarily in a commercial negotiation to license patents to enable the conduct of a global business and what a national court may impose on such companies. Companies may choose to compromise rights which otherwise might be enforced and challenges to validity and infringement which might otherwise be made; national courts cannot or should not impose such compromises. Fourthly, the IPR Policy, when properly construed, removes the SEP owners right to obtain an injunction and limits its remedy to monetary compensation for infringement of such patents as the SEP owner has established or the implementer has agreed are valid and infringed. Once a SEP owner has established that a national patent was valid and infringed, a national court can determine the terms of a licence of such a patent if the parties cannot agree on those terms. The IPR Policy does not overturn the legal right of an implementer to challenge the validity of a patent or to seek to establish that the patent was not infringed. The IPR Policy, it is submitted, is not focussing on an international portfolio of patents but addresses particular SEPs, the validity and infringement of which, if challenged, would have to be established in national courts. In construing the IPR Policy it is important to note that ETSI has not established an international tribunal or forum to determine the terms of global licences of portfolios of patents. This points against a construction which would allow a national court to determine a global licence. Fifthly, Huawei also submits that it is improper for an English court to exclude the products of implementers, both handsets and infrastructure, from the UK market as the result of an infringement of a SEP. Such a remedy is said to be disproportionate. It is also said to be anomalous that an implementer should be liable only for damages for infringing the established UK SEP if it chose to withdraw from the UK market but that infringement of that patent should entitle the SEP owner to receive global royalties if the implementer wished to market its products in the UK. Huawei also argues that there is a fundamental difference between what commercial parties may choose to do in their own interests and what an intellectual property court can impose on them. It also expresses concern about the role of Patent Assertion Entities in litigation to enforce SEPs. Huawei also argues, based on general principles of English equity, that the only appropriate remedy which the English courts should consider is to address only the UK rights and to require an implementer to enter into a licence to pay in the future the same royalty as it has awarded as damages for past infringement. This is an argument which we address under Issue 5 in paras 159 169 below. ZTE generally supports Huaweis submissions but accepts that patent by patent licensing is unlikely to be FRAND. It focusses its case on jurisdiction on questions of comity and as a fall back argues forum non conveniens. It submits that the determination by one national court of a worldwide FRAND licence raises issues of comity as it amounts to interference with the patent regimes of other states which adopt different approaches to the licensing of their national patents and as to what terms would be FRAND. Such a licence could also impair a partys ability to comply with foreign law such as the competition law of a country in which it was active. Mr Bloch QC submits that the English courts have placed themselves out on a limb through their willingness to determine the terms of a compulsory licence of foreign patents. We discuss in more detail his arguments on forum non conveniens under issue 2 below (paras 92 104). In addressing the submissions set out above, we recognise, as is undisputed, (a) that questions as to the validity and infringement of a national patent are within the exclusive jurisdiction of the courts of the state which has granted the patent and (b) that in the absence of the IPR Policy an English court could not determine a FRAND licence of a portfolio of patents which included foreign patents. It is the contractual arrangement which ETSI has created in its IPR Policy which gives the court jurisdiction to determine a FRAND licence and which lies at the heart of these appeals. We therefore address first the fourth of Huaweis submissions concerning the interpretation of the IPR Policy. In our view, the submission attaches too much weight to the protection of implementers against holding up, which is the purpose stated in clause 3.1, and fails to give due weight to the counterbalancing purpose of clause 3.2, which seeks to secure fair and adequate rewards for SEP holders and which requires protection against holding out. The suggestion that the IPR Policy removes a SEP owners right to exclude implementers from a national market while requiring the SEP owner to establish the validity and infringement of each of its alleged SEPs, in the absence of a concession by the implementer, runs counter to the balance which the IPR Policy seeks to achieve. The submission also fails adequately to take into account the external context which we have discussed. Operators in the telecommunications industry or their assignees may hold portfolios of hundreds or thousands of patents which may be relevant to a standard. The parties accept that SEP owners and implementers cannot feasibly test the validity and infringement of all of the patents involved in a standard which are in a sizeable portfolio. An implementer has an interest in taking its product to the market as soon as reasonably possible after a standard has been established and to do so needs authorisation to use all patented technology which is comprised in the standard. The implementer does not know which patents are valid and infringed by using the standard but needs authority from the outset to use the technology covered by such patents. Similarly, the owner who declares a SEP or SEPs does not know at this time which, if any, of its alleged SEPs are valid and are or will be infringed by use pursuant to the developing standard. The practical solution therefore is for the SEP owner to offer to license its portfolio of declared SEPs. That is why it is common practice in the telecommunications industry for operators to agree global licences of a portfolio of patents, without knowing precisely how many of the licensed patents are valid or infringed. It is a sensible way of dealing with unavoidable uncertainty. It ought to be possible for operators in an industry to make allowance for the likelihood that any of the licensed patents are either invalid or not infringed, at least in calculating the total aggregate royalty burden in the top down method. By taking out a licence of an international portfolio of generally untested patents the implementer buys access to the new standard. It does so at a price which ought to reflect the untested nature of many patents in the portfolio; in so doing it purchases certainty. The IPR Policy was agreed against that background and the undertaking required from the SEP owner likewise needs to be interpreted against that background. We therefore do not construe the IPR Policy as providing that the SEP owner is entitled to be paid for the right to use technology only in patents which have been established as valid and infringed. Nor do we construe the IPR Policy as prohibiting the SEP owner from seeking in appropriate circumstances an injunction from a national court where it establishes that an implementer is infringing its patent. On the contrary, the IPR Policy encourages parties to reach agreement on the terms of a licence and avoid litigation which might involve injunctions that would exclude an implementer from a national market, thereby undermining the effect of what is intended to be an international standard. It recognises that if there are disputes about the validity or infringement of patents which require to be resolved, the parties must resolve them by invoking the jurisdiction of national courts or by arbitration. The possibility of the grant of an injunction by a national court is a necessary component of the balance which the IPR Policy seeks to strike, in that it is this which ensures that an implementer has a strong incentive to negotiate and accept FRAND terms for use of the owners SEP portfolio. The possibility of obtaining such relief if FRAND terms are not accepted and honoured by the implementer is not excluded either expressly or by necessary implication. The IPR Policy imposes a limitation on a SEP owners ability to seek an injunction, but that limitation is the irrevocable undertaking to offer a licence of the relevant technology on FRAND terms, which if accepted and honoured by the implementer would exclude an injunction. The IPR Policy is intended to have international effect, as its context makes clear. This is underlined by the fact that the undertaking required of the owner of an alleged SEP extends not only to the family of patents (subject only to reservations entered pursuant to clause 6.2 of the IPR Policy) but also to associated undertakings, as stated in the declaration forms in the IPR Policy. In imposing those requirements and more generally in its requirement that the SEP owner makes an irrevocable undertaking to license its technology, ETSI appears to be attempting to mirror commercial practice in the telecommunications industry. We do not accept the distinction which Huawei draws (in its third submission above (para 53)) between voluntary agreements which operators in the telecommunications industry choose to enter into on the one hand and the limited powers of a court on the other, since the IPR Policy envisages that courts may determine whether or not the terms of an offered licence are FRAND when they are asked to rule upon the contractual obligation of a SEP owner which has made the irrevocable undertaking required under the IPR Policy. It is to be expected that commercial practice in the relevant market is likely to be highly relevant to an assessment of what terms are fair and reasonable for these purposes. Moreover, the IPR Policy envisages that the parties will first seek to agree FRAND terms for themselves, without any need to go to court; and established commercial practice in the market is an obvious practical yardstick which they can use in their negotiation. In our view the courts below were correct to infer that in framing its IPR Policy ETSI intended that parties and courts should look to and draw on commercial practice in the real world. We now turn to the submission (para 51 above) that the English courts have no jurisdiction to determine the terms of a licence involving disputed or potentially disputed foreign patents. We disagree. If the judgments of the English courts had purported to rule on the validity or infringement of a foreign patent, that would indeed be beyond their jurisdiction. But that is not what Birss J and the Court of Appeal have done. Instead, they looked to the commercial practice in the industry of agreeing to take a licence of a portfolio of patents, regardless of whether or not each patent was valid or was infringed by use of the relevant technology in the standard, and construed the IPR Policy as promoting that behaviour. We agree with the parties that the FRAND obligation in the IPR Policy extends to the fairness of the process by which the parties negotiate a licence. If an implementer is concerned about the validity and infringement of particularly significant patents or a group of patents in a particular jurisdiction which might have a significant effect on the royalties which it would have to pay, it might in our view be fair and reasonable for the implementer to reserve the right to challenge those patents or a sample of those patents in the relevant foreign court and to require that the licence provide a mechanism to alter the royalty rates as a result. It might also be fair and reasonable for the implementer to seek to include in the licence an entitlement to recover sums paid as royalties attributable to those patents in the event that the relevant foreign court held them to be invalid or not infringed, although it appears that that has not been usual industry practice. Huawei suggests that it would serve no purpose for a UK court to fix the terms of a global licence but to provide for the alteration of royalties in the event of successful challenges to declared SEPs overseas. This would, it suggests, reduce a licence to an interim licence. Again, we disagree. Under a FRAND process the implementer can identify patents which it wishes to challenge on reasonable grounds. For example, in the Conversant case, it might well be argued by Huawei or ZTE at trial that the obligation of fairness and reasonableness required any global licence granted by Conversant to include provision to allow for Huawei or ZTE to seek to test the validity and infringement of samples of Conversants Chinese patents, with the possibility of consequential adjustment of royalty rates, given the importance of China as a market and a place of manufacture. In other cases, such challenges may make little sense unless, at a cost proportionate to what was likely to be achieved in terms of eliminating relevant uncertainty, they were likely significantly to alter the royalty burden on the implementer. In the Unwired case, Huawei appears not to have sought any provision in the draft global licence to alter the royalties payable if Unwireds Chinese patents or a relevant sample of them were successfully challenged. As we have said (para 47 above) the only adjustment mechanism which the draft licence provided was to the royalties payable in relation to major markets. Huawei has not appealed the detailed terms of that draft licence but has focussed its attack on the principle of a national court determining that a global licence was FRAND without the consent of the parties to such an exercise. That notwithstanding, it would be open to Huawei in another case to seek to make such a reservation when negotiating or debating in court the terms of a licence and to seek to persuade the court at first instance that the reservation was appropriate in a FRAND process. We turn to the submission (para 52 above) that the English courts are out of step with foreign courts in requiring an implementer to enter into a global licence in order to avoid an injunction for infringement of a national patent and in being prepared to determine the disputed terms of a global FRAND licence. Huawei suggests that the English courts are uniquely setting themselves up as a de facto global licensing tribunal. We are not persuaded by this submission. The Court of Appeal in the Unwired case (paras 59 74) analysed the cases which the parties had presented to the court and concluded that they did not support the contention that Birss Js approach lost sight of the territorial nature of patents and did not accord with the approach taken in other jurisdictions. We agree. We recognise that Birss J has gone further than other courts have done thus far in his willingness to determine the terms of a FRAND licence which the parties could not agree, but that does not involve any difference in principle from the approach of courts in other jurisdictions. Otherwise his approach is consistent with several judgments in other jurisdictions, which, as this is a developing area of jurisprudence, we now examine briefly. The principles stated in those judgments contemplate that, in an appropriate case, the courts in the relevant jurisdictions would determine the terms of a global FRAND licence. The United States: the US Court of Appeals Federal Circuit has recognised that an injunction against infringement of a national patent may be an appropriate remedy if an implementer refuses to enter into a FRAND licence or unreasonably delays in negotiating such a licence: Apple Inc v Motorola Inc 757 F 3d 1286 (Fed Circuit 2014), Judge Reyna at para 49, p 1332, with whom Chief Judge Rader agreed on this point. That case did not involve a proposed global FRAND licence. The court did not pronounce an injunction in that case because it considered on the facts of the case that the claimant had not suffered irreparable harm and that monetary compensation would suffice. But the judgment is clearly inconsistent with the submission that the standard setting regime which obliges a SEP owner to offer FRAND licences confines the SEP owner to monetary remedies. Three judgments in a dispute between Microsoft Inc and Motorola Inc show the willingness of US courts to enforce the contractual obligation on a SEP owner in a SSO policy to offer an implementer a global FRAND licence (the specific obligations in the case were to offer a licence on reasonable and non discriminatory, ie RAND, terms, but no relevant distinction arises from that). The case was concerned with obligations owed by a SEP owner in relation to a SSO, the International Telecommunication Union (ITU), in relation to video coding technology and the Institute of Electrical and Electronics Engineers (IEEE) in relation to wireless local area network (WLAN). The relevant policies of the IEEE and the ITU expressly envisaged the grant of worldwide licences, but as we have construed the IPR Policy as encompassing the grant of such licences, that is not a basis for distinguishing these cases. Motorola offered Microsoft a worldwide licence of its portfolio of patents which might be SEPs but Microsoft disputed the offers, arguing that Motorola had breached its obligation to offer a RAND licence because its proposed royalty rates were unreasonable. Microsoft commenced proceedings in the USA alleging breach of contract and Motorola counterclaimed that it had offered a RAND licence and that Microsoft had rejected it and so had lost its entitlement to a RAND licence. Several months after Microsoft initiated its lawsuit in the USA, Motorola commenced proceedings in Germany to enforce its German patents. Microsoft sought an anti suit injunction to prevent the enforcement of any injunction which the German courts might grant to enforce the European patents. In Microsoft Corpn v Motorola Inc 871 F Supp 1089 (W D Wash 2012) Judge Robart granted Microsoft a preliminary anti suit injunction. In his reasoning he recorded that a trial had been fixed in the USA to determine the RAND terms and conditions of any licence which Motorola was obliged to provide, including a RAND royalty rate. He stated (p 9): Thus, at the conclusion of this matter, the court will have determined (1) whether Microsoft is entitled to a worldwide RAND license for Motorolas standard essential patents, including the European Patents, (2) whether Microsoft has repudiated its rights to such a license, (3) whether Motorola may seek injunctive relief against Microsoft with respect to its standard essential patents, and (4) in the event Microsoft is entitled to such a license, what the RAND terms are for such a license. He found that the US action was dispositive of whether a German court might issue an injunction against Microsoft. He also observed that his injunction did not prohibit the pursuit of the German proceedings in so far as Motorola sought rulings on the validity or infringement of the German patents and non injunctive relief. On appeal, the US Court of Appeals Ninth Circuit (Microsoft Corpn v Motorola Inc 696 F 3d 872 (9th Cir 2012)) upheld Judge Robarts decision. In her judgment Circuit Judge Berzon explained that the US courts had jurisdiction in a contract action ie an action to enforce the obligation on the SEP owner to grant a RAND licence and therefore not enforce its patents to grant an anti suit injunction against enforcement of foreign patents covered by the contractual obligation. She observed that the ITU contract encompassed all of Motorolas SEPs worldwide and stated (p10): When that contract is enforced by a US court, the US court is not enforcing German patent law but, rather, the private law of the contract between the parties. Although patents themselves are not extraterritorial, there is no reason a party may not freely agree to reservations or limitations on rights that it would have under foreign patent law (or any other rights that it may have under foreign law) in a contract enforceable in US courts. She went on to observe (p 12) that an anti suit injunction was less likely to threaten comity in the context of a private contractual dispute than in a dispute involving public international law or government litigants. The dispute then returned to Judge Robart. The Court of Appeal discussed this decision (Microsoft Corpn v Motorola Inc. Case C10 1823JLR, 2013 US Dist LEXIS 60233) in para 69 of its judgment in the Unwired case. As the parties remained in disagreement as to the meaning of RAND, and that dispute needed to be resolved in order to ascertain whether Motorola was in breach of its obligation to license its patents on RAND terms, Judge Robart held a trial to determine a RAND licensing rate and a RAND royalty range for Motorolas worldwide portfolio of patents. In his judgment he used evidence of real world negotiations in simulating the hypothetical negotiation to determine the rate and range. Mr Howard seeks to distinguish this case on the basis that Microsoft had consented to the courts determination of the RAND terms. We do not consider that to be a material distinction as Huawei has sought the determination of a FRAND licence and because, in any event, the operation of the ETSI regime requires the SEP owner to offer a FRAND licence and the implementer to decline it as preconditions of the grant of an injunction. We were referred to Apple Inc v Qualcomm Inc, Case No 3:17 cv 00108 GPC MDD, which is a judgment by District Judge Curiel in the US District Court, Southern District of California given on 7 September 2017, which the Court of Appeal discussed in paras 67 and 68 of its judgment. In this case Apple was the implementer and Qualcomm the SEP owner. Apple challenged Qualcomms patents in eleven lawsuits in several jurisdictions on the grounds of invalidity, non infringement and breaches of foreign competition law. Apples claim in the US proceedings included assertions of breach of contract and challenges to Qualcomms US patents on the ground of invalidity or non infringement and also on grounds of anti trust/competition law. In a counterclaim Qualcomm sought a declaration that it had complied with its irrevocable undertaking given pursuant to ETSIs IPR Policy and asked the court to hold that particular offers were FRAND or in the alternative to determine worldwide FRAND royalty rates. Judge Curiel refused Qualcomms application for an anti suit injunction on grounds which included that the determination of the global FRAND issue would not dispose of Apples foreign claims, which challenged the foreign patents. The judge did not decide whether he had authority to adjudicate upon Qualcomms claim for a worldwide FRAND determination. His decision therefore is not inconsistent with Birss Js judgment. We were referred to orders of the US International Trade Commission and the US Federal Trade Commission which treated offers by a SEP owner of global licences to prospective licensees as FRAND. We were also referred to a District Court judgment in Optis Wireless Technology LLC v Huawei Case No 2:17 cv 00123 JRG RSP but it has no bearing on the matters before us. Germany: In Pioneer v Acer 7 O 96/14, which the Court of Appeal discussed in para 63 of its judgment, the Regional Court of Mannheim in a judgment dated 8 January 2016 considered the geographical scope of a FRAND licence in the light of the usual practices of the industry. Pioneer sought to restrain infringement of its German patent. As it owned SEPs in many countries and as the defendant was active in many countries it offered to grant the defendants parent company a worldwide portfolio licence. The defendant implementer was prepared to take a licence only of Pioneers German patent rights. The court held that the defendants offer was not FRAND and granted an injunction against infringement. In so concluding it drew on the jurisprudence of the CJEU in the application of competition law to the practices of SEP owners and implementers, which emphasised the importance of complying with usual industry practices, and held that in the light of such practices the offer of a Germany only licence was not FRAND. In accepting as FRAND the SEP owners offer of a worldwide licence it stated (para 119): It does not matter that the offer calls for a worldwide portfolio license and was addressed to the parent company as contract partner and not to the Defendant itself. The [CJEU] relies essentially on the customary practices current in the particular industry. In the view of the chamber, it is the aim of the behavior program set forth by the [CJEU] to lead the parties to license agreements which are otherwise also customary in the particular business area. Evidently it was not the intent of the [CJEU] to artificially bring about licence contracts stipulated for individual countries or even separate licence contracts for each individual SEP used when this does not comport with the business practices of the particular business area. Such a market intervention ignoring the market realities was not the purpose of the [CJEU]. In the experience of the chamber, it corresponds to the usual practices in the area of worldwide applicable standards to make license contracts for SEPs in the case of a patent user active in many affected countries with patent protection not individually for each country with the group company of the patent user there for each individual patent, but instead to stipulate worldwide portfolio licences with the group parent, which the individual national group companies can then also utilize. This judgment is clearly consistent with and supports Birss Js approach both of looking to industry practice when determining the geographical scope of a FRAND licence and of granting an injunction against infringement of a national patent if the implementer is not prepared to accept or delays in accepting the offer of a FRAND licence. The judgment of the District Court of Dsseldorf in St Lawrence v Vodafone 4a 073/14 dated 31 March 2016, which is discussed in para 64 of the Court of Appeals judgment, is consistent with and supports this approach. The SEP owner offered a worldwide licence to the implementer, covering its affiliated companies, in accordance with standard industry practice, and received a counter offer from the implementer, which was active worldwide, to license only its German patents. The court held that the offer by the SEP owner of a worldwide licence would normally be FRAND unless the circumstances of the case justified a different conclusion. The court treated the SEP owners offer as FRAND appropriate and held that the failure of the implementer to make a prompt counter offer which was FRAND exposed it to an injunction. The court also held that the implementer could reserve the right to challenge the validity and infringement (standard essentiality) of the SEP but could not delay concluding the contract of licence for that nor, because it was not consistent with industry practice in licensing contracts, could the implementer refuse to pay the licence royalties or claim repayment of earlier paid royalties. We accept Mr Speck QCs submission that these judgments suggest that the current approach of the German courts, in deciding whether to grant an injunction to a SEP owner for the breach of a national patent, is, first, to look to see whether the SEP owners offer of a licence is apparently FRAND. If it is not, they will not grant an injunction. Secondly, the courts look at the implementers behaviour to see if its response is FRAND before deciding whether to grant the injunction. Thirdly, as the quoted para 119 of Pioneer v Acer illustrates, the courts look to see if the parties behaviour conforms to industry practice, and if in the real world parties would voluntarily agree a global portfolio licence, but the implementer refuses to take such a licence, the way is open to the grant of an injunction. It is also relevant to observe that in Germany, where the courts which determine infringement of a patent are separate from those which determine its validity, it is possible to obtain an injunction against infringement from one court before the validity of a patent has been established in the other. Where there is an obvious challenge to validity, such as a challenge to novelty, the German court dealing with infringement may suspend an injunction pending determination of that challenge. But otherwise an injunction may be granted without the patent owner having established the validity of the relevant patent. In the UK, by contrast, it is necessary first to establish both validity and infringement of the national patent, as Birss J did in this case, before the courts will grant an injunction against infringement. Before leaving Germany, we record that we were referred to the recent case of Huawei Technologies Co Ltd v Unwired Planet International Ltd 4b 0 49/14 G, a judgment of the Higher Regional Court of Dsseldorf concerning the disclosure of information relevant to financial remedies. We are satisfied that the judgment has no bearing on the issue of jurisdiction which we are considering. China: In para 73 of the Court of Appeals judgment it considered the judgment of the Guangdong High Peoples Court in Huawei v Interdigital (para 46 above). The Court of Appeal observed that the trial courts holding that Interdigitals offers of a licence were not FRAND was not made on the basis that the offers were for a worldwide licence and that that court appeared to think that a worldwide licence of Interdigitals SEPs would be both reasonable and feasible. The High Peoples Court upheld the trial courts judgment. Before this court Mr Howard states correctly that the Chinese court settled a FRAND royalty between Huawei and Interdigital in relation to Interdigitals Chinese SEP portfolio but he does not suggest that the Chinese court ruled out a worldwide FRAND licence. Mr Howard also referred this court to the judgment of the Nanjing Intermediate Peoples Court of Jiangsu Province in Huawei Technologies Ltd v Conversant Wireless Licensing SarL (para 39 above) as an example of the Chinese courts fixing a FRAND licence rate for Chinese patents only. In that case, as we have said, the court criticised Conversant for having failed to test the Chinese patents in its portfolio in the Chinese courts and for adopting the device (as it saw it) of seeking a foreign court, ie the High Court in London, to fix a global rate of royalties. Having regard to Conversants lack of success in selecting for testing Chinese patents which were then held to be either invalid or not infringed (para 36 above) one can readily understand the importance of establishing the quality of Conversants Chinese patents. But the Chinese court was responding to Huaweis application for, among other things, the fixing of the Chinese rates and did not criticise the idea of a court in an appropriate case having jurisdiction to fix royalty rates in a worldwide FRAND licence. Japan: We were referred to the judgment of the Intellectual Property High Court of Japan in Samsung Electronics Co Ltd v Apple Japan Godo Kaisha (Case No 2013 (Ne) 10043) dated 16 May 2014, which is discussed in para 72 of the Court of Appeals judgment. As the Court of Appeal said, the Japanese court was not asked to find and did not find that a global portfolio licence cannot be FRAND. Samsung as a SEP owner under the ETSI regime had given an undertaking to enter into a FRAND licence which Apple had not accepted. The case, in so far as relevant to the issue we are considering, concerned the nature of the damages which Samsung could recover from the infringement by Apple, the implementer, of Samsungs Japanese patent and in particular whether those damages could exceed the FRAND royalty. The court in that case declined Samsungs application for an injunction and focussed on its claim for damages, but the judgment is not inconsistent with Birss Js approach. The European Commission: In Motorola (Case AT.39985), which was issued on 29 April 2014, the European Commission (EC) held that Motorola had infringed article 102 of the TFEU, which is concerned with the abuse of a dominant position, by seeking and enforcing an injunction against Apple in the German Federal Court for Apples infringement of one of its German SEPs. In the course of the proceedings Apple had offered to take a licence of relevant SEPs for Germany on terms to be settled by the German courts, if necessary. Motorola argued that this offer was not FRAND for several reasons, including that the offered licence was not worldwide. The EC rejected Motorolas argument, finding that Apples offer was FRAND and that Motorola did not need an injunction to protect its commercial interest. The Court of Appeal discussed this decision in paras 59 and 60 of its judgment, suggesting that this was the high water mark of Huaweis case and that it was based on the view that a licence limited to Germany was FRAND. But the Court of Appeal noted that the EC was not expressing a concluded view that in other circumstances a worldwide licence would not be FRAND. We agree. The Court of Appeal referred to the subsequent communication by the EC to the European Parliament, the Council and the European Social and Economic Committee dated 29 November 2017 (COM (2017) 712 final) (the Communication) setting out a European approach to SEPs. The Communication in so far as relevant for the question in hand endorsed portfolio licensing of products with a global circulation in the interests of efficiency and recognised that a country by country approach might not be efficient or conform to the established practice of the relevant industrial sector. It acknowledged that there was no one size fits all solution to identifying what is FRAND, as what can be considered fair and reasonable varies from sector to sector and over time. Mr Howard played down the Communication, pointing out correctly that it did not purport to be a statement of the law and that it cited only Birss Js judgment as a legal authority in support of global licences. But in our view the Communication represents the considered view of the EC regarding the proper working of the ETSI regime and is consistent with judicial developments in Germany and the United States which we have discussed above. Conclusions about foreign jurisprudence on jurisdiction: In summary, the US case law shows (i) a recognition that the court in determining a FRAND licence in such cases is being asked to enforce a contractual obligation which limits the exercise of the patent owners IP rights including its IP rights under foreign law; (ii) a willingness in principle to grant an injunction against the infringement of a national patent which is a SEP, if an implementer refuses a licence on FRAND terms; (iii) a willingness in principle to determine the FRAND terms of a worldwide licence; (iv) a practice of looking to examples of real life commercial negotiation of licences by parties engaged in the relevant industry when fixing the FRAND terms of a licence; and (v) a recognition that the determination of a FRAND licence by one national court does not prevent an implementer from challenging foreign patents on the grounds of invalidity or non infringement in other relevant national courts. Similarly, in Germany the developing case law shows (i) a recognition that a worldwide licence might be FRAND and an implementers counter offer of a national licence confined to Germany might not be FRAND; (ii) a practice of having regard to the usual practices of parties in the relevant industry when the court determines the FRAND terms of a licence; and (iii) a willingness to grant an injunction against infringement of a national patent if the court holds that a SEP owners offer of a licence is FRAND and the implementer refuses to enter into it. The courts in China have not rejected the proposition that a worldwide licence might be FRAND, nor have the courts ruled that they do not have jurisdiction to determine the FRAND terms of a worldwide licence with the consent of the parties, although it remains a matter of speculation whether they would or would not accept jurisdiction. We therefore reject the submission that Birss J was out of line with the approach of courts in most significant jurisdictions. We can then deal briefly with the various arguments which Huawei raises as to the propriety of the English courts grant of an injunction, which we have summarised in para 55 above. Those arguments do not go to the existence of a jurisdiction to grant an injunction where an implementer refuses a FRAND worldwide licence but to the consequences of a courts decision to grant such an injunction in the exercise of a discretion. As such they overlap with our discussion of the remedy of injunction (issue 5) in paras 159 169 below. The first argument is that in the context of a global standard it is disproportionate to exclude an implementer from the UK market unless it enters into a worldwide licence of untested patents solely because it has infringed a UK patent. But this argument fails to acknowledge that what the implementer is purchasing in entering into such a licence with a SEP owner, which has a sufficiently large international portfolio of patents, is not solely access to the UK market but certainty that it has the ability legally to manufacture and sell products which comply with the standard on a worldwide basis. The second argument is that it is anomalous that an implementer should be liable in damages only for the loss which a SEP owner incurs through the infringement of one or more of its UK patents if the implementer chooses to withdraw from the UK market rather than enter into a worldwide licence but that, if the implementer wishes to market its products in the UK, it must pay global royalties. It is premised on the misplaced equation of the fixing of a licence which requires the payment of royalties for past and future use of patented technology and the separate or alternative award by the court of damages for past infringement of a UK patent. In our view this argument fails for two reasons. First, the award of damages is not to be equated with the royalties that are paid under a contractual licence. If an implementer agrees to enter into a FRAND licence which a SEP owner offers, it is entering into a voluntary obligation. If the court awards damages it does so on proof of the loss which the SEP owner has suffered through the infringement of its patent or patents. It may be that the measure of damages which a court would award for past infringement of patents would equate to the royalties that would have been due under a FRAND licence. That does not alter the different nature of the exercises which the court performs in (i) awarding damages and (ii) determining the terms of a licence, which will usually contain many important provisions in addition to the fixing of royalties. Secondly and in any event, as mentioned above, what the implementer purchases in entering into a worldwide licence is the ability legally to manufacture and sell standard compliant products on a worldwide basis. Thirdly, Huawei argues that there is a fundamental difference between what parties may voluntarily do in reaching agreements with other participants in an industry to compromise their rights for commercial and other pragmatic reasons and what a court may properly compel them to do. In our view this argument is without substance precisely because, as the US courts in particular have recognised, SSOs such as ETSI have crafted a contractual arrangement which enables the courts to determine a FRAND licence which, if accepted by the implementer, may prevent a SEP owner from obtaining a prohibitory injunction to exclude the implementers products from a particular jurisdiction. The implementer has the choice whether to exclude the risk of injunction by accepting a FRAND licence. Fourthly, Huawei points to the increasing involvement of Patent Assertion Entities (PAEs) in the SEP licensing market and in litigation. Such entities accumulate portfolios of patents from patent owners which were or are globally active mobile phone companies, as Unwired has done from Ericsson and Conversant from Nokia, and derive income from licensing them to implementers, if necessary after pursuing expensive legal actions. Huawei expresses concern that PAEs may abuse the power which ownership of SEPs gives. The EC in its Communication which we mentioned in para 83 above noted the increased involvement of PAEs in European litigation and the potential for harmful effects from the behaviour of certain PAEs. In the US Supreme Court, Justice Kennedy in a concurring judgment in eBay Inc v Mercexchange 547 US 388 (2006) has also expressed concerns about the risk that PAEs which do not produce and sell goods may use injunctions as a bargaining tool to charge exorbitant royalties. We are alive to that risk. In our view, however, the rights which PAEs acquire through the transfer by assignment of patents are the same as those which the assignor patent owners had held: assignatus utitur iure auctoris that which is assigned possesses for its use the rights of the assignor or cedent. In some cases, the assignment of rights to a PAE and the reservation of a share of the royalties which it negotiates or obtains through litigation may be the most straightforward means by which a SEP owner can obtain value from its intellectual property which is the fruit of its research and innovation, and if the rights are treated as qualified in the hands of the PAE the consequence will be that the SEP owner will not receive the reward which its investment merits. In the exercise of those rights in pursuit of a FRAND licence the assignee PAE, like the assignor patent owner, must act fairly and reasonably as FRAND is an obligation which governs the process of negotiation as well as the outcome of the determination of a FRAND licence. There is no legal basis under the general law for treating PAE owners of SEPs differently from other SEP owners unless they have different interests which merit different remedies. In so far as the risk of the grant of injunctions may be necessary to achieve the balance which the IPR Policy promotes, it is not evident that a PAE should necessarily be treated differently from a SEP owner which manufactures and sells telecommunications equipment. SEP owners have an interest in making sure that the ETSI regime is enforced. In any event the point does not go to the question of jurisdiction. Finally, Huawei submits that if a national court were prepared to determine that a worldwide licence is FRAND and that entering into such a licence is a precondition of the refusal of an injunction to prohibit infringement of a national patent, there is a risk of forum shopping, conflicting judgments and applications for anti suit injunctions. In so far as that is so, it is the result of the policies of the SSOs which various industries have established, which limit the national rights of a SEP owner if an implementer agrees to take a FRAND licence. Those policies, which either expressly or by implication provide for the possibility of FRAND worldwide licences when a SEP owner has a sufficiently large and geographically diverse portfolio and the implementer is active globally, do not provide for any international tribunal or forum to determine the terms of such licences. Absent such a tribunal it falls to national courts, before which the infringement of a national patent is asserted, to determine the terms of a FRAND licence. The participants in the relevant industry, which have pragmatically resolved many disputes over SEPs by the practice of agreeing worldwide or international licences, can devise methods by which the terms of a FRAND licence may be settled, either by amending the terms of the policies of the relevant SSOs to provide for an international tribunal or by identifying respected national IP courts or tribunals to which they agree to refer such a determination. In the final analysis, the implementers and the SEP owners in these appeals are inviting a national court under the current IPR Policy to rule upon and enforce the contracts into which the SEP owners have entered. If it is determined that the SEP owners have not breached the FRAND obligation in the irrevocable undertakings they have given, they seek to enforce by obtaining the grant of injunctive relief in the usual way the patents which have been found to be valid and to be infringed. The English courts have jurisdiction to rule upon whether the UK patents in suit are valid and have been infringed, and also have jurisdiction to rule on the contractual defence relied upon by the implementers based upon the true meaning and effect of the irrevocable undertaking the SEP owners have given pursuant to the ETSI regime. In agreement with Birss J (para 793), we observe that Huawei is before this court without a licence in respect of infringed UK patents when it had the means of obtaining such a licence. Subject to the plea of forum non conveniens, to which we now turn, this court has no basis for declining jurisdiction. Similarly, ZTEs submission, that if a global licence is FRAND, a FRAND process would identify the courts of China as the appropriate courts to fix the terms of such a licence, is an argument which we address under issue 2 below. Issue 2: Forum non conveniens This issue arises only in the Conversant appeals, where it has two limbs of unequal size. The first and larger limb, which may be said to be a forum conveniens issue strictly so called, is whether the High Court should have set aside service out of the jurisdiction on the two Chinese defendants (Huawei (China) and ZTE (China)) and permanently stayed the proceedings as against the two English defendants (Huawei (UK) and ZTE (UK)) on the ground that China rather than England was the appropriate forum. The second much smaller limb, which may better be labelled case management, is whether the claim for injunctive relief in the English proceedings should be temporarily stayed or otherwise case managed so as to enable relevant matters in dispute first to be litigated to a final conclusion in pending proceedings in the Chinese courts. We will address them in turn. Both these issues necessarily proceed upon the assumption, with which we agree, that, contrary to the appellants main case, the English court has jurisdiction to settle a global licence on FRAND terms for a multinational SEP portfolio. This is mainly because issues as to a global licence need to be determined so as to enable the court to adjudicate upon a contractual defence to the enforcement of an English patent by injunction. Nonetheless the main plank in the appellants case on forum conveniens is that, in substance, the real dispute between the parties is as to the terms of a FRAND licence, with the claim to enforce English patents by injunction being no more than a convenient peg upon which to hang the dispute so as to attract English jurisdiction, which it is said (by Huawei and ZTE) that Conversant would prefer to the less generous outcome likely to be obtained in the Chinese courts. Leaving aside questions as to the burden of proof, at common law the forum conveniens doctrine requires the English court to decide whether its jurisdiction or that of the suggested foreign court is the more suitable as a forum for the determination of the dispute between the parties. The traditional way in which this question has been framed speaks of the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice (per Lord Collins JSC in Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7; [2012] 1 WLR 1804, para 88, adopting the language of Lord Goff in Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) [1987] AC 460). The requirement in complex litigation to define, at the outset, what is the case to be tried runs the risk that the court will by choosing a particular definition prejudge the outcome of the forum conveniens analysis, as the Court of Appeal decided had occurred at first instance in In re Harrods (Buenos Aires) Ltd [1992] Ch 72. Harman J had characterised the case as a petition under the English Companies Act for relief for unfair prejudice in the conduct of the affairs of an English registered company, which made it blindingly obvious to him that England was the appropriate forum. But the company carried on business entirely in Argentina. The matters complained of all occurred there, where there was a parallel jurisdiction to provide relief under Argentinian legislation. So the Court of Appeal preferred Argentina as the appropriate forum. Like the Court of Appeal in the present case, we therefore prefer for present purposes to identify the dispute between the parties as the matter to be tried, lest reference to the case should introduce undue formalism into the analysis of a question of substance. The question how the dispute should be defined has been the main bone of contention between the parties, both in this court and in the courts below. Is it, as the appellants say, in substance a dispute about the terms of a global FRAND licence, or is it, as the respondent maintains, both in form and in substance about the vindication of the rights inherent in English patents, and therefore about their validity and infringement, with FRAND issues arising only as an aspect of an alleged contractual defence? Thus far the respondent has had the better of that argument, both before the judge and the Court of Appeal. At the heart of the analysis which has thus far prevailed is the recognition that the owner of a portfolio of patents granted by different countries is in principle entitled to decide which patents (and therefore in which country or countries) to seek to enforce, and cannot be compelled to enforce patents in the portfolio granted by other countries merely because a common FRAND defence to the enforcement of any of them raises issues which might more conveniently be determined in another jurisdiction than that which exclusively regulated the enforcement of the chosen patents. Were it necessary to choose between the rival characterisations of the substance of the dispute, we would have agreed with the choice made by the courts below. But we think, like the judge, that there is a compelling reason why the appellants must fail on this issue which would apply even if the appellants characterisation had been correct, so that the dispute was in substance about the terms of a global FRAND licence. A challenge to jurisdiction on forum conveniens grounds requires the challenger to identify some other forum which does have jurisdiction to determine the dispute. Even in a case where permission is required to serve out of the jurisdiction, so that the burden then shifts to the claimant to show that England is the more appropriate forum, that still requires there to be another candidate with the requisite jurisdiction. In the present case, China is the only candidate which the appellants have put forward. There may be others, but the court is not required to carry out its own independent search, and such other jurisdictions as might exist in theory may not be remotely convenient. After hearing extensive expert evidence, the judge found that the Chinese courts do not, at present, have jurisdiction to determine the terms of a global FRAND licence, at least in the absence of agreement by all parties that they should do so. Even in the event of such an agreement, he described the prospect that the Chinese courts would embark on the exercise as no more than speculative. Notwithstanding the admission of fresh evidence on this issue, the Court of Appeal reached the same conclusion. In sharp contrast, we have decided, for the reasons set out above, that the English court does have such a jurisdiction, even in the absence of consent by the parties, and it has of course exercised that jurisdiction in the Unwired case. Directions have been given in the Conversant case (subject to the outcome of this appeal) for it to be done again. Furthermore, against the speculative possibility that the Chinese courts might accept jurisdiction to settle a global FRAND licence by consent, there is the judges finding that Conversant had acted reasonably in refusing to give its consent, for reasons connected with the conditions which the appellants sought to impose, a conclusion which was not met with any persuasive challenge in this court. We therefore agree with the judge that the forum conveniens challenge falls at this first hurdle, notwithstanding the fresh evidence introduced in the Court of Appeal. Had it not done, a number of further issues would have arisen, in particular arising from the application of the Owusu principle (Owusu v Jackson and Others ((Case C 281/02) EU:C:2005:120; [2005] QB 801 (ECJ)) to the English defendants, set against the possibility that there might be a reflective application of article 24 of the Brussels I Regulation (Regulation (EU) 1215/2012 of 12 December 2012), and the recent decision of this court in Lungowe v Vedanta Resources plc [2019] UKSC 20; [2019] 2 WLR 1051. But we consider that those issues, which may well arise in future if and when other countries decide to exercise jurisdiction to settle global licences, would best be determined in a context when they might be decisive. We therefore turn to case management. The English courts have wide case management powers, and they include the power to impose a temporary stay on proceedings where to do so would serve the Overriding Objective: see CPR 1.2(a) and 3.1(2)(f). For example a temporary stay is frequently imposed (and even more frequently ordered by consent) in order to give the parties breathing space to attempt to settle the proceedings or narrow the issues by mediation or some other form of alternative dispute resolution. A temporary stay may be ordered where there are parallel proceedings in another jurisdiction, raising similar or related issues between the same or related parties, where the earlier resolution of those issues in the foreign proceedings would better serve the interests of justice than by allowing the English proceedings to continue without a temporary stay: see Reichhold Norway ASA v Goldman Sachs International [2000] 1 WLR 173. But this would be justified only in rare or compelling circumstances: see per Lord Bingham MR at pp 185 186, and Klckner Holdings GmbH v Klckner Beteiligungs GmbH [2005] EWHC 1453 (Comm). No such application has thus far been made in the Conversant case. At first instance the defendants went all out to obtain the permanent termination of the proceedings, by having service on the Chinese defendants set aside, and by having the proceedings against the English defendants permanently stayed. The whole basis of their application was that the Chinese courts were the appropriate forum to decide the whole dispute, or that the dispute should be split into its Chinese and English parts, leaving only (in England) the question what royalty or compensation for infringement they should pay in relation to the English patents. At the hearing of case management issues consequential upon Henry Carr Js judgment, the appellants did suggest that the FRAND trial should be stayed to await the outcome of pending proceedings in China. The judge provided some accommodation by directing that the FRAND trial should not take place before November 2019, so that the outcome of the Chinese proceedings, to the extent relevant, could be factored into the determination of a FRAND global licence. A case management alternative was put forward by Huawei in the Court of Appeal, but still on the basis that the global FRAND issues could and therefore should first be determined in China, before any determination in England of the claim for infringement of UK patents. It was rejected by the Court of Appeal first because the pending proceedings in China sought only to determine the terms of a FRAND licence for Conversants Chinese patents, not a global licence which would extend to the use of its English patents, and secondly because the age of Conversants portfolio militated against allowing further delay. In this court the case management solution was briefly resurrected during argument, although not as a distinct ground of appeal. Meanwhile the FRAND trial had by then been fixed to start in April 2020 and was no doubt the subject of intensive preparation. It has since then been adjourned due to the Coronavirus pandemic. We think it sufficient to confine ourselves to the issue whether the Court of Appeal was wrong to refuse any case management solution, for the reasons it gave, as summarised above. In our view the Court of Appeals reasons cannot be faulted. We have already concluded that the prospect that the Chinese courts might determine a global FRAND licence, even if the parties consented, is no more than speculative. The current proceedings in China relate only to Conversants Chinese patents, and Conversant has been held to have acted reasonably in refusing (even if it were possible) to confer a wider global jurisdiction on the Chinese courts. Further the adverse commercial effect of further delay in the enforcement of Conversants elderly patents is a factor which, in a case management context, the Court of Appeal was plainly entitled to take into account, and to attribute such weight as it thought fit. Issue 3: FRAND and non discrimination Huawei submits that a further error in the judgment of Birss J at first instance and in the judgment of the Court of Appeal in the Unwired case relates to the non discrimination limb of Unwireds FRAND undertaking. This was dealt with under Ground 2 in the judgment of the Court of Appeal (paras 130 210). Huawei relies on the Samsung licence entered into by Unwired on 28 July 2016 (the Samsung licence) as a relevant comparator for the purpose of working out the FRAND licence terms which should have been offered to Huawei by Unwired. The worldwide royalty rate under the Samsung licence was much lower, and hence much more favourable to the licensee, than the worldwide royalty rate which the judge found was required to be on offer to Huawei pursuant to Unwireds FRAND undertaking. Huawei submits that the judge should have held that Unwireds FRAND undertaking meant that Unwired should have offered Huawei a worldwide royalty rate which was as favourable as that agreed with Samsung. Huaweis case is that the non discrimination limb of the undertaking must be given its ordinary and unadorned meaning, which is that like situations must be treated alike and different situations differently. The non discrimination limb of the undertaking means that the SEP owner must grant the same or similar terms to all similarly situated licensees, unless it can be shown that there are objective grounds for treating them differently. Huawei says that this corresponds with the usual meaning given to obligations not to discriminate in other contexts. Birss J used the term hard edged in relation to the non discrimination obligation to describe the interpretation contended for by Huawei. The practical effect of Huaweis submission is that the non discrimination obligation means that a SEP owner is required to grant licence terms equivalent to the most favourable licence terms to all similarly situated licensees. Before the judge, Unwired deployed three lines of defence to this part of Huaweis case. First, it argued that the Samsung licence was not an equivalent or comparable transaction such as could engage the non discrimination obligation. Secondly, if that was wrong, it said that the non discrimination element in the FRAND undertaking did not involve a distinct hard edged discrimination obligation as submitted by Huawei. Instead, Unwired said that the non discrimination element is to be read as part of a single, unitary obligation to license on terms which are fair, reasonable and non discriminatory. To comply with that obligation, a licensor has to offer a royalty rate set by reference to the true value of the SEPs being licensed; that is, a standard fair market royalty rate available to market participants for use of the SEPs. A rate set in this way, which is available to all licensees without discriminating between them by reference to their individual characteristics, does not cease to be FRAND because the SEP owner has previously granted a licence on more favourable terms. The judge referred to the obligation interpreted in this way as a general non discrimination obligation. Thirdly, if the non discrimination obligation was engaged and if the general non discrimination interpretation were rejected, Unwired argued that the mere existence of differential royalty rates is not sufficient to amount to a breach of the obligation. There is an additional element: Huawei had to demonstrate that the difference is such as to cause a distortion of competition, which it had failed to do. For this submission, Unwired said that the non discrimination part of the FRAND undertaking was to be construed by analogy with the obligation of non discrimination as found in EU competition law in article 102(c) of the TFEU. Birss J rejected the first argument. On the facts, he found that there were specific economic circumstances applicable in relation to the negotiation of the Samsung licence which meant that the royalty rates in it were not a good comparator or basis for assessment of the uniform market royalty rate required under the FRAND obligation. The Samsung licence was granted by Unwired after it had been acquired by PanOptis. At that time, Unwired was in a distressed financial position and Samsung was able to take advantage of this in driving down the royalty rates under the licence. Also, PanOptis had a wider commercial interest in building trust with Samsung to develop a strategic relationship with it so as to encourage it to enter into other transactions, and again this gave special bargaining power to Samsung in the circumstances in which the Samsung licence royalty rates were negotiated. This aspect of the judges findings was not challenged in the Court of Appeal (paras 137 146) and is not in issue on this appeal. However, Birss J held that these features of the circumstances in which the Samsung licence was negotiated did not support Unwireds argument that the non discrimination obligation owed to Huawei was not engaged in relation to the Samsung licence. He held that Huawei and Samsung were similarly situated and that the licences available to each of them were equivalent or comparable for the purposes of engagement of the non discrimination element in the FRAND undertaking. Huawei and Samsung were in a similar position as market participants wishing to be able to make use of Unwireds SEPs and the licences were directed to allowing similar forms of use of the relevant SEPs for the provision of products and services with operability around the world. That ruling was upheld by the Court of Appeal (paras 160 176). There is no appeal in relation to this aspect of the judgments below. Birss J accepted Unwireds second argument. He held that the non discrimination element in the FRAND undertaking was general in nature rather than hard edged. The undertaking did not require that royalty rates in the licence on offer to Huawei should be fixed by reference to the royalty rates in the Samsung licence. On this basis, the judge found that the worldwide licence on offer to Huawei was on non discriminatory terms. The Court of Appeal agreed (paras 177 207). This part of the judgments below is under challenge on the appeal to this court. Birss J also ruled in favour of Unwired on the basis of its third argument, should it transpire that he was wrong to hold that the non discrimination obligation was general rather than hard edged. Since the Court of Appeal upheld his judgment on Unwireds second argument, it found it unnecessary to deal with this alternative part of his reasoning (paras 208 209). Huawei submits in this court that Birss J erred in this part of his reasoning as well. This court upholds the judgment of Birss J and the Court of Appeal on the second of Unwireds arguments. They were right to find that the non discrimination element in the FRAND undertaking is general and not hard edged and that there had been no breach of it. Accordingly, the third argument does not arise. The choice between regarding the non discrimination obligation as general or hard edged is a matter of interpretation of the FRAND undertaking in clause 6.1 of the IPR Policy. The obligation set out in that provision is that licences should be available on fair, reasonable and non discriminatory terms and conditions. In our view, the undertaking imports a single unitary obligation. Licence terms should be made available which are fair, reasonable and non discriminatory, reading that phrase as a composite whole. There are not two distinct obligations, that the licence terms should be fair and reasonable and also, separately, that they should be non discriminatory. Still less are there three distinct obligations, that the licence terms should be fair and, separately, reasonable and, separately, non discriminatory. The text of clause 6.1 lends itself naturally to being read in this unitary way. The non discriminatory part of the relevant phrase gives colour to the whole and provides significant guidance as to its meaning. It provides focus and narrows down the scope for argument about what might count as fair or reasonable for these purposes in a given context. It indicates that the terms and conditions on offer should be such as are generally available as a fair market price for any market participant, to reflect the true value of the SEPs to which the licence relates and without adjustment depending on the individual characteristics of a particular market participant. Put another way, there is to be a single royalty price list available to all. This interpretation of the FRAND obligation promotes the purposes of the ETSI regime in general and the IPR Policy in particular, which we have discussed in paras 4 14 above. A powerful indication that the non discrimination obligation is general rather than hard edged is that ETSI had previously considered and rejected the imposition of a most favourable licence clause in the undertaking. This was done in documents which were published and accessible to all market participants. To interpret the FRAND undertaking as incorporating the hard edged non discrimination obligation for which Huawei contends would have the effect of re introducing a most favourable licence term by the back door. The fact that ETSI made a public choice not to incorporate a most favourable licence term into the FRAND undertaking which it eventually decided to introduce means that any reasonable person participating in the relevant market, whether as a SEP owner or as an implementer seeking to enforce the FRAND undertaking, would understand that the FRAND undertaking as eventually promulgated by ETSI did not incorporate a hard edged non discrimination obligation. The background is as follows. In 1993, ETSI published its original proposed licensing regime, Appendix A of which set out the draft of the then proposed ETSI IPR Undertaking. The proposed undertaking to be given by a SEP owner was to grant a licence which should be non exclusive, on fair, reasonable and non discriminatory terms and conditions (the third indented subparagraph of clause 3.1 in Appendix A) and which, under the fourth indented subparagraph in clause 3.1, should: include a clause requiring the licensor to promptly notify a licensee of any licence granted by it to a third party for the same IPRs under comparable circumstances giving rise to terms and conditions that are clearly more favourable, in their entirety, than those granted to the licensee and allowing the licensee to require replacement of the terms and conditions of its licence, in their entirety, either with those of the third party licence, or with such other terms and conditions as the parties may agree. The 1994 and subsequent versions of the IPR Policy did not include this term. The inclusion of such a most favourable licence term in the 1993 draft IPR Policy as an obligation distinct from the FRAND obligation in the previous subparagraph shows that the FRAND obligation (which was expressed in the same terms as in the later versions of the IPR Policy) was not intended to include a most favourable licence term itself. Further, the deletion of the relevant most favourable licence term from the undertaking in 1994 and in the later versions of the IPR Policy shows that a deliberate choice was made not to subject a SEP owner to an obligation of this kind. In TCL Communication Technology Holdings Ltd v Telefonaktiebolaget LM Ericsson Case No 8:14 cv 00341 JVS DFM (CD Cal, Nov 8, 2017), the US District Court for the Central District of California noted the deletion and regarded it as providing guidance regarding the interpretation of the FRAND obligation (pp 13 14 and 91). The Court of Appeal, in the judgment below, took the same view: para 199. We agree. Ms Ford QC for Unwired made further submissions to the Court of Appeal in support of Unwireds proposed general non discrimination interpretation which were repeated to us (see the Court of Appeal judgment, para 192). They have considerable force. First, Unwired submits that to interpret the non discrimination obligation in the general sense for which it contends gives full effect to the non discrimination limb of the FRAND undertaking. Non discrimination between licensees is achieved, because the FRAND rate is objectively determined based on the value of the portfolio and it does not take into account the characteristics of individual licensees. It satisfies the obligation to treat like cases alike, because the same rate is made available to all licensees who are similarly situated in the sense that they seek the same kind of licence. We agree. This reflects our reasoning above. Secondly, Unwired submits that the non discrimination limb of the FRAND undertaking should not be read in isolation so as to trump all other considerations; that is to say, as a separate free standing obligation. Birss J and the Court of Appeal correctly read it as working together with the fair and reasonable limb of FRAND as part of a unitary concept. The role of the non discrimination limb is to ensure that the fair and reasonable royalty is one which does not depend on any idiosyncratic characteristics of the licensee. Huawei's approach, by contrast, would mean that the existence of a prior licence which the judge had expressly and legitimately held did not represent useful evidence of the value of the portfolio compelled Unwired to license its SEPs at the same rate, and therefore receive remuneration which was less than a fair and reasonable return for its portfolio. This would be to give the non discrimination limb an unnecessarily extreme effect. Again, we agree. The conclusion for which Huawei contends cannot be justified with reference to the intended purposes of the ETSI licensing regime and would conflict with those purposes. Thirdly, it cannot be said that there is any general presumption that differential pricing for licensees is problematic in terms of the public or private interests at stake. The position has been summarised in this way: Most important of the lessons that the economics literature has clearly established is that price discrimination is not always or necessarily harmful. On the contrary, in some cases, it can increase efficiency, raise incentives to innovate by easing the recoupment of necessary upfront investments, broaden the markets served, and improve consumer welfare. This is a welcome finding, because price discrimination is the norm within IP licensing. That is, a typical comparison of contracts for two or more firms with licenses to the same IP will generally reveal different royalty rates, terms, and conditions. As long as the patent holder negotiating these differential rates and terms has no market power, there is no need for any concern, because different prices are a natural consequence of the IP licensing process (Anne Layne Farrar, Nondiscriminatory Pricing: Is Standard Setting Different? (2010) Journal of Competition Law and Economics 1, at p 3) Since price discrimination is the norm as a matter of licensing practice and may promote objectives which the ETSI regime is intended to promote (such as innovation and consumer welfare), it would have required far clearer language in the ETSI FRAND undertaking to indicate an intention to impose the more strict, hard edged non discrimination obligation for which Huawei contends. Further, in view of the prevalence of competition laws in the major economies around the world, it is to be expected that any anti competitive effects from differential pricing would be most appropriately addressed by those laws. It is unnecessary and inappropriate (and could well be counterproductive) to adopt the hard edged non discrimination interpretation of the FRAND undertaking urged by Huawei on the basis that this might promote competition and hence innovation and consumer welfare. Any reasonable person who seeks to engage with the ETSI regime, whether as a SEP owner or as an implementer who is a potential licensee, would understand this. Those engaging with the ETSI regime are highly sophisticated and well informed about economics, practice in the market and competition laws across the world. Fourthly, the approach of Birss J and the Court of Appeal reflects commercial reality and sense, in that there may be circumstances in which the owner of a SEP portfolio would choose to license its portfolio at a rate which does not actually reflect its true, FRAND royalty rate value. For example, the concept of so called first mover advantage in some market circumstances is well recognised. It may be economically rational and commercially important for the owner of a SEP portfolio to offer a lower rate to the first implementer to take a licence, because it provides the owner with initial income on its portfolio and may serve to validate the portfolio in the eyes of the market and hence encourage others to seek licences as well. Huaweis proposed interpretation of the FRAND undertaking would eliminate this as a viable approach. But since such an approach is well recognised and may have great commercial importance for a SEP owner, it would have required far clearer language to be used in the ETSI FRAND undertaking if the intention had been to eliminate it. Similar points can be made in relation to the elimination of another important set of commercial options for the owner of a SEP portfolio. If in commercial difficulties, the owner might seek to engage in a fire sale licensing deal at low royalty rates for a particular licensee in order to secure its (the owners) commercial survival. On the judges findings, there was an element of this in Unwireds grant of the Samsung licence. But if the fire sale royalty rate were to be taken to dictate the FRAND royalty rate for the portfolio for the rest of the participants in the market, there would be no incentive for implementers to take advantage of such an opportunity (as they would gain nothing by comparison with their competitors) and portfolio owners would be unable to utilise such means of raising funds without, in effect, permanently devaluing the portfolio. There is nothing in the ETSI scheme or the language of the FRAND undertaking to indicate that it was intended that the undertaking should have these effects. For these reasons, we dismiss Huaweis non discrimination ground of appeal. Issue 4: Competition law and the CJEUs judgment in Huawei v ZTE The fourth issue arises only in the Unwired appeal. It requires consideration of the CJEUs decision in Huawei v ZTE. Huawei argues that the CJEU there laid down a series of mandatory conditions which must be complied with if a SEP owner is to obtain injunctive relief. If the SEP owner fails to comply, its claim for an injunction will be regarded as an abuse of its dominant position, contrary to article 102 TFEU. In the Court of Appeal, Huaweis argument was that the SEP owner had to have complied before even issuing proceedings for injunctive relief (see para 231 of the Court of Appeal judgment). It is not entirely clear whether Huawei continues to pursue its argument in quite such absolute terms. Although our attention is invited to other respects in which Unwired failed to comply with the CJEUs conditions, Huaweis central focus now is upon Unwired not having made a FRAND offer at any stage, its offers being too high to be FRAND. It is not enough, Huawei says, for a SEP owner to be willing to enter into a licence agreement on terms determined by the court; it has to make a FRAND licence offer itself. In Huaweis submission, Birss J therefore erred in granting Unwired an injunction when it had not complied with the CJEUs conditions. It should have been limited to damages. Unwired responds that Birss J and the Court of Appeal interpreted Huawei v ZTE correctly, and it presented no obstacle to the grant of an injunction. Unwired accepts the conclusion of the lower courts that the CJEU did lay down one mandatory condition, namely the notice/consultation requirement in para 60, which must be observed by the SEP owner, who will otherwise fall foul of article 102. But, in its submission, that is the sole mandatory condition that the CJEU laid down; the other steps set out by the court were intended only as a safe harbour. If they are followed, the SEP owner can commence proceedings for injunctive relief without that amounting to an abuse of its dominant position, but failure to follow them does not necessarily mean that article 102 is infringed, because it all depends on the circumstances of the particular case. Article 102 TFEU So far as material, article 102 provides: Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States. The decision in Huawei v ZTE Huawei v ZTE arose in connection with a dispute in Germany between Huawei, which held a telecommunications SEP and had given an undertaking to grant licences on FRAND terms, and ZTE which marketed products using the SEP without paying a royalty or exhaustively rendering an account in respect of the use. Discussions as to a licence did not bear fruit. Huawei brought an action for infringement, seeking an injunction prohibiting infringement, accounts, recall of products and damages. It was not disputed that Huawei was in a dominant position, for article 102 purposes, but the referring court requested assistance from the CJEU as to the circumstances in which a SEP owner would abuse its dominant position as a result of bringing an action for a prohibitory injunction. The referring court identified two different approaches that might be taken to this question, which would produce different results on the facts of the case. On the one hand, the Bundesgerichtshof had held, in 2009, in Orange Book (KZR 39/06) (referred to in paras 30 to 32 of the CJEU judgment) that the applicant will only breach article 102 if, in essence, the defendant has made an unconditional offer to conclude a licensing agreement, not limited exclusively to cases of infringement, and, where the defendant uses the teachings of the patent before the applicant accepts the offer, it complies with its obligations to account for use and to pay the sums resulting therefrom. On this approach, there would have been no abuse of Huaweis dominant position. On the other hand, the European Commission (in press releases No IP/12/1448 and MEMO/12/1021, referred to in para 34 of the CJEU judgment) appeared to take the view that it would be an abuse to bring an action for an injunction where the infringer is willing to negotiate a FRAND licence, even if terms cannot be agreed. As ZTE was willing to negotiate, this approach would have made Huaweis action for an injunction unlawful under article 102. The referring courts central question was therefore whether it was an abuse to seek an injunction even though the infringer has declared that it is willing to negotiate concerning a licence or only where the infringer has submitted to the proprietor of the [SEP] an acceptable, unconditional [FRAND] offerand the infringer fulfils its contractual obligations for acts of use already performed in anticipation of the licence to be granted (see para 39 of the CJEU judgment). The CJEU commenced its consideration of the referred questions with the following observation: 42. For the purpose of providing an answer to the referring court and in assessing the lawfulness of such an action for infringement brought by the proprietor of an SEP against an infringer with which no licensing agreement has been concluded, the Court must strike a balance between maintaining free competition in respect of which primary law and, in particular, article 102 TFEU prohibit abuses of a dominant position and the requirement to safeguard that proprietors intellectual property rights and its right to effective judicial protection, guaranteed by article 17(2) and article 47 of the Charter respectively. It went on to note, at paras 48 to 52, the special features that distinguish SEPs from other patents, namely that the use of the patent is indispensable in manufacturing products which comply with the standard to which it is linked, and that SEP status is obtained only in return for the SEP owners irrevocable undertaking to grant licences on FRAND terms. It observed that, in those circumstances, a refusal by the proprietor of the SEP to grant a licence on [FRAND] terms may, in principle, constitute an abuse within the meaning of article 102 (para 53), and the abusive nature of such a refusal may, in principle, be raised in defence to actions for a prohibitory injunction or for the recall of products (para 54). The court then went on to deal with the situation where the parties could not agree on what FRAND terms were, observing: 55. In such a situation, in order to prevent an action for a prohibitory injunction or for the recall of products from being regarded as abusive, the proprietor of an SEP must comply with conditions which seek to ensure a fair balance between the interests concerned. It is of particular note that in the following paragraph, before embarking on its consideration of what conditions might ensure a fair balance, the court emphasised the need to take account of the specific circumstances of the case, saying: 56. In this connection, due account must be taken of the specific legal and factual circumstances in the case (see, to that effect, judgment in Post Danmark A/S v Konkurrenceradet [(C 209/10)] EU:C:2012:172; [2012] 4 CMLR 23 at para 26 and the case law cited). The passage from Post Danmark A/S to which reference is made is as follows: 26. In order to determine whether a dominant undertaking has abused its dominant position by its pricing practices, it is necessary to consider all the circumstances and to examine whether those practices tend to remove or restrict the buyers freedom as regards choice of sources of supply, to bar competitors from access to the market, to apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, or to strengthen the dominant position by distorting competition (see, to that effect, Deutsche Telekom v Commission, para 175 and case law cited). The irrevocable undertaking to grant licences on FRAND terms could not, the court said, negate the entitlement of the SEP owner to have recourse to legal proceedings to ensure effective enforcement of his exclusive intellectual property rights (paras 58 and 59), but: 59. it does, none the less, justify the imposition on that proprietor of an obligation to comply with specific requirements when bringing actions against alleged infringers for a prohibitory injunction or for the recall of products. Paras 60 and 61 appear (from para 62) to be inspired by the possibility that the infringer of a SEP may not be aware that it is using the teaching of a SEP that is both valid and essential to a standard, and deal, in the following terms, with the need to alert the infringer: 60. Accordingly, the proprietor of an SEP which considers that that SEP is the subject of an infringement cannot, without infringing article 102 TFEU, bring an action for a prohibitory injunction or for the recall of products against the alleged infringer without notice or prior consultation with the alleged infringer, even if the SEP has already been used by the alleged infringer. 61. Prior to such proceedings, it is thus for the proprietor of the SEP in question, first, to alert the alleged infringer of the infringement complained about by designating that SEP and specifying the way in which it has been infringed. In paras 63 to 69, the court went on to anticipate that, thereafter, there would be a number of further exchanges between the SEP owner and the alleged infringer. Para 63 deals with the position once the alleged infringer has expressed its willingness to conclude a licensing agreement on FRAND terms. At this point: it is for the proprietor of the SEP to present to that alleged infringer a specific, written offer for a licence on FRAND terms, in accordance with the undertaking given to the standardisation body, specifying, in particular, the amount of the royalty and the way in which that royalty is to be calculated. Then, it is for the alleged infringer diligently to respond to that offer, in accordance with recognised commercial practices in the field and in good faith, with no delaying tactics, and it may rely on the abusive nature of an action for a prohibitory injunction only if it has submitted promptly and in writing, a specific counter offer that corresponds to FRAND terms (paras 65 and 66). And finally, if the counter offer is rejected, and the alleged infringer is using the teachings of the SEP already, from the point at which the counter offer is rejected, it is for that alleged infringer to provide appropriate security, in accordance with recognised commercial practices in the field, for example by providing a bank guarantee or by placing the amounts necessary on deposit (para 67). In paras 68 and 69, the court clarified that: i) in default of agreement on terms, the parties may, by common agreement, request that the amount of the royalty be determined by an independent third party without delay (para 68); and ii) the alleged infringer cannot be criticised for challenging, in parallel to the negotiations relating to the grant of licences, the validity and/or the essential nature of the patents, and/or their actual use, or for reserving the right to do so in the future (para 69). The court then went on, in paras 70 and 71 to address itself to the referring court, and to answer the questions it had referred: 70. It is for the referring court to determine whether the above mentioned criteria are satisfied in the present case, in so far as they are relevant, in the circumstances, for the purpose of resolving the dispute in the main proceedings. 71. It follows from all the foregoing considerations that the answer to [the questions referred] is that article 102 TFEU must be interpreted as meaning that the proprietor of an SEP, which has given an irrevocable undertaking to a standardisation body to grant a licence to third parties on FRAND terms, does not abuse its dominant position, within the meaning of article 102 TFEU, by bringing an action for infringement seeking an injunction prohibiting the infringement of its patent or seeking the recall of products for the manufacture of which that patent has been used, as long as: prior to bringing that action, the proprietor has, first, alerted the alleged infringer of the infringement complained about by designating that patent and specifying the way in which it has been infringed, and, secondly, after the alleged infringer has expressed its willingness to conclude a licensing agreement on FRAND terms, presented to that infringer a specific, written offer for a licence on such terms, specifying, in particular, the royalty and the way in which it is to be calculated, and where the alleged infringer continues to use the patent in question, the alleged infringer has not diligently responded to that offer, in accordance with recognised commercial practices in the field and in good faith, this being a matter which must be established on the basis of objective factors and which implies, in particular, that there are no delaying tactics. The facts of the present case Turning to the facts of the present case, between 2009 and 2012, Huawei had a licence from Ericsson which included the SEPs which were assigned to Unwired in 2013. In 2013, there was brief discussion between Unwired and Huawei about the possibility of Huawei buying some of the SEPs, but Huawei did not do so. In September 2013, Unwired wrote to Huawei proposing discussion with a view to concluding a licence, but received no reply. Unwired then wrote, in November 2013, to Huaweis IP department which replied very promptly, and there was communication between the companies. Before proceedings were begun against Huawei in March 2014, on Birss Js findings (see particularly para 750 of his judgment), the position was as follows: Huawei had sufficient notice that Unwired Planet held particular SEPs and they knew or ought to have known that if the declared SEPs held by Unwired Planet were indeed valid and essential, then a licence was required. They did not yet have claim charts. All the same, for Huawei, the only realistic and foreseeable ways in which the existing contact with Unwired Planet was going to conclude would be by Huawei persuading Unwired Planet that they had no good SEPs or proving it in court or by Huawei taking a licence. Huawei also knew that Unwired Planet wanted to license Huawei. In these circumstances the information Huawei had by March 2014 was quite sufficient for Huawei to understand that issuing proceedings including an injunction claim did not represent a refusal to license. Quite the reverse. In April 2014, Unwired made the first of a number of offers of licensing terms. Huawei responded, saying that no licence was needed, but also denying that the offered terms were FRAND. Birss J found (para 706) that Huawei never made an unqualified commitment to enter into a FRAND licence, its stance having always been that it was willing to enter into what it contended was a FRAND licence. Until shortly before the trial in front of Birss J, its contention was that only a patent by patent licence for any patent found valid and infringed would be FRAND, and from 11 October 2016, this was replaced by the contention that a FRAND licence meant a UK portfolio licence. Birss J contrasted this with Unwireds stance (para 709). Whereas Huawei had only been prepared to take a licence with a particular scope, Unwireds case in the High Court involved trying to insist on a worldwide licence, but its approach took account of the possibility that it might not be entitled to demand that. The position it took was that if the court decided that it was not entitled to insist on a global licence, it would accept that there be a UK portfolio licence at a rate and on terms set by the court (Birss J, para 23(i)). The decisions of Birss J and the Court of Appeal Birss J did not accept Huaweis argument that it had a defence to the injunction claim because the proceedings were commenced before FRAND terms were offered to it by Unwired. He interpreted the CJEU as saying that it would necessarily be abusive for the SEP owner to bring an action without some kind of prior notice to the alleged infringer, but otherwise he saw the CJEUs scheme as setting out a standard of behaviour against which both parties behaviour can be measured to decide in all the circumstances if an abuse has taken place, rather than imposing mandatory requirements which had to be complied with in all cases (para 744 (iv) and (v)). Measuring the parties behaviour against the standard, Birss J was satisfied that the commencement of the action, including the claim for an injunction, was not an abuse of Unwireds dominant position (para 755). It can be seen from the extract from para 750 which is quoted above that he considered that Huawei had sufficient notice prior to the commencement of proceedings, that it was clear that issuing the proceedings did not represent a refusal to license, and that Huawei knew that Unwired wanted to license it. The issue of the proceedings did not prevent the parties from negotiating (para 752). Unwired provided key terms of its offer to Huawei a few weeks after commencing proceedings (para 753), but Huawei never made an unqualified offer to accept whatever were FRAND terms (para 754). The Court of Appeal agreed with Birss Js interpretation of the CJEUs judgment, which it considered entirely correct, and it saw no reason to interfere with his conclusion that Unwired had not behaved abusively. Discussion In our view, Birss J and the Court of Appeal interpreted the CJEUs decision in Huawei v ZTE correctly. Bringing an action for a prohibitory injunction without notice or prior consultation with the alleged infringer will amount to an infringement of article 102, as para 60 of the CJEUs judgment sets out. In that paragraph, the language used is absolute: the SEP owner cannot bring the action without infringing the article. We agree with Birss J and the Court of Appeal, however, that the nature of the notice/consultation that is required must depend upon the circumstances of the case. That is built into the reference to notice or prior consultation, which conveys the message that there must be communication to alert the alleged infringer to the claim that there is an infringement, but does not prescribe precisely the form that the communication should take. This is to be expected, given that the CJEU had just introduced its discussion of the conditions which seek to ensure a fair balance between the various interests concerned in a SEP case with a very clear statement, at para 56 (set out above), that account had to be taken of the specific legal and factual circumstances in the case. In so saying, the court was reflecting its well established approach in determining whether a dominant undertaking has abused its dominant position, as it demonstrated by its reference back to the Post Danmark case, and the case law there cited. It also makes obvious sense that the court should have built in a degree of flexibility, given the wide variety of factual situations in which the issue might arise, and the fact that different legal systems will provide very different procedural contexts for the SEP owners injunction application. In Germany, for example, as we observed earlier, validity and infringement are tried separately, so that the alleged infringer faces the risk that the SEP owner could obtain a final injunction against it without validity first being determined, and in some member states, an injunction might be granted before a FRAND rate is determined. In contrast, in the United Kingdom, it is not the practice to grant a final injunction unless the court is satisfied that the patent is valid and infringed, and it has determined a FRAND rate. The courts statement in para 56 also colours the interpretation of the scheme it set out between paras 63 and 69 of its judgment. As the Court of Appeal observed, para 56 does not sit comfortably with the notion that the CJEU was laying down a set of prescriptive rules, intending that failure to comply precisely with any of them would necessarily, and in all circumstances, render the commencement of proceedings for an injunction abusive. It is important, it seems to us, to take account of where para 56 is placed in the judgment. Immediately preceding it, the court had identified the very real problem that occurs where, as in the case which had generated the reference to it, there is no agreement as to what terms would be FRAND, and then said (in para 55, quoted above) that in order to prevent an action being regarded as abusive, the SEP owner must comply with conditions which seek to ensure a fair balance between the interests concerned. This identifies what the conditions need to seek to ensure, but is no more prescriptive than that, and it is of considerable significance that para 56 immediately follows, requiring that [i]n this connection, which must surely be a reference back to the conditions which seek to ensure a fair balance, due account must be taken of the specific legal and factual circumstances of the case. It would be surprising if the steps then set out by the CJEU were expected by it to apply in all cases, no matter what their legal and factual circumstances. Unwired submits that the language used by the CJEU is language intended to signpost a safe harbour for the SEP owner. We agree that this does lend a degree of support to Unwireds argument. In particular, in contrast to the absolute language of para 60, in para 71, the court speaks of the SEP owner not abusing its dominant position as long as it follows the steps laid out. This does not tell us that if the SEP owner does not follow the steps, it will be abusing its dominant position. To answer that, due account has to be taken of the particular circumstances of the case, although, of course, it is likely to be valuable to compare what occurred with the pattern set out by the CJEU. By way of further reinforcement for its contention that the CJEU was providing guidance only, Unwired points to the unfairness that would arise, in a case (such as the present one) which began before the CJEU gave judgment in Huawei v ZTE, if the application for injunctive relief were to be condemned as abusive by virtue of a failure to comply with conditions which had not yet been spelled out when the proceedings were commenced, but which, once spelled out, operated ex tunc. The fact that any rigid and prescriptive rules laid down by the CJEU would necessarily operate in this way makes it unlikely, says Unwired, that the CJEU was actually seeking to lay down a mandatory protocol. Had the CJEUs judgment been in terms clearly intended to lay down universal, immutable, conditions, this point would not have been sufficient to displace that interpretation of it, but, in our view, given that the judgment is not in such terms, the point does perhaps provide a degree of further confirmation that all the circumstances of the case must be taken into account before concluding that article 102 has been infringed. It is worth noting how the European Commission has interpreted the CJEUs decision. In its communication of 29 November 2017, setting out the EU approach to Standard Essential Patents (see para 83 above), it encapsulated, at para 3, the conflicting considerations which operate in relation to injunctive relief in SEP cases, saying that: [s]uch relief aims to protect SEP holders against infringers unwilling to conclude a licence on FRAND terms. At the same time, safeguards are needed against the risk that good faith technology users threatened with an injunction accept licensing terms that are not FRAND, or in the worst case, are unable to market their products (hold ups). It then went on, at para 3.1 of the Communication, to set out its understanding of the CJEUs judgment: In its Huawei judgment, the CJEU established obligations applying to both sides of a SEP licensing agreement, when assessing whether the holder of a SEP can seek an injunction against a potential licensee without being in breach of Article 102 TFEU. SEP holders may not seek injunctions against users willing to enter into a licence on FRAND terms, and the CJEU established behavioural criteria to assess when a potential licensee can be considered willing to enter into such a licence. The following paragraphs consider further the various elements in the negotiation, but make clear that what precisely is required is, in the Commissions view, dependent on the facts of the individual case. This coincides with the interpretation that we would adopt of the CJEUs decision. As the Commission pointed out, the objective is to protect both the intellectual property rights of SEP owners and the interests of what it calls good faith technology users. The scheme set up by the CJEU, as we would interpret it, does this. It prevents an organisation which is unwittingly using a SEP without a licence from being ambushed by injunction proceedings without any prior notification of the problem, provides the SEP owner with a route map which, if followed precisely, will ensure it can seek an injunction without risking infringing article 102, and otherwise provides a number of points of reference to assist in assessing the all important question of whether each of the parties is willing to enter into a licence on FRAND terms. Interpreted in this way, it has sufficient flexibility built into it to cater for the inevitable variations that will occur from case to case, and from country to country. Given that we share Birss Js interpretation of the CJEUs judgment, we see no reason to interfere with his assessment that Unwired had not behaved abusively. He found that sufficient notice was given to Huawei before the injunction application was made. He properly evaluated the course of the negotiations between the parties in light of what the CJEU had said. There was no mandatory requirement that Unwired itself make an offer of terms which coincided with those that were ultimately determined by the court to be FRAND. Apart from the more general points that we have made earlier, in rejecting the argument that the CJEUs scheme was mandatory, such an absolute requirement to hit the target precisely with an offer could not sit easily alongside para 68 of the CJEUs judgment, which contemplates determination of the amount of the royalty by an independent third party. What mattered on the facts of this case was that Unwired had shown itself willing to license Huawei on whatever terms the court determined were FRAND, whereas Huawei, in contrast, had only been prepared to take a licence with a scope determined by it. Issue 5: The equitable jurisdiction to award a prohibitory injunction The fifth issue in the appeal raises a point which was not argued in the courts below. Huawei contends that even if it is infringing the claimants UK SEPs, and even if the claimants are willing to offer a licence on terms which the court has found to be FRAND, nevertheless the court should not grant the claimants an injunction to prevent the continuing infringement of their patents, since such a remedy is neither appropriate nor proportionate. Since the claimants only interest in the observance of the UK SEPs is in obtaining reasonable royalties, and that interest can be fully recognised by an award of damages in lieu of an injunction, it follows that such an award, based on the royalties which would reasonably be agreed for a licence of each of the UK patents infringed, is the appropriate and proportionate remedy. In support of that argument, Huawei refers to the discussion of awards of damages in lieu of an injunction under section 50 of the Senior Courts Act 1981 (formerly under Lord Cairnss Act) in One Step (Support) Ltd v Morris Garner [2018] UKSC 20; [2019] AC 649, where Lord Reed explained at paras 43 44 and 95(3) that such damages can be awarded in respect of an injury which has not yet occurred, and that they are a monetary substitute for what is lost by the withholding of injunctive relief. Reference is also made to Co operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1, where the House of Lords decided that damages were normally a more appropriate remedy than a mandatory injunction requiring the carrying on of a business, and Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822, where damages were considered to be a more appropriate remedy, in the circumstances of that case, than an injunction to prevent the continuation of a nuisance. Huawei also refers to eBay Inc v Mercexchange LLC 547 US 388 (2006), where the United States Supreme Court vacated a decision by the Federal Circuit reversing the District Courts denial of permanent injunctive relief to a PAE. The Supreme Court held that neither court had exercised its discretion in accordance with traditional principles of equity, as established in the law of the United States. The Court of Appeals was held to have erred in applying a rule that courts would issue infringement absent exceptional permanent circumstances. The District Court was held to have erred in adopting a rule that injunctions against patent injunctive relief would not issue where the plaintiff was willing to licence its patents rather than bringing them to market itself. The Supreme Court took no position on whether permanent injunctive relief should or should not issue in that case. Huawei relies in particular on the concern expressed by Kennedy J, in a concurring opinion in which Stevens, Souter and Breyer JJ joined, that an injunction could be employed by a PAE as a bargaining tool to charge exorbitant fees. Kennedy J expressed the opinion that where the patented invention was only a small component of the product the defendant sought to produce, and the threat of an injunction was employed simply for undue leverage in negotiations, damages might well be sufficient to compensate for the infringement, and an injunction might not serve the public interest. As Lord Neuberger remarked in the case of Lawrence at para 120, the court's power to award damages in lieu of an injunction involves a classic exercise of discretion. In most cases of patent infringement, judges have exercised their discretion in favour of granting an injunction. As Roberts CJ observed in the eBay case, in a concurring judgment in which Scalia and Ginsburg JJ joined: From at least the early 19th century, courts have granted injunctive relief upon a finding of infringement in the vast majority of patent cases. This long tradition of equity practice [Weinberger v Romero Barcelo, 456 US 305, 320 (1982)] is not surprising, given the difficulty of protecting a right to exclude through monetary remedies that allow an infringer to use an invention against the patentees wishes. (Emphasis in original) In the present case, the courts below were not invited to consider the possibility of awarding damages in lieu of an injunction. We are not in any event persuaded that there is any basis on which this court could properly substitute an award of damages for the injunction granted by Birss J and upheld by the Court of Appeal. There are, in the first place, no grounds in this case for a concern of the kind expressed by Kennedy J in the eBay case. The threat of an injunction cannot be employed by the claimants as a means of charging exorbitant fees, or for undue leverage in negotiations, since they cannot enforce their rights unless they have offered to license their patents on terms which the court is satisfied are fair, reasonable and non discriminatory. This point was clearly in the mind of Birss J. He stated at para 562: If a worldwide licence is not FRAND then a putative licensee should not be coerced into accepting it by the threat of an injunction in one state. However, if a worldwide licence is FRAND then the situation changes. The logic of the FRAND undertaking applied in the context of patent rights is that the remedy of an injunction to restrain infringement, granted in respect of a patent found valid and infringed/essential, should present the licensee with a simple choice either to take a FRAND licence or stop dealing in the products. He returned to this point at the end of his judgment, when explaining at para 793 why an injunction was appropriate: The relevant patents have been found valid and infringed. Unwired Planet wish to enter into a worldwide licence. Huawei is willing to enter into a UK portfolio licence but refuses to enter into a worldwide licence. However a worldwide licence is FRAND and Unwired Planet are entitled to insist on it. In this case a UK only licence would not be FRAND. An injunction ought to be granted because Huawei stand before the court without a licence but have the means to become licensed open to them. Secondly, in a case of the present kind, an award of damages is unlikely to be an adequate substitute for what would be lost by the withholding of an injunction. The critical feature of a case of this kind is that the patent is a standard technology for products which are designed to operate on a global basis. That is why standard technology is essential, and why the patent holders whose patents are accepted as SEPs are required to give an undertaking that licences will be made available on FRAND terms. Once the patents have been accepted as SEPs, it may well be impractical for the patent holder to bring proceedings to enforce its rights against an infringing implementer in every country where the patents have been infringed. That is because, as Huaweis witness Mr Cheng accepted in evidence, the cost of bringing enforcement proceedings around the world, patent by patent, and country by country, would be impossibly high. In those circumstances, if the patent holder were confined to a monetary remedy, implementers who were infringing the patents would have an incentive to continue infringing until, patent by patent, and country by country, they were compelled to pay royalties. It would not make economic sense for them to enter voluntarily into FRAND licences. In practice, the enforcement of patent rights on that basis might well be impractical, as was accepted in the present case by Huaweis witness, and by the courts below. An injunction is likely to be a more effective remedy, since it does not merely add a small increment to the cost of products which infringe the UK patents, but prohibits infringement altogether. In the face of such an order, the infringer may have little option, if it wishes to remain in the market, but to accept the FRAND licence which ex hypothesi is available from the patent holder. However, for the reasons explained in paras 164 165, that does not mean that the court is enabling the patent holder to abuse its rights. This point was understood by the courts below. In the Court of Appeal, Lord Kitchin observed at paras 55 56: It may be wholly impractical for a SEP owner to seek to negotiate a licence of its patent rights country by country, just as it may be prohibitively expensive for it to seek to enforce those rights by litigating in each country in which they subsist. This latter point was accepted by Mr Cheng in the course of his evidence: he agreed that the costs of such litigation for [Unwired] would be impossibly high [I]t seems to us, at least as a matter of principle, that there may be circumstances in which it would not be fair and reasonable to expect a SEP owner to negotiate a licence or bring proceedings territory by territory and that in those circumstances only a global licence or at least a multi territorial licence would be FRAND. Lord Kitchin also noted at para 111 the implications of accepting Huaweis contention that country by country licensing was appropriate: The patentee must then bring proceedings country by country to secure the payment of the royalties to which it is entitled. But unlike a normal patent action, where an unsuccessful defendant faces the prospect of an injunction, the reluctant licensee would know that, on the assumption it could only be required to take licences country by country, there would be no prospect of any effective injunctive relief being granted against it provided it agreed to pay the royalties in respect of its activities in any particular country once those activities had been found to infringe. So it would have an incentive to hold out country by country until it was compelled to pay. That reasoning was criticised by Huawei, but far from being erroneous, it identifies the central reason why an injunction is necessary in order to do justice, and why damages in lieu would not be an adequate substitute. Conclusion Before concluding we would like to record our appreciation of the high quality of the judgments of the courts below and the help which we gained from the judgments of the Court of Appeal in each of these cases. It follows from what we have discussed above that the appeals must fail. We therefore dismiss the appeals.	There are two appeals before the Supreme Court, both of which raise issues that are important to the international market in telecommunications. The appeals concern actions for infringement of UK patents said to be essential to the implementation of international standards for mobile telephony, such that it is not possible to make, sell, use or operate mobile phones and other equipment that is compliant with the standards without infringing the patents. Patents of this kind are called Standard Essential Patents (SEPs). The international standards in question are those set by the European Telecommunications Standards Institute (ETSI) for 2G (GSM), 3G (UMTS) and 4G (LTE). ETSI has over 800 members from 66 countries across five continents, and is recognised as the standard setting organisation in the European Union telecommunications sector. Amongst other things, it produces the technical standards needed to achieve a large unified European market for telecommunications, so that mobile phones and other telecommunications equipment can be used internationally. Once a standard has been adopted, there is a risk that owners of SEPs could disrupt the international telecommunications market by refusing to license their inventions or by charging excessively high royalties for their use. ETSI therefore requires its members to declare any patents which might be used in a telecommunications industry standard. Under its IPR Policy, ETSI then requires the SEP owner to give an irrevocable undertaking to license their patented technology on terms that are fair, reasonable and non discriminatory (FRAND). This gives those implementing the standards access to the technology protected by SEPs, while also providing the SEP owners with a fair reward for the use of their SEPs. The first appeal (the Unwired appeal) concerns an action brought by Unwired against Huawei for infringement of five UK patents which Unwired claimed to be SEPs. The SEPs in issue form part of a worldwide patent portfolio, which Unwired acquired from Ericsson. Unwireds business is licensing patents to companies who make and sell telecommunications equipment. Ericsson had previously licensed the relevant SEPs to Huawei, but the licence expired in 2012. In 2015 and 2016, three technical trials were held in which two of the SEPs were found to be both valid and essential. Two other SEPs were found to be invalid. Huawei has also been held to be infringing one or more of Unwireds SEPs in Germany, and its challenge to two of Unwireds patents in China has not succeeded. In the subsequent non technical trial, the judge held that Unwireds undertaking to license its SEPs on FRAND terms was justiciable and enforceable in the English courts. He also held that an implementer who refused to take a licence on terms which the court held to be FRAND exposed itself to an injunction for infringing a UK patent. In the circumstances, willing and reasonable parties would agree on a global license, which was the FRAND licence for a licensor with Unwireds patent portfolio and an implementer with almost global sales like Huawei. The judge went on to determine the royalty rates and other licence terms that he considered to be FRAND. The second appeal (the Conversant appeal) concerns an action brought by Conversant against Huawei and ZTE for infringement of four of its UK patents. These form part of a portfolio of about 2,000 patents and patent applications, covering 40 countries, which Conversant acquired from Nokia in 2011. Conversant argues that the portfolio includes 28 patent families which are SEPs. Like Unwired, Conversant is an intellectual property licensing company which licenses patents for royalty income. Huawei and ZTE applied for an order dismissing Conversants claims on the basis that the English courts did not have jurisdiction to determine the validity of foreign patents or, in the alternative, for a stay of proceedings on the ground that the English courts were not the appropriate forum for trying the case. The trial judge dismissed both applications. He held that the English courts had jurisdiction to enforce the undertaking made under ETSIs IPR Policy and to determine the terms of a FRAND licence. This did not intrude on the jurisdiction of foreign courts in relation to the validity or infringement of foreign patents, because the terms of any licenses determined by the English courts could be adjusted to reflect relevant rulings of foreign courts. The Court of Appeal upheld the trial judges orders in both the Unwired appeal and the Conversant appeal. Huawei and ZTE now appeal to the Supreme Court. The Supreme Court unanimously dismisses both appeals. The full Court gives the judgment, which confirms that the contractual arrangements ETSI has created under its IPR Policy give the English courts jurisdiction to determine the terms of a global license of a multi national patent portfolio. The appeals raise five issues, all of which are important to the international market in telecommunications [1]. Issue 1: The jurisdiction issue The jurisdiction issue arises in both appeals. The Supreme Court is asked to decide whether the English courts have jurisdiction and may properly exercise a power, without both parties agreement: (a) to grant an injunction to restrain the infringement of a UK patent that is a SEP unless the implementer of the patented invention enters into a global licence of a multi national patent portfolio; and (b) to determine the royalty rates and other terms of such a licence [49]. The Court finds that the English courts have jurisdiction and may properly exercise these powers. Questions as to the validity and infringement of a national patent fall to be determined by the courts of the state which has granted the patent. However, the contractual arrangements ETSI has created under its IPR Policy give the English courts jurisdiction to determine the terms of a license of a portfolio of patents which includes foreign patents [58]. The Court begins by considering Huaweis argument that, properly construed, ETSIs IPR Policy only permits the English courts to determine the terms of a license of UK SEPs and only where those SEPs have already been held by the English courts to be valid and infringed [54]. The Court rejects this argument on the basis that it runs counter to the aims of the IPR Policy and does not adequately take the wider context into account [59 60]. The Court also rejects Huaweis submission that the IPR Policy prohibits a SEP owner from seeking an injunction from a national court where it establishes that an implementer is infringing its patent. Rather, the possibility that a national court might grant an injunction is a necessary part of the balance which the IPR Policy seeks to strike, because it incentivises implementers to negotiate and accept FRAND terms for the use of the SEP owners portfolio [61]. Huawei argues that there is a clear distinction between the terms that operators might choose to agree voluntarily as part of a commercial negotiation and the terms that can be imposed on them by the courts [53]. The Court rejects this distinction. It finds that the IPR Policy envisages both that the courts may decide whether or not the terms of an offered licence are FRAND and that the courts should look to and draw on commercial practice in the real world when making this assessment [62]. The Court goes on to disagree with Huaweis submission (at [51]) that the English courts do not have jurisdiction to determine the terms of a licence of disputed (or potentially disputed) foreign patents. In the present appeals, the lower courts did not attempt to rule on the validity or infringement of foreign patents, which would have been beyond their jurisdiction. Instead, they looked to the industry practice of taking a license of a portfolio of patents and construed ETSIs IPR Policy as promoting that behaviour [63]. If an implementer is concerned about the validity and infringement of particularly significant patents in a portfolio, it could seek to reserve the right to challenge those patents and to require that the royalties payable under the licence should be reduced if the challenge is successful [64 65]. The Court also disagrees with Huaweis submission (at [52]) that the approach of the English courts is out of step with that of foreign courts [66]. It finds that the trial judges approach in the Unwired appeal is consistent with several judgments in other jurisdictions, which contemplate that, in an appropriate case, the courts would determine the terms of a global FRAND licence [67 84]. The Court also dismisses Huaweis argument (at [55]) that it is improper for an English court to exclude Huaweis products from the UK market by exercising a discretion to grant an injunction in respect of an infringement of a SEP [85 90]. Issue 2: The suitable forum issue The suitable forum issue arises in the Conversant appeal only. It has two limbs. The first limb asks whether the High Court should have: (a) set aside service of Huawei and ZTE out of jurisdiction; and (b) permanently stayed the proceedings as against the English subsidiaries of Huawei and ZTE on the basis that China was a more suitable forum for hearing the dispute than England [92]. The suitable forum (or forum conveniens) doctrine requires the English court to decide whether it or a suggested foreign court with jurisdiction would be the more suitable forum for determining the dispute between the parties [94]. Huawei and ZTE argue that the Chinese courts would be a more suitable forum for determining their dispute with Conversant. However, the Court holds that this argument must fail because the Chinese courts do not currently have the jurisdiction needed to determine the terms of a global FRAND licence, at least, without all parties agreement that they should do so. In contrast, the English court has jurisdiction to do this [96 97]. The second limb, which the Court labels case management, is whether the English proceedings should be stayed temporarily until the Chinese proceedings challenging the validity of Conversants Chinese patents have been concluded [92]. The Court finds that the Court of Appeal was right to refuse any case management solution [103 104]. Issue 3: The non discrimination issue The non discrimination issue arises in the Unwired appeal and relates to the requirement that license terms must be non discriminatory. Huawei argues that the non discrimination limb of the FRAND undertaking is hard edged, which means that like situations must be treated alike and different situations differently. SEP owners like Unwired must therefore grant the same or similar terms to all licensees, unless it can be shown that there are objective reasons for treating them differently. Accordingly, Unwired should have offered Huawei a licence with a worldwide royalty rate which was as favourable as those it had previously agreed with Samsung [105 106]. The Court holds that Unwired had not breached the non discrimination limb of the FRAND undertaking [112]. ETSIs IPR Policy requires SEP owners, like Unwired, to make licenses available on fair, reasonable and non discriminatory terms and conditions. This is a single, composite obligation, not three distinct obligations that the licence terms should be fair, and separately, reasonable, and separately, non discriminatory [113]. The non discriminatory part of the undertaking indicates that, to qualify as FRAND, a single royalty price list should be available to all market participants. This must be based on the market value of the patent portfolio, without adjustment for the characteristics of individual licensees [114]. However, there is no requirement for SEP owners to grant licences on terms equivalent to the most favourable licence terms to all similarly situated licensees. Indeed, ETSI previously rejected proposals to include a most favourable licence term of this kind in the FRAND undertaking [116 119]. Issue 4: The competition issue In the Unwired appeal, Huawei argues that Unwireds claim for an injunction should be regarded as an abuse of its dominant position, contrary to Article 102 of the Treaty on the Functioning of the European Union. This is because Unwired has failed to comply with the guidance given by the Court of Justice of the European Union in Huawei v ZTE (Case C 170/13), since it did not make a FRAND licence offer before issuing proceedings for injunctive relief. Huawei argues that, as a result, Unwireds remedy should have been limited to damages [128 129]. The Court considers Article 102 [131], Huawei v ZTE [132 143], the facts of the present case [144 145] and the decisions of the trial judge and the Court of Appeal [146 148]. It confirms that bringing an action for a prohibitory injunction without notice or prior consultation with the alleged infringer will infringe Article 102 [150]. However, the nature of the notice or consultation required will depend on the circumstances of the case: there is no mandatory requirement to follow the protocol set out in Huawei v ZTE. On the facts, what mattered was that Unwired had shown itself to be willing to grant a licence to Huawei on whatever terms the court decided were FRAND. Unwired had not therefore behaved abusively [151 158]. Issue 5: The remedies issue In both appeals, Huawei argues that, even if it is infringing Unwired and Conversants SEPs, the court should not have granted an injunction to stop the continuing infringement. Instead, the more appropriate and proportionate remedy would be for the court to award the claimants damages, based on the royalties which would reasonably be agreed for a licence of the infringed UK patents [159]. The Supreme Court rejects this argument. It holds that there is no basis on which the Court could properly substitute an award of damages for the injunction granted in the Unwired appeal and upheld by the Court of Appeal [163]. There is no risk that Unwired or Conversant could use the threat of an injunction as a means of charging exorbitant fees, since they cannot enforce their rights unless they have offered to license their SEPs on terms which the court is satisfied are FRAND [164 165]. Moreover, an award of damages would not be an adequate substitute for an injunction [166 169].
This is an appeal brought by HM Attorney General against the decision of the Court of Appeal quashing a certificate which he issued on 16 October 2012 pursuant to section 53(2) of the Freedom of Information Act 2000 (the FOIA 2000) and regulation 18(6) of the Environmental Information Regulations 2004 (EIR 2004). The underlying question in this appeal is whether communications passing between HRH The Prince of Wales and ministers in various government departments (the Departments) between September 2004 and March 2005 (which I shall call the letters) should be disclosed pursuant to a request made by Rob Evans, a journalist who works on the Guardian newspaper. The effect of the Attorney Generals certificate (the Certificate) would be to prevent such disclosure, but the effect of the Court of Appeals decision would be to permit such disclosure. It is worth explaining at the outset of this judgment that, if valid, the effect of the Certificate would be to override a decision of the Upper Tribunal, which is a judicial body and which has the same status as the High Court. The first argument raised by Mr Evans is that the statutory provision giving the Attorney General, a member of the executive, the power to overrule a judicial decision should, as a matter of constitutional principle, be interpreted restrictively, and that the Certificate is therefore invalid. His second argument is that, at least so far as the Certificate applies to environmental information, it is invalid, as the provisions of an EU Directive prevent a decision of a judicial tribunal ordering disclosure of such information being overridden by a member of the executive. The background facts and law The procedural history in summary The procedural history is unusual, but it can be briefly summarised. Mr Evans requested disclosure of the letters from the Departments, pursuant to both the FOIA 2000 and the EIR 2004, in April 2005. After initially refusing to state whether or not they had any of the letters, the Departments in due course admitted that they did, but refused to disclose them on the ground that they considered the letters were exempt from disclosure under sections 37, 40 to and/or 41 of the FOIA 2000 and the equivalent provisions of the EIR 2004. the Information Commissioner (the Mr Evans complained Commissioner), who upheld the Departments refusal in reasoned determinations promulgated in December 2009. Mr Evans then appealed to the tribunal, and the matter was transferred to the Upper Tribunal (Walker J, UT Judge Angel and Ms Cosgrave) (the UT), who conducted a full hearing, with six days of evidence and argument. The UT issued their determination on 18 September 2012, and it was to the effect that many of the letters, which they referred to as advocacy correspondence, should be disclosed [2012] UKUT 313 (AAC). The Departments did not appeal against this determination. However, on 16 October 2012, the Attorney General issued the Certificate stating that he had, on reasonable grounds, formed the opinion that the Departments had been entitled to refuse disclosure of the letters, and set out his reasoning. Mr Evans then issued proceedings to quash the Certificate, on two grounds, namely (i) the reasons given by the Attorney General were not capable of constituting reasonable grounds within the meaning of section 53(2) of the FOIA 2000, and/or (ii) because the advocacy correspondence was concerned with environmental issues, the Certificate was incompatible with Council Directive 2003/4/EC (the 2003 Directive) and/or article 47 of the EU Charter of Fundamental Rights (the EU Charter). The Divisional Court (Lord Judge CJ, Davis LJ and Globe J) dismissed his claim [2013] EWHC 1960 (Admin), [2014] QB 855. However, the Court of Appeal (Lord Dyson MR and Richards and Pitchford LJJ) allowed his appeal on both grounds ([2014] EWCA Civ 254; [2014] QB 855), and, unusually but rightly, gave the Attorney General permission to appeal to this court. The position in practice is as follows. If the Attorney Generals appeal to this court fails on the first ground, then all the advocacy correspondence would have to be disclosed, and the second ground would be moot. If the Attorney Generals appeal on the first and second grounds both succeed, then the Certificate would stand and none of the advocacy correspondence would have to be disclosed. If the Attorney Generals appeal succeeds on the first ground but fails on the second ground, then to the extent that the advocacy correspondence contains environmental information, it would have to be disclosed, but there is a dispute as to whether that would also apply to the other information in the advocacy correspondence (the non environmental information). There is also an argument as to the extent to which the advocacy correspondence contains environmental information, but that is not before us, and therefore the meaning of environmental information does not have to be considered on this appeal. Before explaining the legislative and procedural background and then turning to the issues, it is, I think, right to mention that the points which this court has to decide involve determining issues of legal principle. Accordingly, like the Divisional Court and the Court of Appeal, we have not seen the letters, and our only knowledge of their contents is based on what the Commissioner and the UT considered it appropriate to reveal in their reasoned determinations (as I have called them in order to avoid any confusion with a decision notice, which is a defined term in the FOIA 2000, as explained below). Unlike us, they had the function of deciding whether the letters should be disclosed on the merits, ie in the light of all the relevant facts and competing public interests for and against disclosure, and that required them to consider the content of the letters. The Freedom of Information Act 2000 Part I of the FOIA 2000 is concerned with Access to Information Held by Public Authorities. Section 1(1) states that: Any person making a request for information to a public authority is entitled (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him. Section 2 explains that this right is subject to the exemptions set out in Part II, and that some of the exemptions are absolute, which is self explanatory, while others are qualified, which means that they are subject to the test that in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Sections 3 7 are concerned with identifying what is a public authority, and sections 8 17 deal with the procedures (including time limits and fees) for making and answering requests for information. Section 17(1) requires any notice of refusal to specify both the exemption relied on, and (if that would not otherwise be apparent) why the exemption applies. Section 18 creates the post of Information Commissioner. As stated in section 2, Part II deals with Exempt Information. Sections 37, 40 and 41 are directly in point for present purposes. Section 37 provides for an exemption in relation to communications with the Sovereign, other members of the Royal Family or the Royal Household. Until January 2011, this was a qualified exemption, but, as a result of an amendment to the FOIA 2000 by section 46 of, and Schedule 7 to, the Constitutional Reform and Governance Act 2010, the exemption in section 37 is now absolute in relation to communications with the Sovereign, the heir to the throne, and the next in line. It is common ground that the original, qualified, version of section 37 is applicable in the present case. Section 40 of the FOIA 2000 (section 40) contains an absolute exemption in relation to personal information, subject to the data protection principles set out in the Data Protection Act 1998. Section 41 of the FOIA 2000 (section 41) exempts information which, if disclosed, would constitute an actionable breach of confidence. Although that is an absolute exemption, public interest in disclosure is normally a defence to a claim for breach of confidence, and it appears to be accepted that it could, in principle, operate as an effective answer to reliance on section 41. It is also right to refer to section 35(1), which exempts [i]nformation held by a government department if it relates to certain issues, and they include (a) the formulation or development of government policy or (b) Ministerial communications, which, by section 35(5) would extend to any communications between Ministers of the Crown. Part III of the FOIA 2000 deals with the General Functions of Lord Chancellor and Information Commissioner. The Commissioners general functions are set out in section 47, and they include promoting, disseminating, teaching, and assessing good practice in connection with the provision of information to the public by public authorities. Part IV of the FOIA 2000 is concerned with Enforcement. It starts with section 50 (section 50), which provides that an applicant, ie a person who has made an application for information under section 1(1), may apply to the Commissioner for a determination whether a request for information made to a public authority has been dealt with in accordance with the requirements of Part I. If that happens, then, by virtue of section 51, the Commissioner can require the public authority to provide him with information by serving an information notice on it. Once the Commissioner has considered a section 50 application and concluded that a public authority has wrongly failed (i) to confirm or deny that it has information as required by section 1(1)(a), (ii) to communicate information, as required by section 1(1)(b), or (iii) to comply with another obligation under Part I of the FOIA 2000, section 50(4) requires him to issue a decision notice specifying what the authority must do to rectify the failure. Section 50 is stated by subsection (7) to be subject to section 53. In addition to that specific power, section 52 states that, if the Commissioner is satisfied that a public authority has failed to comply with any obligation under Part I of the FOIA 2000, he can serve it with an enforcement notice requiring it to comply. Under subsection (1) of section 57 (section 57), either the applicant or the public authority can appeal to the tribunal against a decision notice, and a public authority is given the right to appeal against an information notice or enforcement notice under section 57(2). Subsection (1) of section 58 (section 58) provides that, if, on an appeal under section 57, the tribunal considers (a) that the notice against which the appeal is brought is not in accordance with the law or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, they shall allow the appeal or substitute such other notice as could have been served by the Commissioner. Section 58(2) specifically provides that, on such an appeal, the tribunal may review any finding of fact on which the notice in question was based. Such appeals are usually heard by the First tier Tribunal with a right of appeal to the Upper Tribunal, but only where there is claimed to be an error of law in the determination of the First tier Tribunal see section 11 of the Tribunals, Courts and Enforcement Act 2007. However, an appeal from the Commissioner under section 57 can be referred direct to the Upper Tribunal, as happened in this case. The Upper Tribunal is an independent court, which is both an expert tribunal and a superior court of record, effectively with the same status as the High Court of Justice see section 3(5) of the 2007 Act. In general, there is a right of appeal on a point of law, subject to permission, from the Upper Tribunal to the Court of Appeal see section 13 of the 2007 Act. Section 53 of the FOIA 2000 (section 53) is of central relevance to the first issue on this appeal. It confers a power on an accountable person to override a decision notice or an enforcement notice served under the FOIA 2000 on, inter alia, any government department. Section 53(2) provides that such a notice: shall cease to have effect if, not later than the twentieth working day following the effective date, the accountable person in relation to that authority gives the Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure [to comply with section l(l)(a) or (b)]. The effective date is defined in section 53(4) as the day on which (a) the notice was given to a public authority or (b) an appeal under section 57 is determined or withdrawn. The accountable person is defined in section 53(8), and, for present purposes, it is a Cabinet Minister or the Attorney General. Under section 53(6), the reasonable grounds have to be communicated to the applicant, not necessarily at the same time as the certificate, but as soon as reasonably practicable, and the communication does not have to include exempt information section 53(7). Any section 53 notice has to be laid before Parliament as soon as practicable [after it is issued], by virtue of section 53(3). Two points are worth making about the section 53 power to certify (or veto, as it is sometimes referred to). Both points are mentioned in the Ministry of Justices publication Statement of HMG Policy: Use of the executive override under the [FOIA 2000] in relation to ministerial communications. Although the Statement of HMG Policy is therefore concerned with the section 35 exemption rather than the section 37 exemption (see paras 10 and 11 above), it is of relevance in relation to the Certificate in the present case. First, as was acknowledged in the Certificate, the Governments view is that the veto should only be used in exceptional circumstances and only following a collective decision of the Cabinet. This reflects a ministerial assurance given to the House of Commons during the passage of the Bill which became the FOIA 2000. Secondly, it is appropriate to identify the reason for the inclusion of the Attorney General in section 53(8), and indeed the reason that the Certificate was issued by the Attorney General in this case. Normally, a section 53 certificate would be issued by the Secretary of State for the relevant Department. However, where (as here) the information concerned is contained in documents which were created or sent under a previous administration, there is a well established convention that on papers of a previous administration only the Attorney General will have access to the information being considered (to quote from the Statement of HMG Policy). So in this case, before he issued the Certificate, the Attorney General saw the letters and discussed them with those who were the relevant ministers at the time. Council Directive 2003/4/EC According to recital (5), the purpose of the 2003 Directive is to provide public access to environmental information and to ensure that provisions of Community law are consistent with the UN Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (the Aarhus Convention). The Aarhus Convention, through article 4(1), requires each signatory state to ensure that public authorities are obliged to comply with any request for environmental information by mak[ing] such information available to the public, within the framework of national legislation. Article 9(1) of the Aarhus Convention requires that a person who considers that a request has not been dealt with in accordance with article 4 should be able to invoke a review procedure before a court of law or other independent and impartial body, and that [f]inal decisions of that body should be binding on the public authority holding the information. Article 3 of the 2003 Directive provides that member states shall ensure that public authorities are required to make available environmental information held by them. Article 3.1 is in these terms: Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest. Article 4 provides that member states may provide for a request to be refused in specified cases. It states that the grounds for refusal shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal. Article 5 is concerned with charges. Article 6 of the 2003 Directive (article 6) is of central importance to the second issue on this appeal. So far as material, it provides: 1. Member States shall ensure that any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions of articles 3, 4 or 5, has access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that or another public authority or reviewed administratively by an independent and impartial body established by law . 2. In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final . 3. Final decisions under paragraph 2 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access is refused under this Article. The Environmental Information Regulations 2004 (SI 2004/3391) The EIR 2004 are intended to give effect to the United Kingdoms obligation to implement the 2003 Directive. Regulation 5 of the EIR 2004 provides that a public authority that holds environmental information shall make it available on request. Regulations 12 and 13 of the EIR 2004 contain exceptions to this general duty which correspond with article 4 of the Directive, and which for present purposes can be treated as closely mirroring the exceptions in sections 37, 40 and 41. Regulation 18 of the EIR 2004 provides that, with certain modifications, including enforcement and appeals, the provisions of the FOIA 2000 shall apply for the purposes of the EIR 2004. In particular, regulation 18(6) provides that section 53 applies to a decision notice or enforcement notice served under Part IV of the FOIA as applied to the EIR 2004 on any of the public authorities referred to in section 53(1)(a). Regulation 18 also provides that in section 53(7) for the reference to exempt information there should be substituted a reference to information which may be refused under these Regulations. The EU Charter Turning now to the EU Charter, article 47 provides: Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law . Article 52(3) provides: 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. The determination of the Commissioner The proceedings before the Commissioner were protracted, and, after exchanges of written submissions and evidence, he issued his determinations in December 2009. The determination concerning the letters held by the Cabinet Office ran to 192 paragraphs plus annexes, and Davis LJ in the Divisional Court rightly described it as thorough and carefully reasoned. As an initial point, the Commissioner decided that some of the contents of the letters constituted environmental information within the meaning of the 2003 Directive and the EIR 2004 (and, as explained above, that is not in dispute). He next addressed the arguments as to whether or not he should direct the Departments to disclose any or all of the letters under the FOIA 2000. He first decided that, in so far as the letters included confidential information, disclosure should not be ordered because a public interest defence would, in his view, not be available if the confidential information was published. In considering this aspect, he effectively took sections 40 and 41 together, and reached his conclusion partly because of the weighty public interest in maintaining confidences, and partly because of the specific arguments relevant in this case in relation to the Prince of Wales, which he went on to consider in relation to the section 37 exemption. The Commissioner then turned to the arguments relating to section 37, and said at para 129 that he considered that there were four reasons justifying non disclosure, namely (i) protecting the tripartite convention, namely the ability of the Sovereign to exercise her right to consult, to encourage and to warn her Government, (ii) protecting the education convention that the Heir to the Throne should be instructed in the business of government in preparation for when he is King, (iii) preserving the political neutrality of the Royal Family, and (iv) protecting the privacy and dignity of the Royal Family. He noted that the Prince of Wales had approved the release of some communications with Government Ministers already. The Commissioner concluded that the four factors which he had identified in para 129 meant that, under the FOIA 2000, in so far as the information falls within the scope of the [education] convention the public interest in maintaining the exemption is very strong and justified non disclosure. However, in so far as any information fell outside the [education] convention, the position was, he said, more finely balanced, but, even there the public interest favours maintaining the exemption. Finally, he held that the same conclusion applied to the environmental information essentially for the same reasons as he had given in relation to the FOIA 2000. The determination of the Upper Tribunal Mr Evans exercised his right to appeal under section 57, and his appeal was referred to the Upper Tribunal, which heard the appeal over six days. Again, the proceedings were rather protracted. The issues were the same as before the Commissioner, but there was substantially more evidence, and much of it was subject to cross examination. The UTs determination ran to 65 pages and 251 paragraphs, and there were appended to it substantial annexes (both open and closed). Open Annex 3 ran to 109 pages and 297 paragraphs. As Lord Dyson said in the Court of Appeal, the determination is a most impressive piece of work. The UT decided that Mr Evans was entitled to disclosure of the advocacy correspondence, which, as they explained, meant correspondence in which The Prince of Wales advocated certain causes which were of particular interest to him. These included causes which related to the environment. The UT said this near the start of their determination: 4. For reasons which we explain below, we conclude that under relevant legislative provisions Mr Evans will, in the circumstances of the present case, generally be entitled to disclosure of advocacy correspondence falling within his requests. The essential reason is that it will generally be in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence government. The Departments have urged that it is important that Prince Charles should not be inhibited in encouraging or warning government as to what to do. We have not found it necessary to make a value judgment as to the desirability of Prince Charles encouraging or warning government as to what to do, for even assuming this to have the value claimed by the Departments we do not think the adverse consequences of disclosure will be as great as the Departments fear. In broad terms our ruling is that although there are cogent arguments for non disclosure, the public interest benefits of disclosure of advocacy correspondence falling within Mr Evans's requests will generally outweigh the public interest benefits of non disclosure. 5. It is important to understand the limits of this ruling. It does not entitle Mr Evans to disclosure of purely social or personal correspondence passing between Prince Charles and government ministers. It does not entitle Mr Evans to correspondence within the established constitutional convention that the heir to the throne is to be instructed in the business of government. Nor does it involve ruling on matters which do not arise in the present case. Thus, for example, it is conceivable that there may be correspondence which, although outside the established constitutional convention, can properly be described as preparation for kingship. Or it may be that correspondence concerns an aspect of policy which is fresh and time needs to be allowed for a protected space before disclosure would be in the public interest. While they do not in our view arise in the present case it is possible that for these or other reasons correspondence sought in other cases may arguably not be disclosable. The UT then proceeded to explain why they had reached this conclusion. They considered in some considerable detail the evidence and arguments relating to the effect and relevance of the three constitutional conventions, the cardinal convention (whereby the monarch is normally expected to act in accordance with ministerial advice), the tripartite convention and the education convention. They pointed out that the Prince of Wales had strongly held views on a number of matters, including politically controversial issues and proposed legislation, that his communication of those views to government ministers was well known (not least because he, ministers and others had mentioned this publicly), that he had a self perceived role which was representational and involved expressing views in danger of not being heard, that some of the letters had been published, and that a high degree of publicity had not stopped his education about government or his correspondence with ministers. They then referred to the expert evidence on the three constitutional conventions. Contrary to the view of the Commissioner, they considered that, in the light of the expert evidence and argument, the education convention did not extend to charitable or personal matters. The UT then summarised the competing arguments in para 123 as follows (ignoring some numbering): Factors in favour of disclosure Governmental accountability and transparency; The increased understanding of the interaction between government and monarchy; A public understanding of the influence, if any, of Prince Charles on matters of public policy; A particular significance in the light of media stories focusing on Prince Charles's alleged inappropriate interference/lobbying; Furthering the public debate regarding the constitutional role of the monarchy and, in particular, the heir to the throne; and Informing the broader debate surrounding constitutional reform. Factors against disclosure Potential to undermine the operation of the education convention; An inherent and weighty public interest in the maintenance of confidences; Potential to undermine Prince Charles's perceived political neutrality; Interference with Prince Charles's right to respect for private life under article 8; and A resultant chilling effect on the frankness of communication between Prince Charles and government ministers. The UT recorded that the parties differed as to the weight to be accorded to these factors, and then went on to discuss them in some detail. They observed that the Commissioner had given insufficient weight to the public interest, and had overestimated the extent to which disclosure would undermine the [education] convention. The UT expressed the view that the education convention would actually be assisted by recognition that advocacy communications will generally be disclosable if requested. The UT then carefully assessed and weighed the various factors which they had identified in para 123, and reached the conclusion that the advocacy correspondence should be disclosed. In very summary terms, the UTs conclusion was that, in relation to section 37 the public interest outweighed the argument for the exemption, in relation to section 40 this meant that para 6(1) of Schedule 2 to the Data Protection Act applied, and in relation to section 41 the public interest prevented the disclosure being a breach of confidence. Further details of the UTs reasoning is set out in Lord Mances judgment. In the course of the discussion the UT considered the date at which the position must be tested, and discussed this at paras 46 63 of their determination. At para 58, they stated that the reference date cannot be later than 28 February 2006, which was the latest date by which any of the Departments ought to have concluded their internal review of the decision to refuse Mr Evanss request. However, the UT added that later occurring matters could be taken into account if they cast light on the circumstances at the reference date. The Attorney Generals certificate A few weeks later, the Attorney General issued the Certificate stating that he had on reasonable grounds formed the opinion that the Departments had been entitled to refuse the requests for disclosure. The effect of the Certificate was that any decision notice of the UT requiring the Departments to disclose the advocacy correspondence ceased to have effect. As the Court of Appeal pointed out, it may be that the Attorney General issued the Certificate prematurely (unsurprisingly in the light of the strict time limit in section 53(2)), because the UT had not formally issued a decision notice, although they had published their final determination. However, nothing hangs on that. The Certificate summarised the background and then, over more than five pages, explained why the Attorney General had decided to exercise his power under section 53(2). After accurately encapsulating the UTs reasoning and conclusions, he set out the arguments for and against disclosure as he saw them. Against disclosure, he thought, was the important basis for the section 37 exemption, namely the three constitutional conventions and their particular significance in the context of the letters. The Attorney General explained that it was important that the Prince of Wales should be able to engage in correspondence and engage in dialogue with Ministers about matters falling within the business of their departments as such correspondence and dialogue will assist him in fulfilling his duties under the tripartite convention as King. He went on to explain that [d]iscussing matters of policy with Ministers, and urging views upon them, falls within the ambit of advising or warning about the Governments actions. He then said that if such correspondence is to take place at all, it must be under conditions of confidentiality. He added that the advocacy correspondence deserved protection from disclosure given that it was clearly conducted on a confidential basis. The Attorney General thought that the recent nature of the letters, and the fact that they revealed deeply held personal views which were often particularly frank, but not at all improper, militated against disclosure. He then turned to the argument for disclosure, which included governmental accountability and transparency, improving public understanding of government, and furthering public debate about the role of the monarch and the heir to the throne. However, he made it clear that, while these were good generic arguments, they could only succeed in the present instance at the expense of the strong public interest arguments against disclosure, and that he disagreed with the UTs view that the Prince of Wales was in no different position from any other lobbyist. The Attorney General then said that in his view the public interests in non disclosure of the disputed information in this case substantially outweigh the public interests in its disclosure. He then went on to say that the same conclusion applied to the environmental information as well as to the non environmental information. He also took the view that there would be a breach of the Prince of Waless data protection rights if the advocacy correspondence was made public. The Attorney General then acknowledged that the section 53 power should be exercised only in exceptional cases, but said that he was satisfied that this is such an exceptional case, for reasons which he summarised as being the following: The fact that the information in question consisted of private and confidential letters between The Prince of Wales and Ministers. The fact that the request in this case was for recent correspondence. The fact that the letters in this case formed part of The Prince of Waless preparation for kingship. The potential damage that disclosure would do to the principle of The Prince of Waless political neutrality, which could seriously undermine the Princes ability to fulfil his duties when he becomes King. The ability of the Monarch to engage with the Government of the day whatever its political colour, and maintain political neutrality as a cornerstone of the UKs constitutional framework. Further details of the contents of the Certificate are set out in Lord Mances judgment. The instant judicial review proceedings Mr Evans sought judicial review of the Certificate, arguing that it was invalid on two grounds. First, in domestic law, he contended that section 53 did not permit a certificate to be issued simply because, on the same facts and arguments, the accountable person took a different view of the public interest from the Upper Tribunal when it came to the issue of disclosure. Secondly, in EU law, because the advocacy correspondence included environmental information, he contended that, once the UT had issued its determination, it was contrary to the provisions of article 6, supported by the EU Charter, for anyone, especially a member of the executive, to overrule that determination. The Divisional Court rejected both lines of argument in a judgment given by Davis LJ, with which Lord Judge CJ (who delivered a short concurring judgment) and Globe J agreed. They held that reasonable grounds in section 53(2) simply meant grounds which, when viewed on their own, were cogent, and there was no reason to constrain the expression to exclude the accountable person from forming his own view simply because it differed from that of a court or tribunal. As to the EU law argument, the Divisional Court rejected the contention that invoking section 53 fell foul of the 2003 Directive or the EU Charter in a case where a court or tribunal had ruled that the information concerned should be disclosed. Mr Evans appealed to the Court of Appeal, and in a judgment given by Lord Dyson MR (with which Richards and Pitchford LJJ agreed) they allowed his appeal on both points. They also gave the Attorney General permission to appeal to this court. I turn then to the two arguments which are said on behalf of Mr Evans, and were held by the Court of Appeal, to undermine the Certificate. The Certificates validity under the FOIA 2000 Validity under the FOIA 2000: introductory The argument for the Attorney General under the FOIA 2000 proceeds as follows. First, section 53 clearly envisages that an accountable person, ie the Attorney General or a Cabinet Minister, can override a decision notice ordering disclosure; secondly, it is clear, especially in the light of section 53(4)(b) (referring as it does to the power being exercised after any appeal has been determined) and section 58(1) (which enables the tribunal to confirm or issue a decision notice), that the power can be exercised even after a tribunal or any court has ordered disclosure; and, thirdly, while reasonable grounds for the certificate have to be given, it cannot be said that the Attorney Generals grounds were unreasonable in this case, as (a) they reflected the views of the Commissioner, and (b) the UT acknowledged that there were cogent arguments for non disclosure. The only point of dispute to which this argument gives rise is at the third stage. Ms Rose QC, on behalf of Mr Evans, contends that, construed in its context (as of course it must be) the expression reasonable grounds does not permit the accountable person to issue a certificate simply because, on the basis of the same facts and issues as were before a judicial tribunal (particularly a court of record), he takes a different view from that which was taken by the UT in its determination. On this basis, she contends, once a judicial tribunal, or at any rate a court of record, has ruled on the question, there has to be something more than a mere different assessment on the part of the accountable person of where the balance falls before a certificate can be justified. Validity under the FOIA 2000: the constitutional aspect When one considers the implications of section 53(2) in the context of a situation where a court, or indeed any judicial tribunal, has determined that information should be released, it is at once apparent that this argument has considerable force. A statutory provision which entitles a member of the executive (whether a Government Minister or the Attorney General) to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom. It would cut across two constitutional principles which are also fundamental components of the rule of law. First, subject to being overruled by a higher court or (given Parliamentary supremacy) a statute, it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive. Secondly, it is also fundamental to the rule of law that decisions and actions of the executive are, subject to necessary well established exceptions (such as declarations of war), and jealously scrutinised statutory exceptions, reviewable by the court at the suit of an interested citizen. Section 53, as interpreted by the Attorney Generals argument in this case, flouts the first principle and stands the second principle on its head. It involves saying that a final decision of a court can be set aside by a member of the executive (normally the minister in charge of the very department against whom the decision has been given) because he does not agree with it. And the fact that the member of the executive can put forward cogent and/or strongly held reasons for disagreeing with the court is, in this context, nothing to the point: many court decisions are on points of controversy where opinions (even individual judicial opinions) may reasonably differ, but that does not affect the applicability of these principles. In M v Home Office [1994] 1 AC 377, 395, Lord Templeman in characteristically colourful language criticised the proposition that the executive obey the law as a matter of grace and not as a matter of necessity [as] a proposition which would reverse the result of the Civil War. The proposition that a member of the executive can actually overrule a decision of the judiciary because he does not agree with that decision is equally remarkable, even if one allows for the fact that the executives overruling can be judicially reviewed. Indeed, the notion of judicial review in such circumstances is a little quaint, as it can be said with some force that the rule of law would require a judge, almost as a matter of course, to quash the executive decision. The constitutional importance of the principle that a decision of the executive should be reviewable by the judiciary lay behind the majority judgments in the famous case, Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, where the House of Lords held that a statutory provision, which provided that any determination by the commission in question shall not be called in question in any court of law, did not prevent the court from deciding whether a purported decision of the commission was a nullity, on the ground that the commission had misconstrued a provision defining their jurisdiction. Lord Reid said at p 170D that if it had been intended to prevent any inquiry [in all circumstances] I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court of law. And see per Lord Diplock in In re Racal Communications Ltd [1981] AC 374, 383, where he held that there is a presumption that Parliament did not intend an administrative body to be the final arbiter on questions of law. This is scarcely a recent development. In R v Cheltenham Commissioners (1841) 1 QB 467, a statute provided that any decision of the Quarter Sessions as to the levying of certain rates was to be final, binding, and conclusive to all intents and purposes whatsoever, and that no order made in that connection shall be removed or removable by certiorari, or any other writ or process whatsoever, ; any law or statute to the contrary thereof in anywise notwithstanding. Despite this, Lord Denman CJ robustly stated at p 474 that [T]he clause which takes away the certiorari does not preclude our exercising a superintendence over the proceedings, so far as to see that what is done shall be in pursuance of the statute. The statute cannot affect our right and duty to see justice executed; and, here, I am clearly of opinion that justice has not been executed. The importance of the right of citizens to seek judicial review of actions and decisions of the executive, and its consequences in terms of statutory interpretation, was concisely explained by Lady Hale in Jackson v Her Majesty's Attorney General [2005] UKHL 56, [2006] 1 AC 262, para 159. She said that [t]he courts will, of course, decline to hold that Parliament has interfered with fundamental rights unless it has made its intentions crystal clear. The same point had been made, albeit in more general terms, by Lord Hoffmann in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131E F, where he said: [T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document At least equally in point is the proposition set out by Lord Reed in AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 AC 868, para 152, that: The principle of legality means not only that Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so. In support of this proposition, Lord Reed cited two passages from the decision of the House of Lords in R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539. At p 575, Lord Browne Wilkinson said that A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament. To much the same effect, Lord Steyn said at p 591 that [u]nless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. Accordingly, if section 53 is to have the remarkable effect argued for by Mr Eadie QC for the Attorney General, it must be crystal clear from the wording of the FOIA 2000, and cannot be justified merely by general or ambiguous words. In my view, section 53 falls far short of being crystal clear in saying that a member of the executive can override the decision of a court because he disagrees with it. The only reference to a court or tribunal in the section is in subsection (4)(b) which provides that the time for issuing a certificate is to be effectively extended where an appeal is brought under section 57. It is accepted in these proceedings that that provision, coupled with the way that the tribunals powers are expressed in sections 57 and 58, has the effect of extending the power to issue a section 53 certificate to a decision notice issued or confirmed by a tribunal or confirmed by an appellate court or tribunal. But that is a very long way away indeed from making it crystal clear that that power can be implemented so as to enable a member of the executive effectively to reverse, or overrule, a decision of a court or a judicial tribunal, simply because he does not agree with it. All this militates very strongly in favour of the view that where, as here, a court has conducted a full open hearing into the question of whether, in the light of certain facts and competing arguments, the public interest favours disclosure of certain information and has concluded for reasons given in a judgment that it does, section 53 cannot be invoked effectively to overrule that judgment merely because a member of the executive, considering the same facts and arguments, takes a different view. Validity under the FOIA 2000: previous authority 61. 63. 62. 64. Secretary of State] has reached his own view on rational grounds, and that he must have a reason (other than simply a preference for his own view) for rejecting a finding which the ombudsman has made after an investigation under [statutory] powers. It seems to me that this involved setting a somewhat lower threshold for departing from the earlier decision than Powergen or Danaei. In Bradley, as in this case, the two decisions were provided for in the same statute as part of an overall procedure, whereas in Powergen the two decisions arose under different statutory codes relating, respectively, to planning law and highways law. Danaei was something of a hybrid, as the two decisions were made under different statutes (the Asylum and Immigration Appeals Act 1993 and the Immigration Act 1971), but they were both part of the overall statutory asylum and immigration code, although not part of the same overall procedure. As in Bradley, it seems to me to follow from the fact that the two decisions in this case are provided for in the same statute and as part of a single procedure, that the second decision maker, the accountable person, cannot always be obliged to follow the view of the first decision maker, the Commissioner (or, on an appeal, the tribunal or the courts): otherwise there would be no point in providing for a second decision. However, that does not ultimately assist on the issue between the parties, namely the circumstances in which the accountable person is allowed to refuse to follow the earlier decision. 65. As to that aspect, Mr Evanss case here is, at least in principle, significantly stronger than that of the successful applicant in the three Court of Appeal cases. The first decision (the equivalent of the Upper Tribunals decision in this case) was reached after a hearing in Powergen and in Danaei and after a full investigation in Bradley. However, in none of those three cases was there a hearing before a judicial body, as in the present case. Even the inspector in Powergen and the adjudicator in Danaei were not judicial entities (as an immigration adjudicator was not at that time a member of the judiciary). Additionally, unlike the applicant in Powergen and in Danaei, Mr Evans had no opportunity to make submissions to the second decision maker. I am unimpressed by the point that the accountable person under section 53 is in a stronger position than the Secretary of State in Bradley, because he has express statutory power to disagree with a certificate: it was inherent in the statutory provisions, indeed it was essential to the reasoning of the Court of Appeal, in Bradley that the Secretary of State could disagree with the decision of the ombudsman. Validity under the FOIA 2000: provisional view 66. Such comparisons with other cases can, however, only be of limited assistance: what is of more importance is to seek to identify the relevant principles. In Bradley at para 70, Sir John Chadwick did just that and suggested that there were five applicable propositions. At least for present purposes, I would reformulate and encapsulate those propositions in the following two sentences. In order to decide the extent to which a decision maker is bound by a conclusion reached by an adjudicative tribunal in a related context, regard must be had to the circumstances in which, and the statutory scheme within which, (i) the adjudicative tribunal reached its conclusion, and (ii) the decision maker is carrying out his function. In particular, the court will have regard to the nature of the conclusion, the status of the tribunal and the decision maker, the procedure by which the tribunal and decision maker each reach their respective conclusions (eg, at the extremes, (i) adversarial, in public, with oral argument and testimony and cross examination, or (ii) investigatory, in private and purely on the documents, with no submissions), and the role of the tribunal and the decision maker within the statutory scheme. 67. Although Sir John expressed his propositions so as to apply to findings of fact, it seems to me that they must apply just as much to opinions or balancing exercises. The issue is much the same on an appeal or review, namely whether the tribunal was entitled to find a particular fact or to make a particular assessment. Anyway, it is clear from Powergen that an assessment as to whether an access onto a highway would be safe fell within the scope of his propositions. Indeed, the ombudsmans decision in Bradley itself seems to me to have involved issues as to which she had to make assessments or judgements, such as whether the department concerned should have done more and whether some failures amounted to maladministration see at para 27 of Sir Johns judgment. In these circumstances, it appears to me that there is a very strong case for saying that the accountable person cannot justify issuing a section 53 certificate simply on the ground that, having considered the issue with the benefit of the same facts and arguments as the Upper Tribunal, he has reached a different conclusion from that of the Upper Tribunal on a section 57 appeal. I would summarise my reasons as follows. 68. 69. First, and most importantly, the two fundamental principles identified in para 52 above. Secondly, (i) the fact that the earlier conclusion was reached by a tribunal (a) whose decision could be appealed by the departments, (b) which had particular relevant expertise and experience, (c) which conducted a full hearing with witnesses who could be cross examined, (d) which sat in public, and had full adversarial argument, and (e) whose members produced a closely reasoned decision, coupled with (ii) the fact that the later conclusion was reached by an individual who, while personally and ex officio deserving of the highest respect, (a) consulted people who had been involved on at least one side of the correspondence whose disclosure was sought, (b) received no argument on behalf of the person seeking disclosure, (c) received no fresh facts or evidence, and (d) simply took a different view from the tribunal. 70. However, before one can fairly conclude that a section 53 certificate cannot be issued to override a decision of a court simply because the accountable person disagrees with the conclusion reached by the court on a section 57 appeal, it is necessary to address two questions. First and most obviously, if this constraint applies to the issue of a section 53 certificate after a determination by the Upper Tribunal, in what circumstances could such a certificate be issued once the Upper Tribunal (or an appellate court) has issued or approved a decision notice? Secondly, does the same constraint apply when there has been no appeal from the Commissioner, and, if so, how does the power to issue a certificate under section 53 interrelate with the right of appeal under section 57? Validity under the FOIA 2000: implications of provisional view If section 53 does not entitle an accountable person to issue a certificate simply on the ground that he disagrees with the determination of a court to uphold, or issue, a decision notice, then, given that it is agreed that section 53 can be invoked once a court has reached such a determination, the question arises: on what grounds can it be issued in such circumstances? The specific examples mentioned by the Court of Appeal in answer to this question may be found in para 38 of Lord Dysons judgment, and they are a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law (cf what Simon Brown LJ said in Danaei, quoted in para 62 above). 71. 72. As to the first example, the likelihood of a material change in circumstances at first sight seems almost vanishingly slight, given the very short period of 20 days for the issue of the certificate under section 53(2). However, the position is rather more subtle than that point suggests. It is common ground, in the light of the language of sections 50(1), 50(4) and 58(1), which all focus on the correctness of the original refusal by the public authority, that the Commissioner, and, on any appeal, any tribunal or court, have to assess the correctness of the public authoritys refusal to disclose as at the date of that refusal. The same is true of the accountable person considering the issue of a certificate under section 53(2). 73. However, although the question whether to uphold or overturn (under section 50 or sections 57 and 58) a refusal by a public authority must be determined as at the date of the original refusal, facts and matters and even grounds of exemption may, subject to the control of the Commissioner or the tribunal, be admissible even though they were not in the mind of the individual responsible for the refusal or communicated at the time of the refusal to disclose (i) if they existed at the date of the refusal, or (ii) if they did not exist at that date, but only in so far as they throw light on the grounds now given for refusal see Coppel on Information Rights 4th ed (2014), paras 28 022 and 28 024, and Department for The Environment, Food and Rural Affairs v Information Comr (Birkett) [2011] EWCA Civ 1606, [2012] PTSR 1299. Although Birkett was a decision on the 2003 Directive and EIR 2004, it seems clear that the reasoning of Sullivan LJ (summarised at para 21 of the decision) applies with equal force to the procedures under sections 50, 57 and 58. Given the language of section 53(2), when compared with that of section 50(4) and section 58(1), it seems to me that it must also apply to the accountable person when issuing a section 53 certificate. 74. Therefore, before the Commissioner on a section 50 application, or before the tribunal on a section 57 appeal, it would often be open to the parties (as they did in this case) to rely on factual evidence, expert evidence, or assessments of possible risks, or even exemptions, which may not have been known to, or in the mind of, the person who was responsible for the original decision to refuse the section 1 request. However, it would not be open to the parties, or at least not nearly so easily open to them, to rely on such matters on an appeal from the First tier Tribunal to the Upper Tribunal or from the Upper Tribunal to the Court of Appeal, which can only be brought on a point of law (see para 16 above). 75. As already mentioned, at first sight, it would appear to be very unlikely that relevant new evidence or grounds, which would not have been available before the Commissioner on a section 50 application or before the First tier Tribunal on a normal section 57 appeal, would be available to an accountable person considering issuing a section 53 certificate, given that it has to be issued within twenty days. However, it is by no means impossible that new evidence or grounds could come to the accountable persons attention after the submissions to, but before the determination of, the Commissioner or the tribunal. Or it could happen that the accountable person might rely on evidence or grounds which were excluded by the Commissioner or the tribunal. Of more direct relevance to the point at issue, however, is the fact that the possibility of new evidence or grounds coming to the attention of the accountable person would be decidedly less unlikely in a case where there was an appeal to the Upper Tribunal or the Court of Appeal. That is because new evidence and grounds could not, or at least could much less easily, be put before the Upper Tribunal or the Court of Appeal on an appeal, and therefore there would anyway be no question of the facts or evidence only having to come to light during the twenty day window. 76. Lord Dysons second example also looks questionable at first sight, in the light of the available appeal process described in paras 15 16 above. One would have thought that if a tribunal or court gives a demonstrably flawed determination to issue a decision notice directing a government department to give disclosure, then (unless, I suppose, the determination concerned is that of the Supreme Court), if the department wished to challenge the decision notice, it should be expected to appeal against it, rather than resorting to a section 53 certificate. 77. However, the position is not quite as simple as that. As just mentioned, it is only possible to appeal against a determination of the First tier Tribunal to the extent that it has gone wrong in law. Further, not only is that true of an appeal from the Upper Tribunal, but such an appeal would normally be a second appeal, which is generally only permitted on an important point of law or practice. There is therefore a real possibility that there could be facts or matters which come to light at some point and indicate that there have been serious flaws in the determination of the First tier Tribunal or the Upper Tribunal which could not be the subject matter of an appeal and could not be brought before a higher tribunal or court, but which could be taken into account by the accountable person when considering whether to issue a section 53 certificate. 78. Accordingly, I agree with Lord Dyson as to two types of circumstances in which a section 53 certificate could be issued even after a decision notice had been issued or confirmed by a judicial tribunal or court on an appeal. The totality of applications under section 1 of the FOIA 2000 could potentially lead to such a myriad of possibilities that it is far from impossible that other circumstances could arise. It therefore appears to me that, if Mr Evanss case is correct, section 53 would have some potential function where a court or judicial tribunal had determined or confirmed that disclosure should be given, but it would be likely to be on few occasions and on limited grounds. 79. The second question is whether the same degree of constraint applies to a section 53 certificate if it had been the Commissioners determination, rather than the Upper Tribunals determination, which required disclosure, and there had been no appeal. Ms Rose contends that the answer is that the constraints on invoking section 53 would be significantly less. In the first place, neither of the fundamental constitutional principles referred to in para 52 above would apply because the Commissioner is part of the executive not the judiciary. Secondly, the Commissioner does not hold public hearings with cross examination and oral argument. However, the Commissioner is an expert who gives reasoned and appealable decisions, and he often receives detailed evidence and arguments. As I understood it, Ms Roses contention was that the accountable person could issue a section 53 certificate following a decision notice issued by the Commissioner, even though there was no new evidence or grounds, provided that the accountable person gave cogent reasons for disagreeing with the Commissioner. 80. That raises a point of some difficulty: in a case where the Commissioner has determined that disclosure should have been given and issues a decision notice, it could plainly be argued, as a matter of statutory interpretation, that the executive would be free to choose between appealing under section 57 and issuing a section 53 certificate. There must, however, be a powerful case for saying that it would at least often be a misuse of the section 53 power to issue a certificate on certain grounds when it would be possible to appeal to the tribunal under section 57 on the same grounds. That is an issue which was hardly addressed in argument, and it does not need to be resolved for the purpose of determining this appeal, but it was raised by the intervener and it is worth briefly discussing. If the constraint on issuing a certificate under section 53 after a determination of the Commissioner is the same as I have suggested in para 68 above after a determination of the Upper Tribunal, then it would be difficult to envisage circumstances in which a certificate could be issued after a determination of the Commissioner (given what is said in paras 71 78 above), particularly if a further restriction existed because of the right to appeal (see paras 79 80 above). 81. 82. On the other hand, if the constraint is less, so that a certificate could be issued if the accountable person does not agree with the Commissioner for cogently argued reasons but without any new material, then there would be an arguable anomaly. This is because, if the applicants section 50 application to the Commissioner succeeded, the executive would find it much easier to issue a defensible section 53 certificate than if the executive succeeded before the Commissioner, and the applicant then won on appeal to the tribunal (as in this case). 83. Accordingly, if the constraint on the issue of a section 53 certificate after a determination of the tribunal is as provisionally concluded in para 68 above, the position in relation to the issue of a section 53 certificate after a determination of the Commissioner would not be entirely satisfactory irrespective of whether the constraint is the same or less than after a determination of the Upper Tribunal. As at present advised, I am inclined to the view that (i) Ms Rose is right in her suggestion that the constraint on the issue of a section 53 certificate after a decision of the Commissioner is less (and that it is similar to that envisaged by Sir John Chadwick in Bradley), but (ii) there would be some further restriction in that the executive should normally be expected to appeal an adverse determination of the Commissioner rather than issuing a section 53 certificate. However, as already explained, that is not something which needs to be conclusively determined in these proceedings. 85. 84. While it is unnecessary to decide that issue for present purposes, it highlights an important point for present purposes, namely that the co existence of the two potentially parallel courses of certifying under section 53 and appealing under section 57 (and thereafter under sections 11 and 13 of the 2007 Act) gives rise to difficulties, however we resolve the issue raised by this appeal, namely the extent of the grounds upon which a section 53 certificate can override the decision of a judicial tribunal. I have not so far addressed the question of the issue of a section 53 certificate after a determination of the First tier Tribunal, which is not a court of record. Although Ms Rose placed weight on the fact that the Upper Tribunal is a court of record, I consider that this is not really in point. The essential point is that, as explained in para 16 above, the Upper Tribunal has been specifically designated by Parliament as part of the judiciary by section 3(5) of the 2007 Act, and therefore the constitutional issue, which is so central to her argument, applies. There is no equivalent provision to section 3(5) in relation to the First tier Tribunal. However, at least as at present advised, it appears to me that the effect of the 2007 Act is that such tribunals are part of the judiciary. Accordingly, I am currently of the view that the limitation on the grounds upon which a section 53 certificate can be issued following a decision of the First tier Tribunal are the same as following a decision of the Upper Tribunal. Validity under the FOIA 2000: conclusion In these circumstances, I agree with the Court of Appeal, rather than the Divisional Court, on this difficult first issue. I accept that this conclusion results in (i) section 53 having a very narrow range of potential application (paras 71 79 above) and (ii) the position of the exercise of the section 53 power being somewhat unsatisfactory following a determination of the 86. Commissioner (see paras 80 83 above). As to point (i), it was always envisaged that section 53 would be rarely invoked (see paras 19 and 20 above), and the fact that it may well have an even narrower range of application than the executive seems to have assumed is not a particularly forceful point. As to point (ii), the same argument applies, and in addition there is the significant fact that the co existence of the two rights available to the executive under section 53 and section 57 gives rise to problems on any view (see para 84 above). 87. Accordingly, I am unpersuaded that these two points are sufficient to overcome the argument raised by Mr Evans, namely that, if it is necessary to give section 53 a significantly narrower application than it might otherwise have had, in order to respect the two fundamental constitutional principles identified in para 52 above, bolstered by the other factors summarised in para 69 above, then the section must be accorded that narrow effect. I would therefore accept that argument, provided that the section can fairly be given that narrower meaning as a matter of language. 88. Turning then to the language of section 53, it is obviously true that the expression reasonable grounds could, as a matter of ordinary English, have the meaning and effect adopted by the Divisional Court (as described in para 47 above). However, like any other expression, its meaning is highly dependent on its context. As Lord Dyson said in the Court of Appeal at para 37, in the context of section 53 the appropriate question is whether it would be reasonable for the accountable person to make a decision contrary to an earlier decision on precisely the same point. In the present context, I agree with him that it is not reasonable for an accountable person to issue a section 53 certificate simply because, on the same facts and admittedly reasonably, he takes a different view from that adopted by a court of record after a full public oral hearing. I would add that the 2000 Act was passed after the Powergen and Danaei cases had been decided, and they both precluded executive decisions which conflicted with earlier decision of tribunals which were not even part of the judiciary. So it is not as if the grounds for this conclusion could have been unforeseen by Parliament. It is also fair to add that this conclusion could be said to cut across the two fundamental constitutional principles identified in para 52 above, in the sense that it would permit a member of the executive to override a judicial determination in some circumstances. However, section 53 has to be given some meaning in relation to a case where a court has issued or upheld a decision notice. It seems to me that the meaning I have adopted respects the two principles while giving effect to section 53, in that it limits the ambit of the section to cases which involve matters which were not before the tribunal or court which issued or upheld the notice, and will therefore not enable a 89. member of the executive to overrule a judicial decision simply because he disagrees with it. The different views expressed in other judgments 90. Before leaving this first aspect of the appeal, I ought to address the different conclusions reached by Lord Wilson and Lord Hughes, and the different approach adopted by Lord Mance. I place considerably greater reliance than they do on the implication of the constitutional principles discussed in paras 51 59 and 69 above. As I have sought to explain, there is no clear or specific suggestion anywhere in the FOIA 2000 that it is intended that a section 53 certificate should enable a member of the executive to override a judicial decision. Accordingly, it seems to me that this is a case where it has not been made crystal clear that fundamental constitutional principles are intended to be disapplied, and where Parliament has not confront[ed] what it is [alleged to have been] doing, but has used general or ambiguous words. The problems which can be said to arise from the interpretation I favour, and which are discussed in paras 71 84 above and in paras 124, 154 155 and 168 178 all ultimately concern the practical consequences of the interpretation, and, quite apart from the fact that some of those problems arise in any event, they are simply not commensurate with the fundamental constitutional issues which seem to me to be so centrally in point. In his trenchant judgment, Lord Wilson suggests that, because I accept that the Attorney Generals grounds, as expressed in his section 53 certificate, appear reasonable, there are difficulties in concluding that he did not have reasonable grounds within the meaning of section 53. As I have sought to explain in para 88 above, the meaning of reasonable grounds in section 53 is, inevitably, contextual, and, because of the factors summarised in para 69 above, it appears to me that grounds are not reasonable if they simply involve disagreeing with the conclusions of a court or judicial tribunal on the same material as was before it, however rational those grounds might otherwise appear to be if viewed on their own. In that, Lord Mance and I are in accord. Thus, as Lord Mance says, on any view, reasonable grounds in section 53(2) must require a higher hurdle than mere rationality. 91. 92. Lord Wilson identifies two further factors which I ought to mention. First, he refers to the fact that earlier versions of the Bill which became the FOIA 2000 conferred a power on the Commissioner to recommend, rather than to order, public authorities to disclose documents. Even if earlier versions of the Bill are admissible in relation to the present issue, the conclusions which can be drawn from the drafting history explained by Lord Wilson in his para 171 are, in my view, at best equivocal. As for Lord Hoffmanns observation which Lord Wilson cites in his para 172, it is common ground that what the general interest requires in relation to freedom of information has been decided by a democratically elected bod[y], namely by Parliament when enacting the FOIA 2000. The issue in this case is what the FOIA 2000 means, and it is for the courts to interpret an enactment, and, when doing so, they should bear in mind established constitutional principles. For the reasons which I have given, it appears to me that those principles lead to the conclusion that Mr Evanss submission is correct. 93. Lord Mances analysis has undoubted attractions, and I suspect that, as may be suggested by the fact that he and I reach the same conclusion in this case, his approach will normally yield the same outcome as mine. We have very similar views in practice as to the ability of the accountable person to differ from a tribunal decision on an issue of fact and law, and in reality it will, I think, normally be very hard for an accountable person to justify differing from a tribunal decision on the balancing exercise on Lord Mances analysis. However, quite apart from the fundamental point made in para 89 above, I have some difficulties with that analysis. 94. Thus, as I think is apparent from the very full and detailed reasoning of the UT in this case, twenty days is an unrealistically short period to impose for a section 53 certificate if such high standards of analysis and justification are to be imposed on an accountable person. It would be tantamount to requiring a judge to produce a decision in a complex case in three weeks and, unlike senior Ministers or the Attorney General, judges are used to producing reasoned judgments, can ruthlessly prioritise judgment writing over all other commitments if they have to do so, and do not have to, indeed should normally not, consult others when producing a judgment. (It is true that the grounds under section 53 can be given after the certificate, but, unless and until the accountable person has worked out the grounds, he or she will not be able to issue a certificate). I also do not quite see where, on Lord Mances analysis, the boundary lies between reasoning which satisfies, and reasoning which does not satisfy, the requirement for the clearest possible justification before the accountable person is to be entitled to disagree with the tribunal on an issue of fact. For instance, in this case, the UT and the Attorney General had different views on the extent of aspects of the tripartite convention, the likelihood of the correspondence continuing, and the public perception of the correspondence. If the Attorney General was permitted to disagree with the tribunal on such issues in the absence of any new material, then I would have thought that he should be entitled simply to say so in the way that he did, namely because he had clearly thought about the issues and simply took a different, and inherently rational, view of the evidence and arguments. 95. 96. Further, if the Attorney General was more or less bound by the findings of fact and law made by the tribunal because it heard full evidence and arguments, I find it a little difficult to understand why that should not also apply to the tribunals conclusion as to the weight to be attributed to the competing interests. For instance, both the extent of the constitutional conventions and the balancing exercise are matters of opinion, judgment and experience, on which any conclusion is inevitably influenced by evidence and argument. 97. To say that the tribunal is the arbiter of the facts appears to me to involve implying a restriction into section 53 for which there is no principled justification. I accept that, if a tribunals decision were challenged on an appeal, its finding as to the conventions would probably be treated as one of fact, and its resolution of the balancing exercise would not. However, I do not consider it to be appropriate to treat the accountable person like an appellate court. Not only is he not performing a judicial or an appellate function, but, whatever else may be in dispute, it is common ground that he can certify if fresh material emerges, and that he is entitled, indeed could be expected, to obtain evidence and views from people who did not give evidence to the tribunal. The effect of the 2003 Directive on the Certificate 98. In the light of my conclusion on this first issue, it is not strictly necessary to consider the second issue, namely the effect of the 2003 Directive, but the point is of importance and has been fully argued, so I will deal with it. The 2003 Directive: environmental information covered by the Certificate 99. As explained above, the advocacy correspondence includes environmental information. In those circumstances, it is argued on behalf of Mr Evans that, quite apart from the effect of the FOIA 2000, the Certificate is ineffective, either in relation to the environmental information or generally in relation to the advocacy correspondence, in the light of article 6. 100. Article 6.1 requires that, following a refusal by a public authority of a request for environmental information, the applicant has access to a procedure in which the [refusal] can be reconsidered by that or another public authority or reviewed administratively. That requirement is plainly satisfied by the incorporation of section 50 into the EIR 2004: a reconsideration or an administrative review is carried out by the Information Commissioner. Article 6.2 requires that [i]n addition, the applicant must have access to a review procedure before a court of law or [similar] body] in which the [refusal] can be reviewed and whose decisions may become final. There is no doubt but that this requirement is satisfied to the extent that the tribunal is a court of law or [similar] body which can properly review the refusal. But, if and insofar as its decision can be effectively overridden by the executive under section 53, runs the argument, there would be a plain breach of the requirement that the outcome of that review become[s] final. And the importance of that requirement is, of course, underlined by the first sentence of article 6.3, [f]inal decisions under paragraph 2 shall be binding on the public authority holding the information. 101. The argument advanced by the Attorney General to meet this point is that article 6 is satisfied because a certificate under section 53 can be the subject of judicial review (as these very proceedings demonstrate), and that therefore, although the issue of a section 53 certificate can result in a more etiolated process (particularly when, as here, it is issued after the matter has gone to the tribunal), the basic requirements of article 6 are satisfied. In effect, this argument suggests, the worst that can be said about the position in the present case is that it involves two procedures, the first involving a decision by the authority, followed by an article 6.1 review (by the Commissioner) and then an article 6.2 review (by the tribunal), which is in turn followed by a fresh article 6.1 review (by the Attorney General) and then a fresh article 6.2 review (by the Divisional Court). 102. In my view, the Attorney Generals argument should be rejected, essentially for the reasons advanced by Mr Pitt Payne QC for the Information Commissioner and by Ms Rose. The structure of article 6 is that, where the executive has refused a disclosure request and the applicant wishes to pursue the matter, (i) the executive must reconsider its refusal (article 6.1), (ii) if it maintains the refusal, the applicant must be accorded recourse to the judiciary (article 6.2), and, if he takes that up, (iii) the decision of the judiciary is to be final (article 6.2) and binding on the executive (article 6.3). 103. Accordingly, in this case, once the right of appeal against the Commissioners determination had been exercised by Mr Evanss appeal to the Upper Tribunal, and that tribunal had made its determination requiring disclosure, it seems to me very difficult to argue against the proposition that the closing words of article 6.2 and the opening sentence of article 6.3 applied. In the light of those provisions, there is in my judgment simply no room for the executive to have another attempt at preventing disclosure. In other words, it is inconsistent with the provisions of article 6 for there to be a right in the executive to override the judicial decision provided for in article 6.2. (It also appears to me to be inappropriate for there to be an additional procedural hurdle given that it would inevitably increase the delay and potentially increase the expense for any applicant seeking environmental information.) 104. Having said that, it is appropriate to consider the contention that the inclusion of the section 53 power could nonetheless be justified under the 2003 Directive in the light of article 4. I would reject that contention. I consider that it is clear from the structure and wording of the Directive that article 6 is intended to provide a means of challenging a public authority which seeks to rely on article 4 to refuse information: article 4 cannot be invoked after the article 6 procedure has been gone through. I therefore consider that, in so far as it is sought to be invoked in relation to environmental information, the Certificate does fall foul of article 6. 105. Even if this objection to the incorporation of section 53 into the EIR 2004 procedure were not good, and there was nothing objectionable in the executive having another attempt at preventing disclosure, I still would reject the Attorney Generals argument. As Mr Eadie QC sensibly accepts, if the argument is to succeed, the section 53 procedure would have to comply with article 6. In my view, there are two problems in that connection. The first is that there would be a failure to comply with the requirement in article 6.1 that there be provision for a review, either by the Attorney General or by another arm of the executive, of the decision to issue the certificate. But there is no such provision in the EIR 2004 or the FOIA 2000. Secondly, there would have to be provision for a judicial review sufficient to satisfy articles 6.2 and 6.3. In that connection, Mr Eadie contends that the fact that a section 53 certificate can be challenged by a domestic judicial review satisfies the requirements of articles 6.2 and 6.3, as the courts decision on a judicial review is final and binding on the public authority concerned. A domestic judicial review does not normally involve reconsideration of the competing arguments or merits. However, it seems to me clear that article 6.2, with its stipulation that the court should be able to review the acts and omissions of the public authority concerned, requires a full merits review. Even assuming in the Attorney Generals favour that, on a domestic judicial review, the court could, unusually, consider the merits, it gets him nowhere at least in a case such as this, where a tribunal has ruled that the information should be disclosed and the certificate is merely based on the fact that he disagrees with the final decision of the Upper Tribunal. In such a case, a court would be bound to conclude that the certificate was not soundly based as a court of record had already decided that very point as between the applicant and the public authority concerned. 106. The Attorney General relies on article 288 of TFEU, which leave[s] to the national authorities the choice of form and methods to give effect to EU Directives, which is reflected in the Court of Justices statement that it is for the law of each member state to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from [EU] law Case C 286/06 Impact v Minister for Agriculture and Food [2008] ECR I 2483, para 44. It appears to me that, just as on the first point relating to the FOIA 2000, the issue raised by Mr Evans on the 2003 Directive is not one of form and methods or detailed procedural rules; it is a point of principle. 107. In these circumstances, it is unnecessary to consider whether, as the Court of Appeal thought, the provisions of the European Charter provide another, or reinforcing, reason for the conclusion that the Certificate is unlawful in so far as it relates to environmental information, and I prefer to leave that issue open in this Court. 108. Accordingly, for these reasons and for those given by Lord Mance in paras 147 149, I would hold that, by virtue of the requirements of article 6, the Certificate would in any event have been invalid in so far as it related to environmental information contained in the advocacy correspondence. If I had decided that the Certificate was valid under the FOIA 2000, that conclusion would have led to a difficult further question, namely whether the effect of the 2003 Directive would have invalidated the Certificate only in so far as it related to the correspondence concerned with environmental information or whether it would have invalidated the Certificate generally. The 2003 Directive: the effect of non compliance 109. At first sight, it might appear that the effect of the 2003 Directive should be limited to environmental information, and accordingly that it would have served to invalidate the certificate only in so far as it applied to environmental information in the advocacy correspondence. However, the argument advanced on behalf of Mr Evans is that, as a result of the fact that it fell foul of the 2003 Directive, the Certificate is, in effect, tainted by an error of law which would invalidate it generally and not merely in respect of environmental information. 110. The Court of Appeal accepted that argument. At para 78, Lord Dyson first pointed out that the Attorney General had considered the non environmental information and the environmental information separately (in paras 18 and 19 of the Certificate), and had come to the conclusion that each of the two classes of information was to be exempt from disclosure for the same reasons. However, Lord Dyson went on to say, the Attorney General did not explicitly address the question of how the competing public interests should be weighed in relation to the non environmental information if it was necessary to disclose the environmental information in any event (emphasis in the original). Lord Dyson pointed out that, if the environmental information had to be released, it is likely that the argument in favour of maintaining confidentiality in relation to at least some of the non environmental information would have been weaker. Given that the Attorney General did not address the question whether he should certify in respect of the non environmental information if the environmental information had to be released and that he could have done so, it could not be assumed that he would have certified in respect of the non environmental information if the environmental information had to be disclosed. 111. There is obviously great force in the Court of Appeals view. However, on this point, I have reached the same conclusion as the Divisional Court, namely that, reading the whole of the Attorney Generals reasoning in the Certificate, it is obvious that he would have granted a section 53 certificate in respect of the non environmental information, even if the environmental information had to be disclosed. 112. I agree with Lord Dyson that it is not possible to infer this view from any specific words, phrases, or conclusions in the Certificate. However, it is clear from the Certificate, in my view at any rate, that the Attorney General was firmly of the view that none of the letters from the Prince of Wales to Ministers should be disclosed. Apart from the overall tenor of the Attorney Generals reasoning, two specific points strike me as significant. First, he clearly took the view that disclosure against the will of the Prince of any letter was objectionable. Secondly, he was wholly unimpressed with the argument that disclosure of the advocacy letters should be ordered because the contents of some of the letters had been made public. The 2003 Directive: conclusions as to its effect 113. Accordingly, if (contrary to my conclusion expressed in paras 86 89 above), the Certificate had been valid so far as the FOIA 2000 was concerned, I would have concluded that the effect of the 2003 Directive was to invalidate the Certificate in relation to the environmental information, but not in relation to the non environmental information, in the advocacy correspondence. Conclusions 114. For these reasons, which, with the minor exception of paras 109 112 above, largely accord with those in the judgment of Lord Dyson in the Court of Appeal, I would dismiss this appeal. 115. It is, I think, worth mentioning that the same fundamental composite principle lies behind the reason for dismissing this appeal on each of the two grounds which are raised. That principle is that a decision of a judicial body should be final and binding and should not be capable of being overturned by a member of the executive. On the second ground, which involves EU law, the position is relatively straightforward, at least as I see it: the relevant legislative instrument, the 2003 Directive, expressly gives effect to that fundamental principle through the closing words of article 6.2 and the opening sentence of article 6.3. On the first ground, which involves domestic law, the position is more nuanced: the relevant legislative instrument, the FOIA 2000, through section 53, expressly enables the executive to overrule a judicial decision, but only on reasonable grounds, and the common law ensures that those grounds are limited so as not to undermine the fundamental principle, or at least to minimise any encroachment onto it. LORD MANCE: (with whom Lady Hale agrees) Introduction 116. This is an application for judicial review of a certificate issued by the Attorney General under section 53 of the Freedom of Information Act 2000 (FOIA) to prevent disclosure of written communications passing between the Prince of Wales and various Government Departments during the period 1 September 2004 to 1 April 2005. Disclosure of these communications has been requested by Mr Rob Evans, a journalist with The Guardian. 117. The Departments refusal of disclosure was upheld by the Information Commissioner. Mr Evanss appeal was transferred to the Upper Tribunal, where the Information Commissioner was the respondent and the various Departments were interested parties. The Information Commissioner now no longer resists disclosure, so I can in what follows simply refer to the Departments as the party resisting. The Upper Tribunal (Walker J, Upper Tribunal Judge John Angel and Ms Suzanne Cosgrave) heard extensive evidence and on 18 September 2012 allowed Mr Evanss appeal by a decision with reasons extending to 251 paragraphs, with open annexes extending to a further 297 paragraphs. 118. The Attorney General on 16 October 2012 issued his certificate stating that as an accountable person under section 53(8) of FOIA: I have on reasonable grounds formed the opinion that, in respect of the requests concerned, there was no failure to comply with section 1(1)(b) of the Act or regulation 5(1) of the Environmental Information Regulations 2004. Where such a certificate is issued, any decision notice ceases under section 53(2) to have any effect. Mr Evans challenges the legitimacy of that certificate. 119. The Divisional Court (Lord Judge CJ, Davis LJ and Globe J) dismissed the challenge. The Court of Appeal (Lord Dyson MR and Richards and Pitchford LJJ) allowed Mr Evans appeal. The Attorney General now appeals against that decision by permission of the Court of Appeal. 120. The background circumstances and law have been set out in the judgment of Lord Neuberger, which I have had the benefit of being able to read before preparing this judgment, and I need not repeat them. I have also had the benefit of reading Lord Wilsons and Lord Hughess judgments. 121. Section 1(1)(b) of FOIA gives a person making a request to a public authority a general right to have communicated information held by that authority, subject to exemptions introduced by section 2. Regulation 5(1) of the Environmental Information Regulations 2004 contains a specific right in respect of environmental information, intended to implement the requirements of Parliament and Council Directive 2003/4/EC on public access to environmental information. The provisions of FOIA apply to this specific right with some modifications, by virtue of regulation 18. Both rights are expressly made subject to section 53, set out by Lord Neuberger in para 17. In the case of environmental information, this is by virtue of regulation 18(6). Under section 53(2) a certificate may be served (as this one was) not later than 20 working days following either a decision notice or enforcement notice given by the Information Commissioner or the determination or withdrawal of an appeal. The issues 122. The following issues arise: (i) whether the Attorney Generals statement that he had on reasonable grounds formed the opinion that there was no failure to comply with section 1(1)(b) or regulation 5(1) was one which he was entitled to make, having regard in particular to the decision and reasoning of the Upper Tribunal, and (ii) whether, in any event, regulation 18(6) complies with article 6 of Parliament and Council Directive 2003/4/EC; if it does not, then it is common ground that regulation 18(6) is invalid, and in that case a subsidiary issue arises: (iii) whether the certificate can stand even in relation to the non environmental information which it covers. The first issue the test for issue of a certificate 123. On the first issue, there is a significant difference of principle between Lord Neuberger and Lord Wilson. Lord Neuberger highlights the incongruity of a minister or officer of the executive, however distinguished, overriding a judicial decision. The incongruity is if anything more marked in the case of a court of record like the Upper Tribunal. This leads him to confine the operation of section 53 to marginal circumstances which could only rarely arise. But Lord Neuberger also notes that further incongruity could arise if a certificate were more readily capable of being issued at the earlier stage of a non judicial decision by the Information Commissioner. Unless the operation of section 53 were in this case also confined, the scope for issuing a certificate would vary according to whether the Information Commissioners decision notice was for or against disclosure. Nonetheless, Lord Neuberger considers, provisionally, that the scope is not as confined in this case as after a tribunal decision, but that the existence of a right of appeal, on both law and fact, against an Information Commissioners decision, would serve as some form of constraint. 124. Lord Neuberger himself recognises, and Lord Wilson elaborates, some of the problems which this construction faces. I can myself subscribe generally to the views expressed by Lord Wilson in paras 171, 172 and 174 to 179 of his judgment. I consider that section 53 must have been intended by Parliament to have, and can and should be read as having, a wider potential effect than that which Lord Neuberger has attributed to it. 125. Lord Wilson expresses this effect as being to enable the Attorney General to arrive at a different evaluation of the public interests. He takes the view that the fact that the statutory override is expressly conferred by FOIA distinguishes this scheme from those under consideration in the three authorities. I note, however, that, under the ombudsman scheme considered in R (Bradley) v Secretary of State for Work and Pensions [2008] EWCA Civ 36, [2009] QB 114, the Court of Appeal held that the ombudsmans findings of maladministration were not as a matter of law binding on the minister. Nevertheless, the Court of Appeal was, in Sir John Chadwicks words at para 91: not persuaded that the Secretary of State was entitled to reject the ombudsmans finding merely because he preferred another view which could not be characterised as irrational. [I]t is not enough that the Secretary of State has reached his own view on rational grounds. [H]e must have a reason (other than simply a preference for his own view) for rejecting a finding which the ombudsman has made after an investigation under the powers conferred by the Act. 126. To that extent therefore, the decision indicates that there can be constraints on executive departure from the considered findings of even a non judicial body established to investigate and make recommendations. But, as Lord Neuberger observes, the reasoning in Bradley appears to set a somewhat lower threshold for departing from the earlier decision than the Court of Appeal thought appropriate in the different circumstances under consideration in R v Warwickshire County Council, Ex p Powergen plc (1997) 96 LGR 617 and R v Secretary of State for the Home Department, Ex p Danaei [1998] INLR 124. 127. In Bradley, the differences between acting rationally or irrationally, simply preferring ones own view and having a reason for rejecting a finding were not further examined in the judgments, and the Court of Appeal in its actual decision appears to have contented itself with examining whether the Secretary of State did or did not act rationally: see paras 95 96 and 125. 128. Ultimately, the test applicable in relation to the first issue must be context specific, in the sense that it must depend upon the particular legislation under consideration, here the FOIA and the Regulations, and upon the basis on which the Attorney General was departing from the decision notice or appeal decision. Mr James Eadie QC submits that the Attorney General could, instead of appealing, even take a different view from the Information Commissioner or Tribunal on a question of law, but accepts that, in that event, the correctness of his view of the law could be tested by judicial review. As to findings or evaluations of fact, he accepted at one point that something more than mere rationality was required under section 53 if the Attorney General was to depart from a finding or evaluation of facts. He went on to explain that the Court must apply an objective standard, by asking whether the certificate expressed a view that was a reasonable view for the Attorney General to hold. A different view about or evaluation of the public interest was, in his submission, exactly what section 53 was intended to permit. Ultimately, therefore, it appears that Mr Eadie was contending for a test close, if not exactly equivalent, to rationality on the part of the Attorney General. 129. On any view, the Attorney General must under the express language of section 53(2) be able to assert that he has reasonable grounds for considering that disclosure was not due under the provisions of FOIA. That is, I consider, a higher hurdle than mere rationality would be. Under section 53(6) he must also express his reasons for this opinion, unless, under section 53(7) this would involve disclosure of exempt information. On judicial review, the reasonable grounds on which the Attorney General relies must be capable of scrutiny. (The only doubt, discussed by Lord Wilson in para 181, is whether the court can consider in a closed material procedure any of the material of which disclosure is sought, in the same way that the Upper Tribunal was able to. That doubt does not require resolution on this appeal.) 130. When the court scrutinises the grounds relied upon for a certificate, it must do so necessarily against the background of the relevant circumstances and in the light of the decision at which the certificate is aimed. Disagreement with findings about such circumstances or with rulings of law made by the tribunal in a fully reasoned decision is one thing. It would, in my view, require the clearest possible justification, which might I accept only be possible to show in the sort of unusual situation in which Lord Neuberger contemplates that a certificate may validly be given. This is particularly so, when the Upper Tribunal heard evidence, called and cross examined in public, as well as submissions on both sides. In contrast, the Attorney General, with all due respect to his public role, did not. He consulted in private, took into account the views of Cabinet, former Ministers and the Information Commissioner and formed his own view without inter partes representations. But disagreement about the relative weight to be attributed to competing interests found by the tribunal is a different matter, and I would agree with Lord Wilson that the weighing of such interests is a matter which the statute contemplates and which a certificate could properly address, by properly explained and solid reasons. 131. Lord Neuberger suggests (para 94) that the statute cannot contemplate such an exercise, because it would require more than the 20 days allowed by the statute for the issue of a certificate. I do not think that follows. The discussion below shows that the Attorney General did not undertake the weighing of interests which the statute contemplates, that is, normally at least, against the background and law established by the tribunals decision. On the contrary, he was undertaking his own redetermination of the relevant background circumstances. Neither on my analysis nor on Lord Neubergers was he entitled to do that. In short, the fact that it takes some elaboration to show that the Attorney General was proceeding on the wrong basis does not indicate the time the Attorney General would have required to address the matter on an appropriate basis. The first issue application of the test 132. Applying the test identified in para 131 to the present case, it is necessary to look closely at the Attorney Generals certificate in the light of the Upper Tribunals findings and conclusions. In my view, his certificate was based essentially on differences in his account of the relevant circumstances, including the constitutional conventions, by reference to which the relevant issues of public interest fell to be evaluated. Central to the Attorney Generals disagreement with the Upper Tribunal was his view that the advocacy correspondence in which the Prince of Wales engaged was part of his preparation for kingship, or part of an education or apprenticeship convention, as the Departments put it before the Upper Tribunal. The disagreement is apparent from the following paragraphs of the certificate: 7. In the United Kingdom, that constitutional balance is preserved by the constitutional convention that the Monarch acts on, and uses prerogative powers consistently with, Ministerial advice ("the cardinal convention"). The corollary to the cardinal convention is the convention that the Monarch has the right, and indeed the duty, to be consulted, to encourage, and to warn the government (the "tripartite convention"). The tripartite convention ensures that a measure of influence is retained for the Monarch within the constitution. The tripartite convention is most obviously, though not solely, expressed through the Prime Minister's weekly audience with the Monarch. 8. In order to prepare for the exercise of the tripartite convention, the heir to the Throne has the right to be instructed in the business of government: a right described by the Tribunal in this case as the "education convention". The Tribunal in this case accepted the importance of the education convention; and accepted that it carried with it a duty of confidentiality. However, the Tribunal concluded both that "advocacy correspondence" was outside the education convention; and that such correspondence formed no part of The Prince of Wales' preparations for kingship, because it was not undertaken as part of preparation for kingship, and was not the type of activity in which the Monarch would engage. 9. In my view, it is of very considerable practical benefit to The Prince of Wales' preparations for kingship that he should engage in correspondence and engage in dialogue with Ministers about matters falling within the business of their departments, because such correspondence and dialogue will assist him in fulfilling his duties under the tripartite convention as King. Discussing matters of policy with Ministers, and urging views upon them, falls within the ambit of "advising" or "warning" about the Government's actions. It thus entails actions which would (if done by the Monarch) fall squarely within the tripartite convention. I therefore respectfully disagree with the Tribunal's conclusion that "advocacy correspondence" forms no part of The Prince of Wales' preparations for kingship. I consider that such correspondence enables The Prince of Wales better to understand the business of government; strengthens his relations with ministers; and enables him to make points which he would have a right (and indeed arguably a duty) to make as Monarch. It is inherent in such exchanges that one person may express views and urge them upon another. I therefore consider that, whether or not it falls within the strict definition of the education convention, advocacy correspondence is an important means whereby The Prince of Wales prepares for kingship. It serves the very same underlying and important public interests which the education convention reflects. 10. If such correspondence is to take place at all, it must be under conditions of confidentiality. Without such confidentiality, both The Prince of Wales and Ministers will feel seriously inhibited from exchanging views candidly and frankly, and this would damage The Prince of Wales' preparation for kingship. Indeed, it is difficult to see how the exchange of views in correspondence could continue at all without confidentiality. Also, The Prince of Wales is party political neutral. Moreover, it is highly important that he is not considered by the public to favour one political party or another. This risk will arise if, through these letters, The Prince of Wales was viewed by others as disagreeing with government policy. Any such perception would be seriously damaging to his role as future Monarch, because if he forfeits his position of political neutrality as heir to the Throne, he cannot easily recover it when he is King. Thus in this context, confidentiality serves and promotes important public interests. 11. I also consider that the disclosure of advocacy correspondence engages the important freestanding interest in the preservation of confidences. Both The Prince of Wales, and Ministers, correspond on the basis that their exchanges are strictly confidential. Furthermore, I consider that the public interest in maintaining confidentiality will be buttressed where The Prince of Wales's letters reflect his and deeply held views and convictions, given under impress of confidentiality. 12. In my view, these are important public interests in non disclosure, which will generally apply to advocacy correspondence between The Prince of Wales and Ministers. Of course, I recognise that each case must be decided on its own particular facts, so I have gone on to examine how those public interests apply in this case. I take the view that they apply with particular force, in circumstances where: (1) The requests were made in April 2005. Thus, at the time when the requests fell to be responded to, the correspondence was very recent; and it is still relatively recent. (2) Much of the correspondence does indeed reflect The Prince of Wales' most deeply held personal views and beliefs. (3) The letters in this case are in many cases particularly frank. They also contain remarks about public affairs which would in my view, if revealed, have had a material effect upon the willingness of the government to engage in correspondence with The Prince of Wales, and would potentially have undermined his position of political neutrality. (4) There is nothing improper in the nature or content of the letters. The public interests in disclosure 13. I recognise, and take account of, the public interests in disclosure identified in the Upper Tribunal's judgment, namely governmental accountability and transparency; the increased understanding of the interaction between government and Monarchy; a public understanding of the influence, if any, of The Prince of Wales on matters of public policy; an interest in disclosure in light of media stories focusing on The Prince of Wales' alleged inappropriate interference, or lobbying; furthering the public debate regarding the constitutional role of the Monarchy, and in particular the heir to the Throne; and informing broader debate surrounding constitutional reform. 14. In my view, the factors in favour of disclosure identified by the Tribunal in this case are good generic arguments for disclosure of the information. However, if they were decisive in the present case it would have to be at the expense of the strong public interest arguments against disclosure, centred upon The Prince of Wales' preparation for kingship and the importance of not undermining his future role as Sovereign. 15. I also consider that the very high public interest that the Tribunal identified in the public knowing what The Prince of Wales said to Ministers was at least in part dependent upon the Tribunal's assumption that The Prince of Wales was in no different position from any other lobbyist, when making representations to Ministers, save that he did so from a position where his representations would be accorded special weight. I do not consider that The Prince of Wales's correspondence is properly viewed in that light, in circumstances where it is part of his preparation for kingship. I take the view that the correspondence has a constitutional function, which makes any analogy between it and correspondence between a private individual and a Minister inapposite. 133. The Attorney Generals approach in paras 7 to 10 of the certificate is, as stated, in sharp disagreement with the Upper Tribunals findings and conclusions. These findings and conclusions were based on extensive evidence and analysis of the role of the Monarch in this country, the skills and disciplines attaching to that role, the preparation regarded as necessary to understand, possess and exercise them and the relevant convention. The Upper Tribunal was at great pains to consider in this connection the significance and relevance of the advocacy correspondence, both that which has been published and that which the tribunal saw in closed session. It summarised three problems which had been identified by counsel for Mr Evans in relation to the Departments evidence and case, as follows: (2) Professor Brazier [called by the Departments] accepted that under his thesis communications fell within the convention because they were a rehearsal for kingship, but was not able to point to anything evidencing a recognition by Prince Charles that there was a rehearsal mode or that he was acting within this rehearsal mode. There was powerful evidence that Prince Charles did not regard himself as acting in rehearsal mode. The biography made no suggestion of it. Indeed, the 1995 article characterised the correspondence in question as advocacy 'for real' under a radical parallel with the sovereign's tripartite convention. The Clarence House website described Prince Charles 'Promoting and Protecting' through publicly aired views and private correspondence, including with ministers. Sir Stephen Lamport [also called by the Departments] was emphatic that the descriptions "rehearsal" and "training" were inapt. On the contrary, Prince Charles believed that his contact with government could be used for the wider public benefit. The only thing which distinguished Prince Charles's role from the sovereign's, on Sir Stephen's evidence, was that the government did not feel they had to treat his advice as they would treat the Queen's. The memorandum by Sir Michael Peat showed that as regards Prince Charles's current actions (a) he understands the constitutional functions that the sovereign has (and he would have), and (b) that is decidedly not the character of his actions, indeed ( c) he would change as sovereign and stop intervening in the way that he does. That explanation was inconsistent with Sir Stephen Lamport's and Sir Alex's [Sir Alex Allan, called for the Departments] metaphor of the "apprentice stonemason". (4) It is a fundamental condition of the exercise by the sovereign of the tripartite convention that the sovereign does not express views in public on matters of public policy. If Prince Charles is to be taken as being in 'rehearsal' mode, why would he so obviously act incompatibly with the necessary discipline accompanying the role he is supposedly rehearsing? Put another way, the absence of a perceived obligation of (rehearsed) silence in public on the public policy undermines the idea of a perceived right of (rehearsed) encouragement and warning in private. (6) Professor Brazier's thesis was not able to identify any distinction between what Prince Charles is doing, nor what the government is doing, which is different because this is supposedly 'rehearsal' mode. On the contrary, it is precisely the same course of conduct of both parties which led to the Brazier 1995 suggestion of Prince Charles having the right to seek to urge and persuade. If the true analysis is that Prince Charles has no such right, but merely a right to rehearse, there would need to be a difference between the two. But none has been identified, merely the fact that this is the heir and not the monarch. 134. The Upper Tribunal concluded that these problems had remained unanswered. It thought it plain that the advocacy correspondence was not prompted by a desire to become more familiar with the business of government and was not addressing what his role would be as king. Rather it was prompted by a strong belief that certain action on the part of government was needed. Further, in expressing that belief, Prince Charles was acting in a manner which was incompatible with his future role as king and in which he recognised that he would have to cease acting when he became king. That conclusion was expressed by the Upper Tribunal in the following passages: 99. Problems (2), (4) and (6) are interlinked. It seems to us that they are much more substantial. First, the submissions for the Commissioner and the departments never distinctly grappled with the point that Prince Charles himself has recognised that as sovereign, "he must stop intervening in the way that he does." Mr Swift acknowledged that Prince Charles does not deal with government in "rehearsal mode". His suggested answer was that (1) instruction gives rise to debate, encouraged by ministers; (2) the convention takes the form of a debate or conversation, not a lecture; (3) Prince Charles can only learn how to debate and question issues of policy by actually debating and questioning issues of policy, not by pretending to do so; and (4) preparation for kingship over a period of four decades will involve forming a relationship with ministers in which matters of substance are discussed. However, in the public examples that we have seen, the plain facts are that what Prince Charles is doing is not prompted by a desire to become more familiar with the business of government, and simply is not addressing what his role would be as king. We cannot accept Mr Swift's contention that when Prince Charles discusses matters "for real" with ministers, both he and ministers appreciate that this is in the context of his preparation for kingship. The examples we have identified in our chronology of events at Open Annex 2 do not involve any assumption that Prince Charles has the rights of the monarch, but they all have as their context Prince Charles's strong belief that certain action on the part of government is needed. On analysis, as it seems to us, neither Sir Alex nor Sir Stephen was able to justify an assertion that either side saw these exchanges as part of preparation for kingship. 135. The Upper Tribunal also held that the Departments were advancing a novel case regarding the scope of the education convention. It was a new approach which Professor Brazier had first advanced in his witness statement, without recognising how far it departed from what Professor Brazier had written in an article in 1995. He had then simply advocated the recognition of a new constitutional convention enabling the Prince of Wales to obtain information from ministers, to comment on their policies and to urge other policies on them. The new approach asserted in the witness statement was to the effect that there already existed a convention attaching to every piece of correspondence, including Prince Charles and ministers. The new approach had in effect been created by Prince Charles own conduct, since it had no precedent. The new approach appears very close, if it is not identical, to that taken by the Attorney General in his certificate. The Upper Tribunal rejected it categorically in the following passages: 103. In our view the new approach as advanced by Professor Brazier in his witness statement would involve a massive extension of the education convention. The new approach seemed to involve a proposition that whenever Prince Charles interacted with government this helped to prepare him to be king and was therefore part of the education convention. The logical consequence of this proposition would be that the education convention extended both to advocacy correspondence and to correspondence on charitable or social matters without any advocacy element. As noted in section G of OA3, however, in cross examination Professor Brazier resiled from his earlier stance in relation to charitable and social matters. What happened was that Mr Pitt Payne put to him the difficulty that correspondence on charitable matters might be written by any other member of the royal family: it was not done as part of preparation to be king. In the course of cross examination Professor Brazier gave consideration to this difficulty both in relation to charitable matters and in relation to social matters. In the light of that consideration, he very fairly acknowledged that subject to there being no advocacy element the Commissioner was right to say that the education convention did not cover correspondence on charitable and social matters. In that regard he accepted that he may have conflated two different things which should not have been conflated: the scope of the convention on the one hand and the obligation of confidence on the other. 104. Thus the analysis of the expert witness for the Departments changed during the course of oral evidence. He was confronted with difficulties facing any proposition that whenever Prince Charles interacted with government this helped to prepare him to be king and was therefore part of the education convention. His recognition of those difficulties led him to accept the Commissioner's narrower view that the scope of the education convention did not extend to charitable or social matters. Inevitably, as it seems to us, he was thereby accepting that merely incidental help in preparation for kingship at least in charitable and social contexts will not suffice. What we find illuminating is that the question which led Professor Brazier to change his mind did not merely point out that other members of the royal family might write on charitable matters. There was an additional element to the question which made that such correspondence was not written "as part of preparation to be king". To our mind, for the reasons developed by Mr Fordham in cross examination of Professor Brazier, that crucial point applies equally to advocacy correspondence. 105. The massive extension of the convention advanced by the Departments, and the less massive extension identified by the Commissioner, would both have to meet the second element of the Jennings test. In the context of the education convention this would require that both sides considered that as part of Prince Charles's preparation to be king they were bound to permit correspondence with government in the manner contemplated by the extension. Professor Brazier's witness statement relied on both sides exchanging correspondence on the crucial point the explicit or implicit assumption that all of it would remain confidential. As noted above, however, in oral evidence he accepted that it was wrong to conflate confidentiality and the scope of the convention. The submissions for Mr Evans accepted that the traditional education convention involved informing Prince Charles about governmental matters and responding to queries from him about that information. The evidence before us, as examined in open session, demonstrates that interaction between Prince Charles and government went far beyond this, but not "as part of preparation to be king". Published advocacy correspondence shows Prince Charles using his access to government ministers, and no doubt considering himself entitled to use that access, in order to set up and drive forward charities and to promote views but not as part of his preparation for kingship. Ministers responded, and no doubt felt themselves obliged to respond, but again not as part of Prince Charles's preparation for kingship. Indeed Prince Charles himself accepts, and government acknowledges, that his role as king would be very different. The inevitable conclusion is that while correspondence going beyond the traditional education convention may well be confidential, and is not (despite Professor Tomkins's concerns) said by Mr Evans in these proceedings to be unconstitutional, it does not have the special status of correspondence falling within a constitutional convention. 106. There is another element in the Jennings test which leads to the same conclusion. It is the third element: there must be good reason for the suggested extension. The good reason advanced by Professor Brazier for such a massive extension was difficult to pin down. At times it appeared to be simply that both sides regarded their discussions as confidential something which he later accepted was not determinative of the scope of the convention. At other times it appeared to be that whenever Prince Charles interacted with government this helped to prepare him to be king but he has accepted that, at least in the charitable and social context, merely incidental help does not suffice. In our view, however, there is an overwhelming difficulty in suggesting that there is good reason for regarding advocacy correspondence by Prince Charles as falling within a constitutional convention. It is a difficulty that was recognised in Professor Brazier's answer cited earlier: it is the constitutional role of the monarch, not the heir to the throne, to encourage or warn government. Accordingly it is fundamental that advocacy by Prince Charles cannot have constitutional status. Professor Brazier sought to escape this difficulty by saying that under his extension to the education convention there was no obligation on government to consider what Prince Charles said. This in our view offers no escape: the communication of encouragement or warning to government has constitutional status only when done by the monarch. Even if ministers (despite every appearance of thinking the contrary) are under no obligation to consider what is said, they have received it and it is open to them to take account of it. It would be inconsistent with the tripartite convention to afford constitutional status to the communication by Prince Charles, rather than the Queen, of encouragement or warning which ministers might then take account of. 136. The Upper Tribunal at a later point addressed a case made to the effect that the mere interchange with ministers might have value as preparation for kingship, because of the understanding it might bring about how government functions and the experience it might bring of dealing and developing relationships with ministers. It said this: 174. The "to and fro" between Prince Charles and government involved in advocacy communications may carry an incidental benefit of increasing Prince Charles's knowledge of how government works, but unless there is some additional element they cannot properly be described as preparation for kingship. 137. In contrast, the Attorney General issued his certificate on the basis that the advocacy correspondence in which the Prince of Wales engaged entailed actions which would (if done by the Monarch) fall squarely within the tripartite convention, which were of very considerable practical benefit to, or an important means in connection with, his preparations for kingship and which therefore formed part of such preparation. The certificate does not engage with, or begin to answer, the problems about this apparently wholesale acceptance of Professor Braziers thesis about the emergence of a new or highly expanded constitutional convention, which the Upper Tribunal had so forthrightly and on its face cogently rejected. It does not even address the problem that the Prince of Wales himself had accepted that advocacy communications of the sort under consideration would be incompatible with his role as king and are actions which he would have to cease undertaking. It does not address the fact that advocacy correspondence of the kind under discussion has no precedent, is not undertaken as part of and is not necessary as part of any preparation for kingship. 138. The Attorney Generals further reasoning in para 10 of his certificate is that confidentiality is needed, if such correspondence, and thereby the Princes preparation for kingship, is to continue. As quoted above, para 10 states: Without such confidentiality, both The Prince of Wales and Ministers will feel seriously inhibited from exchanging views candidly and frankly, and this would damage The Prince of Wales' preparation for kingship. Indeed, it is difficult to see how the exchange of views in correspondence could continue at all without confidentiality. 139. That reasoning depends in part on the view, already considered, that the correspondence is an aspect of preparation for kingship. But it also contains the assertion that it is difficult to see how [such correspondence] could continue at all. This is then repeated in para 12(3) of the certificate. But no basis for such an assertion is stated, and it is contrary to the clear and reasoned findings of the Upper Tribunal on the point. In para 196 the Upper Tribunal found that: there is good reason to think that Prince Charles will not, as a result of liability to disclosure, cease to make points to government that in his view need to be made. The chronology forcefully suggests that these are things that he feels strongly cannot be left unsaid: see for example OA2 at paras 35, 37, 43(4), 61, 62 and 97. Moreover, he has not been dissuaded by publicity in the past: we consider that the high degree of publicity afforded to Prince Charles's dealings with government in the past has not prevented his being educated in the ways and workings of government, nor has it deterred him from corresponding frankly with ministers. 140. The certificate continues: Also, The Prince of Wales is party political neutral Moreover, it is highly important that he is not considered by the public to favour one political party or another. This risk will arise if, through these letters, The Prince of Wales was viewed by others as disagreeing with government policy. This reasoning also fails to address or meet the Upper Tribunals conclusions, based on the evidence before it. The Upper Tribunal pointed out that it was and is well known that Prince Charles advocates causes which may in a broad sense be described as political, but that, at the same time, he avoids party political arguments, code words or personalities in a manner which The Times had as long ago as 25 October 1985 commended in an editorial. The Attorney Generals certificate does not suggest the contrary. It appears, by inference, to be concerned about public misperception, or possibly misrepresentation. But both The Times then and the Upper Tribunal in its decision robustly dismissed the risk of public misperception as not being real or persuasive. 141. More specifically, the Upper Tribunal found, in relation to the suggestion that the Prince might, as a result of disclosure, be viewed as politically partisan, that: 176. [T]he concern was a concern about perception, and "political" was used in a narrow sense of "party political". The concern that was advanced by the Commissioner and the Departments was that disclosure of the disputed information might lead the public to think that Prince Charles favoured one political party over another. The Departments were at pains to stress that Prince Charles was not politically partisan, and the Commissioner made it clear that he did not suggest this. The concern is thus about misperception. 182. The word "political" can be used in a broad sense, connoting an activity relating to policy. It is apparent from Prince Charles's public advocacy, from the revelations in the biography about his private advocacy, from purported revelations elsewhere about his private advocacy, and from public criticism of his advocacy activities . that in this broad sense of "political" Prince Charles's activities are not neutral and in a number of respects have been controversial. It was common ground in the present case that despite all this, and despite views he has advocated often being later adopted to a greater or lesser extent by politicians or government, Prince Charles had succeeded in not being perceived as party political. There is a risk that a view publicly advocated by him at a time when it did not divide political parties may do so in the future, but that is a risk that he has been prepared to run. 183. As we explain below, it does not follow that failure by members of the public to distinguish between views on party political issues and views on wider matters of policy involves "unfair criticism" or even if it were "unfair", that Prince Charles or the royal family generally needs to be protected from it. 184. It follows from this reasoning that we do not accept the broad general proposition advanced by the Commissioner on this aspect. It is true that a decision to abstain from making certain kinds of statement in public may be rendered ineffective if private correspondence were disclosed. This has to be seen, however, in the context of advocacy correspondence. In that context the Commissioner's submission effectively becomes that while Prince Charles desires to be known publicly as an advocate on some issues, nevertheless there is a public interest in not revealing his advocacy on issues where he does not wish his stance to be known publicly. There may be special cases for example, particular circumstances where, in order to achieve some public good, there is an initial period where secrecy is necessary to avoid tipping off wrongdoers. In the absence of this, or some other special circumstance, we do not accept that a desire that the public should not know of his advocacy on a particular issue of itself gives rise to a public interest in non disclosure. 187. For reasons explained in our conditionally suspended annex, we can say that in the disputed information consistently with what in 1985 he described as his own practice Prince Charles avoids "party arguments'', "party code words" and "personalities". If it were possible to identify in the disputed information anything on a topic which attracted party political controversy either at the time it was written or now, just as The Times in 1985 thought the public interest permitted public statements on such a topic, we consider that in the 21st century "our language is not so deformed and our politics are not so penetrating" as to make it in the public interest not to disclose advocacy communications on such topics. 188. There is, as it seems to us, a short answer to all the various ways in which the Departments have sought to rely on dangers of "misperception" on the part of the public. It is this: the essence of our democracy is that criticism within the law is the right of all, no matter how wrongheaded those on high may consider the criticism to be. 142. The Attorney Generals certificate does not engage with or give any real answer to this closely reasoned analysis and its clear rebuttal of any suggestion that a risk of misperception could justify withholding of disclosure. Sufficient is already known publicly about the Prince of Wales actions and communications some of it as a result of authorised disclosure to make the suggested risk of misperception remote, and the Upper Tribunal evidently saw nothing to suggest any greater risk in any closed material. It also took the robust view, which again the certificate does not address, that public discourse is not so deformed that public figures cannot express important and potentially influential views without sounding politically partisan or that secrecy should, in effect, outweigh transparency for fear of misperception. 143. Another factor highlighted in connection with the Attorney Generals evaluation of the public interest is that much of the correspondence does indeed reflect The Prince of Wales most deeply held personal views and beliefs (paras 11 and 12(2) of the certificate). But it is unclear why this is an argument against disclosure of communications by a public figure intended to influence public action. Further, as the Upper Tribunal found Prince Charless self perceived role has been described on his behalf as representational, "drawing attention to issues on behalf of us all" and "representing views in danger of not being heard". We find this assertion to be established by the evidence. Where a public figure makes representations on behalf of the public or on behalf of those whose voice might not otherwise be heard, it is not unlikely that he or she will do this out of personal conviction. It would seem strange if that were a reason for withholding knowledge about the representations from those in whose interests they were made. 144. The Attorney General also identified as a reason why the public interest pointed towards disclosure that 12(4) There is nothing improper in the nature or content of the letters. That reinforces the point that misperception is an unreal fear. But it does not address the reason why disclosure is sought. The Upper Tribunal in paras 4 and 144 160 identified a very strong interest in disclosure in the interests of transparency, so that the influence which such communications has or may have on public decisions may be appreciated, and potentially also of course countered. I would myself also regard this as clear. 145. It follows from all the above that the Attorney Generals certificate proceeded on the basis of findings which differed, radically, from those made by the Upper Tribunal, and in my view it did so without any real or adequate explanation. The Upper Tribunals findings and conclusions were very clearly and fully explained. I do not consider that it was open to the Attorney General to issue a certificate under section 53 on the basis of opposite or radically differing conclusions about the factual position and the constitutional conventions without, at the lowest, explaining why the tribunal was wrong to make the findings and proceed on the basis it did. As it is, the certificate asserted the existence of a tripartite convention wide enough to cover the Prince of Waless advocacy communications; it asserted in particular that they fell within the preparation for kingship convention, would be of very considerable practical benefit and were an important means of preparation; it further asserted that publication would cause them to cease or would cause misperception, and that the fact that the communications, made in a representational capacity, involved deeply held personal views and belief was a reason for non disclosure. These assertions were in very direct contradiction with the Upper Tribunals findings, without any substantial or sustainable basis being given for the disagreement. In my view and in the light of all that I have set out, the certificate cannot be regarded as satisfying the test identified in para 129 above. The disagreement with the Upper Tribunals detailed findings and conclusions reflected in the certificate has not therefore been justified on reasonable grounds. I therefore consider that the Court of Appeal was right to set aside the certificate, and that the appeal should be dismissed on this ground. 146. The Attorney General sought in their written case to allege that the Upper Tribunal made a number of errors of law in the course of its decision. But no such errors featured as any part of the Attorney Generals reasoning in his certificate or indeed in the application made and granted for permission to appeal to this court and I did not understand that any or at any rate great reliance was placed on them in oral submissions before the Supreme Court. In any event, I do not consider that it was or should now be open to the Attorney General to rely on them, in the absence of any exceptional circumstances, bearing in mind that the scheme of section 53 is to require a certificate within 20 working days, accompanied either then or as soon as reasonably practicable thereafter by information about the makers actual reasons for the decision, with the certificate then being laid before each House of Parliament. The second and third issues environmental information 147. I can deal with the second and third issues identified in para 123 above very briefly. I agree with Lord Neubergers remarks and conclusions on both of them. I have no doubt that, if it had been correct to reach an opposite conclusion to that which I have reached under the general provisions of FOIA, then such of the communications as constitute environmental information would still fall to be disclosed under the 2004 Regulations. The power to override a decision of the Upper Tribunal provided by regulation 18(6), read with section 53 of FOIA, is in my opinion clearly irreconcilable with the provisions of article 6 of Parliament and Council Directive 2003/4/EC, set out by Lord Neuberger in para 25; and it is common ground that, in that event, regulation 18(6) must be treated as invalid. 148. Lord Wilson argues that the words of article 6(2) of the Directive are wide enough to cover not simply a situation where there is a right of appeal, but also a situation in which the Upper Tribunals decision may be set aside by executive decision, with the executive decision being then capable itself of being judicially reviewed. If the judicial review succeeds, the tribunal decision will become final. If it fails, it will never become final. But Lord Wilson has already accepted, and I agree, that the executive decision permitted by section 53(2) can legitimately involve a different evaluation of the weight of competing interests from that which the court of law or independent and impartial body established by law, contemplated by article 6(2), has taken. On that basis the scope for judicial review is narrowed. It cannot involve a full merits review. It must be a limited review, as indicated in para 131 above. Accordingly, what becomes final in the event of judicial review failing, is not a decision on the merits that the Upper Tribunals decision is wrong. It is the conclusion that there is nothing wrong with the ministers or Attorney Generals decision to override the Upper Tribunals decision. That cannot be consistent with the evident intention of article 6(2) to provide means of recourse to a court or similarly independent and impartial system, which will decide, one way or the other, on the merits. 149. That regulation 18(6) read with section 53(2) can be incompatible with the Directive is shown by supposing a case where a section 53 certificate was issued after a decision notice issued by the Information Commissioner, without any appeal. There would then be no decision under article 6(2) of any court of law or independent and impartial body established by law. Even if the section 53 certificate were then judicially reviewed, the outcome of the judicial review would once again not be a decision on the merits of the disclosure or non disclosure, as contemplated by article 6(2), but a decision on the issue whether there was anything wrong with the override reached by applying the different test identified in para 131 above. It does not of course follow axiomatically that regulation 18(6) is incompatible in the present context of a certificate issued following an Upper Tribunal decision, but in my view it is also in this context for the reasons given in paras 147 and 148 as well as those given by Lord Neuberger. Conclusion 150. For these reasons, I conclude that (i) the communications requested are not excepted from any duty of disclosure to Mr Evans under section 53 of FOIA; (ii) even if they had not been, such of them as constitute environmental information would have been and are disclosable under regulation 18(6) of the Environmental Information Regulations 2004, although in that case (iii) the remainder would not then have been disclosable. 151. It follows that the Attorney Generals appeal should be dismissed. LORD HUGHES: (dissenting in part) 152. It is neither necessary nor helpful for this judgment to traverse the background or facts of this appeal, which are clearly set out in the judgment of Lord Neuberger. 153. My conclusions can be summarised as follows: (i) Section 53(2) of the Freedom of Information Act 2000 can mean nothing other than that the accountable person (here the Attorney General) is given the statutory power to override the decision of the Information Commissioner, and/or of a court after appeal from the Commissioner, if he disagrees with it on reasonable grounds; this must include the power to disagree with the evaluation of where the balance of public interest lies. (ii) The exercise of such power is subject to judicial review if the Attorney General has acted unlawfully; if he has materially misdirected himself that would justify the court setting aside his certificate; on the facts of this case he has not done so. (iii) Insofar as the certificate relates to environmental information the power is inconsistent with the provisions of the 2004 Regulations and article 6 of Parliament and Council Directive 2003/4/EC. (iv) For the reasons explained by Lord Neuberger, the certificate in this case would clearly have been issued whether or not the environmental information was within it. (v) Accordingly for my part I would allow the Attorney Generals appeal except insofar as it relates to environmental information. Differing on the balance of public interest: the meaning of section 53(2) 154. The rule of law is of the first importance. But it is an integral part of the rule of law that courts give effect to Parliamentary intention. The rule of law is not the same as a rule that courts must always prevail, no matter what the statute says. I agree of course that in general the acts of the executive are, with limited exceptions, reviewable by courts, rather than vice versa. I agree that Parliament will not be taken to have empowered a member of the executive to override a decision of a court unless it has made such an intention explicit. I agree that courts are entitled to act on the basis that only the clearest language will do this. In my view, however, Parliament has plainly shown such an intention in the present instance. 155. In the end this issue does not admit of much elaboration; it seems to me to be a matter of the plain words of the statute. The alternative postulated is simply too highly strained a construction of the section. Section 53(2) could, no doubt, have said that a certificate could be issued only if fresh material came to light after the decision of the Commissioner or the First tier Tribunal, but it did not. Likewise, it could have said that a certificate could be issued if the decision of the Commissioner or court could be shown to be demonstrably flawed in law or fact, but it did not. If Parliament had wished to limit the power to issue a certificate to these two situations that is undoubtedly what the subsection would have said. If anyone had suggested at the time of the passage of the bill which became the Act that either of these things was what was meant, it seems to me that that suggestion would have received a decisive and negative response. The second possibility is, moreover, one which would afford clear grounds for appeal, so that a certificate would not be necessary. Even if it were a second appeal, a demonstrably flawed decision upon a topic of public significance would be one for which there would nearly always be a compelling reason for leave to appeal to be given. 156. In the end, the very fact that it is necessary to postulate so vestigial an extent for a generally expressed power if it is to be given any content at all is a potent demonstration that it does indeed mean what it says. The reality is that the section 53(2) provision for exceptional executive override was the Parliamentary price of moving from an advisory power for the Commissioner (and thus for the court on appeal) to an enforceable decision. 157. The three decisions of R v Warwickshire County Council, Ex p Powergen (1997) 96 LGR 617, R v Secretary of State for the Home Department, Ex p Danaei [1998] INLR 124 and R (Bradley) v Secretary of State for Work and Pensions (Attorney General intervening) [2009] QB 114 are altogether too slender a foundation to support the contrary argument. The first two do not support the proposition that Parliament, knowing of them, legislated with the intention of not providing the accountable person with a power to differ from the court except in the two very restricted circumstances suggested and considered above. And in none of these cases was there an explicit statutory power to disagree with a previous decision. 158. Powergen and Ex p Danaei were decided on the basis that the second decisions were, given the earlier findings of the planning inspector and the immigration adjudicator, Wednesbury unreasonable, ie irrational. In the former, Simon Brown LJ pointed out that if the Authoritys argument were correct, it would be exercising what effectively amounts to a veto of the planning inspectors decision; that, he held, cannot be right (at 625f). The present, however, is a case of a veto explicitly conferred by statute in limited circumstances. If such a provision had been present in these two cases, the outcome would, as it seems to me, inevitably have been different. 159. Bradley is a somewhat stronger case for Mr Evans because at para 91 Sir John Chadwick articulated the proposition that it was not enough for the Secretary of State to reach his own view on rational grounds, but rather that his decision to reject the contrary view of the Parliamentary Commissioner had itself not to be irrational. There the statute gave the Commissioner the power to report and the court held that her report was not binding on the Secretary of State, but the statute was entirely silent about his position when responding publicly to such report. So this was again a case in which there was no explicit statutory power to disagree, as there is here. Moreover, as Lord Mance says, the (to my mind elusive) distinction articulated by Sir John Chadwick did not fall to be explored. On the facts of the case the Secretary of States conclusions, where they differed from the Commissioners, were held to fail the straightforward Wednesbury test: see paras 95 and 108, and contrast those conclusions which were upheld as rational in paras 105 106 and 125. It is a long step from this case to the proposition here relied upon, namely that Parliament must have meant section 53(2) to be construed, despite its apparently clear wording, in the restricted sense contended for. 160. It follows that the Attorney General was entitled to differ from the Upper Tribunal on where the balance of public interest lay. This was the principal purpose of section 53(2). His decision must be rational, but in this case it is not seriously suggested that it was not, and it is to be noted that it was shared by the Commissioner. Indeed, the law has now been changed so as to provide unqualified exemption from disclosure for communications with the monarch, the heir or the second in line to the throne, but not for those with other members of the Royal Family. Judicial Review 161. Assuming this, I agree that the Attorney Generals certificate remains subject to judicial review. If it errs in law, that error can be corrected by the court and if necessary the certificate struck down. As to conclusions of fact, it seems to me that the position is not complex. Section 53(2) allows the issuer of a certificate to take a different view of the facts from the Commissioner or court so long as the conclusion reached is a rational one. It might not be rational if (inter alia) the certifier materially misdirected himself. 162. I agree also that the certifier must state his reasons for his differing conclusion. That does not, as it seems to me, require him to address the judgment of the court with the same particularity as the court afforded the case. In the present case, it was not necessary for the Attorney General to match the remarkable detail of the Upper Tribunals judgment. Providing he has explained in general terms where he differs and why, so that his reasoning can be understood, the requirements of the section are, I think, met. Has he done so without self misdirection or error of law? 163. Lord Mances concern is that he has in effect misdirected himself as to the facts in relation to the constitutional conventions because, in summary, he has ignored the finding that the Prince was not, in the correspondence under consideration, acting in rehearsal mode, but rather accepted that his future role as monarch would require a different approach. 164. I agree that a conclusion that correspondence of the kind described would, if undertaken by the monarch, fall squarely within the tripartite convention might arguably be wrong. But I do not think that this is what the Attorney was saying: what he said falls squarely within the convention is Discussing matters of policy with Ministers, and urging views upon them within the ambit of advising or warning, and on a basis of mutual confidence. As I read the Attorneys reasons, he did not misunderstand or ignore the accepted fact that this correspondence was not conducted in rehearsal mode. At para 8 he expressly addressed the Upper Tribunals conclusions that (a) the correspondence was not undertaken as part of preparation for kingship and (b) that it was not the type of activity in which the monarch would engage. Having done so, he stated at para 9 his conclusion that whether or not it falls within the strict definition of the education convention (emphasis supplied) it served the purpose of familiarising the heir with the practical workings of government, enabled him better to understand it, and strengthened his relationships with ministers. In this way, so the Attorney concluded, it helped prepare the heir for the (differently managed) function of King. He added that the correspondence had been undertaken on an explicitly confidential basis on both sides. It does not seem to me that that involves any flawed self misdirection; the conclusion was one which was properly open to the Attorney General. 165. Similarly, it does not seem to me that the Attorney was irrational in taking a different view from the tribunal of the potential damage to a constitutional monarchy of misunderstanding, misperception, or for that matter misrepresentation, as to the heirs political neutrality; that seems to me to be a matter of judgment of the possible reaction of sections of the public on which an experienced politician is at least as entitled to a view as a court. 166. Accordingly it seems to me that the Attorney General gave sufficient rational reasons for his conclusion that the public interest lay in non disclosure. Environmental information 167. To the extent that the correspondence concerned environmental information, I agree, for the reasons given by Lord Neuberger, that a certificate under section 53(2) is ineffective. I also agree, for the reasons which he gives, that this does not render the certificate as a whole unlawful. LORD WILSON: (dissenting) 168. I would have allowed the appeal. How tempting it must have been for the Court of Appeal (indeed how tempting it has proved even for the majority in this court) to seek to maintain the supremacy of the astonishingly detailed, and inevitably unappealed, decision of the Upper Tribunal in favour of disclosure of the Princes correspondence! But the Court of Appeal ought (as, with respect, ought this court) to have resisted the temptation. For, in reaching its decision, the Court of Appeal did not in my view interpret section 53 of FOIA. It re wrote it. It invoked precious constitutional principles but among the most precious is that of parliamentary sovereignty, emblematic of our democracy. 169. With the fairness and courage characteristic of him, Lord Neuberger, at para 88 above, defines the basis of the Court of Appeals decision, with which he agrees, as follows: it is not reasonable for an accountable person to issue a section 53 certificate simply because, on the same facts and admittedly reasonably, he takes a different view from that adopted by a court of record after a full public oral hearing. By his terminology, Lord Neuberger squarely confronts the paradox within his definition. 170. It is helpful to notice the circumstances in which section 53 came to be included in FOIA. The version of the Bill printed on 10 February 2000 included nothing analogous to it. But under that version the applicant had no right to disclosure of such information as was subject to qualified exemptions. Clause 13(4) of it merely conferred a discretion on the public authority to disclose such information and clause 13(5) required that, in exercising the discretion, it should have regard to the desirability of disclosing it wherever the public interest in doing so outweighed the public interest in not doing so. In the event that disclosure was refused, clause 48 empowered the Commissioner only to recommend that it be given. He could not overrule the authority by ordering disclosure. At the Commons Report stage, however, the text of the Bill came, instead, to impose enforceable obligations on public authorities to disclose such information as was subject to qualified exemptions unless (reversing the weighting originally canvassed) the public interest in maintaining the exemption outweighed the public interest in disclosing the information. But, if the discretion of public authorities in this respect was to be eliminated, there needed, so Parliament decided, to be a closely circumscribed power of public authorities at the highest level to override the evaluation of public interests by the Commissioner or by tribunals or courts in ensuing appeals. This was clause 52 of the text of the Bill printed on 6 April 2000 and it became section 53 of FOIA. It is a central feature of the Act. Section 25 of the Irish Freedom of Information Act 1997 had provided for an executive override in somewhat analogous circumstances. 171. A power of executive override of determinations of the Commissioner, or of tribunals or courts in ensuing appeals, on issues of law would have been an unlawful encroachment upon the principle of separation of powers: see the classic judgment of Sir Edward Coke, Chief Justice, in Prohibitions del Roy [1607] EWHC KB J23, 77 ER 1342, upon the claim of King James 1 to determine issues of law. But issues relating to the evaluation of public interests are entirely different. In the words of Lord Hoffmann in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, at para 69, the principle is that in a democratic country, decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them. This was the principle reflected in the first version of the Bill. In the later version Parliament sanctioned departure from it but, in enacting section 53, it no doubt continued to have in mind that the evaluation of public interests was not an exercise in relation to which the Commissioner, the tribunals and the courts, could claim any monopoly of expertise. With respect to Lord Neuberger, I cannot agree with his observation at para 96 above that in this context it is hard to differentiate between the findings of fact and conclusions of law traditionally reached by tribunals and courts, on the one hand, and their occasional excursions into evaluating the potency of rival public interests on the other. 172. At the same time, however, Parliament recognised the potential inherent in the proposed override for executive encroachment upon the rule of law. Insofar as this was a unique power, it had therefore to be circumscribed by a unique array of safeguards. Of these, there are eight, which follow. (a) The power applies only to a decision notice served on a government department (now extended to the Welsh Assembly Government): subsection (1)(a). (b) The notice must relate to a failure to comply with section 1(1)(b) (in other words to make disclosure) in respect of exempt information: subsection (1)(b)(ii). This safeguard is of particular significance: whether the information is exempt is a question of law, to be determined in the usual way, namely by the Commissioner or in an ensuing appeal. It is not enough that the executive considers the information to be exempt. If the information is exempt and the notice relates to a failure to comply with subsection (1)(b), the notice can mean only one thing, namely that the exemption is qualified and that the evaluation of the Commissioner, tribunal or court is that the public interest in maintaining it does not outweigh the public interest in disclosure. This, then, crucially identifies the scope of the override: it is the evaluation of public interests. (c) The certificate is required to state that the certifier, namely the accountable person, has on reasonable grounds formed the opinion that there was no failure falling within subsection (1)(b), ie the opinion that the public interest in maintaining the exemption does outweigh the public interest in disclosure: subsection (2). (d) By subsection (8), the accountable person is required, in relation to a government department in England to be not just a government minister but a Cabinet minister or to be the Attorney General; in relation to Northern Ireland to be the First and deputy First Ministers acting jointly; and in relation to Wales to be the First Minister. Thus the power is exercisable only at the highest level. In relation to England, the convention, announced in Parliament during the passage of the Bill and honoured in the present case, is for the Cabinet minister or Attorney General to consult the Cabinet collectively before signing the certificate. (e) The accountable person must give the certificate to the Commissioner not later than 20 days following service on the department of the decision notice or following the determination of any appeal against it or of any further appeal arising out of it: subsections (2) and (4). (f) As soon as practicable after giving the certificate the accountable person must lay a copy of it before each House of Parliament or, in Northern Ireland and Wales, before the respective Assemblies: subsection (3). Thus there is the facility for almost immediate democratic scrutiny of the use of the override. (h) (g) Also as soon as practicable the accountable person must inform the applicant of the reasons for his opinion save to the extent that to do so would involve disclosure of the information: subsections (6) and (7). It is inherent in the procedure that the applicant can challenge the lawfulness of the certificate in proceedings for judicial review. It is crucial to the compatibility of section 53 with the rule of law that the courts should thereby retain the right to utter the last word on the issue of disclosure: see the Alconbury Developments case, cited at para 171 above, para 73 (Lord Hoffmann). 173. The Court of Appeal decided and today, three members of this court agree that, at any rate where the decision notice is the product of an appeal to the Upper Tribunal (or beyond but in what follows I will, for convenience, put that alternative aside), Parliament must have intended its phrase reasonable grounds to carry a restricted meaning. Although the Court of Appeal left the point open, Lord Neuberger accepts in my view inevitably, as I will explain in para 181 below, that the Attorney General did have, at any rate, reasonable grounds for forming his opinion that the correct evaluation of public interests lay in favour of maintaining the exemption. But, so the argument for Mr Evans runs, while a certificate on such grounds might qualify as a lawful override under section 53 of a decision notice served by the Commissioner (para 83 above), it cannot qualify as a lawful override of a decision notice upheld or substituted by the Upper Tribunal or even, probably, by the First tier Tribunal (para 85 above). 174. Then, however, the argument has to address the question: so what might constitute reasonable grounds for the accountable person to form the opinion that, contrary to the effect of such a decision notice, there was no failure of disclosure? The Court of Appeal offered two examples. 175. The first example was where there had been a material change of circumstances since the determination of the Upper Tribunal. In light of the obligation of the accountable person to give his certificate within 20 days, the first point seemed unpromising. Now, however, it is expanded and said to be strengthened. It is accepted that in the present case the Upper Tribunal was, as a result of reference from the First tier Tribunal, hearing an appeal against the Commissioners decision notice and that therefore there was scope for the government departments to put evidence before the tribunal that was not before the Commissioner, as indeed they did. But, according to the argument at paras 74 and 75 above, contrast the case in which the Upper Tribunal hears an appeal from the First tier Tribunal: such an appeal is limited to a point of law and so the departments would be unlikely to achieve admission of further evidence. In such a case, therefore, a material change of circumstances founding the reasonable opinion might have arisen at any time following the determination of the First tier Tribunal. 176. The second example was where the decision of the Upper Tribunal was demonstrably flawed in fact or law. In the light of the ability of the public authority to appeal to the Court of Appeal on a point of law (which would include challenge to an irrational finding of fact), the second point also seemed unpromising. Now, however, it too is expanded and said to be strengthened. The argument at para 77 above is that the Court of Appeal might hold that the public authority failed to satisfy the criteria for permission for a second appeal in that its proposed appeal did not raise an important point of principle and that, notwithstanding the demonstrable flaw, there was no other compelling reason for it to be heard. 177. Such are indeed valiant attempts to confer some substance upon the two examples given by the Court of Appeal. Do they succeed? They strike me, at least, as far fetched and as thus serving only to illumine the deficiency of the Court of Appeals analysis of section 53. Its effect is that, for all practical purposes, no certificate can be given under section 53 by way of override of a decision notice upheld or substituted by the Upper Tribunal or, probably, by the First tier Tribunal. In other words, namely in those of Ms Rose, it will almost never be reasonable for an accountable person to disagree with the decision of a court in favour of disclosure. The trouble is that, as is agreed, Parliament made clear, by subsection (4)(b), that such a certificate could be given in such circumstances. 178. It is worthwhile to note that, on the first day of the hearing in this court, Mr Eadie stated that he would probably concede that, for so long as it remained open to a government department to challenge an evaluation of public interests by way of appeal, it would be wrong for a certificate to be given instead under section 53. On the second day, however, no doubt on instructions, Mr Eadie made clear that the foreshadowed concession would not be forthcoming. In proceedings for judicial review of the lawfulness of any future certificate, it may prove important to consider the impact of a facility to appeal upon the existence or otherwise of reasonable grounds. In this regard I agree with Lord Neubergers remarks at para 80 above. But no such consideration arises in the present case. What is clear, and in my view significant, is that the disagreement of the government with the evaluation of public interests by the Upper Tribunal under section 2(2)(b) could not have amounted to a point of law upon which it might have appealed to the Court of Appeal. There was only one course open to it and then only if it had reasonable grounds for disagreement: it was to give a certificate under section 53. In my view, therefore, the circumstances of the case constituted a paradigm example of the area of the sections lawful use. 179. Ms Rose cites three decisions of the Court of Appeal in support of the proposition that it is not open to the accountable person to give a certificate under section 53, or (to put it another way) that he could have no reasonable grounds for forming the requisite opinion, in circumstances in which a court has made an evaluation of public interests with which he disagrees. I am grateful for Lord Neubergers full analysis of the three decisions at paras 60 to 65 above. With respect, however, I do not share his view of the light which they cast on the present issue. They were to the effect that a highway authority could not continue to maintain that the developers plans for access would be unsafe in the face of a contrary conclusion by a planning inspector (the Powergen case, cited at para 61 above); that in the absence of special reasons the Secretary of State for the Home Department could not continue to reject the applicants claim that he had committed adultery in Iran in the face of an adjudicators finding that he had done so (the Danaei case, cited at para 62 above); and that a ministers rejection of the Parliamentary Ombudsmans conclusion that his department had been guilty of maladministration was unlawful if it was irrational (the Bradley case, cited at para 63 above). All three decisions are uncontroversial. In none of them, however, did statute expressly confer a power of override on the public authority. I, for my part, cannot subscribe to the suggestion in para 88 above that, with its deemed knowledge of the decisions in the Powergen and Danaei cases, Parliament might have concluded in 2000 that, even were it to enact what became section 53, the law established by those decisions would apply so as to deprive the section of effect in relation to the evaluation of public interests made by courts and tribunals. 180. If, as I consider, section 53 did in principle entitle the Attorney General to override the evaluation of public interests which underlay the Upper Tribunals substituted decision notice, the question for the Divisional Court on judicial review was whether the grounds which formed his opinion were reasonable. The 27 pieces of advocacy correspondence are not before the court. In the proceedings for judicial review no application was made for the court to consider them in the way in which the Upper Tribunal had considered them, namely pursuant to a closed material procedure. It is clear that, had the Attorney General made any such application, Mr Evans would have responded that, in the absence of statutory authority, the High Court has no jurisdiction to adopt such a procedure; and that the Attorney General would have countered that, where the very purpose of the proceedings is to obtain disclosure of information, the High Court has an inherent power to consider the information pursuant to such a procedure if justice so demands. It is an important issue, requiring attention to be given in particular to the breadth of this courts decision in Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34, [2012] 1 AC 531. But, in that no such application was made, the issue must await resolution in other proceedings. 181. Sight of the correspondence would have made it easier for the Divisional Court to determine whether the Attorney Generals grounds were reasonable. But its task was by no means impossible and I consider that it reached the correct conclusion. Having studied the disputed correspondence, the Upper Tribunal had conceded, at the outset of its determination, that there were cogent arguments for non disclosure and indeed the Commissioner, for his part, had persuaded himself that they outweighed those in favour of disclosure. So it would have been surprising for the Divisional Court to have concluded that the Attorney General had no reasonable grounds for his opinion. It is true that, once the Upper Tribunals determination was disseminated, the Attorney Generals opinion would be reasonable only if, in his statement of reasons, he demonstrated engagement with its reasoning. But he did so. He began his analysis with a summary of the conclusions of the Upper Tribunal and later, at para 13 (set out in para 132 of Lord Mances judgment) summarised the six main aspects of the public interest in disclosure which it had identified. In para 14 he described them as good generic arguments for disclosure but explained that in his view they were substantially outweighed by public interest considerations militating against disclosure which were centred upon The Prince of Wales preparation for Kingship and the importance of not undermining his future role as Sovereign. Earlier in his statement the Attorney General had explained each of these two aspects in some detail. The Upper Tribunal had recognised the existence of a tripartite convention under which, on a confidential basis, the Sovereign has a right to be consulted by government, to encourage it and to warn it; so preparation of the Prince for Kingship was, among other things, preparation for his exercise of rights under the tripartite convention. Confidential dialogue with Ministers was therefore, so the Attorney General asserted at para 9, an important aspect of the preparation of the Prince for Kingship in that it enabled him better to understand the business of government, by which no doubt the Attorney General intended to include the value for the public, as well as for the Prince, in his coming to understand such political difficulties as may have surrounded some of his enthusiasms. The second aspect of public interest to which, at para 10, the Attorney General referred was cast on the undeniable importance that the Sovereign should be neutral as between political parties. There was no doubt that the Prince was neutral in that sense but, so the Attorney General asserted, there was a risk that disclosure might engender a contrary perception which would be difficult to dispel and which therefore might seriously compromise his future role as monarch. 182. In paras 130 and 131 of his judgment Lord Mance accepts that section 53 of FOIA entitled the Attorney General to disagree with the Upper Tribunals evaluation of public interests provided that his reasons were solid and properly explained and provided, in particular, that he did so against the background of fact and law established by the tribunal. Lord Mance considers, however, that instead the Attorney General undertook a re determination of the relevant factual background. Lord Mance contends that the ensuing paragraphs of his judgment so demonstrate. But (I ask, with respect) do they so demonstrate? I suggest that most readers of the extensive quotations from the tribunal's judgment and the Attorney Generals certificate set out in paras 132 144 of Lord Mances judgment will conclude as follows: (a) There was a surprising concentration in the evidence before the tribunal and in its judgment on the theoretical ambit of constitutional conventions, in particular of the so called education convention. (b) To determine whether a particular piece of correspondence fell within the ambit of the education convention or some other convention was not to determine the central question, which was whether the public interest in not disclosing it outweighed the public interest in disclosing it. (c) Preparation for Kingship was, as I have explained, the first of the two central grounds for the Attorney Generals conclusion that the balance of public interests lay against disclosure. In that respect it was reasonable for him to state, in para 9 of the certificate: I therefore consider that, whether or not it falls within the strict definition of the education convention, advocacy correspondence is an important means whereby the Prince of Wales prepares for Kingship. It serves the very same underlying and important public interests which the education convention reflects. (d) In stating that the correspondence formed part of the Princes preparation for Kingship and that it did not matter whether it fell outside the education convention and thus lacked what, at para 106, the tribunal described as constitutional status, the Attorney General disagreed with the tribunal not on a question of fact but in its approach to the evaluation of the rival public interests. (e) The Attorney Generals certificate discloses no disagreement with the tribunal upon any issue of fact in any ordinary sense of that word. 183. Without in any way agreeing with the Attorney General that the public interest in maintaining the exemption did outweigh the public interest in disclosure, the Divisional Court was in my view right to conclude that there were reasonable grounds for him to hold that opinion. 184. Insofar as the correspondence includes environmental information, the Attorney Generals certificate under section 53 was unlawful if it fell foul of the requirements for access to justice in article 6 of the European Directive 2003/4/EC (the Directive). As Lord Neuberger explains in para 100 above, paragraph 1 of the article entitled Mr Evans to demand reconsideration of the departments refusal of disclosure by an independent body established by law (the paragraph 1 requirement) and, in the event of his continued dissatisfaction, paragraph 2 entitled him to access to a review procedure before a court of law whose decisions may become final (the paragraph 2 requirement). In the interests of maximum clarity paragraph 3 added that, once the decisions were final, they should be binding. 185. The fifth recital to the Directive explains that its purpose was to make EU law consistent with the Aarhus Convention dated 25 June 1998 (the Convention), the subjects of which, in the words of its title, were access to information, public participation in decision making and access to justice in environmental matters. So access to justice was the third pillar of the Convention and was the subject of detailed provision in its article 9, paragraph 1 of which was the subject of efficient transposition into article 6 of the Directive. But article 6 should not be subject to the intricate analysis apt to a domestic statute. It required the provision to Mr Evans of a right to invoke two robust, independent inquiries into whether the refusal to give him the environmental information was in accordance with the Directive. But, while they are obliged to achieve the result envisaged by a directive, and in particular to provide effective judicial protection for an individuals exercise of such rights as it confers, member states have the freedom to choose the ways and means of ensuring that a directive is implemented: paras 40 to 47 of the judgment of the Grand Chamber of the ECJ in the Impact case, cited at para 106 above. 186. It is agreed that the facility to apply to the Commissioner satisfies the paragraph 1 requirement and that the facility to appeal onwards to the First tier Tribunal (or, by reference, to the Upper Tribunal) satisfies the para 2 requirement. The issue is whether and if so how, the facility for the giving of a section 53 certificate and for attendant judicial review can be accommodated within the structure of the two requirements or either of them. 187. The Attorney General seeks a ruling that the facility for judicial review of a section 53 certificate satisfies the paragraph 2 requirement for a review procedure before a court of law. He may in part be motivated to do so by his wish to preserve the facility for a certificate to be given following a decision notice served by the Commissioner and prior to any appeal. If in such circumstances the paragraph 2 requirement is to be satisfied, it can be satisfied only by the facility for the applicant to seek judicial review of the section 53 certificate. At all events the Attorney General cites the decision of the Court of Appeal in T Mobile (UK) Ltd v Office of Communications [2008] EWCA Civ 1373, [2009] 1 WLR 1565, in which an article of an EU directive required provision of an effective appeal mechanism in which the merits of the case are duly taken into account. Although ultimately there was no argument to the contrary, Jacob LJ concluded, at para 19, that the jurisdiction to conduct a judicial review was flexible enough to accommodate whatever standard the article required; and in paras 20 to 29 he convincingly set out the grounds of his conclusion. Nevertheless it remains difficult to shoe horn the facility for judicial review into the requisite review procedure. However intense the judicial scrutiny, the focus of the judicial review can only be upon whether the accountable person had formed his opinion on reasonable grounds; but I agree with the Court of Appeal that paragraph 2 requires that the focus of the review procedure should be upon whether refusal of the information was in accordance with the Directive. Grave doubts about whether, in the case of environmental information, judicial review can satisfy the paragraph 2 requirement should lead an accountable person to be even more cautious before deciding to give a certificate under section 53 in relation to a decision notice served by the Commissioner rather than to appeal against it to the First tier Tribunal. 188. In the present case, by contrast, satisfaction with the paragraph 2 requirement has been achieved by the appeal to the Upper Tribunal and the question is whether the giving of the certificate and the attendant judicial review somehow operate so as to set it at naught. I consider that the answer is to be located in words in paragraph 2 which Davis LJ highlighted in para 135 of his judgment in the Divisional Court, namely that the outcome of the review may become final. I am doubtful about the legitimacy of Lord Neubergers interpretation, expressed in para 100 above, that these words give rise to a requirement that the outcome become[s] final. Article 9.1 of the Convention also refers to final decisions but sheds no light on this issue. In my view the drafters of article 6 of the Directive rightly recognised that the decision made upon the paragraph 2 review might or might not become final and that this might depend on the outcome of some further procedure. I believe that they had in mind, in particular, that a public authority might win an appeal against the decision made upon the paragraph 2 review. In England and Wales a successful appeal by a public authority to the Court of Appeal on a point of law against a decision notice upheld or substituted by the Upper Tribunal would mean that the latters decision had proved not to be final. But no one could deny that, in that event, the applicant had nevertheless been afforded his right of access to review under paragraph 2. The present case exemplifies the adoption of a different procedure before it could be seen whether the decision made upon the paragraph 2 review would become final: for the procedure took the form not of an appeal but of the giving of a certificate under section 53 attended by a judicial review. Had the result of the judicial review been to quash the certificate, the decision made upon the paragraph 2 review would indeed have become final. But since, correctly in my view, the Divisional Court declined to quash the certificate, the decision made upon the paragraph 2 review did not become final. As in the case of an appeal against the decision made upon the paragraph 2 review, the ultimate arbiter of whether the Upper Tribunals decision should become final has been a court of law. On any sensible reading of paragraph 2, that feature must be crucial but, granted its existence in the present case and notwithstanding the specific focus of the judicial review, I conclude that there has been no breach of the paragraph 2 requirement. 189. Article 47 of the Charter of Fundamental Rights of the European Union (the Charter) provides that everyone whose rights guaranteed by the law of the Union are violated has the right to an effective remedy, including to a fair and public hearing by an independent tribunal established by law. By the Directive, the law of the Union guarantees to Mr Evans qualified rights to the disclosure of environmental information. He contends that, insofar as it addressed such information, the Attorney Generals certificate violated his rights under article 47; and, in reliance on article 52.3 of the Charter which ascribes to his rights under article 47 the meaning and scope of corresponding rights under article 6 of the European Convention on Human Rights, he contends that the giving of the certificate under section 53 infringed his rights to legal certainty and to equality of arms. If, for the reasons which I have explained, the giving of the certificate, when taken together with its attendant judicial review, does not violate the detailed requirements for access to justice in article 6 of the Directive, 1 do not accept that it might nevertheless infringe the right of Mr Evans to an effective remedy under article 47 of the Charter. No one would welcome the further protraction of a dissenting judgment by enlargement upon this straightforward conclusion. There are three previous decisions of the Court of Appeal which bear on the question whether Parliament can have intended a member of the executive to be able freely to consider, or reconsider, for himself the very issues, on the same facts, which had been determined by another person or a tribunal. I agree with Lord Wilson that (quite apart from the fact that they are not binding on us) none of these decisions, or the reasoning which they contain, would be directly determinative of the instant appeal. However, they cast some light on the appropriate approach to be adopted in a case where two separate bodies are called on by statute to determine the same issue. In R v Warwickshire County Council, Ex p Powergen plc (1997) 96 LGR 617, it was held that a county council, as highway authority, was precluded from refusing to agree to access works to a proposed development on the ground that the access was unsafe, because that was a ground which a planning inspector, after a full enquiry, held that the district council (adopting the view of the county council) had not made out as a reason for refusing planning permission for the development. Simon Brown LJ stated at p 626 that because of its independence and because of the process by which it is arrived at, the inspectors conclusion had become the only properly tenable view on the issue of road safety. In R v Secretary of State for the Home Department, Ex p Danaei [1998] INLR 124, an immigration adjudicator, after a hearing, had rejected the applicants asylum appeal, but accepted that he had left Iran because he had had an adulterous relationship; it was held that the applicants subsequent application for special leave to remain could not be rejected by the Home Secretary on the ground that he did not accept that the applicant had had such a relationship. Simon Brown LJ suggested that, unless the adjudicators conclusion was demonstrably flawed or fresh material has since become available, the Home Secretary had to accept the adjudicators finding. In R (Bradley) v Secretary of State for Work and Pensions (Attorney General intervening) [2009] QB 114, the Secretary of State was held to have wrongly rejected findings of maladministration made by the ombudsman. The ombudsmans investigation had been carried out in private, as required by the relevant legislation, and she had adopted a full, albeit not adversarial, written procedure. Sir John Chadwick said at para 51 that the Secretary of State was not bound to follow the ombudsmans view, but that his decision to reject the ombudsmans findings in favour of his own view must not be irrational having regard to the legislative intention which underlies the [relevant] Act. At para 91, Sir John said that it was not enough that [the	The Freedom of Information Act 2000 (FOIA 2000) enables members of the public to see documents held by many public bodies, subject to certain exemptions; the Environmental Information Regulations 2004 (EIR 2004) enables members of the public to see documents containing environmental information, again subject to certain exemptions. In April 2005, Mr Evans, a journalist who works for the Guardian newspaper, requested disclosure of communications passing between various government departments and HRH the Prince of Wales (the letters). The requests were made under both FOIA 2000 and EIR 2004. The Departments refused to disclose the letters on the ground that they considered the letters were exempt. Mr Evans complained to the Information Commissioner, who upheld the Departments refusal. Mr Evans then appealed to the Information Tribunal, and the matter was transferred to the Upper Tribunal. The Upper Tribunal conducted a full hearing with six days of evidence and argument. In its determination issued 18 September 2012, the Upper Tribunal decided that many of the letters (referred to as advocacy correspondence) should be disclosed. The Departments did not appeal this decision, but on 16 October 2012 the Attorney General issued a certificate under section 53(2) FOIA 2000 and regulation 18(6) EIR 2004 stating that he had, on reasonable grounds, formed the opinion that the Departments had been entitled to refuse disclosure of the letters, and set out his reasoning. If this Certificate is valid, its effect would be to override a decision of the Upper Tribunal, a judicial body which has the same status as the High Court. Mr Evans issued proceedings to quash the Certificate on the grounds (1) that the reasons given by the Attorney General were not capable of constituting reasonable grounds and/or (2) in so far as the advocacy correspondence was concerned with environmental issues, the Certificate was incompatible with Council Directive 2003/4/EC (the 2003 Directive). The Divisional Court dismissed his claim. However, the Court of Appeal allowed his appeal on both grounds. The Attorney General appealed to the Supreme Court. The issue before the Supreme Court was therefore whether the Certificate is valid, and in particular (i) whether the Attorney General was entitled to issue a certificate under section 53 FOIA 2000 that he had on reasonable grounds formed the opinion that the Departments had been entitled to refuse disclosure; (ii)(a) whether, in any event, regulation 18(6) EIR 2004 complies with the relevant provisions of EU law; and (b) if it does not, whether the Certificate can stand even in relation to the non environmental information. It should be noted that the Supreme Court has not seen the advocacy correspondence, and did not need to do so in order to determine the points of law set out above. The Supreme Court dismisses the Attorney Generals appeal. By a majority of 5:2 the Court considers that the Attorney General was not entitled to issue a certificate under section 53 FOIA 2000 in the manner that he did and therefore that the Certificate was invalid. By a majority of 6:1 the Court holds that reg.18(6) is incompatible with the 2003 Directive and must be treated as invalid, and therefore that the Certificate would in any event have been invalid insofar as it related to environmental information. The appeal based on FOIA 2000 Lord Neuberger (with whom Lord Kerr and Lord Reed agree) concludes that section 53 FOIA 2000 does not permit the Attorney General to override a decision of a judicial tribunal or court by issuing a certificate merely because he, a member of the executive, considering the same facts and arguments, takes a different view from that taken by the tribunal or court. This would be unique in the laws of the United Kingdom and would cut across two constitutional principles which are fundamental components of the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the executive are reviewable by the courts, and not vice versa [52]. Clear words must be used if the statute is to have that effect, and section 53 is a very long way from being clear enough [58 59]. Lord Mance (with whom Lady Hale agrees) considers that it would be open to the Attorney General to issue a certificate under section 53 if he disagrees with the decision of the Upper Tribunal. However, disagreement with findings of fact or rulings of law in a fully reasoned decision would require the clearest possible justification (and may only be possible in the circumstances suggested by Lord Neuberger at [71 79]), while disagreement as to the weight to be attached to competing public interests would require properly explained and solid reasons [130 131]. In this case the Attorney General impermissibly undertook his own redetermination of the relevant factual background, including certain constitutional conventions on which the Upper Tribunal had heard detailed evidence, which he was not entitled to do. The Attorney Generals certificate does not engage with the closely reasoned analysis of the Upper Tribunal [142]. The Certificate proceeded on the basis of findings which differed radically from those made by the Upper Tribunal without real or adequate explanation, and cannot be regarded as satisfying the test for issue of a certificate [145]. Lord Wilson and Lord Hughes each give judgments dissenting on this issue. They each consider that the Attorney General was entitled to issue the certificate under section 53 on the ground that he did. Environmental information under the 2003 Directive Lord Neuberger and Lord Mance (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Hughes agree) point out that article 6.1 requires that, following a refusal by a public authority of a request for environmental information, the refusal must be reconsidered or reviewed administratively, article 6.2 requires that thereafter the applicant has access to a review procedure before a court of law or [similar] body] whose decisions may become final, and article 6.3 requires that [f]inal decisions under paragraph 2 shall be binding on the public authority holding the information [100]. In light of these provisions, they consider that it would be impermissible for the executive to have another attempt at preventing disclosure, and therefore regulation 18(6) EAIA 2004 is incompatible with article 6 of the 2003 Directive [103]. However, this conclusion would only apply to the environmental information [111]. Lord Wilson dissenting on this point, would have held that the issue of a section 53 certificate in respect of environmental information whose disclosure was ordered by a court or judicial tribunal was not incompatible with the provisions of the 2003 Directive.
On 13 December 2006 the appellant Mohammed al Ghabra, referred to in these proceedings as G, was informed that a direction had been made against him by HM Treasury (the Treasury) under article 4 of the Terrorism (United Nations Measures) Order 2006 (SI 2006/2657) (the TO) and that he was a designated person for the purposes of that Order. He was told that the direction had been made because the Treasury had reasonable grounds for suspecting that he was, or might be, a person who facilitated the commission of acts of terrorism. He was also told that, in light of the sensitive nature of the information on which the decision had been taken, it was not possible to give him further details and that the effect of the direction was to prohibit him from dealing with his funds and economic resources and to prevent anyone notified of the freeze from making funds, economic resources or financial services available to him or for his benefit. On 2 August 2007 the appellants Mohammed Jabar Ahmed, Mohammed Azmir Khan and Michael Marteen (formerly known as Mohammed Tunveer Ahmed), referred to in these proceedings as A, K and M, received letters in almost identical terms telling them that a direction had been made against them under article 4 of the TO by the Treasury. A few days after G had been told that he had been designated under the TO he received a letter from the Foreign and Commonwealth Office saying the Sanctions Committee of the Security Council of the United Nations (otherwise known as the 1267 Committee: see para 18 below) had added his name to its Consolidated List, that this meant that he was subject to a freezing of his funds, assets and economic resources and that these measures were binding on all UN member states with immediate effect and had been implemented in UK law. No mention was made at that stage of the domestic measure under which the restrictions were being imposed on him. But in March 2007 he was told that his listing meant that he was deemed to be a designated person under the Al Qaida and Taliban (United Nations Measures) Order 2006 (SI 2006/2952) (the AQO). In September 2005 Hani El Sayed Sabaei Youssef (or Hani al Sebai), referred to in these proceedings as HAY, was told that his name had been added to the Consolidated List by the 1267 Committee. As a result he too was deemed to be a designated person under the AQO. His interest in these proceedings is virtually identical to those of G and A, K and M. So, although his case comes before this court on an appeal by the Treasury to which he is the respondent (see paras 35 37, below), I shall refer to him and to G and A, K and M as the appellants when I need to refer to all these designated persons collectively. The TO and the AQO were made by the Treasury in purported exercise of the power to make Orders in Council which was conferred on them by section 1 of the United Nations Act 1946 (the 1946 Act). In each case the Orders were made to give effect to resolutions of the United Nations Security Council which were designed to suppress and prevent the financing and preparation of acts of terrorism. The Orders provide for the freezing, without limit of time, of the funds, economic resources and financial services available to, among others, persons who have been designated. Their freedom of movement is not, in terms, restricted. But the effect of the Orders is to deprive the designated persons of any resources whatsoever. So in practice they have this effect. Persons who have been designated, as Sedley LJ observed in the Court of Appeal, are effectively prisoners of the state: A and others v HM Treasury [2008] EWCA Civ 1187; [2009] 3 WLR 25, para 125. Moreover the way the system is administered affects not just those who have been designated. It affects third parties too, including the spouses and other family members of those who have been designated. For them too it is intrusive to a high degree: see R(M) v HM Treasury (Note) [2008] UKHL 26, [2008] 2 All ER 1097. In that case, which concerned the payment of social security benefits to the spouses of listed persons living in the United Kingdom, the House of Lords referred a question to the Court of Justice of the European Communities for a preliminary ruling on the interpretation of Council Regulation (EC) No 881/2002 to which the Al Qaida and Taliban (United Nations Measures) Order 2002 (SI 2002/111) gave effect. The procedure that section 1 lays down enables Orders under it to be made by the executive without any kind of Parliamentary scrutiny. This is in sharp contrast to the scheme for the freezing of assets that has been enacted by Parliament in Part 2 of the Anti terrorism, Crime and Security Act 2001. Orders made under that Act must be kept under review by the Treasury, are time limited and must be approved by both Houses of Parliament: sections 7, 8 and 10. The systems that have been provided for in the TO and the AQO are far more draconian. Yet they lie wholly outside the scope of Parliamentary scrutiny. This raises fundamental questions about the relationship between Parliament and the executive and about judicial control over the power of the executive. The case brings us face to face with the kind of issue that led to Lord Atkins famously powerful protest in Liversidge v Anderson [1942] AC 206, 244 against a construction of a Defence Regulation which had the effect of giving an absolute and uncontrolled power of imprisonment to the minister. In The Case of Liversidge v Anderson : The Rule of Law Amid the Clash of Arms (2009) 43 The International Lawyer 33, 38 Lord Bingham of Cornhill, having traced the history of that judgment, said that we are entitled to be proud that even in that extreme national emergency there was one voice eloquent and courageous which asserted older, nobler, more enduring values: the right of the individual against the state; the duty to govern in accordance with law; the role of the courts as guarantor of legality and individual right; the priceless gift, subject only to constraints by law established, of individual freedom. The consequences of the Orders that were made in this case are so drastic and so oppressive that we must be just as alert to see that the coercive action that the Treasury have taken really is within the powers that the 1946 Act has given them. Even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty. The legislative background: the history To set the scene for the discussion that follows, it is necessary to trace the history of the various measures that have led to the appellants being dealt with in this way. An examination of the legislative background must begin with the Charter of the United Nations. It was signed in San Francisco on 26 June 1945 as the Second World War was coming to an end. It came into force on 24 October 1945. The Preamble records the determination of the United Nations to save succeeding generations from the scourge of war, to reaffirm faith in fundamental human rights and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. Member states bound themselves to maintain international peace and security, to take collective measures for the prevention and removal of threats to the peace and to promote and encourage respect for human rights and for fundamental freedoms: article 1. No principled objections were raised against a strong Security Council. In order to achieve the goal of maintaining peace states were willing to submit to a central organ in a manner that hitherto had been unprecedented: The Charter of the United Nations, A Commentary, ed Bruno Simma, 2nd ed (2002), p 703 (Professor Joachim Frowein and Dr Nico Krisch). Article 2 of the Charter states: The Organisation and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. Article 24 confers the primary responsibility on the Security Council for the maintenance of international peace and security. Article 25 provides: The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. Chapter VII sets out the action to be taken with respect to threats to the peace, breaches of the peace and acts of aggression. Article 39, which introduces this Chapter, provides that it is for the Security Council to determine the existence of any such threat and to make recommendations or decide what measures shall be taken in accordance with articles 41 and 42 to maintain or restore international peace and security. Article 41 states: The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. Article 42 provides for the measures that may be taken if the Security Council considers that measures provided for in article 41 would be or have proved to be inadequate. An example of its use can be found in Resolution 1546 which was adopted by the Security Council on 8 June 2004 which gave authority for a multi national force to take all necessary measures to contribute to the maintenance of peace and security in Iraq: see R (Al Jedda) v Secretary of State for Defence (JUSTICE intervening) [2007] UKHL 58, [2008] AC 332. This case is concerned with measures that have been taken under article 41. Among a number of miscellaneous provisions in Chapter XVI is article 103, with which the complementary provision in article 25 must be read. It provides: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. Treaty provisions that are incompatible with ius cogens are void. As for the rest, article 103 does not say that treaty provisions between states which are incompatible with the Charter are void. What it says is that the Charter has higher rank, and that obligations derived from the Charter must prevail. As Professor Rudolf Bernhardt observes at p 1295 of the Commentary, the Charter aspires to be the constitution of the international community accepted by the great majority of states. Obligations under decisions and enforcement measures under Chapter VII prevail over other commitments of the members concerned in international law. As article 103 is concerned only with treaty obligations between member states it says nothing about the relationship between the Charter and the rights and freedoms of individuals in domestic law. In that regard, article 55(c) states that the United Nations shall promote universal respect for, and observance of, human rights and fundamental freedoms. But the obligation in article 25 is unqualified, and the regime in Chapter VII leaves it to the Security Council to judge whether the measures that it decides upon are consistent with the objects of the Charter. The United Kingdom gave effect to the Charter in domestic law by means of the United Nations Act 1946. Section 1 of that Act provides: (1) If, under article 41 of the Charter of the United Nations signed at San Francisco on 26 June 1945 (being the article which relates to measures not involving the use of armed force) the Security Council of the United Nations call upon His Majestys Government in the United Kingdom to apply any measures to give effect to any decision of that Council, His Majesty may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measures to be effectively applied, including (without prejudice to the generality of the preceding words) provision for the apprehension, trial and punishment of persons offending against the Order. Subsection (4) of that section as originally enacted provided that any such Order was not to be deemed to be or contain a statutory rule to which section 1(1) of the Rules Publication Act 1893 applied. That section which was repealed by section 12 of the Statutory Instruments Act 1946, required publication of an Order in the London Gazette at least 40 days before it was made. As I said in R (Stellato) v Secretary of State for the Home Department [2007] UKHL 5, [2007] 2 AC 70, para 10, the opportunity for scrutiny of delegated legislation by Parliament is determined by the provisions of the enabling Act. Four procedures are available: affirmative resolution procedure; negative resolution procedure; simply laying; and no parliamentary stage at all. In the case of Orders in Council made under section 1 of the 1946 Act the procedure is simply laying before Parliament. All statutory instruments that are laid before Parliament are considered by the Joint Committee on Statutory Instruments. But its role is confined to assessing the technical qualities of the instrument. This is to be contrasted with the procedure which applies to an instrument upon which proceedings may be taken in either House. Under that procedure every draft instrument is considered by the Merits of Statutory Instruments Committee with a view to determining whether or not the special attention of the House should be drawn to it on grounds of a more general character. These include (a) that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House and (b) that it may be inappropriate in view of changed circumstances since the enactment of the parent Act. This level of scrutiny does not apply to the procedure that was chosen for Orders in Council made under section 1 of the 1946 Act. They are not instruments upon which proceedings may be taken in either House. They are laid before Parliament for its information only, not for scrutiny of their merits or for debate. The effect of section 1 of the 1946 Act is that decisions as to the provisions that Orders made under it may or should contain lie entirely with the executive. When he introduced the United Nations Bill at its Second Reading in the House of Lords on 12 February 1946 the Lord Chancellor, Lord Jowitt, said that article 41 was the only article of the Charter that required immediate legislation in order to put His Majestys Government in a position to fulfil their obligations as a member of the United Nations, and that when the Security Council took a decision there was an obligation on the Government to give effect to it: Hansard, HL Debates, 12 February 1946, vol 139, cols 373 375. For the opposition, Viscount Swinton said that he believed that a Bill to enable the Government to do things by Order in Council would have the complete, unanimous and enthusiastic support of everybody in the House, as if the United Nations was to succeed it must be able to take effective action and that action must be prompt and immediate: col 377. Viscount Samuel, supporting the motion, said that the Bill made provision for the eventuality that coercive measures might become necessary by the United Nations against some State which is indulging, or is apparently about to indulge in acts of aggression: col 378. The Lord Chancellor did not suggest, in his brief reply, that this was an incorrect summary of the purpose of the enactment: col 379. Remarks made during the Second Reading of the Bill in the House of Commons on 5 April 1946 cast further light as to what its purpose was understood to be at that time. Introducing the Bill, the Minister of State, Mr Philip Noel Baker, said that it would play its part in the vitally important measures for keeping the peace, as clashes between Governments such as those which might have become wars might occur again: Hansard, HC Debates, vol 421, col 1516. Other speakers referred during the debate to the use of non military, diplomatic and economic sanctions as a means of deterring aggression between states. There was no indication during the debates at Second Reading in either House that it was envisaged that the Security Council would find it necessary under article 41 to require states to impose restraints or take coercive measures against their own citizens. The question whether it would be appropriate, if it were to do so, for the Government to be given power to introduce such measures by Orders in Council in the manner envisaged by the Bill was not discussed. The Security Council Resolutions The world has not, of course, been immune to threats to international peace and security since 1945. Numerous Security Council Resolutions (SCRs) have been made calling upon the members of the United Nations to take measures under article 41. Prior to the terrorist attacks that were perpetrated on 11 September 2001 (9/11) in New York, Washington and Pennsylvania they were directed primarily to the interruption by means of sanctions of economic and other relations between states. As the Security Councils practice evolved they were directed to what states themselves might or might not do. For example, by SCR 1189(1998) the Security Council declared that every state has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another state or acquiescing in organised activities within its territory directed towards the commission of such acts. But the bombing of United States embassies in Nairobi and Dar es Salaam in 1999 showed that the spectre of international terrorism was not capable of being defeated by measures directed to the transactions of states as such. In response to these outrages the Security Council directed its attention to the activities of the ruling regimes. SCR 1267(1999) provided for the freezing of funds and other financial resources derived from or generated from property owned or controlled by the Taliban or by any undertaking owned or controlled by them: paragraph 4(b). A sanctions Committee was established to oversee implementation of these measures, known as the 1267 Committee. SCR 1333(2000) took this process a step further. It provided by paragraph 8(c) that all states should freeze funds and other financial assets of Usama bin Laden and individuals and entities associated with him to ensure that no funds were made available for the benefit of any person or entity associated with him, including the Al Qaida organisation. Although previous practice did not go that far, it has not been suggested that it lay outside the powers of the Security Council under article 41 to direct the taking of collective measures at an international level against individuals. The drafting history indicates the contrary. The wording of article 41 was the product of the agreement reached by the Four Powers at Dumbarton Oaks that it should contain an enumeration of the non military measures that could be taken which was illustrative and non exhaustive: Simma, op cit, p 737. SCR 1333(2000) was followed by a series of resolutions refining and updating the measures that were to be taken to deal with Al Qaida, Usama bin Laden, the Taliban and other individuals, groups, undertakings and entities associated with them as designated by the committee established pursuant to SCR 1267. At the hearing of this appeal the most recent was SCR 1822(2008). It was followed and reaffirmed by SCR 1904(2009), which was adopted on 17 December 2009. The preamble to SCR 1822(2008) declared that terrorism in all its forms and manifestations constitutes one of the most serious threats to peace and security, reiterated the Security Councils condemnation of these persons and stressed that terrorism could only be defeated by a sustained and comprehensive approach involving the active participation and collaboration of all states. By paragraph 1 it required all states to take all the measures previously imposed by previous Resolutions with respect to Al Qaida, Usama bin Laden and the Taliban and other individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to Resolutions 1267(1999) and 1333(2000) (the Consolidated List), including: (a) Freeze without delay the funds and other financial assets or economic resources of these individuals, groups, undertakings and entities, including funds derived from property owned or controlled directly or indirectly, by them or by persons acting on their behalf or at their direction, and ensure that neither these nor any other funds, financial assets or economic resources are made available, directly or indirectly for such persons benefit, or by their nationals or by persons within their territory. Paragraph 8 of SCR 1822(2008) reiterated the obligation of all Member States to implement and enforce the measures set out in paragraph 1 and urged all states to redouble their efforts in that regard. Paragraph 9 encouraged all Member States to submit to the 1267 Committee for inclusion on the Consolidated List names of individuals, groups, undertakings and entities participating by any means in the financing or support of acts or activities of Al Qaida, Usama bin Laden and the Taliban and other individuals, groups, undertakings and entities associated with them. The persons on that list are the persons to whom the prohibitions in SCR 1267(1999) and subsequent Resolutions applied. Provision was made in paragraphs 1923 for de listing and in paragraphs 24 26 for review and maintenance of the Consolidated List. Individuals, groups, undertakings and entities have the option of submitting a petition for de listing directly to a body known as the Focal Point. The Committee is directed to work, in accordance with its guidelines, to consider petitions for removal from the Consolidated List of those who no longer meet the criteria established in the relevant Resolutions. On 28 September 2001, as part of its response to 9/11, the Security Council broadened its approach to the problem still further. It decided that action required to be taken against everyone who committed or attempted to commit terrorist acts or facilitated their commission. It adopted SCR 1373(2001). The preamble to this Resolution recognised the need for states to complement international co operation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism. In paragraph 1 it was declared that the Security Council had decided that all States shall: (a) Prevent and suppress the financing of terrorist acts; (b) Criminalize the wilful provision or collection of funds by their nationals or in their territories with the intention that the funds should be used to carry out terrorist acts; (c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities; [and] (d) Prohibit their nationals or any persons and entities within their territories from making funds, financial assets or economic resources or financial or other related services available for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled by such persons and of persons and entities acting on behalf of or at the direction of such persons. In paragraph 2 it was declared that the Security Council had decided that all States shall, among various other measures (d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens; (e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice. Provision was made in paragraph 6 for establishing a Committee of the Security Council, consisting of all its members, to monitor implementation of the Resolution. In paragraph 8 the Security Council expressed its determination to ensure the full implementation of the Resolution, in accordance with its responsibilities under the Charter. This Resolution was followed by SCR 1452(2002) which was adopted on 20 December 2002. In order to give effect to SCR 1333(2000) and its successors within the European Community, the Council adopted Regulation (EC) No 881/2002 ordering the freezing of the funds and other economic resources of the persons and entities whose names appear on a list annexed to that Regulation. Practice has varied among member states as to whether to implement their obligations under the UN Charter in parallel with their obligation to legislate in their national legal orders in conformity with Regulation 881. Reports of the member states to the 1267 Committee indicate that eleven of the twenty seven member states appear to have relied on Regulation 881 alone. The remaining sixteen member states, including the United Kingdom, have adopted their own legislative measures which run in parallel with the Regulation. The Orders in Council: the Terrorism Orders The United Kingdom Parliament had already enacted the Terrorism Act 2000 for the creation of a criminal regime dealing with the funding of terrorism. It received the Royal Assent on 20 July 2000. In response to the events of 9/11 the Bill which became the Anti terrorism, Crime and Security Act 2001 was presented to Parliament on 12 November 2001. It received the Royal Assent on 14 December 2001. It was followed by the Prevention of Terrorism Act 2005, which received the Royal Assent on 11 March 2005, the Terrorism Act 2006 which received the Royal Assent on 30 March 2006 and the Counter Terrorism Act 2008 which received the Royal Assent on 26 November 2008. Part 2 of the 2001 Act provided for the making of freezing orders. The 2005 Act provided for the making of control orders. The 2006 Act, among other things, amended the definition of terrorism in the 2000 and 2001 Acts to eliminate disparities between its definition in domestic law and that in various international conventions to which the United Kingdom is a party. The 2008 Act introduced a procedure for setting aside financial restrictions decisions taken by the Treasury. The restrictions that were imposed on the appellants in this case were made by the Treasury under section 1 of the 1946 Act. They were not made under powers that were specifically designed for that purpose by primary legislation. Effect was first given to SCR 1373 by the Terrorism (United Nations Measures) Order 2001 (SI 2001/3365), which was made on 9 October 2001, laid before Parliament on the same day and came into force on 10 October 2001. The wording of its leading provision was modelled on that of the SCR. Article 3 of the Order provided: Any person who, except under the authority of a licence granted by the Treasury under this article, makes any funds or financial (or related) services available directly or indirectly to or for the benefit of (a) a person who commit, attempts to commit, facilitates or participates in the commission of acts of terrorism, (b) a person controlled or owned directly or indirectly by a person in (a), or (c) a person acting on behalf, or at the direction of, a person in (a), is guilty of an offence under this Order. The Terrorism (United Nations Measures) Order 2006 (SI 2006/2657) (the TO) was laid before Parliament on 11 October 2006 and came into force on 12 October 2006. As its preamble records, it was made to give effect to SCR 1373(2001) and SCR 1452(2002). By article 20(1) it revoked the 2001 Order. In place of article 3 of that Order there is a new article 3, which is in these terms: (1) For the purposes of this Order a person is a designated person if (a) he is identified in the Council Decision, or (b) he is identified in a direction. 2) In this Part direction (other than in articles 4(2)(d) and 5(3)(c)) means a direction given by the Treasury under article 4(1). Article 4 provides: (1) Where any condition in paragraph (2) is satisfied, the Treasury may give a direction that a person identified in the direction is designated for the purposes of this Order. (2) The conditions are that the Treasury have reasonable grounds for suspecting that the person is or may be (a) a person who commits, attempts to commit, participates in or facilitates the commission of acts of terrorism; (b) a person identified in the Council Decision; (c) a person owned or controlled, directly or indirectly, by a designated person; or (d) a person acting on behalf of or at the direction of a designated person. (4) The Treasury may vary or revoke a direction at any time. Article 5(4) provides that the High Court or, in Scotland, the Court of Session may set aside a direction on the application of the person identified in the direction. Article 7 of the TO provides: (1) A person (including the designated person) must not deal with funds or economic resources belonging to, owned or held by a person referred to in paragraph (2) unless he does so under the authority of a licence granted under article 11. (2) The prohibition in paragraph (1) applies in respect of (a) any person who commits, attempts to commit, participates in or facilitates the commission of acts of terrorism; (b) any designated person; (c) any person owned or controlled , directly or indirectly, by a person referred to in sub paragraph (a) or (b); and (d) any person acting on behalf or at the direction of a person referred to in sub paragraph (a) or (b). (3) A person who contravenes the prohibition in paragraph (1) is guilty of an offence. Article 7(6) defines the phrase deal with in terms which are designed to catch every conceivable kind of transaction in respect of funds and economic resources. Article 8 provides that a person must not make funds, economic resources or financial services available, directly or indirectly, to or for the benefit of a person referred to in article 7(2) unless he does so under the authority of a licence granted under article 11. Licences under article 11 may be general or granted to a category of persons or to a particular person, may be subject to conditions and may be of indefinite duration or subject to an expiry date. The Treasury may vary or revoke the licence at any time. On 8 July 2009 a further Order in this sequence, the Terrorism (United Nations Measures) Order 2009 (SI 2009/1747), was laid before Parliament. It came into force on 10 August 2009. Like the 2001 and 2006 Terrorism Orders, it was made under section 1 of the 1946 Act to give effect to SCR 1373(2001). It revoked the 2006 Order, but it provided that persons such as A, K, and M and G who had been designated under the 2006 Order were to remain subject to its terms until 31 August 2010 unless their designation was revoked by that date: article 26(4). On 22 October 2009, two weeks after the hearing of these appeals had been concluded, G was informed that his designation under the 2006 Order had been revoked and that he had been redesignated under the 2009 Order. On 30 October 2009 A, K and M were redesignated under the 2009 Order and their designations under the 2006 Order were likewise revoked. There are some differences between the 2006 and the 2009 Orders, such as to the definition of dealing with an economic resource, which ameliorate to some degree the onerous effects of the regime on spouses and other third parties who interact with the designated person. The prohibitions that the 2009 Order imposes on making funds, financial services available for his benefit, and on making economic resources available to him or for his benefit, apply only if the benefit that he obtains or is able to obtain is significant: articles 12(4)(a), 13(3)(a), 14(4)(a). An additional pre condition for designation has been introduced by article 4(1)(b). The Treasury must consider that the direction is necessary for purposes connected with protecting members of the public from the risk of terrorism. But, subject to these minor adjustments, the impact of the regime on the designated person himself is just as rigorous as it was under the 2006 Order, and the phrase reasonable grounds for suspecting in article 4(2) of the 2006 Order has been retained in the 2009 Order: see article 4(2). So, although the 2009 Order is not before the court in these proceedings, the arguments that have been directed to the 2006 Order (the TO) can be taken to apply to it also. They have not been superseded by the action that the Treasury has taken since the end of the hearing on 8 October 2009. The Al Qaida and Taliban Order The Treasurys response to the Security Councils direction by a series of resolutions including SCR 1452(2002) that measures that were to be taken to deal with Al Qaida, Usama bin Laden, the Taliban and other individuals, groups undertakings and entities associated with them as designated by the committee established pursuant to SCR 1267 was to make the Al Qaida and Taliban (United Nations Measures) Order 2002 (SI 2002/111). It was replaced by Al Qaida and Taliban (United Nations Measures) Order 2006, which was laid before Parliament on 15 November 2006 and came into force on 16 November 2006. As in the case of the TO, this Order sets out a rigorous system of prohibitions and licences which is applied to persons who are designated persons for its purposes. Article 3 defines the expression designated persons. It provides: (1) For the purposes of this Order (a) Usama bin Laden, (b) any person designated by the Sanctions Committee, and (c) any person identified in a direction, is a designated person. (2) In this Part direction means a direction given by the Treasury under article 4(1). Article 4 sets out the Treasurys power to designate in these terms: (1) Where any condition in paragraph (2) is satisfied, the Treasury may give a direction that a person identified in the direction is designated for the purposes of this Order. (2) The conditions are that the Treasury have reasonable grounds for suspecting that the person is or may be (a) Usama bin Laden, (b) a person designated by the Sanctions Committee, (c) a person owned or controlled, directly or indirectly, by a designated person; or (d) a person acting on behalf of or at the direction of a designated person. (4) The Treasury may vary or revoke a direction at any time. Article 5(4) provides that the High Court or, in Scotland, the Court of Session may set aside a direction on the application of the person identified in the direction or any other person affected by the direction. The facts Two of the three cases before this court are appeals against orders made by the Court of Appeal on 30 October 2008. In the first case, A, K and M are brothers aged 31, 35 and 36. They are UK citizens and, at the time of their designation, lived in East London with their respective wives and children. A and K no longer live with their families, and their current whereabouts are unknown. Their solicitor, with whom they have not been in contact for a number of months, attributes their disappearance to the damaging effects upon them and their families of the regimes to which they were subjected by the Treasury. It placed an extraordinary burden on their wives, created significant mental health difficulties and led ultimately to the breakdown of their marriages. Ms marriage has also broken down, but he has continued to have a close relationship with his children. He lives at his ex wifes address where his children live also. A, K and M have never been charged or arrested for terrorism related offences. By letters dated 2 August 2007 they were informed that directions had been made in respect of each of them under article 4 of the TO. They received letters which stated that the direction had been made because the Treasury had reasonable grounds for suspecting that you are, or may be, a person who facilitates the commission of acts of terrorism but that, in light of the sensitive nature of the information on which it was taken, they were unable to give them further details. Their solicitors requested further information. By a letter dated 12 September 2007 the Treasury provided further details about the factual basis for the decision to make the directions, to the extent that this was said to be possible given the sensitive nature of some of the material relied upon. It was said that an Al Qaida linked operative had identified A and M as East London based Al Qaida facilitators and that M and his brother K had travelled to Pakistan with the intention of delivering money to contacts there and participating in terrorist training. In the second case, G was informed by a letter dated 13 December 2006 in almost identical terms to that received by A, K and M that a direction had been made against him under article 4 of the TO. A few days later he received a letter from the Foreign and Commonwealth Office saying that the 1267 Committee of the Security Council had added him to its Consolidated List and that this meant that he was subject to a freezing of his funds, assets and economic resources. He was told that these measures were binding on all United Nations member states and had been implemented in UK law. He was told that he could petition the Committee to seek de listing. He was not told until later that his listing had been at the request of the United Kingdom. It was not until March 2007 that he was told that his listing meant that he was a designated person under the AQO. Article 3(1)(b) provides that for the purposes of that Order any person designated by the Committee is a designated person. It appears to have been assumed on his behalf that a direction was made against him under article 4(1) of the AQO. But there is no evidence that this ever happened, and it would have been unnecessary as he was a designated person for the purposes of that Order simply by reason of the fact that he had been listed. A, K, M and G issued proceedings in the Administrative Court seeking orders under article 5(4) of the TO setting aside the directions made against them in pursuance of that Order by the Treasury. G also sought an order under article 5(4) of the AQO setting aside the direction made against him under article 4(1) of that Order in so far as the court considers that such a direction has been lawfully made. The proceedings were consolidated. On 24 April 2008 Collins J held that the TO and the AQO were ultra vires and he quashed both Orders: [2008] EWHC 869 (Admin), [2008] 3 All ER 361. He gave the Treasury permission to appeal, and the orders that he made were stayed pending the hearing of an appeal. On 30 October 2008 the Court of Appeal (Sir Anthony Clarke MR and Wilson LJ, Sedley LJ dissenting in part) allowed the appeal in part. It held that the words or may be in article 4(2) of the TO were not warranted by the SCR, and that, although these words could be severed from the rest of article 4(2), as all the directions had included these words it was necessary to quash the directions. It also held that the provisions of the AQO were lawful but that a person who was designated under article 3(1) was entitled to seek judicial review of the merits of the decision. A, K, M and G were given leave to appeal by an appeal committee of the House of Lords on 3 March 2009. The third proceedings were brought by HAY, who also is resident in the United Kingdom. He is 49 years of age, is married and lives in London with his wife and four of his children. He and his wife are Egyptian nationals and have lived in the United Kingdom since 1994. His name was added to the Consolidated List by the 1267 Committee on 29 September 2005. As a result he became a designated person for the purposes of the AQO in terms of article 3(1)(b). Unlike G, the proposal that his name be added to the list was not made by the United Kingdom. It provided no information to the 1267 Committee in relation to its decision to add his name to the list. But, as it is a member of the 1267 Committee, the United Kingdom had access to all the information available to the Committee that was relied upon at the time of its decision. In December 2005 his solicitors wrote both to the Treasury and to the Foreign and Commonwealth Office requesting disclosure of the state that had proposed HAYs addition to the Consolidated List and of the information that the Committee had relied on in reaching its decision. The Foreign and Commonwealth Office made repeated requests over a long period to the nominating state and to the Committee in an attempt to satisfy these requests. As a result an Interpol Red Note relating to HAY was sent to his solicitors under cover of a letter dated 26 September 2008. It was made clear in this letter that this was not the only information provided to the Committee. But the United Kingdom did not have permission to release any other information, and the nominating state refused to allow its identity to be disclosed. HAY issued a claim for judicial review on 9 February 2009 in which he sought a merits based review of the information relied upon by the 1267 Committee. In the alternative he sought an order quashing the AQO, at least in so far as it applied to him. On 7 April 2009 he submitted an amended claim form which indicated that he was proceeding only on the basis that the AQO was ultra vires. Shortly before the hearing the Foreign Secretary completed a review of the information available to him as to whether HAY continued to meet the criteria applied by the 1267 Committee to determine whether or not a person should be on the Consolidated List. The 1267 Committee, for its part, is presently undertaking a review of the cases of all persons whose names appeared on the list as at June 2008. HAY is in the second tranche of these cases. A decision in his case is unlikely to be reached in the near future. The Foreign Secretary has made an application for HAYs name to be removed from the list, as he considers that HAYs listing is no longer appropriate: see para 82, below. Owen J granted HAYs application for judicial review and made a declaration that the AQO was unlawful in so far as it applied to HAY: [2009] EWHC 1677 (Admin). He concluded that the AQO was ultra vires the 1946 Act but he declined to make a quashing order. He held that the practical effect of the AQO was to preclude access to the court for protection of what HAY contended were his basic rights: para 45. The Treasury appealed against this decision, and by an order dated 14 July 2009 Owen J gave it permission under the leap frog provisions to appeal to the House of Lords so that its appeal could be heard together with the appeals by A, K, M and G. In response to representations made by HAYs solicitors the Treasury amended his licence conditions which enable his wife to obtain welfare benefits, with the result that she is no longer required to provide monthly reports on how the family spend their money. Otherwise, despite the Foreign Secretarys view that listing is no longer appropriate, the freezing regime remains in place. The Treasurys position is that HAY and his family must remain subject to the AQO unless and until the 1267 Committee decides to remove him from the Consolidated List. The effect of the regimes that the TO and the AQO impose is that every transaction, however small, which involves the making of any payments or the passing of funds or economic resources whatever directly or indirectly for the benefit of a designated person is criminalised. This affects all aspects of his life, including his ability to move around at will by any means of private or public transport. To enable payments to be made for basic living expenses a system of licensing has been created. It is regulated by the Treasury, whose interpretation of the sanctions regime and of the system of licensing and the conditions that it gives rise to is extremely rigorous. The overall result is very burdensome on all the members of the designated persons family. The impact on normal family life is remorseless and it can be devastating, as the cases of A and K illustrate. As already mentioned (see para 28, above), the effects on third parties have been ameliorated to some extent in the case of designations made under the 2009 Order. Some transactions are affected only if they are significant. But, taken overall, the regime that is imposed under it remains to a high degree restrictive and, so far as the designated person himself is concerned, just as paralysing. Sir Anthony Clarke MR accepted that the orders are oppressive in their nature and that they are bound to have caused difficulties for the appellants and their families: [2009] 3 WLR 25, para 25. Wilson LJ said that they imposed swingeing disabilities upon those who were designated: para 152. In R(M) v HM Treasury [2008] 2 All ER 1097 the House of Lords described the regime as applied to HAYs wife as disproportionate and oppressive and the invasion of the privacy of someone who was not a listed person as extraordinary: para 15. The appellants have all been subjected to a regime which indefinitely freezes their assets under which they are not entitled to use, receive or gain access to any form of property, funds or economic resources unless licensed to do so by the executive. For example, HAY has been denied access to any funds since September 2005. His only permitted subsistence support is in kind provided by his wife. She is permitted, by licence from the Treasury, to access welfare benefits, which are the familys sole source of support. But she may spend money only on what the Treasury determines are basic expenses. Until recently she was required to report to the Treasury on every item of household expenditure, however small, including expenditure by her children. The issues As Mr Owen QC for A, K and M said at the outset of his submissions, the fundamental issue in this case is whether the Treasury was empowered by section 1 of the 1946 Act to introduce an asset freezing regime by means of an Order in Council. He submitted that the TO was ultra vires on three grounds: (1) illegality because it was passed without Parliamentary approval, (2) lack of legal certainty and proportionality and (3) the absence of procedures that enabled designated persons to challenge their designation. For G, Mr Rabinder Singh QC submitted that the AQO was likewise ultra vires the 1946 Act, and that both the TO and the AQO were unlawful by virtue of section 6 of the Human Rights Act 1998 because they were incompatible with article 8 of the European Convention on Human Rights and with article 1 of Protocol 1. For HAY, Mr Husain submitted that the AQO was ultra vires the 1946 Act because it violated his clients right of access to a court for an effective remedy. Some of the issues raised by these submissions are common to both Orders, and others arise under only one of them. They can perhaps best be grouped as follows: Both Orders 1. Are the Orders ultra vires the 1946 Act by reference to the principle of legality? 2. Are the Orders incompatible with the Convention rights under the Human Rights Act 1998? The TO 3. If it is not ultra vires on one or other of the previous grounds, is the TO ultra vires the 1946 Act because its terms go beyond those required by the SCR? The AQO 4. Is the AQO ultra vires the 1946 Act because it violates the right of effective judicial review? Section 1 of the 1946 Act As the scope of the power conferred by section 1(1) of the 1946 Act is in issue, it is first necessary to examine its wording: see para 12 above, where its full terms are set out. It provides that if the Security Council of the United Nations calls upon the Government to give effect to any of its decisions under article 41 His Majesty may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measures to be effectively applied, including (without prejudice to the generality of the preceding words) provision for the apprehension, trial and punishment of persons offending against the Order. The question is what limits, if any, there are on the power conferred by this subsection. According to its own terms, it extends to any measures mandated by the Security Council. The word any gives full weight to the obligation to accept and carry out the decisions of the Security Council that article 25 of the Charter lays down. But the provisions that may be imposed by this means in domestic law must be either necessary or expedient to enable those measures to be applied effectively. Mr Swift for the Treasury said that the words necessary and expedient were directed to the content of the Order in Council, not the legislative route by which its provisions were given the force of law. I agree, but I do not think that the legislative route that section 1 contemplated can be left out of account. The exclusion of section 1(1) of the Rules Publication Act 1893 by section 1(4) and the direction that the Order is to be forthwith after it is made laid before Parliament are important pointers to the kind of measure that was envisaged when this provision was enacted. They indicate that it was anticipated that the measures that the Security Council was likely to call for would require urgent action rendering Parliamentary scrutiny impracticable. As Mr W S Morrison said in the course of the debate at Second Reading, the procedure possessed the necessary combination of speed and authority to enable instant effect to be given to the international obligations to which we are pledged: Hansard, HC Debates, vol 421, col 1517. The section leaves the question whether any given measure is necessary or expedient to the judgment of the executive without subjecting it, or any of the terms and conditions which apply to it, to the scrutiny of Parliament. In the context of what was envisaged when the Bill was debated in 1946, which was the use of non military, diplomatic and economic sanctions as a means of deterring aggression between states, the surrender of power to the executive to ensure the taking of immediate and effective action in the international sphere is unsurprising. The use of the power as a means of imposing restraints or the taking of coercive measures targeted against individuals in domestic law is an entirely different matter. A distinction must be drawn in this respect between provisions made for the apprehension, trial and punishment of persons offending against the Order (see the concluding words of section 1(1)) and those against whom the Order is primarily directed. So long as the primary purpose of the Order is within the powers conferred by the section, ancillary measures which are carefully designed to ensure their efficacy will be also. The crucial question is whether the section confers power on the executive, without any Parliamentary scrutiny, to give effect in this country to decisions of the Security Council which are targeted against individuals. It cannot be suggested, in view of the word any, that the power is available only for use where the Security Council has called for non military, diplomatic and economic sanctions to deter aggression between states. But the phrase necessary or expedient for enabling those measures to be effectively applied does require further examination. The closer those measures come to affecting what, in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131, Lord Hoffmann described as the basic rights of the individual, the more exacting this scrutiny must become. If the rule of law is to mean anything, decisions as to what is necessary or expedient in this context cannot be left to the uncontrolled judgment of the executive. In Chester v Bateson [1920] 1 KB 829, 837, Avory J referred to Lord Shaw of Dunfermlines warning in R v Halliday [1917] AC 260, 287 against the risk of arbitrary government if the judiciary were to approach actions of government in excess of its mandate in a spirit of compliance rather than that of independent scrutiny. The undoubted fact that section 1 of the 1946 Act was designed to enable the United Kingdom to fulfil its obligations under the Charter to implement Security Council resolutions does not diminish this essential principle. As Lord Brown says in para 194, the full honouring of these obligations is an imperative. But these resolutions are the product of a body of which the executive is a member as the United Kingdoms representative. Conferring an unlimited discretion on the executive as to how those resolutions, which it has a hand in making, are to be implemented seems to me to be wholly unacceptable. It conflicts with the basic rules that lie at the heart of our democracy. If authority were needed for these propositions it is to be found in R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539. At p 573 Lord Browne Wilkinson said: I consider first whether there is any principle of construction which requires the court, in certain cases, to construe general words contained in the statute as being impliedly limited. In my judgment there is such a principle. It is well established that Parliament does not legislate in a vacuum: statutes are drafted on the basis that the ordinary rules and principles of the common law will apply to the express statutory provisions. At p 575, having examined the authorities, he said: From these authorities I think the following proposition is established. A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament. I would approach the language of section 1 of the 1946 Act, therefore, on the basis that Parliament did not surrender its legislative powers to the executive any more than must necessarily follow from the words used by it. The words necessary and expedient both call for the exercise of judgment. But this does not mean that its exercise is unlimited. The wording of the Order must be tested precisely against the words used by the Security Councils resolution and in the light of the obligation to give effect to it that article 25 lays down. A provision in the Order which affects the basic rights of the individual but was unavoidable if effect was to be given to the resolution according to its terms may be taken to have been authorised because it was necessary. A provision may be included which is expedient but not necessary. This enables provisions to be included in the Order which differ from those used by the resolution or are unavoidably required by it. But it does not permit interference with the basic rights of the individual any more that is necessary and unavoidable to give effect to the SCR and is consistent with the principle of legality. The points that I have just made may be taken from the wording of section 1 itself. But underlying them is a more fundamental point, which is whether measures of the kind which are before us in this case should have been made by Order in Council at all. Concern about excessive use of the power that section 1 of the 1946 Act confers is not new. In February 1999 the House of Commons Foreign Affairs Committee drew attention to the way a resolution of the Security Council about the imposition of sanctions against Sierra Leone had been implemented by an Order in Council made under section 1 of the 1946 Act. The SCR did not define Sierra Leone, leaving the extent of its application ambiguous. The Order in Council defined it in terms which removed any ambiguity but arguably went beyond the scope of the SCR. This was thought by the Committee to create a significant pitfall for anyone inside or outside the Foreign and Commonwealth Office who had read the SCR but not the Order in Council. In its report the Committee said that the way in which the Order in Council was dealt with was unacceptable as it was subject to no parliamentary procedure. Had it been necessary for a Minister to appear before a Standing Committee on Delegated Legislation or to defend the Order on the floor of the House of Lords, it was likely that wider attention would have been given to its true meaning and extent. It recommended that the 1946 Act be amended so that delegated legislation made under section 1 was subject to affirmative resolution in both Houses of Parliament and that any sanctions order approved by a Minister of the Foreign and Commonwealth Office be brought specifically to the attention of the Foreign Affairs Committee: Second Report of the Foreign Affairs Select Committee on Sierra Leone, Session 1998 1999, HC 116 I, 9 February 1999. In its response (Cm 4325, 1999) the Government said that it was willing to keep the working of the 1946 Act under review, but that application of the affirmative procedure to sanctions orders would put the United Kingdom in breach of its international obligations if an Order was not approved. The recommendation that such Orders be brought to the attention of the Committee has not been adopted, nor has section 1 of the 1946 Act been amended. The Governments reason for declining to follow the Select Committees recommendations may have appeared sufficient at the time of its response. But the case for avoiding scrutiny in the interests of certainty has been weakened by the change of direction that the Security Council has adopted for the freezing of assets to suppress terrorism. Other member states have not found it necessary in this context to rely exclusively on an unlimited delegation of the power to give effect to Security Council resolutions to the executive. Australia gave effect to the post 9/11 SCRs initially by means of regulations passed under the Charter of the United Nations Act 1945. But it then made provision for an asset freezing regime by the Suppression of the Financing of Terrorism Act 2002 which inserted a new Part IV into the 1945 Act. New Zealand initially implemented SCR 1373(2001) by means of regulations made under its United Nations Act 1946, but has replaced them by an asset regime under the Terrorism Suppression Act 2002. The regimes that both Australia and New Zealand have introduced by means of primary legislation are exacting. But they contain various, albeit limited, safeguards and in so far as they interfere with basic rights of the individual that interference has been expressly authorised by their respective legislatures. As I have already noted (see para 23, above), the United Kingdom Parliament had already enacted the Terrorism Act 2000 for the creation of a criminal regime dealing with the funding of terrorism before the events of 9/11. In response to those events, at a time when the general perception was that further terrorist attacks of that kind were likely to occur, the Anti terrorism, Crime and Security Act 2001 was enacted. It received the Royal Assent on 14 December 2001. The focus of attention now was on threats to the United Kingdom and its residents from foreign states and foreign nationals. No mention was made of the Security Councils resolutions in the long title. But Part 2 of the Act, which makes provision for the making of freezing orders, appears to have been modelled on the initiatives that it had already taken both by the Security Council and, under section 1 of the 1946 Act, by the Treasury by means of the Terrorism (United Nations Measures) Order 2001 (see para 24, above). Section 4 of the 2001 Act provides: (1) The Treasury may make a freezing order if the following two conditions are satisfied. (2) The first condition is that the Treasury reasonably believe that (a) action to the detriment of the United Kingdoms economy (or part of it) has been or is likely to be taken by a person or persons, or (b) action constituting a threat to the life or property of one or more nationals of the United Kingdom or residents of the United Kingdom has been or is likely to be taken by a person or persons. (3) If one person is believed to have taken or to be likely to take the action the second condition is that the person is (a) the government of a country or territory outside the United Kingdom, or (b) a resident of a country or territory outside the United Kingdom. (4) If two or more persons are believed to have taken or to be likely to take the action the second condition is that each of them falls within paragraph (a) or (b) of subsection (3); and different persons may fall within different paragraphs. Where the conditions that section 4 sets out are satisfied, the prohibitions contained in the freezing order extend to all persons in the United Kingdom and all persons elsewhere who are United Kingdom nationals: section 5(2). It prohibits persons from making funds available to or for the benefit of a person or persons specified in the order. Section 5(3) provides: The order may specify the following (and only the following) as the person or persons to whom or for whose benefit funds are not to be made available (a) the person or persons reasonably believed by the Treasury to have taken or to be likely to take the action referred to in section 4; (b) any person the Treasury reasonably believe has provided or is likely to provide assistance (directly or indirectly) to that person or any of those persons. Detailed provision is made in Schedule 3 for the content of freezing orders, including a system for the granting of licences authorising funds to be made available. Orders made under the Act are subject to the affirmative resolution procedure (section 10), and they cease to have effect after two years (section 8). To a large degree, the power to make freezing orders under this Act enables the Treasury to do what paras 1(d) and 2(d) of SCR 1373(2001) require (see para 21 above). But it is more precisely worded, and it contains various safeguards. Although the test in section 4(2)(b) is that action which is a threat to the life or property of one or more nationals or residents of the United Kingdom has been or is likely to be taken, it is by no means obvious that the power that it confers was not available for use in the appellants cases. In their letter dated 12 September 2007 to A, K and Ms solicitors, in which further details were given about the factual basis for the decision to make the directions in their cases, the Treasury referred to various contacts between those appellants and persons in Pakistan who were engaged in terrorist activities. The persons with whom they are said to have been in contact would appear to satisfy the conditions in subsection (2)(b) of section 4, and they would appear to be persons of the kind referred to in section 5(3)(b). Yet the Treasury have, it seems, chosen not to make use of the powers given to them by this Act, preferring to use the general power under section 1 of the 1946 Act. Mr Swift said that this was a matter for political control. By this I think he meant it was no business of the court to interfere. For the reasons already given in para 45, above, I disagree. In my opinion the rule of law requires that the actions of the Treasury in this context be subjected to judicial scrutiny. Against that background I now turn to the issues that have been raised about the validity of the TO and the AQO, and the directions that have been made under them, in these appeals. The TO The Treasurys initial response to SCR 1373(2001) was to make the Terrorism (United Nations Measures) Order 2001. The key provision in this Order is to be found in article 3: see para 24, above. For convenience I will set it out again here. It was in these terms: Any person who, except under the authority of a licence granted by the Treasury under this article, makes any funds or financial (or related) services available directly or indirectly to or for the benefit of (a) a person who commits, attempts to commit, facilitates or participates in the commission of acts of terrorism, (b) a person controlled or owned directly or indirectly by a person in (a), (c) a person acting on behalf, or at the direction, of a person in (a), is guilty of an offence under this Order. The wording of this article was closely modelled on that of para 1(d) of the SCR. Article 4, which was headed Freezing of Funds and was modelled on para 1(c) of the SCR, provided that where the Treasury had reasonable grounds for suspecting that the person by, for or on behalf of whom any funds were held was or might be a person described in article 3, it might by notice direct that those funds were not to be made available to any person, except under the authority of a licence granted by the Treasury under that article. The TO, which was made in 2006 and replaced the 2001 Order, introduced the system, to which objection is taken in this case, for persons to be designated if they are identified in a direction given by the Treasury. The power to designate is set out in Article 4: see para 25, above. It provides in para (2)(a) that the Treasury may give a direction if they have reasonable grounds for suspecting that the person is or may be a person who commits, attempts to commit, participates in or facilitates the commission of acts of terrorism. The question is whether, by introducing the words have reasonable grounds for suspecting that the person is or may be, the Treasury exceeded their powers under section 1 of the 1946 Act. The Court of Appeal held that the introduction of the reasonable grounds for suspecting test was within the ambit of that section, provided that the persons right to challenge the direction was preserved: but that there was no warrant in the SCR for the addition of the words or may be and that, as the directions under the TO were made by reference to those words, they should be quashed: [2009] 3 WLR 25, paras 46, 124 and 135. There is no appeal against its decision as to the inclusion of or may be, and the Treasury have made fresh directions against A, K, M and G which do not include these words. The validity of the reasonable grounds for suspecting test remains in issue. SCR 1373(2001) is not phrased in terms of reasonable suspicion. It refers instead to persons who commit, or attempt to commit, terrorist acts. The preamble refers to acts of terrorism. The standard of proof is not addressed. The question how persons falling within the ambit of the decision are to be identified is left to the member states. Transposition of the direction into domestic law under section 1 of the 1946 Act raises questions of judgment as to what is necessary on the one hand and what is expedient on the other. It was not necessary to introduce the reasonable suspicion test in order to reproduce what the SCR requires. It may well have been expedient to do so, to ease the process of identifying those who should be restricted in their access to funds or economic resources. But widening the scope of the Order in this way was not just a drafting exercise. It was bound to have a very real impact on the people that were exposed to the restrictions as a result of it. The facts of these cases show how devastating their imposition can be on the restricted persons and their families. This raises fundamental questions, such as the standard of proof that should be required, whether the directions should be capable of being challenged by an effective form of judicial review and whether they should last indefinitely or be time limited. The validity of the introduction of the reasonable grounds test must be assessed in the light of the entire system that the TO provides for. Is it acceptable that the exercise of judgment in matters of this kind should be left exclusively, without any form of Parliamentary scrutiny, to the executive? Mr Swift submitted that the reasonable grounds test was within the scope of the SCR. He accepted that the less direct the link to the wording of the SCR, the greater the scope for argument about the Orders legality. But he submitted that the test was needed to enable restrictions directed by the Security Council to work effectively and that it was soundly based on international practice. Mr Guthrie, the Head of HM Treasurys Asset Freezing Unit, said in his witness statement that this is the standard that is applied by the United Nations International Task Force. It had overall support among states. The SCR contemplated interference with the economic and other rights of those affected by it. The objection that the designated person had no access to an effective judicial remedy had been met by Part 6 of the Counter Terrorism Act 2008, which introduced a scheme for subjecting financial restrictions decisions of the Treasury under the UN Terrorism Orders and orders made under Part 2 of the 2001 Act to proceedings for judicial review. I do not think that these arguments are sufficient to meet the basic objection to the use of the powers of section 1 of the 1946 to impose the restrictions provided for by the TO on the grounds of a reasonable suspicion only. I can leave aside the use of unsupervised delegated powers to block access to the courts which Sedley LJ in the Court of Appeal, I think rightly, regarded as a fatal flaw in the Order: para 147. It was common ground that, given the intensity of judicial review that would be appropriate under Part 6 of the 2008 Act, this objection has been met by the fact that decisions of the Treasury under the UN terrorism orders are subject to its provisions: see section 63(1)(a) of the 2008 Act. There remains however the objection that the restrictions strike at the very heart of the individuals basic right to live his own life as he chooses. Collins J, in his impressive judgment, described the range of powers that it conferred on the Treasury as draconian, and the AQO as even more so: [2008] 3 All ER 361, para 11. It is no exaggeration to say, as Sedley LJ did in para 125, that designated persons are effectively prisoners of the state. I repeat: their freedom of movement is severely restricted without access to funds or other economic resources, and the effect on both them and their families can be devastating. I would hold that, by introducing the reasonable suspicion test as a means of giving effect to SCR 1373(2001), the Treasury exceeded their powers under section 1(1) of the 1946 Act. This is a clear example of an attempt to adversely affect the basic rights of the citizen without the clear authority of Parliament a process which Lord Browne Wilkinson condemned in R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539. As Lord Hoffmann said in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131, fundamental rights cannot be overridden by general or ambiguous words. The absence of any indication that Parliament had the imposition of restrictions on the freedom of individuals in mind when the provisions of the 1946 Act were being debated makes it impossible to say that it squarely confronted those effects and was willing to accept the political cost when that measure was enacted. In my opinion the TO is ultra vires section 1(1) of the 1946 Act and, subject to what I say about the date when these orders should take effect, it together with the directions that have been made under it in the cases of A, K, M and G must be quashed. Various subsidiary arguments were advanced to the effect that the TO was ultra vires because in certain material respects it lacked legal certainty. As I consider that it is open to attack on more fundamental grounds, however, I prefer to express no opinion as to whether any of these criticisms of its terms were well founded and, if so, what would be the consequences. The AQO Mr Singh QC submits for the appellant G that the AQO is ultra vires section 1 of the 1946 and that it is also unlawful by virtue of section 6(1) of the Human Rights Act 1998. He adopted Mr Owens submissions as part of his argument on the first point. Mr Husain for HAY, who has the benefit of a decision in his favour by Owen J in the administrative court, submitted that the AQO was ultra vires because it violated his right of access to a court as he was unable to obtain an effective remedy. G, it will be recalled (see para 33, above), was listed by the 1267 Committee at the request of the United Kingdom. HAYs name, on the other hand, was added to the list at the request of another state in September 2005 (see para 35). His listing is regarded by the United Kingdom as no longer appropriate. But its efforts so far to obtain the de listing of HAYs name have proved to be unsuccessful. Unlike the TO, the AQO does not rely for its application, at least in the first instance, on a reasonable grounds to suspect test. To this extent it does, as Lord Brown says in para 197, faithfully implement the relevant SCRs. The persons who are designated persons for its purposes are (a) Usama bin Laden, (b) any person designated by the Sanctions Committee and (c) any person identified in a direction: article 3. A reasonable grounds to suspect test is introduced by article 4, which provides that the Treasury may give a direction that a person is designated for the purposes of the Order if they have reasonable grounds for suspecting that the person is or may be Usama bin Laden or a person designated by the Sanctions Committee or a person owned or controlled by a designated person or acting on his behalf. Mr Swift explained that the latitude that had been built into article 4 was explicable, at least in part, by problems caused by the widespread use of assumed names by those who were engaged in terrorist activities. It is not necessary to explore the consequences of its use in the context of the AQO any further in this case, however. Both G and HAY are designated persons because their names are on the list maintained by the 1267 Committee. As they have not been subjected to freezing orders on the basis of a reasonable suspicion, the grounds on which I would hold that the TO was ultra vires do not apply to their designation under the AQO. The question which is common to both G and HAY is whether the AQO is ultra vires section 1 of the 1946 Act because there is no effective judicial remedy against a listing by the 1267 Committee. But I must deal first with Mr Singhs argument that the AQO is unlawful under section 6(1) of the Human Rights Act 1998 which, as he explained, he advanced as an alternative to his main submission that the AQO was ultra vires section 1 of the 1946 Act. Mr Singhs case under section 6(1) of the Human Rights Act is that the AQO is unlawful because it interferes with Gs rights protected by articles 6 and 8 of the European Convention on Human Rights and article 1 of Protocol 1. He submits that Gs rights under article 8 and article 1 of Protocol 1 are obviously interfered with, and that his rights under article 6 are interfered with too as his designation under the AQO interfered with his civil rights but did not give him a meaningful right of access to a court which was capable of granting him an effective remedy. He frankly acknowledged that the decision of the House of Lords in R (Al Jedda) v Secretary of State for Defence [2008] AC 332 was against him on this branch of his argument. But he invited this court to reconsider that decision, especially in the light of the decision of the European Court of Justice in Kadi v Council of the European Union (Joined Cases C 402/05P and C 415/05P) [2009] AC 1225. In Kadi v Council of the European Union the ECJ was asked to consider Council Regulation (EC) No 881/2002 implementing UN resolutions under Chapter VII of the Charter of the United Nations for the freezing of the funds and economic resources controlled directly or indirectly by persons associated with Osama bin Laden, Al Qaeda (sic) or the Taliban. It ordered the freezing of the funds and other economic resources of the person and entities whose names appeared on a list annexed to that regulation. Mr Kadi was one of those named on that list, as his name was on the list kept by the Sanctions Committee of the United Nations. He sought annulment of the regulation on the grounds that it was not competent for the Council to adopt it and that it infringed several of his fundamental rights, including his right to property and his right to be heard and to an effective judicial review. The case is important and deserves close attention because of the way the ECJ dealt with the argument about the protection of fundamental rights. Advocate General Maduro observed in para 51 of his opinion that the Community institutions had not afforded any opportunity to Mr Kadi to make known his views on whether the sanctions against him were justified and whether they should be kept in force: The existence of a de listing procedure at the level of the United Nations offers no consolation in that regard. That procedure allows petitioners to submit a request to the Sanctions Committee or to their government for removal from the list. Yet, the processing of that request is purely a matter of intergovernmental consultation. There is no obligation on the Sanctions Committee actually to take the views of the petitioner into account. Moreover, the de listing procedure does not provide even minimal access to the information on which the decision was based to include the petitioner in the list. In para 52 he said that the right to effective judicial protection holds a prominent place in the firmament of fundamental rights. In paras 54 and 55 he said that had there been a genuine and effective mechanism of judicial control by an independent tribunal at the level of the United Nations this might have released the Community from the obligation to provide this within the Community legal order but that, as this was not so, Mr Kadis claim that the regulation infringed his rights was well founded. In its judgment the ECJ endorsed this approach. In paras 281 283 it said that the Community was based on the rule of law, inasmuch as neither its member states nor its institutions could avoid review of conformity of their acts with the EC treaty, that an international agreement could not affect the autonomy of the Community legal system and that according to settled case law fundamental rights formed an integral part of the general principles of law whose observance the Court ensured. In para 285 it said: It follows from all those considerations that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty. The court went on to say that it did not follow from the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms was excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations: para 287. The existence within the United Nations of the re examination procedure could not give rise to generalised immunity from jurisdiction within the internal legal order of the Community, and the Community judicature must ensure the full review of all Community acts including measures designed to give effect to resolutions adopted by the Security Council under Chapter VII: paras 299 and 326. In his paper, Terrorism and the ECJ: Empowerment and democracy in the EC legal order (2009) 34 EL Rev 103, 126 Professor Takis Tridimas said that the ECJs commitment to the protection of fundamental rights was to be applauded, but that as regards the exercise of finding a balance between the overriding interests of public security and the rights of the individual it marked the beginning rather than the end of the inquiry. The ECJ is not alone in regarding the way the decisions under the listing system administered by the 1267 Committee are dealt with as incompatible with the fundamental right that there should be an opportunity for a review by an independent tribunal of their lawfulness. In Abdelrazik v The Minister of Foreign Affairs [2009] FC 580 Zinn J sitting in the Federal Court of Canada said in para 51: I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights. There is nothing in the listing or de listing procedure that recognises the principles of natural justice or that provides for basic procedural fairness. It can hardly be said that the 1267 Committee process meets the requirement of independence and impartiality when, as appears may be the case involving Mr Abdelrazik, the nation requesting the listing is one of the members of the body that decides whether to list or, equally as important, to de list a person. The accuser is also the judge. He found that Mr Abdelraziks right under the Canadian Charter of Rights and Freedoms to enter Canada, his country of citizenship, which had been denied to him because he was listed and facilitating his return by purchasing an airline ticket on his behalf was precluded by the ban on transferring assets to a listed entity, had been breached. He held that the remedy to which Mr Abdelrazik was entitled required the Canadian government to take immediate action so that he be returned to Canada. In KindHearts for Charitable Humanitarian Development Inc v Timothy Geithner, Case 3.08c v 02400, 18 August 2009, the United States District Court for the Northern District of Ohio upheld a challenge to a provisional determination under President Bushs Executive Order no. 13224 of 24 September 2001 by the Office of Foreign Assets Control of the US Treasury Department that KindHearts was a specially designated global terrorist on the ground that blocking access to its assets pending investigation was contrary to its Fourth Amendment right to be secure against unreasonable search and seizure. The judge held that the Offices handling of KindHearts request for access to blocked assets to pay counsels fees had been arbitrary and capricious without individualised consideration of the facts of the case. It is worth noting that the Presidents EO was issued before the Security Council adopted SCR 1373(2001). This appears to be the first time that a challenge to the taking of action of that kind has been successful in the United States. Caution must however be exercised in drawing any firm conclusions from these cases. The decisions of the courts in Canada and the United States were not made under reference to an international human rights instrument such as the European Convention. It should be noted too that in Diggs v Shultz, 470 F.2d 461 (DC Cir 1972) the US Federal Court of Appeals held that it lacked the authority to compel the President to comply with a UNSCR obligation regarding sanctions against Rhodesia, as subsequent legislation by Congress which plainly contravened the SCR had equal status to the obligation under the treaty: see also Whitney v Robertson 124 US 190 (1888). The ECJ was not faced in Kadi v Council of the European Union with the problem that article 103 of the UN Charter gives rise to in member states in international law, as the institutions of the European Community are not party to the UN Charter. We must take our guidance from R (Al Jedda) v Secretary of State for Defence [2008] AC 332. In that case the House was unanimous in holding that the obligation under article 25 of the Charter was, by virtue of article 103, to prevail over any other international agreement, including the Convention. It had regard to a passage in Behrami v France; Saramati v France, Germany and Norway (2007) 45 EHRR SE 85, para 149, which in para 36 of his opinion in Al Jedda Lord Bingham of Cornhill said was a strong statement. In that paragraph the Strasbourg court said that the Convention cannot be interpreted in a manner which would subject the acts and omissions of contracting parties which are covered by UNSCRs to the scrutiny of the court, as to do so would be to interfere with the fulfilment of the UNs key mission to secure international peace and security. Lord Bingham gave this explanation for the conclusion that the House had reached in Al Jeddas case: 35. Emphasis has often been laid on the special character of the European Convention as a human rights instrument. But the reference in article 103 to any other international agreement leaves no room for any excepted category, and such appears to be the consensus of learned opinion. The decisions of the International Court of Justice (Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) [1992] ICJ Rep 3, para 39; and Application of the Convention on the Prevention and Punishment of the Crime of Genocide [1992] IJC Rep 325, 439 440, paras 99 100 per Judge ad hoc Lauterpacht) give no warrant for drawing any distinction save where an obligation is jus cogens and according to Judge Bernhardt it now seems to be generally recognised that binding Security Council decisions taken under Chapter VII supersede all other treaty commitments (The Charter of the United Nations: A Commentary 2nd ed, ed Simma, pp 1299 1300). 36. I do not think that the European court, if the appellants article 5(1) claim were before it as an application, would ignore the significance of article 103 of the Charter in international law. In para 39, acknowledging that there was clash between a power or duty to detain exercisable on the express authority of the Security Council and a fundamental human right which the United Kingdom had undertaken to secure to those within its jurisdiction, he said that there was only one way that they could be reconciled. This was by ruling that the United Kingdom might exercise the power of detention authorised by the Security Council but must ensure that the detainees rights under article 5 were not infringed to any greater extent than was inherent in such detention. The Security Council resolutions that were in issue in that case were made pursuant to article 42 of the Charter not, as in this case, under article 41. But Mr Singh did not suggest, in my view rightly, that it could be distinguished on that ground. What he did suggest was that the Grand Chamber of the European Court of Human Rights, before which the Al Jedda case is to be heard, might reach a different view on this matter, especially in the light of the decision of the ECJ in Kadi v Council of the European Union. He pointed out that, as the prohibition on the death penalty, unlike that against torture, was not ius cogens, the logical conclusion of the Al Jedda approach was that a direction by the Security Council that those found guilty of terrorist acts must be sentenced to death would have to prevail over article 2 of the Convention and article 1 of Protocol 13 (the Death Penalty Protocol). It was arguable that this was to drive the effect of article 103 too far: see Soering v United Kingdom (1989) 11 EHRR 439. The same could be said of the breaches of Convention rights that resulted from the SCRs directing the kind of freezing regime that the AQO was designed to give effect to, especially in view of their indefinite effect and the lack of effective access to an independent tribunal for the determination of challenges to decisions about listing and de listing. I do not think that it is open to this court to predict how the reasoning of the House of Lords in Al Jedda would be viewed in Strasbourg. For the time being we must proceed on the basis that article 103 leaves no room for any exception, and that the Convention rights fall into the category of obligations under an international agreement over which obligations under the Charter must prevail. The fact that the rights that G seeks to invoke in this case are now part of domestic law does not affect that conclusion. As Lord Bingham memorably pointed out in R (Ullah) v Special Adjudicator [2004] 2 AC 323, para 20, the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. It must be for the Strasbourg court to provide the authoritative guidance that is needed so that all the contracting states can adopt a uniform position about the extent to which, if at all, the Convention rights or any of them can be held to prevail over their obligations under the UN Charter. But this leaves open for consideration how the position may be regarded under domestic law. Mr Singh submitted that the obligation under article 25 of the Charter to give effect to the SCRs directing the measures to be taken against Usama bin Laden, Al Qaida and the Taliban had to respect the basic premises of our own legal order. Two fundamental rights were in issue in Gs case, and as they were to be found in domestic law his right to invoke them was not affected by article 103 of the UN Charter. One was the right to peaceful enjoyment of his property, which could only be interfered with by clear legislative words: Entick v Carrington (1765) 19 Howell's State Trials 1029, 1066, per Lord Camden CJ. The other was his right of unimpeded access to a court: R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604, para 26, per Lord Steyn. As it was put by Viscount Simonds in Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260, 286, the subjects right of access to Her Majestys courts for the determination of his rights is not to be excluded except by clear words. As Mr Singh pointed out, both of these rights are embraced by the principle of legality, which lies at the heart of the relationship between Parliament and the citizen. Fundamental rights may not be overridden by general words. This can only be done by express language or by necessary implication. So it was not open to the Treasury to use its powers under the general wording of section 1(1) of the 1946 Act to subject individuals to a regime which had these effects. I would accept Mr Singhs proposition that, as fundamental rights may not be overridden by general words, section 1 of the 1946 Act does not give authority for overriding the fundamental rights of the individual. It does not do so either expressly or by necessary implication. The question is whether the effect of Gs designation under the AQO has that effect. To some extent this must be a question of degree. Some interference with the right to peaceful enjoyment of ones property may have been foreseen by the framers of section 1, as it authorises the making of provision for the apprehension, trial and punishment of persons offending against the Order. To that extent coercive steps to enable the measures to be applied effectively can be regarded as within its scope. But there must come a point when the intrusion upon the right to enjoyment of ones property is so great, so overwhelming and so timeless that the absence of any effective means of challenging it means that this can only be brought about under the express authority of Parliament. Has that point been reached in the case of those who are designated persons under the AQO? The opportunity to seek judicial review under Part 6 of the 2008 Act is not available in the case of persons such as G who are subject to the AQO only because they have been listed by the 1267 Committee. No direction under article 4(1) of the AQO was made in his case. Even if such a direction had been made he would still be a designated person to whom the AQO applied as he has been designated by the Committee: see article 3(1)(b). In the Court of Appeal Sir Anthony Clarke MR summarised the position in which G found himself in this way [2009] 3 WLR 25, para 108: It is common ground that G is subject to the AQO only because he has been listed by the UN Sanctions Committee (the committee). He has never had any contact with the committee, has no idea who precisely made the decision or upon what evidence it was based, although he does now know that it was the UK Government which requested that he be listed. It presumably had some evidential basis for its request. Indeed, it was presumably on the same basis as that relied upon by HMT in making a direction for his designation under the TO and was thus said to be so sensitive that G could not be given details. As to the committee, Mr Singh stresses that there is no information in the public domain that throws any light on who its members are, what degree of independence they enjoy, what evidential test they apply and what, if any, safeguards are in place to protect the rights of the individuals affected. Some further details can be obtained from the Guidelines of the Security Council Committee established pursuant to Resolution 1267(1999) Concerning Al Qaida and the Taliban and Associated Individuals and Entities of 9 December 2008. They state that the committee is comprised of all the members of the Security Council from time to time, that decisions of the committee are taken by consensus of its members and that a criminal charge or conviction is not necessary for a persons inclusion in the consolidated list that the committee maintains, as the sanctions are intended to be preventative in nature. It would appear that listing may be made on the basis of a reasonable suspicion only. It is also clear that, as the committee works by consensus, the effect of the guidelines is that the United Kingdom is not able unilaterally to procure listing, but it is not able unilaterally to procure de listing either under the Focal Point procedure established under SCR 1730(2006). Although the Security Council has implemented a number of procedural reforms in recent years and has sought improvement in the quality of information provided to the 1267 Committee for the making of listing decisions, the Treasury accepted in its response of 6 October 2009 (Cm 7718) to the House of Lords European Union Committees Report into Money Laundering and the Financing of Terrorism (19th Report, Session 2008 2009, HL Paper 132) that there is scope to further improve the transparency of decisions made by the 1267 Committee and the effectiveness of the de listing process. On 17 December 2009 the Security Council adopted SCR 1904(2009) which provides in paras 20 and 21 that, when considering de listing requests, the Committee shall be assisted by an Ombudsperson appointed by the Secretary General, being an eminent individual of integrity, impartiality and experience, and that the Office of the Ombudsman is to deal with requests for de listing from individuals and entities in accordance with procedures outlined in an annex to the resolution. While these improvements are to be welcomed, the fact remains that there was not when the designations were made, and still is not, any effective judicial remedy. Mr Swift accepted that the principle of legality requires that the power to impose restrictions such as those that flow from designation under the AQO should be subject to judicial review. But he said that it was vital to identify the decision that had to be scrutinised. In Gs case the proper focus was on article 3(1)(b) of the AQO. Its effect was that all those designated by the 1267 Committee were subject to the Order. The reasons why the person had been so designated were not relevant in domestic law. He added that the United Kingdom would be setting a bad example if it were to default on its obligation to give effect to the resolutions that had this effect. It was not open to Member States to go behind the system that had been set up to meet the global challenge that was presented by terrorism. While I recognise the force of Mr Swifts argument, it seems to me that it does not meet the essence of Mr Singhs complaint. Nor does the fact that the AQO does what SCR 1267 and subsequent resolutions required of it. In part Mr Singhs complaint was about the inability of the 1267 Committees procedures to provide an effective remedy. But it was also about the means that had been used in domestic law to subject G to the AQOs regime. As Zinn J said in Abdelrazik v The Minister of Foreign Affairs [2009] FC 580, para 51, there is nothing in the listing or de listing procedure that recognises the principles of natural justice or that provides for basic procedural fairness. Some steps have been taken to address this problem, but there is still much force in these criticisms. The essential point that Mr Singh makes is that G ought not to have been subjected to this by an Order made under section 1 of the 1946 Act which avoids Parliamentary scrutiny. This is a fundamental objection which, as in the case of the TO, is directed to the dangers that lie in the uncontrolled power of the executive. I would hold that G is entitled to succeed on the point that the regime to which he has been subjected has deprived him of access to an effective remedy. As Mr Swift indicates, seeking a judicial review of the Treasurys decision to treat him as a designated person will get him nowhere. G answers to that description because he has been designated by the 1267 Committee. What he needs if he is to be afforded an effective remedy is a means of subjecting that listing to judicial review. This is something that, under the system that the 1267 Committee currently operates, is denied to him. I would hold that article 3(1)(b) of the AQO, which has this effect, is ultra vires section 1 of the 1946 Act. It is not necessary to consider for the purposes of this case whether the AQO as a whole is ultra vires except to say that I am not to be taken as indicating that article 4 of that Order, had it been applicable in Gs case, would have survived scrutiny. I would treat HAYs case in the same way. He too is a designated person by reason of the fact that his name is on the 1267 Committees list. As has already been observed, the United Kingdom is now seeking that his name should be removed from it. By letter dated 1 October 2009 the Treasurys Sanctions Team informed his solicitors that the de listing request was submitted on 26 June 2009 but that at the committees first consideration of it a number of States were not in a position to accede to the request. Further efforts to obtain de listing are continuing, but this has still not been achieved. So he remains subject to the AQO. In this situation he too is being denied an effective remedy. Conclusion I would allow the appeals by A, K, M and G. I would declare that the TO is ultra vires and I would quash that Order. I would allow Gs appeal as regards the AQO to the extent of declaring that article 3(1)(b) of that Order is ultra vires. Had the Terrorism (United Nations Measures) Order 2009 under which A, K, M and G have now been re designated been before us, I would have quashed that Order too as it is open to objection on the same grounds. I would allow the Treasurys appeal in HAYs case to the extent of setting aside the declaration by Owen J that the AQO as a whole is ultra vires and substituting for it the order that I would make in Gs case. I would however suspend the operation of the orders that I would make as regards the AQO for a period of one month from the date of the judgment to give the Treasury time to consider what steps, if any, they should now take. I would have suspended the operation of the orders in the appeals of A, K, M and G as regards the TO had it not been for the fact that they have all been re designated under the 2009 Order. The designations made under that order are not before the court in these proceedings. It will be for the administrative court to consider whether the Treasury need time to consider their position should an application be made to it for these fresh designations to be set aside. It is perhaps arguable that suspension of the order relating to the AQO is not needed in HAYs case in view of the steps that are currently being taken for him to be de listed by the 1267 Committee. But so long as he remains on the list the United Kingdom is bound by article 25 of the Charter to treat him as a designated person and must take steps to subject him to a freezing order in this country. So I think that suspension of the order is needed in his case to enable the Treasury, if so minded, to take the steps to give effect to this obligation pending the proceedings for HAYs de listing. LORD PHILLIPS It is particularly appropriate that these should be the first appeals to be heard in the Supreme Court of the United Kingdom, for they concern the separation of powers. At issue is the extent to which Parliament has, by the United Nations Act 1946 (the 1946 Act), delegated to the executive the power to legislate. Resolution of this issue depends upon the approach properly to be adopted by the court in interpreting legislation which may affect fundamental rights at common law or under the European Convention on Human Rights (the Convention). I am grateful to Lord Hope for the clarity with which he has performed the laborious task of describing the legislative background and history of these appeals. Although we have held that anonymity cannot be justified in this case it is convenient to continue to refer to the individuals who have been subjected to freezing orders by initials and I shall follow the example of Lord Hope in referring to them all collectively as the appellants. I shall also adopt his references to the different forms of freezing order by the initials TO and AQO. The appellants claim, for a variety of reasons, that the freezing orders made against them were ultra vires, that is, beyond the power conferred by section 1 of the 1946 Act, which is set out by Lord Hope at paragraph 12. That section confers power on, in effect, the Government, by Order in Council to make such provision as appears necessary or expedient for enabling measures to be effectively applied. The measures in question are those that the Security Council has, pursuant to article 41 of the Charter, decided should be employed to give effect to its decisions and called upon Members to apply. The Security Council embodies such decisions in Resolutions. There are three different bases for contending that the freezing orders are ultra vires: i) The freezing orders violate rights protected by the European Convention on Human Rights (the Convention). ii) The relevant Security Council Resolutions do not fall within the scope of the 1946 Act. iii) The terms of the freezing orders do not fall within the powers of the 1946 Act. Convention Rights The appellants did not put reliance on Convention rights at the forefront of their case, but I propose to start with this ground of appeal. Section 1 of the 1946 Act was passed in order to provide a way of giving effect to this countrys treaty obligations under the United Nations Charter. Executive action in the form of an Order in Council can be used to implement decisions of the Security Council under article 41 of the Charter. The Human Rights Act 1998 (the HRA) was passed to give effect to this countrys obligations under the Convention. Section 6(1) of the HRA prohibits the executive from action that infringes a Convention right. It provides: It is unlawful for a public authority to act in a way which is incompatible with a Convention right. The appellants contend that the freezing orders are incompatible with a number of Convention rights and that, accordingly it was unlawful to make them. There is another way that the HRA can be deployed. Section 3 of the Act requires, in so far as possible, that legislation be read and given effect in a way which is compatible with the Convention rights. It can be argued that the power to make Orders in Council conferred by section 1 of the 1946 Act must be read subject to the implied proviso that such Orders must not violate Convention rights. The appellants argue that the freezing orders violate their right to respect for family life under article 8 of the Convention, their peaceful enjoyment of their possessions under article 1 of the First Protocol and their right to a fair trial under article 6. Mr Swift, for the Treasury, does not accept that, if these articles are applicable, they have been infringed by the freezing orders. His primary submission is, however, that in so far as there is a conflict between the duty of the United Kingdom to comply with Security Council Resolutions under article 41 of the Charter and a duty to secure human rights under the Convention, the former duty prevails. He contends that no claim will lie under section 6(1) of the HRA in respect of breach of Convention rights which are trumped in this way by obligations under the Charter. The starting point of this argument is article 103 of the UN Charter. Article 25 requires members of the United Nations to carry out decisions of the Security Council in accordance with the Charter. Article 103 provides In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. Next one must turn to the definition of the Convention in section 21 of the HRA: the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 as it has effect for the time being in relation to the United Kingdom (my emphasis). In R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57; [2006] 1 AC 529 the House of Lords held that this definition reflected the policy of the HRA, which was to bring rights home, so that no claim for breach of section 6(1) would lie unless the Strasbourg Court would also find a violation of the Convention by the United Kingdom. It follows that the provision of section 6(1) rendering unlawful action incompatible with Convention rights will not render unlawful the making of the freezing orders if the Strasbourg Court accepts that the duty to comply with the Security Council Resolutions takes precedence over the duty to comply with the Convention. That is not a question that the Strasbourg Court has had, directly, to resolve. The Grand Chamber did, however, make some very relevant comments when giving its decision as to admissibility in Behrami v France; Saramati v France, Germany and Norway (2007) 45 EHRR SE 85.The applicants in those cases complained of the action and inaction of members of an international security force (KFOR) that had been deployed in Kosovo pursuant to Security Council Resolution 1244(1999). The Grand Chamber ultimately held that the applications were not admissible on the ground that the Court was not competent ratione personae. This was because the individual respondents fell to be treated as part of KFOR and KFOR was exercising powers lawfully delegated under Chapter VII of the Charter by the UN Security Council. In these circumstances the actions of the respondents were directly attributable to the UN, an organisation of universal jurisdiction fulfilling its imperative collective security objective (para 151). Under the heading Relevant Law and Practice the Court made the following observations about article 103 of the UN Charter: The ICJ considers article 103 to mean that the Charter obligations of UN member states prevail over conflicting obligations from another international treaty, regardless of whether the latter treaty was concluded before or after the UN Charter or was only a regional arrangement (Nicaragua v United States of America, ICJ Reports, 1984, p 392, at para 107. See also Kadi v Council and Commission, para 183, judgment of the Court of First Instance of the European Communities (CFI) of 21 September 2005 (under appeal) and two more recent judgments of the CFI in the same vein: Yusuf and Al Barakaat v Council and Commission, 21 September 2005, paras 231, 234, 242 243 and 254 as well as Ayadi v Council, 12 July 2006, para 116). The ICJ has also found article 25 to mean that UN member states obligations under a UNSC Resolution prevail over obligations arising under any other international agreement (Orders of 14 April 1992 (provisional measures), Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America and Libyan Arab Jamahiriya v United Kingdom), ICJ Reports, 1992, p.16, para 42 and p 113, para 39, respectively).(para 27). Later in its judgment the Grand Chamber cited the first paragraph of article 30 of the Vienna Convention on the Law of Treaties: 1. Subject to article 103 of the Charter of the United Nations, the rights and obligations of states parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs.(para 35) The Court went on to make the following observations about the Convention and the UN acting under Chapter VII of its Charter: 147. The Court first observes that nine of the twelve original signatory parties to the Convention in 1950 had been members of the UN since 1945 (including the two respondent States), that the great majority of the contracting parties joined the UN before they signed the Convention and that currently all contracting parties are members of the UN. Indeed, one of the aims of this Convention (see its preamble) is the collective enforcement of rights in the Universal Declaration of Human Rights of the General Assembly of the UN. More generally, it is further recalled, as noted at para 122 above, that the Convention has to be interpreted in the light of any relevant rules and principles of international law applicable in relations between its contracting parties. The Court has therefore had regard to two complementary provisions of the Charter, articles 25 and 103, as interpreted by the International Court of Justice (see para 27 above). 148. Of even greater significance is the imperative nature of the principle aim of the UN and, consequently, of the powers accorded to the UNSC under Chapter VII to fulfil that aim. In particular, it is evident from the Preamble, articles 1, 2 and 24 as well as Chapter VII of the Charter that the primary objective of the UN is the maintenance of international peace and security. While it is equally clear that ensuring respect for human rights represents an important contribution to achieving international peace (see the Preamble to the Convention), the fact remains that the UNSC has primary responsibility, as well as extensive means under Chapter VII, to fulfil this objective, notably through the use of coercive measures. The responsibility of the UNSC in this respect is unique and has evolved as a counterpart to the prohibition, now customary international law, on the unilateral use of force (see paras 18 20 above). 149. In the present case, Chapter VII allowed the UNSC to adopt coercive measures in reaction to an identified conflict considered to threaten peace, namely UNSC Resolution 1244 establishing UNMIK and KFOR. Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of contracting parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UNs key mission in this field These passages suggest that the Grand Chamber was prepared to recognise the primacy of obligations under the UN Charter over obligations under the Convention. That the Strasbourg Court would take such an approach was accepted by the House of Lords in R(Al Jedda) v Secretary of State for Defence (JUSTICE intervening) [2007] UKHL 58; [2008] AC 332. The claimant in that case had been detained by British forces in Iraq, acting pursuant to Security Council Resolution 1546 made under article 42 of the Charter. He claimed under the HRA a declaration that his detention infringed his rights under article 5(1) of the Convention. The Court of Appeal [2006] EWCA Civ 327; [2007] QB 621 held that the United Kingdoms obligations under Resolution 1546 prevailed over its obligations under the Convention and that accordingly, applying Quark Fishing, no action could be founded on the HRA. The House of Lords upheld the Court of Appeal. In paragraph 21 of his opinion Lord Bingham cited the passage from Behrami that I have set out at paragraph 97 above. He went on to hold: I do not think that the European court, if the appellants article 5(1) claim were before it as an application, would ignore the significance of article 103 of the Charter in international law. The court has on repeated occasions taken account of provisions of international law, invoking the interpretative principle laid down in article 31(3)(c) of the Vienna Convention on the Law of Treaties, acknowledging that the Convention cannot be interpreted and applied in a vacuum and recognising that the responsibility of states must be determined in conformity and harmony with the governing principles of international law: see, for instance, Loizidou v Turkey (1996) 23 EHRR 513, paras 42 43, 52; Bankovic v Belgium (2001) 11 BHRC 435, para 57; Fogarty v United Kingdom (2001) 34 EHRR 302, para 34; Al Adsani v United Kingdom (2001) 34 EHRR 273, paras 54 55; Behrami and Saramati, 45 EHRR SE 85, para 122. In the latter case, in para 149, the court made the strong statement quoted in para 21 above. Mr Rabinder Singh QC, in argument advanced on behalf of G which was adopted by the other appellants, recognised that the reasoning of the House of Lords in Al Jedda, which was equally applicable to obligations arising under article 41 of the UN Charter, would be fatal to the appellants claim of breach of section 6(1) of the HRA. He contended, however, that the landscape had been changed by the recent decision of the European Court of Justice (ECJ) The background to Kadi was the practice adopted by the European Council of adopting Regulations to give effect in the Community to UN resolutions under Chapter VII of the Charter. Pursuant to this practice the Council adopted Regulation 881/2002 in order to implement the Security Council resolutions that the United Kingdom has sought to implement by the freezing orders. Mr Kadi is one of those whose name is on the list kept by the 1267 Committee and brought proceedings seeking the annulment of the Regulation on the grounds (i) that it was not competent for the Council to adopt it and (ii) that it infringed his fundamental rights. Before the Court of First Instance both grounds failed. Before the ECJ the challenge to the Councils competence failed, but the challenge based on infringement of his fundamental rights succeeded. The ECJ emphasised that it was concerned with the legitimacy of Regulation 881 as a matter of Community law. It held: 285the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty. 286. In this regard it must be emphasised that, in circumstances such as those of these cases, the review of lawfulness thus to be ensured by the Community judicature applies to the Community act intended to give effect to the international agreement at issue, and not to the latter as such. 287. With more particular regard to a Community act which, like the contested Regulation, is intended to give effect to a Resolution adopted by the Security Council under Chapter VII of the Charter of the United Nations, it is not, therefore, for the Community judicature, under the exclusive jurisdiction provided for by article 220EC, to review the lawfulness of such a Resolution adopted by an international body, even if that review were to be limited to examination of the compatibility of that Resolution with jus cogens. 288. However, any judgment given by the Community judicature deciding that a Community measure intended to give effect to such a Resolution is contrary to a higher rule of law in the Community legal order would not entail any challenge to the primacy of that Resolution in international law. The ECJ went on to find that the regime imposed by Regulation 881 did not respect fundamental rights in a number of respects. There was no communication to those who were put on the 1267 Committees list of the evidence relied upon to justify their inclusion. In these circumstances their rights of defence, and in particular the right to be heard, were not respected. The right to an effective legal remedy was not observed (paragraphs 347 to 350). Because Mr Kadi suffered a significant restriction of his right to property in circumstances where he was not enabled to put his case to the relevant authorities his plea that his fundamental right to respect for property had been infringed was well founded. Regulation 881, insofar as it concerned him (and another appellant whose case was heard with his), had to be annulled (paras 369 to 372). It is important to note that this decision was about the legitimacy of a Council Regulation judged against the rules of the autonomous and self contained regime instituted under the EC Treaty. Advocate General Maduro in his opinion had gone so far as to suggest at para 30, p 1241 that: if the Court were to annul the contested Regulation on the ground that it infringed Community rules for the protection of fundamental rights, then, by implication, member states could not possibly adopt the same measures without in so far as those measures came within the scope of Community law acting in breach of fundamental rights as protected by the court. Mr Singh did not suggest that the decision in Kadi had any direct effect on the legitimacy of the freezing orders. He simply submitted that it gave cause to reconsider the premise on which the decision of the House of Lords in Al Jedda had been based. I do not believe that any firm conclusion can be drawn from the decision in Kadi as to the approach that the Strasbourg Court will take to the Do the Resolutions fall within the scope of the 1946 Act? I turn to the second basis for contending that the freezing orders are ultra vires, namely that the relevant Security Council Resolutions do not fall within the scope of the 1946 Act. Two separate arguments are advanced in respect of this basis. The first applies both to the TO and to the AQO. The argument was advanced by Mr Owen QC on behalf of A, K and M but adopted by the other appellants, and is as follows. The 1946 Act only permits the making of orders that transpose specific measures directed by the Security Council. The relevant Resolutions do not simply direct Members to implement specific measures but require them to fashion the legislative design that gives effect to the measures. This is a task for Parliament, not the executive. The other argument relates only to the AQO. It is that the relevant Resolutions require Member States to interfere with fundamental rights of individuals within their territories on grounds that those individuals will have no right to challenge before a court. It is argued that section 1 of the 1946 Act does not extend to such a Resolution. The issues raised by this argument are issues of statutory interpretation. Treaties entered into by the United Kingdom do not take direct effect. Treaties are entered into by the Government under the Royal Prerogative, but unless and until Parliament incorporates them into domestic law, they confer no powers upon the executive nor rights or duties upon the individual citizen JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 499 500. The 1946 Act is designed to provide a means of giving effect to the international obligations imposed upon the United Kingdom under article 41 of the UN Charter. The primary arguments advanced by the appellants relate to the true interpretation of section 1 of that Act. Their arguments in relation to this have not turned on the natural meaning of the section. Rather they have relied upon a principle of construction that requires limitations to be placed on the scope of statutory powers as a matter of presumption or implication. This they have described as the principle of legality. The principle of legality The appellants have put this principle at the forefront of their argument on the interpretation of the 1946 Act. Under this principle the court must, where possible, interpret a statute in such a way as to avoid encroachment on fundamental rights, sometimes described as constitutional rights. Lord Hope at paragraph 46 has cited the passages in the speech of Lord Browne Wilkinson in Pierson in which he described this principle. Equally pertinent is the oft cited passage in the speech of Lord Hoffmann in Simms at p 131: Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document. Lord Hoffmann went on to say that the principle of legality applied as much to subordinate legislation as to Acts of Parliament. Lord Hoffmann made it plain that the principle of legality was one that applied to the interpretation of general or ambiguous words in the absence of express language or necessary implication to the contrary. At the time of his judgment the Human Rights Act had not yet come into effect and Lord Hoffmann commented that the principle of legality had been expressly enacted as a rule of construction in section 3 of the Act. I believe that the House of Lords has extended the reach of section 3 of the HRA beyond that of the principle of legality. Section 3(1) provides: 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 The Convention rights are defined in section 1 to mean the rights and fundamental freedoms set out in articles 2 to 12 and 14 of the Convention, articles 1 to 3 of the First Protocol and article 1 of the Thirteenth Protocol. The effect of section 3 has been the subject of extensive academic discussion see the literature referred to in footnote 27 to paragraph 4.08 in the Second Edition (2009) of The Law of Human Rights by Clayton and Tomlinson. It has also been the subject of judicial consideration on a number of occasions in the House of Lords. It is not necessary to refer in detail to this body of authority. It suffices to note that it accords to section 3 a role of constitutional significance. By enacting section 3, Parliament has been held to direct the courts to interpret legislation in a way which is compatible with Convention rights, even where such interpretation involves departing from the unambiguous meaning the legislation would otherwise bear, or the legislative intention of Parliament see Ghaidan v Godin Mendoza [2004] UKHL 30; [2004] 2 AC 557 at paragraph 30 per Lord Nicholls and Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264 at paragraph 24 per Lord Bingham. Such an interpretation must, however, be one that is possible having regard to the underlying thrust or intention of the legislation. Bennion on Statutory Interpretation, 5th ed (2008), at section 270, p.823, comments that the term principle of legality is likely to lead to confusion but goes on to suggest that the so called principle of legality was widened by a majority of the House of Lords in R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36; [2004] 1 AC 604 so as to contradict what Lord Bingham (who dissented) called a clear and unambiguous legislative provision (para 20), the provision in question being contained in delegated legislation. The other members of the House did not, however, purport to depart from wording that was clear and unambiguous see Lord Steyn at para 31, Lord Hoffmann at para 37, Lord Millett at para 43 and Lord Scott at para 58. I do not consider that the principle of legality permits a court to disregard an Transposition and legislative design Mr Owen QC for A, K and M put at the forefront of his submissions the contention that the 1946 Act authorised Orders in Council that gave effect to specific measures directed by the Security Council but not Orders in Council that themselves directed what measures should be taken. He contrasted transposition that was authorised by the Act and legislative design that was not. He submitted that this distinction was one that fell within the principle of legality. In a written note he clarified his submission as follows: The constitutional principle at issue in the instant case is that the recognition by the common law of the supremacy of Parliament is based on an assumption that Parliament will not surrender its law making powers to the Executive (or an international body) on an uncontrolled and uncertain basis. Unless the contrary intention is clearly and expressly indicated, no Act of Parliament will be construed as delivering a blank cheque to the Executive to legislate at will in any area, simply because it is called upon to do so by an international body. This submission was supported by the intervener. On behalf of JUSTICE, Mr Fordham QC submitted that, under the principle of legality, only Parliament could impose an asset freezing regime. Because such a regime interfered with fundamental rights, it was necessary that the controls imposed should be necessary, proportional and certain and attended with basic procedural safeguards under which the individual would secure a fair hearing and effective judicial protection. These were matters for Parliament, not the executive. These submissions overlapped with the submission that the 1946 Act could not, on its true construction, authorise Orders in Council which interfered with fundamental rights. Mr Owen turned to two New Zealand cases for support for his submission. In Reade v Smith [1959] NZLR 996 Turner J sitting in the Supreme Court had to consider the scope of section 6 of the Education Amendment Act 1915 (No 2), which was in the following terms: The Governor General in Council may make such Regulations as he thinks necessary or expedient for avoiding any doubt or difficulty which may appear to him to arise in the administration of the principal Act by reason of any omission or inconsistency therein, and all such Regulations shall have the force of law, anything to the contrary in the principal Act notwithstanding. He observed at pp 1003 1004: To anyone accustomed to the notion that the law giving powers of the people are reposed by them in Parliament, it may come as a surprise to learn that since 1915 the Legislature appears to have surrendered these powers to the Executive as regards such matters as are covered by this section; and that not content with delegating its principal function to the Governor General, it has purported to sign a blank cheque and to ratify in advance whatever he shall do by regulation, even if it is in conflict with the express provisions of the Education Act itself. In construing a section which at first sight may appear to carry self abnegation so far, the Court will strive to give it a restricted interpretation, preferring to regard Parliament as not having made any more complete surrender of its powers than must necessarily follow from the plain words used. In Brader v Ministry of Transport [1981] 1 NZLR 73 the Court of Appeal had to consider the scope of section 11 of the Economic Stabilisation Act 1948 which gave the Minister power by Order in Council to make such regulations as appear to him to be necessary or expedient for the general purpose of this Act. At p 78 Cooke J remarked: It may be added that the recognition by the common law of the supremacy of Parliament can hardly be regarded as given on the footing that Parliament would abdicate its function. This remark was made, however, in the context of restricting the power conferred on the Minister to within reasonable limits. The Court went on to hold that the Minister had acted intra vires in making it a criminal offence to drive a private car on specified carless days with the object of saving petrol. These decisions fall short of supporting the proposition that the principle of legality raises a general presumption against Parliament delegating to the executive the power to make regulations that call for legislative design. Brader points in the opposite direction. I reject Mr Owens submissions on this point. I would accept, however, that a statutory provision which delegates to the executive the power to make regulations should be strictly construed and that, where the power is conferred in general terms, it may be necessary to imply restrictions in its scope in order to avoid interference with individual rights that is not proportionate to the object of the primary legislation. Mr Owen was on stronger ground when he submitted that some limitations had to be placed upon the power conferred by the 1946 Act. He drew attention to paragraph 2(d) of UN SCR 1373 which decides that all States shall Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens. He submitted that on the Treasurys interpretation of the 1946 Act there would have been no obstacle to the Government imposing by Order in Council the provisions contained in the Anti terrorism, Crime and Security Act 2001, permitting indefinite detention of foreign nationals, or preventative measures such as control orders now contained in the Prevention of Terrorism Act 2005. When pressed in argument, Mr Swift for the Treasury accepted, with some reluctance, that such was indeed his position. I do not accept that the 1946 Act authorises such wide ranging legislation. The natural meaning of the wording of section 1, when read with the wording of article 41 of the Charter, imposes limits on the power granted by section 1. That power is to make such provision as appears necessary or expedient for enabling the effective application of measures not involving the use of armed force which the Security Council has decided are to be employed to give effect to its decisions. Measures to which the 1946 Act refers must necessarily have a degree of specificity. They have to be capable of being employed or effectively applied. They will often be the means to an objective rather than the objective itself. Preventing terrorists from using the territory of the United Kingdom for terrorist acts is an objective, it is not a measure. It is not something that can be employed or applied. Detention of foreign nationals or the imposition of control orders are measures, but they are not measures the employment of which forms any part of the decision of the Security Council that is set out in paragraph 2(d) of Resolution 1373. The generality of the provisions of paragraph 2(d) contrasts with the specificity of paragraph 1(b)(c) and (d) of the same Resolution. It is to these provisions that the TO gives effect. These provisions are specific measures. They fall within the scope of the wording of section 1 of the 1946 Act in that one can sensibly speak of provisions that are necessary or expedient to enable them to be effectively applied. They can also properly be described as measures that the Security Council has decided are to be employed to give effect to its decisions under article 41. The TO involves a degree of legislative design, including the creation of offences and the range of penalties that relate to them, but legislation of this type is expressly provided for by section 1 of the 1946 Act. For these reasons I reject the submission that, whether under the natural meaning of section 1 of the 1946 Act, or under the application of the principle of legality, the TO falls outside the powers conferred by the section simply because the TO involves a degree of legislative design rather than mere transposition. I propose to defer consideration of the argument that the Resolutions to which the AQO relates fall outside the scope of the 1946 Act in order to deal first, in relation to the TO, with the third basis for arguing that the freezing orders are ultra vires, which is that the terms of the freezing orders fall outside the scope of what is permitted by the 1946 Act. Do the terms of the TO fall outside the powers of the 1946 Act? The following points are advanced by the appellants: i) The TO goes further than the relevant Security Council Resolution requires. ii) The freezing orders are disproportionate and oppressive. iii) The terms of the freezing orders are uncertain. iv) In the case of the TO adequate provision is not made to enable those designated to challenge their designation. Does the TO go further than the Resolution requires? Resolution 1373 recited that the Security Council decided that all States should: 1 (c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities; (d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons; Section 1 of the 1946 Act empowers the making by Order in Council of such provision as appears necessary or expedient for enabling the measures in the Resolution to be effectively applied. The conditions laid down by the 2006 TO for making a freezing order are set out in paragraph 4(2): (2) The conditions are that the Treasury have reasonable grounds for suspecting that the person is or may be (a) a person who commits, attempts to commit, participates in or facilitates the commission of acts of terrorism; (c) a person owned or controlled, directly or indirectly, by a designated person; or (d) a person acting on behalf of or at the direction of a designated person. (b) a person identified in the Council Decision; The wording of the TO tracks the wording of the Resolution, save that those who can be made subject to the Order are not only those described in the Resolution but those whom the Treasury have reasonable grounds for suspecting fall or may fall within that description. The issue is whether it can properly be said to be necessary or expedient to apply this test of reasonable suspicion in order to ensure that the measures in the Resolution are effectively applied to those described in the Resolution. This question goes not merely to the legitimate scope of the TO but to the legitimacy of the entire TO regime. The Court of Appeal concluded that a reasonable suspicion test fell within the scope of what appeared necessary or expedient to give effect to the measures in the Resolution. The Master of the Rolls treated this as essentially a question of the standard of proof and observed that such a test had been accepted by the Strasbourg Court in relation to a similar problem arising out of the risk of terrorism. He concluded: I would accept such a test as lawful provided that the person concerned has a proper opportunity to challenge the decision made against him (para 42). He went on to hold, however, that the inclusion of the words or may be went beyond what was necessary or expedient. He considered that these words widened the test of reasonable suspicion to an extent that was not legitimate, albeit that there is scope for argument as to how much difference this will make (paras 47 49). There may be a tendency to approach the requirements of the Resolution by reference to other measures that have been taken in this jurisdiction to combat terrorism, such as control orders imposed on the basis of reasonable suspicion. Such, however, are exceptional measures, treading the boundaries of what is compatible with respect for fundamental rights and the rule of law. They should not be treated as the norm. Identification of the requirements of Resolution 1373 should be approached, in the first instance, by consideration of the natural meaning of its provisions. That natural meaning appears to me to be relatively clear. The object of the Resolution appears from the following statement in its preamble: Recognizing the need for States to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism. The first specific measure called for by the Resolution in paragraph 1(b) is that States shall: Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts. Paragraph 2(e) adds to this: Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts; Paragraph 1(c) requires the freezing of the assets of those who commit the acts that the Resolution has required should be criminalised and their agents. Thus what the Resolution requires is the freezing of the assets of criminals. The natural way of giving effect to this requirement would be by freezing the assets of those convicted of or charged with the offences in question. This would permit the freezing of assets pending trial on a criminal charge, but would make the long term freezing of assets dependent upon conviction of the relevant criminal offence to the criminal standard of proof. The Resolution nowhere requires, expressly or by implication, the freezing of the assets of those who are merely suspected of the criminal offences in question. Such a requirement would radically change the effect of the measures. Even if the test were that of reasonable suspicion, the result would almost inevitably be that some who were subjected to freezing orders were not guilty of the offences of which they were reasonably suspected. The consequences of a freezing order, not merely on the enjoyment of property, but upon the enjoyment of private and family life are dire. If imposed on reasonable suspicion they can last indefinitely, without the question of whether or not the suspicion is well founded ever being subject to judicial determination. It may be argued that it is expedient to throw the net wide in order to ensure that the criminals are caught within it, even if this is at the expense of enmeshing those who are not. But I would not give expedient, as used in the 1946 Act, so extravagant a scope. Whether in so deciding I am applying the principle of legality, or a simple rule of construction that confines general words within reasonable limits where fundamental rights are in play, matters not. Bennion would probably say that they are one and the same see p 823. It is, I think, legitimate to look at the parallel series of Resolutions adopted by the Security Council under article 41 that have led to the AQO for guidance on the intended scope of Resolution 1373. I have done so, but found nothing to indicate that the Security Council has decided that freezing orders should be imposed on a basis of mere suspicion. Resolution 1333 first made provision for the Committee to keep what subsequently became the Consolidated List of individuals and entities designated as being associated with Usama bin Laden. The scheme is that the Committee determines what names should be included on the list in the light of information provided by Member States. In recent years there has been an increasing emphasis on the duty of States to specify the evidence justifying the proposal that a name be placed on the list see Resolution 1617 (2005), paragraph 4; Resolution 1735 (2006), paragraph 5 and Resolution 1822 (2008) paragraph 12. The Guidelines of the Committee for the Conduct of its Work, as amended up to 9 December 2008 provide in paragraph 6(d): Member States shall provide a detailed statement of case in support of the proposed listing that forms the basis or justification for the listing in accordance with the relevant resolutions. The statement of case should provide as much detail as possible on the basis(es) for listing indicated above, including: (1) specific findings demonstrating the association or activities alleged; (2) the nature of the supporting evidence (e.g. intelligence, law enforcement, judicial, media, admissions by subject, etc.) and (3) supporting evidence or documents that can be supplied. States should include details of any connection with a currently listed individual or entity. States shall identify those parts of the statement of case that may be publicly released, including for the use by the Committee for development of the summary described in paragraph (h) below or for the purpose of notifying or informing the listed individual or entity of the listing, and those parts that may be released upon request to interested States. Paragraph 6 (c) of the Guidelines provides: Before a Member State proposes a name for addition to the Consolidated List, it is encouraged, if it deems it appropriate, to approach the State(s) of residence and/or nationality of the individual or entity concerned to seek additional information. States are advised to submit names as soon as they gather the supporting evidence of association with Al Qaida and/or the Taliban. A criminal charge or conviction is not necessary for inclusion on the Consolidated List as the sanctions are intended to be preventative in nature. The Committee will consider proposed listings on the basis of the associated with standard described in paragraphs 2 and 3 of Resolution 1617 (2005), as reaffirmed in paragraph 2 of Resolution 1822 (2008). When submitting names of groups, undertakings and/or entities, States are encouraged, if they deem it appropriate, to propose for listing at the same time the names of the individuals responsible for the decisions of the group, undertaking and/or entity concerned. The Resolutions cited lay down specific factual tests for association with Al Qaida and the Taliban. The statement that a criminal charge or conviction is not necessary, if applied to the TO regime, opens the door to the suggestion that freezing orders should be imposed not merely where ancillary to a criminal charge or conviction, but in circumstances where there are reasonable grounds for believing that the subject of the order has been guilty of the relevant offending see, by way of example, the test for a freezing order under section 4 of the Anti terrorism, Crime and Security Act 2001. Whether an Order in Council providing for the making of freezing orders on the basis of reasonable belief would fall within the scope of the 1946 Act is not a question that I would resolve in the abstract. It would be manifestly preferable for any such measure to be imposed by primary legislation, which would not be restricted by the need to keep strictly within the requirements of the relevant Resolution. For the reasons that I have given I would quash the TO on the ground that, by applying a test of reasonable suspicion, it goes beyond what is necessary or expedient to comply with the relevant requirements of Resolution 1373 and thus beyond the scope of section 1 of the 1946 Act. It is not necessary to address the alternative reasons advanced by the appellants for contending that the terms of the TO fall outside the powers of the 1946 Act, but I will record my agreement with the conclusions expressed by Lord Mance in paragraphs 232 to 236 of his judgment. The challenge to the AQO The common law rights of G and HAY to the enjoyment of their property, to privacy and to family life are very severely invaded by the AQO. Their counsel have adopted the submissions that were advanced on behalf of A, K and M to the effect that the principle of legality renders ultra vires orders that have such draconian effect and that lack certainty. If, however, they have justifiably been placed on the Consolidated List on the ground that they have been supporting the activities of Al Qaida, Usama bin Laden or the Taliban they can reasonably expect serious interferences with those rights. Their primary complaint is that they have no right to challenge before a court their inclusion on that list. Access to a court to challenge interference with rights is, they submit, a fundamental right protected by the principle of legality. Access to a court to protect ones rights is the foundation of the rule of law. Mr Swift accepted that if the AQO purported to exclude access to a court it would be ultra vires. He submitted, however, that it did no such thing. Designation by the Sanctions Committee was a fact that, under English law as embodied in the AQO, resulted in the imposition of severe restrictions on the rights of the person listed. It was open to any individual who experienced such restrictions, to challenge, by judicial review proceedings, whether the AQO rendered such interference lawful. In such proceedings the appellant could put in issue the assertion that he was a person designated on the Sanction Committees list. He could challenge the validity of the Order, as indeed G and HAY had done. What he could not do was challenge the basis upon which the Sanctions Committee had placed him on the list, for that question had no relevance to his rights under English law. I find this argument unreal. On the Treasurys case, the relevant Resolutions and the 1946 Act, when read together, have had a devastating effect on Gs and HAYs rights and left them unable to make an effective judicial challenge to the reasons for treating them in this way. That results from the fact that, by the 1946 Act Parliament, in effect, granted to the Security Council the power to specify legislation that it required Member States to enact and granted to the executive the power to enact that legislation by Order in Council. The stark issue is, having regard to the principle of legality did the AQO fall outside limitations, express or implied, to the scope of this legislation? I have already, in paragraphs 124 to 126 identified some limitations on the scope of section 1 of the 1946 Act, derived from the language of the section. As I explained, those limitations did not place the TO outside the ambit The list is, however, the primary object of the challenge brought by G and HAY to the legitimacy of the AQO. Names are placed on the list at the suggestion of Member States. A Member State has to give particulars of its reasons for putting forward a name, but it can place an embargo on disclosing those reasons to the name, or even on disclosing the fact that it was the State responsible for the inclusion of the name on the list. That is precisely what has occurred in the case of HAY. The Security Council has shown an appreciation of the need to provide a means whereby an individual can challenge the inclusion of his name on the Consolidated List. The Guideline that I have quoted at paragraph 140 above makes provision for notifying a listed individual of those parts of a Member States statement of the case against him that the State identifies may be publicly released and Resolutions make express provision for de listing, including the establishment of a focal point for submitting requests for de listing see Resolution 1730. But these provisions fall far short of the provision of access to a court for the purpose of challenging the inclusion of a name on the Consolidated List, and far short of ensuring that a listed individual receives sufficient information of the reasons why he has been placed on the list to enable him to make an effective challenge to the listing. Does an Order in Council that subjects individuals to severe interference with their rights to the enjoyment of property, to privacy and to family life on the ground that they are associated with terrorists, in circumstances where they are denied the right to know the case against them or to have access to a court to challenge that case, fall within the power conferred by section 1 of the 1946 Act? The natural meaning of section 1 is wide enough to extend to implementation of the measures in Resolution 1267 and the later relevant Resolutions that are reproduced in the AQO. Are those measures none the less implicitly excluded from the ambit of the section under the principle of legality? The first question to address is whether the provisions of section 1 are subject to any implied limitation at all. As to this there was no dispute between the parties. Mr Swift accepted that, if the Security Council decided, by a Resolution under article 41, that Member States should obtain information from terrorist suspects by the application of torture, section 1 of the 1946 Act would not apply to that measure. I think that at the very least the powers conferred by section 1 must be limited to measures imposed by the Security It has not, however, been suggested on behalf of any of the appellants that the relevant Resolutions were ultra vires. None the less they are of a kind that Parliament cannot reasonably have anticipated when enacting the 1946 Act. Article 41 gives, by way of example of the measures not involving the use of armed force to which it relates, complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. These were measures against rogue States, not by States against individuals within them, and it is no cause for surprise that, when debating the Bill in the House of Lords, Viscount Samuel remarked: This particular Bill makes provision for the eventuality that coercive measures may become necessary by the United Nations against some State which is indulging, or is apparently about to indulge, in acts of aggression. Those coercive measures may be either military or non military what we are accustomed to speak of under the name of sanctions, economic sanctions, or similar sanctions. Hansard 12 February 1946 col 378 HL. The fact that Parliament may not have anticipated the nature of the measures upon which the Security Council decided over sixty years after the 1946 Act was passed does not mean that the Act cannot, on its true construction, apply to them see Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 at p 822. It is necessary to consider the intention of Parliament, reading the statute in the historical context of the situation which led to its enactment per Lord Bingham of Cornhill R(Quintavalle) v Secretary for Health [2003] UKHL 13; [2003] 2 AC 687 para 8. Reference to Hansard demonstrates the enthusiasm in 1946 of all sections of both Houses for the new United Nations and the Security Council, of which the United Kingdom was a permanent member. Parliament should not be presumed to have intended that the measures covered by section 1 of the 1946 Act would be restricted to measures similar to the examples in article 41 of the Charter. Different considerations apply, however, to the question of whether Parliament would have appreciated the possibility that the Security Council would, under article 41, decide on measures that seriously interfered with the rights of individuals in the United Kingdom on the ground of the behaviour of those individuals without providing them with a means of effective challenge before a court. I conclude that Parliament would not have foreseen this possibility, having particular regard to the reference to human rights in the preamble and article 1.3 of the Charter and to the fact that the 1946 Act was passed at a time when the importance of human rights was generally recognised, as exemplified two years later by the adoption by the General Assembly of the Universal Declaration of Human Rights. This is material, for it makes the principle of legality a realistic guide to the presumed intention of Parliament. Applying that principle, I share with the majority of the court the conclusion that the Resolutions to which the AQO relates, insofar as they call for measures to be applied to those on the Consolidated List, fall outside the scope of section 1 of the 1946 Act. I agree with Lord Mance, for the reasons that he gives, that in so far as the Resolutions relate to Usama bin Laden himself, their validity is not impugned. For these reasons I would grant the relief proposed by Lord Hope in paragraph 83 of this judgment. I endorse his comments in relation to the 2009 Order. I agree for the reasons that he gives that the operation of the Order in HAYs case shall be suspended for one month from the date of judgment. Nobody should conclude that the result of these appeals constitutes judicial interference with the will of Parliament. On the contrary it upholds the supremacy of Parliament in deciding whether or not measures should be imposed that affect the fundamental rights of those in this country. LORD RODGER, with whom Lady Hale agrees The Court is asked to decide whether, by virtue of section 1(1) of the United Nations Act 1946, Her Majesty in Council had power to enact the Al Qaida and Taliban (United Nations Measures) Order 2006 (AQO Order) and the Terrorism (United Nations Measures) Order 2006 (TO 2006). The same question arises in respect of the Terrorism (United Nations Measures) Order 2009 (TO 2009). At the time of the hearing TO 2006 was the current embodiment of the measures by which the United Kingdom implemented SCR 1373, which was adopted by the Security Council on 28 September 2001, in the aftermath of the 9/11 attacks on the United States. But SCR 1373 was by no means the first resolution which the Council had adopted to deal with terrorist attacks. What marks it out is that the other resolutions relate to specific incidents and specific individuals, or organisations. SCR 1373 is, by contrast, generic: it deals with international terrorism, with threats to international peace and security caused by terrorist acts. Previous resolutions, such as SCR 1189 (1998), had, of course, included calls for States to take measures for the prevention of terrorism. But SCR 1373 was intended to go much further: the aim was to create a permanent international system for combating terrorism. This helps to explain certain unique, or unusual, features of SCR 1373. The Security Council envisages that its other resolutions relating to terrorist acts will have a limited life before being reconsidered and renewed, if appropriate. There is no such time limit in SCR 1373: it is intended to apply indefinitely unless and until the Security Council decides to revoke it. The other SCRs are targeted at a particular threat for example, SCR 1333 (2000) is directed at the Taliban and Osama bin Laden, Al Qaida and their associates. In para 1(a) of SCR 1373, by contrast, the Security Council simply decides that all States shall prevent and suppress the financing of terrorist acts. Para 1(c) requires States to freeze without delay funds etc of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts. The same thinking runs through the resolution. If, in these respects, SCR 1373 looks more like an international convention, this is not surprising since it really comprises selected measures which had been included in the International Convention for the Suppression of the Financing of Terrorism that was adopted by the General Assembly in December 1999. By September 2001 only a few States had ratified the Convention. So SCR 1373, in effect, imposed on all States the selected obligations which would otherwise have bound them only if they had eventually decided to ratify the Convention. Given its focus on terrorist acts, it is striking that the resolution does not define terrorism or terrorist acts. This is no accident. It would have been impossible to get agreement on a single definition. So, at the risk of some inconsistency and incoherence in their response, SCR 1373 leaves it up to States to adopt measures to combat what they regard as terrorism. In both TO 2006 and TO 2009 the definition adopted by the United Kingdom is to be found in article 2(3) (6). It is important to notice that this definition is These wide provisions are entirely appropriate in a measure that is intended to allow the requirements of SCR 1373 to be effectively applied in the United Kingdom. The freezing orders that are under consideration in these appeals relate to the funds and assets of individuals who live in this country. It is therefore tempting to think of such cases as the paradigm. But that would be a fundamental error. The very premise of SCR 1373 is that terrorism is an international phenomenon. For example, someone living in Ruritania may facilitate acts of terrorism against the government of Utopia by transferring funds from his account in a bank in the United Kingdom to an account controlled by the terrorist in a bank in Erewhon. The hope and intention behind paras 1(b) and 2(e) of SCR 1373 is that the authorities in Ruritania will have the necessary laws and resources to prosecute the individual concerned for financing and facilitating terrorism. Equally, it is hoped that the Erewhon authorities will have the necessary powers to freeze any funds that reach the account in the bank there. But the reality may well be that, for a variety of reasons, Ruritania is not actually in a position to arrest and prosecute the individual concerned for his actions and Erewhon may not have the necessary legislation to freeze his funds. Terrorists may indeed choose to live or operate in States which are too weak to take effective action against them. And, of course, in all probability the British courts will not have jurisdiction to prosecute the individual for facilitating terrorist acts in Utopia even supposing that he could ever be arrested or extradited to this country from Ruritania. Nevertheless, the intention behind SCR 1373 is that the United Kingdom should be able to counter the threat of terrorist acts in Utopia by freezing the individuals assets in the British bank. And the United Kingdom aims to assist in fulfilling the Security Councils intention by giving the Treasury power under TO 2006 and TO 2009 to designate the individual and to freeze his funds in the British bank. It follows that it could never have been the intention of the Security Council that a State should freeze only the funds of individuals whom it could The appellants, A, K, M and G, argue, however, that TO 2006 is ultra vires because it goes further and allows the Treasury to designate an individual and to freeze his assets if they have reasonable grounds for suspecting that [he] is or may be a person who commits, attempts to commit, participates in or facilitates the commission of acts of terrorism. The argument is that this goes further than the terms of para 1(c) of SCR 1373 and that it is neither necessary nor expedient, in terms of section 1(1) of the United Nations Act 1946, for the Treasury to be given power to designate and freeze on the basis of reasonable grounds for suspicion. As Lord Mance puts it, at para 230, this is to freeze the assets of a different and much wider group of persons on an indefinite basis and to change the essential nature and target of the freezing order. I acknowledge the force of the argument, but I have come to the conclusion that it should be rejected. In the first place, as is perhaps apparent from the variety of approaches adopted in the judgments, para 1(c) of SCR 1373 does not provide any express guidance. It simply prescribes the result that is to be achieved: freezing without delay the funds etc of persons who commit etc terrorist acts. It does not indicate how States are to identify the people in question. There will, of course, be no difficulty if the authorities of a State catch someone red handed committing a terrorist act or handing over cash to a terrorist organisation. The State will freeze his assets if there are any within its jurisdiction. And, if satisfied that the information provided is accurate, other Often, however, things will not be so clear cut. Items of information may come from a variety of sources which, if pieced together, indicate, more or less clearly, what an individual or a group is doing. How is effect to be given to para 1(c) of SCR 1373 in that situation? Lord Phillips, at para 136 of his opinion, seems to envisage that a long term freezing order should be dependent on conviction of the relevant criminal offence to the criminal standard of proof or that it would be merely ancillary to a criminal charge or conviction (para 142). I have just explained why I cannot accept that approach which would emasculate the international system that the Security Council wishes to create. I infer from what Lord Mance says, at para 230, that in his view the Security Council envisages that a (long term) freezing order should be made only against individuals who, the State is satisfied, on the balance of probabilities, have committed etc a terrorist act. In other words, even if the State thinks that there is, say, a 40% chance that the individual is busy financing terrorist activities, he should be allowed to continue. I would reject that approach because it would leave a lot of loop holes and would be unlikely to conduce to achieving the Security Councils overall aim of preventing terrorist acts. I understand Lord Brown to opt, at para 199, for a requirement that the Treasury should have reasonable grounds for believing that the person in question is committing, or has committed, etc terrorist acts. That seems to me to be one possible approach which would be likely to identify many people whose funds etc are to be frozen in terms of para 1(c). Plainly, however, if a State applies that test, it will be liable to freeze the assets of a number of people who, it turns out, are not committing, or have not committed etc, terrorist acts. Nevertheless, in my view, a measure which adopted that approach could be said to be expedient for enabling the United Kingdom to fulfil its obligation under SCR 1373 to freeze the assets of those who facilitate terrorist acts. The actual test in the TOs, based on reasonable grounds for suspecting, is just a little less stringent than the one favoured by Lord Brown. In other words, while it may (slightly) increase the chances of catching individuals who are actually committing etc terrorist acts, it correspondingly increases the chances that someone who is not committing etc a terrorist act will have his assets frozen. Lord Hope, at para 58, considers that it may well have been expedient to introduce the reasonable suspicion test to reproduce what the SCR requires, but he is of the view that the formulation of the text should be left to Parliament. In his view, therefore, TO 2006 really fails, not because it is framed too widely, but because of the principle of legality (para 61). As Lord Hope points out, there is evidence that the reasonable grounds for suspecting test would be consistent with the approach of the United Nations International Task Force. It seems to me that the expediency of the United Kingdom adopting that test really depends on a whole range of practical matters with which the members of this Court are largely unfamiliar. Inevitably, much of the information about terrorist activities that is available to national authorities will come from other countries and, often, in the form of intelligence provided by overseas security services. In the case of the United Kingdom, the Treasury and indeed the British security services may well be in no position to make an independent assessment of the material. Similarly, it may well be that, in a significant number of cases, because of its variable quality and fragmentary nature, the available information does not permit the Treasury to go further than to say that they have reasonable grounds for suspecting that the person concerned is committing or facilitating terrorist acts. If so, then it may be better to base designation on reasonable grounds for suspicion rather than on some higher standard which could not be readily achieved and which, if applied faithfully, would mean that the Treasury failed to freeze a significant number of assets which were actually under the control of people who committed etc terrorist acts. I therefore see no sufficient reason to conclude that the test in the TOs is not expedient for enabling the United Kingdom to fulfil its obligations under para 1(c) of SCR 1373. Nevertheless, adopting that test does mean that, sooner or later, someone will be designated who has not actually been committing or facilitating terrorist acts. That is inevitable. The availability of judicial review under Part 6 of the Counter Terrorism Act 2008 is, of course, a palliative. But, in my view, for the reasons given by Lord Hope, at paras 60 and 61, the making of an Order, which, in effect, amounts to permanent legislation conferring powers to affect, directly, very basic domestic law rights of citizens and others lawfully present in the United Kingdom goes well beyond the general power to make Orders in Council conferred by section 1(1) of the United Nations Act 1946. If such measures are to be taken, it is for Parliament to deliberate and to determine that the benefits of giving the Treasury such powers outweigh the potential disadvantages and that it is accordingly expedient to adopt these measures in order to enable the United Kingdom to fulfil its obligations under SCR 1373. That is so, even though, for the reasons given by Lord Hope, at paras 70 73, the Court must proceed on the basis that, having regard to articles 25 and 103 of the Charter, the United Kingdoms obligations under the SCRs would trump any relevant obligations under the European Convention. I consider, however, that section 1(1) would authorise Her Majesty to make an Order in Council, even with these far reaching effects, provided that it had only a limited life span and was replaced, as soon as practically possible, by equivalent legislation passed by Parliament. In this way the United Kingdom could promptly fulfil its obligations under the United Nations Charter. For these reasons TO 2006 was ultra vires and TO 2009, which is, so far as relevant, in similar terms, must also be ultra vires. I am accordingly satisfied that the designation orders relating to A, K and M under TO 2006 were void and that the new orders made under TO 2009 must also be void. I turn now to the AQO. The history of the matter has been described by Lord Hope and Lord Mance. In para 4(b) of SCR 1267 (1999) the Security Council decided that all States should in broad terms freeze funds and other financial resources owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as designated by the Committee that was to be established under para 6 of the SCR. This committee, comprising all the members of the Security Council, came to be known as the 1267 Committee. The following year, in SCR 1333 (2000), the Security Council decided that all States were to freeze without delay, inter alia, funds and other financial assets of Usama bin Laden and individuals and entities associated with him as designated by the 1267 Committee, including those in the Al Qaida organisation. After the 9/11 atrocity, at the instigation of the United States, the Committee added a large number of names to its list of groups and individuals associated with Osama bin Laden and Al Qaida. SCR 1267 was aimed at the Taliban regime. So the role of the Committee was to designate Taliban funds which States were to freeze. But, from SCR 1333 onwards, the Security Council has targeted the funds and assets of individuals and entities associated with Osama bin Laden and the Al Qaida organisation. And the role of the 1267 Committee has, therefore, been to designate those individuals whose funds are then to be frozen. As Lord Mance explains, at para 215, this was not a new device: the Security Council had previously adopted resolutions which left it to a committee to designate individuals to whom particular sanctions were to apply. Those resolutions had been directed, however, at individuals associated with a particular rgime in a particular country. By contrast, from SCR 1333 onwards, the 1267 Committee was having to identify individuals and groups associated with a much more Obviously, preventing terrorists from obtaining funds and other assets is a crucial part of any system for combating terrorism. Equally obviously, if there is to be a successful international effort to combat terrorism all over the world, a central organisation which gathers information and co ordinates action is going to play a vital role. Assessing the information and deciding whether to act on it involved matters of political judgment. Obviously, again, much of the necessary information will come from the security services of different countries and there may well be problems about revealing it. The 1267 Committee acts as the central co ordinating body and is not in the habit of revealing much about the basis for its decisions. It would, of course, be absurd to expect the Committee to notify individuals of any proposal to list them: any funds would quickly be disposed of. But, even after the reforms introduced in the last two years, there is little that individuals can do to launch an effective challenge to their listing after it has occurred. The Committee is not obliged to publish more than a narrative summary of reasons for their listing. There is no appeal body outside the Committee to which they can complain. The individuals themselves cannot apply directly to the Committee to have their names removed from the list. Such requests now go to the Ombudsperson. And, if a State applies on their behalf, the name will still not be removed unless all members of the Committee agree. There is an obvious danger that States will use listing as a convenient means of crippling political opponents whose links with, say, Al Qaida may be tenuous at best. The Security Council is a political, not a judicial, body as is the 1267 Committee. And it may be that the Committees procedures are the best that can be devised if it is to be effective in combating terrorism. But, again, the harsh reality is that mistakes in designating will inevitably occur and, when they do, the individuals who are wrongly designated will find their funds and assets frozen and their lives disrupted, without their having any realistic prospect of putting matters right. On one view, they are simply the incidental but inevitable casualties of the measures which the Security Council has judged it proper to adopt in order to counter the threat posed by terrorism to the peace and security of the world. The Council adopts those measures in order to prevent even worse casualties those who would be killed or wounded in terrorist attacks. On the assumption that the Human Rights Act is not in play, Parliament can pass legislation to give effect in our domestic law to the obligations imposed on the United Kingdom by the Security Council resolutions relating to Osama bin Laden, Al Qaida etc however grave the interference with rights of property and even though there is no effective remedy against an unjustified Can the same be done by Order in Council under section 1(1) of the United Nations Act 1946? In other words, does section 1(1) authorise Her Majesty in Council to make legislation which encroaches to such an extent on individuals basic common law rights of property and access to the courts? Undoubtedly, given the terms of article 41 of the Charter which envisages interruption of economic relations, Parliament must have envisaged that, for example, an Order in Council giving effect to a ban on trade with a particular country would interfere significantly with the rights of individuals or companies to export their goods or to use their funds to make payments to individuals or companies in the country concerned. But, having regard to the principle stated by Lord Browne Wilkinson in R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 575, I have come to the conclusion that, by enacting the general words of section 1(1) of the 1946 Act, Parliament could not have intended to authorise the making of AQO 2006 which so gravely and directly affected the legal right of individuals to use their property and which did so in a way which deprived them of any real possibility of challenging their listing in the courts. Lord Brown rejects that conclusion because, he says, there could surely be no political cost in doing what, unless we were flagrantly to violate our UN Charter obligations, the United Kingdom had no alternative but to do. I accept that there might be no real political cost in enacting the measure. But the essential point is that these matters should not pass unnoticed in the democratic process and that the democratically elected Parliament, rather than the executive, should make the final decision that this system, with its inherent problems, should indeed be introduced into our law. The need for Parliamentary endorsement is all the more important if the ordinary human rights restraints do not apply. I would accordingly hold that article 3(1)(b) of the AQO is ultra vires and void. For these reasons I agree that the appeals of A, K, M and G should be allowed and the appeal by the Treasury should be dismissed. LORD BROWN The principal question for the Courts decision on these appeals is whether the Terrorism (United Nations Measures) Order 2006 (The Terrorism Order) or the Al Qaida and Taliban (United Nations Measures) Order 2006 (The Al Qaida Order) or both fall to be quashed as having been made ultra vires the enabling power section 1 (1) of the United Nations Act 1946 (the 1946 Act). Section 1(1) is central to the appeals: If, under Article 41 of the Charter of the United Nations . (being the Article which relates to measures not involving the use of armed force) the Security Council of the United Nations call upon His Majestys Government in the United Kingdom to apply any measures to give effect to any decision of that Council, His Majesty may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measures to be effectively applied, including (without prejudice to the generality of the preceding words) provision for the apprehension, trial and punishment of persons offending against the Order. The appellants (together with JUSTICE who intervene in these proceedings in support of their case) submit (and I simplify) that the Terrorism Order and the Al Qaida Order are ultra vires the 1946 Act, first, because they offend the common law principle of legality and, secondly, because they necessarily involve violations of Convention rights. Essentially what are challenged here are not the designations of the individual appellants and the directions made against them by the Treasury as such, but rather the Orders themselves. I gratefully adopt without repetition Lord Hopes detailed recitation of the facts of these appeals and the relevant provisions of all the main instruments under consideration: the United Nations Charter, the various United Nations Security Council Resolutions, the impugned Orders and, indeed, a number of other relevant Orders in Council made under the 1946 Act. This enables me to proceed at once to what I regard as the core issues. Although, as I shall come to explain, my final conclusion on these appeals is that the Terrorism Order should be struck down but the Al Qaida Order should stand, let me first make one or two brief introductory observations applicable to both. The draconian nature of the regime imposed under these asset freezing Orders can hardly be over stated. Construe and apply them how one will and to my mind they should have been construed and applied altogether more benevolently than they appear to have been they are scarcely less restrictive of the day to day life of those designated (and in some cases their families) than are control orders. In certain respects, indeed, they could be thought even more paralysing. Undoubtedly, therefore, these Orders provide for a regime which considerably interferes with the article 8 and article 1 of Protocol 1 rights of those designated. Similarly, it is indisputable that serious questions arise as to the sufficiency of protection of the article 6 rights of those designated. This is so, moreover, even if one superimposes upon the regime (as the Court of Appeal thought permissible) the services of a special advocate when required and the means of overcoming the potentially unfair effect of section 17 of the Regulation of Investigatory Powers Act 2000 with regard to the use of intercept evidence. These, then, are powerful reasons for questioning the legitimacy of introducing such restrictive measures by executive order instead of by primary legislation. As Lord Hoffmann famously said in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131: Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. I shall call this for simplicitys sake the Simms principle. There is, however, an important countervailing principle also in play here. Chapter VII of the UN Charter concerns action to be taken with regard to threats to international peace and security and by article 41 authorises the Security Council to decide on measures to be taken short of armed force to maintain peace and security and to call upon member states to apply such measures. When one considers the ravages of terrorism and war and the gross invasions of human rights which they inevitably entail, it is difficult to think of any greater imperative than that member states should fully honour their international law obligation to implement Security Council decisions under article 41. The existence of such an obligation could not be plainer. Article 25 of the Charter mandates it and article 103 expressly dictates that it is to prevail over any conflicting international law obligation. It follows that these appeals involve the clash of conflicting principles, each of profound importance. As it seems to me, almost any Order made under section 1(1) of the 1946 Act is likely to interfere with somebodys fundamental rights. Take a UN resolution imposing trading actions against some state. Any domestic measure giving effect to such a decision is bound to interfere with someones contractual dealings and impinge on their article 1 Protocol 1 rights and quite likely their article 8 rights too. Obviously the Simms principle cannot operate to emasculate the section 1(1) power entirely. What, then, are the touchstones by which to decide whether a particular executive Order falls within the scope of the power? As it seems to me, two paramount considerations will always arise: first, the degree of specificity of the UN decision which the UK is called upon to implement; second, the extent to which the implementing measure will interfere with fundamental human rights. Of course, the legislation affords the Minister some margin of appreciation as to just what is necessary or expedient for enabling the effective implementation of the United Nations resolution. But, the more invasive of the human rights of those affected the proposed provision is, the narrower that margin will be until, indeed, the point is reached where, unless the UK could not consistently with its obligations under the Charter introduce provisions any less invasive of human rights than those proposed, they could not properly be introduced by Order in Council at all but only by primary legislation. Where, as here, those to be designated under the proposed measure will suffer very considerable restrictions under the regime, I would hold that it can only properly be introduced by executive Order in Council if the measure is in all important respects clearly and categorically mandated by the UN resolution which it is purporting to implement. If the implementing measure is to go beyond this, then, consistently with the Simms principle, it can only properly be introduced by primary legislation. Turning to the impugned Orders, there seems to me a crucially important distinction between them. The fundamental reason why I for my part would strike down the Terrorism Order but not the Al Qaida Order as ultra vires the 1946 Act is that whereas I cannot regard the former as sufficiently mandated by SCR 1373 to which it purports to give effect, the Al Qaida Order to my mind does faithfully implement SCRs 1267, 1333 and 1390. Let me explain. First, the Terrorism Order. SCR1373, by paragraph 1(c), decided that all States shall [f]reeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts . The Terrorism Order, however, provides for designation by HM Treasury on the basis merely that it has reasonable grounds for suspecting that the person is (I omit the words or may be, struck out by the Court of Appeal) a person who commits, attempts to commit, participates in or facilitates the commission of acts of terrorism. This goes well beyond the strict requirements of Resolution 1373. To my mind, it was not open to the Minister to introduce such a provision by Order in Council under the 1946 Act. By contrast, paragraph 2 of SCR 1390 required that all States [f]reeze without delay the funds and other financial assets or economic resources of Osama Bin Laden, members of the Al Qaida organisation and the Taliban and others associated with them as referred to in the Sanctions Committee list. And that, as it seems to me, is precisely what the implementing Al Qaida Order sets out to achieve, no more and no less. What essentially it provides for is the designation of all those designated by the UN Sanctions Committee. I cannot see why the Simms principle should apply to limit the power of the executive to accomplish this. I have found it instructive in this regard to see how certain other Commonwealth countries have given effect to these same UNSCRs. Australia, New Zealand and Canada all have legislation akin to our 1946 Act. All three countries initially implemented both SCR 1267 and SCR 1373 by Regulations made under that legislation but in 2002 Australia and New Zealand (although not Canada) replaced these by primary legislation. As I understand it, both the Regulations and the legislation have directly implemented the Sanctions Committee designations under Resolution 1267 i.e. they automatically freeze the listed persons assets in just the same way as our Al Qaida Order. On the other hand, the provisions implementing Resolution 1373 are altogether more tightly drawn than our Terrorism Order. Unless designated by the Sanctions Committee, people cannot be subjected to executive designation and asset freezing unless the following conditions are met: in Australia only when the Minister is satisfied that the person is involved in terrorism; in Canada only when the Governor General is satisfied that there are reasonable grounds to believe this; in New Zealand only if the Prime Minister believes this on reasonable grounds (except that he can make an interim designation for 30 days if he has good cause to suspect it). Contrast all this with the position under the Terrorism Order where HM Treasury can designate on a long term basis merely on reasonable grounds for suspecting the person to be involved in terrorism. As I pointed out in a very different context in R v Saik [2007] 1 AC 18, 61, at para 120: To suspect something to be so is by no means to believe it to be so: it is to believe only that it may be so. The way Australia, New Zealand and Canada have dealt with these UNSCRs to my mind tends to support the conclusions I have reached about the impugned Orders. It suggests that whilst SCR 1267 is regarded as mandating the automatic asset freezing of those designated by the Sanctions Committee, SCR 1373 certainly cannot be regarded as mandating the long term asset freezing of people not designated by the Sanctions Committee merely on the ground of reasonable suspicion. With regard to the Terrorism Order I add only this. The logic of the Treasurys argument is that not only is that Order sufficiently mandated by the terms of Resolution 1373 but so too would have been Orders in Council introducing the various other regimes aimed at combating terrorism in fact introduced over recent years by primary legislation. Consider for example paragraph 2(b) of Resolution 1373, deciding that all states should [t]ake the necessary steps to prevent the commission of terrorist acts. Why should not the control order regime or, indeed, the earlier regime involving the executive detention of suspected terrorists unable to be deported have been the subject of Orders in Council under section 1(1) of the 1946 Act? The answer to my mind is plain. Both regimes were hugely invasive of human rights. Plainly they would have had to be mandated in the clearest and most categoric terms by a Chapter VII Resolution before they could properly have been introduced by Orders in Council. Equally clearly they were not. But by the same token that the control order regime itself similarly triggered by the Minister merely having reasonable grounds for suspecting someone of terrorist activity was lawfully introduced by legislation, so too, provided always, of course, that Parliament was persuaded to enact it, could the asset freezing regime have been. I am unimpressed by the alternative grounds on which the Order is challenged, those of certainty and proportionality. Primary legislation introducing this same asset freezing regime could not have been declared incompatible on those grounds. It is only because the Order was plainly insufficiently mandated by the SCR 1373 that I would hold it invalid. I return to the Al Qaida Order which, as I have suggested, does precisely what SCR 1267 (and subsequent Resolutions) expressly required the UK to do. I recognise, of course, that the UKs international law obligations give rise to no domestic law rights or obligations unless and until they are given effect in domestic law. But here the Resolution was given domestic law effect. The only question is whether that could properly be done by Order in Council under the 1946 Act. Inevitably in considering this question one is struck by the dramatic consequences of implementing SCR 1267: the long term radical restrictions upon the lives of those designated by the Sanctions Committee without their being afforded any judicial means of challenging that designation. (I cannot accept the Court of Appeals suggestion that a merits based review can somehow be achieved within the scope of this regime.) In these circumstances it is perhaps unsurprising that the European Court of Justice in Kadi v Council of the European Union (Joined Cases C 402/05P and C 415/05P) [2009] AC 1225 struck down an implementing EC Regulation for want of any procedure for telling those designated of the evidence against them or for a hearing on the merits of the case for (and against) their inclusion in the Sanction Committees list. But, of course, the European Community is not a member state of the UN: unlike the UK, it is not under an international law obligation to implement Security Council decisions under article 41 of Chapter VII of the Charter and, more particularly, to do so in the light of article 103 of the Charter: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. The UKs position as a member state is quite different. Not merely was the UK entitled to introduce this asset freezing scheme in respect of those designated by the Sanctions Committee; it was (under international law) bound to do so. And given that it was bound to do so, I can see no good reason why that should not have been achieved under the 1946 Act. I accept, of course, that the regime introduced by the Al Qaida Order is contrary to fundamental principles of human rights (to use Lord Hoffmanns phrase in Simms). But that was the inevitable consequence of implementing Resolution 1267. Obviously, as it seems to me, it could have been implemented by primary legislation. Certainly, whilst R (Al Jedda) v Secretary of State for Defence (JUSTICE intervening) [2008] AC 332 stands, such legislation could not be declared incompatible with Convention Rights. What purpose then, one asks, would be served by adopting this course rather than making use of the 1946 Act? The Simms principle is intended to ensure that human rights are not interfered with to a greater extent than Parliament has already unambiguously sanctioned. The loss of such rights is not to be allowed to [pass] unnoticed in the democratic process. Parliament must squarely confront what it is doing and accept the political cost. But in this case the Security Council by Resolution 1267 unambiguously stated what was required of the UK and the 1946 Act equally unambiguously provided that that measure could be implemented by Order in Council. There could surely be no political cost in doing what, unless we were flagrantly to violate our UN Charter obligations, the UK had no alternative but to do. I do not accept that such an approach carries with it the implication that the 1946 Act could similarly be used to introduce by Order in Council the sort of internment regime mandated by the Security Council Resolution under consideration in Al Jedda. Given the obvious extent to which internment interferes with fundamental human rights, such a resolution would need a degree of specificity at least as great as that characterising SCR 1267 to satisfy my suggested criteria (see para 196 above) for the proper use of the 1946 Act power. Internment where this is necessary for imperative reasons of security (the terms of the resolution providing for internment in post war Iraq with which the House was concerned in Al Jedda), understandable as that was in its particular context, would not sufficiently clearly mandate a comprehensive internment regime in the UK pursuant to Executive Order; internment of named individuals in certain circumstances might. Since, however, it now appears that the approach I favour is not one which commends itself to the majority of the Court, it would be unhelpful to pursue the matter further. I content myself with the hope that the view of the majority will not be thought to indicate any weakening in this countrys commitment to the UN Charter. LORD MANCE Introduction These appeals concern the validity of (i) the Terrorism (United Nations Measures) Order 2006 and (ii) the Al Qaida and Taliban (United Nations Measures) Order 2006. I shall refer to these as the Terrorism Order 2006 and the Al Qaida Order. Both were made in reliance on the power contained in section 1(1) of the United Nations Act 1946, providing: Measures under article 41 If under article forty one of the Charter of the United Nations signed at San Francisco on the twenty sixth day of June, nineteen hundred and forty five (being the Article which relates to measures not involving the use of armed force) the Security Council of the United Nations call upon His Majestys Government in the United Kingdom to apply any measures to give effect to any decision of that Council, His Majesty may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measures to be effectively applied, including (without prejudice to the generality of the preceding words) provision for the apprehension, trial and punishment of persons offending against the Order. Article 41 appears in Chapter VII of the Charter of the United Nations which is headed Action with respect to threats to the peace, breaches of the peace, and acts of aggression and provides: 39. The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. 41. The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. 42. Should the Security Council consider that measures provided for in article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. In the cases of A, K, M and G v Her Majestys Treasury [2008] EWCA Civ 1187, [2009] 3 WLR 25, the Court of Appeal, overruling Collins J [2008] EWHC 869 (Admin), [2008] 3 All ER 361, held by a majority (Sir Anthony Clarke MR and Wilson LJ) that both Orders were valid, subject only to the excision from the former Order of the words or may be. Sedley LJ dissented on the issue of the validity of the Terrorism Order. The majority reasoning was that the Orders fell, subject to the excision, within the scope of section 1(1), that they were certain and proportionate and that their operation could be accompanied by sufficient procedural safeguards to preclude any objection to their validity at common law or under the Human Rights Act 1998. Against those conclusions, appeals have been brought with leave by A, K, M and G (who, in the light of our ruling on the first day of the appeal, can be given his Lord Hope has set out the background to and salient terms of the Terrorism Order 2006 and the Al Qaida Order in paras 21 to 27, and the circumstances and effect of application of these Orders to A, K, M, G and HAY in paras 1 to 4 of his judgment. A, K, M and G were each made the subject of a direction by the Treasury under article 4 of the Terrorism Order 2006. They were entitled to challenge the Treasurys direction under article 5(4)(a) of that Order. In late October 2009 (subsequent to the hearing of these appeals), their designations under the Terrorism Order 2006 were revoked and replaced, as Lord Hope recounts in para 27, by designations under the Terrorism (United Nations Measures) Order 2009 (SI 2009/1747), which was itself framed to replace the Terrorism Order 2006. For the reasons which Lord Hope gives in para 28 and without pre judging any contrary argument which may be raised, this redesignation does not appear to make the central issues argued before us under the Terrorism Order 2006 either academic or of past interest only. G and HAY were persons designated by the Sanctions Committee and were accordingly covered without more by article 3(1)(b) of the Al Qaida Order. They were not entitled to bring any challenge under article 5(4)(a) of the Al Qaida Order, since that applies only to persons covered by virtue of a Treasury direction. Gs application to the court under article 5(4)(a) of the Al Qaida Order was thus treated by Collins J as an application for judicial review. HAYs application was brought from the outset as an application for judicial review. Section 1(1) of the 1946 Act The primary argument of the appellants A, K, M and G, supported by the interveners JUSTICE, is that, notwithstanding the wide wording of section 1(1), the Terrorism Order 2006 was by its nature a measure falling outside the scope of section 1(1). Section 1(1) was, they submit, conceived with measures in mind arising from disputes between states, while the Terrorism Order 2006 was an executive order directed in the first place to individuals and interfering with their fundamental rights in a manner which could not, as a matter of constitutional propriety, have been contemplated without legislation in Parliament. A similar argument is mounted in respect of the Al Qaida Order, reinforced by the consideration that, in that case, the Order purports to Section 1(1) of the 1946 Act was introduced to provide a quick and simple means by which the United Kingdom could honour its international obligations and impose upon its citizens the duty to comply with decisions of the Security Council under article 41 of the United Nations Charter. In these circumstances, I agree with views expressed in the Court of Appeal in Oakley Inc v Animal Ltd (Secretary of State for Trade and Industry intervening) [2005] EWCA Civ 1191; [2006] Ch 337. The Court there said that the power under the European Communities Act 1972 to give effect to this countrys international (Community) obligations was a power sui generis and should not be construed narrowly. The same applies to the power conferred by section 1(1) to give effect to Security Council Resolutions under article 41. In considering whether the general language of section 1(1) extends to the implementation of any such Resolution, however radical its effect on individual rights, it is nonetheless of some relevance that section 1(1) involves purely executive action, to implement inter governmental decisions taken in the Security Council, free in each case of any procedure for direct Parliamentary scrutiny. Not surprisingly, article 41 itself illustrates its application in its second sentence by reference to the interruption of economic relations or communications and the severance of diplomatic relations familiar measures directed against states. In the debates in Parliament, these examples were cited by the Lord Chancellor (Hansard 12 February 1946, col 375) and by the Minister of State in the Commons (Hansard 5 April 1946, col 1516). But section 1(1) of the 1946 Act expressly contemplates that sanctions against another state may, in order to be effective, require to be supported at the domestic level by criminal prohibitions addressed directly to and enforceable against persons (individual or corporate). The present appeal concerns measures taken at the international level, but addressed to and enforceable against non state actors and individuals, and the issue is how far section 1(1) enables effect to be given to such measures. That the line between measures against state and non state actors is not as great as might appear is demonstrated by the history of Security Council Resolutions leading to the Terrorism and Al Qaida Orders. Initially, the focus was on the control by the Taliban (described in Resolution 1267 as the Afghan faction known as the Taliban, which also calls itself the Islamic Emirate of Afghanistan) of part of Afghanistan, accompanied by pretensions to control the whole country, and its making available the areas that it controlled to Al Qaida for the purposes of international terrorism against other states. No doubt the threat to international peace by rogue states or states under rogue leadership was in the forefront of everyones mind in 1945 46. But a threat to peace by an organisation which has succeeded in taking over a significant part of a state cannot sensibly be distinguished. Nor indeed can a threat posed by an international organisation which establishes itself outside the jurisdiction, or without taking over any particular part, of any state and presents a threat to international peace. Under article 39 of the United Nations Charter, it is the Security Councils role to identify the existence of a threat to international peace from any such organisation, not just from states. What matters is such a threat, not whether it originates in a traditional subject of international law. Earlier instances exist of Security Council Resolutions under Chapter VII directing states to take measures against non state actors: for example, measures under Resolution 841(1993) to freeze within their territories funds of the de facto authorities in Haiti, as well as funds of the legitimate, though ousted government of President Aristide; measures under Resolution 864(1993) against the UNITA movement in Angola; measures under Where the present Resolutions can be said to go further is that they are directed in the case of Resolutions 1267, 1333 and 1390 not only at particular non state actors, the Al Qaida organization and the Taliban and at Usama bin Laden, but at all members of the Al Qaida organization and the Taliban and other individuals, groups, undertakings and entities associated with them, and in the case of Resolution 1373 at individuals engaging in terrorism. In the case of the latter, the means of identifying such individuals were to be established in domestic law, but in the case of the former the Resolutions provided for identification of the associated individuals, groups, undertakings and entities at the international level by the committee consisting of all Security Council members. The appellants did not challenge indeed they said expressly that they accepted the legitimacy of Resolution 1373 under article 41 of the United Nations Charter. In any event, the legitimacy of such measures is not as such justiciable at a domestic level. It is all the same worth noting the opinion expressed by Sir Michael Wood in his first Hersch Lauterpacht lecture (delivered 7 November 2006) on The Legal Framework of the Security Council that: Depending on the nature of the threat, such measures may be specific, addressed, for example, to the threat emanating from North Korea, or they may be general, addressed, for example, to the global threat from terrorist groups. I do not see any great principle involved here, though the circumstances in which general measures are considered necessary and appropriate may prove to be rare. At a domestic level, the question does, however, arise as to how far all such measures are capable of being reflected by Orders in Council made under section 1(1) of the United Nations Act 1946. Essentially, the question is whether the power in section 1(1) is subject to implicit limitations, arising from the background against which it was passed and the need for express language to override what would otherwise be regarded as basic rights. A similar issue was raised by Hazel Fox (Lady Fox) in 1997 in relation to an order implementing the Resolution 827(1993), whereby the Security Council established the International Tribunal for the former Yugoslavia. The United Nations (International Tribunal) (Former Yugoslavia) Order 1996 (SI 1996/716), made in reliance on section 1(1), providing for, inter alia, the arrest and transfer out of the jurisdiction of individuals for trial to and sentence by the Tribunal. Hazel Fox described the Security Councils Resolution as a wholly novel exercise of power and questioned the legitimacy of the use of section 1(1) for the purpose of its implementation: The objections to transfer of criminal jurisdiction to the UN Tribunal (1997) 46 ICLQ 434. Professor Christopher Greenwood, as he then was, later responded, arguing that the wording of section 1(1) is unconfined: see V Gowlland Debbas (ed.), National Implementation of United Nations Sanctions: a Comparative Study (2004, Martinus Nijhoff), 581, esp at pp 601 603. The Terrorism Order 2006 general The aim of section 1(1) was to enable the United Kingdom government to respond, with despatch, to any call by the Security Council to apply any measures to give effect to any decision of that Council. Section 1(1) is in my view apt to cover Security Council decisions under article 41 requiring every state to take domestic measures against persons who that state identified as involved in terrorist activities. Section 1(1) expressly envisages that Security Council decisions under article 41 will, in order to be effective, require to be accompanied by prohibitions and sanctions addressed to domestic individuals or entities, and impacting, therefore, on rights or freedoms that they would otherwise have particularly to make contracts and deal with or dispose of property. This might be the case either because the Security Council Resolution expressly so required, or because its effective domestic application appeared to the executive to make it necessary or expedient. On the face of it, therefore, it was open to the executive government to react by Order in Council to Security Council Resolutions 1267 and 1373 and their successive resolutions in the same series, by introducing provisions freezing the assets of persons who were identified at the domestic level as terrorists, and thereby enabling measures required by article 4(2) of Resolution 1267 and article 1 of Resolution 1373 to be effectively applied in the United Kingdom. The Terrorism Order 2006 necessary or expedient The essential question is whether the Terrorism Order 2006 was in terms which can be regarded as making such provision as appears to [Her Majesty in Council] necessary or expedient for enabling those measures to be effectively applied. Before the Supreme Court, though it appears to a lesser extent below, considerable emphasis was placed upon the extent to which Parliament had been asked to enact and had enacted anti terrorist measures by primary legislation (in particular the Terrorism Act 2000, passed on 20 July 2000, and ACTA 2001, passed on 14 December 2001) and the suggested constitutional impropriety of the Government by passing Parliament and deciding what powers to accord itself through the Terrorism Orders 2001 and later 2006 and 2009. One can certainly feel concern about the development and continuation over the years of a patchwork of over lapping anti terrorism measures, some receiving Parliamentary scrutiny, others simply the result of executive action. However, the primary legislation does not implement all measures required by the United Nations Resolutions and the primary and secondary legislation are not actually inconsistent. More particularly, Part III of the Terrorism Act 2000 introduced a series of offences relating to terrorist property, defined to include money or other property likely to be used for the purposes of terrorism, as well as the proceeds of, or of acts carried out for the purposes of, terrorism. But these offences are all defined in terms which require mens rea such as an intention, knowledge or reasonable suspicion that money or other property will be used for terrorist purposes. In contrast, the Terrorism Orders 2001 and 2006 both included absolute prohibitions on certain dealings with designated persons. The 2001 Order included a precursor (article 3) to article 8 of the 2006 Order (article 3 was confined to making available any funds or financial (or related services)), as well as a precursor (article 4) to articles 4 and 7(1) of the 2006 Order (article 4 only gave power to the Treasury to direct that funds be not made available to any person by a person by, for or on behalf of whom such funds were held where the Treasury had reasonable grounds for suspecting that the latter person is or may be within one of the three categories matching article 4(2)(a), (b) and (d) of the 2006 Order). As to the ACTA 2001, this was passed over two months after the Terrorism Order 2001. In theory at least, Parliament had the opportunity, when enacting the ACTA 2001 to consider whether the Terrorism Order 2001 should be allowed to continue in force. The same may be said in relation to the enactment of the Terrorism Act 2006. However there is little, if anything, to suggest that Parliamentary attention was ever focused on or drawn to this opportunity. The Explanatory Notes to the 2001 and 2006 Acts make no The extensive power to make freezing orders under Part 2 of ACTA 2001 is limited by pre conditions, the first that the Treasury should reasonably believe that action to the detriment of the United Kingdom economy or constituting a threat to the life or property of one or more United Kingdom nationals has been or is likely, but the second, critically, that the person taking or likely to take such action is a foreign government or overseas resident. The Terrorism Orders 2001 and 2006 extend, and have regularly been used, in relation to purely domestic threats. It may well be thought desirable that such measures should be debated in Parliament alongside the primary legislation which Parliament did enact, and correspondingly undesirable that there should be developed and continued, as a result of executive Orders, a patchwork of measures that have and have not been debated in Parliament. But I cannot view the making of the Orders under section 1(1), or their continuation in force, as constitutionally improper merely because of these considerations. This however leaves open whether the measures introduced by executive Order were of a nature falling within the scope of section 1(1) of the United Nations Act 1946. The argument in the courts below focused on the prescribed pre conditions to the making of any direction under article 4, and, in particular, on the words that the Treasury have reasonable grounds for suspecting that the person is or may be . While Collins J and the Court of Appeal considered that the words or may be lowered the threshold too far, the majority in the Court of Appeal accepted that the executive could properly conclude that it was expedient to provide that reasonable grounds for suspicion was an appropriate test (paras 42 and 155 157). The Master of the Rolls observed that Resolution 1373 was silent on the standard of proof to be satisfied on the question whether a particular person commits, or attempts to commit, terrorist acts before a state can freeze his assets within paragraph 1(c) or prohibit certain activities within paragraph 1(d) (para 42). In this context, because of the nexus with domestic law arising from the language of section 1(1) itself, it is necessary to form a view about the scope of Security Council Resolution 1373. I see its scope differently to the Master of the Rolls. The relevant wording of Security Council Resolution 1373 article 1(c) and (d) is directed at the prevention and suppression and the criminalisation and prosecution of actual terrorist acts; at the freezing of funds or other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts and of entities owned or controlled, or acting on behalf of or at the direction of such persons and entities; and at prohibiting nationals or persons and entities within their territories from making any funds, financial assets or economic resources or financial or related services available for the benefit of any such persons. This wording does not suggest that the Security Council had in mind reasonable suspicion as a sufficient basis for an indefinite freeze. When, following the terrorist bombing on 14 February 2005 which killed former Lebanese Prime Minister Rafiq Hariri, the Security Council adopted Resolution 1636 (2005) under Chapter VII, it decided, as a step to assist in the investigation of this crime and without prejudice to the ultimate judicial determination of the guilt or innocence of any individual, that all individuals designated by the [international investigation] Commission [S/2005/662] or by the Government of Lebanon as suspected of involvement in this terrorist act, upon notification of such designation to and agreement of the Committee [established by the Security Council for the purpose] should be prohibited entry to or transit through states other than their own, and that all states should freeze all such individuals funds, financial assets and economic resources. The absence of any similar reference to persons suspected in Resolution 1373 is notable. Further, the freezing measures prescribed by Resolutions 1267, 1333 and 1390 (which in turn led to the Al Qaida Order 2006) have been explained as preventative in nature and not reliant upon criminal standards set out under national law: see recitals to Resolutions 1735 (2006), 1822 (2008) and 1904 (2009). Resolutions 1735 and 1822 themselves called on states not merely to freeze the assets of individuals on the Sanctions Committee list, but also to prevent the supply, sale or transfer to such individuals of arms and related material. The latter would have to be proscribed at the domestic level, at which level issues would arise as to the standard of proof contemplated. The wording of the recitals to Resolutions 1735 and 1822, post dating that of Resolution 1636 (2005), does not suggest that reasonable suspicion was contemplated as the appropriate test, but rather an ordinary civil standard of proof of relevant allegations. In so far as the Court of Appeal justified its decision on the basis that the Security Council Resolutions contemplate indefinite freezing orders based not on proof but on reasonable suspicion, I therefore disagree. That is not the end of the matter, because of the power to make such provision as appears to Her Majesty in Council necessary or expedient for enabling the relevant Security Council Resolutions to be effectively applied. That undoubtedly justifies provisions going beyond those of the Resolutions, and expediency goes wider than necessity. To that extent, I cannot accept the description of section 1(1) given by Mr Fordham QC as a mere transposition power. An example of such a provision under section 1(1) itself is found in R v Her Majestys Treasury, Ex p Centro Com [1994] CLC 628 (CA). The Order in Council there went beyond Security Council Resolution 757 (1992) relating to the conflict in the former Yugoslavia, in so far as it enabled the Treasury to prohibit the making of payments from funds held in the United Kingdom even of medical supplies and foodstuffs, and the Treasury determined that it would refuse permission for payment of all supplies (even supplies already made), other than medical supplies and foodstuffs supplied from the United Kingdom. The reason was the risk that payments were being made from funds held in the United Kingdom, for supplies from other countries which were ostensibly but were not in fact medical supplies or foodstuffs, and the impracticality of eliminating this risk in relation to goods supplied from abroad. The Court of Appeal (unanimous on this point) upheld the validity of the Treasurys determination in principle, with Glidewell LJ dissenting only in relation to its retrospective application to past supplies. The court mentioned that its decision did not prevent the supply of medical supplies or foodstuffs from any country. It merely imposed a limitation on the origin of the funds which the purchasers could use to pay for such supplies. In the present case, the Order as worded imposes an indefinite freeze on the use of funds or economic resources by any person designated by the Treasury for the purposes of the Order on the basis that the Treasury have reasonable grounds for suspecting that he is or may be (a) a terrorist or (b) a person identified in Council Decision 2006/379(EC) or (c)/(d) a person owned or controlled or acting on behalf or at the direction of any person so designated. Only on the basis that the Treasury did not have reasonable grounds for suspecting this, could a person seek under article 5(4) to set aside a Treasury direction made under article 4. The courts below held that the phrase or may be was outside the scope of the power in section 1(1), as lowering the threshold too far. Mr Swift for the Treasury does not concede that this conclusion was correct (though there has been no cross appeal against it), but said frankly that the reason there was no cross appeal in respect of the deletion of the words or may be was because the Treasury did not really need to, if it had the words have reasonable grounds for suspecting. In my opinion, there is an objective limit to the extent to which section 1(1) permits the executive by Order in Council to enact any measure that appears to it expedient to enable the effective application of the core prohibition mandated by Resolution 1373 and summarised in para 225 above. A measure cannot be regarded as effectively applying that core prohibition, if it substitutes another, essentially different prohibition freezing the assets of a different and much wider group of persons on an indefinite basis. I accept that it could have been regarded as necessary or expedient to freeze the funds and economic resources of suspects on a temporary basis, in order to ensure the effectiveness of any permanent freezing order, once their terrorist activity had been shown or they had had, at the least, the opportunity of disproving it to a civil standard. I also accept that the indefinite freezing of funds and economic resources of suspects may make it probable that the group of persons whose funds, etc. are frozen will include more actual terrorists, etc. But it does so by changing the essential nature and target of the freezing order. That being the case, it is no longer possible to say that the Order is either necessary or expedient for enabling those measures [those decided by Resolution 1373] to be effectively applied. It is enabling or applying different measures. Further and in any event, since the Treasurys case involves interpreting the words necessary or expedient in section 1(1) of the United Nations Act 1946 as authorising a major inroad, on the basis of reasonable suspicion alone, into the rights of individuals to dispose of their assets and live their lives free of executive interference, the principle of legality, which I discuss in more detail below in relation to the Al Qaida Order, argues for the more limited interpretation. For these reasons, I consider that the Terrorism Order 2006 was outside the power conferred upon the Treasury under section 1(1). It was not submitted that, in these circumstances, not only the words or may be but also the words that the Treasury have reasonable grounds for suspecting in article 4(2) could be blue pencilled, so as to leave the Order valid on that changed basis. But, in any event, such a suggestion would, even if accepted, have made no difference to the appeals of A, K, M and G in respect of the Terrorism Order 2006, since their designation was based on too relaxed a test. In these circumstances, I consider that we should allow the appeal in respect of this Order, declare that the Order was ultra vires and quash it. Since A, K, M and G are all now subject to designation under the Terrorism Order 2009, which could only be quashed in separate proceedings, there is no point in staying the operation of our order quashing the Terrorism Order 2006 for any period. The alternative grounds of challenge to the Terrorism Order I add some words on the alternative grounds on which the appellants sought to challenge the Terrorism Order 2006. They were presented under the heads of certainty and proportionality, in each case in reliance on the Human Rights Convention. The prohibitions in articles 7(1) and 8(1) of the Order were said to amount to an unlawful interference with Convention rights, particularly the right to peaceful protection of possessions protected by article 1 of Protocol 1 and the right to respect for private and family life protected by article 8. The same prohibitions, in combination with the criminal sanctions provided by articles 7(3) and 8(2), are said to have been insufficiently certain to comply with article 7 of the Convention. Three particular aspects of alleged uncertainty are identified: the first, the scope of the prohibition in article 7(2)(d) in respect of any person acting on behalf or at the direction of a person referred to sub paragraph (a) or (b); the second, the scope of the words make economic resources available, directly or indirectly in article 8(1); and the third, the scope of the further words in that article to or for the benefit of a person referred to in article 7(2). The requisite standard governing certainty under article 7 was summarised by the European Court of Human Rights in Kafkaris v Cyprus (2008) 49 EHRR 877 as follows: the 141. Furthermore, implies qualitative requirements, including those of accessibility and foreseeability (see, among other authorities, Cantoni v France, judgment of 15 November 1996, Reports of Judgments and Decisions 1996 V, p 1627, para 29; Come v Belgium, cited above, para 145; and EK v Turkey (2002) 35 EHRR 1344, para 51). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence in question carries (see Achour v France (2006) 45 EHRR 9, para 41). An individual must know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable and what penalty will be imposed for the act committed and/or omission (see, among other authorities, Cantoni, cited above, para 29). Furthermore, a law may still satisfy the requirement of foreseeability where the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among other authorities, Cantoni, cited above, p 1629, para 35; and Achour, cited above, para 54). term law 142. The Court has acknowledged in its case law that however clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see, mutatis mutandis, Sunday Times No 1, cited above, p 31, para 49, and Kokkinakis, cited above, p 19, para 40). The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain (see, mutatis mutandis, Cantoni, cited above). Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see SW v United Kingdom, cited above, para 36, and Streletz, Kessler and Krenz vs Germany GC, nos 34044/96, 35532/97 and 44801/98, para 50, ECHR 2001 II). Judged by these standards, I agree with the Court of Appeals reasoning and conclusion that the relevant provisions of articles 7 and 8 were and are sufficiently certain to be valid. That difficult cases may arise is not the point. Further, both under domestic law and under the jurisprudence of the European Court of Human Rights, criminal law provisions will, in case of real doubt, be construed restrictively, in the accused's favour: see Kafkaris, para 138. Among other points, it is relevant to note that article 7(1) read with 7(2)(d) is addressing a situation where a person (A) deals with funds or economic resources belonging to, owned or held by a person (B) acting on behalf or at the direction of a terrorist or designated person (usually C, though it could be A) rather than with funds owned or held by A. In relation to make economic resources available in article 8(1), it is relevant to note that economic resources are defined to mean assets which are not funds, but can be used to obtain funds, goods or services. This would be unlikely to be the case in respect of a number of the examples canvassed in argument (supply of a cooked meal or a bed for the night, for example). The appellants were able to point to the stringent interpretation of the words for the benefit of, for which the Treasury has argued under Council Regulation (EC) 881/2002 in R(M) v HM Treasury (Note) [2008] UKHL 26; [2008] 2 All ER 1097. The interpretation advanced there by the Treasury would, if correct, preclude the payment (without Treasury licence) to the wife of a designated person of social security benefits, enabling her to expend money on domestic expenses such as I am at present also unpersuaded that the content of the Orders could be challenged on grounds of lack of proportionality, although I need express no final view about this. Combating terrorism, and the freezing of funds or resources which can be used for terrorist purposes, are undoubtedly matters of first importance. Those introducing legislative measures in this area have to make a judgment as to the nature and stringency of the measures required. The severity of impact of the freezing order provisions in the Terrorism Orders 2001 and 2006 on designated individuals in respect of whom there is only a reasonable suspicion of terrorism and on others such as members of their families is relevant when considering whether such measures could be introduced as delegated legislation under section 1(1) of the 1946 Act. But, assuming this otherwise to be permissible, designation was not automatic and the Treasury was under the Terrorism Order 2006 empowered to grant licences to make available or deal with funds or economic resources in a manner which would otherwise be prohibited. The appellants complained about the stringency with which and way in which the Treasury has in fact operated its licensing system, but this does not appear as a complaint which can affect the validity of the Orders themselves, as opposed to the propriety of the Treasurys interpretation or use of its powers under the Orders. The latter aspect is not in issue before us. The appellants in their printed case also sought in relation to the Terrorism Order 2006 to rely upon the absence of any statutory provisions for the use of closed material by way of the special advocate procedure, and for the disapplication of the statutory prohibition under section 17 of the Regulation of Investigatory Powers Act (RIPA) 2000. The Counter Terrorism Act 2008 now makes express provision covering both points (ss.67 69). The original designations under the Terrorism Order 2006 were quashed, as a result of the conclusion in the courts below that the words or may be were inadmissibly included in the Order. Fresh designations were made after the Court of Appeals decision, and have in turn been replaced by those now in existence under the Terrorism Order 2009. The procedures in the Counter Terrorism Act 2008 would apply to any challenges to these fresh designations. The points raised below regarding the absence of an express special advocate procedure and the disapplication of section 17 of RIPA are therefore academic under the Terrorism Order 2006, and I need say no more about them in that connection. The Al Qaida Order I turn to the Al Qaida Order, relevant to both G and HAY. G and HAY are persons designated by the Sanctions Committee within article 3(1)(b), and subject accordingly to the prohibitions in articles 7 and 8, of the Order. It is at the heart of both the Treasurys and Gs and HAYs cases that the application to them of such prohibitions was required by the Security Council Resolutions to which the Order was intended to give effect, and that, once their designation by the Sanctions Committee was accepted, the merits of their designation were and are a matter external to and incapable of challenge in any domestic court. The Treasury derives from this the conclusion that the making of the Order incorporating article 3(1)(b) was authorised and valid under section 1(1). G and HAY submit that, precisely because domestic law can in these circumstances offer them no effective recourse, the making of the Order was invalid. In the case of G, where the United Kingdom had sought and obtained Gs listing, it was held (at least by Wilson LJ: para 157) that effective recourse consisted in no more than a merits based judicial review of the executives response to [Gs] application that it should request or support his own request, for delisting by the Sanctions Committee. In the case of HAY, Owen J held, after reviewing the Court of Appeals reasoning, that no effective recourse existed in respect of HAY, because of the lack of any certainty that he would be delisted, despite the United Kingdoms support, in circumstances where another unidentified state had sought his listing. The appellants put their case on two distinct bases, one common law, the other based on the Human Rights Act. At common law, the submission is that section 1(1) cannot be taken to have contemplated or permitted Orders which would interfere with, or at all events violate, fundamental rights. Under the Human Rights Act, they recognise an obstacle in the reasoning in R(Quark Fishing Ltd.) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57; [2006] 1 AC 529, particularly at paras 25 and 88, per Lord Bingham and Lord Hope, and in the decision in R(Al Jedda) v Secretary of State for Defence (JUSTICE intervening) [2007] UKHL 58; [2008] AC 332. In Al Jedda the House of Lords held, in the light of article 103 of the Charter, that a power to detain authorised by Security Council Resolution 1546 and successive further Resolutions under Chapter VII prevailed over the limitations on the power to detain otherwise contained in article 5 of the Convention (although a detainees rights under article 5 were not to be infringed to any greater extent than was inherent in such detention: para 39, per Lord Bingham). G and HAY invite the Supreme Court to reconsider both these cases and to depart from them so far as necessary. As noted above (para 218), section 1(1) of the United Nations Act 1946 contemplates that Orders in Council implementing Security Council Resolutions under Chapter VII may interfere with individual persons rights to enter into contracts or to deal with or dispose of their business. The limitations imposed by the Al Qaida Order on Gs and HAYs rights to use their property and on their privacy or family life were not, as such, of a character falling outside the scope of the section 1(1) power to give effect to Security Council Resolutions. The real issue is whether section 1(1) permits the making of an Order which interferes with such rights on a basis which is immune from any right of challenge on the merits before a court or other judicial tribunal. G and HAY submit that section 1(1) does not embrace the making of an Order in Council which deprived them of any effective right of access to a court or judicial tribunal to challenge the basis upon which they had been categorised as associates of Al Qaida or the Taliban, with the limitations on their rights to use their property and on their privacy and family life that followed from that categorisation. It is not suggested that the Sanctions Committee equates with a court or judicial tribunal, though steps have been taken to respond to the General Assemblys call in September 2005 on the Security Council to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and removing them, as well as for granting humanitarian exemptions (UNGA Resolution 60/1 of 16 September 2005). The Committees procedures are set out in Guidelines first adopted on 7 November 2002 and now current in a version adopted on 9 December 2008. The Committee usually meets in closed session, and it determines what information about its proceedings or considered by it should be made public or otherwise disclosed. Its decisions are usually taken by consensus, but if none is achieved the matter may be submitted to the Security Council itself, which decides by majority. The Committee receives applications for removal of a name from the list either by states, or, through the Focal Point procedure established by Resolution 1730 (2006), from any person or entity on the list. But there is no judicial procedure enabling a person or entity affected to know and respond to the full case regarding it. The identity of the member state seeking a listing or seeking to uphold a listing may not even be known or disclosed to that person or entity. Under Resolution 1822 (2008) para 12, the member state proposing inclusion on the list identifies those parts of the detailed statement of case that may be publicly released, and about which the person affected should under para 17 be notified. The most recent Resolution 1904 (2009) adopted on 17 December 2009 reflects in a number of respects concerns expressed about the effects of the United Nations Resolutions and the Committees procedures; it reverses the onus by deciding that the statement of case shall be releasable upon request, except for the parts a Member State identifies as being confidential to the Committee, and may be used to develop the narrative summary of reasons for listing to be published on the Committees website (para 11); and it provides for an Ombudsperson (an eminent individual of high moral character, impartiality and integrity with high qualifications and experience in relevant fields, such as legal, human rights, counter terrorism and G and HAY invoke under English law the statement of principle in Lord Browne Wilkinsons speech in R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 575C D to the effect that: A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament. Lord Browne Wilkinson dissented in that case only as to whether the principle applied on its particular facts. In R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131E G, Lord Hoffmann developed the principle of legality in these terms: Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document. In Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260, 286, Viscount Simonds referred to the principle that the subjects right of recourse to Her Majestys courts for the determination of his rights as a fundamental rule and as not by any means to be whittled down. In Ex p Pierson Lord Browne Wilkinson referred with approval to R v Lord Chancellor, Ex p Witham [1998] QB 575, where the right of access to the courts was treated as a basic constitutional right, the abrogation of which was not to be taken as authorised by the general words of a statutory provision, so that the setting of court fees at a level precluding access to the court by some litigants was not authorised by a general power to prescribe fees. Applying the principles recognised in these cases, I put aside, as circular in this context, the submission made by Mr Swift for the Treasury that Gs and HAYs right of access to a court is unaffected since the only right they have under the Al Qaida Order is to challenge the fact of their listing or their identity with any listed person. That is a relevant submission once the courts adjudicative power is shown to be excluded or limited by some valid and applicable legislative provision or common law principle: Holland v Lampen Wolfe [2000] 1 WLR 1573 provides an example. But here the question is whether the Al Qaida Order (or more particularly article 3(1)(b) of that Order) is valid. That depends upon whether section 1(1) of the 1946 Act enables the executive not merely to legislate in a manner which interferes with individual property rights that is as such clearly contemplated by section 1(1) but to restrict them so directly and radically as severely to curtail personal and family life on an indefinite basis, without affording any means of judicial recourse (domestic or international) to test the underlying premise of the restriction, namely association with an organisation identified by the Security Council as a threat to international peace. In arguing for a negative answer to this question, G and HAY suggest as an analogy the reasoning and decision of the European Court of Justice in Kadi v Council of the European Union (Joined Cases C 402/05P and C 415/05P) [2009] AC 1225. That case concerned Regulation 881/2002(EC), the aim of which, since the Community is not as such a member of the United Nations, was to ensure a uniform application of the United Nations Resolutions 1267 and 1390 within the member states of the Community. The Regulation set out in Annex I the names of persons designated by the United Nations Sanctions Committee as associated with Al Qaida and the Taliban and contained provisions mirroring those of the Security Council Resolutions freezing their assets. The Court held that the European Community was an autonomous legal system, based on the rule of law and in which fundamental rights formed an Mr Swift points out that the decision in Kadi turned on the Courts view of the Community as an autonomous legal order (and not itself a member of the United Nations, although this factor does not appear explicitly in the Courts reasoning). The United Kingdom is, in contrast, a member of the United Nations, bound by its Charter, and committed in international law to giving effect to Security Council Resolutions under Chapter VII. Counsel for G and HAY, supported by Mr Fordham for Justice, point out in response that the United Kingdom takes a dualist view of international law, and that international law has no domestic effect unless and until implemented at a domestic level: J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418. The force of this submission is weakened by the consideration that the whole purpose of section 1(1) is to address the consequences of the dualist view by facilitating the implementation at domestic level of the United Kingdoms international legal obligations under Chapter VII. Nevertheless, the issue remains, whether section 1(1) covers any and every Security Council Resolution that might be passed, including even a Resolution directed at what would otherwise be regarded as basic constitutional rights under domestic law. In considering this issue, it is relevant background that the United Nations is itself an institution committed to the promotion of human rights. The preamble to the Charter reaffirms faith in fundamental human rights and article 1 includes among its purposes, in addition to maintaining international peace and security and developing friendly relations among nations: 3. To achieve international co operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction 4 To be a centre for harmonising the actions of nations in the attainment of these common ends. It is also of note that the Security Council by Resolution 1456 on 20 January 2003 adopted the following declaration on the issue of combating terrorism: 1. All States must take urgent action to prevent and suppress all active and passive support to terrorism, and in particular comply fully with all relevant resolutions of the Security Council, in particular resolutions 1373 (2001), 1390 (2002) and 1455 (2003): 6. States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law; . In its second report (S/2005/83) to the United Nations Sanctions Committee, the Analytical Support and Sanctions Monitoring Team established pursuant to Resolution 1526(2004) identified the challenges made to European Community and national measures implementing Security Council Resolution 1267 and acknowledged, as the High Level Panel before it had, that at that date: The way entities or individuals are added to the terrorist list maintained by the Council and the absence of review or appeal for those listed raise serious accountability issues and possibly conflict with fundamental rights, norms and conventions (para 53). More recently, Resolution 1822 (2008) reaffirms the need to combat by all means, in accordance with the Charter and international law, including applicable international human rights, refugee and humanitarian law. Against this background, it is open to question at an international level how far the United Nations Security Council Resolutions can have been intended either to require member states to enact domestic legislation that would violate fundamental principles of human rights under their domestic constitutions or laws or to exclude domestic review of the compatibility of such legislation with such rights. Be that as it may, the relevant question at the domestic level is how far the United Kingdom Parliament in enacting section 1(1) of the 1946 Act can have envisaged that a Security Council Resolution could or would be used as the basis for introducing a domestic measure that would conflict with such rights. The basic common law right at issue on these appeals is Gs and HAYs right to access to a domestic court or tribunal to challenge the basis for including their names in the list of persons associated with Al Qaida or the Taliban and so freezing their property with the severe personal consequences already indicated. This was also the limit of the equivalent right identified under European Community law by the Court of Justice in Kadi. There was no suggestion in Kadi that Mr Kadi was entitled to an opportunity to challenge the basic premise of Security Council Resolution 1267 and of Regulation 881/2002 (EC), viz that the Taliban (or Al Qaida) was and is a terrorist organisation. In the traditional sphere of decision making under article 41 (that is action, in the form of, say, sanctions, against a member state of the United Nations or against a non state actor, such as the Taliban or Al Qaida), a person affected by a domestic prohibition aimed at giving effect to such sanctions could not sensibly suggest that he had a fundamental right to access to a domestic court to challenge the premise of that prohibition. He could not demand access to a domestic court to challenge the proposition that the member state or non state actor was in some way a threat to international peace meriting the imposition of sanctions. Equally, a head of a state or senior minister or other person closely identifiable with (an alter ego of) a state or non state actor could, I think, find it hard to suggest that he had any basic right to challenge the legitimacy of a Security Council Resolution requiring the sanctions to extend to his movements or his dealings with property. He could of course be expected to have a right of access to a domestic court to challenge any suggestion that the prohibition applied to him (eg that he was the head of state) or his activities or that he had infringed it. But, if one takes Usama bin Laden himself, who is identified in Resolutions 1267 read with 1333 as an individual whose assets are required to be frozen and appears on this basis in the United Nations list and in article 3(1)(a) of the Terrorism Order 2006, as well as in Annex I to Regulation 881/2002 (EC), it must be very doubtful whether the European Court of Justice would have held in Kadi that he should have a right to challenge his listing. Several points can be made about this. First, the listing of Usama bin Laden was directly determined by the Security Councils legally binding decision, rather than by any listing decision of the Sanctions Committee. Second, the position of Usama bin Laden, in relation to a non state actor like Al Qaida, parallels that of a head of state in relation to sanctions against a state; while, The Security Council and Sanctions Committee are closely related. To describe the former as legislating and the latter as executing or adjudicating upon the implementation of measures determined by the former is hardly realistic. The former was delegating listing to the latter, composed of representatives of all states sitting on the former. In these circumstances, I do not think that the Al Qaida Order was outside the scope of section 1(1) merely because it gave effect to a determination made by the Sanctions Committee, rather than the Security Council. But I do consider that there is a relevant distinction between, on the one hand, measures directed at states or non state actors such as Al Qaida identified by the Security Council as threats to international peace, or at their acknowledged heads or alter egos, and, on the other hand, measures directed in entirely general terms at anyone associated with such non state actors. In the case of the Terrorism Order, it was left to domestic legal systems to determine the identity of persons active as terrorists on whom the sanctions should bite. In the case of the Al Qaida Order, the determination was undertaken by non judicial process at the international level, by which member states were to be bound without more. The words of section 1(1) are general, but for that very reason susceptible to the presumption, in the absence of express language or necessary implication to the contrary, that they were intended to be subject to the basic rights of the individual: see Ex p Simms, per Lord Hoffmann (above). In the event of the Security Council establishing under Chapter VII a rgime requiring the internment of individuals (as was held to be the case in Al Jedda), section 1(1) could hardly enable the executive by Order in Council to introduce provisions for such internment within the United Kingdom. As an extreme form of restriction of individual liberty, internment without the right to challenge its basis before any court or judicial tribunal would, if it were to be possible at all, at the least require primary legislation. Designation as an associate of a rogue state or non state organisation under Resolutions 1267, 1333 and 1390, and the consequential freezing of assets, also has radical consequences for personal and family life. It is a matter which one would expect to be subject to judicial control, before or after the designation. So here, in my view, section 1(1) was and is an inappropriate basis for the Al Qaida Order, freezing indefinitely the ordinary rights of individuals to deal with or dispose of property on the basis that they were associated with Al Qaida or the This makes it unnecessary to consider the alternative submissions developed under article 5 of the European Convention on Human Rights. The Houses previous decision in Al Jedda is about to be reviewed in proceedings brought by Mr Al Jedda before the European Court of Human Rights. I would in these circumstances decline the invitation to re consider that decision at this stage. It is also unnecessary to express any views on the fairness of the procedure available (particularly in the absence of any special provision for the use of special advocates), had it been the position that G and HAY were entitled under English law to challenge domestically the basis for their listing as associates of Al Qaida or the Taliban. Conclusion Hilary Term [2010] UKSC 5 On appeal from: [2008] EWCA Civ 1187 JUDGMENT (Appellants) Her Majestys Treasury (Respondent) v Mohammed Jabar Ahmed and others (FC) Her Majestys Treasury (Respondent) v Mohammed al Ghabra (FC) (Appellant) R (on the application of Hani El Sayed Sabaei Youssef) (Respondent) v Her Majestys Treasury (Appellant) (no. 2) before Lord Phillips, President Lord Hope, Deputy President Lord Rodger Lord Walker Lady Hale Lord Brown Lord Mance JUDGMENT GIVEN ON 4 February 2010 Heard on 28 January 2010 Appellants A, K, M and Raza Husain (Instructed by Birnberg Peirce and Partners) Appellant G Alex Bailin (Instructed by Tuckers) Respondent Jonathan Swift Andrew OConnor (Instructed by Treasury Solicitor) Respondent HAY Raza Husain (Instructed by Birnberg Peirce and Partners) LORD PHILLIPS, with whom Lord Rodger, Lord Walker, Lady Hale, Lord Brown and Lord Mance agree. 1. When judgment was given on 27 January 2010 an issue arose in respect of the order that the court proposed to make. The court has held that the TO and article 3(1)(b) of the AQO were ultra vires. This means that the restrictions imposed on individuals pursuant to these Orders have been imposed without authority and are of no effect in law. Because this has not been appreciated there has been compliance with these restrictions, not least by third parties, including banks holding funds of those purportedly affected by the Orders. Thus the Orders have, in practice, achieved the effect that the Treasury intended when making them. 2. The Treasury is anxious that this state of affairs should persist until the invalid restrictions can be replaced by restrictions that have the force of law. To this end Mr Swift has submitted that the court should suspend the operation of the orders that it proposes to make declaring the TO and article 3(1)(b) of the AQO ultra vires and quashing them, in the case of the former for a period of 8 weeks to 25 March 2010 and in the case of the latter for a period of 6 weeks to 11 March 2010. 3. This submission is a variation and extension of a limited suspension to the operation of its orders that Lord Hope had proposed that the court should make in paragraph 84 of his judgment. I had concurred in this proposal, but having considered the matter further I have concluded that it would not be appropriate to suspend any part of the courts order. 4. Mr Swift submitted that this court has power to suspend the effect of any order that it makes. Counsel for the appellants conceded that this was correct and that concession was rightly made. The problem with a suspension in this case is, however, that the courts order, whenever it is made, will not alter the position in law. It will declare what that position is. It is true that it will also quash the TO and part of the AQO, but these are provisions that are ultra vires and of no effect in law. The object of quashing them is to make it quite plain that this is the case. 5. The effect of suspending the operation of the order of the court would be, or might be, to give the opposite impression. It would suggest that, during the period of suspension of the quashing orders, the provisions to be quashed would remain in force. Mr Swift acknowledged that it might give this impression. Indeed, he made it plain that this was the object of seeking the suspension. 6. Mr Swifts submissions are described in the dissenting judgment of Lord Hope. He did not suggest that the court could or should give temporary validity to the unlawful provisions. He did not suggest that the court could or should purport prospectively to overrule them. He did not suggest that suspension was necessary in order to permit action by the executive which might otherwise appear to be flouting the decision of the court, as it was in Koo Sze Yiu v Chief Executive of the Hong Kong Special Administrative Region, Final Appeal Nos 12 & 13 of 2006 (Civil) 12 July 2006. He did not suggest that the suspension would have any effect in law. 7. Mr Swift urged the court to suspend the operation of its judgment because of the effect that the suspension would have on the conduct of third parties. He submitted that the banks, in particular, would be unlikely to release frozen funds while the courts orders remained suspended. I comment that if suspension were to have this effect this would only be because the third parties wrongly believed that it affected their legal rights and obligations. 8. The ends sought by Mr Swift might well be thought desirable, but I do not consider that they justify the means that he proposes. This court should not lend itself to a procedure that is designed to obfuscate the effect of its judgment. Accordingly, I would not suspend the operation of any part of the courts order. That order should provide as follows: THE COURT ORDERS that (1) the appeals of Mohammed Jabar Ahmed, Mohammed Azmir Khan and Michael Marteen and of Mohammed al Ghabra as regards the Terrorism (United Nations Measures) Order 2006 (S.I. 2006/2657) be allowed it be declared that the Terrorism (United Nations Measures) (2) Order 2006 is ultra vires and the Order quashed the appeal of Mohammed al Ghabra as regards the Al Qaida (3) and Taliban (United Nations Measures) Order 2006 (S.I. 2006/2952) be allowed to the extent that it be declared that article 3(1)(b) of the Order is ultra vires and the Order quashed (4) the appeal of HM Treasury be allowed to the extent only of setting aside the declaration made by Mr Justice Owen on 10 July 2009 in the Administrative Court of the Queens Bench Division of the High Court (5) the respondent pay, or cause to be paid, to the appellants, Mohammed Jabar Ahmed, Mohammed Azmir Khan and Michael Marteen, their costs in the House of Lords, the Supreme Court, the Court of Appeal and the Administrative Court, to be subject to detailed assessment if not agreed (6) the parties in the appeal of R (on the application of Hani El Sayed Sabaei Youssef) vs HM Treasury and in the appeal of HM Treasury vs Mohammed al Ghabra make written submissions on costs in the House of Lords, the Supreme Court, the Court of Appeal and the Administrative Court by 18 February 2010 (7) there be a detailed assessment of the publicly funded costs in all three appeals. LORD HOPE, dissenting 9. I have the greatest possible respect for the views of my colleagues and for the reasons which Lord Phillips has set out so carefully in his judgment. I regret however that I am unable to agree with what he proposes. As the issue is important, was not the subject of any decision by the House of Lords and has not previously been considered by this Court, I should like to explain in my own words why I am of that opinion. 10. In para 84 of my judgment which was given on 27 January 2010 I said that I would suspend the operation of the orders that I would make as regards article 3(1)(b) of the Al Qaida and Taliban (United Nations Measures) Order 2006 (SI 2006/2952) (the AQO) in the case of Hani El Sayed Sabaei Youssef (referred to previously as HAY in these proceedings) for a period of one month. This was to enable the Treasury, if so minded, to take the steps that were needed to give effect to the obligation by which the United Kingdom is bound by article 25 of the Charter of the United Nations pending the proceedings that are currently being taken by the United Kingdom for him to be de listed by the United Nations Security Council 1267 Committee. Lord Phillips said in para 156 that, for the reasons that I gave, he agreed that the operation of the order in HAYs case should be suspended for one month from the date of judgment. Lord Mance said in para 249 that the declaration that he would make that article 3(1)(b) of the AQO was invalid generally should be subject to a stay of one month on its operation on respect of HAY. There was no dissent from this proposal, although Lord Brown did not agree with the view of the majority that article 3(1)(b) of the AQO was ultra vires. 11. In accordance with Supreme Court Practice Direction 6.8.3 the parties were provided in advance with a copy of the Courts judgment and a draft of the orders that the Court proposed to make. Written submissions on behalf of the Treasury, Mohammed al Ghabra (referred to previously as G) and HAY were shown to the Court before it sat to deliver the judgment. Counsel for HAY did not object to the proposal that the operation of the Courts order in his case should be suspended for a period of one month. Mr Husain adhered to this position on HAYs behalf when the proposed orders were discussed in more detail the day after judgment was given. He informed the Court that his position was one of neutrality. He then said that, on instructions, he agreed with Mr Swift for the Treasury that the judgment was not self executing and that the Court had power to suspend the operation of the orders that it proposed to make in his case. He said that HAY welcomed the opportunity that the Courts judgment gave for the orders that the Treasury proposed to make to receive proper Parliamentary scrutiny, and that he would prefer a stay to a resort to emergency legislation without such scrutiny to cover the period until the steps that were necessary to achieve this could be taken. His attitude may well be: better the devil you know than the devil you dont. But, whatever his reasons, it is clear that HAYs position is that he does not oppose the order that I was proposing. Had the matter rested there, I would have been satisfied that the order that I was proposing should be made. 12. But the matter does not rest there. Mr Swift for the Treasury asks the Court to suspend the operation of the order for the quashing of the Terrorism (United Nations Measures) Order 2006 (SI 2006/2657) (the TO 2006) for a period of 8 weeks to 25 March 2010 to enable the Treasury to address the effects of the Courts judgment in relation to that Order by introducing primary legislation for consideration by Parliament. He also asks the Court to suspend the operation of the orders that it proposes to make in relation to the AQO for a period of 6 weeks to 11 March 2010, not the 4 weeks that I had suggested, and that it should extend this suspension to the order that quashed the AQO generally, not just in the case of HAY as I had suggested. This was to enable the Treasury to made an order under section 2 of the European Communities Act 1972 containing enforcement measures in support of Council Regulation (EC) No 881/2002 implementing UN resolutions under Chapter VII of the Charter of the United Nations for the freezing of the funds and economic resources of persons associated with Osama bin Laden, Al Qaeda or the Taliban. In each case the suspension is sought for the purpose of enabling steps to be taken to ensure that the United Kingdom remains in compliance with its international obligations under the UN Charter. These applications have made it necessary for the Court to look more closely at the question whether it has power to make orders of that kind and, if so, whether it should do so in this case. 13. Before considering these issues I should mention some other matters by way of background. The Court was told that at present 13 persons remain designated under the TO 2006. There are also 25 persons or entities who remain designated under the Terrorism Order 2001 and 21 persons who have been designated under the Terrorism Order 2009. As I indicated in para 84 of my judgment, I had assumed that the existence of the 2009 Order under which A, K, M and G were re designated had removed the need for a short period to be given for the Treasury to address the consequences of the Courts judgment in regard to the TO 2006. On the facts that are now before the Court the web created by these Orders is more far reaching than I had imagined. As for the AQO, the court was told that 18 persons including G and HAY, and 4 other entities present in the United Kingdom who are named on the Consolidated List, have been designated by the 1267 Committee. The United Kingdom will be in breach of its obligations under UN Security Council Resolution 1904/ 2009, which replaced Resolution 1822/2008 with effect from 17 December 2009, and under EC Regulation 881/2002 if effect is not given to these designations in domestic law. 14. Having regard to these obligations, in a letter dated 9 October 2009 copies of which were sent to the other parties solicitors, the Treasury sought a widening of the opportunity that is provided by Practice Direction 6.8.3, which enables judgments to be released to counsel, solicitors and in house legal advisers six days before the delivery of the judgment. Permission was sought for the judgment in this case to be released also to 38 named individuals in relevant government departments and an unspecified number in the Security Service, to allow for contingency planning to safeguard national security should the Treasury be unsuccessful in the appeals. As this was an open letter, the reasons for this request were not fully explained. But the point was made that operational concerns might arise in the form of an increased risk of previously frozen funds being withdrawn from unfrozen bank accounts and diverted for terrorist purposes or being used as a conduit to this end. It was made clear at the same time that the Treasury would, for operational reasons, strongly oppose provision of the embargoed judgment to A, K, M, G and HAY for any period additional to the 24 hours provided for in the Practice Direction. The Court was not willing to accede to this request. But the reasons why it was made have not gone away. 15. I was aware of the Treasurys request when I proposed in my judgment that the order quashing article 3(1)(b) of the AQO should be suspended for one month in HAYs case. It is worth noting also that in Kadi v Council of the European Union (Joined Cases C 402/05P and C 415/05P) [2009] AC 1225, para 373, the European Court of Justice recognised that the immediate effect of its decision would be capable of seriously and irreversibly prejudicing the effectiveness of the restrictive measures imposed by Regulation 881/2002 which the Community was required to implement because, for example, steps might be taken to prevent any further measures freezing funds from being applied to them. So it delayed effect being given to its judgment by three months. The risk of serious and perhaps irreversible damage to efforts to defeat international terrorism in our case too must weigh heavily with this Court in deciding what it should do to meet the concerns that have been expressed by the Treasury. This is not simply a matter of meeting international obligations. The national interest in resisting threats to our own security is just as important. The power to suspend 16. Mr Swift submitted that it was clear, as a matter of simple vires, that the court had power to make the orders he seeks. Rule 29 of the Supreme Court Rules 2009 (SI 2009/1603) states that the Court has all the powers of the court below, and section 40(5) of the Constitutional Reform Act 2005 gives the Court power to determine any question necessary to be determined for the purposes of doing justice in an appeal. CPR 40.7(1) provides: A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify. This rule reflects the well established principle that it is the order that the court makes that disposes of the proceedings and provides the basis for an appeal, not the issuing of the reasons for it in the form of the courts judgment: Lake v Lake [1955] P 336; Re Mathew [2001] BPIR 531 per Lawrence Collins J at 532A G. Examples of the application of that principle can be found in this case, as Mr Swift pointed out. They can be seen in the orders that Collins J made suspending the effect of his judgment pending appeal to the Court of Appeal and in the orders made by the Court of Appeal pending applications for leave to appeal to the House of Lords. The situation in which the Supreme Court finds itself is different, as there is no further right of appeal. This has a bearing on the question whether the orders that it proposes to make should be suspended. But I do not think that the Court lacks the power to specify a later date for the taking effect of the orders it proposes to make should it consider that it should do so. 17. There was some discussion in the course of the hearing of the question whether the Court should declare that the orders that it proposed to make should have effect prospectively only. The usual rule, of course, is that an order quashing an order or other measure as ultra vires operates retrospectively as well as prospectively. The question whether there was power to place temporal limitations on the effect of its judgments was considered by the House of Lords in In re Spectrum Plus Ltd [2005] UKHL 41, [2005] 2 AC 680. The focus in that case was on the prospective overruling of decisions on points of law. The House held that it had jurisdiction to make such an order, although it declined to do so on the facts of that case. In A Time for Everything under the Law: Some Reflections on Retrospectivity (2005) 121 LQR 57, 77 Lord Rodger of Earlsferry acknowledged that prospective overruling might be particularly useful in cases involving the application of Convention rights. 18. The situation in this case is quite different. For the reasons that the Court has given, the TO 2006 and article 3(1)(b) of the AQO were ultra vires and void from the moment that the Orders were made. It would be entirely contrary to the reasoning on which that conclusion is based for the ruling to be applied only to the future and not to the past. But I do not think that it is necessary to explore the point further because Mr Swift, very properly, made it clear that the Treasury were not seeking prospective overruling in this case. He accepted that the Courts orders, when made, will apply retroactively as usual. What he is seeking is simply a delay in the date as from which that consequence will take effect. That being so, I would hold that the Court has power to make the orders that he seeks. I do not think that there is any difference of view between us on that point. The more difficult question is whether it should do so. The view of the majority, as Lord Phillips has explained, is that this would not be appropriate. Should the power be exercised? 19. The first question that needs to be considered is the effect, if any, that suspension would have in practice. It would be wrong to regard the suspension as giving any kind of temporary validity to the provisions that are to be quashed. As Mr Justice Bokhary PJ said in Koo Sze Yiu v Chief Executive of the Hong Kong Special Administrative Region, Final Appeal Nos 12 & 13 of 2006 (Civil), 12 July 2006, para 63, there is no shield from legal liability for functioning pursuant to what has been declared to be ultra vires during the period of the suspension. Mr Swift did not seek to argue the contrary. He made it clear that the Treasury accepted that suspension would do no more than delay the taking effect of the Courts orders, which would then operate retrospectively as from the specified date. It would have no effect whatever on remedies for what had happened in the past or during the period of the suspension. 20. It was suggested in the course of the hearing that this was an absurd result. After all, now that the Courts judgment has been made public everyone knows what the Court proposes to do. The prohibitions that the Orders have imposed will remain in place, but to use them as a fetter on the designated persons access to funds would be contrary to what is now known to be the law. Any person who contravenes the prohibition in article 7(1) of the TO 2006 in the meantime would on paper be committing a criminal offence. But that would be a pointless restriction. Mr Swifts answer was that, while technically that was so, it would be obvious by the time any prosecutions were brought that the Order was ultra vires. So any prosecutions that might be brought for what was done during this period would not be proceeded with. I agree that to prosecute would plainly be a waste of time and public money. So, to the extent that it may be thought to prolong the effect of the criminal sanctions, it can be seen that nothing would be gained by a suspension. 21. Mr Swift insisted that a suspension would nevertheless have practical effect. This was because it would not be ignored by the banks and other institutions, which would continue to give effect to the prohibitions and obligations in the TO and the AQO until they were directed otherwise by an order of the Court. That, he indicated, is how these institutions conduct their affairs in practice and what they could be expected to do in this case. Judging by the grounds that the Treasury gave for seeking a relaxation on the embargo under the Practice Direction, this is a matter of far greater significance to combating international terrorism than breaches of the prohibitions by individuals such as the friends and family members of those who have been designated. For obvious reasons the Court has not been given any detailed information about the whereabouts or amounts of the funds that may be in the hands of the financial institutions, of the damage that would be caused to the national interest if the institutions were to feel able to release them or disregard the conditions that may have been attached to any licences that may have been issued to them without notifying the Treasury or whether or not that damage would be irreparable. Nor has it been given any indication by the financial institutions themselves, who have not been named, that they would not release any funds during the period of the suspension. But I think that it would be wrong for the Court not to accept Mr Swifts assurance that in this respect suspension would achieve something that would be of real practical value. 22. Although the situation now is different from that which the courts below faced when they suspended the effect of their orders, it is comparable in this respect. We have recognised that the breaches of fundamental law which render the Orders in question ultra vires are capable of being remedied. In their case there was the possibility of their decisions being reversed on appeal. In our case there is the possibility indeed more than that, the likelihood that the remedial measures will be approved by Parliament. If that were not so, there would be no grounds for any delay in making the orders that are needed to give effect to the courts judgment. As it is, it would seem that there is everything to be said for not letting the cat whose dimensions and capacity to inflict damage we can only guess at out of the bag in the meantime. I think that the national interest, as well as respect for our international obligations, requires the Court to do what it can to see that this does not happen. 23. There was also some discussion at the hearing of measures that the Treasury might itself take to achieve the same result. In para 176 of the judgment Lord Rodger said that in his opinion section 1(1) of the United Nations Act 1946 would authorise Her Majesty to make an Order in Council, even with the far reaching effects that are to be seen in the current Orders, provided it only had a limited life span and was replaced as soon as practically possible by equivalent legislation passed by Parliament. Mr Swift said that the Treasury had given some thought to this suggestion but had concluded, after studying the judgment as a whole, that it would not be appropriate for it to adopt it. Emergency legislation by Parliament is also in theory not impossible. But that would mean achieving the desired result by two Acts of Parliament in quick succession, not one. It was suggested that this would be an absurd way to proceed, but it may be the only practicable alternative. Conclusion 24. There is an obvious attraction in putting the orders that the Court proposes to make into effect as soon as possible. There is perhaps a risk, as Lord Phillips has said, that suspension would tend to obfuscate the effect of the Courts judgment. But I would not myself regard that as a decisive factor in deciding where the balance of advantage lies. The judgment itself has been promulgated, and the Treasury accepts that suspension would have no effect whatever on its effect once the period of suspension has been lifted. Furthermore, the steps that the Treasury proposes to take to comply with the international obligations are now known. So it is possible to assess the advantages of a suspension as against the disadvantages. The periods proposed are short indeed they have been shortening by the day as time has gone by since the judgment was issued. In view of the way the financial institutions can be expected to respond to a suspension, it cannot be said that this would be of no practical value. On the contrary, not to suspend could result in damage to the effectiveness of the measures that the international obligations require which might well be, as the ECJ indicated in Kadi, serious and irreversible. Bearing in mind too, as Mr Swift concedes, that suspension would have no effect whatsoever on remedies for what had happened in the past or during the period of the suspension, I consider that the balance lies in favour of suspension in the terms requested by the Treasury. 25. I would therefore have directed that the order quashing the TO 2006 should not take effect until 25 March 2010 and that the orders quashing article 3(1)(b) of the AQO should not take effect until 11 March 2010. I would therefore dispose of the appeals and make orders in respect of the Terrorism Order 2006 as indicated in paragraph 231 and the Al Qaida Order as indicated in paragraph 249 above.	In response to various incidents of international terrorism, including the attacks on 9/11, the UN Security Council (the UNSC) passed resolutions (UNSCRs) requiring member states to take steps to freeze the assets of: (i) Usama Bin Laden, the Taliban and their associates; and (ii) those involved in international terrorism. The UNSC established a list of persons whose assets member states were obliged to freeze (the Consolidated List). Those included in the Consolidated List are not informed of the basis for their inclusion or afforded the right to challenge the decision before an independent and impartial judge. The Appeals concern the legality of the Terrorism (United Nations Measures) Order 2006 (the TO) and the Al Qaida and Taliban (United Nations Measures) Order 2006 (the AQO). The TO and AQO were made by Her Majestys Treasury (the Treasury) pursuant to s.1 of the United Nations Act 1946 (the 1946 Act), which authorises the making of such Orders in Council as are necessary or expedient to give effect to UNSCRs. The TO goes beyond the requirements imposed by the relevant UNSCRs by providing that a persons assets can be frozen on the basis of a reasonable suspicion. The AQO transposes the UNSCRs concerning the Taliban into domestic law. Crucially, if a person is named in the Consolidated List, the AQO provides that his assets in the UK will automatically be frozen. A person whose name is on the list has no right to challenge his listing before a court. Freezing measures under the TO and AQO, which are not subject to any time limit, place very severe limitations on the ability of persons who have been designated to deal with their property. They have an extremely grave effect upon their freedom of movement, their liberty and private and family lives, and those of their families and their associates. A, K and M were the subject of asset freezes under the TO. The effect on them and their families has been severe. G and HAY are named in the Consolidated List and so were both automatically designated as subject to asset freezing by the AQO. G was included in the Consolidated List at the request of the UK, which continues to support his listing. HAY was added at the behest of an undisclosed UN member state. The UK opposes his inclusion in the Consolidated List and is engaged, to date unsuccessfully, in efforts to de list him. The issue before the Court was whether s.1(1) of the 1946 Act gave the Treasury the power to make the TO and AQO, having regard to: (i) the gravity of the interference with fundamental rights which the asset freezes bring about; (ii) the fact that the TO allowed asset freezing on grounds of reasonable suspicion; and (iii) the fact that the AQO entirely deprived those named in the Consolidated List of any right of access to a court. Following the hearing in the case, the Treasury issued new designations in respect of A, K, M and G under the authority of the Terrorism Order (United Nations Measures) 2009 (the TO 2009). The terms of the TO 2009 are substantially similar to those of the TO. The Supreme Court has unanimously held that the TO should be quashed as ultra vires s.1(1) of the 1946 Act. It also held by a majority of six to one (Lord Brown dissenting) that Article 3(1)(b) of the AQO must also be quashed as ultra vires. It was noted that if the designations in respect of A, K, M and G imposed subsequent to the hearing pursuant to the TO 2009 had been before the Supreme Court these too would have been quashed. General Remarks Lord Hope (with the agreement of Lord Walker and Lady Hale) giving the leading judgment, noted the far reaching and serious effect of the asset freezing measures on the individuals concerned and their families [paras [4], [38], [39] and [60]]. s.1(1) of the 1946 Act allows Orders in Council to be made without even the most basic Parliamentary scrutiny [paras [48] [50]]. In the absence of Parliamentary control the Court must carefully examine such drastic measures [paras [5], [6] and [53]]. Australia and New Zealand gave effect to their UNSCR obligations by primary legislation that was subjected to the scrutiny and approval of their respective legislatures. Also, the Anti terrorism, Crime and Security Act 2001 enacted an asset freezing regime that is significantly less onerous and attended by greater safeguards than the system established by the TO and AQO [paras [51] [54]]. The legislative history of the 1946 Act demonstrates that Parliament did not intend that the 1946 Act should be used to introduce coercive measures which interfere with UK citizens fundamental rights [paras [16] and [44]]. The principle of legality requires that general or ambiguous statutory words should not be interpreted in a manner that infringes fundamental rights [paras [45] and [46]], and s.1(1) of the 1946 Act must be interpreted in this light. Orders made under s.1(1) would therefore only be legitimate when the interference with fundamental rights to which they give rise is no greater than that which the underlying UNSCR requires [para [47]]. The TO The relevant UNSCRs did not address the standard of proof for imposing asset freezes. The reasonable suspicion standard in the TO must be assessed in light of the entire system that the TO establishes, particularly the seriousness of the interferences with fundamental rights that it effects [paras [58] [60]]. By introducing a test of reasonable suspicion the Treasury exceeded the power conferred by s.1(1) of the 1946 Act [para [61]]. The AQO Lord Hope noted that the effect of the AQO, in this case, did not rely upon a reasonable suspicion criterion and that in contrast to the TO the AQO does not go beyond the relevant UNSCRs [para [64]]. But there are no means whereby G or HAY can challenge the decision to list them as terrorists, with the consequence that their assets are frozen automatically, before an independent and impartial judge [paras [77] [80]]. Article 3(1)(b) of the AQO must therefore be quashed [paras [81] and [82]]. The Status of the Designations Against A, K, M and G pursuant to the TO 2009 The principal criticisms directed against the TO apply equally to the TO 2009 [paras [28]]. Had the TO 2009 been before the Court it would have been quashed [para [83]]. Other Comments Nobody should form the impression that in quashing the TO and the operative provision of the AQO the Court displaces the will of Parliament. On the contrary, the Courts judgment vindicates the primacy of Parliament, as opposed to the Executive, in determining in what circumstances fundamental rights may legitimately be restricted [para [157] per Lord Phillips]. The features of the AQO that are characterised as objectionable are the ineluctable consequence of giving effect to the relevant UNSCRs the same apparent deficiency would apply to primary legislation. Accordingly, the AQO should be upheld [paras [203] [204] per Lord Brown (dissenting)].
This is another appeal which concerns the doctrine against restraint of trade. If a covenant falls within what I will simply call the doctrine, it is unenforceable against the covenantor unless it is reasonable. Last year, in Egon Zehnder Ltd v Tillman [2019] UKSC 32, [2020] AC 154, the court was required to address aspects of the doctrine. In para 29 it considered what it called the outer reaches of the doctrine, by reference in particular to the decision of the House of Lords in Esso Petroleum Co Ltd v Harpers Garage (Stourport) Ltd [1968] AC 269. But, as it explained in para 30, there was no need for any closer study of those outer reaches in the light of the facts of that case. The present appeal permits no such escape. A developer of a shopping centre leases part of it to a well known retailer. He covenants with the retailer that he will not allow any substantial shop to be built on the rest of the centre in competition with the retailer. In due course he assigns his interest in the centre to a company. The company considers that the centre is ailing and that the covenant is stunting its ability to revive it. In these proceedings brought against the retailer, the company seeks a declaration that the covenant by which it is currently bound engages the doctrine; that it is unreasonable; and that it is therefore unenforceable. To date the courts have addressed only the first question raised by the companys claim: does the covenant engage the doctrine? Yes, ruled the Court of Appeal in Northern Ireland (Stephens LJ, who delivered the judgment of the court, Sir Ronald Weatherup and Sir Richard McLaughlin) on 9 February 2018, [2018] NICA 7, when proceeding to remit the case to the High Court to consider whether the covenant was reasonable. So it is the retailer which now appeals to this court against that ruling. Mr Shortall is a property developer. In 1979, in his own name, he bought land in Springtown, Londonderry, which, for planning purposes, had been zoned for retail use. At that time Londonderry was, in his own words, an economic and political wasteland. The site comprised about five and a half acres, defined, for land registry purposes, as Folio 25992 County Londonderry. In 1980 he obtained planning permission to develop the site so as to yield 32,000 square feet of gross retail space. Mr Shortall sought an anchor tenant, a substantial and prestigious retail company which would lease a significant part of the site and whose presence would persuade other retailers to lease other parts of it, thus making the proposed centre as attractive as possible to shoppers. To this end, he approached Dunnes Stores (Dunnes), which comprised a group of companies based in Dublin and which operated a number of substantial retail outlets of high repute throughout Ireland. Early in 1980 Mr Ben Dunne met Mr Shortall at the site and expressed reservations about the economic viability of establishing a retail unit there. But at a further meeting in about May 1980 they orally agreed outline terms. These were that Mr Shortall would grant Dunnes a long lease of part of the site in consideration of its payment to him of a premium of 50,000 and a nominal ground rent. But Mr Dunne required Mr Shortall to promise not to cause or permit the establishment on any other part of the site of a unit measuring more than about 3,000 square feet for the sale of food or textiles. Mr Shortall agreed. In his evidence he said: I had little or no choice but to grab the offer made by Mr Dunne with both hands, as it was the only deal in town. In November 1980 Mr Shortall and Dunnes signed Heads of Agreement. Dunnes decided that its Belfast company, Dunnes Stores (Bangor) Ltd, which is the appellant in this appeal, should sign the Heads and take the proposed lease. The main terms recorded in the Heads were that Dunnes should take a lease of the part of the site there delineated; that it should bear the cost of building its retail unit there; that Mr Shortall should construct at least six units on the rest of the site; and that Dunnes should contribute one third of the cost of constructing the roads, footpaths and car park on the site. Nothing turns on the omission from the Heads of Mr Shortalls promise not to establish on the rest of the site any substantial unit in competition with Dunnes. On 2 February 1981 the proposed lease was duly executed. Attached to it was a map of the land in Folio 25992, on which the area subject to the lease was edged in red. The area was said to comprise just in excess of an acre so the rest of the site will have comprised about four and a half acres. The lease was for 999 years in consideration of a premium of 50,000 (which Dunnes paid) and of an annual ground rent of 100. It was Mr Shortall, by his solicitors, who had proposed a term of that length. Upon the area subject to the lease Dunnes covenanted to erect a retail unit measuring at least 15,000 square feet at ground floor level within two years of the grant of detailed planning permission. As provided in the Heads of Agreement, it also covenanted to contribute one third of the cost of the construction of the common areas, in particular of the car park. In the lease, as also foreshadowed in the Heads of Agreement, Mr Shortall covenanted to construct at least six shop units in an enclosed mall in a specified location adjoining the area subject to the lease. He also entered into the restrictive covenant which is the subject of these proceedings. The covenant, as I will call it, is in the following terms: That any development on the Lessors lands comprised in the Lessors folio and on his other lands adjoining the premises shall not contain a unit in size measuring three thousand square feet or more for the purpose of trading in textiles Provisions or groceries in one or more units. The reference to Mr Shortalls other lands adjoining the premises is a reference to a small, rectangular piece of land which adjoins the western end of the area leased to Dunnes but which for some reason was not comprised in Folio 25992. In what follows it can be ignored. Mr Shortall also covenanted that, were he to assign any interest in any part of the land in Folio 25992, he would ensure that the assignee would, for the benefit of Dunnes, covenant to observe all his covenants in the lease. Dunnes duly constructed its store. Acting through one of his companies, Mr Shortall duly constructed the shop units in the mall; and he found tenants for them. He also constructed the car park, to the cost of which Dunnes duly contributed. In October 1982 the shopping centre opened. At first it was a great success. Peninsula Securities Ltd (Peninsula), the respondent to this appeal, is another of Mr Shortalls companies. Of the 100 issued shares in it, he holds 99 and his wife holds the other. He is also its managing director. It is a property holding company. By transfer registered on 27 April 1983, Mr Shortall assigned to Peninsula his freehold interest in all the land in Folio 25992, thus including not only his reversionary interest in the land leased to Dunnes but also his interest in all the other land in the folio which was subject to the covenant. The success of the shopping centre at Springtown has declined. The reasons for its decline are disputed and, at any rate at this stage, are irrelevant. Peninsula blames the covenant for causing the decline and for stunting its ability to reverse it. Dunnes disagrees. Proceedings In 2010 Peninsula made a reference to the Lands Tribunal pursuant to the Property (Northern Ireland) Order 1978 (SI 1978/459) (the 1978 Order). It asked the tribunal to declare under article 4 of the order that the covenant represented an impediment to enjoyment of its land and, in that (so Peninsula said) the impediment was unreasonable, to order under article 5 that it should be modified or extinguished. The suggested modification was to substitute for the reference in the covenant to 3,000 square feet a reference to 55,000 square feet. But Peninsula also included in its reference to the tribunal a claim for a declaration that the covenant was unenforceable at common law as being in unreasonable restraint of trade. In due course Peninsula accepted that the tribunal lacked jurisdiction to determine its common law claim. So instead it made the claim in proceedings which it brought in the Queens Bench Division of the High Court of Justice in Northern Ireland. By successive amendments to its statement of claim, it added two further claims to the court proceedings. The first was a claim that the covenant was void under section 2 of the Competition Act 1998. On receipt of Dunnes expert evidence in answer, Peninsula withdrew that claim and substituted its claim, already made to the Lands Tribunal, under the 1978 Order, which accordingly had to be recast so as to fall within article 6 of it. But Peninsula there made clear that it relied on its claim under the 1978 Order only in the event of the failure of its common law claim. By its amended Defence, Dunnes disputed both claims and counterclaimed that, in the event of any modification or extinguishment of the covenant under the 1978 Order, it should be awarded compensation. The proceedings in the Lands Tribunal have therefore come to an end. It was therefore agreed that Peninsulas claim at common law should be determined in advance of its claim under the 1978 Order. In relation to the common law claim, it seems that it was McBride J herself, at first instance ([2017] NIQB 59), who raised the question whether, in particular in relation to an assignee such as Peninsula, the covenant engaged the doctrine at all. Such was the only question which she proceeded to address and which therefore the Court of Appeal addressed. No court has yet addressed the question whether, if the covenant engages the doctrine, the restraint is unreasonable and is therefore unenforceable by Dunnes against Peninsula. It follows that, were it to be determined on this appeal either that the covenant did not engage the doctrine even at the time when Mr Shortall entered into it or that, although it initially engaged the doctrine, it ceased to engage it when Peninsula became subject to it, the High Court would proceed to hear the claim and counterclaim under the 1978 Order. In her judgment dated 25 May 2017, [2017] NIQB 59, McBride J sought faithfully to apply the decision in the Esso case, cited (as there will be no need to repeat) in para 1 above. She correctly took the view that, in the opinion of a majority in the appellate committee, a covenant restrictive of the use of land engaged the doctrine only if the covenantor had, by entry into it, surrendered a pre existing freedom to use the land as he wished. She reasoned that, from the date in 1979 of his purchase of the land in the folio until the date in 1981 of the lease to Dunnes, Mr Shortall had, subject only to planning permission, been free to build retail units of any size on the land and therefore that he had, by entry into the covenant, surrendered a pre existing freedom. She therefore concluded that, while the land had been held by Mr Shortall, the covenant had engaged the doctrine. She noted however that Peninsula had become bound by the covenant at the same time as it had begun to hold the land and she therefore concluded that it had not, by subjecting itself to the covenant, surrendered a pre existing freedom. She therefore held that from then onwards the covenant had no longer engaged the doctrine. On Peninsulas appeal, the Court of Appeal, at para 56, agreed with McBride J that Mr Shortall had surrendered a pre existing freedom and therefore, in accordance with the decision in the Esso case, that, while the land had been held by him, the covenant had engaged the doctrine. But at para 45 it disagreed with her conclusion that, upon the assignment of the land to Peninsula, the covenant had ceased to engage the doctrine. It conceded at para 43 that a literal application of the decision in the Esso case would yield her conclusion. But it questioned why in logic the doctrine should at the point of assignment no longer be engaged. It asked at para 44 whether, and if so why, it would no longer be engaged if, instead of assigning the covenant, the original covenantor died or became bankrupt. The court had reminded itself at para 37 that the doctrine was based on public policy; and, observing at para 45 that public policy was a surer foundation for inquiry into the continuing engagement of the doctrine following the assignment of the covenant to Peninsula, it held that there was no reason of public policy why it should not have continued to be engaged. In this court our duty is to look more closely at the decision in the Esso case in the light of the questions of logic and public policy on which the Court of Appeal touched. That court applied its questions only to the later part of the history: why, in terms of logic and public policy, should Peninsula not have continued to enjoy the benefit of the doctrine just because it had surrendered no pre existing freedom? But we are required also to ask: why, in terms of logic and public policy, should Mr Shortall have enjoyed the benefit of the doctrine in the first place just because he had surrendered a pre existing freedom? So we confront an awkward question: is the surrender of a pre existing freedom an acceptable criterion for engagement of the doctrine? At the hearing before us, no doubt fortified by early judicial encouragement, Mr Humphreys QC on behalf of Dunnes presented a preliminary argument. It was founded on the fact that Mr Shortall was and is a property developer and that Peninsula was and is a property holding company. Neither of them was or is a trader. How then, ran the argument, could any restraint on them amount to a restraint of trade? On analysis, however, the argument appears to be too narrow. In para 64 below Lord Carnwath argues persuasively that, notwithstanding its conventional description, the doctrine extends to restraints not only of trade but also, more generally, of business, thus including that of a developer. In any event, however, the covenant does restrain trade because it restrains Peninsula (and still also Mr Shortall under the law of contract) from causing or permitting a trade in specified goods in a retail unit of a specified size on the site. In, for example, The British Motor Trade Association v Gray 1951 SC 586 the Inner House of the Court of Session addressed a covenant which the petitioning association required its trade members to extract from all purchasers of new cars. Following the Second World War there was a shortage of new and nearly new cars; and speculators were operating a black market in them. In an attempt by the trade association to combat it, the requisite covenant obliged ordinary members of the public who purchased a new car not to sell it for the first two years. But ordinary members of the public were not traders in cars. So one question was whether their covenant was in restraint of trade. Lord Russell at p 602 expressed the opinion, with which Lord Keith at p 604 was inclined to agree, that the covenant did restrain the trade of dealers in second hand cars; but, forming the majority, they proceeded to hold that it was in any event reasonable. Petrofina The prelude to the Esso case was the decision of the Court of Appeal in Petrofina (Gt Britain) Ltd v Martin [1966] Ch 146. The owners of a petrol filling station in Chesterfield had entered into a covenant to buy from Petrofina all the petrol to be sold at the station (a solus agreement) and to require any purchaser of the site to covenant likewise. They agreed to sell the site to Mr Martin, who proposed to form a company to own it and to operate the filling station. He entered into an identical covenant with Petrofina and began to operate the station. Within less than two months, however, he had begun to sell petrol which instead he had bought from Esso. Once his company was incorporated, he agreed to sell the site to it. Petrofinas claim for an injunction against Mr Martin and his company failed on the ground that the covenant was in restraint of trade and that Petrofina had failed to establish that it was reasonable. It is not easy to identify within the three judgments a common basis for the courts conclusion that Mr Martins covenant engaged the doctrine. But the law reporter was probably correct to suggest in the headnote that its basis was that the covenant restricted the ability to trade on land in which Petrofina had no interest by way of mortgage, lease or sale. That such was the basis of the decision seems to follow in particular from passages in the judgment of Harman LJ at p 177 (where he also explained that a reference to the covenantees interest in the case of a sale related only to a situation in which the vendor retained other land which could benefit from the restraint) and at p 178; and in the judgment of Diplock LJ at pp 179 and 187. We should note therefore that, in the case of a restriction on the use of land, the focus of the decision was on the covenantee, namely whether Petrofina retained an interest in the use of the land; and also that the doctrine was held to apply to the covenant even though neither Mr Martin nor his company had enjoyed any pre existing freedom to trade at the site. In the Esso case Mr Harper (or possibly Mr and Mrs Harper) owned the site of a filling station in Stourport. At first Mr Harper himself operated the trade in petrol there; and in due course he entered into a solus agreement with Esso. Later he allowed the respondent company, which he and his wife owned, to operate it; and so the company entered into the solus agreement. In 1962 the company entered into a revised agreement with Esso for the supply, at a price to be fixed by Esso, of all petrol to be sold there for 21 years. One term of it, similar to a term of the agreement in the Petrofina case, was that the company should keep the filling station open at all reasonable hours throughout the period of the agreement; the effect of it was that, even if it was trading at a loss, the company had to continue to trade there unless it found a purchaser willing to assume its obligations under the agreement. Mr Harper wanted to sell the site to the company. Esso lent to the company funds which enabled it to make the purchase; and the company granted to Esso a mortgage over the site, in which the terms of the solus agreement were repeated. In 1963 the company bought both the site and the business of a second filling station, which was near Kidderminster. The vendor had entered into a solus agreement with Esso on similar terms. At the time of the companys purchase the agreement was to subsist for about five further years; and the company agreed to be bound by it for that remaining period. The company soon repudiated the solus agreements in respect of both filling stations and Esso sought an injunction to require it to abide by them. The trial judge held that the doctrine was not engaged by covenants which restrained the use of land and he granted the injunction. The Court of Appeal, constituted by the three judges who had decided the Petrofina case, allowed the companys appeal. It reasoned that, apart from the incorporation of the terms of the solus agreement in the mortgage on the Stourport property, which, so it held, should not affect its conclusion, such a result was mandated by its earlier decision. Upon Essos appeal the appellate committee of the House of Lords agreed with the Court of Appeal that the companys covenants engaged the doctrine. But it held that, whereas the restraint for 21 years on the Stourport property had not been shown to be reasonable and was therefore unenforceable, the restraint for about five years on the Kidderminster property had been shown to be reasonable and that, to that extent, the trial judges injunction should therefore be restored. Counsel for Esso submitted to the appellate committee that the trial judge had been correct to rule that restraints on the use of land did not engage the doctrine. It was a powerful argument because counsel were able to point to the long history whereby, in the interests of other land which they retained, vendors of land had required their purchasers to covenant not to use it for a specified purpose, including not to trade there whether in specified respects or indeed at all; and whereby lessors had required lessees to enter into analogous covenants. It was common ground that such covenants did not engage the doctrine. But their argument went further. For they were able to cite a common situation somewhat akin to the solus agreements in issue: it was that of the tied public house, in which a brewery company leased, or occasionally sold, premises to the publican on terms which disabled him from selling any beer there other than beer which it had sold to him itself. It was, again, common ground that the tie of a public house did not engage the doctrine. It is clear that, because of what it perceived to be the oppressive nature of the restraints in many solus agreements relating to the sale of petrol, including in the agreement relating to the Stourport property, the appellate committee was minded to hold that they engaged the doctrine and therefore that, unless they were reasonable, they were unenforceable. But how was the committee to rationalise their engagement of the doctrine in circumstances in which restrictive covenants on the part of purchasers and lessees of land, and in particular the ties to which publicans bound themselves when leasing or buying pubs, did not engage it? In the Petrofina case the Court of Appeal had focussed upon the position of the covenantee: it was when he retained an interest in the land that the doctrine was not engaged. the position of the covenantor. Lord Reid said at p 298: In the Esso case, by contrast, the majority of the committee focussed upon It is true that it would be an innovation to hold that ordinary negative covenants preventing the use of a particular site for trading of all kinds or of a particular kind are within the scope of the doctrine of restraint of trade. I do not think they are. Restraint of trade appears to me to imply that a man contracts to give up some freedom which otherwise he would have had. A person buying or leasing land had no previous right to be there at all, let alone to trade there, and when he takes possession of that land subject to a negative restrictive covenant he gives up no right or freedom which he previously had. I think that the tied house cases might be explained in this way, apart from Biggs v Hoddinott [1898] 2 Ch 307, where the owner of a freehouse had agreed to a tie in favour of a brewer who had lent him money In the present case the respondents before they made this agreement were entitled to use this land in any lawful way they chose, and by making the agreement they agreed to restrict their right by giving up their right to sell there petrol not supplied by the appellants. So the criterion favoured by Lord Reid for distinguishing between restraints on land which engage the doctrine and those which do not do so has come to be called the pre existing freedom test. It is clear that this is the test which enjoyed majority support within the committee and so constitutes the basis of its decision. Lord Morris of Borth y Gest said at p 309: There is a clear difference between the case where someone fetters his future by parting with a freedom which he possesses and the case where someone seeks to claim a greater freedom than that which he possesses or has arranged to acquire. As examples of the latter case Lord Morris referred to incoming lessees and to purchasers of part of a vendors land. Lord Hodson said at pp 316 317: All dealings with land are not in the same category; the purchaser of land who promises not to deal with the land he buys in a particular way is not derogating from any right he has, but is acquiring a new right by virtue of his purchase. The same consideration may apply to a lessee who accepts restraints upon his use of land; on the other hand, if you subject yourself to restrictions as to the use to be made of your own land so that you can no longer do what you were doing before, you are restraining trade and there is no reason why the doctrine should not apply. In the Esso case what criterion did Lord Pearce favour? In Cleveland Petroleum Co Ltd v Dartstone Ltd [1969] 1 WLR 116, decided less than two years after the decision of the appellate committee, the Court of Appeal of England and Wales, at pp 118 119, regarded Lord Pearce as having subscribed to the pre existing freedom test, which that court then proceeded loyally to apply. It may be, however, that his subscription to it was less than comprehensive. It is true that he said at p 325: It seems clear that covenants restraining the use of the land imposed as a condition of any sale or lease to the covenantor (or his successors) should not be unenforceable. But it seems that Lord Pearce was less confident that the converse applied when the covenantor surrendered a pre existing freedom to use the land. For he added, also at p 325: It may be, however, that when a man fetters with a restraint land which he already owns or occupies, the fetter comes within the scrutiny of the court. In the case of a surrender by covenant of a pre existing freedom, Lord Pearce appears to have favoured a further test. For he said at p 328: The doctrine does not apply to ordinary commercial contracts for the regulation and promotion of trade during the existence of the contract, provided that any prevention of work outside the contract, viewed as a whole, is directed towards the absorption of the parties services and not their sterilisation. So the criterion probably favoured by Lord Pearce has come to be called the sterilisation of capacity test. In the Esso case Lord Wilberforce gave the fifth and final speech. It is clear that he did not subscribe to the pre existing freedom test. He said at p 331 that the common law had often thrived on ambiguity; that, even if it were possible, it would be mistaken to try to crystallise the rules of the doctrine into neat propositions; and that the doctrine had to be applied to factual situations with a broad and flexible rule of reason. He observed at pp 332 333 that provisions of contracts which reflected the accepted and normal currency of commercial relations had come to fall outside the scope of the doctrine because, moulded under the pressures of negotiation, competition and public opinion, they had assumed a form which satisfied the test of public policy as understood at that time. Then, adverting to restrictive covenants imposed on the sale or lease of land, and in particular to the ties imposed on publicans, he said at p 335: I think one can only truly explain them by saying that they have become part of the accepted machinery of a type of transaction which is generally found acceptable and necessary, so that instead of being regarded as restrictive they are accepted as part of the structure of a trading society. So the criterion favoured by Lord Wilberforce has come to be called the trading society test. Since the covenant in issue in this court today was made by a lessor, it is worthwhile to note that, in his analysis of covenants in relation to land which had generally been found acceptable and necessary, Lord Wilberforce referred at pp 334 335 to covenants by lessors, and by vendors in relation to land retained by them, as well as by lessees and purchasers in relation to the land leased or conveyed to them. Indeed, as an example of a lessors covenant, he cited Hinde v Gray (1840) 1 Man & G 195. There the defendant leased a brewery in Sheffield to the claimants. The defendant, who also owned and operated a public house in Sheffield called The Punch Bowl, covenanted that he would not sell beer in that pub other than as supplied to him by the claimants; and, when later he granted a lease of the pub, he caused the lessee to covenant likewise. One of the claims made in an action brought by the claimants in the Court of Common Pleas was of a breach of that covenant. That claim was rejected because the claimants had failed to establish that the beer sold in The Punch Bowl had not been supplied by them at least indirectly even if not directly. There was no suggestion that the covenant engaged the doctrine and so was required to be reasonable. There is nothing in the jurisprudence, ancient or modern, to indicate that covenants by lessors, and by vendors in relation to retained land, engage the doctrine by reference to any criterion different from that which applies to covenants by lessees and purchasers. An intriguing question, irrelevant to the search for legal principle, is why, by reference to the criteria which they favoured, their lordships in the Esso case unanimously held that both of the solus agreements entered into by the company engaged the doctrine. In relation to the Kidderminster property, what was the basis on which the majority considered that the company had enjoyed a pre existing freedom to trade there? In relation to the Stourport property, what was the basis on which they considered that the company had enjoyed a pre existing freedom to trade there or, if such was their thinking, that it sufficed that Mr Harper had enjoyed that freedom? Indeed, when Lord Reid observed at p 304 that, while he did not subscribe to all of the Court of Appeals reasoning, its decision in the Petrofina case had been correct, what was the basis on which he considered that either Mr Martin or his company had enjoyed a pre existing freedom to trade at the Chesterfield property? How did Lord Pearce persuade himself that the effect of the solus agreements in favour of Esso had been not to absorb the companys services but, rather, to sterilise them? And, in the light of the evidence, noted by Lord Hodson at p 315, that, out of 36,000 filling stations in the UK, 35,000 had become subject to solus agreements with oil companies, how did Lord Wilberforce feel able to conclude that, on balance (as he said at p 337), the agreements in issue had not become acceptable and necessary as part of the structure of a trading society? Our task in this court is, however, to analyse the validity in principle of the pre existing freedom test favoured by the majority of our distinguished predecessors. They had alighted upon a distinction which served their purpose: for its effect was, for example, that a tie accepted by a publican upon entry into a lease remained excluded from the doctrine but that a solus agreement with which the operator of a filling station burdened his premises was brought within it. But was the distinction consonant with the doctrine? Or did it mask an attempt to square a circle? The trouble is that the majority did not explain why a covenant restrictive of the use of land is more likely to offend public policy when the covenantor enjoyed a pre existing freedom in relation to its use than when he enjoyed no such freedom. It is an explanation for which we must therefore search. Is there a ground for concluding, for example, that a covenantors pre existing freedom places him in a weaker bargaining position than otherwise or in some other way renders his covenant more deserving of legal intervention? Reaction to Esso Less than two years after the decision of the appellate committee in the Esso case, Mr J D Heydon, then a lecturer at Oxford University, wrote a coruscating criticism of it in an article entitled The Frontiers of The Restraint of Trade Doctrine (1969) 85 LQR 229. Later the author, who ultimately became a justice of the High Court of Australia, wrote a book entitled The Restraint of Trade Doctrine, now in its 4th ed published in 2018, in which he has consistently repeated much of what he said in the article. At p 281 of the article he suggested that the pre existing freedom test reflected a distinction based purely on form and not on substance at all. He developed his suggestion as follows: If all the landowners in Yorkshire agree not to trade on their Yorkshire land, the restraint of trade doctrine would apply because the landowners are fettering a pre existing freedom, and the agreement would certainly be held unenforceable. But if X buys all the land in Yorkshire, covenanting with each seller not to trade on the land, the Esso test prevents the doctrine applying, so that the covenants are all enforceable. In each case the public and the parties restricted are equally damaged. Why should the common law be prevented from controlling this in the second case? Again, if X, who owns two shops, sells one to A and A and X mutually covenant that neither shop shall be used as a butcher shop, the restraint of trade doctrine will apply to Xs obligations but not to As; Xs may be held unenforceable but not As. The majority test thus leads to gross anomalies. Mr Heydon thereupon undertook an analysis of the criterion favoured by Lord Pearce, which he described at p 245 as mystical. He then turned to that favoured by Lord Wilberforce, which he described at p 246 as reflecting a relatively inert acceptance by the courts of the status quo. In that connection he observed that public opinion may be incapable of seeing the evils of the restrictions and that commercial men may all be interested in keeping the system going. Mr Heydon concluded at pp 250 251 with the controversial suggestion that it would be preferable for the doctrine to have universal application to all restraints of trade in order to address a wide range of evils. Until today neither the appellate committee nor, more recently, this court has had an opportunity to reconsider the committees decision in the Esso case. Indeed, apart from in the Cleveland Petroleum case, cited in para 25 above, it has received little attention even in the intermediate appeal courts of the UK. As so often, however, contributions of real value to us in this court are to be found in the judgments of other senior courts in the common law world. New Zealand and Ireland The early decision of the Court of Appeal of New Zealand in Robinson v Golden Chips (Wholesale) Ltd [1971] NZLR 257 and the decision of the Supreme Court of Ireland in Sibra Building Co Ltd v Ladgrove Stores Ltd [1998] 2 IR 589 suggest that the pre existing freedom test has been adopted in the law of both jurisdictions. Canada There are two Canadian decisions of great relevance. They even replicate the circumstances of the case before us, namely a covenant by the owner of a shopping centre in favour of a lessee of part of it. In Russo v Field [1973] SCR 466 the third defendant company was the owner of a shopping centre in Toronto. It leased part of it to the claimants. In consideration of their covenant to conduct business as a hairdresser and beauty salon at those premises, the company covenanted not to permit any other store in the centre to conduct that business. The company then leased adjoining premises to the second defendant, Mrs Field, who had notice of the covenants and who commenced a business (which she ultimately discontinued) of selling wigs. In a judgment of the court delivered by Spence J, the Supreme Court of Canada held that the trial judge had been entitled to find that the sale of wigs had become an integral part of the business of a hairdresser and beauty salon; that he had rightly awarded damages to the claimants against both the company and Mrs Field; and, in that she had discontinued the business only later, he had also rightly enjoined her from continuing it. Spence J addressed the doctrine against restraint of trade at pp 486 487 as follows: It has been said that covenants such as those under consideration in this action are covenants in the restraint of trade and therefore must be construed restrictively. I am quite ready to recognize that as a general proposition of law and yet I am of the opinion that it must be considered in the light of each circumstance in each individual case. The mercantile device of a small shopping centre in a residential suburban area can only be successful and is planned on the basis that the various shops therein must not be competitive if the limited number of prospective purchasers are faced in the same small shopping centre with several prospective suppliers of the same kind of goods or service then there may not be enough business to support several suppliers. They will suffer and the operator of the shopping plaza will suffer. I am therefore of the opinion that the disposition as a matter of public policy to restrictively construe covenants which may be said to be in restraint of trade has but little importance in the consideration of the covenants in the particular case. Although the passage is equivocal, I incline to the view that the Supreme Court was there holding that for practical purposes the companys covenant did not engage the doctrine rather than holding that, although it did engage it, the covenant was reasonable. In F W Woolworth Co Ltd v Hudsons Bay Co, Zellers Inc and Burnac Leaseholds Ltd (1985) 61 NBR (2d) 403 the developer of a shopping mall in New Brunswick had, in the course of granting a lease of premises in it to Woolworths, covenanted that no other premises in the mall would be used as a junior department store, which meant a low price value store such as Woolworths itself. Zellers, a junior department store in competition with Woolworths, took an assignment of premises in the mall. The New Brunswick Court of Appeal held that the developers covenant should be enforced by injunction against both it and Zellers. Hoyt JA, giving judgment on behalf of the court, quoted at para 31 from the speech of Lord Wilberforce in the Esso case and at para 35 the passage set out above in the judgment of Spence J in the Russo case. Hoyt JA continued as follows: 39. In the present case there was no inequality of bargaining power nor was there evidence of bad faith on the part of Woolworth All the evidence touching on the point indicated that such covenants are common, if not universal, in leases for space in such developments or, to use Lord Wilberforces words at p 337 in Esso, the provision is one which by the pressure of negotiation and competition, has passed into acceptance or into a balance of interest between the parties and their customers . 40. In my view, the restriction in the Woolworth lease does not, in these circumstances, fall within the category of contract known as one in restraint of trade. Had he applied the pre existing freedom test, to which he also referred, Hoyt JA would have been required to conclude, by contrast, that the developers covenant did engage the doctrine. Australia Five Australian authorities will help us; and we should address them in chronological order. The first is the decision of the High Court in Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288. By a majority the court held that a solus agreement entered into by the owner of a proposed filling station in favour of Amoco engaged the doctrine and was unreasonable and so unenforceable. When entering into the agreement, the owner had leased the property to Amoco and had taken back an underlease of it. The majority rejected Amocos contention that the owner had therefore enjoyed no pre existing freedom to trade. In concluding that the covenant engaged the doctrine the majority therefore applied Lord Reids test in the Esso case. Nevertheless there were murmurs of doubt about it. Walsh J at p 304 expressed reluctance to accept that it provided a valid criterion for excluding covenants from engagement with the doctrine; and Gibbs J at p 313 expressly left that question open. The second is the decision of the High Court in Quadramain Pty Ltd v Sevastapol Investments Pty Ltd [1975 1976] 133 CLR 390. X owned adjacent parcels of land in New South Wales. On the first parcel it operated a hotel. It sold the second parcel to Y for use as part of a shopping centre. Y covenanted on behalf of itself and its successors not to apply for a liquor licence there. X assigned the first parcel to Quadramain, which continued to operate the hotel. Sevastapol became the lessee of the second parcel and it applied for a liquor licence there. By a majority the court held that Ys covenant did not engage the doctrine and should be enforced against Sevastapol. Y had surrendered no pre existing freedom to use the second parcel; and the majority was willing to reach its conclusion by reference to Lord Reids test. But there were further murmurs of discontent about it, louder than in the Amoco case. Gibbs J, with whom Stephen and Mason JJ agreed, observed at p 401 that Lord Wilberforces test was more flexible than the pre existing freedom test and might in time come to be preferred; and, in a dissenting judgment with which Murphy J agreed, Jacobs J suggested at p 414 that the distinction which formed the basis of the pre existing freedom test presented difficulties unmatched in Lord Wilberforces test. The third is the decision of the Full Federal Court of the Australian Capital Territory in Australian Capital Territory v Munday [2000] FCA 653. Mr Munday traded in articles of waste. The public authority which operated a waste disposal tip changed the contractual terms of his admission to the tip so as to rescind his licence to solicit members of the public to give articles to him before they abandoned them there. The court rejected his claim that the rescission was in restraint of trade and unenforceable. Application of the pre existing freedom test might well have yielded a conclusion that the doctrine was engaged. But, in a careful judgment with which the other members of the court agreed, Heerey J, after addressing the Amoco and Quadramain cases and also the Woolworth case in Canada, concluded at para 105 that the trading society test should be adopted; and that it yielded a conclusion that the term which prohibited Mr Munday from soliciting for articles did not engage the doctrine. The fourth is the decision of the High Court in Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126. The respondents, which manufactured ice cream across Australia, sold their business in Western Australia to the appellant. They covenanted not to sell any ice cream in Western Australia which they had manufactured. The court upheld a ruling that the covenant was in restraint of trade and unenforceable. Although the covenant did not relate to the use of land, the decision is interesting. For the appellant argued that the covenant absorbed, rather than sterilised, the respondents capacity to service the market for ice cream and that, by application of Lord Pearces test in the Esso case, it therefore failed to engage the doctrine. In a joint judgment Gleeson CJ and Gummow, Kirby and Hayne JJ held at para 35 that Lord Pearces test involved the application of criteria of particular indeterminacy and at para 39 that it should not be accepted in Australian common law. In passing the judges had also, at para 22, noted criticisms of the pre existing freedom test, including in Treitel on The Law of Contract, 10th ed (1999), p 434. Indeed four months later, in Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181, three of those four judges, in the course of holding that a confidentiality agreement had been in restraint of trade, suggested at para 55 that the court in the Peters case had gone so far as to reject the pre existing freedom test. The fifth is the decision of the Supreme Court of Victoria, Court of Appeal, in Specialist Diagnostic Services Pty Ltd v Healthscope Ltd (2012) 41 VR 1. The case is of particular interest because its subject was a covenant by a lessor of part of its premises in relation, among other things, to the use of other parts of them. The appellant conducted a pathology business. It took a lease of premises within two hospitals owned by the predecessors of the first respondent and within a third hospital owned by the second respondent. In granting the leases the owners of the hospitals covenanted (a) not to be concerned in a business similar to that which the appellant was to conduct in the hospitals and (b) not to grant any right to occupy any other part of the hospitals to any third party for the conduct of such business. The respondents breached the covenants. In upholding the appeal the court found that the covenants were reasonable and should be enforced against the respondents. But, perhaps unnecessarily in the light of that finding, the court proceeded to consider whether the covenants engaged the doctrine. By reference to the Australian jurisprudence it resolved to assume that the issue fell to be decided by application of the trading society test. It held as follows: 64. It may be accepted that, ordinarily, the alienor of part of the land may be able to bind himself or herself with respect to the use of the balance of the land retained after a partial alienation. As [the appellant] submits, such provisions are common in leases of individual retail premises within shopping centres or other stand alone facilities. 65. We were not, however, referred to any persuasive authority which extends the postulated exception from the restraint of trade doctrine to all covenants in restraint of trade made by a landlord. 72. As his honour recorded, there was no evidence before him of accepted practice relating to restraint of trade provisions in tenancy agreements concerning pathology facilities within hospitals. Further, his Honour was correct to conclude that no simple analogy should be drawn between exclusivity provisions in shopping centre leases and the case with which he was concerned. Thereupon the court identified four reasons why the covenants engaged the doctrine, of which the first was that those at (a) extended beyond the land retained by the respondents. Discussion The passage of half a century since the appellate committee in the Esso case established the pre existing freedom test has not generated a reasoned defence of it. Mr Heydons early criticisms of it remain unrebutted. The commentary on it in the 10th ed (1999) of Treitel on The Law of Contract, quoted in the judgment of the majority in the Peters case cited at para 41 above, is replicated, almost word for word, in the 15th ed (2020) of the book at para 11 151, which reads as follows: it is submitted that the reasoning is hard to reconcile with the emphasis placed on the Esso case itself on the element of public interest; for restrictions on the use of land may cause harm to the public where they are imposed at the time when the land is acquired, no less than where they are imposed later. The analysis of the Australian jurisprudence in paras 38 to 42 above demonstrates that there the early murmurs of concern about the test have reached a crescendo at which Australia can be heard to have rejected it. In terms of public policy, which is the foundation of the doctrine, there is no explanation why a restraint should engage the doctrine if the covenantor enjoyed a pre existing freedom but why an identical restraint should not engage it if he did not do so. Surely our conclusion, respectful to our predecessors yet also firm, has to be that the test does not deserve its place in the doctrine. But is the trading society test any more defensible? At first sight it appears unattractive. It seems to concede that the law follows where many might expect it to lead. Is the law (one might ask) to be determined as if by a weathercock which answers only to the direction of the wind? But such criticisms fail to recognise the nature of the common law. It is a law built by the judges on behalf of the people over seven centuries. It has been generated from below, not imposed from above. Over time bits have been added here, discarded there; enlarged here, confined there; strengthened here, diluted there. Bits have been re interpreted; bits have withered away as a result of disuse; and bits have been abrogated by statute. In Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 Lord Goff of Chieveley said at p 377: the common law is a living system of law, reacting to new events and new ideas, and so capable of providing the citizens of this country with a system of practical justice relevant to the times in which they live. In these circumstances the common law is inevitably a patchwork; and in it we will search in vain for perfect congruity. This is a truth which Lord Wilberforces pragmatic test recognises. Although criticised, the phrase trading society aptly describes the test. For it reflects the importance attached on the one hand to freedom to trade and on the other to the enforceability of contracts in the interests of trade. It is the former which generates the doctrine and the latter which keeps it within bounds. Under the trading society test a covenant which restrains the use of land does not engage the doctrine if, in the words of Lord Wilberforce in the Esso case at p 333, it is of a type which has passed into the accepted and normal currency of commercial or contractual or conveyancing relations and which may therefore be taken to have assumed a form which satisfies the test of public policy. But the proper rooting of Lord Wilberforces test in public policy itself generates a need to qualify it. In giving the judgment of the Judicial Committee of the Privy Council in Vancouver Malt and Sake Brewing Co v Vancouver Breweries Ltd [1934] AC 181 Lord Macmillan observed at p 189: It is no doubt true that the scope of a doctrine which is founded on public policy necessarily alters as economic conditions alter. Public policy is not a constant. More especially is this so where the doctrine represents a compromise between two principles of public policy; in this instance, between, on the one hand, the principle that persons of full age who enter into a contract should be held to their bond and, on the other hand, the principle that every person should have unfettered liberty to exercise his powers and capacities for his own and the communitys benefit. Lord Wilberforce himself recognised, also at p 333, that a change in societys circumstances might precipitate a change in public policy which would require re examination of whether a type of covenant should continue not to engage the doctrine or (I would add) whether, by contrast, it should continue to engage it. I conclude that, unlike the pre existing freedom test, the trading society test is consonant with the doctrine. This conclusion places this court in an acutely uncomfortable position. In 1966 the appellate committee recognised a facility for it to depart from one of its previous decisions: Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. This court has inherited the facility to do so. Nevertheless in the Practice Statement Lord Gardiner, the Lord Chancellor, stressed the importance of certainty in the law. A sudden change in the law is likely to destabilise it. Negotiations for contractual restraints on the use of land may well have been conducted with the pre existing freedom test in mind. Past litigants, actual or potential, whose contentions failed or would have failed by virtue of that test would rightly resent a departure from it which would have given them saliency. Future such litigants, whose contentions would fail by virtue of departure from it, would resent it in equal measure. Subsequent opinions of the appellate committee stressed the high degree of caution with which it should address a request for departure. In Horton v Sadler [2007] 1 AC 307 Lord Bingham of Cornhill said at para 29: Over the past 40 years the House has exercised its power to depart from its own precedent rarely and sparingly. It has never been thought enough to justify doing so that a later generation of Law Lords would have resolved an issue or formulated a principle differently from their predecessors. The form to be used as a Notice of Appeal to this court asks in particular: Are you asking the Supreme Court to depart from one of its own decisions or from one made by the House of Lords? The purpose of the question is to enable the court, if granting permission to appeal, to decide in particular whether the appeal should be heard by a panel of more than the conventional number of five justices. But, in its Notice, Dunnes ticked no. It was only when at a late stage it filed its written case, and in particular when Mr Humphreys presented its oral argument, that it became clear that Dunnes was inviting the five of us to depart from the pre existing freedom test which had formed the basis of the decision in the Esso case. It is therefore with appropriate hesitation that I propose that this court should depart from the test favoured by the majority in the Esso case. To adapt Lord Binghams words, the objection to it is not just that the issue in the Esso case should have been resolved differently or the principle formulated differently there. Apart from the fact that even at the time Lord Wilberforce chose not to associate himself with it, the objections to the test are that it has no principled place within the doctrine; that it has been consistently criticised for over 50 years and, although in some quarters loyally applied, the reasoning behind it has, to the best of my knowledge, scarcely been defended; and that the common law has been limping between the continuing authority of the test in our jurisdiction and its rejection in Australia and in parts of Canada. The application of the trading society test to the facts of the present case is straightforward; there is no need to remit the case for inquiry into it. At para 39 of her judgment McBride J addressed the evidence of Mr Crothers, the chartered surveyor who gave evidence on behalf of Dunnes. She said: He set out the difficult marketing conditions which prevailed in Northern Ireland in the 1970s and described the bringing of Dunnes to Derry as a great achievement as Dunnes was a highly sought after anchor tenant. In his view it was not uncommon to find negative covenants in leases in favour of anchor tenants. This was especially so in long leases as the landlord, having received a premium, had no financial interest thereafter in how the centre traded. It was therefore the tenant who had everything to lose if the landlord put in competition. In this case he stated it would have been unpalatable and commercially offensive for the landlord to put direct competition on Dunnes doorstep as Dunnes had come to an untested location and had invested significant sums in buying the site, building the store and contributing to the costs of the car park. It is not obvious that Peninsula even called evidence to the contrary. And, from the study in paras 35 and 36 above of the Russo case and of the Woolworth case in Canada, and in para 42 above of the Specialist Diagnostic Services case in Australia, we derive confirmation that across the common law world it has long been accepted and normal for the grant of a long lease in part of a shopping centre to include a restrictive covenant on the part of the lessor in relation to the use of other parts of the centre. There is no ground for considering that social changes require re examination of the conclusion that, by reference to the trading society test, the covenant has at no time engaged the doctrine. It will be recalled that an interesting question caused division between McBride J and the Court of Appeal. It was whether, if a covenant were to engage the doctrine because the covenantor (Mr Shortall) enjoyed a pre existing freedom, it would continue to engage it following an assignment of the burden of the covenant to an assignee (Peninsula) which enjoyed no such freedom. It follows that, were my colleagues to agree with this judgment, the question would no longer arise. common law claim should be dismissed. I propose that Dunnes appeal should be allowed and that Peninsulas Postscript: The 1978 Order The possible availability to Peninsula of an alternative remedy in relation to the covenant has played no part in the conclusion that it has at no time engaged the doctrine. But the conclusion is fortified by the possibility of relief pursuant to Peninsulas alternative claim under the 1978 Order, which should now proceed to be heard. Nothing in this judgment should be taken to influence the determination of any issue which will then arise. The 1978 Order is loosely based on section 84 of the Law of Property Act 1925 which, by section 209(3), extends only to England and Wales. Section 84 is entitled Power to discharge or modify restrictive covenants affecting land. In its report entitled Making Land Work: Easements, Covenants and Profits Prendre (2011) (Law Com No 327) the Law Commission of England and Wales explained the background to section 84 as follows: 7.3 In the 19th century, and well into the 20th, land was sold off from large estates so as to facilitate urban expansion, but frequently subject to extensive restrictive covenants. These covenants had an important social function in the era before public planning control and often served to preserve the amenity of an area, controlling building and land use and ensuring consistent development. However, social needs change over time Landowners and developers may wish to discharge, or at least modify, covenants on the basis that they are no longer serving a useful purpose but their presence on the title to the land is impeding a change of use or a development. It seems that the lack of jurisdiction in the court prior to 1925 to modify or extinguish such a covenant enabled a covenantee to hold a covenantor to ransom even when the covenant was for practical purposes obsolete. The 1978 Order confers a wider, more flexible, jurisdiction than that conferred by section 84 even as amended. If Peninsula were to establish that the covenant represents an impediment to the enjoyment of land under article 3 and that the impediment was unreasonable under article 5(1), the court under article 6(2)(a), like the Lands Tribunal under article 5(1), would have a wide discretion whether to make an order modifying or extinguishing the impediment and, if so, whether under article 5(6) to substitute a different impediment and/or to award compensation to Dunnes. Article 5(5) requires the discretion whether to make the order to be exercised by reference to seven specified factors and to any other material circumstances. It would be absurd to consider that the doctrine against restraint of trade would have represented a vehicle for the resolution of the issues between Peninsula and Dunnes as satisfactory as that represented by the 1978 Order. It is this Order which properly reflects modern public policy in relation to the covenants to which it applies. LORD CARNWATH: I begin by paying tribute to Lord Wilsons characteristically compelling judgment, tinged with regret that this is likely to be his last substantive contribution to the jurisprudence of this court. It has been a privilege to work with him. I adopt with gratitude his clear and concise exposition of the legal and factual background, and of the relevant authorities. This enables me to express my own views relatively briefly. I do so in recognition of the importance of the case, and out of respect for the Court of Appeal whose decision we will be reversing. I agree entirely with his analysis of the Esso Petroleum Company Ltd v Harpers Garage (Stourport) Ltd [1968] AC 269 case, and that, for the reasons he gives, we should finally discard the much criticised pre existing freedom test. I also agree with his reasons for considering that this departure is within the scope and spirit of the 1966 Practice Statement. I note that many of the later criticisms had been foreshadowed at the time in the powerful reply of Robert Megarry QC before the House (pp 288 289). He had observed that the test now put forward by the respondents was wholly novel: It appears in no previous case, and was not argued below, but appeared for the first time in the course of the respondents argument here This test draws a sharp distinction between covenants made by the grantor and those made by the grantee, with highly capricious results. He illustrated those capricious results by reference to cases of lease and lease back and other examples, similar to those cited in later commentaries. It is unfortunate that these criticisms were not effectively addressed in any of the majority speeches. I also agree with Lord Wilson in preferring Lord Wilberforces so called trading society approach: whether the restrictive covenants in question have become part of the accepted machinery of a type of transaction which is generally found acceptable and necessary. (p 335C) In a later passage he referred to such restrictions being upheld where they have become part of the accepted pattern or structure of a trade, as encouraging or strengthening trade, rather than as limiting trade. (p 336B) It is true that this formulation is no more than an imprecise guide; and, as Lord Wilson observes (para 28), it raises the question why Lord Wilberforce did not think the test to be satisfied on the facts of the case. On the evidence the vast majority of filling stations in the UK were subject to solus agreements with oil companies. Lord Wilberforces answer seems to have turned both on the nature of the agreements and the fact that the restrictions were not sufficiently well established in form or time. Thus, in giving his reasons for holding that the agreements were on balance within the category of restraints which required justification, he noted (at p 337C G): This is not a mere transaction in property, nor a mere transaction between owners of property: it is essentially a trade agreement between traders. Having discussed the various restrictive elements he concluded: Finally the agreement is not of a character which, by the pressure of negotiation and competition, has passed into acceptance or into a balance of interest between the parties or between the parties and their customers; the solus system is both too recent and too variable for this to be said. (Emphasis added) One may detect an implicit contrast with the brewery cases, where, as he had explained, contractual clauses tying a leased public house to the lessors beers had been known, and commonly current, at least since the early 19th century (p 333G), and with other forms of restrictive covenants treated as acceptable more than a century before that (p 334G). Lord Wilson (para 51) regards the application of Lord Wilberforces trading society test in the present case as straightforward, having regard to the unchallenged evidence of their not infrequent use in leases in favour of anchor tenants. On the other hand the parallels discussed by Lord Wilberforce might appear to suggest that he had in mind the need for a longer historical pedigree than that implied by the limited evidence in this case. However, as the passage cited above makes clear, the practice had to be looked at in the context of what was essentially a trade agreement between traders, rather than a transaction in property. Less important than history is whether, in the light of established practice, there is in the relevant context any public policy reason for interfering in the free process of negotiation between the parties, or seeking to redress the balance of interests between them. The doctrine is an exception to the ordinary principles of freedom of contract, and should not be extended without good justification beyond those categories already established by the case law, or indistinguishable in principle from them. That approach is also consistent with the underlying approach of the majority in the Esso case. The case itself establishes no more than that a restraint may attract the doctrine even if it relates to the use of land. According to the majority in Esso, if the trader is giving up an existing freedom to trade, it matters not whether the covenant is a purely personal restraint or a restraint on the use of a particular piece of land. As Lord Reid explained (at pp 297G 298A), dismissing the argument that the respondents were left free to trade anywhere else: But in many cases a trader trading at a particular place does not have the resources to enable him to begin trading elsewhere as well, and if he did he might find it difficult to find another suitable garage for sale or to get planning permission to open a new filling station on another site. As the whole doctrine of restraint of trade is based on public policy its application ought to depend less on legal niceties or theoretical possibilities than on the practical effect of a restraint What matters therefore is the practical effect of the restriction in the real world, and its significance in public policy terms. The present case is quite different from Esso, or any of the other trading cases. The agreement is not in essence an agreement between traders, but a transaction in land. The only trade which might be inhibited is that of a potential future occupier, seeking to trade in textiles, provisions or groceries in some other part of the development. None of the authorities suggest that there is any public policy reason or legal basis for protecting that mere possibility. I accept, as Lord Wilson says (paras 17 18), that the mere fact that the Peninsula is a developer, rather than a trader in the conventional sense, is not necessarily determinative. Common formulations of the doctrine refer to any restraints on the free exercise of (a persons) trade or business (see eg Petrofina (Great Britain) Ltd v Martin [1966] Ch 146, 169C per Lord Denning MR). So it is necessary to focus on the nature of any restriction on Peninsulas own business as a developer. We have been referred to no case in which the doctrine has been held to apply to a restriction accepted by a developer as part of a development scheme such as the present. This is not surprising. The business of developing a shopping centre as in this case inevitably involves doing deals to regulate the use of the relevant land, and balance the competing interests, to advance the success of the centre as a whole. That was rightly recognised in the Canadian cases to which Lord Wilson has referred (paras 35 36). As is shown by those cases, along with the evidence in this case, there is nothing unusual in special terms being required to secure an appropriate anchor tenant. Indeed, if Dunnes had had reason to think that the covenant would prove unenforceable in law, the likely result would have been its withdrawal from the development, and the failure of the scheme. Thus, the ability to offer such terms does not restrict, but rather facilitates, the developers business. It can be seen, in Lord Wilberforces words, as encouraging or strengthening , rather than as limiting that business. There is no public policy reason for interfering with such an arrangement. There is a parallel between Mr Shortalls position and that of the prospective lessee faced with choice of taking premises subject to a covenant, as Lord Morris explained it in the Esso case. He said at p 309B C: If one who seeks to take a lease of land knows that the only lease which is available to him is a lease with a restriction, then he must either take what is offered (on the appropriate financial terms) or he must seek a lease elsewhere. No feature of public policy requires that if he freely contracted he should be excused from honouring his contract. In no rational sense could it be said that if he took a lease with a restriction as to trading he was entering into a contract that interfered with the free exercise of his trade or his business or with his individual liberty of action in trading. Like that hypothetical lessee, Mr Shortall was faced with a free but limited choice: to take Dunnes on the terms offered, or not to have an anchor tenant at all. As in the case of the lessee, in no way could it be said that the exercise of that choice interfered with the free exercise of his business as a developer or with his individual liberty of action. It was rather an intrinsic part of that business. In Lord Morris words: No feature of public policy requires that if he freely contracted he should be excused from honouring his contract. For these reasons, I agree with Lord Wilson that the appeal should be allowed, and Peninsulas common law claim dismissed. I do so the more readily having regard to the existence in the 1978 Order, of an alternative, and in many ways more satisfactory, vehicle for the resolution of the issues between the parties.	The appeal relates to a restrictive covenant given by the developer of a shopping centre in a lease that it granted to a retailer over part of the centre. In giving the covenant the developer and later the respondent (Peninsula) each undertook not to allow any substantial shop to be built on the rest of the centre in competition with the appellant (Dunnes). Peninsula now argues that the covenant engages the doctrine of restraint of trade (the doctrine); that it is unreasonable; and that it is therefore unenforceable. This appeal concerns whether the covenant engages the doctrine. The developer, Mr Shortall, wished to develop a shopping centre on land that he owned in Londonderry. He wanted an anchor tenant there in order to attract other retailers, and so he granted a lease to Dunnes, a subsidiary in a Dublin based group of retail companies. In the lease he covenanted that any development on the site would not contain a unit of 3,000 square feet or more whose purpose was the sale of food or textiles. Dunnes built its store and the centre opened. Mr Shortall later assigned his freehold interest in the land, together with the burden of the covenant, to the respondent (Peninsula), a property holding company which he managed and which he and his wife owned. The success of the shopping centre subsequently declined. Peninsula brought a claim in the High Court of Northern Ireland seeking (among other things) a declaration that the covenant was unenforceable at common law. McBride J dismissed the claim. She observed that, following the decision of the House of Lords in Esso Petroleum Co Ltd v Harpers Garage (Stourport) Ltd [1968] AC 269 (Esso), it was necessary, in order to determine whether the covenant engaged the doctrine, to ask whether Mr Shortall or Peninsula had, on entry into the covenant, surrendered a pre existing freedom of theirs to use the land. She held that Mr Shortall had surrendered such a freedom, but that Peninsula had not; and that the covenant had therefore engaged the doctrine only until the assignment to Peninsula had occurred. The Court of Appeal allowed Peninsulas appeal, holding that the doctrine had been engaged both before and after the assignment. Dunnes now appeals to the Supreme Court. The Supreme Court unanimously allows the appeal and dismisses Peninsulas common law claim. Lord Wilson gives the lead judgment, with which Lord Lloyd Jones, Lady Arden and Lord Kitchin agree. Lord Carnwath gives a concurring judgment. Lord Wilson observes that the courts duty in this appeal is to examine the decision in Esso in the light of questions of logic and public policy and to ask whether the surrender of a pre existing freedom is an acceptable criterion for engagement of the doctrine [16]. Dunnes made a preliminary argument that, as neither Mr Shortall, a developer, nor Peninsula, a property holding company, was a trader, no restraint on them could be a restraint of trade. That argument appears to be too narrow. The covenant does restrain trade because it restrains Peninsula from causing or permitting a trade in specified goods in a retail unit of a specified size on the site [17]. The Esso case concerned a type of covenant under which the owner of a petrol station undertakes to buy from a particular supplier all the petrol to be sold at the station (a solus agreement). The respondent had entered into two solus agreements with Esso, each in respect of a different petrol station [19]. The respondent later repudiated the agreements and Esso sought an injunction requiring it to abide by them [20]. In the House of Lords, Lord Reid, with the support of the majority, formulated what has become known as the pre existing freedom test: he stated that a covenant restraining the use of land would engage the doctrine if, on entering into it, the person doing so (the covenantor) gives up some freedom which otherwise he would have had [23 24]. He held, again with majority support, that in relation to both agreements the doctrine was engaged [28]. Lord Wilberforce put forward a different test, known as the trading society test, under which a covenant restraining the use of land does not engage the doctrine if it is of a type which has passed into the accepted and normal currency of commercial or contractual or conveyancing relations and which may therefore be taken to have assumed a form which satisfies the test of public policy [26, 46]. Applying this test, he, too, concluded that the solus agreements engaged the doctrine [28]. The pre existing freedom test has received intense academic criticism [31]. In terms of public policy, which is the foundation of the doctrine, there is no explanation why a restraint should engage the doctrine if the covenantor enjoyed a pre existing freedom but why an identical restraint should not engage it if he did not do so [44]. The trading society test, by contrast, is consonant with the doctrine [47]. The court should therefore make use of its ability, recognised in the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, to depart from a previous decision of the House of Lords, and should depart from the pre existing freedom test formulated in the Esso case [49 50]. The objections to the test are that it has no principled place within the doctrine; that it has been criticised for over 50 years but scarcely defended; and that courts in Australia and parts of Canada have rejected it [32 43, 50]. Application of the trading society test to the facts of this case is straightforward and so there is no need to send the matter back to a lower court. For it has long been accepted and normal for the grant of a lease in part of a shopping centre to include a restrictive covenant on the part of the landlord in relation to the use of other parts of the centre. It follows that the covenant in this case has at no time engaged the doctrine [51]. So the question of whether the assignment of the burden of the covenant to Peninsula affected the engagement of the doctrine no longer arises [52]. Peninsula seeks an alternative remedy under the Property (Northern Ireland) Order 1978, which gives the Lands Tribunal or the High Court the power to make an order modifying or extinguishing the covenant if it constitutes an impediment to the enjoyment of land. That is a more satisfactory vehicle for resolution of the issues in this case. Peninsulas claim under the Order should now proceed to be heard [54 57]. In his concurring judgment Lord Carnwath agrees that the pre existing freedom test should be discarded in favour of the trading society test and that the appeal should be allowed [59 60, 68]. As an exception to ordinary principles of freedom of contract, the doctrine should not be extended without justification beyond established categories [61]. What matters is the practical effect of the restriction in the real world, and its significance in public policy terms [62].This case is different from Esso and the other trading cases: for the agreement is not in essence an agreement between traders but a transaction in land. The only trade which might be inhibited by it is that of a potential future occupier. None of the authorities suggests that there is any public policy reason or legal basis for protecting that mere possibility [63]. The covenant in this case does not restrict, but rather facilitates, the developers business [65].
This is an appeal brought by three companies, MVF 3 APS (formerly known as Vestergaard Frandsen A/S), Vestergaard Frandsen SA, and Disease Control Textiles SA, which are effectively in common ownership, and can conveniently be referred to compendiously as Vestergaard. Their appeal is against the Court of Appeals reversal of a decision by Arnold J that Mrs Trine Sig was liable to Vestergaard for misuse of their trade secrets after she ceased her employment with them. The basic factual background A major aspect of Vestergaards business is the development, manufacture and marketing of insecticidal bednets, whose purpose is to prevent the sleeper from being bitten by mosquitos, and also to reduce the mosquito population. An important challenge of the relevant technology is to find ways of ensuring that such bednets retain their insecticidal activity over a long period of time, despite vicissitudes such as repeated washing. To that end, Vestergaard developed techniques (which I shall call the techniques) which enabled them to manufacture and sell long lasting insecticidal nets, known as LLINs. The techniques involved incorporating insecticide and other additives into molten polyethylene, before it is extruded into filaments, which are then knitted to form LLINs. Mrs Sig was employed by Vestergaard from late 2000, initially as a sales and marketing assistant, and later as a regional sales manager for Europe and Latin America. By clause 8 of her employment contract, she agreed to: keep absolutely confidential all information relating to the employment and any knowledge gained in the course of the employment and which inherently should not be disclosed to any third party. The absolute duty of confidentiality also applies after [Mrs Sig] has terminated the employment . Mr Larsen, a chemical engineer, was employed by Vestergaard in November 2000 as head of production. His employment contract included provisions (i) preventing him from competing with Vestergaard for a period of one year after his employment ceased, and (ii) requiring him to respect the confidentiality of Vestergaards trade secrets. Dr Skovmand, a consultant biologist specialising in insect control, started working as a consultant for Vestergaard in 1998 until some time in 2005. He had no formal service contract. During the time he worked for Vestergaard, Dr Skovmand played a major role in developing the techniques. In particular, he helped to identify a way of preventing the insecticide from being lost during the extrusion of the polyethylene. At the beginning of 2004, he was seeking to prevent the loss of insecticide by evaporation caused by the high temperature of the polyethylene during manufacturing. The information concerning the techniques was contained in a so called Fence database maintained by Vestergaard. In the spring of 2004, Mr Larsen and Mrs Sig decided to start a new business manufacturing and selling LLINs in competition with Vestergaard. They discussed this with Dr Skovmand, who agreed to work with them, on the basis that he would have a financial interest in the new business. Accordingly, Mrs Sig resigned from her job with immediate effect in June 2004, and Mr Larsen did so a month later, and his employment ceased at the end of August 2004. By this time, the new business had already been under way for some five months, because in early April 2004 Dr Skovmand set about developing a new LLIN for Mr Larsen and Mrs Sig, using a polyester base. About a month later, Dr Skovmand informed them that he would be able to develop a LLIN more quickly if he used polyethylene rather than polyester. Mrs Sig instructed him to proceed on this basis, because he told her that a polyethylene based LLIN, which was in due course manufactured and called Netprotect, could be placed on the market by the end of 2004. In early August 2004, Mr Larsen and Mrs Sig formed a Danish company (Intection), with Mrs Sig as the sole director, for the purpose of developing, manufacturing and marketing the Netprotect product. The following month, Mrs Sig and Mr Larsen went to India with a view to finding prospective manufacturers for the product. In their discussions with the prospective manufacturers, they stipulated that any agreement with Intection would contain confidentiality provisions in relation to the details of the manufacturing of the product. Meanwhile, with the assistance of Mr Larsen, Dr Skovmand was organising the testing of Netprotect products, and those tests proved sufficiently successful for Intection to arrange a launch for October 2005. Vestergaard learned of this, and sought to stop the testing and future marketing of the new product. They issued proceedings in Denmark against Intection, and, by an amendment to those proceedings made in June 2005, they alleged breach of their trade secrets. In October 2005, the day before the proceedings were due to be heard, Mrs Sig resigned as a director of Intection, which then ceased to trade. A new English company, Bestnet Europe Ltd (Bestnet), was immediately formed, with Mrs Sig as the sole director, and her father, another investor, and Dr Skovmand, as the main shareholders. The Judge found that Mr Larsen and Mrs Sig moved the business to England with the express intention of trying to avoid the consequences of the Danish litigation. Mrs Sig and Mr Larsen provided their services to Bestnet through another English company, 3T Europe Ltd (3T), whereas Dr Skovmand worked directly for Bestnet in connection with the testing, development, and projected manufacturing and marketing of Netprotect. His work was successful, and Netprotect LLINs were, from some time in 2006, manufactured for and marketed by Bestnet. The procedural history In early 2007, Vestergaard began the present proceedings seeking damages and other relief for misuse of their confidential information, against Bestnet, 3T, Mr Larsen, and Mrs Sig (and two other companies which need no further mention). Following a 16 day hearing, Arnold J gave a judgment on 3 April 2009, in which he had to deal with a large number of issues of fact, expert evidence and law [2009] EWHC 657 (Ch). Of particular relevance for present purposes, the Judge made the following findings: (i) Dr Skovmand was under a duty to Vestergaard not to use any confidential information which he had acquired in the course of his consultancy work for Vestergaard; (iii) The contents of the Fence database constituted confidential information, namely trade secrets, owned by Vestergaard; (iv) Dr Skovmand knew of this confidential information as a result of working for Vestergaard, and he had appreciated at all times that it constituted Vestergaards trade secrets; (iv) Dr Skovmand had used such information about the techniques in the Fence database as a starting point for the development of the Netprotect product; (v) By July 2004 at the latest, Mr Larsen was aware of the fact that Dr Skovmand was using confidential information in the Fence database to develop that product; (vi) While in the employ of Vestergaard, Mrs Sig did not have access to the Fence database, and at no time did she have knowledge of any of the trade secrets which it contained; (vii) Although, by September 2004, Mrs Sig was aware that the Netprotect product was based on trade secrets, she believed that they originated from Dr Skovmands work for Intection (and, subsequently, Bestnet); (viii) By June 2005 Mrs Sig was aware of Vestergaards allegations, the Judge did not reject her evidence that she had not appreciated that the Netprotect product was conceived with the assistance of Vestergaards trade secrets; (ix) At trial, Dr Skovmand and Mr Larsen had put forward an untrue account of the development of Netprotect, including the production of forged documents, but there was no suggestion that Mrs Sig was involved in that. Unsurprisingly in the light of these findings, the Judge found that Dr Skovmand was liable in breach of confidence to Vestergaard (although there was no question of a judgment against Dr Skovmand, as he was not a party to the proceedings). The Judge then stated at [2009] EWHC 657 (Ch), para 625, that, if Dr Skovmand had committed an actionable breach of confidence, it was not dispute[d] that Mr Larsen, Mrs Sig, Bestnet [and] 3T were also liable on one basis or another. Counsel for Mrs Sig then challenged the proposition that she did not dispute liability, and the Judge reconsidered her liability at a further hearing concerned with remedies. Following that hearing, the Judge gave a second judgment on 26 June 2009, [2009] EWHC 1456 (Ch), in which he said this: 23. Mrs Sig was subject to an express obligation of confidentiality contained in clause 8 of her contract of employment. This obligation explicitly continued after termination of her employment. After termination, however, the obligation is only enforceable in so far as it prevents Mrs Sig from misusing [Vestergaard]s trade secrets. In the absence of an express term, Mrs Sig would be subject to an implied term to that effect. Although Mrs Sig was not personally involved in devising the initial Netprotect recipes or carrying out the trials, she was closely involved in setting up Bestnet and in the commercial side of the development of Netprotect. In my judgment, this is sufficient to render her liable for breach of her own obligation of confidence. 24. Counsel submitted that Mrs Sig could not be liable for breach of confidence absent a finding that she knew that the initial Netprotect recipes were derived from the Fence database. I do not agree. A person can be liable for breach of confidence even if he is not conscious of the fact that what he is doing amounts to misuse of confidential information: see Seager v Copydex Ltd [1967] 1 WLR 923. I would agree that a person who is not otherwise subject to an obligation of confidence (eg by contract) will not come under an equitable obligation of confidence purely as a result of the receipt of confidential information unless and until he or she has notice (objectively assessed by reference to a reasonable person standing in the shoes of the recipient) that the information is confidential; but that is a different point. A number of the aspects of the two judgments were appealed by the defendants to the Court of Appeal, which, in a judgment given by Jacob LJ (with which Jackson LJ and Sir John Chadwick agreed), upheld Arnold J on all points, save one. That point was the Judges conclusion that Mrs Sig was liable in breach of confidence [2011] EWCA Civ 424, paras 44 50. Jacob LJ said that Seager [1967] 1 WLR 923 was distinguishable because there the defendants were actually using the information which had been imparted to them, albeit they were doing so unconsciously. That is not so in the case of Mrs Sig. In the following paragraph, he said that he did not consider that there can be an implied term imposing strict liability. There is no business reason to imply a term of that harsh extent. All the principles of implication of a term into a contract (which I do not set out here they are too well known) militate against it. Vestergaard now appeal to this Court. Breach of confidence: preliminary observations Vestergaards contention that Mrs Sig is liable for breach of confidence is, as I understand it, put on three different bases. First, she is said to be liable under her employment contract, either pursuant to the express terms of clause 8 or pursuant to an implied term. Secondly, she is said to be liable on the basis that she was party to a common design, namely the design, manufacture and marketing of Netprotect, which involved Vestergaards trade secrets being misused. Thirdly, she is said to be liable for being party to the breach of confidence, as she had worked for Vestergaard, and then formed and worked for the companies which were responsible for the design, manufacture and marketing of Netprotect. In my opinion, each of these three arguments must fail because of the combination of two crucial facts. The first is that Mrs Sig did not herself ever acquire the confidential information in question, whether during the time of her employment with Vestergaard or afterwards. The second crucial fact is that, until some point during the currency of these proceedings (possibly not until Arnold J gave his first judgment), Mrs Sig was unaware that the Netprotect product had been developed using Vestergaards trade secrets. It would seem surprising if Mrs Sig could be liable for breaching Vestergaards rights of confidence through the misuse of its trade secrets, given that she did not know (i) the identity of those secrets, and (ii) that they were being, or had been, used, let alone misused. The absence of such knowledge would appear to preclude liability, at least without the existence of special facts. After all, an action in breach of confidence is based ultimately on conscience. As Megarry J said in Coco v A N Clark (Engineers) Ltd [1969] RPC 41, 46, [t]he equitable jurisdiction in cases of breach of confidence is ancient; confidence is the cousin of trust. The classic case of breach of confidence involves the claimants confidential information, such as a trade secret, being used inconsistently with its confidential nature by a defendant, who received it in circumstances where she had agreed, or ought to have appreciated, that it was confidential see eg per Lord Goff in Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281. Thus, in order for the conscience of the recipient to be affected, she must have agreed, or must know, that the information is confidential. The decision in Seager v Copydex Ltd [1967] 1 WLR 923, on which Arnold J relied, was an entirely orthodox application of this approach. The plaintiff passed on to the defendants a trade secret about his new design of carpet grip, and although the defendants realised that the secret was imparted in confidence, they went on to use that information to design a new form of carpet grip, which they marketed. What rendered the case unusual was that the defendants (i) did not realise that they had used the information, as they had done so unconsciously, and (ii) believed that the law solely precluded them from infringing the plaintiffs patent. However, neither of those facts enabled them to avoid liability, as, once it was found that they had received the information in confidence, their state of mind when using the information was irrelevant to the question of whether they had abused the confidence. Liability for breach of confidence is not, of course, limited to such classic cases. Thus, depending on the other facts of the case, a defendant who learns of a trade secret in circumstances where she reasonably does not appreciate that it is confidential, may nonetheless be liable to respect its confidentiality from the moment she is told, or otherwise appreciates, that it is in fact confidential. From that moment, it can be said that her conscience is affected in a way which should be recognised by equity. Further, while a recipient of confidential information may be said to be primarily liable in a case of its misuse, a person who assists her in the misuse can be liable, in a secondary sense. However, as I see it, consistently with the approach of equity in this area, she would normally have to know that the recipient was abusing confidential information. Knowledge in this context would of course not be limited to her actual knowledge, and it would include what is sometimes called blind eye knowledge. The best analysis of what that involves is to be found in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, especially at pp 390F 391D, where Lord Nicholls approved the notion of commercially unacceptable conduct in the particular context involved, and suggested that [a]cting in reckless disregard of others rights or possible rights can be a tell tale sign of dishonesty. Further, even a person who did not know that the information which is being abused is confidential could nonetheless be liable if there were relevant additional facts. Thus, if a person who directly misuses a claimants trade secret does so in the course of her employment by a third party, then the third party could (at least arguably) be liable to the claimant for the breach of confidence. However, I turn, then, to consider the three grounds upon which it is said that, despite that would simply involve the application of one well established legal principle, vicarious liability, to another, misuse of confidential information. In this case, subject to considering Vestergaards arguments in a little more detail, the position would seem to me to be as follows. First, unless her employment contract with Vestergaard imposed such a liability, Mrs Sig could not be primarily liable for misuse of confidential information, because she received no confidential information, or at least no relevant confidential information. Secondly, subject to the same qualification, she could not be secondarily liable for such misuse, as she did not know that Dr Skovmand was using, or had used, Vestergaards confidential information in order to develop the Netprotect product. Thirdly, it was not contended that Mrs Sig could be vicariously liable for any misuse of Vestergaards confidential information by Dr Skovmand (perhaps unsurprisingly, as it would seem that Dr Skovmand worked for Intection and then Bestnet, as did Mrs Sig, either as director, or through 3T). these points, Mrs Sig is liable to Vestergaard. The first ground: the terms of Mrs Sigs contract The express provisions of clause 8 of her employment contract are of no assistance to Vestergaards case. The confidential information wrongly used by Dr Skovmand to develop the Netprotect product was plainly neither information relating to [her] employment nor knowledge gained in the course of [her] employment. It was knowledge gained by Dr Skovmand in the course of his consultancy work for Vestergaard. It is not seriously arguable that a term can properly be implied into Mrs Sigs employment contract to the effect that she would not assist another person to abuse trade secrets owned by Vestergaard, in circumstances where she did not know the trade secrets and was unaware that they were being misused. To impose such a strict liability on Mrs Sig appears to me to be wrong in principle as it is (i) inconsistent with the imposition of the more limited express terms of clause 8, (ii) unnecessary in order to give the employment contract commercial effect, and (iii) almost penal in nature, and thus incapable of satisfying either of the well established tests of obviousness and reasonableness. The second ground: common design I turn, then, to the second, and most strongly advanced, ground upon which Vestergaards case rests, namely that Mrs Sig was liable for breach of confidence on the basis of common design. This argument proceeds on the basis that Dr Skovmand, Mr Larsen and Mrs Sig all worked together to design, manufacture and market Netprotect products, and as these products were designed by Dr Skovmand in a way which involved his wrongfully misusing Vestergaards trade secrets so as to render him liable for breach of confidence, Mrs Sig and Mr Larsen are liable together with him. I accept that common design can, in principle, be invoked against a defendant in a claim based on misuse of confidential information; I am also prepared to assume that, in the light of the findings made by the Judge, Mr Larsen was liable on that ground (as he knew that Dr Skovmand was misusing, and had used, Vestergaards trade secrets when designing Netprotect). However, I cannot see how Mrs Sig could be so liable, in the light of her state of mind as summarised in para 22 above. As Lord Sumption pointed out in argument, 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. In this case, Mrs Sig neither had the trade secrets nor knew that they were being misused, and therefore she did not share one of the features of the design which rendered it wrongful, namely the necessary state of knowledge or state of mind. Accordingly, although she was party to the activities which may have rendered other parties liable for misuse of confidential information, she cannot be liable under common design. A driver of the motor car who transports a person to and from a bank to enable him to rob it, would be liable in tort for the robbery under common design or some similar principle, but only if she knew that her passenger intended to rob, or had robbed, the bank. So, in this case, given the ingredients of the wrong of misuse of confidential information, and given that she never had any relevant confidential information, Mrs Sig cannot be held liable in common design for exploiting with others, on behalf of Intection and then Bestnet, a product which, unknown to her, was being and had been developed through the wrongful use of Vestergaards trade secrets. We were taken to two decisions, which, it was suggested, are inconsistent with that conclusion. The first is Unilever Plc v Gillette (UK) Ltd [1989] RPC 583, 609, where Mustill LJ said that, in order to show that a defendant was secondarily liable for infringement of a patent, there [was no] need for a common design to infringe, as it was enough if the parties combine to secure the doing of acts which in the event prove to be infringements. I do not doubt the correctness of that statement, but it has no application here. Patent infringement is a wrong of strict liability: it requires no knowledge or intention on the part of the alleged infringer, whose state of mind is wholly irrelevant to the issue of whether she infringes the patent. Thus, the fact that the alleged infringer did not know of the existence, contents or effect of the patent is completely irrelevant to the question of infringement, even if she had thought the invention up for herself. Accordingly, it is entirely logical that a person who, while wholly innocent of the existence, contents or effect of the patent, is nonetheless secondarily liable if she assists the primary infringer in her patent infringing acts. It cannot possibly follow that the same approach is appropriate in a case for a person who assists the primary misuser of trade secrets, given that it is necessary to establish the latters knowledge and/or state of mind (as explained in paras 22 25 above) before she can be liable for the misuse. The second case relied on by Vestergaard is Lancashire Fires Ltd v S A Lyons & Co Ltd [1996] FSR 629. In that case, an injunction to restrain the misuse of the plaintiffs confidential information was granted against a Ms Magnall on the ground she had had a common design with [another] to manufacture [certain products] and the process used was found to be confidential to the plaintiff p 677. It appears that, while she had been aware of the nature of the process, Ms Magnall had not been aware of the fact that the manufacture of those products involved a process which had been wrongly developed with the benefit of the plaintiffs trade secrets. Sir Thomas Bingham MR said at p 677, that it was just that Susan Magnall should be precluded from disclosing the information to others and therefore granted an injunction against her. As already explained in para 25 above, I have no difficulty with the idea that a person who receives and uses confidential information, but does not appreciate that it is confidential, can be liable for using that information once she appreciates that it is indeed confidential. Accordingly, in this case, the grant of an injunction against Mrs Sig, if she was threatening to use or pass on Vestergaards trade secrets, might well be justified, once it could be shown that she appreciated, or, perhaps, ought to have appreciated, that they were confidential to Vestergaard. However, I do not see how that can entitle Vestergaard to damages from Mrs Sig in respect of losses suffered from misuse of their trade secrets at a time when Mrs Sig was honestly unaware of the fact that there had been any misuse of their trade secrets. I note that in Lancashire, immediately after the short passage I have just quoted, Sir Thomas Bingham MR added that [i]f the plaintiff seeks financial relief against Susan Magnall, we shall need to hear further argument before deciding the point. (I should add that it appears that Lancashire may not have been as fully argued as it might have been in one respect, in that, at least at first instance, it was apparently conceded that the principle in Unilever, as discussed above, applied to confidential information cases, whereas, for the reason I have given in para 37 above, this is wrong.) The third ground: Mrs Sigs unusual position In so far as I understand the third way of putting Vestergaards case, (i) it involves saying that Mrs Sig had blind eye knowledge of the fact that Dr Skovmand was using Vestergaards trade secrets, or (ii) it amounts to contending that Mrs Sig should be liable for misuse of confidential information, as she must have appreciated that she was, to use a well worn metaphor, playing with fire, when she started up the new business with Mr Larsen, employing Dr Skovmand, in 2004. These two alternative ways of presenting Vestergaards third ground are quite close in their import, and in a sense they can both be said to involve an attempt to conflate the first and second grounds, albeit in a somewhat incoherent way. In the end they each must fail, essentially because of findings of fact made (or, in many respects, understandably not made) by the Judge. So far as argument (i) is concerned, it cannot succeed without a finding against Mrs Sig of dishonesty of the sort characterised by Lord Nicholls in Royal Brunei, as discussed in para 26 above. There is no such finding, and it seems to me clear from the conclusions which the Judge did reach, as summarised in para 15 above, that there was no basis for his making any finding of relevant dishonesty on the part of Mrs Sig. As to argument (ii), it is not enough to render a defendant secondarily liable for misuse of trade secrets by another to establish that she took a risk in acting as she did. The fact that she took a risk might often render it easier to hold that she was dishonest, but, by definition, it is not enough on its own. To revert to the metaphor, if one plays with fire, one is more likely to be burnt, but it does not of itself mean that one is burnt. Conclusion Looking at this case a little more broadly, I would add this. Particularly in a modern economy, the law has to maintain a realistic and fair balance between (i) effectively protecting trade secrets (and other intellectual property rights) and (ii) not unreasonably inhibiting competition in the market place. The importance to the economic prosperity of the country of research and development in the commercial world is self evident, and the protection of intellectual property, including trade secrets, is one of the vital contributions of the law to that end. On the other hand, the law should not discourage former employees from benefitting society and advancing themselves by imposing unfair potential difficulties on their honest attempts to compete with their former employers. In my judgment, quite apart from being inconsistent with legal principle for the reasons discussed above, it would be inconsistent with maintaining that balance to hold Mrs Sig liable to Vestergaard for misuse of their confidential information on the facts found by the Judge. Given that she did not learn of any relevant trade secrets owned by Vestergaard when she was employed by them, and did not appreciate that any such secrets were being used by an employee of the company of which she was a founder and director, it would be oppressive to hold Mrs Sig (as opposed to the employee or the company) liable to Vestergaard for breach of confidential information, whether or not she had previously worked for Vestergaard pursuant to a contract containing a standard sort of provision aimed at protecting Vestergaards trade secrets. Accordingly, I would dismiss Vestergaards appeal.	Three companies (which can be conveniently referred to as Vestergaard) developed techniques (the techniques) which enabled them to manufacture and sell long lasting insecticidal nets. The purpose of a long lasting insecticidal net (LLIN) is to prevent the sleeper from being bitten by mosquitoes, and also to reduce the mosquito population. From 2000 to 2004, Mrs Trine Sig and Mr Torben Larsen were employed by Vestergaard. Their employment contracts contained provisions requiring them to respect the confidentiality of Vestergaards trade secrets. In 2004, Mrs Sig and Mr Larsen resigned from Vestergaard. They formed a Danish company, Intection, which started to carry on a business in competition with Vestergaard, manufacturing and selling new LLINs under the name Netprotect. Dr Ole Skovmand, who worked as a consultant to Vestergaard from 1998 to 2005, and played a major role in developing the techniques, agreed to assist Mrs Sig and Mr Larsen to manufacture Netprotect. Eventually, tests proved sufficiently successful for Intection to arrange a launch for the new product. Vestergaard issued proceedings in Denmark against Intection to stop the testing and future marketing of Netprotect. The day before proceedings were due to be heard, Mrs Sig resigned as a director of Intection, which then ceased to trade. A new English company, Bestnet Europe Ltd (Bestnet), was immediately formed, with Mrs Sig as the sole director, and Dr Skovmand as one of the shareholders. Mrs Sig and Mr Larsen provided their services to Bestnet through another English company, 3T Europe Ltd (3T). Dr Skovmand worked directly for Bestnet in connection with the testing, development, and projected manufacturing and marketing of Netprotect. From 2006, Netprotect LLINs were manufactured for and marketed by Bestnet. Vestergaard brought proceedings in England against Bestnet, 3T, Mr Larsen, and Mrs Sig, seeking damages and other relief for misuse of Vestergaards confidential information. In two judgments, Arnold J found that the techniques constituted confidential information in the form of trade secrets owned by Vestergaard, and that Dr Skovmand, Mr Larsen, Mrs Sig, Bestnet, and 3T, were liable for breach of confidence to Vestergaard. A number of the aspects of the two judgments were appealed. The Court of Appeal, in a judgment given by Jacob LJ (with which Jackson LJ and Sir John Chadwick agreed), upheld Arnold J on all points, save one, which is the subject of this appeal. That point was Arnold Js finding that Mrs Sig was liable to Vestergaard for breach of confidence, which the Court of Appeal reversed. Before the Supreme Court, Vestergaard argued that Mrs Sig is liable for breach of confidence on three different bases: (i) under her employment contract, either pursuant to its express terms or to an implied term; (ii) for being party to a common design which involved Vestergaards trade secrets being misused; (iii) for being party to a breach of confidence, as she had worked for Vestergaard, and then formed and worked for the companies which were responsible for the design, manufacture and marketing of Netprotect. The Supreme Court unanimously dismisses the appeal. Lord Neuberger gives the judgment of the Court. Vestergaards arguments fail because of the combination of two crucial facts: (i) Mrs Sig did not herself ever acquire the confidential information in question; and (ii) until some point during these proceedings, Mrs Sig was unaware that Netprotect had been developed using Vestergaards trade secrets [21]. An action for breach of confidence is based ultimately on conscience. In order for the conscience of the recipient to be affected, she must have information which she has agreed, or knows, is confidential, or she must be party to some action which she knows involves the misuse of confidential information [23]. Given that Mrs Sig knew neither of the identity of Vestergaards trade secrets, nor that they were being, or had been, used, it would seem to follow that Mrs Sig should not be liable for breaching Vestergaards rights of confidence [22]. More broadly, the law has to maintain a realistic and fair balance between (i) effectively protecting trade secrets and other intellectual property rights, and (ii) not unreasonably inhibiting competition in the market place. The protection of intellectual property, including trade secrets, is a vital contribution of the law to research and development. However, the law should not discourage former employees from benefitting society and advancing themselves by imposing unfair potential difficulties on their honest attempts to compete with their former employers [44], and it would be inconsistent with maintaining that balance to hold Mrs Sig liable to Vestergaard [45]. Mrs Sig is not liable for breach of confidence under any of the three alleged bases. (i) The express provisions of Mrs Sigs employment contract are of no assistance to Vestergaards case [30], and it is not seriously arguable that a term can properly be implied into the contract which would render her liable in the circumstances of this case [31]. (ii) Mrs Sig cannot be liable under common design. Although she was party to the activities which may have rendered other parties liable for misuse of confidential information, she neither had the trade secrets nor knew that they were being misused [34] [35]. Vestergaard cannot be entitled to damages from Mrs Sig in respect of losses suffered from misuse of their trade secrets at a time when she was honestly unaware of the fact that there had been any misuse of their trade secrets. A defendant can only be liable under common design if she shares with others the essential elements which renders the design unlawful [34],[39]. (iii) To find that Mrs Sig was wilfully blind to the fact that Dr Skovmand was using Vestergaards trade secrets would require a finding against Mrs Sig of dishonesty. The judge did not make any such finding, and there was no basis for making any such finding [42]. It is not enough to render a defendant secondarily liable for misuse of trade secrets by another to establish merely that she took a risk in acting as she did [43].
On the evening of 12 February 1989, gunmen burst into the North Belfast home of Patrick Finucane, a solicitor. He was having supper with his wife and three children. In their presence he was brutally murdered. He was shot 14 times. Mrs Finucane was injured by a ricocheting bullet which struck her on the ankle. This shocking and dreadful event still ranks, almost 30 years later, as one of the most notorious of what are euphemistically called the Northern Ireland troubles. Mrs Finucane and her children have waged a relentless campaign since Patricks killing to have a proper investigation conducted into the circumstances in which he was murdered. It became clear at an early stage that those responsible were soi disant loyalists. Before long, it also emerged that there was collusion between Mr Finucanes murderers and members of the security forces. Various investigations about the murder and the nature of the collusion have been conducted. None of these has uncovered the identity of those members of the security services who engaged in the collusion nor the precise nature of the assistance which they gave to the murderers. (i) The police investigation An investigation into Mr Finucanes death was launched by the Royal Ulster Constabulary (RUC), then the police force in Northern Ireland. A number of suspects were arrested and interviewed in the days following the murder. None was charged with a criminal offence. The initial RUC investigation did not consider the possibility of collusion between the security services and the loyalists who killed Mr Finucane. On 4 July 1989 a gun was found during a police search in the Shankill Road area of Belfast. It proved to be one of the weapons used to murder Mr Finucane. It had been stolen by a Colour Sergeant of the Ulster Defence Regiment (UDR) in 1987. In April 1990 three people were convicted of possession of the gun and of membership of the banned paramilitary organisation, the Ulster Freedom Fighters, but they could not be linked to Mr Finucanes murder. The Colour Sergeant who had stolen the weapon sold it to a man called Ken Barrett. In 2004 Barrett pleaded guilty to the murder of Mr Finucane. (ii) The inquest When an inquest into Mr Finucanes death was held on 6 September 1990, his widow, Geraldine, was stopped from giving evidence about threats to her husbands life which, it is claimed, had been made to some of his clients by police officers who were interviewing them at Castlereagh Holding Centre, a police detention centre where suspects were interviewed. The coroner conducting the inquest ruled that, as the law then stood, his inquiry was confined to the cause and immediate circumstances of the death. (The inquest was held, obviously, before the decision of the House of Lords in R (Middleton) v West Somerset Coroner [2004] 2 AC 182.) (iii) The Stevens and Langdon Inquiries In September 1989, John Stevens (then the deputy chief constable of the Cambridgeshire constabulary, later Sir John, and yet later Lord Stevens) was appointed by the chief constable of the RUC to investigate allegations of collusion between the security forces and loyalist paramilitaries. This investigation did not specifically examine the murder of Patrick Finucane. Sir John Stevens reported to the chief constable in April 1990. On 17 May 1990, the Right Honourable Peter Brooke MP, the then Secretary of State for Northern Ireland, made a statement to the House of Commons relating to Sir John Stevens investigation. He said that as a result of that inquiry, 94 people had been arrested and that 59 had been reported for or charged with offences. As a consequence of the investigation 45 individuals were later convicted of terrorist related offences mostly for possession of materials likely to be of use to terrorists. Those convicted included 32 members of the Ulster Defence Association (UDA), a loyalist paramilitary group, and 11 members of the UDR. The report of Sir John Stevens which led to these events has never been published. It has later been established that Sir John Stevens was seriously obstructed in his investigations. Instructions were given to deny him access to intelligence information. Material about advance warnings to UDA members in relation to pending arrests was deliberately withheld. The first Stevens Inquiry did lead to the identification of Brian Nelson, however. He was an informer for the security services, in particular, an organisation within the British army known as the Force Research Unit (FRU). Although the army had denied running any agents in Northern Ireland, the discovery of Nelsons fingerprints on intelligence documents put paid to that particular denial. Nelson had been recruited by FRU. On their instigation, he infiltrated the UDA and became its chief intelligence officer. His role involved the gathering of information about possible targets for assassination. Nelson was arrested by the Stevens team on 12 January 1990. He made statements to the investigators about his activities. In due course, he was charged with a number of terrorist crimes and in January 1992 he pleaded guilty to five charges of conspiracy to murder, two of collecting information likely to be useful to terrorists, 12 charges of aiding and abetting others to possess or collect information likely to be useful to terrorists and one charge of possession of a firearm with intent. He was sentenced to ten years imprisonment. None of his convictions related to the murder of Patrick Finucane. At Nelsons sentencing hearing, the commanding officer of FRU, identified as Colonel J, gave evidence on his behalf. He claimed that Nelson had given information to FRU which had been instrumental in saving many lives. This evidence is highly controversial. It has been the subject of examination in a number of reports concerning Mr Finucanes murder. These shall be discussed later in this judgment. On 11 February 1992, Mrs Finucane began a civil action against the Ministry of Defence and Brian Nelson. She later commenced proceedings against the police. These proceedings remain outstanding. On 8 June 1992 a second Stevens Inquiry was instituted. This followed the broadcast on the BBC of a programme entitled, Dirty War, in which it was claimed that Nelson had been involved in a number of murders and that he had been responsible for targeting Patrick Finucane. It was also reported that he had passed Mr Finucanes photograph to the UDA. Interim reports from the second Stevens Inquiry were submitted to the Director of Public Prosecutions in April and October 1994 and a final report was delivered on 24 January 1995. No prosecutions were instituted on foot of those reports. Again, this inquiry did not address directly the killing of Mr Finucane. In 1999, a non governmental organisation, British Irish Rights Watch, provided the Secretary of State for Northern Ireland with a paper entitled, Deadly Intelligence: State Collusion with Loyalist Violence in Northern Ireland. This made a number of claims including that there had been state collusion in the murder of Patrick Finucane. This, the paper asserted, had taken place as a result of contact and exchanges between Brian Nelson, his FRU handlers and the RUC Special Branch. Shortly after this, the Secretary of State asked a Home Office civil servant, Anthony Langdon, to conduct an inquiry into whether a fresh investigation of these claims was warranted. Among the conclusions reached by Mr Langdon were these: (1) There were grounds for believing that one of his army handlers had assisted Nelson in the targeting of a murder victim; (2) The same handler knew nothing about the threat to Patrick Finucane before his murder; (3) But the handler had refused to answer police questions about these matters; (4) Colonel Js evidence at Nelsons trial had misled the trial judge; (5) The FRU gave Nelson intelligence information in some instances; (6) Nelsons handlers were well aware of his efforts to support the UDA in targeting republicans; (7) Finucane to his handler before the murder. It was probable that Nelson had mentioned something about Patrick A third Stevens Inquiry was set up in May 1999. This focused on the murder of Mr Finucane and another man and the question of collusion between members of the security services and loyalist paramilitaries. The following month a man called William Stobie was charged with the murder of Mr Finucane. During a court hearing, Stobies solicitor stated that he had twice given information about the intended attack on Mr Finucane and that on neither occasion had this information been acted on. The case against Stobie collapsed when a vital witness refused to give evidence and all charges against him were dismissed in November 2001. A short time later, on 12 December 2001, he was murdered by, it is believed, loyalist paramilitaries. On 19 June 2002 the BBC broadcast a programme called, A licence to murder. In the course of this, a reporter, John Ware, interviewed Sir John Stevens and asked, Was what was done in the name of the state defensible? He replied . the activities of the so called double agent Nelson of course [were] inexcusable. Detective Sergeant Nicholas Benwell, a member of the Stevens Inquiry team from 1989 to 1994, was also interviewed and asked did . the Stevens Inquiry come to the conclusion that military intelligence was colluding with their agent . to ensure that the loyalists shot the right people? He replied, Yes, that was the conclusion we came to . there was certainly an agreement between his handlers and Nelson that the targeting should concentrate on what they described as the right people. On 17 April 2003 Sir John Stevens published a report which contained what was described as an overview of his investigation into the murder of Patrick Finucane. In it he said, at para 4.6, that he had . uncovered enough evidence to lead me to believe that the murder . of Patrick Finucane could have been prevented. He also concluded that . the RUC investigation of Patrick Finucanes murder should have resulted in the early arrest and detection of his killers. He found, at para 4.9, there had been collusion in the murder and said, . the co ordination, dissemination and sharing of intelligence were poor. Informants and agents were allowed to operate without effective control and to participate in terrorist crimes. Nationalists were known to be targeted but were not properly warned or protected. Crucial information was withheld from senior investigating officers. Important evidence was neither exploited nor preserved. As to William Stobie, Sir John said, at para 2.7: It has now been established that before the murder of Patrick Finucane, Stobie supplied information of a murder being planned. He also provided significant information to his Special Branch handlers in the days after the murder. This principally concerned the collection of a firearm. However, this vital information did not reach the original murder inquiry team and remains a significant issue under investigation by my Inquiry team. The third Stevens Inquiry also examined the role of Brian Nelson in the murder of Patrick Finucane. The overview report stated, at para 2.12: . Nelson was aware [of] and contributed materially to the intended attack on Finucane. It is not clear whether his role in the murder extended beyond passing a photograph, which showed Finucane and another person, to one of the other suspects. Nelson was rearrested and interviewed. There was no new evidence and he was not charged with any further offences. While the third Stevens Inquiry was taking place, in the summer of 2001, political talks between the United Kingdom and Irish governments were held at Weston Park, Staffordshire. It was decided that a judge of international standing would be appointed to undertake a thorough investigation of allegations of collusion in a number of cases including that of Patrick Finucane. The statement about the appointment of this judge contained the following: If the appointed judge considers that in any case [the inquiry is not provided with a] sufficient basis on which to establish the facts, he or she can report to this effect with recommendations as to what further action should be taken. In the event that a Public Inquiry is recommended in any case, the relevant Government will implement that recommendation. (Emphasis supplied) (iv) The Strasbourg case Mrs Finucane applied to the European Court of Human Rights (ECtHR) for a declaration that the United Kingdom government had failed to carry out a proper investigation into her husbands death and for an order requiring the government to conduct a full public inquiry into its circumstances. On 1 July 2003, ECtHR held that there had not been an inquiry into the death of Patrick Finucane which complied with article 2 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). The first two Stevens inquiries, it held, since they did not involve an investigation of the killing of Mr Finucane, could not meet the requirements of article 2. Quite apart from this, the reports had not been made public and Mrs Finucane had not been informed of their findings. The necessary elements of public scrutiny and accessibility by the family of Mr Finucane to information about the circumstances in which he came to be killed were therefore absent. As to the third inquiry, which was concerned with the Finucane murder, ECtHR held that, since it had begun ten years after the event, it could not meet the requirement that effective investigations be commenced promptly and conducted with due expedition. The court also held that the absence of reasons for decisions not to prosecute in controversial cases was not conducive to public confidence and could deny the victims family access to information about a matter of crucial importance to them and prevent any legal challenge of the decision. The court observed that, despite the suspicions of collusion, no reasons had been given at the time for the various decisions not to prosecute. No information was made available to Mrs Finucane or to the public that might have provided reassurance that the rule of law had been respected. In these circumstances, the requirements of article 2 could not be met, unless the information was forthcoming in some other way. That had not happened. In sum, the court held that the proceedings for investigating the death of Patrick Finucane had failed to provide a prompt and effective investigation into the allegations of collusion by security personnel. ECtHR did not find it necessary to address further allegations of a lack of accessibility by the family to the Stevens 3 investigations or of a lack of independence between that inquiry and the Police Service of Northern Ireland (PSNI) (which had replaced the RUC). The court found that there had been a failure to comply with the procedural obligation imposed by article 2. ECtHR referred to the circumstance that it had not previously indicated that a government should hold a fresh investigation in response to a finding of a breach of the procedural obligation under article 2. On that account, it decided that it was not appropriate to do so in this case. It stated that it could not be assumed that a future investigation could usefully be carried out or that such an investigation would provide any redress, either to the victims family or by way of providing transparency and accountability to the wider public. The lapse of time, the effect on evidence and the availability of witnesses might make such an investigation an unsatisfactory or inconclusive exercise. The court stated that it fell to the Committee of Ministers acting under article 46 to consider what might practicably be required by way of the governments obligation to comply with its article 2 obligations. (v) The Committee of Ministers consideration of the case Article 46.2 of ECHR provides that the final judgment of ECtHR shall be transmitted to the Committee of Ministers, which shall supervise its execution. The Committee of Ministers is the Council of Europes statutory decision making body. It is made up of the ministers for foreign affairs of member states or their permanent diplomatic representatives in Strasbourg. The Secretariat of the Commission published its assessment of the case on 19 November 2008. It suggested that the requirements of public scrutiny and accessibility by the family to information about Mr Finucanes death had been met. Crucially, this decision was based on a detailed statement by the Public Prosecution Service (PPS) of the reasons that it had decided not to institute further prosecutions and the absence of challenge to those reasons. (The Director of Public Prosecutions had issued a statement on 25 June 2007, having taken the advice of independent senior counsel. The statement recorded that, following his examination of the third Stevens Inquiry report, the Director had concluded that the test for prosecution was not met in relation to any other possible criminal proceedings relating to Mr Finucanes murder, apart from those which had already been taken against Stobie and Barrett. In particular, the Directors statement continued, the available evidence was insufficient to establish that any member of the FRU had agreed with Nelson or anyone else that the murder was to take place; that any RUC officer had agreed with Stobie or Barrett that Mr Finucane was to be murdered; or that there was misfeasance in public office by members of the FRU in the handling of Nelson as an agent). In the assessment report of 19 November 2008, it was also stated that the Committee of Ministers might strongly consider encouraging the UK authorities to continue discussion with Mrs Finucane on the terms of a possible inquiry into her husbands murder. That recommendation was accepted by the Committee of Ministers on 17 March 2009 and it was decided that the examination of the specific measures taken by the UK on foot of the decision of ECtHR should be closed. Importantly, however, this decision was made on the basis that the UK was actively working on proposals for establishing a statutory public inquiry. (vi) Judge Corys inquiry Several years before the Committee of Ministers consideration of the case, on foot of the agreement made at Weston Park (see para 23 above), Judge Peter Cory, a retired justice of the Supreme Court of Canada, was appointed in June 2002 to conduct an inquiry into the murders of a number of people, including that of Mr Finucane. His letter of appointment contained an assurance that, in the event that he recommended a public inquiry into any of the deaths, the government would abide by that recommendation. in relation to the killing of Patrick Finucane, were these: (i) A public inquiry into his murder was required; (ii) The weight to be attached to Brian Nelsons statement to the Stevens Inquiry could only be determined at a hearing where the evidence was tested by examination and cross examination in a public forum; Judge Corys report was published on 1 April 2004. Among his conclusions, (iii) The documentary evidence which Judge Cory had considered was contradictory regarding the extent to which FRU had advance knowledge of the targeting of Mr Finucane; (iv) While the inference could be drawn that FRU did indeed have prior information that Mr Finucane had been targeted, a decision on whether that was so could only be properly dealt with at a public inquiry; (v) In 1981 the security services had been prepared to disregard warnings that Mr Finucane was in imminent and serious danger. They had chosen this path in order to protect the identity of one of their agents; (vi) The failure of the security services in June 1985 and December 1988 to warn Mr Finucane that he was in danger was significant and might well be sufficient in [itself] to warrant a public inquiry. In any event [it] must be taken into account in considering the overall or cumulative effect of all the relevant documents. That cumulative effect leads to a conclusion that a public inquiry should be held to examine the issues raised in this case; (vii) There was evidence of a persisting attitude within the RUC special branch and the FRU that they were not bound by the law and were above its reach. The relevance and significance of this should be considered at a public inquiry. By any standard, these amounted to compelling reasons for the holding of a public inquiry. Since prosecutions in the Finucane case were pending at the time that Judge Cory reported, however, an inquiry into his death could not be instituted immediately. But the Secretary of State for Northern Ireland made a statement that the government would set out the way ahead for the inquiry when the prosecutions ended. Following Barretts conviction, the Secretary of State wrote to Mrs Finucane, outlining a statement which he intended to make to the House of Commons on 23 September 2004. That letter stated that, in the inquiry into Mr Finucanes killing, the tribunal would be tasked with uncovering the full facts of what happened and will be given all of the powers and resources necessary to fulfil that task. In order that the inquiry can take place speedily and effectively and in a way that takes into account the public interest, including the requirements of national security, it would be necessary to hold the inquiry on the basis of new legislation which will be introduced shortly. The new legislation referred to here was to be the Inquiries Act 2005. Before its introduction (on 7 June 2005), public inquiries were held under the Tribunals of Inquiry (Evidence) Act 1921. It is the governments case that this would have provided a wholly unsuitable vehicle for an inquiry into the death of someone such as Mr Finucane. Since national security issues were bound to arise, applications for public interest immunity (whereby certain matters that had to remain confidential would be excluded from evidence) would be an inevitable feature. This, the government suggested, would restrict the ambit of an inquiry such as was proposed into Mr Finucanes murder. The new legislation was intended to remove the need for a public interest immunity procedure in public inquires. All relevant information could be considered, subject to restrictions on further publication. It had been argued on behalf of Mrs Finucane that the 2005 Act had been enacted specifically to deal with the proposed public inquiry into her husbands death. This was refuted by the government. It was pointed out that the 2005 Act had been preceded by a public consultation exercise conducted by the Department of Constitutional Affairs and a parliamentary inquiry carried out by the administration committee of the House of Commons. Moreover, the Act had been subject to post legislative scrutiny on two occasions. In a note submitted to this court after the hearing of the appeal, the appellant explained that she had understood from correspondence that she had received from the government and the terms of the Secretary of States statement to the House of Commons that the 2005 Act had to be introduced to allow the inquiry into her husbands death to proceed. She now accepts that all that the government had intended to convey was that the inquiry could not take place until the legislation had been enacted. Mrs Finucane objected strenuously to the proposal that the inquiry into her husbands death be conducted under the terms of the 2005 Act. Section 19 of that Act allows ministers to impose restrictions on (i) attendance at an inquiry or any particular part of an inquiry; and (ii) disclosure of any evidence or documents given, produced or provided to an inquiry. The case made by Mrs Finucane was that, at least potentially, this removed substantial control of the inquiry process from the person chairing the inquiry and transferred it to ministerial edict. Various discussions and efforts to obtain agreement and compromise took place over the years that followed. These proved unavailing. In May 2010, following the general election, a new coalition government was formed and discussions about the inquiry into Patrick Finucanes murder took a different turn indeed, a series of different turns. These have been well and fully described in the judgment of Gillen LJ in the Court of Appeal in Northern Ireland (Gillen LJ, Deeny J and Horner J [2017] NICA 7) in paras 41 61 and need not be repeated extensively here. In broad summary, these include: (i) The openly stated views of the Secretary of State for Northern Ireland, the Rt Hon Owen Paterson MP, and the Prime Minister, the Rt Hon David Cameron MP, that, generally, there should not be long running, open ended and costly inquiries into the past in Northern Ireland. Indeed, a statement to that effect had appeared in the Conservative partys manifesto for the 2010 election; (ii) On 3 November 2010, Mr Paterson wrote to the Prime Minister, outlining the process which he intended to follow in relation to deciding whether it was in the public interest to establish a public inquiry into the death of Patrick Finucane. He referred to the policy that, in general, there should not be expensive, lengthy inquiries. He also provided information about the cost of recent inquiries. He made it clear, however, that the policy would not necessarily dictate the outcome each case would be considered on an individual basis; (iii) Following a meeting between the Prime Minister, the Attorney General and Mr Paterson, the last named made a statement to Parliament on 11 November 2010, in which he said that he intended to embark on a two month consultation period on the question of whether it was in the public interest to establish a public inquiry into the death of Patrick Finucane. This would involve discussions with the family. The views of public authorities and the public in general would be sought. Six particular factors would be taken into account: The commitment given in 2004; Public concern arising from the reviews and investigations that The experience of other inquiries established after the Weston had occurred; Park Commitments; The delay which had occurred since the 2004 announcement Political developments that have taken place in Northern and the potential length of the inquiry; Ireland since 2004; government finances. The potential costs of any inquiry and the current pressure on (iv) Meetings between Mrs Finucanes legal representatives and the government occurred in January and February 2011. These centred on whether a Baha Mousa type inquiry would be acceptable to the family. (The Baha Mousa inquiry, conducted by the Rt Hon Sir William Gage under the 2005 Act (2011) (HC 1452) had devised a protocol which provided that questions of disclosure should be decided by Sir William, using the restriction order procedure but that this did not prevent the use of a restriction notice by a minister). Some time after the meetings had taken place, representatives of the family indicated that, of the various formats for an inquiry that had been discussed, the Baha Mousa format would be the most appropriate. The government contends, however, that the Finucane family did not respond to the question of whether a restriction notice could, if necessary, continue to be issued by a minister, something which was possible under the Baha Mousa protocol; (v) Various briefing papers were submitted to ministers and a succession of meetings between civil servants and ministers took place between April and July 2011. In one significant email of 9 July 2011, Sir Jeremy Heywood, later the cabinet secretary, stated: Does the PM seriously think that it is right to renege on the previous Governments clear commitment to hold a full judicial inquiry? This was a dark moment in the countrys history far worse than anything that was alleged in Iraq/Afghan. I cannot really think of any argument to defend not having a proper inquiry. As Gillen LJ observed in para 59 of his judgment, Sir Jeremy moderated that opinion somewhat in later correspondence, but it nevertheless remains a striking expression of view from a senior civil servant; (vi) The decision not to hold a public inquiry was made at a meeting of relevant ministers and civil servants on 11 July 2011. The prime minister chaired the meeting. Minutes of the meeting recorded him as having made the following points: The primary objective was to find the truth. There were strong reasons to conclude that the public interest in securing this objective would be better served by a process other than a potentially lengthy, costly and procedurally difficult public inquiry which might be unworkable in light of national security issues. His preference was for a speedier, paper based review of all existing material by an independent person. any announcement. There would be discussion with Mrs Finucane in advance of On 12 October 2011, the Secretary of State for Northern Ireland made a statement to the House of Commons that the former United Nations war crimes prosecutor, Sir Desmond de Silva, had been asked to conduct an independent review of any state involvement in Mr Finucanes murder. He was to have unrestricted access to documents and was free to meet anyone whom he felt could help with his inquiry. The de Silva Review (2012) (HC 802 I) The terms of reference for Sir Desmonds review were these: To draw, as required, from the extensive investigations that had already taken place; To carry out a non statutory, document based review without oral hearings and produce a full account of any involvement by the army, the RUC, the security service or other UK government body in the murder of Patrick Finucane; To have full access to the archives of the various Stevens inquiries and to all government papers; His work was to be carried out independently of government; He was not asked to, nor was he given the power to, hold oral hearings although, if he wished to meet people who could assist with the work, that was a matter for him. The manner in which Sir Desmond carried out his review, the people he met, the documents which he considered and the conclusions which he reached are comprehensively summarised in paras 64 67 of Gillen LJs judgment in the Court of Appeal and need not be repeated verbatim here. The salient points are these: (i) Mrs Finucane did not participate in Sir Desmonds review and did not meet him despite having been invited to do so; (ii) He sought and obtained a wide range of documents from government departments and other sources. All relevant government agencies had co operated fully with him. In consequence, he saw and considered many more documents than those which had been made available to Sir John Stevens and Judge Cory. He had had access to sensitive intelligence files. The reason that Sir John Stevens and Judge Cory had not received many of the documents which had been made available to Sir Desmond was not explained; (iii) He met a number of individuals who had served in the army, the RUC and other security services. He also received a number of written submissions; (iv) He found that there was a clear and wilful failure on the part of successive governments in the 1980s to establish and enforce a proper framework for the running of agents; (v) He found that Brian Nelsons desire to target republicans was well known to the FRU. His handlers had supplied him with information which had been used by him in the selection of targets and there was inadequate supervision by the security service of the contact between FRU and Nelson; What Sir Desmond described as his most serious finding was the failure of RUC special branch to react to the intelligence which Nelson had supplied. FRU claimed to have supplied this information to special branch but they insisted that they had not received it. Sir Desmond considered that FRUs version was more likely to be accurate. (vi) The RUC, the security service and the secret intelligence service failed to warn Patrick Finucane of known and imminent threats to his life in 1981 and 1985; (vii) One or more officers in the RUC probably did propose Mr Finucane as a target for loyalist terrorists in December 1988; (viii) Barrett received intelligence about Patrick Finucane from a police source; (ix) Security service propaganda initiatives may have caused Mr Finucane to be identified as a legitimate target for loyalist terrorists; (x) RUC officers, RUC special branch and army officers obstructed the Stevens investigations and lied to his investigation team. Sir Desmonds overall conclusion about Patrick Finucanes murder was expressed in this passage of his report: 115. I am left in significant doubt as to whether Patrick Finucane would have been murdered by the UDA in February 1989 had it not been for the different strands of involvement by elements of the state. The significance is not so much, as Sir John Stevens concluded in 2003, that the murder could have been prevented, though I entirely concur with this finding. The real importance, in my view, is that a series of positive actions by employees of the state actively furthered and facilitated his murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice. 116. My Review of the evidence relating to Patrick Finucanes case has left me in no doubt that agents of the state were involved in carrying out serious violations of human rights up to and including murder. However, despite the different strands of involvement by elements of the state, I am satisfied that they were not linked to an over arching state conspiracy to murder Patrick Finucane. Nevertheless, each of the facets of the collusion that were manifest in his case the passage of information from members of the security forces to the UDA, the failure to act on threat intelligence, the participation of state agents in the murder and the subsequent failure to investigate and arrest key members of the West Belfast UDA can each be explained by the wider thematic issues which I have examined as part of this Review. Another discrete aspect of Sir Desmond de Silvas review requires particular attention. In the course of his review, Sir Desmond expressed a wish to speak to one of Brian Nelsons former handlers. She has been referred to as A/13. Sir Desmond dealt with this somewhat cryptically at the end of the passage in his report dealing with those persons from whom he had received oral evidence, para 1.48. He merely observed, I also sought to meet with one of Brian Nelsons former handlers (A/13), though in the event this was not to be possible due to medical reasons pertaining to the handler. In the course of the hearing of the appeal before this court, the question arose as to whether any medical evidence had been supplied to support the claim that this individuals medical condition made it impossible for her to meet Sir Desmond. This sparked an exchange of post hearing submissions from the parties. The respondent made the following reply: Following consultation with the solicitor to the Review and also the Review archive, it has been ascertained that the availability of the handler for interview was the subject of an exchange of correspondence between the Review and the MOD and also internal consideration by the Review team. In late 2011/early 2012, the Review made a request, via the MOD, to interview the handler in order both to provide information to the review and also to comment upon the evidence of others. An indication was also given by the Review that adverse inferences may be drawn if an interview was declined without good reason. In response, the Review was advised by the MOD (following communication with the witness) that the handler has been suffering from stress for some time and is very frail. The MOD also advised that the handler recognised the In response to this information, the appellant has made the following written submissions: Reviews desire for an interview but had expressed a belief that an interview would be seriously detrimental to their health. In April 2012 the Review advised the MOD that it looked increasingly unlikely that Sir Desmond would wish to interview the handler, but that if he decided that he would be assisted by such a meeting he would ordinarily need to be satisfied by medical evidence that such an interview would indeed be seriously detrimental to their health. The clear impression given by the report is that Sir Desmond did wish to meet with the handler but that such a meeting was not possible for medical reasons. However, it now appears (from the note provided [by the respondent] to the court) that in fact Sir Desmond did not consider it necessary to meet with this individual (although the reason for his apparent change of mind and the wording of the report are not explained). In any event, the note clarifies that the medical reasons which prevented the meeting were self reported and indeed came to Sir Desmond, not from A/13 herself, but from the MOD. Those reasons were not, at any stage, checked or verified by reference to a medical professional. The importance of this handlers evidence lies in the question that was central to Sir Desmonds review ie whether members of the Armys Force Research Unit (by whom Mr Nelson was engaged) had advance knowledge of the plan to murder Patrick Finucane and the extent of that knowledge. FRUs advance knowledge is one of the most important unanswered questions about the murder. Judge Cory addressed this issue at para 1.134 and following of his report His interpretation of the material led him to say it does seem reasonable to infer both that: Nelson would have been aware of the targeting of Patrick Finucane and that he would have given that information to his handlers. Mr Langdon concluded There are grounds for thinking that one of the Army handlers assisted Nelson in the targeting of one murder victim (McDaid) and also that the same handler knew something about the threat to Patrick Finucane before his murder (despite the absence of any reference to such knowledge in the contemporary Army records). The handler concerned has refused to answer police questions about these matters. [Sir Desmond] admitted that the issue of what Nelson had told his handlers in advance of the murder was a complex and challenging [question] to answer However he then went on to disagree with the inferences and (provisional) conclusions drawn by Judge Cory (and Mr Langdon) by reference to the same material the judge had seen and with additional material comprising of (sic) submissions by the MOD and A/05 and an interview with A/05, which material, unsurprisingly, denied that Nelson had provided advance information about the murder. In these circumstances, and on any analysis, the state of knowledge of Nelsons surviving handler was crucial. She was clearly an important potential witness for Sir Desmonds review. The grounds of challenge The appellant claims that she had a legitimate expectation that a public inquiry into her husbands death would be held. This, she says, is based on the unequivocal assurance given to her by the then Secretary of State for Northern Ireland and his statement to the House of Commons on 23 September 2004. It was for the government to show that there were valid grounds for reneging on the promise made to Mrs Finucane. It had failed to do that. On the contrary, all the relevant evidence pointed to the decision not to hold the inquiry being a sham. The basis on which it had been suggested that this was a decision taken in the public interest was spurious, the appellant claims. Moreover, the process of consultation and discussions (outlined in paras 41 43 above) was entirely cosmetic. The outcome had been predetermined. The process which the government announced was not followed, the appellant contends. Although it had been stated that the decision whether to establish a public inquiry was primarily a matter for the Secretary of State for Northern Ireland, in the event, the process was driven by the Prime Minister, the appellant claims. The Secretary of State, after the various consultations and discussions that he had undertaken, had identified two possible courses: to have a statutory inquiry with clear time and cost controls or not to hold an inquiry at all. Although these options had been described as the only two viable potential ways forward . , a third option emerged during a meeting between the Secretary of State and the Prime Minister on 5 May 2011. This was a reiteration of the suggestion made by the Prime Minister on 5 November 2010, namely, that an independent person [should] carry out a rapid examination of the details of the case . but stopping short of a full public inquiry. This, the appellant argues, demonstrates that there was no genuine adherence to the process which the government had announced would take place. It is further argued that the failure to establish a public inquiry constitutes a violation of the appellants rights under article 2 of the ECHR and section 6 of the Human Rights Act 1998 (HRA). This was not advanced as a freestanding argument for a declaration that the investigations into Mr Finucanes death which have so far taken place are not sufficient to constitute an article 2 compliant inquiry. Rather, the argument was made in support of the appellants claim that the government should be held to its promise of a public inquiry. Finally, the appellant sought to introduce in the hearing before this court a further ground which had not been advanced in the courts below. It was suggested that the practice of accepting affidavit evidence from government officials in proceedings challenging ministerial decisions should be amended. The affidavit evidence of civil servants as to the circumstances in which the decision not to hold a public inquiry should not be accepted, the appellant claimed. Legitimate expectation In R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1568 1569, Bingham LJ described the concept of legitimate expectation in this way: So if, in a case involving no breach of statutory duty, the [public authority] makes an agreement or representation from which it cannot withdraw without substantial unfairness to the [citizen] who has relied on it, that may found a successful application for judicial review If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. In what has subsequently come to be regarded as the leading case on substantive legitimate expectations, the concept was considered by the Court of Appeal in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213. Acknowledging a contemporary controversy surrounding the courts role in legitimate expectations cases, Lord Woolf MR described three categories of case, at para 57: (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223). This has been held to be the effect of changes of policy in cases involving the early release of prisoners: see In re Findlay [1985] AC 318; R v Secretary of State for the Home Department, Ex p Hargreaves [1997] 1 WLR 906. (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy. (Emphasis added) Shortly after the decision in Coughlan, the Court of Appeal had occasion to again consider the reach of substantive legitimate expectation in R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115. At p 1130 Laws LJ said: As it seems to me the first and third categories explained in the Coughlan case [2000] 2 WLR 622 are not hermetically sealed. The facts of the case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review. The key factor in Coughlan was, Laws LJ said, the limited number of individuals affected by the promise in question. Significantly, so far as concerns the present appeal, he also said at p 1131: The more the decision challenged lies in what may inelegantly be called the macro political field, the less intrusive will be the courts supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy. Laws LJ considered the evolving case law in this field in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363, albeit on an expressly obiter basis see para 67. In explaining the basis for substantive legitimate expectations, he made these observations at para 68: It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. That being so there is every reason to articulate the limits of this requirement to describe what may count as good reason to depart from it as we have come to articulate the limits of other constitutional principles overtly found in the European Convention. Accordingly a public bodys promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public bodys legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances. Laws LJ also returned in para 69 to the theme of decisions not to fulfil an undertaking for policy reasons falling within the macro political field. I will consider his remarks on this subject in the next section of this judgment. The subject of substantive legitimate expectation arose again in R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755. At para 35, Laws LJ said: the notion of a promise or practice of present and future substantive policy risks proving too much. The doctrine of substantive legitimate expectation plainly cannot apply to every case where a public authority operates a policy over an appreciable period. That would expand the doctrine far beyond its proper limits. The establishment of any policy, new or substitute, by a public body is in principle subject to Wednesbury review. But a claim that a substitute policy has been established in breach of a substantive legitimate expectation engages a much more rigorous standard. It will be adjudged, as I have foreshadowed, by the courts own view of what fairness requires. This is a principal outcome of this courts decision in Ex p Coughlan (see in particular paras 74, 78, 81 and 82). It demonstrates the importance of finding the reach of substantive legitimate expectation. (Emphasis added) At para 68 of the same case, Sedley LJ made these observations: A duty to consult before modifying policy may arise from an explicit promise to do so. But there is no equivalent expectation that policy itself, and with it any substantive benefits it confers, will not change. It follows that the most that the beneficiary of a current policy can legitimately expect in substantive terms is, first, that the policy will be fairly applied or disapplied in his particular case, and secondly that if the policy is altered to his disadvantage, the alteration must not be effected in a way which unfairly frustrates any reliance he has legitimately placed on it. From these authorities it can be deduced that where a clear and unambiguous undertaking has been made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so. The court is the arbiter of fairness in this context. And a matter sounding on the question of fairness is whether the alteration in policy frustrates any reliance which the person or group has placed on it. This is quite different, in my opinion, from saying that it is a prerequisite of a substantive legitimate expectation claim that the person relying on it must show that he or she has suffered a detriment. In this case, it was argued for the respondent that it was incumbent on Mrs Finucane to show that she had suffered a detriment. That argument simply does not avail in this instance, since the question of detriment can only arise, if it arises at all, in the context of a substantive legitimate expectation. Here the promise made did not partake of a substantive benefit to a limited class of individuals (as, for instance, in Ex p Coughlan); it was a policy statement about procedure, made not just to Mrs Finucane but to the world at large. The onus of establishing that a sufficiently clear and unambiguous promise or undertaking, sufficient to give rise to a legitimate expectation, is cast on the party claiming it see, for instance, In re Loreto Grammar Schools Application for Judicial Review [2012] NICA 1; [2013] NI 41, para 42 et seq. In Paponette v Attorney General of Trinidad and Tobago [2012] 1 AC 1, para 37, Lord Dyson said: The initial burden lies on an applicant to prove the legitimacy of his expectation. This means that in a claim based on a promise, the applicant must prove the promise and that it was clear and unambiguous and devoid of relevant qualification. If he wishes to reinforce his case by saying that he relied on the promise to his detriment, then obviously he must prove that too. The respondent in the present case sought faintly to argue that the statements made by the government were not sufficiently unconditional and devoid of qualification to give rise to a legitimate expectation. Stephens J and the Court of Appeal rejected that argument, and, in my judgment, they were right to do so. At para 64, Stephens J said: . there was a promise which was a clear and unambiguous representation devoid of relevant qualifications that a public inquiry into the death of Patrick Finucane would be held . The only relevant qualification to that promise was that the public inquiry had to be recommended by Judge Cory. As soon as that recommendation was made then there was a substantive legitimate expectation that a public inquiry would be held. In the Court of Appeal Gillen LJ at para 76 said: We are satisfied that the Government made to the appellant a promise to hold a public inquiry that was clear, unambiguous and devoid of relevant condition subject only to the qualification that it required to be recommended by Judge Cory. In the printed case for the appellant, at para 74, the various undertakings given by government ministers and the Prime Minister between 3 March 2004 and 7 May 2008 are set out. They need not be repeated here. It is quite clear that, individually and cumulatively, they amount to an unequivocal undertaking to hold a public inquiry into Mr Finucanes death. As pointed out in para 35 above, the critical undertaking given by the government was that the public inquiry would have to be conducted under new legislation in due course the 2005 Act. That there was a plain and explicit undertaking that a public inquiry would take place cannot be doubted, however. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453, at para 60, Lord Hoffmann summarised the relevant principles: The relevant principles of administrative law were not in dispute between the parties and I do not think that this is an occasion on which to re examine the jurisprudence. It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is clear, unambiguous and devoid of relevant qualification: see Bingham LJ in R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569. It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power and such a change of policy may be justified in the public interest, particularly in the area of what Laws LJ called the macro political field: see R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115, 1131. (Emphasis added) For reasons that will shortly appear and for those given at para 63 above, it is unnecessary for me in this case to decide whether it is a requirement that there be a reciprocal undertaking by the person or group to whom the promise is made or that they should suffer a detriment in order to sustain a claim for substantive legitimate expectation. But, if it had been necessary to decide that point, I would have concluded that it was not. Lord Carnwath has provided, in his judgment in this case, an explanation of his remarks in United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17; [2016] 1 WLR 3383. It is clear that those remarks were obiter see the leading judgment of Lord Neuberger of Abbotsbury in the same case at para 40, where he said that, for present purposes it is unnecessary for the Board to consider the law on this difficult and important topic more fully. I would disagree with any suggestion that it must be shown that the applicant suffered a detriment before maintaining a claim for frustration of legitimate expectation for a fundamental reason. A recurring theme of many of the judgments in this field is that the substantive legitimate expectation principle is underpinned by the requirements of good administration. It cannot conduce to good standards of administration to permit public authorities to resile at whim from undertakings which they give simply because the person or group to whom such promises were made are unable to demonstrate a tangible disadvantage. Since the matter does not arise, however, it is better that the point be addressed in a future case when it is truly in issue. I turn now, therefore, to consider the circumstances in which it is open to a public authority to decide not to comply with a previously given undertaking. Resiling from the undertaking Stephens J found that the considerations outlined in the Secretary of States statement to Parliament on 11 November 2010 (set out in para 42(iii) above) were overriding interests which, as far as the decision maker was concerned, justified the frustration of the expectation. para 166. He held that the decision to resile from the undertaking was clearly concerned with macro political issues of policy. para 167. The reference to macro political issues derived from the judgment of Laws LJ in Nadarajah. At para 69 of the judgment in that case, Laws LJ said: where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance; where the promise is made to an individual or specific group; these are instances where denial of the expectation is likely to be harder to justify as a proportionate measure. On the other hand where the government decision maker is concerned to raise wide ranging or macro political issues of policy, the expectations enforcement in the courts will encounter a steeper climb. All these considerations, whatever their direction, are pointers not rules. The balance between an individuals fair treatment in particular circumstances, and the vindication of other ends having a proper claim on the public interest (which is the essential dilemma posed by the law of legitimate expectation) is not precisely calculable, its measurement not exact. Where political issues overtake a promise or undertaking given by government, and where contemporary considerations impel a different course, provided a bona fide decision is taken on genuine policy grounds not to adhere to the original undertaking, it will be difficult for a person who holds a legitimate expectation to enforce compliance with it. The circumstances in which the change of heart on the part of the government as to holding a public inquiry occurred have been described in paras 41 to 43 above. The appellant has argued that the vaunted investigation as to the need for the public inquiry which had been promised was a sham; that the outcome was fixed; that the proposal that the Secretary of State for Northern Ireland be in overall charge of the inquiries was ignored; and that the Prime Minister effectively took over those discussions and drove them to a conclusion which he personally wanted to achieve. These are serious charges and would require clear evidence before they could be accepted see Richards LJ in R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605; [2006] QB 468, para 62. There is no reason to doubt the genuineness of the conviction of the appellant as to the reasons which she believes prompted the government to renege on the promise that she had been given. But, however strongly held is her belief as to the circumstances in which the decision not to hold the inquiry was taken, this cannot be a substitute for the unambiguous evidence that is needed to vindicate it. On the question of the implementation of a predetermined conclusion Gillen LJ set out the unanimous view of the members of the Court of Appeal at para 134(i) of his judgment: We found no evidence of a pre determined adherence to a view that there would be no more open and costly inquiries into the past which therefore dictated the outcome of this matter. On the contrary, it was clear from the statements made by the Prime Minister, the briefing papers provided to him and the statements made by the [Secretary of State for Northern Ireland] that the policy was that whilst generally against open ended, long running and costly public inquiries into the past in Northern Ireland these decisions should be made on a case by case basis. We find that there was not a fixed policy which excluded the possibility of variations on a case by case basis. Stephens J had made similar findings in para 195 of his judgment. As to the argument that the process had been taken over by the Prime Minister and driven by him to a conclusion which he particularly favoured, Gillen LJ said at para 134(ii): We do not find evidence that the process was driven by the Prime Minister. The fact of the matter is that the Ministerial Code emanating from the Cabinet Office of May 2010 at para 1.10 makes it clear that the Prime Minister must be consulted in good time about any proposal to set up major public inquiries under the Inquiries Act 2005. Apart from all the accepted conventions of collective Cabinet decisions, it would have been extraordinary if the Prime Minister had not been consulted on this matter. Once he was consulted, it would be contrary to all the promptings of reason and good sense if he was deprived of the right to forthrightly state a view on the outcome of the process or to make a suggestion. He is required neither to adopt a traceless presence nor a state of remote unavailability as the final decision is taken. The officials clearly played an important role in advising both the Prime Minister and the [Secretary of State for Northern Ireland] as to the various options and indeed to provide advice as to eventual outcomes. Again, Stephens J had reached a similar conclusion in paras 197 202 of his judgment. For my part, I consider that these findings cannot be faulted. There is simply no sustainable evidence that the process by which the decision was taken was a sham or that the outcome was predetermined. As to the role played by the Prime Minister, there are indications that he was strongly convinced that a costly, open ended inquiry would ensue if the promise made to Mrs Finucane was kept. And it appears that he played an important, if not indeed a controlling, role in the discussions which led to the establishing of the de Silva review. He was prepared to disregard (or, at least, not accept) the strongly worded recommendation of Sir Jeremy Heywood. But there is nothing untoward about any of this. The decision as to whether a public inquiry into Mr Finucanes death should take place was a matter of considerable political importance. As Gillen LJ said, it would be extraordinary if the Prime Minister had not been consulted. Having been consulted, the part that he played and the influence which he exerted were matters for his political judgment. This part of the appellants appeal fails, in my view. Article 2 of ECHR Article 2 of ECHR provides: 1. 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. It is well settled that article 2 gives rise to two species of obligation on the part of the state, one substantive, the other procedural. Lord Phillips of Worth Matravers PSC in In re McCaugheys application for judicial review [2012] 1 AC 725, in a pithy description of the nature of the obligations, referred, at para 2, to ECtHRs decision in McCann v United Kingdom (1995) 21 EHRR 97 and said, article 2 by implication [gives] rise not merely to a substantive obligation on the state not to kill people but, where there was an issue as to whether the state had broken this obligation, a procedural obligation on the state to carry out an effective official investigation into the circumstances of the deaths (the procedural obligation). (Evolving human rights jurisprudence, both from Strasbourg and domestically, has, of course, established that the procedural obligation to investigate deaths can extend beyond those deaths in which state authorities are alleged to be implicated see, for instance (Application No 32967/96) Calvelii and Ciglio v Italy, January 17, 2001 at para 53; (Application No 53749/00), Lazzarini and Ghiacci v Italy, November 7, 2002; Angelova and Iliev v Bulgaria (2007) 47 EHRR 236; and Byrzykowski v Poland (2006) 46 EHRR 32, para 117.) Patrick Finucanes death occurred 11 years and eight months before the coming into force of the HRA in October 2000. Section 6 of HRA provides that it is unlawful for a public authority (such as a court) to act in a way which is incompatible with a Convention right. Could Mrs Finucane maintain an action in the domestic courts under the HRA when it was not in force at the time of her husbands murder? To answer that question, one must turn to cases which have dealt with that subject from 2004 onwards. The principal issue before the House of Lords in In re McKerr [2004] 1 WLR 807 was whether, on the proper interpretation of HRA, section 6 gave rise to a continuing procedural obligation, notwithstanding that the death had occurred before the coming into force of HRA. The House unanimously held that it did not. Following this decision, ECtHR, in a series of cases, examined the question whether the procedural obligation under article 2 was indissociable from the substantive obligation, and whether it might in certain circumstances endure beyond the date on which the rights under article 2 became available to an applicant. That examination focused on two principal, but overlapping, areas: first, whether, although the death occurred before the relevant date (usually the date of accession of the member state to the ECHR), there were circumstances which continued to animate the right; and secondly, whether events occurring after the relevant date were sufficient to inspire its revival. In a different context from article 2, the Grand Chamber addressed the question of its temporal jurisdiction in Blei v Croatia (2006) 43 EHRR 48. The claimant complained of violation of article 8 as a result of being deprived of a protected tenancy. The Supreme Court of Croatia dismissed her claim on 15 February 1996. She then lodged a constitutional complaint with the Constitutional Court, which was dismissed on 8 November 1999. Croatia had acceded to the Convention on 5 November 1997. Before ECtHR, the state objected that the Strasbourg court had no jurisdiction to hear the applicants complaint. The Grand Chamber held, at para 82, that it was essential to identify, in each specific case, the exact time of the alleged interference. Since the complaint to the Constitutional Court did not constitute part of the alleged interference (because it was an attempt to obtain a remedy) the Strasbourg court had no jurisdiction. This was because all the matters complained of had occurred before the date of accession. This decision provides an example of the impossibility of breathing new life into a right whose currency had passed, when all the circumstances constitutive of the interference with the right had occurred before the relevant date. But, as will be seen, this is but part of the story. Brecknell v United Kingdom (2007) 46 EHRR 42 provides a contrast to Blei. In that case the applicant was the widow of a man killed in Northern Ireland by loyalist gunmen in 1975. Investigations took place but were concluded in 1981. In 1999 and thereafter further evidence came to light. This indicated that there might have been collusion between the police force, the Ulster Defence Regiment (then part of the security forces in Northern Ireland) and loyalist paramilitaries. The applicant contended that this new evidence should give rise to the procedural obligation to conduct an article 2 compliant inquiry into her husbands death. In McCaughey Lord Phillips portrayed this as a claim that the article 2 obligation was revived see para 39 of that case. In fact, the applicant is not recorded in the Grand Chambers judgment as having sought a revival of the obligation see paras 54 59 of the Brecknell judgment, outlining the applicants arguments. The government resisted the claim, inter alia, on the ground that the obligation should not be revived see paras 61 and 63. The Grand Chamber in Brecknell identified the principal issue as to whether, and in what form, the procedural issue to investigate is revived para 66. So, the fact that this was not how the applicant framed her case may not be of critical importance in this instance. I would merely observe that if the notion of revival suggests that the right had gone into abeyance and required some special circumstance to disinter it, whereas the question whether it remained in existence suggests a state of suspended animation merely requiring some newly discovered evidence to animate it, these concepts might, in certain circumstances, give rise to different approaches. But this may be of academic interest only in the present appeal. The Grand Chambers decision is explicable on either basis. It said at para 71: the court takes the view that where there is a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities are under an obligation to take further investigative measures In due course it will be necessary to consider whether, following Sir Desmond de Silvas review and the various inquiries which succeeded it, there remained a need further to investigate the circumstances of Mr Finucanes murder. The Court of Appeal divided on this issue, Deeny and Horner JJ agreeing with Stephens J that the Brecknell test was satisfied, Gillen LJ believing that it was not. Discussion of that issue must naturally take place in the next section of this judgment, but it is worth observing here that in para 70 of the Grand Chambers judgment, the court, while pointing out that the revival of the duty to investigate would not be prompted by any allegation, however inconsequential, said that given the fundamental importance of [article 2], the state authorities must be sensitive to any information or material which has the potential either to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further. In an important decision in this field, ilih v Slovenia (2009) 49 EHRR 37, the Grand Chamber ruled that article 2 imposed, in certain circumstances, a freestanding obligation in relation to the investigation of a death which applied even where the death had occurred before the member state ratified the Convention. In that case the applicants were the parents of a young man who died as a result of medical negligence on 19 May 1993. They made a number of attempts to bring criminal proceedings, all of which were unsuccessful, the final disposal coming in July 2003. Civil proceedings were also dismissed in July 2008. They then lodged a constitutional appeal with the Constitutional Court. The outcome of that appeal was still pending when the Grand Chamber gave its judgment. Slovenia acceded to ECHR on 28 June 1994. The task that the Grand Chamber faced, therefore, was described in para 152 of its judgment as being to: determine whether the procedural obligations arising under article 2 can be seen as being detachable from the substantive act and capable of coming into play in respect of deaths which occurred prior to the critical date [the date of accession to the Convention] or alternatively whether they are so inextricably linked to the substantive obligation that an issue may only arise in respect of deaths which occur after that date. That question was emphatically answered in para 159 where the Grand Chamber said that: the procedural obligation to carry out an effective investigation under article 2 has evolved into a separate and autonomous duty. Although it is triggered by the acts concerning the substantive aspects of article 2 it can give rise to a finding of a separate and independent interference within the meaning of the Blei judgment. In this sense it can be considered to be a detachable obligation arising out of article 2 capable of binding the state even when the death took place before the critical date. In para 163, the Grand Chamber was at pains to point out that there had to be, a genuine connection between the death and the entry into force of the Convention in the member state. On that account, a significant proportion of the procedural steps required will have been or ought to have been carried out after the critical date. A caveat to that requirement was entered. The Grand Chamber said (again at para 163) that it did not exclude the possibility that, in certain circumstances, the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner. The Grand Chambers judgment in ilih was of pivotal importance in McCaughey. At para 50 of his judgment in the latter case, Lord Phillips said: The obligation to comply with the procedural requirements of article 2 is to apply where a significant proportion of the procedural steps that article 2 requires in fact take place after the Convention has come into force. This appears to be a free standing obligation. There is no temporal restriction on the obligation other than that the procedural steps take place after the Convention has come into force. Thus if a state decides to carry out those procedural steps long after the date of the death, they must have the attributes that article 2 requires. In the McCaughey case it was decided to hold an inquest into the deaths of Mr McCaughey and another man 20 years after their deaths. Lord Phillips decided that that decision gave rise to an international obligation to ensure that the inquest complied with article 2 of ECHR (para 51). At para 61 he said: . In so far as article 2 imposes any obligation, this is a new, free standing obligation that arises by reason of current events. The relevant event in these appeals is the fact that the coroner is to hold an inquest into Martin McCaugheys and Dessie Grews deaths. ilih v Slovenia establishes that this event gives rise to a free standing obligation to ensure that the inquest satisfies the procedural requirements of article 2. That obligation is not premised on the need to explore the possibility of unlawful state involvement in the death. The development of the law by the Strasbourg court has accorded to the procedural obligation a more general objective than this, albeit that in the circumstances of these appeals state involvement is likely to be a critical area of investigation. At para 93, to like effect, Lady Hale said that, if there is now to be an inquiry into a death for which the state may bear some responsibility under article 2, it should be conducted in an article 2 compliant way. The inquiries into the circumstances of Mr Finucanes death have taken place, (for the most part, and certainly for the most important part of the inquiries) well after 2 October 2000. The respondent submitted, however, that the observations in McCaughey must be viewed in light of the later decision of the ECtHR in Janowiec v Russia (2013) 58 EHRR 30. In that case, the respondent claimed, the Grand Chamber identified three limitations on the jurisdiction to examine pre ratification (and, by analogy, in the United Kingdom, pre October 2000) claims. The first of these was that the duty arose only in relation to procedural acts in other words, the steps which may be undertaken within the domestic legal system which are capable of discharging the investigative duty. It did not extend to other types of inquiries that may be carried out for other purposes, such as establishing a historical truth para 143 of Janowiec. The second limitation in Janowiec, the respondent claimed, was that the need for a genuine connection between the death and the critical date was primarily a temporal one. At para 146 of Janowiec the Grand Chamber said: . the lapse of time between the triggering event and the critical date must remain reasonably short if it is to comply with the genuine connection standard. Although there are no apparent legal criteria by which the absolute limit on the duration of that period may be defined, it should not exceed ten years Even if, in exceptional circumstances, it may be justified to extend the time limit further into the past, it should be done on condition that the requirements of the Convention values test have been met. Accordingly, the respondent argued, even if the period of time was less than ten years, but the majority of investigative steps or the most important of these took place prior to ratification, (or in the case of the United Kingdom, the coming into force of HRA), the ECtHR would not be in a position to scrutinise them (and, by corollary, UK courts would not be able to give effect to rights under HRA) since neither could examine acts or omissions occurring prior to ratification or the coming into force of the 1998 Act. In this regard, the respondent relied on the following passages from Janowiec: 147. This is a corollary of the principle that the courts jurisdiction extends only to the procedural acts and omissions occurring after the entry into force. If, however, a major part of the proceedings or the most important procedural steps took place before the entry into force, this may irretrievably undermine the courts ability to make a global assessment of the effectiveness of the investigation from the standpoint of the procedural requirements of article 2 of the Convention. 148. Having regard to the above, the court finds that, for a genuine connection to be established, both criteria must be satisfied: the period of time between the death as the triggering event and the entry into force of the Convention must have been reasonably short, and a major part of the investigation must have been carried out, or ought to have been carried out, after the entry into force. The third limitation identified by the respondent is the Convention values test, referred to by the Grand Chamber in Janowiec in paras 149 and 150: 149. The court further accepts that there may be extraordinary situations which do not satisfy the genuine connection standard as outlined above, but where the need to ensure the real and effective protection of the guarantees and the underlying values of the Convention would constitute a sufficient basis for recognising the existence of a connection. The last sentence of para 163 of the ilih judgment does not exclude such an eventuality, which would operate as an exception to the general rule of the genuine connection test. In all the cases outlined above the court accepted the existence of a genuine connection as the lapse of time between the death and the critical date was reasonably short and a considerable part of the proceedings had taken place after the critical date. Against this background, the present case is the first one which may arguably fall into this other, exceptional, category. Accordingly, the court must clarify the criteria for the application of the Convention values test. 150. Like the Chamber, the Grand Chamber considers the reference to the underlying values of the Convention to mean that the required connection may be found to exist if the triggering event was of a larger dimension than an ordinary criminal offence and amounted to the negation of the very foundations of the Convention. This would be the case with serious crimes under international law, such as war crimes, genocide or crimes against humanity, in accordance with the definitions given to them in the relevant international instruments. The respondent submitted that the Convention values test was not relevant in this case. The appellant had to succeed on the genuine connection test. This contained, the respondent argued, two elements: the lapse of time between the triggering event and the critical date had to be reasonably short and the majority of investigative steps or the most important of these had to have taken place after the coming into force of HRA. I consider that a genuine connection has been established between the triggering event and the critical date in this case. As Stephens J pointed out in para 34 of his judgment, ECtHR in Mocanu v Romania (2015) 60 EHRR 19, para 206 referred to a reasonably short lapse of time that should not normally exceed ten years (emphasis added). And in Mladenovi v Serbia (Application No 1099/08) judgment of 22 May 2012 the court considered it could examine the procedural aspect of article 2 (and found a violation) in relation to a death that had occurred in 1991 when Serbias ratification of the Convention took place some 13 years later in 2004. A period of ten years or less between the triggering event (the murder of Mr Finucane) and the critical date (the coming into force of the HRA) is not an immutable requirement. The time which elapsed between the two dates is a factor of importance but, when taken into account with the circumstance that the vast bulk of noteworthy inquiry into his death has taken place since the HRA came into force (Stevens III, the Cory inquiry and the de Silva review), the significance of the time lapse diminishes. Nothing in Janowiec detracts from the proposition in ilih that the decision as to whether there is a genuine connection involves a multi factorial exercise and the weight to be attached to each factor will vary according to the circumstances of the case. Moreover, in McCaughey it was made clear that an inflexible ten year limit was not essential and the consideration that most of the investigation took place after the critical date could compensate for the length of the time lapse see paras 118, 119 and, in particular, 139 where Lord Dyson said: The deaths were ten years before the HRA came into force. That is a relevant factor to be taken into account when considering whether there is a sufficient connection between the deaths and the coming into force of the Act. But ilih v Slovenia 49 EHRR 996 shows that it is not the only factor. In particular, of considerable importance is the fact that at that date the investigation had been initiated, but a significant proportion of the procedural steps required to be taken had not yet been taken. In that respect, the facts of the case are similar to the facts in ilih v Slovenia. This is the feature of ilih v Slovenia which is emphasised by the majority at para 165 and by Judge Lorenzen at para O I4 of the EHRR report. Significantly, we were not invited to depart from the decision in McCaughey. It was argued for the Secretary of State that the principles in ilih and Janowiec relate to the ECtHRs temporal jurisdiction for deaths that have occurred before a states ratification of the Convention and that the question of their application to domestic law remains undecided. I do not accept that proposition. It is quite clear from the judgments of the majority in McCaughey that the reasoning in ilih was adopted in order to inform the approach to the question of the availability of the procedural right to an article 2 inquiry under HRA, where the triggering event preceded its coming into force. References to this abound in the judgments of the majority see, for instance, para 61, per Lord Phillips, para 77, per Lord Hope of Craighead, paras 89 and 93, per Lady Hale, para 119 of my judgment and paras 131 and 139, per Lord Dyson. Sir James Eadie QC for the respondent, founded his argument that the applicability of the principles in ilih and Janowiec to domestic law remains undecided, on the decision of this court in the case of R (Keyu)v Secretary of State for Foreign and Commonwealth Affairs [2016] AC 1355. In particular, he fastened on statements made by Lord Neuberger of Abbotsbury at paras 98 and 99 of his judgment. It is unnecessary to set out Lord Neubergers observations in those paras. It is quite clear that he was there examining the question of whether it had been decided by the court in McCaughey that the decision in McKerr remained good law. The remarks of Lord Neuberger, attributing to Lord Phillips, Lord Dyson and me the view that McKerr was no longer good law were not without controversy see my comment on them at paras 247 248. But that is nothing to the point. The plain and inescapable fact is that this court in McCaughey unequivocally adopted the decision in ilih as indicating the principled approach in domestic law to the question of genuine connection. Stephens J found that, in the event that a genuine connection was not established, the appellant could have recourse to the Convention values test see para 35 of his judgment. The Court of Appeal, per Gillen LJ, at para 167, observed that this test set an extremely high hurdle but that the court would not go so far as to say that Stephens Js finding was necessarily unreasonable. The issue of what constitutes, as said in Janowiec 58 EHRR 30, para 149, a need to ensure the real and effective protection of the guarantees and the underlying values of the Convention is not an uncomplicated one. It did not occupy much of the oral submissions that were made in this case. In light of that and of my conclusion in relation to the existence of a genuine connection, I propose to say nothing more about it. Brecknell v United Kingdom As I have said before, (para 93 above) the Grand Chamber in Brecknell was careful to point out that not every allegation, however trivial, would revive the duty to investigate. But it was equally emphatic that it behoved state authorities to be sensitive to any information or material which might cast doubt on conclusions reached on foot of earlier investigations. Significantly moreover, it said that an earlier inconclusive investigation should be pursued further in order to meet the procedural obligation under article 2. It is to be recalled that the Grand Chamber stated (at para 71 of its judgment see para 92 above) that where there was a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities were under an obligation to take further investigative measures. In the Court of Appeal Gillen LJ decided that what he described as the Brecknell test was not satisfied. He referred to the discussion by Stephens J of the meetings that Sir Desmond de Silva had had with a number of individuals including Colonel J and to the judges finding that the evidence that emerged from those meetings was sufficient to revive the article 2 procedural obligation. Gillen LJ disagreed with this finding for a number of reasons. In the first place, he considered, at para 171, that the new and significant information which had emerged from these meetings might not avail the purposes of further criminal investigations. One can accept that this might be so, but it is to be remembered that what the Grand Chamber said in Brecknell was that any information or material which has the potential to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further would prompt a revival of the procedural obligation. In the report on his review Sir Desmond had said that he was left in significant doubt as to whether Patrick Finucane would have been murdered by the UDA in February 1989 had it not been for the different strands of involvement by elements of the state see para 46 above. This sentence should not be isolated from the overall context of Sir Desmonds report. He had firmly concluded that state agents were involved in the targeting of Mr Finucane. But it matters not as to the precise nature of the doubt entertained by him. The doubt that he expressed must therefore be as to the precise role that state agents played. That was sufficient to warrant further investigation. The doubt, whatever its nature or source, required to be dispelled. The strands of involvement by elements of the state needed to be recognised and explained. These were necessary ingredients of an article 2 compliant inquiry. These conclusions are not impelled by the notion that the outcome of the investigation into Mr Finucanes death is unsatisfactory, although it plainly is. They speak to the shortcomings of the procedures that have beset the inquiries that have so far taken place. Those shortcomings have hampered, if not indeed prevented, the uncovering of the truth about this murder. They are discussed in paras 139 141 below. The second reason given by Gillen LJ for his disagreement with Stephens J on the applicability of the Brecknell principle was that the new material had been reviewed by PSNI and it has not afforded any basis for further investigation or prosecution. The investigations carried out by PSNI into the new material uncovered by Sir Desmond were described by Detective Superintendent Jason Murphy in three affidavits. In the first of these, in June 2016, he said that the Chief Constable had decided that that material should be examined to see whether it provided any opportunities to progress the investigation into Mr Finucanes murder. An investigating officer was appointed to carry out that task. He concluded that there was no reason to review the decision of the PPS in 2007 (see para 30 above). In his first affidavit, Detective Superintendent Murphy had also described various investigations that were continuing by way of reconsideration of all the material that had been examined in the course of the de Silva review. This included the archive of documents generated by the various Stevens inquiries, material that had been provided by government departments and agencies, the security service, the Northern Ireland Office, the Cabinet Office, the Ministry of Defence, the Home Office, the office of the Attorney General of England and Wales, and PSNI. At the time of swearing the first affidavit, the detective superintendent felt unable to say whether this further review might lead to progress in the investigation into Mr Finucanes death. In his second affidavit (31 October 2016) the detective superintendent said that the review had been completed. All of the material described by Sir Desmond de Silva as new and significant had been assimilated and investigations into this material had been conducted. Detective Superintendent Murphy was then in the process of preparing a report for the PPS. In a final affidavit the officer said that the new material did not relate to individuals alleged to have any direct role in Mr Finucanes murder. He also considered whether the material provided any opportunities to pursue criminal investigations for other offences such as conspiracy or incitement to murder and misconduct in public office. He then submitted reports to the PPS on his conclusions. The deputy director of public prosecutions, in a cryptic affidavit of 13 June 2018, deposed that, because of the absence of any further investigations by PSNI, no new prosecutorial decisions had been made. It is important to note that the police and the prosecuting authorities have been concerned to decide whether the opportunity for further prosecutions in relation to Mr Finucanes murder had arisen. This is understandable, for it is the principal purpose of both agencies to determine whether criminal offences have been committed and, if so, whether evidence is available that would justify embarking on a criminal prosecution. But, although decisions by the police and the prosecuting authorities are relevant to the question whether the states procedural obligation under article 2 of ECHR to investigate the circumstances of a death has been met, they cannot alone be determinative of that issue. In a series of cases ECtHR has made it clear that the obligation to protect the right to life under article 2 of the Convention requires that there should be some form of effective official investigation when individuals have been killed as a result of the use of force see, among many others, Branko Tomai v Croatia (Application No 46598/06), para 62, (15 January 2009); Our v Turkey [GC], (Application No 21594/93), para 88, ECHR 1999 III); Mladenovi v Serbia (Application No 1099/08) (22 May 2012). The opportunity to prosecute as a result of evidence uncovered by Sir Desmond de Silvas review does not foreclose on the question whether an effective investigation into Mr Finucanes death, compliant with article 2, has taken place. The need for an effective investigation into a death goes well beyond facilitating a prosecution. In Ramsahai v The Netherlands (Application No 52391/99) ECHR 2007 II, 191 ECtHR considered what effectiveness in this context means. At para 324, the court said: In order to be effective as this expression is to be understood in the context of article 2 of the Convention, an investigation into a death that engages the responsibility of a contracting party under that article must firstly be adequate. That is, it must be capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to identify the perpetrator or perpetrators will risk falling foul of this standard. (Emphasis added) See also in this context Nachova v Bulgaria [GC], (Application Nos 43577/98 and 43579/98), paras 110 113, ECHR 2005 VII, 1. It was pointed out by the respondent that the dissenting judges in Ramsahai had said that a lacuna or deficiency in an investigation will give rise to a breach of the procedural obligation only if it is such as to undermine its capability of establishing the facts surrounding the killing or the liability of the persons responsible. Whether it does so must be assessed in the light of the particular circumstances of each case. joint partly dissenting opinion of Judges Costa, Sir Nicolas Bratza, Lorenzen and Thomassen at para 3. In so far as it might be suggested that the majority in Ramsahai had implied that any deficiency in the investigation might give rise to a breach of the article 2 procedural obligation, that is of no relevance in the present case. It is precisely because of the constraints placed on Sir Desmond de Silvas inquiry that the capability of his review establishing vital facts such as the identity of those involved was undermined. The reasons for this are given in para 134 below. Being capable of identifying those responsible must involve having the means to identify those implicated in the death. It should also include the will and the opportunity to expose them. The important issue in this case is whether Sir Desmond de Silvas review had these critical attributes. Much of what he says in his conclusions is qualified or expressed in terms of generality. For instance, he said that the RUC, the security service and the secret intelligence service failed to warn Patrick Finucane of known and imminent threats to his life in 1981 and 1985. Those officers who were in a position to give that warning (and whose plain duty it was to do so) are not identified. The circumstances in which they failed in their duty are not explained. Sir Desmond concluded that one or more officers in the RUC probably did propose Mr Finucane as a target for loyalist terrorists in December 1988 see para 45(vii) above. No officers have been identified. If it is true that they did propose Mr Finucane as a target, this was a serious criminal offence. It bears directly on the proper investigation of his murder. But, at present, the issue remains entirely unresolved. It was concluded that Ken Barrett had received intelligence about Patrick Finucane from a police source (para 45(viii) above). That police source has not been identified. The circumstances in which the information was imparted have not been disclosed. So far as one can tell, the police source has escaped any sanction; has not been made accountable; and has avoided all the legal consequences which should have flowed from his or her activity. In deciding whether an article 2 compliant inquiry into Mr Finucanes death has taken place, it is important to start with a clear understanding of the limits of Sir Desmond de Silvas review. His was not an in depth, probing investigation with all the tools that would normally be available to someone tasked with uncovering the truth of what had actually happened. Sir Desmond did not have power to compel the attendance of witnesses. Those who did meet him were not subject to testing by way of challenging probes as to the veracity and accuracy of their evidence. A potentially critical witness was excused attendance for questioning by Sir Desmond. All of these features attest to the shortcomings of Sir Desmonds review as an effective article 2 compliant inquiry. This is not to criticise the thoroughness or rigour of Sir Desmonds review. To the contrary, it is clear that it was conducted with commendable scrupulousness. But the very care with which he carried out his review and the tentative and qualified way in which he has felt it necessary to express many of his critical findings bear witness to the inability of his review to deliver an article 2 compliant inquiry. It is therefore unsurprising that on 17 May 2011, in a memorandum prepared by the Northern Ireland Office, it was accepted that Sir Desmonds review would not be article 2 compliant. Sir James Eadie claimed that, although it was not necessary to do so, if the review by Sir Desmond was taken with what had gone before, it did fulfil the requirements of article 2. For the reasons that I have given, I do not accept that submission. I cannot therefore agree with Gillen LJs second reason for suggesting that the present case did not meet the Brecknell test. As already observed, the Grand Chamber in Brecknell had made it clear that earlier inconclusive investigations should be pursued further in order to meet the procedural obligation under article 2. Sir Desmond de Silvas review is, unmistakably, an instance of inconclusiveness. Gillen LJs third reason for concluding that the Brecknell test was not met was, at para 171, that it was not possible to make any meaningful assessment of the value of the [new and significant] information to the overall investigation. This, with respect, misses the critical point. That is whether an effective investigation has taken place. For the reasons that I have given, that has not occurred. It is unnecessary and, indeed, misconceived to speculate on what assessment one might make of the new material. It is on the deficiencies of the inquiries that have been conducted to date that one must focus. Likewise, it is wrong to be distracted from that essential task by the decision not to undertake further prosecutions. The requirements of an article 2 compliant inquiry An article 2 compliant inquiry involves providing the means where, if they can be, suspects are identified, and, if possible, brought to account. It should also provide the opportunity to recognise, if possible, the lessons to be learned so that a similar event can be avoided in the future. In Jordan v United Kingdom (2001) 37 EHRR 2, a case which concerned the shooting of Pearse Jordan in 1992 in Belfast by an RUC officer, ECtHR found a violation of article 2 in respect of failings in the investigative procedures after Mr Jordans death. At para 107 the court said: The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard. (Emphasis added) Sir Desmond de Silvas conclusion that he was left in significant doubt as to whether Patrick Finucane would have been murdered by the UDA in February 1989 had it not been for the different strands of involvement by elements of the state is, in itself, an eloquent statement about the inadequacy of the inquiries into Mr Finucanes murder and the incapacity of those inquiries to fulfil the requirements of article 2, for the reasons discussed at paras 118 and 119 above. It has proved to be incapable of establishing the identity of the persons implicated in the murder of Mr Finucane. A proper, inquiry along the lines described in preceding paras was the means by which an article 2 compliant inquiry would have been achieved. The proposition that the procedural obligation was not one of result but of means does not, therefore, signify in this instance. Sir Desmonds conclusions are not criticised for their failure to identify the people involved in bringing about Mr Finucanes murder. Rather, the means by which he might have done so had been denied him. I have dealt with these in para 134 above. If he had been able to compel witnesses; if he had had the opportunity to probe their accounts; if he had been given the chance to press those whose testimony might have led to the identification of those involved in targeting Mr Finucane; if the evidence of the handler had been obtained, or alternatively, objective, medical evidence of her incapacity to provide it had been forthcoming, one might have concluded that all means possible to identify those involved had been deployed. Absent those vital steps the conclusion that an article 2 compliant inquiry into Mr Finucanes death has not yet taken place is inescapable. I reach that opinion notwithstanding the decision of the Committee of Ministers. As I have observed (at para 31 above), the decision of that body to close the examination of the specific measures taken by the UK on foot of the decision of ECtHR was made on the basis that the government was actively working on proposals for establishing a statutory public inquiry. Quite apart from that consideration, however, the most significant inquiry into Mr Finucanes death took place after the Committee of Ministers had reached its decision. It is to the nature of the investigation which came after the Committees decision that the closest attention must be paid, in order to decide if an inquiry sufficient to meet the procedural requirement of article 2 has been held. Section 2(1)(d) of HRA requires a court which is determining a question which has arisen in connection with a Convention right to take into account a decision of the Committee of Ministers. The respondent submits that this is a paradigm example of where this court should not only take into account the decision of the Committee but abide by it. I do not accept that submission. The context in which the Committee took its decision is different from that in which this court is asked to decide the question. And it is different in two material and important respects. At the time that the Committee was considering the matter, there was still in distinct prospect a public inquiry in which the full examination of all the circumstances of Mr Finucanes murder would take place. That is no longer the position. Indeed, the scene has shifted significantly since the time that the Committee considered the matter. As a result of Sir Desmond de Silvas review, it is now clear that many important questions remain unanswered. It would be simply wrong to fail to acknowledge the significant change in circumstances which has occurred since the Committee considered the issue fully ten years ago. This does not involve, as the respondent argued, a finding that the article 2 obligations of the United Kingdom are more extensive in the domestic legal order than in Strasbourg. It is no more than a contemporaneous judgment on circumstances which differ widely from those which the Committee had to confront. There is no warrant for concluding that the Committee, if faced with those change of circumstances today, would reach the same conclusion as it did in 2008. The second difference between the Committees decision and that which the court is required to reach is that the formers conclusion partakes at least to some extent of a political judgment. By contrast, the courts decision must be guided solely by its perception of the correct legal principles to be applied. The respondent suggested that a failure to follow the Committee of Ministers decision would be the antithesis of the mirror principle and cannot have been the intention of Parliament when enacting the HRA. This argument can be dispatched in short order. The mirror principle (developed in such cases as R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295 and R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323 is concerned with the need for national courts to follow a clear and constant line of jurisprudence from the Strasbourg court. The philosophy underlying the principle is that it would be anomalous if a national courts decision as to the content of a particular Convention right should be at odds with a judicial pronouncement from ECtHR. That is a world away from saying that a decision by the Committee of Ministers pre empts a decision by this court as to whether the current requirements of article 2 in relation to a particular death have been fulfilled. This is not to say that the decision of the Committee of Ministers can or should be ignored. Of course, it must be considered. But the context and circumstances in which the decision was reached and the change in circumstances which have occurred since that time cannot be left out of account. Disposal of the appeal Stephens J decided that a limited declaration should be made to the effect that an article 2 compliant inquiry into Mr Finucanes murder had not, at the time his judgment was delivered, taken place. The decision to make the declaration was reached, of course, against the background that, as Stephens J put it, at para 212, documentary material either directly or indirectly available to the authorities which was received by Sir Desmond de Silva was not available to Sir John Stevens, Judge Cory or the DPP (NI). That material has now been made available and has been considered by PSNI. It is not deemed sufficient to warrant prosecution of any individual. For the reasons that I have given earlier, however, this does not cure the article 2 deficit. The Court of Appeal did not agree that a declaration should be made. Gillen LJ said at para 192 of his judgment that the new information referred to by Sir Desmond de Silva was something of an unknown quantity. There was no evidence, he said, that it constituted an article 2 violation as yet. This seems to me to be looking at the question from the wrong end of the telescope. As I have said, the proper focus should be on the inquiries that have been conducted to date and on an examination of whether they constitute an article 2 compliant inquiry, not on whether material yet to be disclosed and considered established that the inquiries were or were not susceptible of meeting the procedural obligation of article 2. Deeny J had a somewhat different perspective on the propriety of making a declaration, although he did agree with Gillen LJ as to the reasons given by him for allowing the cross appeal against the declaration made by Stephens J. Deeny J said (in para 11 of his judgment) that it was wrong to make the declaration because the government had offered an inquiry in 2009 (to be conducted under the 2005 Act) and the appellant had declined it. But this has nothing to say about the respondents responsibility to observe its procedural obligation under article 2. That obligation arises and endures quite independently of any reaction on the part of the appellant. Deeny J also adverted (in para 14 of his judgment) to the fact that counsel for the appellant, Mr Macdonald QC, had declined an invitation to amend the application for judicial review to plead, as a freestanding issue, that the state was in breach of its article 2 obligation. It is to be remembered, however, that both before the Court of Appeal and this court it was argued that the failure of the state to hold an article 2 inquiry meant that the government was required to adhere to its promise to have a public inquiry cf Gillen LJs judgment at para 136. The issue of whether there was a breach of the procedural obligation under article 2 is therefore clearly before this court and that issue cannot be shelved simply because the appellant elected not to formulate it as an independent ground of challenge. It appears to me, in any event, that we, as a Supreme Court, cannot ignore the question. The confines of our deliberations in this case are not necessarily to be determined by the manner in which the parties choose to make their presentations to us. If we detect that a violation of a Convention right has taken place, it would surely be wrong for that to go unremarked upon. It would be, at least arguably, a failure on our part to comply with the enjoinder contained in section 6 of HRA which requires any public authority, including a court, not to act in a way which is in contravention of a Convention right. To fail to acknowledge that there has been a breach of article 2 where that has been established would be in breach of the spirit, if not the literal requirement, of that provision. This is particularly so because of section 6(6) of HRA. It stipulates that an act includes a failure to act. The failure of the Supreme Court to declare that there has been a violation of article 2 of ECHR where one has been detected in a case before it, however incidentally, would not keep faith with that enjoinder. But, it is not necessary to decide that point for the reasons given earlier and I refrain from expressing a final view on it. I would therefore make a declaration that there has not been an article 2 compliant inquiry into the death of Patrick Finucane. It does not follow that a public inquiry of the type which the appellant seeks must be ordered. It is for the state to decide, in light of the incapacity of Sir Desmond de Silvas review and the inquiries which preceded it to meet the procedural requirement of article 2, what form of investigation, if indeed any is now feasible, is required in order to meet that requirement. The appeal should otherwise be dismissed. The new argument For the first time in this court, objection was raised to the fact that affidavits were not sworn by the relevant ministers, but by two officials, one in the Northern Ireland Office and the other a private secretary to the Prime Minister. The appellants purpose, in raising the issue, was not as an additional ground of challenge, but because it was said to be objectionable that the ministers views and reasons should be conveyed by a second hand means. This argument was not raised in the courts below. As the respondent has submitted, had it been, there was much material that could have been marshalled to counter it. On that account alone, I do not consider that the argument may be entertained. LORD CARNWATH: I agree with the reasoning and conclusions of Lord Kerr on the principal issues in the appeal. I add a comment on the issue of legitimate expectation which was raised in argument and is discussed briefly in his judgment at paras 55ff. I do so only because of the reliance placed by the Secretary of State in argument on a judgment of my own in United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17; [2016] 1 WLR 3383, and in particular on the concluding paragraph (para 121): the trend of modern authority, judicial and academic, favours a narrow interpretation of the Coughlan principle, which can be simply stated. Where a promise or representation, which is clear, unambiguous and devoid of relevant qualification, has been given to an identifiable defined person or group by a public authority for its own purposes, either in return for action by the person or group, or on the basis of which the person or group has acted to its detriment, the court will require it to be honoured, unless the authority is able to show good reasons, judged by the court to be proportionate, to resile from it. In judging proportionality the court will take into account any conflict with wider policy issues, particularly those of a macro economic or macro political kind. (para 121, emphasis added) It was submitted for the Secretary of State (inter alia) that, in so far as a relevant promise had been made by the Secretary of State, there had been no detrimental reliance by Mrs Finucane. I agree with Lord Kerr (para 63) that the issues raised in that paragraph, including in particular that of detriment, have no application to this case, which concerns as he says a policy statement about procedure, made not just to Mrs Finucane but to the world at large. As I hoped I had made sufficiently clear, my reference in that concluding paragraph to the Coughlan principle was directed to the particular case of a promise made to an identifiable person or group relating to a substantive benefit (such as in Ex p Coughlan [2001] QB 213 the right to stay in a home, or in Paponette [2012] 1 AC 1 the use of a taxi stand). Earlier in the judgment I had sought to explain why such cases were to be distinguished from other categories of legitimate expectation in the wider sense: on the one hand, promises relating to procedure, in relation to which the law was well settled (my para 82); and, on the other, policy statements made to the public in general (para 116; as to which see also Mandalia v Secretary of State for the Home Department [2015] UKSC 59; [2015] 1 WLR 4546, paras 29 31 per Lord Wilson). My reference in the same paragraph to the need for some form of action by, or detriment to, the person relying on the promise was intended to apply in the same limited context. It has attracted some critical academic comment (Joanna Bell The Privy Council and the doctrine of legitimate expectation meet again (2016) 75 CLJ 449; for a more general academic commentary on the judgment, see Joe Tomlinson The narrow approach to substantive legitimate expectations and the trend of modern authority (2017) 17 Oxford University Commonwealth Law Journal, 75 84). Although I may not have made this sufficiently clear, my reference in that paragraph was based on the analogy with breach of contract or estoppel in private law, noted in the passages cited earlier in my judgment (paras 94 95): see R v Inland Revenue Comrs, Ex p Preston [1985] AC 835, 886 887 per Lord Templeman; Ex p MFK [1990] 1 WLR 1545, 1569 1570 per Bingham LJ. On reflection, however, I accept that, even in that limited context the proposition may have been too narrowly stated. The alternative approach was that adopted (without argument) by Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453, para 60: It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power (citing Laws LJ in R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115, 1131). That is consistent also with other authorities in the Court of Appeal, and the passage from Paponette (para 37 per Lord Dyson) cited by Lord Kerr at para 64. It is also more consistent with the modern approach which has tended to sever any direct link between public and private law, recognising that: public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet. (R (Reprotech (Pebsham) Ltd) v East Sussex County Council [2002] UKHL 8, [2003] 1 WLR 348, para 35 per Lord Hoffmann.) I note that there was a difference in the Court of Appeal in the present case. Gillen LJ (para 73) followed Bancoult, referring to proof of detriment as not essential, but as a relevant consideration in respect of proportionality. Deeny J (para 4) by contrast thought that that it would be unconstitutional for courts to say that a new Government cannot depart from a representation given by a previous Government unless a defined group had acted to their detriment on the basis of the representation. He saw that requirement as analogous to consideration in the law of contract . For the reasons given above, I am inclined now to prefer the former view. However, since the issue does not arise in the present case, it is unnecessary for us to propose a precise formulation of the test. Indeed the distinction may be little more than one of emphasis, and unlikely to make much practical difference in most cases.	Patrick Finucane was a solicitor in Belfast. On 12 February 1989, gunmen burst into his home and brutally murdered him in the presence of his wife and three children. Those responsible were so called loyalists. It has emerged that there was collusion between the murderers and members of the security forces. Despite various investigations into Mr Finucanes death, none of these has uncovered either the identity of the members of the security forces who engaged in the collusion or the precise nature of the assistance which they gave to the murderers. Following an inquiry into allegations of collusion between the security forces and loyalist paramilitaries, Brian Nelson was identified. Nelson was an informer for the security services and in particular for an organisation within the British army known as the Force Research Unit (FRU). His role had included the gathering of information about potential targets for assassination. In 2001, political talks were held between the UK and Irish governments. It was decided that a judge would be appointed to investigate allegations of collusion in a number of cases, including that of Mr Finucane. It was said that if the judge recommended a public inquiry in any case, the relevant government would implement that recommendation. Judge Cory was appointed in June 2002. Meanwhile, on 1 July 2003, following a case brought by Mrs Finucane, the European Court of Human Rights (ECtHR) decided that there had not been an inquiry into the death of Mr Finucane which complied with Article 2 of the European Convention on Human Rights (ECHR). Judge Cory published his report on 1 April 2004. He concluded that a public inquiry into Mr Finucanes murder was required. In September 2004, the Secretary of State for Northern Ireland (SSNI) wrote to Mrs Finucane and made a statement in the House of Commons to the effect that the inquiry would be held on the basis of new legislation which was to be introduced shortly. This new legislation was the Inquiries Act 2005. Mrs Finucane objected strenuously to the proposal that the inquiry would take place under the new legislation and various discussions as to the terms of the inquiry took place over the years that followed. In May 2010, there was a general election and a new government was formed. Following a consultation on the form which an inquiry into the murder of Mr Finucane should take, the decision was made on 11 July 2011 that a public inquiry would not be conducted. Instead, Sir Desmond de Silva was appointed to conduct an independent review into any state involvement in Mr Finucanes murder. Sir Desmond was given unrestricted access to documents and was free to meet anyone whom he felt could help with his inquiry. He was not given the power to hold oral hearings, however. Although, initially Sir Desmond wished to meet with one of Nelsons former handlers, this meeting did not take place and Sir Desmond explained in his report that the reason that the meeting did not take place was that he had been informed that the handler felt unable to attend for medical reasons. It has become apparent that this information was given to Sir Desmond by the Ministry of Defence. No medical evidence to support the claim of ill health was provided. In the event, Sir Desmond subsequently decided that he did not need to meet the handler, but did not explain why he had changed his view. Sir Desmond stated as part of the conclusion to his report: I am left in significant doubt as to whether Patrick Finucane would have been murdered by the UDA in February 1989 had it not been for the different strands of involvement by elements of the state. Mrs Finucanes case is brought in judicial review. She claims that she had a legitimate expectation that a public inquiry would be held because of the unequivocal assurance given to her in September 2004. She says the government have failed to show valid grounds for failing to fulfil this promise and that the evidence suggests that the decision not to hold the inquiry was a sham with a predetermined outcome. Mrs Finucane supports her case by arguing that the failure to establish a public inquiry constitutes a violation of her rights under Article 2 of the ECHR and section 6 of the Human Rights Act 1998 (HRA) which requires any public authority (including a Court) not to act in a way which is in contravention of an ECHR right. Mr Justice Stephens dismissed Mrs Finucanes application for judicial review but made a limited declaration that an Article 2 compliant inquiry into Mr Finucanes murder had not yet taken place. The Court of Appeal upheld this decision, save that it set aside the declaration. The Supreme Court holds that Mrs Finucane did have a legitimate expectation that there would be a public inquiry into Mr Finucanes death, but that Mrs Finucane has not shown that the governments decision not to fulfil this promise was made in bad faith or that it was not based on genuine policy grounds. The Supreme Court makes a declaration that there has not been an Article 2 compliant inquiry into the death of Mr Finucane. Lord Kerr gives a judgment with which all members of the Court agree. Lord Carnwath delivers a concurring judgment. Legitimate Expectation: Where a clear and unambiguous undertaking is made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so [62]. The undertakings given by the various ministers amount, individually and cumulatively, to an unequivocal undertaking to hold a public inquiry into Mr Finucanes death [68]. This promise was not of a substantive benefit to a limited class of individuals. Instead, it was a policy statement about procedure. That policy procedure applied not only to Mrs Finucane but also to the world at large [63]. If political issues overtake a promise given by the government and a decision is taken in good faith and on genuine policy grounds not to adhere to the original promise, it will be difficult for a person who holds a legitimate expectation to enforce compliance with it [76]. Mrs Finucanes argument that the process was a sham and the outcome was fixed is a serious charge which would require clear evidence before this could be accepted [77 78]. There is no sustainable evidence to this effect, so this part of Mrs Finucanes appeal fails [81]. Whilst this issue did not arise on the facts of the present case, Lord Carnwath delivers a concurring judgment addressing the issue of detriment in substantive legitimate expectation cases [156 160]. Article 2 of the ECHR: Article 2 gives rise not merely to a duty not to kill people but, where there is an issue as to whether the state had broken this obligation, an obligation on the part of the state to carry out an effective official investigation into the deaths [83]. Mr Finucane died prior to 2 October 2000, which is the date when the HRA (which gives effect to the ECHR in domestic law) came into force [84]. The procedural obligation to investigate can be considered a detachable obligation, however. In that role, it is capable of binding the state even where the death took place before the critical date when these laws came into force [96]. The SSNI argued that there must be a genuine connection between the death and the critical date, and that this had not been established in this case [106 107]. It was suggested that the period between the death and the critical date should not exceed ten years. It was held that there was not an absolute rule that the period between the death and the critical date should be ten years or less. The period between the dates is important but the significance of this diminishes where, as in this case, most of the significant inquiries into the death took place after the HRA came into force [108]. It has been established by the ECtHR that any information or material which has the potential to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further would prompt a revival of the procedural obligation [117]. The need for an effective investigation goes well beyond facilitating a prosecution [127]. In order to be compliant, an investigation must be capable of leading to the identification and punishment of those responsible [128]. This must involve having the means to identify those implicated in the death [131]. Various features show that Sir Desmonds review fell short of being an effective Article 2 compliant inquiry: Sir Desmond did not have the power to compel the attendance of witnesses, those who met him were not subject to testing as to the accuracy of their evidence, and a potentially critical witness was excused attendance for questioning. The review by Sir Desmond, even when taken with earlier inquiries, was not sufficient to fulfil the requirements of Article 2 [134]. Mrs Finucanes representative had declined an invitation made by the Court of Appeal to amend her application and plead, as a freestanding issue, that the state was in breach of its Article 2 obligations. Notwithstanding this, the issue of whether there was a breach of the procedural obligation under Article 2 was before this Court and called for determination [151]. In any event, the confines of the deliberations of the Supreme Court are not necessarily determined by the manner in which the parties choose to make their presentations. Whilst it is unnecessary to decide this point in the present appeal, to allow a violation of an ECHR right to go unremarked upon may well be in breach of the spirit, if not the literal requirement, of section 6 of the HRA [152].
A father applies under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Convention), set out in Schedule 1 to the Child Abduction and Custody Act 1985 (the 1985 Act), for a summary order for the return of his young daughter from England to Israel. The mother opposes the application but a High Court judge grants it. On the mothers appeal the Court of Appeal rules that it had not been open to the judge to make an order under the Convention. So it sets his order aside. But the Court of Appeal then proceeds to invoke the inherent jurisdiction of the High Court (the inherent jurisdiction) and, pursuant to it, the court makes a summary order analogous to that made by the judge, namely for the immediate return of the child to Israel, in substitution for his order under the Convention. The overall question raised before us by the mothers further appeal has been whether the Court of Appeal was entitled to make the summary order for the childs return to Israel under the inherent jurisdiction. But the question has been broken down into two parts. First, was the inherent jurisdiction in principle available to be exercised in the making of a summary order for the childs return? Second, if so, was the Court of Appeals approach to the exercise of the jurisdiction flawed? This court has already answered the overall question. It heard the appeal on 18 July 2019 and received the last of the parents further written submissions on 1 August. It was conscious of the urgency of the decision. The aspiration set out in Practice Direction 3.4.5(c), annexed to the Supreme Court Rules 2009, is for the result of an appeal in a Convention case to be given within two weeks of the end of the hearing; and the court considered that the aspiration should apply equally to the instant appeal. On 14 August 2019 it therefore made its order, which was that the mothers appeal be allowed and that the Court of Appeals order under the inherent jurisdiction be set aside. By todays judgments, the court will explain its reasons for having made that order. In doing so it will explain why its answer to both parts of the overall question is yes. The mother and father are Israeli nationals, aged 31 and 29 respectively. They married in 2013 and have only the one child to whom I have referred. She is now aged almost three. They lived in Israel with the fathers parents. The father worked as a police officer. The marriage ran into difficulties and, partly as a result of them, the parties decided to move, with the child, to England. The move took place on 25 November 2018. They rented a flat in North London. The father found employment as a waiter and the child started to attend nursery school. Although both parents regarded it as possible that, were the marriage to break down, they would return to live separately in Israel, there was no agreement that they would necessarily do so. In London the marriage quickly broke down. On 10 January 2019 the father told the mother that he intended to return to live in Israel; and he sought to insist that, with the child, the mother should also return there, where issues between them could be resolved. While accepting that the marriage had broken down, the mother replied that she proposed to remain with the child in London. On 14 January 2019 the mother called the police and alleged to them that the father intended to kidnap the child. The police advised the father to leave the flat. He thereupon returned to Israel, where he continues to live. The mother continues to live with the child in London. Acting by lawyers, the father quickly issued proceedings for divorce and custody of the child in the Rabbinical Court of Jerusalem, which remained pending at the date of the hearing before the judge. Judgment at First Instance The factual allegation which formed the basis of the fathers application under the Convention was that, on the day when the marriage finally broke down, namely 10 January 2019, the mother had wrongfully retained the child in England and Wales. The first of the mothers three contentions by way of defence was that the child had become habitually resident in England and Wales by 10 January 2019. By his written judgment handed down on 17 April 2019, [2019] EWHC 1310 (Fam), [2019] 3 FCR 82, following a hearing on 15 April, the judge (MacDonald J) rejected this contention and the Court of Appeal refused to permit the mother to appeal against his rejection of it. For present purposes it is therefore an established fact that, at any rate until 10 January 2019, the child remained habitually resident in Israel. The second of the mothers contentions was that her retention of the child on 10 January 2019 had not been wrongful. She linked this contention with an assertion pursuant to article 13(a) of the Convention that the father had given a relevant consent. Although in earlier presentations of her case she had alleged that he had consented both to the childs removal from Israel on 25 November 2018 and to the retention of her in England on 10 January 2019, her case of consent became properly focussed in the position statement laid on her behalf before the judge: it was simply that he had consented to her retention of the child on 10 January. For the fathers consent to the childs removal from Israel on 25 November was irrelevant to his claim of wrongful retention. As the Court of Appeal was later to hold, the proper focus of the mothers case of consent for some reason became lost during the hearing before the judge. Her case was taken to be that the father had consented to the childs removal from Israel on 25 November. In relation to that point, the judge received brief oral evidence from the mother, from a male friend of hers and from the father; and it is important to note that the judge received no oral evidence on any other aspect of the case. In the event he held that the fathers consent had been operative at the time of the childs removal from Israel; that the mother had therefore established a defence under article 13(a) of the Convention; and that the defence yielded to him a discretion not to order the childs return to Israel. The third of the mothers contentions, made pursuant to article 13(b) of the Convention, was that there was a grave risk that a return to Israel would expose the child to physical or psychological harm or would otherwise place her in an intolerable situation. In this regard the mother, in her written evidence, made what appeared to be serious allegations of domestic abuse against the father. She alleged that his work as an Israeli policeman had in effect brutalised him; that during the marriage he had pushed or hit her every two or three weeks; that he had once held a gun to her head and had frequently demonstrated how he could crush her skull with his hands; and that once in Israel and again on an underground train in London he had even assaulted the child. The judge weighed the mothers allegations of domestic abuse against the fathers written denials and, in particular, against other material which on any view raised substantial concern about her credibility in that respect. For, in text messages sent to the mother on 13 January 2019, the male friend who gave oral evidence on her behalf had suggested that, in any approach on her part to the Rabbinical Court in London, she should play the game; should dress modestly; should pretend that she was religious; and should express fear that the father would kidnap the child. He had also suggested that she should offer the father greater contact with the child than she genuinely intended to afford to him in order to induce him to give her a Jewish get. Indeed it was on the day following her receipt of these messages that the mother had alleged to the police that the father intended to kidnap the child. The judge was fully entitled to observe that, in the light of the above material, he should approach the mothers allegations of domestic abuse with caution. He then evaluated them in accordance with the approach recommended for Convention cases in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144. He therefore heard no oral evidence in relation to them and made no findings about them. Instead he sought to make a reasonable assumption about the maximum level of risk to the child in the light of all the available evidence. On this basis his assumption was of some risk to the mother, but not directly to the child, of physical and verbal abuse on the part of the father. The judge then addressed a series of undertakings offered to him by the father, including not to molest the mother in Israel, not to remove the child from her care in Israel without an order of the Israeli court and to provide reasonable financial support for both of them there until that court might otherwise order. The judges conclusion was that, in the light of the undertakings, the risk to the child, if returned to Israel, did not reach the level of gravity required by article 13(b). So that defence failed. The judge did not consider, because he was not asked to consider, whether the undertakings would be enforceable against the father in Israel. The Court of Appeals view, however, was that the judge would have been unlikely to have overlooked the well recognised concern about the enforceability in a foreign state of undertakings given to the English court. Then the judge turned to the discretion whether to order the childs return to Israel, to which his finding that the father had consented to her removal from Israel appeared to him to have given rise. In this regard he reminded himself that he was entitled to have regard to the policy aims of the Convention. He regarded them as based on the recognition that it is of manifest benefit to a child to have decisions regarding their welfare taken in the jurisdiction of their habitual residence. It was by those steps that the judges order for the childs return to Israel was The judge surveyed the multitude of features which connected the child to Israel and, by contrast, her connection with the UK for less than five months prior to the hearing; and he concluded that he should not exercise his discretion to decline to order her return to Israel. made under the Convention. But then the judge added a postscript. It was based on passing observations which he had made earlier. He had there reminded himself that, under article 18 of the Convention, its provisions for the return of children did not limit the domestic powers of a contracting state to order their return at any time; and he had referred to the decision of this court in In re L (A Child) (Custody: Habitual Residence) [2013] UKSC 75, [2014] AC 1017 (the L case), as for which see para 43 below. His postscript was: As I have made clear above, I am satisfied that had I concluded that [the child] was habitually resident in this country, I would have reached the same decision under the inherent jurisdiction The father had issued no application for an order for the childs return to Israel to be made under the inherent jurisdiction. Indeed no reference had been made to that jurisdiction in the course of the hearing, whether by counsel for either party in the course of their written or oral submissions to the court or by the judge himself. No doubt many judges (at any rate I speak for myself) have occasionally been guilty of including in judgments ill considered, off the cuff, remarks which later prove highly unfortunate. The counterfactual hypothesis of the judges postscript was that the child had been habitually resident in England on 10 January 2019, with the result that the Convention would, for that reason alone, not have applied to a retention on that date. But, apart from the wider principles applicable to the making of an order under the inherent jurisdiction addressed below, the hypothesis of the childs habitual residence in England should by itself have generated substantial questions, never addressed by the judge, about the propriety of such an order. One question would of course have surrounded recognition of the fact that (to use the judges own words quoted in para 13 above) it is of manifest benefit to a child to have decisions regarding their welfare taken in the jurisdiction of their habitual residence. Judgment of the Court of Appeal On 18 June 2019 the Court of Appeal (Flaux, Moylan and Haddon Cave LJJ) not only heard the mothers appeal but determined it, by a judgment delivered by Moylan LJ with which the other members of the court agreed: [2019] EWCA Civ 1065, [2019] 3 FCR 49. The courts order is however dated 24 June 2019. There is no need to consider in detail the courts reasons for setting aside the judges order under the Convention. They will already be apparent in any event. In summary the court held that there had been no focus in the judgment on the fathers foundational assertion that there had been a wrongful retention of the child by the mother on 10 January 2019; and it held that, once the judge had found that there was no agreement between the parties to return to Israel if the marriage broke down, there was no ground for concluding that the mothers retention of the child in England on and after that date had been wrongful. Therefore the Convention had not been engaged. There is, by contrast, every need to consider in detail the courts reasons for substituting an order for the childs return to Israel under the inherent jurisdiction. In this regard the court in para 63 identified the following two issues: (i) whether the mother was prejudiced by the absence of any application [for the exercise of the inherent jurisdiction] and by the other matters relied on by her so as to make the judges determination unfair; and (ii) whether the judge was in a position to make a sufficient welfare assessment necessary to the proper exercise of the inherent jurisdiction. (Emphasis supplied) It is worthwhile to note the courts use of the word determination in its formulation of the first issue. In at least six places in the judgment the court referred to the judges determination or decision to make an order under the inherent jurisdiction. The court well knew that he had made no such determination or decision but it clearly regarded it as appropriate to deem him to have done so. In what follows, however, it is as well to remember that the order under the inherent jurisdiction was made not by the judge on 17 April 2019 but by the Court of Appeal on 18 June 2019. This leads to the second issue identified by that court. If the Court of Appeal, always invested with the powers of the judge against whose judgment an appeal is brought and thus in this case invested with his inherent jurisdiction, was considering whether to make a fresh order on a different basis, it had to survey the relevant evidence for itself; indeed, as is agreed between the parties, it had to satisfy itself that the evidence was sufficiently up to date to form the basis of an order which could be made that day by reference to circumstances which then existed. On the contrary, however, in its formulation of the second issue, the court asked whether the judge had been in a position to make the requisite welfare assessment. Central to the mothers objections in the Court of Appeal to the making of any order under the inherent jurisdiction was a contention that the courts exercise of that jurisdiction had to be conducted by reference to an overarching consideration, namely the paramountcy of the childs welfare, entirely different from the considerations by reference to which the jurisdiction under the Convention would fall to be exercised. The Court of Appeals answer was to rely on the judges analysis of the discretion not to make an order under the Convention which, however mistakenly, he had considered to have arisen from the fathers consent to the childs removal from Israel. In the judgment the Court of Appeal reasoned as follows: 65. there were no additional matters of substance which would not be relevant to the exercise of that discretion but would be relevant to the discretion under the inherent jurisdiction. 66. it could be argued that the inherent jurisdiction has a wider canvas based, as it is, on welfare being the courts paramount consideration but, when the court is deciding whether to exercise its discretion to make a return order under the 1980 Convention once a ground for opposing the return has been established, the court will consider the wider canvas, in particular when the ground is other than grave harm. The Court of Appeals resolution of the two issues set out in para 22 above was therefore as follows, at para 68: the mother was not significantly prejudiced in this case (i) so as to make the judges determination unfair; and (ii) assessment. (Emphasis supplied) the judge was in a position to make a sufficient welfare Their resolution led to the courts overall conclusion as follows, at para 73(c): The judge was entitled to make an order for [the childs] return under the courts inherent jurisdiction and his summary welfare decision to do so is fully supported by the reasons he gave. (Emphasis supplied) Inherent Jurisdiction Available The first basis of the mothers assault on the Court of Appeals summary order for the childs return to Israel under the inherent jurisdiction is that it was not open to that court, and would not have been open to the trial judge, to deploy the inherent jurisdiction in that way. Her case is that a summary order for the childs return outside the Convention could have been made only as a specific issue order under the Children Act 1989 (the 1989 Act). Section 10 of the 1989 Act empowers the court to make the orders specified in section 8(1). They include a specific issue order, there defined as an order giving directions for the purpose of determining a specific question which has arisen in connection with any aspect of parental responsibility for a child. An order for the return of a child to a foreign state falls within that definition; and a specific issue order to that effect can be made not only after a full inquiry into the merits of the case but also on a summary basis; see paras 34 and 35 below. Had it been otherwise appropriate for the Court of Appeal to make a summary order in the circumstances of the present case, it could have been made as a specific issue order. There would have been jurisdiction to make such an order in relation to this child. For, had the child remained habitually resident in Israel on the date when, in the absence of an application, the court was considering whether to make the order (18 June 2019), her presence in England and Wales, coupled with the absence of her habitual residence in any part of the United Kingdom, would have endowed the court with jurisdiction to make it: sections 2(1)(b)(ii) and 3(1)(b) of the Family Law Act 1986 (the 1986 Act). If, alternatively, the child had become habitually resident in England by that date, article 8(1) of Council Regulation (EC) No 2201/2003 (Regulation B2R), which applies even when the other possible jurisdiction is not a member state as there defined, would, as confirmed by section 2(1)(a) of the 1986 Act, have endowed the court with jurisdiction to make it. But could a summary order for the childs return to Israel also have been made under the inherent jurisdiction? In principle the inherent jurisdiction was as fully available in relation to this child as was the jurisdiction to make a specific issue order. For, had she remained habitually resident in Israel on 18 June 2019, a summary order for the childs return there under the inherent jurisdiction, not being an order which gives care of a child to any person, would have fallen neither within section 1(1)(d) of the 1986 Act nor otherwise within Part 1 of it; and the result would have been the application of the bases of jurisdiction under common law, including that of the childs presence in England. If, alternatively, she had become habitually resident in England by that date, article 8(1) of Regulation B2R would, as in the case of a specific issue order, have endowed the court with jurisdiction to deploy the inherent jurisdiction in relation to her. The mother accepts that, prior to the advent of the 1989 Act, a summary order for the return of a child abroad could be made by the High Court in the exercise of its inherent jurisdiction. She reminds the court of the classic exposition of Buckley LJ in In re L (Minors) (Wardship: Jurisdiction) [1974] 1 WLR 250. It is easy to forget that, before ordering the return of the child to Germany in that case, the High Court judge had conducted a full merits based inquiry into what the childs welfare required. Strictly speaking, the remarks of Buckley LJ at pp 264 265 were therefore only passing observations. Nevertheless he there convincingly explained why an order under the inherent jurisdiction for a prompt return of children wrongly taken from a foreign state, in order that the courts there might determine their future, might well be in their best interests at that stage; and that a full investigation of the merits of the parental dispute in the English courts might be incompatible with them. These remarks formed the basis of a number of decisions in the following decade, beginning with that of In re C (Minors) (Wardship: Jurisdiction) [1978] Fam 105. On 1 August 1986 the 1985 Act, to which the Convention was scheduled, came into force. It is a fair working assumption that application of the Convention will generally identify the circumstances in which it is, and is not, in the interests of a child to be the subject of a summary order for return to another contracting state. The court should look critically at any application for a summary order, whether as a specific issue order or as an order under the inherent jurisdiction, for the return to a contracting state of a child who as in the present case has been held not to be susceptible, or who would probably be held not to be susceptible, to the making of an order under the Convention. In her judgment in the Irish High Court in KW v PW [2016] IEHC 513, OHanlon J went further: 57. This Court finds that the inherent jurisdiction is not applicable in this case. The inherent jurisdiction exists to fill a lacuna in the law and there is no lacuna here. To use the inherent jurisdiction to make an order returning these children to Australia after holding that they are habitually resident in Ireland would be to circumnavigate the content and the principles of the Hague Convention. One has considerable sympathy for the judges approach; but I respectfully suggest that it would be better for our approach in England and Wales to be less categorical. For, as I will explain in para 53 below, the principles of the Convention are not constructed by reference to the paramountcy of the childs welfare and so we must recognise, as being at any rate a possibility, that a childs welfare will require a summary order for his return to a contracting state even when the Convention does not so operate as to require it. On 14 October 1991 sections 8 and 10 of the 1989 Act came into force. It was, according to the mother, at this moment, which marked the advent of the specific issue order, that it became impermissible for a summary order for the childs return abroad to be made instead under the inherent jurisdiction. The mother cites the decision of the appellate committee of the House of Lords in Richards v Richards [1984] AC 174. It held that, following an enactment in 1967 which conferred specific jurisdiction to order a spouse to leave the home, a court could no longer make such an order pursuant to its general jurisdiction to grant an injunction. Lord Hailsham of St Marylebone, Lord Chancellor, said at pp 199, 200: where, as here, Parliament has spelt out in considerable detail what must be done in a particular class of case it is not open to litigants to bypass the special Act, nor to the courts to disregard its provisions by resorting to the earlier procedure, and thus choose to apply a different jurisprudence from that which the Act prescribes. Lord Brandon of Oakbrook spoke at p 221 to similar effect. The mother also relies heavily on the decision of the appellate committee in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80. The issue was whether, as his father contended, there should be a summary order for the return of a five year old boy to Saudi Arabia, which was not (and is not) a contracting state under the Convention. The committee set aside the summary order made by the Court of Appeal and restored the order by which the judge had refused to make it. Baroness Hale of Richmond made the only substantive speech. She observed at para 5 that, had the Convention applied, the mothers retention of the boy in England would probably have been categorised as wrongful. She said at para 28: It is plain, therefore, that there is always a choice to be made. Summary return should not be the automatic reaction to any and every unauthorised taking or keeping a child from his home country. On the other hand, summary return may very well be in the best interests of the individual child. In concluding that the Court of Appeal had not been entitled to interfere with the judges order, Baroness Hale referred at paras 39, 40 and 46 not only to the relevance of the effect of an order for the childs return on his primary carer but also to the occasional relevance of differences in the criteria applied by the rival courts to resolution of the substantive issues in relation to the child and, in particular, to any absence of a power in the foreign court to authorise the primary carer to relocate with the child back to England. The decision in In re J was, says the mother, impeccable. And her point is this: the application by the father under consideration in all three courts was for a specific issue order for the childs return to Saudi Arabia, not for an order to that effect under the inherent jurisdiction. It was thus in relation to a specific issue order that, for example, Baroness Hale stressed the facility in principle for an order for return to be made summarily. We now reach the high point of the mothers case that the inherent jurisdiction is no longer available for the making of a summary order for a childs return abroad. It is Practice Direction 12D, which supplements Chapter 5 of Part 12 of the Family Procedure Rules 2010 (the 2010 Rules) and which is entitled Inherent Jurisdiction Proceedings. Paragraph 1.2 emphasises the width of the jurisdiction: The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the childs protection of which the following are the most common (e) orders for the return of children to and from another state. For the purpose of the 2010 Rules, the phrase family proceedings has the broad meaning ascribed to it by section 75(3) of the Courts Act 2003 (the 2003 Act). But the mothers case focusses on para 1.1 of the Practice Direction which provides: It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989. (Emphasis supplied) An application for a specific issue order for the return of a child to a foreign state cannot be issued in the High Court. It has to be issued in the Family Court: rule 5.4(1) of the 2010 Rules. It can then, however, be allocated to be heard by a judge of High Court level sitting as a judge of the Family Court or it can indeed be transferred to the High Court. There are strong reasons of policy, applied to all areas of civil justice, to confine claims to the lowest court which has jurisdiction to hear them in order to preserve the ability of the higher courts, in particular the High Court, to address only the claims strictly identified as deserving their attention. Is the italicised instruction in para 1.1 of the Practice Direction nevertheless too categorical? Does it have to be clear that the issues cannot be resolved under the 1989 Act before the inherent jurisdiction can be invoked? The 2010 Rules are made pursuant to section 75(1) of the 2003 Act and so have legislative force. But practice directions, even including those which are stated to supplement the 2010 Rules, are not made pursuant to that or any other statutory authority. As Brooke LJ said in U v Liverpool City Council (Practice Note) [2005] EWCA Civ 475, [2005] 1 WLR 2657, at para 48: a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all. The question therefore is whether the categorical instruction in para 1.1 of Practice Direction 12D is wrong. One of the major achievements of the 1989 Act was to streamline the procedure for ordering a child to be placed in the care of a local authority. One of the former procedures for doing so had been by way of exercise by the High Court of its inherent jurisdiction. Section 100 of the 1989 Act provides: (2) No court shall exercise the High Courts inherent jurisdiction with respect to children (a) so as to require a child to be placed in the care of a local authority; What is significant is that, in making the 1989 Act, Parliament, by contrast, nowhere sought to preclude exercise of the inherent jurisdiction so as to make orders equivalent to those for which sections 8 and 10 of it provide, including specific issue orders. In the absence of any statutory provision which the instruction in para 1.1 of Practice Direction 12D could be said to reflect, the court should turn to consider case law. In A v A (Children: Habitual Residence) [2013] UKSC 60, [2014] AC 1, the trial judge had invoked the inherent jurisdiction to make a summary order of the obverse kind, namely for the return of four children from abroad, specifically from Pakistan, to England and Wales. By the time of the arrival of the case in the Supreme Court, the issue surrounded only the order in relation to the youngest child, who was a British national but who had been born in Pakistan and, unlike his siblings, had never lived or even been present in England. The majority of this court expressed doubt as to whether in these circumstances the trial judge had been right to ascribe to him habitual residence in England. But it perceived a different basis for the possible exercise of the inherent jurisdiction in relation to him, namely the basis at common law of his British nationality; and it remitted the case to the judge to determine whether it was appropriate to exercise it. In that a specific issue order cannot be made on the basis only of nationality, it could be said that the decision in the A case does not carry the present inquiry much further. It is however worthwhile to note that, at para 26 of her judgment, Baroness Hale rejected the submission that the judges order, based on the childs perceived habitual residence, had been a specific issue order and observed that there were many orders relating to children which could be made either under the 1989 Act or under the inherent jurisdiction. In the L case, cited in para 15 above, the mother brought a boy, then aged seven, from Texas to England with the permission of a federal court. A year later a federal appeal court reversed the trial courts ruling; and the latter then made a revised order for the mother to return the boy to Texas. The father thereupon applied to the High Court for an order under the Convention and alternatively under the inherent jurisdiction for the boys return to Texas. On appeal this court held that the trial judge had been entitled to find that, by the time of the revised order made by the trial court, the boy had acquired habitual residence in England; and that therefore the mothers retention of him had not been wrongful and that the application under the Convention failed. Nevertheless this court proceeded to hold that in all the circumstances the boys welfare required a summary order to be made under the inherent jurisdiction for his return to Texas. In that the child was habitually resident in England, there is no doubt that his return to Texas could equally have been made the subject of a specific issue order. But it was not made the subject of such an order; and it was never suggested that it should have been so made. The instruction in para 1.1 of Practice Direction 12D goes too far. There is no law which precludes the commencement of an application under the inherent jurisdiction unless the issue cannot be resolved under the 1989 Act. Some applications, such as for a summary order for the return of a child to a foreign state, can be commenced in the High Court as an application for the exercise of the inherent jurisdiction. But then, if the issue could have been determined under the 1989 Act as, for example, an application for a specific issue order, the policy reasons to which I have referred will need to be addressed. At the first hearing for directions the judge will need to be persuaded that, exceptionally, it was reasonable for the applicant to attempt to invoke the inherent jurisdiction. It may be that, for example, for reasons of urgency, of complexity or of the need for particular judicial expertise in the determination of a cross border issue, the judge may be persuaded that the attempted invocation of the inherent jurisdiction was reasonable and that the application should proceed. Sometimes, however, she or he will decline to hear the application on the basis that the issue could satisfactorily be determined under the 1989 Act. Why has the mother been so concerned to argue that the Court of Appeals consideration of the making of a summary order for the childs return to Israel needed to take place within the framework of a specific issue order? The answer is that, although the childs welfare is the paramount consideration in the making of such an order whether made under the inherent jurisdiction or as a specific issue order, the mother considers that a specific issue order could be made only following a more extensive inquiry into the childs welfare. Where an application for the same order can be made in two different proceedings and falls to be determined by reference to the same overarching principle of the childs welfare, it would be wrong for the substantive inquiry to be conducted in a significantly different way in each of the proceedings. Of course, when in each of the proceedings it is considering whether to make a summary order, the court will initially examine whether the childs welfare requires it to conduct the extensive inquiry into certain matters which it would ordinarily conduct. Again, however, it would be wrong for that initial decision to be reached in a significantly different way in each of them. The mother refers to the list of seven specific aspects of a childs welfare, known as the welfare check list, to which a court is required by section 1(3) of the 1989 Act to have particular regard. She points out, however, that, by subsections (3) and (4), the check list expressly applies only to the making of certain orders under the 1989 Act, including a specific issue order, as is confirmed by the seventh specific aspect, namely the range of powers under that Act. The first six specified aspects of a childs welfare are therefore not expressly applicable to the making of an order under the inherent jurisdiction. But their utility in any analysis of a childs welfare has been recognised for nearly 30 years. In its determination of an application under the inherent jurisdiction governed by consideration of a childs welfare, the court is likely to find it appropriate to consider the first six aspects of welfare specified in section 1(3) (see In re S (A Child) (Abduction: Hearing the Child) [2014] EWCA Civ 1557, [2015] Fam 263, at para 22(iv), Ryder LJ); and, if it is considering whether to make a summary order, it will initially examine whether, in order sufficiently to identify what the childs welfare requires, it should conduct an inquiry into any or all of those aspects and, if so, how extensive that inquiry should be. The mother also refers to Practice Direction 12J, which supplements Part 12 of the 2010 Rules and which is entitled Child Arrangements and Contact Orders: Domestic Abuse and Harm. By para 4, the Practice Direction explains that harm is suffered not only by children who are the direct victims of domestic abuse but also by children who live in a home in which it is perpetrated. When disputed allegations of domestic abuse are made, the Practice Direction makes detailed requirements of the court, in particular to consider whether to conduct a fact finding hearing in relation to them (para 16), whether to direct the preparation of a report by a CAFCASS officer (para 21) and whether to order a child to be made a party and be separately represented (para 24). The mother points out, however, that, by para 1, the Practice Direction applies only to proceedings under the relevant parts of the 1989 Act (which would include an application for a specific issue order) or of the Adoption and Children Act 2002. Therefore it does not expressly apply to the determination of any application under the inherent jurisdiction, including of an application governed by consideration of a childs welfare in which disputed allegations of domestic abuse are made. Nevertheless, as in relation to the welfare check list, a court which determines such an application is likely to find it helpful to consider the requirements of the Practice Direction; and if it is considering whether to make a summary order, it will initially examine whether, in order sufficiently to identify what the childs welfare requires, it should, in the light of the Practice Direction, conduct an inquiry into the allegations and, if so, how extensive that inquiry should be. Exercise of Inherent Jurisdiction Flawed The Court of Appeal did not conduct for itself an inquiry into whether the welfare of the child required her to be the subject of a summary order for return to Israel. It considered that the judge had conducted such an inquiry and had determined that her welfare did so require; and it held that his perceived determination was not wrong. With great respect, I find it impossible to agree that the judge had conducted any such inquiry or had made any such determination. The judge had not purported to make any determination at all under the inherent jurisdiction; and he had not conducted any inquiry in relation to which the childs welfare was the paramount consideration; still less had he conducted what was commended by the Court of Appeal as a sufficient welfare assessment. The Court of Appeal held that, in determining not to exercise the discretion so as to decline to order the childs return to Israel, which he perceived to have arisen under the Convention, the judge had considered the wider canvas based on welfare being the courts paramount consideration. But the discretion which arises under the Convention lacks that basis. It has been best explained by Baroness Hale in In re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] AC 1288 as follows: 42. In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the contracting states and respect for one anothers judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the contracting states. 43. My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the childs rights and welfare. The judges determination not to exercise the discretion perceived to have arisen under the Convention cannot stand as a determination that the childs welfare required her return to Israel. The initial question for the Court of Appeal was whether the mother had had sufficient notice of its intention to make a summary order under the inherent jurisdiction. The fact that the father had not applied for an order under the inherent jurisdiction did not, of itself, inhibit the Court of Appeal from making the order; and, had the judge made such an order, the absence of an application would not, of itself, have inhibited him from doing so. Section 10(1)(b) of the 1989 Act provides that a specific issue order can be made even though no application for it has been made; and there is no reason to doubt that an order under the inherent jurisdiction, the flexibility of which is a key feature of it, can also be made of the courts own motion. But in such circumstances a heavy duty lies upon a court to ask whether the effective respondent has had notice of the courts intention sufficient to afford to her (or him) a reasonable opportunity to mount opposition to it. In the present case the Court of Appeal did address this initial question; and it answered it affirmatively. It is correct that, upon her receipt of the fathers skeleton argument three weeks prior to the hearing in the Court of Appeal, the mother became aware that, in the event of the success of her appeal against the order under the Convention, the father aspired to persuade that court to make an order under the inherent jurisdiction; and respect must be given to the Court of Appeals observation that Mr Twomey QC, on behalf of the mother, had at its hearing (unlike at ours) struggled to identify any additional evidence which he might have adduced, or submission which he might have made, had such notice been given to him prior to the conclusion of the hearing before the judge. But, since it was the Court of Appeal which made the order, the real question was whether the mother had had sufficient notice of the intention of that court to do so. It is sufficient to record significant doubt whether the mother could reasonably have anticipated that, in the event of the success of her appeal, an appellate court, instead of, at most, remitting to the judge consideration of the exercise of the inherent jurisdiction, would itself exercise it even in the absence of material with which to analyse what the childs welfare required. I respectfully suggest, however, that, before making a summary order under the inherent jurisdiction for this child to be returned to Israel, the Court of Appeal should have given (but did not give) at least some consideration to eight further, linked, questions. First, the court, which was sitting on 18 June 2019, should have considered whether the evidence before it was sufficiently up to date to enable it then to make the summary order. The mothers statement in answer to the claim under the Convention was dated 29 March 2019. In it she had devoted seven out of 67 paragraphs to assertions of the childs habitual residence in England and of particular circumstances said to demonstrate how happy and settled she had become. In his statement in reply dated 11 April the father had joined issue with the mothers assertions. The oral evidence given by the parties to the judge on 15 April had been limited to the issue of consent to the childs removal from Israel and so had not addressed these matters. Second, the court should have considered whether the judge had made, or whether it could make, findings sufficient to justify the summary order. The only relevant finding made by the judge had been that on 10 January 2019, only seven weeks after her arrival in England, the child had retained habitual residence in Israel. Was that sufficient to justify the making of a summary order five months later? In the light of the policy in favour of the making of substantive welfare determinations by the courts of habitual residence, did there need to be inquiry into the childs habitual residence at the relevant date, which, in the absence of an application, was in this case the date of the proposed order? Third, the court should have considered whether, in order sufficiently to identify what the childs welfare required for the purposes of a summary order, an inquiry should be conducted into any or all of the aspects of welfare specified in section 1(3) of the 1989 Act and, if so, how extensive that inquiry should be: see para 49 above. It might in particular have considered that the third of those aspects, namely the likely effect on [the child] of any change in [her] circumstances, merited inquiry. Fourth, the court should have considered whether in the light of Practice Direction 12J, an inquiry should be conducted into the disputed allegations made by the mother of domestic abuse and, if so, how extensive that inquiry should be: see para 50 above. The judge had made no findings about them. Instead, in accordance with the E case cited in para 12 above, he had, for the purposes of the claim under the Convention, made a reasonable assumption in relation to the maximum level of risk to the child arising out of any domestic abuse to be perpetrated by the father and had considered that such risk would be contained within acceptable limits by undertakings offered by the father, the enforceability of which in Israel the judge had not explored. Consideration should therefore have been given to whether, in a determination to be governed by the childs welfare, the judges approach to the mothers allegations remained sufficient. Fifth, the court should have considered whether, without identification in evidence of any arrangements for the child in Israel, in particular of where she and the mother would live, it would be appropriate to conclude that her welfare required her to return there. Sixth, the court should have considered whether, in the light of its consideration of the five matters identified above, any oral evidence should be given by the parties and, if so, upon what aspects and to what extent. Seventh, the court should have considered whether, in the light of its consideration of the same matters, a CAFCASS officer should be directed to prepare a report and, if so, upon what aspects and to what extent. It is noteworthy that in the L case discussed in para 43 above, a CAFCASS report had been prepared. It had been designed to ascertain the boys wishes and feelings and so was apparently made as if pursuant to section 1(3)(a) of the 1989 Act: see para 14 of Baroness Hales judgment. In her careful weighing, in paras 34 to 37 of her judgment, of the welfare considerations which militated both in favour of, and against, the boys return to Texas, Baroness Hale relied to a significant extent upon the content of the CAFCASS report. Eighth, the court should have considered whether it needed to compare the relative abilities of the Rabbinical Court in Jerusalem and the Family Court in London to reach a swift resolution of the substantive issues between the parents in relation to the child and to satisfy itself that the Rabbinical Court had power to authorise the mother to relocate with the child back to England: see para 34 above. The effect of the above is not to submerge efficient exercise of the inherent jurisdiction to make a summary order within an ocean of onerous judicial obligations. The linked obligations are obligations only to consider the eight specified matters. There is no need for us to contemplate what the proper outcome of the Court of Appeals consideration of them might have been. It is the fact that it failed even to consider them which yields the conclusion that it conducted no defensible analysis of the childs welfare prior to its determination to make the summary order and which led this court to uphold the mothers appeal.	This appeal concerns a fathers application for an order for the immediate return of his daughter from England and Wales to Israel. The issue raised is whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Convention), was nonetheless entitled to grant it under the inherent jurisdiction of the High Court to make orders in relation to children (the inherent jurisdiction). The childs parents are Israeli nationals who married in 2013. She is their only child and is now aged almost three. Her parents lived at first in Israel but moved to London in November 2018. There the marriage broke down. The father returned to Israel, but the mother refused to do so, and remained in London with the child. The father applied under the Convention, which is set out in Schedule 1 to the Child Abduction and Custody Act 1985 (1985 Act), for a summary order for the childs immediate return to Israel. The allegation underpinning his application was that, on 10 January 2019, when the marriage broke down, the mother had wrongfully retained the child in England. The High Court granted the fathers application. On appeal, the Court of Appeal ruled that it had not been open to the judge to make an order under the Convention and set his order aside. It held that there had been no grounds for concluding that the mothers retention of the child in England had been wrongful, and so the Convention had not been engaged. However, it then referred to passing observations made by the High Court judge to the effect that, if he had found that the child had been habitually resident in England, he would have reached the same decision to order the childs immediate return under the inherent jurisdiction as he had under the Convention. Relying on those observations, the Court of Appeal made a summary order for the childs return under the inherent jurisdiction. The mother appealed to the Supreme Court. On 14 August 2019, the Supreme Court unanimously allowed the appeal and set aside the Court of Appeals order. Owing to the urgency of the decision, a judgment giving reasons was not issued at that time. Lord Wilson now gives the unanimous judgment of the court setting out its reasons. The appeal raises two questions. First, was the inherent jurisdiction available to the Court of Appeal in principle? Second, if so, was the exercise of it flawed? The answer to both questions is yes [2 3]. Inherent Jurisdiction Available The mother argued that the inherent jurisdiction had not been available to the Court of Appeal on the grounds that a summary order (i.e. an order made without a full, conventional, investigation) for the childs return outside the Convention could only have been made as a specific issue order under the Children Act 1989 (the 1989 Act) [26]. A specific issue order is an order made to decide a question connected with any aspect of parental responsibility for a child: had it been appropriate on the facts to make such an order here, it would have been open to the Court of Appeal to do so [27 28]. Before the introduction by the 1989 Act of specific issue orders, summary orders for the return of a child abroad could be made under the inherent jurisdiction [29 30]. Such orders continued to exist alongside orders under the Convention after it was introduced into domestic law by the 1985 Act, since differences between the inherent jurisdiction and the Convention mean that an order for a childs return may, in some circumstances, be required under the former, but not the latter, legal framework [31]. But did the 1989 Act do away with the inherent jurisdiction to order a childs return [32]? The mother argued that para 1.1 of Practice Direction 12D, supplementing the Family Procedure Rules 2010, showed that the 1989 Act did have that effect: for it instructs that the inherent jurisdiction should only be invoked where the issues cannot be resolved under the 1989 Act [33 36]. However, practice directions have no legal authority to the extent that they state the law incorrectly [37 38]. There is no statutory basis for the instruction in para 1.1, and the case law indicates that an order can be made under the inherent jurisdiction even where a specific issue order would also have been available [39 43]. Therefore the instruction in para 1.1 goes too far. However, if an order is available by both routes and a party chooses to invoke the inherent jurisdiction, the judge will need to be persuaded early in the proceedings that that choice was reasonable [44]. Nor does the court accept the mothers argument that an application for a summary specific issue order requires a different inquiry from an analogous application under the inherent jurisdiction. The same approach is required under both frameworks, as both are based on the principle that the childs welfare is paramount [45 50]. Exercise of Inherent Jurisdiction Flawed The Court of Appeal did not inquire into whether the childs welfare required a summary order for her return, as it considered that the High Court had made that determination and had not erred in doing so [51]. Yet the judge had not made a determination under the inherent jurisdiction [52]. Nor could his determination under the Convention stand as one under the inherent jurisdiction: for the Convention, unlike the inherent jurisdiction, is not based on the paramountcy of the childs welfare [53]. The fact that the father had not invoked the inherent jurisdiction did not prevent the Court of Appeal from making an order under it. But it did place a duty on the Court of Appeal to ask whether the mother had had sufficient notice of its intention to use the inherent jurisdiction to allow her to seek to oppose it [54]. The Court of Appeal should also have considered eight further questions before making its order under the inherent jurisdiction, including whether the evidence before it was sufficiently up to date, and whether the High Court judge had made findings sufficient to justify the order [55 63]. Its failure to consider any of these questions is what led the Supreme Court to uphold the appeal [64].
This appeal raises a short question on the true construction of the Immigration Rules, House of Commons Paper 395 (HC 395). The question is what rules apply to family members seeking entry to the United Kingdom, where the sponsor has been granted asylum and has subsequently obtained British citizenship. The respondent Entry Clearance Officer (ECO) says that they must satisfy the ordinary rules dealing with applications by family members, notably paras 281 (spouses and civil partners) and 297 (children) of HC 395. The appellant family members say that that is wrong and that their cases fall to be considered under the rules dealing with applications to join relatives in this country who have been granted asylum here, notably paras 352A (spouses and civil partners) and 352D (children) of HC 395. The distinction is important to the family because a person entitled to apply under para 352A or 352D does not have to meet the requirements concerning maintenance and accommodation imposed by paras 281 and 297. The facts The appellants are nationals of Afghanistan. The first appellant, ZN, married her husband (the sponsor) in Afghanistan in 1979. ZN and the sponsor are the parents of the other six appellants, who were born between 1985 and 1998. The sponsor fled Afghanistan in order to seek international protection and arrived in the United Kingdom on 8 August 1999. At some time in 1999 the family went to Pakistan, where they have extended family members. The sponsor was granted indefinite leave to remain in the United Kingdom as a refugee on 13 December 2001. Since 2002 the sponsor has made a number of attempts to bring his family to the UK to join him. None of these is relevant to the resolution of the issues in this appeal. The sponsors application for British citizenship was granted on 22 March 2005. On 15 October 2005 the appellants made a fresh application for entry clearance as, respectively, the spouse and children of a person granted asylum. It was stated that the appellants were seeking entry clearance under paras 352A and 352D of HC 395. On 7 July 2006 the ECO refused the applications under the rules relating to family members, namely paras 281 and 297 of HC 395. He held that they could not meet the accommodation and maintenance requirements imposed by sub paras (iv) and (v) of paras 281 and 297. The appellants appealed against those refusals to the Asylum and Immigration Tribunal (the Tribunal) on the ground that ZNs application should have been considered under para 352A as the sponsors wife and that four of the childrens applications should have been considered under para 352D. The other two children, the sixth and seventh appellants, were by that time over eighteen years of age. All the appellants also relied upon their rights protected by Article 8 of the European Convention on Human Rights (ECHR). The appeals The appeals were heard by IJ Wiseman on 23 July 2007 and were dismissed on 9 August 2007. He held that the sponsor and ZN had been married in 1979, which had been in dispute, and that the remaining appellants were their children. He also found that the sponsor had at all material times been in poor health, suffering from heart disease and osteoarthritis, and must on any showing be significantly handicapped in the labour market. He held that paras 352A and 352D did not apply because the sponsor had acquired British nationality at the time of the ECOs decision. He rejected the appellants case under Article 8 on the basis (1) that the decision did not interfere with their right to respect for their private life because the sponsor could return to Pakistan and resume family life there, and/or (2) that any such interference was proportionate to the interests of immigration control and/or (3) that the decision was in accordance with the law because the appellants had the ability to comply with the immigration rules by various means. The appellants sought and obtained an order for the reconsideration of that decision but on 8 February 2008 SIJ Eshun held that IJ Wiseman had made no error of law and that the decision therefore stood. On 17 May 2008, on consideration of the papers, Buxton LJ gave permission to appeal to the Court of Appeal on the basis that the issue as to the extent of paras 352A and 352D was important. The appeal was heard with another appeal in the case of ECO (Pretoria) v DL (DRC), in which the appellants had succeeded. This Court is not concerned with that case. The Court of Appeal considered three issues as follows: 1(a) Is a person who is outside his country of origin and recognised as a refugee, and who has subsequent to that recognition taken on the nationality of the host country, still a refugee within the meaning of the 1951 Geneva Convention on the Status of Refugees? (b) If such a person does cease to be a refugee, does his refugee status cease only following a procedural process, or automatically by operation of law? 2. What is the effect, if any, of Directives 2004/83/EC and 2005/85/EC on these cases? 3. Do paragraphs 352A (relating to spouses) and 352D (relating to dependant children) apply to a person who was recognised as a refugee and is now a British citizen? Laws LJ, with whom Rix and Wilson LJJ agreed, considered issue 3 first. He restated the question as being whether the sponsor must enjoy refugee status at the time his spouse or child seeks to join him under the paras 352A and 352D. He held that the references to asylum and refugee were directed to a status of the sponsor that was current and accepted. He so held as a matter of construction of the language (at paras 18 to 20), which he said was entirely clear (at para 25), because any other result would lead to absurdity (at para 21) and because there are no considerations going the other way (at paras 22 to 24). In the light of that conclusion, he considered issues 1 and 2 together, which he restated as being whether a person who has been recognised as a refugee, but thereafter assumes the nationality of his host country, remains a refugee within the meaning of the Refugee Convention and, if not, whether his status ceases automatically or only by a procedure as contemplated by EC Directives 2004/83 and 2005/85 (the Directives). Laws LJ answered the first of those questions in the negative (at paras 29 to 31). As to the second, he held that it was open to a State Party to the Refugee Convention to prescribe the procedures under which cessation of refugee status pursuant to Article 1C(3) would have effect but that, if a State Party had not done so, cessation would occur automatically (see para 32). He then considered whether the Directives laid down such a procedure and held that they did not (see paras 33 to 35). In a judgment handed down on 18 December 2008 the Court of Appeal accordingly rejected the appellants submission that paras 352A and 352D applied. It also rejected their case under Article 8 of the ECHR (at paras 44 and 45). It refused permission to appeal but this Court subsequently gave permission. Is this appeal academic? The circumstances have recently changed from those that existed when the case was before the Court of Appeal. On 27 January 2010 the UK Border Agency wrote to the appellants solicitors saying that the position under Article 8 had been reconsidered and that it was accepted that the Immigration Judges decision was not sustainable, principally because he did not take the familys recent history into account when considering whether it was reasonable to expect the sponsor to relocate to Pakistan. There followed some correspondence between the parties. The upshot was that the Treasury Solicitor (TSol) wrote on 3 February to say that the appellants would be granted three years discretionary leave to remain without any restrictions on employment or recourse to public funds. The TSol further wrote on 9 February to say that, if the appellants were successful on issues one and/or two they would, due to the particular circumstances, and subject to the terms of the judgment be granted indefinite leave to enter or remain, depending upon whether the person concerned was in the United Kingdom by then. It follows from the exchanges between the parties that the appeal against the decision under Article 8 is academic but that the appeal on issues one and/or two is not. Those issues are as stated in the statement of facts and issues, as follows: 1) Did the Court of Appeal err in its construction of paragraphs 352A and 352D of HC 395 and, in particular, did it err in concluding that the said paragraphs apply only to the family members of a person who has the status of a refugee at the time those family members apply to join him or her in the UK? 2) Does a person who has been recognised as a refugee, but thereafter assumes the nationality of his host country, remain a refugee within the meaning of the Refugee Convention; or does his status cease automatically upon acquisition of that nationality or only by a procedure such as that contemplated by Directives 2004/83 and 2005/85? The correspondence thus shows that if, for example, this Court were to hold that the Court of Appeal erred in holding that paras 352A and 352D did not apply to the appellants because their sponsor had become a British citizen on 22 March 2005 and was thus a British citizen when they made their application for entry clearance on 15 October, they would be granted indefinite leave to enter or remain, depending upon whether the particular appellant was in the United Kingdom by then. That position was subject only to the terms of the judgment. When this appeal came on for hearing on 15 February, this Court accepted that there is a significant difference between the position, on the one hand, of a person to whom paras 352A or 352D apply and, on the other hand, of each of the appellants as set out in the letter of 3 February. It is true that in each case there would be no restrictions on employment or recourse to public funds. However, in the former case the appellants would have indefinite leave to remain or enter, whereas in the latter case they would only have three years discretionary leave to remain. In these circumstances the Court decided that the appeal was not academic in the case of all the appellants other than the sixth and seventh appellants and heard argument on the true construction of paras 352A and 352D. The sixth and seventh appellants cannot succeed under para 352D because they were over 18 at the relevant time. They do however have the benefit of the concession of three years discretionary leave to remain granted under Article 8 of the ECHR. The decision of the court Having heard argument directed to paras 352A and 352D, the Court considered the submissions and decided to allow the appeal. It said that it would give its reasons later. These are the reasons of the Court for reaching that conclusion. The Refugee Convention and the Immigration Rules Article 1A(2) of the 1951 United Nations Convention on the Status of Refugees (the Refugee Convention) defines a refugee as a person who: owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. Article 1C provides: This Convention shall cease to apply to any person falling under the terms of section A if: . (3) protection of the country of his new nationality. He has acquired a new nationality, and enjoys the Article 1F provides: The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. As Laws LJ observed, the ordinary rules dealing with applications by family members seeking leave to enter to join a sponsor are to be found in Part 8 of HC 395. Para 281 (as it stood at the material time) includes a number of specific requirements. Critically for present purposes they include requirements (iv) and (v): (iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and (v) dependants adequately without recourse to public funds; the parties will be able to maintain themselves and any There are similar provisions relating to children under 18 in para 297, which, like para 281, is set out by Laws LJ at his para 9. For present purposes the critical paras of HC 395 are paras 352A and 352D because they deal with applications to join relations who have been granted asylum here. At the material time they provided: 352A. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse or civil partner of a refugee are that: (i) the applicant is married to or the civil partner of a person granted asylum in the United Kingdom; and (ii) the marriage or civil partnership did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum; and (iii) the applicant would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and (iv) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and (v) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity. 352D. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who has been granted asylum in the United Kingdom are that the applicant: (i) is the child of a parent who has been granted asylum in the United Kingdom, and (ii) is under the age of 18, and (iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and (iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum; and (v) would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and (vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity. Para 352E provided: 352E. Limited leave to enter the United Kingdom as the child of a refugee may be granted provided a valid United Kingdom entry clearance for entry in this capacity is produced to the Immigration Officer on arrival. Limited leave to remain in the United Kingdom as the child of a refugee may be granted provided the Secretary of State is satisfied that each of the requirements of paragraph 352D(i) (v) are met. The question The essential question is the third question considered by the Court of Appeal and the first issue in the statement of facts and issues set out at paras 6 and 12 above respectively. It is whether paras 352A and 352D apply to a person who has been recognised as a refugee and granted asylum but has become a British citizen before the date of the relevant application for, or perhaps decision as to, entry clearance. Discussion The answer to the question depends upon the true construction of paras 352A and 352D. The correct approach to such a question in the context of the Immigration Rules has recently been considered in both the House of Lords and this Court. In Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230, Lord Hoffmann said at para 4 that the correct interpretation: depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy. In Ahmed Mahad v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48, Lord Brown said at para 10: The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy. the courts task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended. See also per Lord Kerr at para 51. The critical words of para 352A (omitting the references to civil partnership for simplicity) are these: 352A. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse of a refugee are that: (i) the applicant is married to a person granted asylum in the United Kingdom; There is also a reference to the person granted asylum in sub para (ii). The respondent ECO points to the necessity for the applicant to be the spouse of a refugee and submits that that indicates that he or she must be a refugee at the time of the application. The ECO further relies upon para 352E, which refers to the child of a refugee. The appellants, on the other hand, say that the opening words of para 352A make it clear that the rule is identifying the requirements to be met by an applicant seeking leave to enter or remain in the United Kingdom as the spouse of a refugee and that the sub paras simply identify the criteria to be satisfied by the applicant. The only relevant requirements, which are contained in sub paras (i) and (ii) respectively, are that the applicant must be married to a person granted asylum and that the marriage did not take place after the person granted asylum left his former habitual residence in order to seek asylum. The appellants point to the fact that the rules do not say when the person must have been granted asylum. Nor do they say that such a person is not a refugee for this purpose once he or she becomes a British citizen. Para 352D contains a curiosity. When it was introduced it was in the same terms as para 352A. However, with effect from 18 September 2002, the words in order to join or remain with the parent who has been granted asylum replaced the original phrase as the child of a refugee. It is submitted on behalf of the appellants that that is significant because it shows that the expression the child of a refugee in the original para 352D could not have referred to the status of the refugee at the time of the application for, or decision as to, entry, at any rate unless it was intended to have a different test for refugee in para 352D from the test in para 352A, which seems very unlikely. It is further submitted that in the new para 352D, the position is clear. The expression parent who has been granted asylum appears, not only in the first words of the para but also in sub para (i), where the applicant must be the child of a parent who has been granted asylum. Similarly, by sub para (iv) the applicant must have been part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum. It is submitted that para 352D makes it clear that part of the purpose of the rules was to protect the refugees family unit as recommended in the Final Act of the Conference that adopted the Refugee Convention. Reliance in this regard is placed on Chapter VI, entitled The Principle of Family Unity, in the UN High Commissioner for Refugees Handbook on Procedures for Determining Refugee Status under the Refugee Convention and the 1967 Protocol. The reasoning of the Court of Appeal accepting the ECOs submissions can be seen in paras 18 to 20 of Laws LJs judgment. The key to his analysis is in para 18: 18. The opening words of paragraph 352A seeking leave to enter . as the spouse . of a refugee import that the sponsor is currently a refugee. Compare 352E: Limited leave to enter[/remain in] the United Kingdom as the child of a refugee . The references to refugee are references to a current status. It is true that paragraph 352D has a different formulation: . in order to join or remain with the parent who has been granted asylum. However this is a familiar use of the perfect tense, to denote a state of affairs which arose in the past but is still continuing. It is in contrast to the aorist or past historic tense, which denotes a past state of affairs which has come to an end. Compare It rained last night with It has been raining since last night. The Court is not persuaded by that approach. In particular, it is not persuaded that the difference between the language of paras 352D and 352A can be explained by reference to the familiar use of the perfect tense to denote that the state of affairs is still continuing. This involves reading the expression the parent who has been granted asylum as if it read the parent who has been granted asylum and remains a refugee, which it does not. The Court regards the construction advanced on behalf of the appellants as the more natural meaning of the words used. The grant of asylum is a specific event. This is underlined by the words of sub para (i) of para 352A, which simply says that the applicant must be married to a person granted asylum and thus naturally refers to a particular historic event and not to an existing condition. See also sub para (ii). In para 19 Laws LJ made the point that it is apparent from Article 1A(2) of the Refugee Convention that it is no part of the definition of refugee that the subject be formally recognised as such. He added that it was plain that those who drafted the rules did not intend that persons seeking entry to the United Kingdom might have the benefit of the especially advantageous provisions of the rules relating to the family members of a refugee in cases where there was only an assertion that the sponsor was a refugee, but no authoritative finding or confirmation to that effect. The Court entirely accepts that that is so. It further accepts that the term has been granted asylum is used in para 352D so as to confine the rules operation to circumstances where the sponsor has been recognised as a refugee by the Secretary of State before an application for family reunion under the paragraph can be made. Finally, it accepts that the expression person granted asylum in sub paras 352A(i) and (ii) has the same effect. However, these conclusions are not inconsistent with the appellants case. As the Court understands it, it is accepted that a person is not granted asylum until the Secretary of State has formally granted it. In any event, whether it is accepted or not, in the instant case it could not properly be argued that the sponsor had been granted asylum until he was given indefinite leave to remain as a refugee on 13 December 2001. Until then he was not a person granted asylum within the meaning of the rules. In para 20 Laws LJ gave a particular example of his conclusion that the indications are that the references to asylum/refugee in 352A, 352D and 352E are directed to a status of the sponsor which is current and accepted. It was that the requirements in sub paras (iii) and (v) of paras 352A and 352D respectively that the applicant would not be excluded from protection by virtue of article 1F of the [Refugee Convention] if he were to seek asylum in his own right suggests that the rule is directed to current status. The Court does not agree that it is appropriate to draw the inference sought to be drawn from those sub paras. They apply, not to the sponsor, but to the applicant. The fact that, by Article 1F, the Refugee Convention does not apply to an applicant where there are serious reasons for considering that he or she has committed a serious crime of the kind identified in sub paras (a) or (b) or has been guilty of acts contrary to the purposes and principles of the United Nations within the meaning of (c), is not, in the opinion of the Court, relevant to the question whether a sponsor is no longer a refugee within the meaning of para 352A or para 352E or whether he is a parent who has been granted asylum within the meaning of para 352D. At para 21 the Court of Appeal accepted a submission made to it that any other construction would lead to absurd results. The plainest instance was said to be where a persons refugee status has been cancelled because it had been obtained by fraud. On the appellants argument he would still be a person who has been granted asylum and his relatives could rely on the special provisions of paras 352A et seq. However, in the opinion of this Court it is implicit in the rules read as a whole that a person would not be treated as having been granted asylum for the purpose of the rules if he or she had obtained the grant by fraud. At paras 22 to 24 the Court of Appeal rejected a number of policy points made on behalf of the appellants. However, it ultimately did so on the basis that, as Laws LJ put it at para 25, the language of paras 352A and 352D is clear. This Court has reached a different conclusion on the language of the rules. It has done so for the reasons given above. As to policy, it may well be that it would be possible to produce a coherent policy argument for the view that applications for leave to enter or remain in the United Kingdom made by the spouse or children of those granted asylum should be dealt with under paras 352A and 352D until the other spouse or parent became a British citizen but that thereafter such applications should be dealt with under paras 281 and 297. It can be said with force that all applications by a spouse or child to join or remain with a British citizen should be subject to the same rules. On the other hand there are coherent policy reasons for applying the same principles to applications to join or remain with a spouse or parent who has been granted asylum both before and after such a sponsor has become a British citizen. An important factor in this regard is that referred to in para 25 above, namely that one of the purposes of the Refugee Convention is to protect and preserve the family unit of a refugee. The need for protection for a member of such a family unit is likely to be the same whether the sponsor obtains British citizenship or not. Moreover, the risk of persecution may be such that the need for protection for family members is particularly stark. The question is what policy is encapsulated in the rules, which is essentially a matter of construction of the language of the rules. For the reasons given above the Court has reached a different conclusion from the Court of Appeal. It agrees that the sponsor must have been granted asylum in order to be (1) a refugee within the meaning of the opening words of para 352A and of para 352E; (2) a person granted asylum within sub paras (i) and (ii) of para 352A and sub para (iv) of para 352D; and (3) a person who has been granted asylum within the opening words of para 352D. However it does not agree that there is an additional requirement, namely that the person granted asylum or the person who has been granted asylum must not have become a British citizen before the application for entry clearance is made, or perhaps determined. There is no express language to that effect and it is not, in the judgment of the Court, implicit in the language used. The fact that British citizenship has been granted to the spouse or parent does not change the fact that the spouse or parent is a person granted asylum or a person who has been granted asylum. The Court has reached this conclusion as a matter of construction of the rules. In these circumstances there is no need for the Court to analyse the decisions of the Tribunal. It is sufficient to note that there have been a number of decisions of the Tribunal which reached a conclusion consistent with that stated above: see eg Case no OA/27245/2007, 1 September 2008 Joined Appeals OA/45531, OA/45526/2007 and OA/45522/2007, 27 June 2008, and YS and YY, 16 September 2008 [2008] UKAIT 00093. It was for the reasons stated above that the Court decided that the appeals of the first to fifth appellants should be allowed on the footing that para 352A applied to the first appellant as the sponsors wife, and that para 352D applied to the second, third, fourth and fifth appellants as the sponsors children who were under 18 at the relevant time. As the Court reads the letter of 9 February 2010, it follows that in the light of this judgment they will be granted indefinite leave to enter or remain without any restrictions on employment or recourse to public funds. The appeals of the sixth and seventh defendants, which relied only upon Article 8 of the ECHR, became academic because of the concession referred to above, namely that they would be granted three years discretionary leave to remain without any restrictions on employment or recourse to public funds. In the light of the decision made at the hearing on the construction of paras 352A and 352D, the Court did not hear oral submissions on any of the other issues raised in the written cases. In particular, the Court did not hear argument on the position which would have obtained if, contrary to the Courts conclusion, paras 352A and 352D would only have applied if they required that the sponsor remain a refugee after being granted British citizenship. This would have involved argument on issues one and two identified by the Court of Appeal (set out at para 6 above) and issue two in the statement of facts and issues (set out in para 12 above), which covers essentially the same ground. In these circumstances the Court expresses no view upon these questions one way or the other.	This appeal raises the question of which immigration rules apply to family members seeking entry to the United Kingdom, where the sponsor has been granted asylum and consequently obtained British Citizenship. The Appellants are the wife and children of Israr Naimi (the Sponsor). The Sponsor came to the UK from Pakistan in 1999 and in December 2001 was granted refugee status and indefinite leave to remain. On 22 March 2005, the Sponsor was granted British citizenship. On 15 October 2005, the Appellants, who had remained in Pakistan, applied for entry clearance to join the Sponsor in the UK. The Appellants applications were considered under the Immigration Rules, House of Commons Paper 395 (the Rules). Para 281 of the Rules applies to spouses and civil partners of UK citizens and para 297 to children of UK citizens. Those paragraphs require the family of a UK citizen to meet certain accommodation and maintenance requirements before entry clearance is granted. By contrast, spouses and children of refugees who have been granted asylum in the UK may apply for entry clearance under paras 352A and 352D respectively, which do not require them to meet any accommodation or maintenance conditions. In making the applications for entry clearance, the Appellants also relied on their rights to respect for family life protected by Article 8 of the European Convention of Human Rights. The Appellants applications for entry clearance were refused on the grounds that the family could not meet the accommodation and maintenance requirements imposed by paras 281 and 297 of the Rules. The Appellants Article 8 arguments were also rejected. The Appellants appealed the decision, arguing that their cases should be considered under paras 352A and 352D. The Respondents case is that the exceptions granted to the family members of people granted asylum do not apply to the Appellants as the Sponsor had been granted British citizenship before their applications for entry clearance were made. The Respondent argued that the Appellants applications fell to be considered under paras 281 and 297 and that they must therefore satisfy the ordinary rules dealing with applications by family members of UK citizens. The Court of Appeal held that paras 352A and para 352D only applied in cases where the sponsor was currently recognised as a refugee. A refugee who thereafter obtained the citizenship of his host country lost his refugee status. In relation to the Article 8 claim, there was no interference with those rights as the Sponsor was free to return to Pakistan where the family as a whole could continue their family life. The Article 8 arguments having become academic in the meantime, the essential questions for the Supreme Court to consider were the proper construction of paras 352A and 352D of the Rules and whether those paragraphs apply to family members seeking entry to the UK where their sponsor has been recognised as a refugee but has become a British citizen before the date of the application for entry clearance. The Supreme Court unanimously allows the appeal of the first to the fifth appellants. The Court holds that paragraph 352A applied to the first appellant (the Sponsors wife) as a spouse of a refugee and paragraph 352D applied to the second to fifth appellants (the Sponsors children who were under the age of 18 at the relevant time) as children of a refugee. Lord Clarke delivered the judgment of the Court. In construing the Rules, the Court agrees with the Court of Appeal that the sponsor must have been granted asylum in order to be (1) a refugee within the meaning of the opening words of para 352A and of para 352E; (2) a person granted asylum within sub paras (i) and (ii) of para 352A and sub para (iv) of para 352D; and (3) a person who has been granted asylum within the opening words of para 352D. However, the Court does not agree with the Court of Appeal that there is an additional requirement, namely that the person granted asylum or the person who has been granted asylum must not have become a British citizen before the application for entry clearance is made. The Rules contain no express language to that effect and it is not implicit in the language used. The fact that British citizenship has been granted to the sponsor does not change the fact that the sponsor is a person who has been granted asylum (paras [31] [33], [36], [37]). In the light of the decision made at the hearing on the construction of paragraphs 352A and 352D, the Court did not hear oral submissions on any of the other issues raised in the written cases. In particular, the Court did not hear argument on what the position would be if, contrary to the Courts conclusion, paragraphs 352A and 352D would only have applied if they required that the sponsor remain a refugee after being granted British citizenship. The Court expresses no view upon these questions one way or the other (para [40]). Accordingly, the appeals of the first to fifth appellants are allowed.
This appeal is about the burden of proof in actions against a shipowner for loss of or damage to cargo. It may seem strange that a species of litigation which has generated reported decisions over four centuries should not yet have returned a definitive answer to this question. The reason is probably to be found in the fact that the courts very rarely decide issues of fact on the burden of proof. The trial judge is usually able to find some persuasive evidence, however exiguous, to break the impasse. This case is, or may be, different. The six claimants were the owners and bill of lading holders for nine separate consignments of bagged Colombian green coffee beans shipped at Buenaventura in Colombia between 14 January and 6 April 2012 on various vessels owned by the defendant shipowners for carriage to Bremen. They were stowed in a total of 20 unventilated 20 foot containers. These were transhipped at Balboa in Panama and discharged at Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. Each consignment was covered by a bill of lading covering the entire carriage to Bremen. The bills of lading, which were subject to English law and jurisdiction and incorporated the Hague Rules, were on LCL/FCL (less than full container load/full container load) terms. It is common ground that this means that the carriers were contractually responsible for preparing the containers for carriage and stuffing the bags of coffee into them. They employed two firms of stevedores to perform this function. Coffee is a hygroscopic cargo. It absorbs, stores and emits moisture. It can be carried in ventilated or unventilated containers. In 2012 both types of container were in widespread use for the carriage of bagged coffee, and the shippers had specified unventilated containers for these consignments. The use of unventilated containers is cheaper, but if they are used to carry coffee beans from a warm to a cooler climate, as they were in this case, the beans will inevitably emit moisture which will cause condensation to form on the walls and roof of the container. This makes it necessary to protect the coffee from water damage by dressing the containers, ie lining the roof and walls with an absorbent material such as cardboard, corrugated paper or Kraft paper. The use of Kraft paper was a common commercial practice in 2012, and it was employed in this case. When the containers were opened at Bremen, however, the bags in 18 of them were found to have suffered water damage from condensation. The cargo owners pleaded their case in what has for many years been standard form. Their primary case was that in breach of their duties as bailees the carriers failed to deliver the cargoes in the same good order and condition as that recorded on the bill of lading on shipment. Alternatively, they pleaded that in breach of article III, rule 2 of the Hague Rules they had failed properly and carefully to load, handle, stow, carry, keep, care for and discharge the cargoes. A number of particulars of negligence was pleaded. For present purposes, the only relevant one is that the carriers failed to use adequate or sufficient Kraft paper to protect the cargoes from condensation. The carriers joined issue on all of these points, and pleaded inherent vice on the ground that the coffee beans were unable to withstand the ordinary levels of condensation forming in containers during passages from warm to cool climates. The cargo owners pleaded in reply that any inherent characteristic of the cargo which resulted in damage, did so only because of the carriers negligent failure to take proper measures for its protection. The case was tried in the London Mercantile Court by David Donaldson QC, sitting as a deputy High Court judge. He held that there was no legal burden on the carrier to prove that the damage to the cargo was caused without negligence or by an excepted peril. There was only a factual presumption that damage ascertained on discharge was due to negligence. The critical issues of fact, as they emerged at the trial, concerned the weight of paper and the number of layers that (i) were, and (ii) should have been used. The deputy judges conclusions were as follows: (1) Bagged coffee can be (and at the time routinely was) carried without damage from warm to cooler countries in unventilated containers lined with Kraft paper, provided that a sufficient thickness of paper or number of layers is used. (2) The evidence did not establish what weight of paper was used for these shipments, except that it was more than 80 gsm. Nor did it establish how many layers were used, except that the photographs appeared to the judge to show that there was only one. (3) There was no evidence to show what thickness of paper ought to be used for a given number of layers, in order to avoid condensation damage. (4) There was no generally accepted commercial practice on point (3). It was not suggested that the paper had been improperly fixed by the stevedores. These conclusions were criticised on a number of grounds by the Court of Appeal, which proceeded to make its own findings. I shall return to the Court of Appeals treatment of the facts later in this judgment. But for the moment I shall proceed on the basis of the deputy judges conclusions, for it is those which give rise to the major issue of law on this appeal. On whom was the burden of proving whether the cargoes were damaged by (i) negligent preparation of the containers, or (ii) inherent vice? Bailment at common law The bills of lading in this case incorporated the Hague Rules. It is, however, necessary to examine the common law position apart from the Rules, first, because it is an essential part of the legal background against which they were drafted; and, secondly, because the common law position had been considered in a number of authorities decided before the Rules were promulgated, which have remained influential since and indeed were relied upon on this appeal. The delivery of goods for carriage by sea is a bailment for reward on the terms of the bill of lading. Bailment is a transfer of possession giving rise to a legal relationship between the bailor and the bailee which is independent of contract, although in practice it is commonly contractual and the terms of the contract will commonly modify its incidents. Two principles of the common law of bailment are fundamental. The first is that a bailee of goods is not an insurer. His duty is limited to taking reasonable care of the goods. This has been true of bailees generally for as long as bailment has existed as a recognised source of legal responsibility at common law: see S Stoljar, The early history of bailment, American Journal of Legal History, vol i (1957), p 5, and the landmark decision of Chief Justice Holt in Coggs v Bernard (1703) 2 Ld Raym 909, 917 918. In the 19th century some shipowners, especially in the liner and tariff trades, were common carriers, bearing a more onerous responsibility at common law. The characteristic feature of a common carrier was that he held himself out as accepting for carriage the goods of all comers on a given route, subject to capacity limits. As such, he was strictly liable at common law for loss of or damage to the cargo subject only to exceptions for acts of God and the Queens enemies. The absence of negligence was irrelevant. But although the position of common carriers is commonly referred to by way of background in the case law, as it was in the judgments below, it is no longer a useful paradigm for the common law liability of a shipowner. Common carriers have for many years been an almost extinct category. For all practical legal purposes, the common law liability of a carrier, unless modified by contract, is the same as that of bailees for reward generally. The second principle, which is equally well established, is that although the obligation of the bailee is thus a qualified obligation to take reasonable care, at common law he bears the legal burden of proving the absence of negligence. He need not show exactly how the injury occurred, but he must show either that he took reasonable care of the goods or that any want of reasonable care did not cause the loss or damage sustained. As Cockburn CJ put it in Reeve v Palmer (1858) 5 CBNS 84, 90: The jury have found that he lost it: and I am of opinion that that must be taken to mean, in the absence of any explanation, that he lost it for want of that due and proper care, which it was his duty to apply to the keeping of it, unless it is qualified by circumstances shewing that the loss of the deed could not have been prevented by the application of ordinary care. The law was declared in this sense and applied to carriage by water by the House of Lords in Dollar v Greenfield, The Times, 19 May 1905, and Morison, Pollexfen & Blair v Walton (10 May 1909), which is unreported but the relevant parts of which were set out and adopted by the Court of Appeal in Joseph Travers & Sons Ltd v Cooper [1915] 1 KB 73, 88. Lord Loreburn said in his judgment in that case that once damage was ascertained on outturn, I cannot think it is good law that in such circumstances he should be permitted to saddle upon the parties who have not broken their contract the duty of explaining how things went wrong. It is for him to explain the loss himself, and if he cannot satisfy the court that it occurred from some cause independent of his own wrong doing he must make that loss good. Lord Halsbury said: It appears to me that here there was a bailment made to a particular person, a bailment for hire and reward, and the bailee was bound to shew that he took reasonable and proper care for the due security and proper delivery of that bailment; the proof of that rested upon him. In The RUAPEHU (1925) 21 Ll L Rep 310, 315, Atkin LJ assimilated the law applied to carriers in these cases to the principles applicable generally to bailees, which he summarised as follows: If this were a pure bailment, a delivery of a chattel to a bailee entrusted with the chattel to execute repairs on it and then redeliver it to the owner, I apprehend that the bailee would be under the obligation to exercise reasonable care and skill in preserving the safety of the chattel. If he failed to deliver the chattel at all the onus would be upon him to show that the non delivery was not due to absence of care and skill on his part. Moreover, if he redelivered the chattel in a damaged condition , the onus is on the bailee to show that the damage was not due to the absence of reasonable care and skill on his part. This he may do by showing that he took all reasonable precautions, but if he has to admit or is convicted of some act of negligence then the rule necessarily requires him to show that the loss was not caused by that act of negligence. Three points should be made by way of amplification of these statements. First, it is clear that the burden of proof with which these decisions were concerned was a legal burden. It is quite different from the evidential burden which may arise where the facts give rise to a rebuttable inference of negligence or under the principle res ipsa loquitur. Secondly, while the rule about the burden of proof in English law developed long before any pragmatic justification was advanced for it, its continued importance in the law of bailment has consistently been supported on the ground that because the bailee is in possession of the goods it may be difficult or impossible for anyone else to account for the loss or damage sustained by them: see The RUAPEHU (1925) 2 Ll L Rep 310, 315 (Atkin LJ); British Road Services Ltd v Arthur V Crutchley & Co Ltd (No 1) [1968] 1 All ER 811, 822 (Sachs LJ). Modern scientific techniques of investigation have eased this particular problem to some degree, but have not removed it. Thirdly, although the principle regarding the burden of proof was independently developed by the common law, it is not a peculiarity of the common law. The duty of a depositary to justify his inability to deliver the goods in the condition in which he received them is a basic feature of the civil law. So far as carriers are concerned, it originates in the Roman praetorian edict Nautae, Caupones Stabularii, which in modified form remains the basis of the law of deposit in French and Scots law and other civil law systems: see Pothier, Trait du Contrat de Louage 6th ed (1821), para 199; R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1996), pp 514 526. For the current position in France, see Code Civil, Book III, Title VIII, Chapter III, article 1784 governing carriers by land and water (Ils sont responsables de la perte et des avaries des choses qui leur sont confies, moins qu'ils ne prouvent qu'elles ont t perdues et avaries par cas fortuit ou force majeure); and for Scotland, Gloag on Contract 2nd ed (1929), p 721; McBryde, The Law of Contract in Scotland 3rd ed (2007), paras 9.53 9.57 and The Laws of Scotland, Stair Memorial Encyclopaedia, vol 8 (Deposit), at para 13. There is no significant dispute about these principles on this appeal. The real issue is whether the incidence of the burden of proof is different in a modern contract for carriage by sea incorporating the Hague Rules. I therefore turn to the Rules. The Hague Rules The relevant provisions of the Rules are as follows: Article II Article III Subject to the provisions of article VI, under every contract of carriage of goods by sea the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities, and entitled to the rights and immunities hereinafter set forth. 1. The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to (a) Make the ship seaworthy. (b) Properly man, equip and supply the ship. (c) Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation. 2. Subject to the provisions of article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried. 8. Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to, or in connection with, goods arising from negligence, fault, or failure in the duties and obligations provided in this article or lessening such liability otherwise than as provided in these Rules, shall be null and void and of no effect. Article IV resulting 1. Neither the carrier nor the ship shall be liable for loss or damage arising or from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of article III. Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article. 2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from (a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship. (b) Fire, unless caused by the actual fault or privity of the carrier. (c) Perils, dangers and accidents of the sea or other navigable waters. (d) Act of God. (e) Act of war. (f) Act of public enemies. (g) Arrest or restraint of princes, rulers or people, or seizure under legal process. (h) Quarantine restrictions. (i) Act or omission of the shipper or owner of the goods, his agent or representative. (j) Strikes or lockouts or stoppage or restraint of labour from whatever cause, whether partial or general. (k) Riots and civil commotions. (l) Saving or attempting to save life or property at sea. (m) Wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods. Insufficiency of packing. (n) Insufficiency or inadequacy of marks. (o) (p) Latent defects not discoverable by due diligence. (q) Any other cause arising without the actual fault or privity of the carrier, or without the actual fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage. 3. The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants. The burden of proof arises on this appeal at two stages of the analysis. The first is concerned with article III.2. Does the cargo owner bear the legal burden of proving breach of that article, or is it for the carrier, once loss or damage to the cargo has been ascertained, to prove compliance? The second relates to article IV.2, and particularly to exception (m). The carrier accepts that he must bear the burden of proving facts which bring the case within an exception, but submits that once he has done so it is for the cargo owner to prove that it was the negligence of the carrier which caused the excepted peril (in this case, inherent vice) to operate on the cargo. Burden of proof: Article III.2 Article III.2 imposes on the carrier a general duty to take reasonable care of the cargo during carriage. Mr Rainey QC, who appeared for the carrier, submitted that the burden of proving a breach of it lay upon the cargo owner. His argument proceeded as follows: (i) the Hague Rules constitute a complete code governing the care of the cargo; (ii) an international convention such as the Hague Rules should not be construed in the light of particular features of English law or any other domestic system of law; and (iii) article III.2 of the Hague Rules, by imposing an obligation to take reasonable care of the cargo, displaces the English law rule about the burden of proof, because as a general rule he who asserts must prove. In my judgment, each of these steps in the argument is fallacious. As to proposition (i), the Hague Rules never had statutory application, save to the carriage of goods shipped from a port in the United Kingdom: Carriage of Goods by Sea Act 1924, section 1. That Act has now been repealed by the Carriage of Goods by Sea Act 1971 which gives the force of law to the Hague Visby Rules but does not apply to the shipments in issue on this appeal. Accordingly, the Hague Rules have effect only by virtue of their contractual incorporation into the bill of lading. Subject to the other terms of the contract, the Rules are a complete code on those matters which they cover. But they are not exhaustive of all matters relating to the legal responsibility of carriers for the cargo. As is well known, the background against which they were drafted was the attempt of (mainly British) shipowners in the late 19th century to limit their legal responsibility for cargo, and the attempt of other countries, notably the United States, Canada and Australia, to impose a minimum standard of performance by law. The purpose of the Rules was to standardise the obligations of the carrier and to limit the exceptions on which he should be entitled to rely. They are accordingly concerned almost exclusively with the standard of performance. Apart from certain articles, such as IV.1 and IV.2(q), which deal in terms with the burden of proof for specific purposes, the Rules do not deal with questions of evidence or the mode of proving a breach of the prescribed standard or the application of an exception. These are matters which in accordance with generally recognised principles of private international law are for the law of the forum. They are part of the law of evidence and the rules of procedure, which are liable to vary from one jurisdiction to another. Turning to proposition (ii), it is well established that even in a contract governed by English law, provisions derived from an international convention are intended to have an internationally uniform effect and should not be construed by national courts by reference to principles of purely domestic application: Stag Line Ltd v Foscolo, Mango & Co Ltd [1932] AC 328, 350 (Lord MacMillan); James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1978] AC 141, 152 (Lord Wilberforce). But this principle has no bearing on the present issue. In the first place, as I have explained in the preceding paragraph, the Rules are not concerned with the incidence of the burden of proof save in limited respects. Secondly, it has not been shown that the common law principles regarding the burden of proving negligence or the lack of it in the carriage of goods are principles of purely domestic application, except in the limited sense that their historical origins lie in the common law. As I have pointed out above, the principle that the custodian of goods has a legal responsibility to justify their loss or redelivery in damaged condition is common to civil law jurisdictions as well. One of those jurisdictions is Scotland, to which the Hague Rules were applied by the Carriage of Goods by Sea Act 1924 on the same basis as England. The common law of bailment has no application in Scotland, but the law of Scotland regarding the burden of proof lying on a warehouseman or a carrier is substantially the same. Civil law jurisdictions party to the Hague Convention vary widely in the way that they implement the Rules. In many of them, the occurrence of damage during carriage is treated not just as casting the burden of proving absence of fault on the carrier, but as conclusive of breach of article III.2, unless the carrier can prove that one of the article IV.2 exceptions applies. This is, for example, the effect of the French Code des Transports L 5422 12 and of successive decisions of the Cour de Cassation: see Chambre Commerciale, 27 mai 1975, 74 10388, 10 juillet 2001, 99 12258, 13 dcembre 2016, 14 28332. The researches of counsel have shown that a corresponding principle applies in Belgium, the Netherlands, Italy, Germany, Norway and Spain. The carriers proposition (iii) is based, in my view, on a misconception. Mr Rainey argued that the reason why at common law the bailee had the burden of disproving negligence was that at common law a bailee had a strict obligation to redeliver the goods in the same condition as when received. The position, he submitted, was different where the obligation was a qualified obligation to take reasonable care, as it is in article III.2. However, as I have pointed out, the common law obligation of a bailee is not strict, save in the somewhat theoretical case of common carriers. His obligation is to take reasonable care. The common law has always treated that as consistent with a rule imposing on him the burden of disproving negligence. In the same way, the imposition of a corresponding duty of care on the carrier by article III.2 is consistent with his bearing the burden of disproving negligence. When one examines the scheme of the Hague Rules, it is apparent that they assume that the carrier does indeed have the burden of disproving negligence albeit without imposing that burden on him in terms. This is because of the relationship between articles III and IV. Article III.2 is expressly subject to article IV. A number of the exceptions in article IV cover negligent acts or omissions of the carrier which would otherwise constitute breaches of article III.2: for example articles IV.1 and IV.2(a). It is common ground, and well established, that the carrier has the burden of proving facts which bring him within an exception in article IV, and in the case of articles IV.1 and IV.2(q) this is expressly provided. It would be incoherent for the law to impose the burden of proving the same fact on the carrier for the purposes of article IV but on the cargo owner for the purposes of article III.2. As will be seen below, a rather similar problem arises in relation to the exception for inherent vice. Nothing in the Hague Rules alters the status of a contract of carriage by sea as a species of bailment for reward on terms. As Hobhouse J pointed out in Aktieselskabet de Danske Sukkerfabrikker v Bajamar Compania Naviera SA (The TORENIA) [1983] 2 Lloyds Rep 210, 216: The relationship between the present parties is contractual. It follows that the question of legal burden of proof has ultimately to be decided by construing the contract between them. In ascertaining the effect of the contract one must take into account the nature of the contract. The contract here is a contract in a bill of lading; it is a contract of carriage that is to say, a species of a contract of bailment. For these reasons I consider that in principle where cargo was shipped in apparent good order and condition but is discharged damaged the carrier bears the burden of proving that that was not due to its breach of the obligation in article III.2 to take reasonable care. I say in principle because it is next necessary to consider whether the authorities in cases governed by the Hague Rules point to a different rule. I turn, therefore, to the authorities. The first case to address directly the burden of proof in relation to article III.2 was Gosse Millard v Canadian Government Merchant Marine Ltd [1927] 2 KB 432, a decision of Wright J shortly after the Carriage of Goods by Sea Act came into force. On the footing that the damage ascertained on outturn had not been explained, he held the carrier liable because the burden of disproving negligence lay on him. He gave two reasons. The first was that the words properly discharge in article III.2 of the Hague Rules meant deliver in the same apparent order and condition as on shipment, so that if damage was ascertained on discharge there was a prima facie breach. Wright J did not mean by this that the damage was prima facie evidence of breach of the article. He meant that the carrier was in breach unless he could excuse himself under article IV: see pp 435 436. This reason was bad, as the House of Lords later held in G H Renton & Co Ltd v Palmyra Trading Corpn of Panama [1957] AC 149. Properly in article III.2 did not impose an obligation to achieve a particular outcome, but to load, carry and discharge in accordance with a sound system: see pp 166 (Viscount Kilmuir LC), 169 170 (Lord Morton of Henryton), 174 (Lord Somervell of Harrow), approving the statement of Lord Devlin in Pyrene Co Ltd v Scindia Navigation Co Ltd [1954] 2 QB 402, 417 418. That error did not, however, affect Wright Js second reason, which was that the carrier was a bailee. Citing the pre Hague Rules cases on the liability of carriers as bailees, he put the point in this way, at pp 435 436: I do not think that the terms of article III put the preliminary onus on the owner of the goods to give affirmative evidence that the carrier has been negligent. It is enough if the owner of the goods proves either that the goods have not been delivered, or have been delivered damaged. The carrier is a bailee and it is for him to show that he has taken reasonable care of the goods while they have been in his custody (which includes the custody of his servants or agents on his behalf) and to bring himself, if there be loss or damage, within the specified immunities. It is, I think, the general rule applicable in English law to the position of bailees that the bailee is bound to restore the subject of the bailment in the same condition as that in which he received it, and it is for him to explain or to offer valid excuse if he has not done so. It is for him to prove that reasonable care had been exercised. The case ultimately went to the House of Lords, but on another point [1929] AC 223. Wright Js decision was followed by Scrutton LJ, delivering the leading judgment in the Court of Appeal in Silver v Ocean Steamship Co Ltd [1930] 1 KB 416, 424 425. He held, as Wright J had done, that the Hague Rules had made no difference to the incidence of the burden of proof in cases of bailment for carriage. I have already referred to the statement of Hobhouse J in The TORENIA [1983] 2 Lloyds Rep 210, 216 about the importance of the legal characterisation of a contract of carriage as a bailment. Hobhouse J went on to state the law as follows at pp 216 217: It is only because the contract in this case is a contract of bailment that the plaintiff sets up a sustainable cause of action by proving the non delivery of the goods. It was then for the defendants to set up a sustainable defence. I use the word sustainable in preference to prima facie, since prima facie is frequently used to refer to a case which shifts the evidential burden of proof rather than giving rise to a legal burden of proof in the opposite party In the 20th century, a convenient statement of the relevant principle is to be found in the judgment of Denning LJ in Spurling Ltd v Bradshaw [1956] 1 WLR 461, at p 466: A bailor, by pleading and presenting his case properly, can always put on the bailee the burden of proof. In the case of non delivery, for instance, all he need plead is the contract and a failure to deliver on demand. That puts on the bailee the burden of proving either loss without his fault (which, of course, would be a complete answer at common law) or, if it was due to his fault, it was a fault from which he is excused by the exempting clause. Nor do the Hague Rules contradict this conclusion. Lord Hobhouse made the same point in Homburg Houtimport BV v Agrosin Pte Ltd [2003] 1 AC 715, para 138. Scrutton LJ and Lords Wright and Hobhouse (as they later became) were notable authorities in this area of law. Apart from Wright Js error as to the meaning of properly to discharge in article III.2, an error which was not made by either Scrutton LJ or Hobhouse J, their analyses of the burden of proof under contracts of carriage incorporating the Hague Rules are in my view entirely in accordance with principle. This proposition has sometimes been expressed by saying that once it is shown that the cargo was loaded in good condition and discharged in bad, the carrier bears the burden of proving that this was caused by one of the excepted perils in article IV: see, for example, the statement of Viscount Sumner in F C Bradley & Sons Ltd v Federal Steam Navigation Co Ltd (1927) 27 Ll L Rep 395, 396, and of Lord Wright, delivering the advice of the Privy Council in Paterson Steamships Ltd v Canadian Co operative Wheat Producers Ltd [1934] AC 538, 545 546. This formulation is common in codes giving effect to the Hague Rules in civil law jurisdictions, as I have observed. But it is not entirely satisfactory to an English lawyer, because it misses out a stage of the analysis. The true rule is that the carrier must show either that the damage occurred without fault in the various respects covered by article III.2, or that it was caused by an excepted peril. If the carrier can show that the loss or damage to the cargo occurred without a breach of the carriers duty of care under article III.2, he will not need to rely on an exception. So far as that analysis has been doubted, it is because of dicta in the House of Lords in the Scottish case of Albacora SRL v Westcott & Laurence Line Ltd 1966 SC(HL) 19; and in the High Court of Australia in Great China Metal Industries Co Ltd v Malaysian International Shipping Corpn Bhd (The BUNGA SEROJA) [1999] 1 Lloyds Rep 512. The Albacora is important mainly for its analysis of the meaning of inherent vice, and I shall return to it in that context. However, Lord Pearce expressed doubt in that case about the correctness of Wright Js view that the burden of disproving negligence lay upon the carrier, without giving reasons. And Lord Pearson rejected Wright Js view, giving as his reason that Wright J had been wrong about the meaning of properly to discharge. In The BUNGA SEROJA McHugh J dealt briefly with the burden of proof under article III.2 of the Hague Rules in the following terms, at para 98: The delivery of the goods in a damaged state is evidence of a breach of article III and imposes an evidentiary burden on the carrier to show that no breach of article III has occurred. But unlike the common law, failure to deliver the goods in the state received does not cast a legal onus on the carrier to prove that the state of, or non delivery of the goods, was not due to the carriers fault. Any statement from these sources is entitled to respect. But the force of these dicta is diminished by a number of considerations. In the first place, in neither case was the burden of proof in issue, because in both the trial judge had found as a fact that the carrier was not negligent. Secondly, no doubt for that reason, none of the relevant authorities on the burden of proof are cited except, in the case of The Albacora, for Wright Js decision in Gosse Millard. Thirdly, Lord Pearson, while rightly criticising Wright Js construction of the words properly to discharge in article III.2 of the Hague Rules, does not address his second reason, based on the characterisation of the contract as one of bailment. Fourthly, these dicta involve an unexplained departure from the basic principles governing the burden of proof borne by a bailee for carriage by sea, and are out of line with English authority of long standing. In my view, so far as they suggest that the cargo owner has the legal burden of proving a breach of article III.2, they are mistaken. Burden of proof: Article IV.2(m) Article IV.2 of the Hague Rules is a notoriously unsatisfactory provision, because there is no unifying legal principle behind the highly miscellaneous list of excepted causes of loss. Some of them refer to matters which by their nature would otherwise constitute breaches of the carriers duty to care for the cargo. Some refer to matters which may or may not be caused by such a breach. In other cases, such as act of God, the carrier would not be liable even in the absence of an exception. The explanation for this intellectual disorder is historical. The exceptions are generally those which were allowed by the draftsmen of the Rules because their inclusion in bills of lading was sanctioned by long standing practice, or because they were common law exceptions to the liability of a common carrier, or because they were excepted in existing national legislation such as the US Harter Act and corresponding legislation in Canada and Australia. Only one of the article IV.2 exceptions expressly imposes the burden of proof on the carrier, namely (q). It is, however, well established that the carrier bears the burden of bringing himself within any of the exceptions. Mr Rainey does not challenge this. His case is that once he has proved that the cargo suffered from an inherent vice, the cargo owner must positively prove that it was only because of the carriers negligence that the cargos vicious propensities resulted in damage. The starting point in the authorities is the decision of the Exchequer Chamber in Notara v Henderson (1872) LR 7 QB 225. The facts were that a cargo of beans was delivered damaged by seawater. The beans had been wetted when the vessel was involved in a collision. She put into Liverpool for repairs, and it was proved that it would have been reasonable for the master temporarily to discharge the beans there, so that they could be spread out and dried in a warehouse, and then reloaded before the vessel proceeded on her voyage. If that had been done, part of the damage would have been avoided. The bill of lading excepted loss or damage arising from accidents of the seas. The court held that the exception did not protect the carrier from liability for that part of the damage which could have been avoided by the exercise of due care. Willes J, delivering the judgment of the court, stated the law as follows at pp 235 236: In the result it appears to us that the duty of the master, in this respect, is to take reasonable care of the goods intrusted to him, not merely in doing what is necessary to preserve them on board the ship during the ordinary incidents of the voyage, but also in taking reasonable measures to check and arrest their loss, destruction, or deterioration, by reason of accidents, for the necessary effects of which there is, by reason of the exception in the bill of lading, no original liability. [T]he exemption is from liability for loss which could not have been avoided by reasonable care, skill, and diligence, and that it is inapplicable to the case of a loss arising from the want of such care, and the sacrifice of the cargo by reason thereof, which is the subject matter of the present complaint. Willes J did not in terms address the burden of proving absence of fault, but the critical point is that he treated absence of fault as an integral part of the exception. It was an exception only in respect of such loss as could not by the exercise of reasonable care be avoided. It must in principle follow that if the burden of proving the application of the exception is on the carrier, that must extend to proving that the damage could not be avoided by the exercise of reasonable care. The decisions of the House of Lords in Thomas Wilson, Sons & Co v Owners of the Cargo per The XANTHO (1887) 12 App Cas 503 and Hamilton, Fraser & Co v Pandorf & Co (1887) 12 App Cas 518, were handed down on the same day by differently constituted appellate committees. In both cases, it was held that a bill of lading exception for dangers and accidents of the seas excused the carrier only if the relevant danger or accident happened without his fault. The law on this point can conveniently be taken from The XANTHO. Lord Herschell, delivering the leading speech, put the matter in this way at pp 510 511: If the goods are not carried with reasonable care, and are consequently lost by perils of the sea, it becomes necessary to reconcile the two parts of the instrument, and this is done by holding that if the loss through perils of the sea is caused by the previous default of the shipowner, he is liable for this breach of his covenant. However, Lord Herschell expressly declined (p 512) to say who bore the burden of proving absence of fault on the carriers part. The sheet anchor of the carriers case on this appeal is the decision of the Court of Appeal in The GLENDARROCH [1894] P 226, where the question left open by Lord Herschell was decided. The GLENDARROCH was decided 30 years before the Hague Rules were adopted. It concerned a specific exception assumed to be included in a bill of lading. Like most of the case law on the burden of proving an exception in the contract of carriage, it was about the exception for perils of the sea, which was commonly included in bills of lading before the Hague Rules and was reproduced in article IV.2 of the Rules as exception (c). The facts were that the cargo suffered water damage because the vessel ran aground on St Patricks causeway in Cardigan Bay. During the trial, the judge ruled that the carrier had the burden of proving that the grounding had occurred without negligence in the navigation of the vessel. Thereupon, the carriers counsel declined to call any evidence to explain how the vessel came to be in a place where the action of the wind and waves was liable to put her aground. Accordingly, the judge entered judgment for the cargo owner. The Court of Appeal allowed the appeal, holding that the burden of proving that an excepted peril had been occasioned by the carriers negligence lay on the cargo owner. Today, the result on the same facts would be the same because, assuming that the vessel was initially seaworthy, the carrier would be exempted from liability for negligent navigation under article IV.2(a) as well as perils of the sea under article IV.2(c). But that is by the way. What matters for present purposes is the reasoning of the Court of Appeal on the footing that the only relevant exception was for perils of the sea. Lord Esher MR delivered the leading judgment. He appears to have regarded the shipowner as a common carrier, for he observed (p 230) that but for the contractual exception for perils of the seas, the carrier would have been strictly liable and negligence utterly immaterial. On that footing, any negligent navigation of the vessel could be relevant to the exception for perils of the seas only if one read it as meaning Except the loss is by perils of the sea, unless or except that loss is the result of the negligence of the servants of the owner. Lord Esher proceeded on the assumption that that construction was correct. But he held that on that footing negligent navigation was an exception to an exception. It followed that once the carrier had proved that the wind and waves had deposited the vessel on St Patricks causeway, he had done all that the exception required of him, and the burden of proving that this had happened only because of its negligent navigation by the crew lay upon the cargo owner. He referred in support of this conclusion to the practice of the court regarding the pleading of exceptions upon exceptions. The reasoning of Lopes LJ was the same. As he pointed out (p 235), the result was that where a peril of the sea is set up it is sufficient for the defendant to prove the peril relied on, and he need not go on to shew that that was really not caused by him; but if the plaintiff says that it was, then he must set it up in his replication and must prove it. Davey LJ agreed with Lord Esher. The decision in The GLENDARROCH derives some support from obiter dicta by Lord Sumner in Owners of Steamship MATHEOS v Louis Dreyfus & Co [1925] AC 654, 666, Lord Wright in Joseph Constantine Steamship Line v Imperial Smelting Corpn Ltd [1942] AC 154, 194, Lord Pearson in The Albacora, supra, at p 31, and Mason and Wilson JJ in Shipping Corpn of India Ltd v Gamlen Chemical Co (A/Asian) Pty Ltd (1980) 147 CLR 142, 167 168, although in none of these cases were the authorities examined. None of them, moreover, confronted the practical and conceptual problems about the analysis in The GLENDARROCH. Fundamental to that analysis was a distinction between an exception and an exception to an exception. This distinction is in my view unsatisfactory. This is partly because the attempt to distinguish between the case where absence of fault is part of the test for the exception and the case where it is an exception to the exception seems to me to import a refinement of some subtlety, unrelated to any commercial purpose which the parties can sensibly be thought to have had in mind. But it is mainly because if an exception is subject to an exception for cases where it was avoidable by the exercise of due care, then the issue must ultimately be one of causation. Thus, in The GLENDARROCH itself, the question was whether the effective cause of the loss was the action of the wind and waves, or the conduct of the crew in allowing the action of the wind and waves to damage the cargo when with reasonable diligence on their part both ship and cargo could have withstood the storm. If, as the Court of Appeal rightly accepted in that case, the burden of proving facts bringing the carrier within the exception lay on him, that must extend not just to the question whether the sea conditions were perilous, but also to the question whether that was the effective cause of the damage. That is unquestionably the position of a bailee at common law: Coldman v Hill [1919] 1 KB 443; British Road Services Ltd v Arthur V Crutchley & Co Ltd (No 1) [1968] 1 All ER 811, 822, 824 (Sachs LJ, with whom Danckwerts LJ agreed). It is also, under the express terms of article IV.2 of the Hague Rules an integral part of what must be proved for any of the exceptions to apply (Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from (emphasis supplied).) Yet, as Lopes LJ recognised, the reasoning of the Court of Appeal involved a distinction between the existence of the excepted circumstance on the one hand and its causative effect on the other. The GLENDARROCH has stood for a long time. But it has rarely featured in the reasoning of subsequent case law, and the basis on which it was decided is technical, confusing, immaterial to the commercial purpose of the exception and out of place in the context of the Hague Rules. The decision may have been justifiable in the more formal conditions of pleading and trial practice in the 1890s, or as applied to the notional bill of lading terms which the Court of Appeal was considering. But as the source of a general rule governing the burden of proof, it should no longer, in my view, be regarded as good law. I consider that the carrier has the legal burden of disproving negligence for the purpose of invoking an exception under article IV.2, just as he has for the purpose of article III.2. Even if I had thought that The GLENDARROCH was correct as applied to the exception for perils of the sea, I would not have regarded it as applicable to the exception for inherent vice. This is because the distinction between the existence of the peril and the standard of care required of the carrier is impossible to make in that context. A cargo does not suffer from inherent vice in the abstract, but only in relation to some assumed standard of knowledge and diligence on the part of the carrier. Thus the mere fact that coffee beans are hygroscopic and emit moisture as the ambient temperature falls may constitute inherent vice if the effects cannot be countered by reasonable care in the provision of the service contracted for, but not if they can and should be. At the time that The GLENDARROCH was decided, this had already been established by the decision of the Court of Appeal in Nugent v Smith (1876) 1 CPD 423. In that case, a mare carried in the hold died as a result of a combination of more than usually bad weather and the fright of the animal herself which caused her to struggle and injure herself. Cockburn CJ described inherent vice (p 438) as the rule that the carrier is not liable where the thing carried perishes or sustains damage, without any fault of his, by reason of some quality inherent in its nature . (Emphasis supplied) Likewise, Mellish LJ (p 439) thought that if the jury had found that the injury was caused solely by the conduct of the mare herself by reason of fright and consequent struggling, without any negligence on the part of the defendants servants, I am of opinion that a plea that the injury to the mare was caused by the vice of the mare herself would have been proved. (Emphasis supplied) The leading modern case is The Albacora, which I have already mentioned in another context. It is authority for the proposition that the standard of care by reference to which the exception for inherent vice is to be assessed may depend on the nature of the service contracted for. The issue was whether a cargo of fish was capable of withstanding carriage in unrefrigerated spaces, that being the service stipulated in that case. The ratio can conveniently be taken from the speech of Lord Reid, at p 23: Article IV, rule 2(m), provides that the carrier shall not be responsible for damage arising from inherent defect, quality, or vice of the goods. A number of authorities were cited and perhaps the most concise statement is that of Gorell Barnes J in The Barcore [1896] P 294: This cargo was not damaged by reason of the shipowner committing a breach of contract, or omitting to do something which he ought to have done, but it was deteriorated in condition by its own want of power to bear the ordinary transit in a ship. By the ordinary transit I would understand the kind of transit which the contract requires the carrier to afford. I agree with the Lord President when he says: rule 2(m) is in my opinion intended to give effect to the well settled rule in our law that if an article is unfitted owing to some inherent defect or vice for the voyage which is provided for in the contract, then the carrier may escape liability when damage results from the activation of that inherent vice during the voyage. It follows that whether there is inherent defect or vice must depend on the kind of transit required by the contract. If this contract had required refrigeration there would have been no inherent vice. But as it did not, there was inherent vice because the goods could not stand the treatment which the contract authorised or required. The effect of these statements, and others to the same effect, are accurately summarised in Scrutton on Charterparties and Bills of Lading 23rd ed (2015), para 11.055: By inherent vice is meant the unfitness of the goods to withstand the ordinary incidents of the voyage, given the degree of care which the shipowner is required by the contract to exercise in relation to the goods. It follows that if the carrier could and should have taken precautions which would have prevented some inherent characteristic of the cargo from resulting in damage, that characteristic is not inherent vice. Accordingly, in order to be able to rely on the exception for inherent vice, the carrier must show either that he took reasonable care of the cargo but the damage occurred nonetheless; or else that whatever reasonable steps might have been taken to protect the cargo from damage would have failed in the face of its inherent propensities. The judgment of the Court of Appeal The judgment of the Court of Appeal was given by Flaux J, with whom Gloster and King LJJ agreed. Flaux Js analysis of the burden of proof is not entirely clear. He appears to have considered that if damage was ascertained on outturn, the cargo owner had the legal burden of proving that this was due to a breach of article III.2, but that there was an evidential inference from the mere fact of damage that such a breach had occurred. The carrier would have to point to evidence to rebut the inference or fail on that issue. On that footing, there appears to have been little practical difference between a legal and an evidential burden. Once a breach of article III.2 had been established (whether by evidence or inference), Flaux J considered that the carrier had the legal burden of establishing a prima facie case for the application of one of the exceptions in article IV.2. Flaux J cannot have been using the expression prima facie case in its ordinary sense, ie a case on the facts which unless rebutted by further evidence would entitle the carrier to succeed. He must, I think, have meant that the carrier had the legal burden of proving that one of the circumstances listed in article IV.2 existed at the relevant time. It was then, he thought, for the cargo owner to bear the legal burden of showing that it only resulted in damage to the cargo because the carrier had failed to take reasonable care of it. I have already explained why I do not accept this analysis in principle. I also have great difficulty with the way in which Flaux J applied it to the exception for inherent vice. What is a prima facie case for the application of that exception? Flaux J seems to have thought that the carrier need only prove that the cargo had an inherent propensity to deteriorate, but not that he took reasonable care to prevent that propensity from manifesting itself. He criticised the deputy judge for conflating the issues of whether there was some inherent defect, quality or vice in the cargo and whether the carrier properly and carefully cared for and carried the cargo. At the same time, he recognised that there was a degree of overlap, if not of circularity between these two things, in the sense that one is focussing on the ability of the cargo to withstand the ordinary incidents of carriage, pursuant to obligations of the carrier under the contract of carriage. The reason why, in spite of the overlap or circularity, he nevertheless felt it necessary to treat them as discrete questions was that he thought that the burden of proof lay with the carrier on the former issue and the cargo owner on the latter. The problem with this analysis is that, as I have observed, and as Flaux J came close to acknowledging, it is conceptually impossible to define inherent vice except by reference to some assumed standard of care for the cargo. A cargo may have inherent characteristics that make its deterioration inevitable whatever care is taken of it. In that case negligence is irrelevant and inherent vice is proved without more. But inevitable deterioration is rare in cargoes that are habitually carried by sea. In the great majority of cases, the cargos inherent propensity to deteriorate may or may not manifest itself in damage, depending on the ambient conditions of stowage and the way it is handled. If, within the limits of the kind of carriage contracted for, reasonable care would have prevented the cargos inherent propensity from causing damage, then the cargo is fit to withstand the ordinary incidents of the carriage contracted for and there is no inherent vice. This makes it difficult to support Flaux Js analysis of the incidence of the burden of proof. If the existence of inherent vice depends on the appropriate standard of care, the law cannot coherently apply a different burden of proof to one of them from that which applies to the other. Having held that the cargo owner had the burden of proving that the carriers absence of care had caused the exception to operate, the Court of Appeal went on to find that he had failed to discharge it. This was not because of the absence of evidence of matters which it was for the cargo owner to prove. Starting from the proposition that the carriers obligation under article III.2 was to care for and carry the goods in accordance with a sound system, they thought that the deputy judge had misdirected himself that this meant in accordance with a system that would prevent damage, and that inherent vice could be demonstrated only if damage was inevitable. I am not persuaded that the deputy judge made either of these mistakes. He simply observed that at the relevant time bagged coffee was commonly carried in unventilated containers from warm climates to cooler ones without mishap, and there was nothing out of the ordinary about this particular cargo. It therefore seemed probable that with reasonable care the cargo was perfectly capable of withstanding the risks reasonably to be expected during unventilated carriage. But it is unnecessary to examine this point further, because while the Court of Appeals criticisms encouraged them to reopen the facts, the decisive reason why they overruled him was that they disagreed with two of his critical conclusions about the evidence, and made positive findings of their own which he had felt unable to make. In the first place, the deputy judge had found that there was no evidence of any generally accepted industry practice to which the carrier could claim to have conformed. The Court of Appeal found that there was an accepted industry practice in 2012 for lining unventilated containers for the carriage of bagged coffee. It was, they said, to use two layers of paper of at least 80 gsm or one layer of at least 125 gsm. Secondly, the deputy judge had found that apart from a tentative conclusion to be drawn from the photographs, there was no evidence of the number of layers of paper in place at the time of shipment, and no evidence of its weight except that it was more than 80 gsm. The Court of Appeal found by an examination of the photographs and of the pre loading documentation that two layers of paper had been used. It therefore followed from the deputy judges finding that the paper used weighed at least 80 gsm that the containers had been lined in accordance with accepted industry practice. This court has on a number of occasions pointed out that while an appeal to the Court of Appeal is by way of rehearing, a trial judges findings of fact should not be overturned simply because the Court of Appeal would have found them differently. It must be shown that the trial judge was wrong: ie that he fundamentally misunderstood the issue or the evidence, or that he plainly failed to take the evidence into account, or that he arrived at a conclusion which the evidence could not on any view support. Within these broad limits, the weight of the evidence is a matter for the trial judge. There is a world of difference between the impression which evidence makes on a judge who has followed it as it was deployed and the impression that an appellate court derives from cold transcripts. The judgment of Flaux J in the Court of Appeal attaches no intrinsic weight to the deputy judges analysis. It simply substitutes his own. In my judgment, the Court of Appeal was not justified in overturning the deputy judges findings on either of the two critical points which I have identified. On the question of industry practice, the judge had before him a joint memorandum by the expert witnesses, referring to a number of recommendations, none of them more recent than 2004. The issue was addressed by the experts in their oral evidence in terms which were not wholly consistent. Some of it suggested that in 2012 practice in the trade was variable, fluid and developing. The assessment of this evidence was very much a matter for the deputy judge. He found that it fell short of proving any sufficiently uniform or accepted practice to serve as a benchmark against which to measure the carriers care for the cargo. To my mind this was a conclusion which was open to him on the material deployed at trial. Turning to the paper actually used, the Court of Appeal thought that the deputy judges conclusions were against the weight of evidence. There was an issue at trial about what could be deduced from the reports of inspectors who examined the containers on outturn, on which the evidence was inconclusive and the deputy judge made no finding. There was an issue about the weight to be attached to documentary evidence suggesting that before shipment it had been intended to use two layers of paper. The deputy judge discounted this, mainly because of the absence of documentation such as invoices which one would have expected to find if this intention had been carried into execution. That left the inferences to be drawn from photographs taken at the port of loading. The deputy judge thought that they tended to show that single layers of paper had been used, the Court of Appeal that it was doubled. The difference depends on whether certain of the photographs showed double layers or an overlap of sheets laid as single layers. For my part, I think that there is some force in the criticism that the deputy judge too readily discounted the documentary evidence generated before shipment. But this was only part of a larger and more complex body of evidence which, taken as a whole, could have supported either of the competing analyses. This falls well short of what was necessary to show that the deputy judge was wrong. Disposal I would hold that the carrier had the legal burden of proving that he took due care to protect the goods from damage, including due care to protect the cargo from damage arising from inherent characteristics such as its hygroscopic character. I would reinstate the deputy judges conclusions about the practice of the trade in the lining of unventilated containers for the carriage of bagged coffee and the absence of evidence that the containers were dressed with more than one layer of lining paper. In the absence of evidence about the weight of the paper employed, it must follow that the carrier has failed to prove that the containers were properly dressed. For these reasons, I would allow the appeal and restore the order of the deputy judge.	This appeal is about the burden of proof in actions against a shipowner for loss of or damage to cargo. The six claimants, the appellants, were the owners and holders of the bills of lading for nine separate consignments of bagged Colombian green coffee beans. Those coffee beans were shipped from Colombia between 14 January and 6 April 2012 on various vessels owned by the defendant shipowners, the respondents, to Bremen in Germany. They were stowed in a total of 20 unventilated 20 foot containers (as specified by the cargo owners for these consignments), transhipped in Panama and discharged at Rotterdam, Hamburg or Bremerhaven for oncarriage to Bremen. The bill of lading for each consignment covered the entire carriage. Bagged coffee beans may be and commonly are carried in either ventilated or unventilated containers. Unventilated containers were specified by the shippers of these cargoes. They are, however, hygroscopic, so that if carried in unventilated containers from warmer to cooler climates, they are likely to emit moisture which condenses against the roof and sides of the containers. To prevent this from causing moisture damage to the cargo, it was common commercial practice in 2012 to line the containers with an absorbent material such as Kraft paper. Each bill of lading was governed by English law and subject to English jurisdiction. They each also incorporated the Hague Rules of 1924 and LCG/FCL (less than full container load/full container load) terms applied. This means that the carrier was contractually responsible for preparing the containers for carriage and loading the bags of coffee into them. On outturn at Bremen, condensation damage to the coffee beans was found in 18 out of the 20 containers. The cargo owners brought a claim against the carriers for breach of their duties as bailees to deliver the cargoes in the condition recorded on the bill of lading and, alternatively, breach of article III, rule 2 of the Hague Rules for failure to properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried. They alleged negligence by the carriers for failing to use adequate or sufficient Kraft paper. The carriers pleaded inherent vice on the ground that the coffee beans were unable to withstand the ordinary levels of condensation forming on such a voyage. In reply, the cargo owners pleaded that any inherent characteristic only led to damage because of the carriers negligence. The judge, David Donaldson QC, held that there was no legal burden on the carrier to prove that the damage to the cargo was caused without negligence or due to an inherent vice, only a factual presumption of negligent damage. He found that: (i) the evidence did not establish what weight or how many layers of paper were used and (ii) there was no evidence, or generally accepted commercial practice, as to what thickness of paper should be used. The Court of Appeal disturbed the factual findings as to commercial practice and the lack of evidence on the number of layers of lining paper in the containers, dismissing the claim by the cargo owners. The questions on appeal to the Supreme Court were: (i) whether the cargo owners (as claimants) bear the legal burden under article III.2 of the Hague Rules and (ii) how, if at all, is the legal burden altered by the article IV.2(m) inherent vice exception? The Supreme Court unanimously allows the appeal, deciding that the legal burden of disproving negligence rests on the carrier, both for the purpose of article III.2 and article IV.2 of the Hague Rules. Lord Sumption gives the sole judgment, with which all members of the Court agree. The judges factual findings are restored and, given the absence of evidence on the weight of the paper used, the Court decides that the carrier has failed to discharge its legal burden. The Hague Rules must be read against the background of the common law rules on bailment [7]. There are two fundamental principles in the law of bailment: (i) a bailee of goods is only under a limited duty to take reasonable care of the goods, but (ii) the bailee nonetheless bears the legal burden of proving the absence of negligence [8 9]. A contract of carriage governed by the Hague Rules is a contract of bailment for reward, to which the same principles apply, unless excluded by the Rules [11]. The Hague Rules do not exclude them. They are only a complete code on matters which they cover and thus not exhaustive [15]. In particular, they do not deal generally with the burden of proof, which in accordance with ordinary principles of private international law are matters for the law of the forum [15]. As with common law bailment, imposing a duty of care on the carrier by article III.2 of the Hague Rules is consistent with his bearing the burden of disproving negligence [17]. That conclusion is reinforced by the relationship between articles III and IV. Article IV covers negligent acts or omissions of the carrier which would otherwise constitute breaches of article III.2. It would be incoherent for the law to impose the burden of proving the same fact on the carrier under article IV, but on the cargo owner under article III.2 [18]. As to article IV, it is well established that the exceptions cannot be relied upon if they were caused to operate by the negligence of the carrier [28, 37]. The carrier must prove facts which show not only that an excepted peril existed, but that it was causative of the damage [37]. This means that the general rule is that the carrier bears the burden of proving that the exception was not caused to operate by the carriers negligence [33, 37]. The Supreme Court considers that The GLENDARROCH [1894] P 226 (CA) is no longer good law [31 33]. In the case of the exception in article IV.2(m) for inherent vice, the test is whether the cargo was fit to withstand the ordinary incidents of the specified service, and its application can be decided only by reference to some assumed standard of care [39]. The mere propensity of the cargo to emit moisture is not inherent vice if reasonable care in lining the containers would have resulted in the cargo being discharged undamaged [39]. The Supreme Court considers that the Court of Appeal was not justified in overturning the judges two material factual findings, since it was not shown that the judge was plainly wrong [40 42].
English private international law distinguishes between matters of substance which are governed by the proper law of the relevant issue (lex causae), and matters of procedure which are for the law of the forum. The distinction was preserved when the English principles relating to the choice of law were amended and partly codified by the Private International Law (Miscellaneous Provisions) Act 1995: see section 14(3)(b). Limitation, which deprives the litigant of a forensic remedy but does not extinguish his right, is for that reason classified by the English courts as procedural. The result was that until the position was altered by statute in 1984, the English courts disregarded foreign limitation law and applied the English statutes of limitation irrespective of the lex causae. This was widely regarded as unsatisfactory, mainly because of the rather technical character of the distinction on which it was based between barring the remedy and extinguishing the right. The Foreign Limitation Periods Act 1984 provided for the English courts, with limited exceptions, to apply the limitation rules of the lex causae. Section 1 provides: 1. Application of foreign limitation law (1) Subject to the following provisions of this Act, where in any action or proceedings in a court in England and Wales the law of any other country falls (in accordance with rules of private international law applicable by any such court) to be taken into account in the determination of any matter (a) the law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings; . and (b) the law of England and Wales relating to limitation shall not so apply. (4) A court in England and Wales, in exercising in pursuance of subsection (1)(a) above any discretion conferred by the law of any other country, shall so far as practicable exercise that discretion in the manner in which it is exercised in comparable cases by the courts of that other country. The law of a country relating to limitation is defined by section 4. It means so much of the relevant law of that country as (in any manner) makes provision with respect to a limitation period applicable to the bringing of proceedings in respect of that matter in the courts of that country and shall include references to so much of that law as relates to, and to the effect of, the application, extension, reduction or interruption of that period. For this purpose, the relevant law means the procedural and substantive law applicable, apart from any rules of private international law, by the courts of that country. The question which arises on this appeal is how the Act is to be applied in a case where the foreign limitation law depends for its operation on facts which are not germane to litigation in England. The claimants are 14 lead claimants, representative of more than 600 clients of solicitors Leigh Day. They claim to have suffered unlawful detention and/or physical maltreatment at the hands of British armed forces in Iraq between 2003 and 2009, for which the Ministry of Defence is liable in tort. It is agreed between the parties that any liability of the Ministry in tort is governed by Iraqi law. Under article 232 of the Civil Code of Iraq, the standard limitation period applicable to claims of this kind in Iraqi law is three years from the day on which the claimant became aware of the injury and of the person who caused it. This action was begun more than three years after most of the claimants must have been aware of these matters. As far as those claimants are concerned, the fate of their claims may depend on the operation of article 435 of the Civil Code, which is one of a number of provisions suspending the running of time in particular cases. It provides: Article 435 (1) The time limit barring the hearing of the case is suspended by a lawful excuse such as where the plaintiff is a minor or interdicted and has no guardian or is absent in a remote foreign country, or where the case is between spouses or ascendants and descendants, or if there is another impediment rendering it impossible for the plaintiff to claim his right. (2) The period which lapses while the excuse still exists (lasts) shall not be taken into account (for the running of the time limitation). The circumstance on which the claimants rely as engaging this provision is that Coalition Provisional Authority Order 17, which had and still has the force of law in Iraq, made it impossible for them to sue the British government in Iraq. Section 2(1) of the Order provides that coalition forces in Iraq (including British forces) are immune from Iraqi legal process. Section 2(3) provides that coalition personnel are to be subject to the exclusive jurisdiction of their parent states, and immune from local criminal, civil and administrative jurisdiction other than by persons acting on behalf of their parent states. Section 2(5) provides that parent states may waive the immunity in respect of criminal liability at the request of the Coalition Provisional Authority if there are no relevant criminal sanctions in the parent state. It is agreed between the parties that CPA Order 17 made it impossible for the claimants to sue the British government in Iraq throughout the relevant period. Broadly stated, the question is whether the suspensory proviso in article 435(1) applies to the current proceedings in England. It is not suggested on this appeal that there has ever been any impediment preventing them from suing the British government in England. The judge, Leggatt J, directed the hearing of a preliminary issue on this point, among others, and subsequently decided it in favour of the claimants. He regarded the question whether the relevant impediment had to affect Iraqi or English proceedings as turning on the territorial scope of article 435 as a matter of Iraqi law. He accepted the evidence of the claimants expert that an Iraqi court would construe article 435 of the Civil Code as referring to impediments making it impossible for the claimant to assert his claim in Iraq. He therefore concluded that because CPA Order 17 deprived and still deprives the Iraqi courts of jurisdiction to entertain proceedings against the British government, the limitation period was suspended indefinitely, subject only to section 2(1) of the Foreign Limitation Periods Act, which disapplies section 1(1) in a case where its application would cause undue hardship. The judge described this as a very unattractive result. However, he thought that the alternative was at least as irrational. This was because if there was an impediment to English proceedings which lasted until after the expiry of the Iraqi limitation period, but no such impediment in Iraq, the running of time would be suspended in England and the action could subsequently proceed there notwithstanding that it would have been time barred in Iraq. Leggatt J did not decide whether section 2(1) affected the position in this case, because it was not part of the preliminary issue which he had directed. The Court of Appeal allowed the appeal. The leading judgment was given by Tomlinson LJ, with whom Lord Dyson MR and Vos LJ agreed. He rejected the judges view that the answer turned on the territorial scope of article 435. In his view, an English court was bound to disregard any impediment arising from CPA Order 17. This was because that order was not a law with respect to limitation which the English courts were bound to apply by sections 1(1) and 4 of the 1984 Act. Nor was it a substantive rule of Iraqi law which applied by virtue of the ordinary principles of English private international law. It was a mere procedural bar to proceedings in Iraq which had no relevance in an English court. The Court of Appeal was of course right to say that CPA Order 17 had no legal effect in an English court. It expressly confers immunity only in respect of Iraqi legal process. It is not a rule of limitation, but a particular form of state immunity, which serves as a limitation on the jurisdiction of the courts. It is therefore necessarily procedural and local in nature. It is inherent in the whole concept of state immunity that it does not confer immunity on a state in its own courts. However, although CPA Order 17 is devoid of legal effect outside Iraq its consequences may nonetheless be relevant as fact. It is as fact that those consequences affect the operation of article 435 of the Civil Code. The question posed by that article is whether CPA Order 17 was as a matter of fact an impediment rendering it impossible for the plaintiff to claim his right. Impediment and impossibility are questions of fact. This is no less true because the impediment is the consequence of a rule of Iraqi law. Left to my own devices, I might have doubted whether article 435 was concerned with problems of this kind. On the face of it, an impediment is something that prevents the litigant from asserting some right that he has or from invoking some jurisdiction that the court has, and not the absence of a relevant right to assert or a jurisdiction to invoke. But these are questions of Iraqi law on which the parties are agreed. It is common ground that CPA Order 17 was an impediment and that it did render it impossible for the claimants to sue in Iraq. Their agreement on this point is an agreement about the practical consequences of the Order. However, it does not follow from the fact that an English court recognises the consequences of a rule of Iraqi law that it is giving effect to the rule in question. The real question is whether it is legally relevant when the claimants have brought proceedings in England what impediments might have prevented similar proceedings in Iraq. The judge, as I have observed, regarded that as depending on the territorial ambit of article 435 as a matter of Iraqi law. On that footing it is obvious that a procedural time bar arising under Iraqi law applied only in Iraq. But in my opinion, this was not a question of Iraqi law but of English law. In English proceedings, the relevant law is the Foreign Limitation Periods Act. Where the cause of action is governed by a foreign law, the Act requires an English court to ascertain the relevant rules of the foreign law of limitation and then to apply it to proceedings in England. Because the foreign law of limitation will have been designed for foreign proceedings, that necessarily involves a process of transposition. There may be facts which the foreign law of limitation would treat as relevant to foreign proceedings but which are irrelevant to proceedings in England. It is sometimes said that the ascertainment of foreign law involves asking what the foreign court would decide. That is of course true, but the English court is concerned only with what the foreign court would decide to be the relevant foreign law. It is the function of the English court to apply that law to the relevant facts. In just the same way, where the foreign law confers a discretion on the foreign court, an English court exercising that discretion under section 1(4) of the 1984 Act would do so in the manner in which it is exercised in comparable cases by the foreign court, but taking account of those respects in which because the proceedings are being brought in England the facts are not comparable. It follows that where the Iraqi law of limitation depends for its operation on some fact about the proceedings, the relevant fact is that applicable to the actual proceedings, viz those brought in England, and not some hypothetical proceedings that the claimants have not brought in Iraq, and in this case could not have brought in Iraq. We are concerned with impediment and impossibility affecting the bringing of legal proceedings. That depends on the personal situation of the claimants in relation the relevant proceedings, namely those brought in England. The claimants submission, if accepted, would mean that there was no limitation period at all affecting the present proceedings in England, by reason of a consideration (CPA Order 17) which had no relevance to English proceedings because it has no application outside Iraq and has never impeded resort to the English court. The main argument advanced in support of it was that an English court applying the Act of 1984 must give effect to the whole of the relevant Iraqi law of limitation, and not just to part of it. This point was reinforced by reference to section 2 of the Act of 1984. Section 2(1) disapplies the relevant foreign law of limitation so far as its application would conflict with English public policy, and section 2(3) disapplies it so far as it suspends the running of time on account of the absence of a party to the action or proceedings from any specified jurisdiction or country. The point made is that where the Act disapplies some part of the foreign law of limitation, it does so expressly, thereby impliedly excluding its disapplication in any other circumstances. I reject the submission because it assumes that because the Iraqi law of limitation would treat certain facts as relevant to Iraqi proceedings, to treat those facts as irrelevant to English proceedings involves disapplying part of Iraqi law. It does not. It simply involves applying the same principles of Iraqi law to different facts. The facts relevant to proceedings in England are not necessarily the same as those which would be relevant to proceedings in Iraq. I should, finally, return to Leggatt Js view that it would be irrational for an English court to concern itself with impediments to English proceedings because if there was a temporary impediment in England but none in Iraq, a court applying the Iraqi law of limitation to an action in England might be bound to allow the action to proceed here when it was time barred in Iraq. I have to say that I cannot see why this should be thought strange, let alone irrational. It simply reflects the fact that the Iraqi law of limitation is qualified by reference to practical impediments to the making of a claim, and those impediments may be greater in some jurisdictions than in others. On the judges hypothesis, the reason why Iraqi proceedings would have been time barred before corresponding proceedings in England, is that if the claimants had proceeded in Iraq, they would not have been impeded. These reasons differ from those of the Court of Appeal, but the result is the same. In my opinion, the appeal must be dismissed and the order of the Court of Appeal affirmed.	The appellants are 14 lead claimants in claims by over 600 Iraqi citizens who claim to have suffered unlawful detention and/or physical maltreatment at the hands of British armed forces in Iraq between 2003 and 2009. The claims are brought in tort in England against the Ministry of Defence. The torts are governed by Iraqi law. The Foreign Limitation Periods Act 1984 provides that where a claim is brought in England which is governed by a foreign law, the English courts are to apply the foreign law of limitation. In a substantial number of these cases the action was begun more than three years after the relevant claimant became aware of the injury and the person who caused it, and was therefore time barred under article 232 of the Iraqi Civil Code. The appellants argued that time had been suspended for limitation purposes under article 435(1) of the Civil Code, which suspends the time limit during any period when there is [an] impediment rendering it impossible for the plaintiff to claim his right. They said that Coalition Provisional Authority Order 17 (CPA Order 17), which gave coalition forces immunity from Iraqi legal process and jurisdiction and still has force of law in Iraq, was such an impediment. The first instance judge directed the hearing of a preliminary issue, namely whether the suspensory proviso in article 435(1) applied to the claimants proceedings in England. He held that the limitation period was suspended under article 435(1). The Court of Appeal allowed the Ministry of Defences appeal, holding that article 435(1) was not engaged, because the English courts are not bound to apply CPA Order 17, which is a mere procedural bar that is irrelevant to proceedings in England. The Supreme Court unanimously dismisses the appeal by the Iraqi civilians, and affirms the Court of Appeals conclusion that the limitation period was not suspended under article 435(1) of the Iraqi Civil Code. Lord Sumption gives the only judgment, with which the other Justices agree. The Foreign Limitation Periods Act 1984 requires an English court to apply to English proceedings a foreign law of limitation which will have been designed for proceedings in the foreign country. This requires a process of transposition. Facts that the foreign law would have treated as relevant to the foreign proceedings might be irrelevant to the proceedings in England [13]. Where the Iraqi law of limitation depends on some fact about the proceedings, the English court must ask whether that fact is applicable to proceedings brought in England, and not to hypothetical proceedings that might have been brought in Iraq [15]. CPA Order 17 applies only in Iraq. It is not an impediment to the only relevant proceedings, which are in England. It does not therefore suspend the running of the Iraqi law limitation period [16].
This appeal challenges the making of a non party costs order under section 51 of the Senior Courts Act 1981 against the product liability insurer of one of the defendants in litigation being managed under a Group Litigation Order (GLO). Although the particular circumstances which led to the making of the non party costs order may fairly be described as unusual or even rare, they give rise to important questions about the principles upon which the exercise of the courts broad jurisdiction to make such orders should depend, where the non party is a liability insurer, both funding and largely directing the conduct of its insured defendants defence in the relevant litigation. The search for principle is particularly acute where, as here, some but not all the claims in the group litigation fall within the confines of the cover provided by the insurance. In Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965, 975 Lord Goff of Chieveley said that it was for the rule making authority making rules of court and for the appellate courts to establish principles upon which the broad discretionary power to make costs orders against non parties should be exercised. As will appear, a series of authorities have sought to lay down some principles regulating the exercise of this discretion against non party insurers. This appeal provides an opportunity to review that developing jurisprudence. The Facts The group litigation which has generated this appeal concerns the supply of defective silicone implants for use in breast surgery, manufactured by the French company Poly Implant Prothse (PIP). One of the defendants, Transform Medical Group (CS) Ltd (Transform) operated medical clinics which supplied and fitted implants manufactured by PIP to customers in England. The appellant Travelers Insurance Co Ltd (Travelers) provided product liability insurance to Transform which covered liability for bodily injury (or property damage) occurring during the period of insurance, which ran from 31 March 2007 to 30 March 2011. Many of those implants ruptured, causing bodily injury (as defined), principally in the form of leakage of their contents. Of the 1,000 or so women claimants joining in the group litigation, some 623 of their claims were brought against Transform, which was one of a number of similar clinics joined as defendants in the litigation. Of the 623 claiming against Transform, some 197 were later identified as having suffered bodily injury from defective PIP implants during the period covered by Travelers insurance. Of the 426 remaining claimants against Transform, all of whose claims fell outside the cover provided by Travelers insurance, some 194 (labelled in the proceedings the worried well) had not yet suffered bodily injury from a rupture of their implants, but were exposed to a risk that they would do in the future. The remainder had suffered bodily injury from a rupture of their implants outside the period covered by Travelers insurance. Collectively, the 426 claimants within those two classes have been labelled the uninsured claimants. They are the respondents to this appeal. Product liability cover was provided by Travelers to Transform under standard form policies which, broadly speaking, required Travelers to indemnify Transform in respect of the costs (and costs liability) incurred or arising in proceedings where the claims made fell within the cover provided and, in relation to such claims, conferred upon Travelers the right to control the conduct thereof on behalf of Transform. Further, Transform was prohibited from making admissions or offers to settle in relation to claims falling within the cover provided by the policies, without Travelers consent. Transform was required to give Travelers all information and assistance which it might require in connection with any such claim. The 1,000 claimants pursued their claims arising out of allegedly defective PIP implants pursuant to a GLO made on 17 April 2012 by Wyn Williams J. The litigation was case managed by Thirlwall J (later LJ) at all material times after October 2012. As is reflected in para 5 of the GLO, it was appreciated from the outset that the claims were likely to give rise to common or related issues of fact and law. Paragraph 12 of the GLO made provision for sharing of common costs (that is all costs other than those which are purely personal to each claimant), on the basis of dividing common costs by the number of claimants pursuing their claims, and for each partys liability for, and entitlement to recover, costs to be several and not joint. By case management orders made in 2013 Thirlwall J identified two common issues for early determination and selected four test claims to be fast tracked for the purposes of their early determination ahead of the remainder, which were all stayed. In order to preserve the anonymity of the claimants I shall refer to them as claims A to D. Transform was the defendant clinic in all four of them. Claims A and B were made by two of the 197 claimants against Transform whose claims fell within the cover provided by the Travelers policies (insured claimants). Claims C and D were by uninsured claimants. Claim C asserted bodily injury falling outside the period of insurance. Claim D was by a worried well claimant. The selection of the test cases was not made by reference to any understanding on the part of the court, or the claimants, about the extent and terms of Transforms product liability insurance from Travelers. It was, therefore, mere happenstance that two of the test claims were insured, and two uninsured. Furthermore, the costs liability and entitlement arising from the litigation of the common issues in the four test claims was itself shared among all 1,000 claimants and, in particular, all 623 claimants against Transform, on a several only basis pursuant to the GLO. Transform had obtained the PIP breast implants supplied to its customers from a company called Cloverleaf Products Ltd (Cloverleaf), against which Transform made a Part 20 claim for an indemnity for any liability of its own to the claimants. Cloverleaf was itself insured by Amlin Corporate Solutions Ltd (Amlin) which provided cover to Cloverleaf in respect of the period 2004 to 2007, for which Transform was itself uninsured. The claimants legal team had from an early stage in the litigation been understandably concerned to discover, if they could, the nature and extent of Transforms insurance cover, all the more so when in about mid 2013 they became aware that Transform might be in financial difficulties. Inconclusive discussions took place between the claimants legal team, the solicitors jointly retained by Transform and Travelers to conduct Transforms defence, and between Transform, Travelers and those solicitors, about what if any disclosure might voluntarily be made. Eventually the claimants made an application against Transform for disclosure of information about its insurance position in July 2013, which was heard by Thirlwall J in late September and dismissed (subject to one exception) in her reserved judgment on 22 November 2013: [2013] EWHC 3643 (QB). The exception was that she directed Transform to inform her, confidentially, as to whether it had the resources to fund its own defence up until trial. In the event however, the relevant limitations upon Transforms cover from Travelers, namely the temporal limits and the exclusion of worried well claims, were voluntarily disclosed to the claimants by June 2014. It was by then apparent that, without insurance, Transform would be unlikely to have the resources to pay compensation or costs to successful uninsured claimants. The judge was later to find that, had the claimants solicitors known from the outset about those limits on Transforms insurance cover, the uninsured claimants would not have commenced or at least continued their claims as registered members of the claimants group under the GLO. But by June 2014 they had on a several only basis participated in the cost of the prosecution of the common issues in the four test cases, upon which considerable outlay had been expended, including on the obtaining of vital expert evidence probative of the deficiencies in the quality of the PIP implants. They had done so on the basis of no win no fee contingency fee agreements, backed by after the event (ATE) insurance so that, although to that extent protected in their own pockets, the substantial recoveries (including success fees and ATE premium) which might be expected to be made after a successful claim against an insured defendant were threatened with being frustrated if the uninsured claimants only recourse lay against the financially distressed Transform (which, incidentally, went into insolvent administration a year later). It might be asked therefore why, after the disclosure of the limitations on Transforms insurance cover was made in June 2014, the uninsured claimants against Transform continued as members of the GLO, or the group as a whole continued to pursue the uninsured test claims C and D. The answer, as was expressly confirmed by Mr Hugh Preston QC on behalf of the respondents in response to an inquiry from the court during the hearing of this appeal, was that an important (although not sole) reason why they did so was in the hope of obtaining a non party costs order against Travelers in due course, if successful in their claims against Transform. Travelers was in the meantime funding the whole of Transforms defence costs, consisting mainly of the costs of defending all four sample claims in relation to the common issues, notwithstanding that claims C and D were uninsured. This is because, in relation to issues common to insured and uninsured claims, it is settled law that insurers may not seek to apportion their contractual liability to pay defence costs: see New Zealand Forest Products Ltd v New Zealand Insurance Co Ltd [1997] 1 WLR 1237 (PC) approved by this court in International Energy Group Ltd v Zurich Assurance plc UK Branch [2016] AC 509, paras 36 38. That much is common ground. In July 2014 Transform sought and obtained Travelers consent to the making of a drop hands offer to the worried well claimants. It does not appear that such an offer was made and, when Transform sought consent to do so again in January 2015, consent was not given. The judge also found (but it is not clear precisely when this occurred) that Transform sought consent from Travelers to make an admission of liability to the uninsured claimants, and that consent for this was not forthcoming either. Meanwhile, an attempt to settle the litigation against Transform by mediation was attempted but without success in August 2014, mainly because Cloverleaf and Amlin declined to participate. In September 2014 the trial of the sample claims listed for October 2014 was adjourned, so as to enable a coverage dispute to be resolved between Transform and Travelers. That was settled in April 2015 and a settlement of all the insured claims against Transform resolved at a mediation in June 2015 in which Cloverleaf and Amlin did participate. Transform was by then in administration and, being fully insured in relation to those claims, the administrators took no active part in the mediation. Final agreement was reached in August 2015, including sample cases A and B, leaving only the uninsured claims outstanding. At that point Travelers obligation to fund defence costs ceased. The remaining uninsured sample claims C and D were eventually determined in May 2016, by an award of summary judgment. By then, all the other uninsured claimants against Transform had obtained default judgment, in March 2016. The section 51 Applications Notice that a section 51 application would be made against Travelers was communicated to Travelers before the uninsured claimants obtained summary judgment against Transform, as described above. It was heard by Thirlwall LJ in October 2016 and determined in an admirably concise reserved judgment handed down on 24 February 2017: [2017] EWHC 287 (QB). The judge reminded herself of the leading general authorities on non party costs orders, to which reference will be made below. She referred only to one first instance case about non party cost orders against insurers, namely Citibank NA v Excess Insurance Co Ltd [1999] 1 Lloyds Rep IR 122, although she noted that it had been followed in later cases. But she distinguished that line of authority on the basis that, uniquely in the case before her, the insurers had participated in the defence of wholly uninsured claims. She therefore directed herself by reference to the general principles relating to non party costs orders namely: (1) whether the case was exceptional and (2) whether the making of an order would accord with fairness and justice. Her decision to make a non party costs order against Travelers was, in summary, motivated by the following analysis. First, she took the view that the uninsured claims were entirely separate and distinct from the insured claims, so that Travelers had no business involving itself in the uninsured claims at all, either directly or through jointly retained solicitors. Secondly, she was powerfully influenced by her conclusion (which is not open to challenge in this court, having been affirmed by the Court of Appeal) that if early disclosure of the limitations on Travelers insurance had been made, the uninsured claimants would not have pursued their claims, so that the costs which they then incurred on a several only basis under the terms of the GLO for which they had no effective recourse, outside section 51, against anyone, would not have been incurred at all. She concluded that the decision not to make early disclosure had been, at least, influenced by a perception on the part of the jointly retained solicitors that non disclosure would serve Travelers rather than Transforms interests, and that the conflict in that regard had been overlooked. Thirdly, the judge was clearly much affected by her perception that there was an asymmetry or lack of reciprocity in costs risk as between the uninsured claimants and Travelers. If the uninsured claims were successfully defended (at Travelers expense) then Travelers would have a full costs recovery against, inter alia, the uninsured claimants for their several shares of that liability. By contrast, if the uninsured claimants were successful against Transform, they would have no recourse at all against Travelers for their costs and, because of Transforms financial plight, no effective recourse against Transform either. Looking at it from Travelers perspective, the presence of the uninsured claimants within the GLO reduced their costs exposure of failure on the common issues by reference to the number of the uninsured claimants against Transform expressed as a fraction of all the claimants against Transform, whereas Travelers would suffer no corresponding reduction in their costs recovery if successful. By contrast, if only insured claimants had proceeded against Transform, Travelers costs risk would have been for the whole of the common costs, and there would have been reciprocity. Finally, the judge regarded Travelers participation in questions about whether to make offers of settlement or admissions to the uninsured claimants as further factors strongly supportive of a conclusion that Travelers had participated in the uninsured claims to an extent sufficient to incur a non party costs liability. The Court of Appeal (Patten and Lewison LJJ) reached the same conclusion as the judge, but for slightly different reasons: [2018] EWCA Civ 1099. They thought that the judge went too far in her conclusion that the uninsured claims had nothing whatsoever to do with the insured claims, because the same common issues arose in both, and Travelers were obliged under the policies (and the general law) to fund the defence of Transforms position in relation to those common issues in all four test cases. They were, if anything, even more powerfully affected by the asymmetry or lack of reciprocity as between the uninsured claimants and Travelers in relation to costs risk. Having described that lack of reciprocity as leading to the fortuitous result that Travelers escaped liability for approximately 68% of the costs of the common issues Lewison LJ continued, at para 12: My instinctive reaction is that this result accords neither with reason nor justice given the probably unique circumstances of this case. He noted that the editors of Colinvaux and Merkin on Insurance Contract Law reached a similar conclusion, namely that reciprocity was appropriate (see para 17). The Court of Appeal broadly upheld the judges factual analysis of the circumstances in which disclosure of Transforms insurance cover was delayed, and its consequences, and (not without hesitation) her conclusion that Travelers should bear responsibility for what she had regarded as the flawed advice given by the jointly retained solicitors, mindless of the underlying conflict of interest between Travelers, which stood to gain from the addition of uninsured claimants, and Transform, which stood to lose from it. But it is clear that the Court of Appeal regarded the reciprocity point as decisive, both because it made the present case exceptional and because it pointed the way to a non party costs order against Travelers as achieving a just result: see para 45, and its reference back to para 32. In conclusion, after an analysis of the cases (referred to below) about non party costs orders against insurers, the Court of Appeal concluded, at para 46, that the judge had been entirely correct to treat the question as depending upon the twin issues of exceptionality and justice, rather than upon any particular principles applicable to non party costs orders against insurers. The Law Section 51 of the Senior Courts Act 1981 (previously known as the Supreme Court Act) provides as follows: (1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in (a) (b) (ba) (c) the civil division of the Court of Appeal; the High Court; the family court; and the county court, shall be in the discretion of the court. (2) Without prejudice to any general power to make rules of court, such rules may make provision for regulating matters relating to the costs of those proceedings including, in particular, prescribing scales of costs to be paid to legal or other representatives or for securing that the amount awarded to a party in respect of the costs to be paid by him to such representatives is not limited to what would have been payable by him to them if he had not been awarded costs. (3) The court shall have full power to determine by whom and to what extent the costs are to be paid This formulation amends the original language of section 51(1), which was as follows: Subject to the provisions of this or any other Act and to rules of court, the costs of and incidental to all proceedings in the civil division of the Court of Appeal and in the High Court, including the administration of estates and trusts, shall be in the discretion of the court, and the court shall have full power to determine by whom and to what extent the costs are to be paid. It is not suggested that the change of language affects the issues arising in this appeal in any way. It was not initially appreciated that the jurisdiction to determine by whom costs are to be paid (first conferred in those words by section 5 of the Supreme Court of Judicature Act 1890) enabled the court to make costs orders against non parties at all. That was the issue decided in the affirmative by the Aidan Shipping case in 1986, reversing long standing authority consisting of decisions of the Court of Appeal to the contrary in 1901 and 1958. Lord Goffs recognition in that case that it was for the Rules Committee to regulate the exercise of this broad jurisdiction if it thought fit has not been reflected in any rules or practice directions relevant to this appeal. Rather the task of formulating principles for the discretionary exercise of this jurisdiction has fallen to the courts. It is evident (from p 981B in the Aidan Shipping case), and obviously right, that it is a pre requisite for the making of a costs order against a non party that the person sought to be made liable has some relevant connection with the proceedings in question. But the passage of time, and the endless development of novel ways of funding the ever increasing cost of civil litigation, has shown that non parties may become connected with proceedings in a wide variety of ways, usually providing funding and/or exercising some degree of control or providing assistance. They range from the pure funder who contributes to a litigation fund out of sympathy or charity, with no financial or other interest in the outcome, through the company shareholder who funds the companys litigation to preserve the value of his shareholding, or the director who controls the conduct of the litigation pursuant to a fiduciary duty to the company, to the speculator who buys into a piece of litigation with a view to making a profit from a share in the damages recovered. Liability insurers occupy a particular, well populated, space on that broad spectrum. It is therefore not surprising that the appellate courts have struggled to identify principles applicable across the board to the exercise of the jurisdiction to make a costs order against a non party, save at the very highest level of generality, although some attempt has been made, for example by Lord Brown of Eaton under Heywood giving the opinion of the Judicial Committee of the Privy Council in Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 WLR 2807, paras 25 29, approved as an authoritative statement of English law by the Court of Appeal in Deutsche Bank AG v Sebastian Holdings Inc [2016] 4 WLR 17, para 62. But neither was a case about insurers, and the conduct of the non party relied upon in the Dymocks case for the making against it of a costs order consisted in the main of self interested funding rather than, as here, conduct of the relevant litigation. An earlier attempt to lay down general principles had been made by the Court of Appeal in Symphony Group Plc v Hodgson [1994] QB 179, but that was not an insurance case either. The ratio of that case was that a section 51 non party costs application should not be used as a substitute for the pursuit of a related cause of action against the non party in ordinary proceedings. Beyond that, the particular statements of principle there enunciated have no relevance to this appeal. It is not the purpose of this judgment comprehensively to reassess those generally applicable principles. It may be (and I am reluctantly prepared to assume but without deciding) that they really are limited, as the Court of Appeal thought in the present case, to the twin considerations of exceptionality and justice. The same general conclusion is to be found in the Deutsche Bank case. That said, I share all Lord Reeds concerns as to the lack of content, principle or precision in the concept of exceptionality as a useful test. Rather, this is an occasion to consider, in more granular detail, the principles which ought to apply to that distinct part of the broad spectrum of non parties occupied by liability insurers. While doing so it will be appropriate to make some brief observations about the impact of those general principles in the liability insurance context, and in particular about the role played by the presence or absence of a causative link between the conduct of the non party relied upon and the costs which the applicants incurred which they seek to recover against the non party under section 51. Liability insurance serves an obvious public interest. It protects those incurring liability from financial ruin. More importantly, it serves to minimise the risk that persons injured by the insured will go uncompensated as a result of the insureds lack of means. Unlike ATE insurance it is not primarily aimed at making a profit by assisting in the funding of litigation but, where liability becomes the subject of litigation, the insurance typically contains provision under which the insurer is obliged to fund the insureds defence and, as an inevitable concomitant, entitled to exercise substantial (although not always complete) control over the conduct of its insureds defence. The liability insurer is therefore typically an involuntary rather than voluntary funder of litigation, and the control which the insurer habitually exercises over the conduct of its insureds defence arises from a pre existing contractual entitlement, rather than from a freely made decision to intermeddle. Where a liability for which the insurance policy provides cover becomes the subject of litigation, there are long settled principles of insurance law which, in addition to the contractual terms of the policy itself, serve to regulate the proper participation of the insurer in the funding and, in particular, conduct and control of the insureds case. They long pre date the recognition of the non party costs jurisdiction. They were summarised by Sir Wilfred Greene MR in Groom v Crocker [1939] 1 KB 194, 203, as follows: The right given to the insurers is to have control of proceedings in which they and the assured have a common interest the assured because he is the defendant and the insurers because they are contractually bound to indemnify him. Each is interested in seeing that any judgment to be recovered against the assured shall be for as small a sum as possible. It is the assured upon whom the burden of the judgment will fall if the insurers are insolvent. The effect of the provisions in question is, I think, to give to the insurers the right to decide upon the proper tactics to pursue in the conduct of the action, provided that they do so in what they bona fide consider to be the common interest of themselves and their assured. But the insurers are in my opinion clearly not entitled to allow their judgment as to the best tactics to pursue to be influenced by the desire to obtain for themselves some advantage altogether outside the litigation in question with which the assured has no concern. The combination of the clear public interest in the provision of liability insurance and the fact that, within the above confines of contractual propriety, an insurer commits itself to the funding and control of its insureds litigation long before the dispute in question is even known about, provides a firm basis for concluding that (in the absence of engagement by the Rules Committee) the appellate courts ought to be as clear and detailed as they properly can in setting out the principles applicable to the incurring of non party costs liability by insurers. It would be unsatisfactory if the insurers exposure to that liability, ex hypothesi lying outside the confines of the policy, were to depend purely upon the uncontrolled perception of a particular judge about the general justice of the matter, controlled only by a requirement to show exceptionality, in the general sense that the case in which the question has arisen is unusual, measured against the general run of civil litigation. Cases in which any question of the non party liability of the liability insurer under section 51 arises may be said, almost by definition, to be unusual. This is because, in the vanilla case of a single claim within the scope of the cover provided by the policy, the insurer will be contractually liable to the insured to indemnify it in respect of its costs liability to the successful claimant, who will make a full costs recovery by that indirect route, if necessary (where the insured is insolvent) with the assistance provided by the Third Parties (Rights against Insurers) Act 2010, replacing the earlier Act of the same name in 1930 (the 1930 Act). To treat every case as exceptional where, for any reason, the claimant lacks that indirect means of costs recovery exposes the liability insurer to the unpredictable outcome of the judges perception of justice in every case where a section 51 application is likely to need to be made. The court should therefore be disposed to identify within the requirement for exceptionality something much more focussed than that the facts of the particular case are unusual. Prior to the present case, the reported decisions about non party costs applications against liability insurers do disclose a sustained attempt to provide some measure of guiding principle for the exercise of this wide jurisdiction. In TGA Chapman Ltd v Christopher [1998] 1 WLR 12 the section 51 application was made because the cover was limited under the defendants liability policy and insufficient to pay all the damages, let alone any part of the costs, and the defendant was not worth powder and shot. Nonetheless the claim fell squarely within the cover provided by the policy. It was, in the argot of the present case, an insured claim, and could have been pursued (subject to the limit of cover) directly against the insurer under the 1930 Act if the insurer had not put the defendant in funds (up to the policy limit) with which to settle it. Drawing upon general principles about the section 51 jurisdiction Phillips LJ identified two separate bases upon which a liability insurer might become exposed to non party costs liability. The first basis (by no means limited to insurers) may be labelled intermeddling. Repeating dicta of his own in Murphy v Young & Cos Brewery Plc [1997] 1 WLR 1591, 1601, he said at p 16: In Giles v Thompson [1994] 1 AC 142, 164 Lord Mustill suggested that the current test of maintenance should ask the question whether: there is wanton and officious intermeddling with the disputes of others in which the meddler has no interest whatever, and where the assistance he renders to one or the other party is without justification or excuse. Where such a test is satisfied, I would expect the court to be receptive to an application under section 51 that the meddler pay any costs attributable to his intermeddling. The second, which may be labelled the real defendant test, arose from the combination of the insurers interest in the outcome of the proceedings, its contractual obligation to indemnify the defendant for its costs liability and its exercise of control over the conduct of the defence. In a case where there was no limit of cover which excluded such a contractual obligation in relation to costs he regarded a section 51 order as a convenient time and cost saving short cut to recovery against the insurer of an insolvent defendant under the 1930 Act. He regarded a case where a limit of cover excluded the insurers contractual liability for costs, as it did in that case, as a more complex example of the second type, calling for a more nuanced approach. The claimant company relied upon five features of the case which justified a section 51 order, namely that: (1) the insurers determined that the claim would be fought; (2) the insurers funded the defence of the claim; (3) the insurers had the conduct of the litigation; (4) the insurers fought the claim exclusively to defend their own interests; (5) the defence failed in its entirety. The Court of Appeal agreed. Much the most important consideration, for both purposes, was that the claim had been funded and defended by the insurers purely in their own interests, regardless of the interests of the assured defendant, who had been entirely without means from start to finish, and who would have been content to settle the case at the outset rather than contest it. The insurers were regarded as the real defendants in all but name. In passing Phillips LJ rejected the submission that exceptionality was to be measured by comparison with other insurance cases rather than the generality of cases, and the argument that an insurer who stayed within the bounds of his rights and obligations under the policy should never be exposed to liability beyond the limit of cover by means of a section 51 application. In Citibank NA v Excess Insurance Co Ltd [1999] Lloyds Rep IR 122, the section 51 application was prompted by the reporting of the Chapman case, and decided by Thomas J (as he then was) specifically upon the basis that the continued defence of the quantum of the claim after judgment on liability had been conducted by the insurers solely in their own interests, after the insureds interest in protecting its reputation had been terminated by the adverse judgment on liability. It was another case in which the claim fell within the cover, but the policy limit left the insureds costs liability uninsured. Thomas J said, at p 131: The decision in Chapman has laid down clear principles that a court can apply. If the circumstances are such that the application for a costs order falls within those principles, then it should follow that there should be a costs order under section 51; if they do not, they should not. To my mind, the principles have been formulated in such a way that the cases that fall within them will be exceptional across the spectrum of litigation and thus the primary approach of the court should be to consider whether the principles set out have been satisfied. The principles to which Thomas J was particularly referring are those features of the Chapman case numbered (1), (3) and (4) in the above summary: namely that the insurers decided that the claim should be fought, conducted the defence, and did so motivated entirely by their own interests. They have since come to be known (and were referred to in submissions during this appeal) as the Chapman principles. Cormack v Excess Insurance Co Ltd [2002] Lloyds Rep IR 398 was another case in which a limit of cover triggered the section 51 application. It turned on the proper application of the fourth Chapman principle. The insurers had conducted the litigation for the defendant under a professional indemnity policy, without objection from the defendant, and the outcome was an award of damages and costs which left part of the costs outside the limit of cover. The judge decided that the insurers had not conducted the litigation solely in their own interests, and that the defendant had, throughout, an interest in defending its reputation. Further the insurers conduct of the case had not been the cause of the claimant incurring costs in excess of the limit of cover. He therefore refused the application, for both those reasons. Dismissing the appeal, the Court of Appeal endorsed the judges analysis that the question whether a limit of cover case of this type was exceptional for the purposes of section 51 was likely to depend critically upon the extent of the insurers self motivation in its conduct of the defence, although this was not to be regarded as an invariable rule. Giving the leading judgment, Auld LJ treated the passage in Groom v Crocker (cited above) as setting the bench mark. Insurers who strayed beyond an appropriate balance, as identified by Groom v Crocker, in allowing their interests to predominate over those of the insured might be found to have acted exceptionally, so as to attract the section 51 jurisdiction to make a non party costs order against them. He said that it followed from the Chapman case that this is what could turn an insurer for all practical purposes into the real defendant. In passing the Court of Appeal warned against treating non disclosure of cover as exceptional, because there was no duty to do so, and disclosure might damage the insurers legitimate interests. Finally the Court of Appeal firmly endorsed the need for the applicant to demonstrate that the relevant conduct of the insurer (or some part of it) caused the claimant to incur the costs sought to be recovered from the insurer under section 51. Auld LJ said that the causation question went to the satisfaction (or otherwise) of the exceptionality requirement. Palmer v Palmer [2008] Lloyds Rep IR 535 was essentially an application of the fourth Chapman principle, as interpreted in the Cormack case. The judge had concluded that the insurers conduct of an unsuccessful defence was sufficiently self motivated to make it the real defendant in all but name, and the Court of Appeal dismissed the appeal. It adds nothing beyond repetition to the development of the relevant principles. Nor does Legg v Sterte Garage Ltd [2016] Lloyds Rep IR 390. It was not a limit of cover case, because the policy required the insurers to indemnify the insured defendants costs liability without monetary limit. Further the claimants were entitled to pursue their costs claim in full against the insurers under the 1930 Act. The section 51 issues arose from the fact that the claimants put their nuisance and Rylands v Fletcher pollution claim on two alternative grounds, single escape of fuel and (by a later amendment) long term leakage, when the relevant policy only provided cover against the former. The insurers abandoned the defence when they (mistakenly) thought that the covered basis of claim had been abandoned, but the claimants then secured default judgment on the basis of both. The judge held, and the Court of Appeal agreed, that the insurers had defended the claims solely or predominantly in their own interests, because they were concerned not to defend the insured from all liability, but only from liability for the head of claim covered by the policy, and the insured had no commercial or reputational reason to defend the claim. The Legg case was therefore a conventional application of the fourth Chapman principle, as interpreted in the Cormack case. In the present case the judge appears to have been persuaded that the Chapman principles, which she identified by reference to the Citibank case, were of limited assistance, because the problem facing her was conceptually different from a limit of cover case about an otherwise insured claim. Her approach was rather to examine whether Travelers became involved in the litigation of the uninsured claims which, in her view, had nothing to do with the insured claims or, therefore, with Travelers, who therefore had no business to become involved in them at all. Although she did not say so in terms, she clearly regarded the question whether Travelers should be liable for the uninsured claimants costs as turning upon whether Travelers intermeddled in those claims. She therefore concentrated her analysis of what she called the exceptionality question upon the conduct of the insurers. She was properly alert to the question of causation, and therefore took the trouble to examine whether the non disclosure of the relevant limits of the cover was a cause of the incurring of costs by the uninsured claimants, concluding that it was. For its part the Court of Appeal conducted a review of the Chapman line of cases, concluding that they did not seek to lay down rigid rules, before concluding that exceptionality was established by the unusual nature of the circumstances, in particular the asymmetry or lack of reciprocity between Travelers and the uninsured claimants, rather than by any departure on the part of the insurers from the normal boundaries of conduct summarised in Groom v Crocker, and treated as a useful bench mark in the Cormack case. Analysis The Chapman principles The main thrust of Travelers case is that the decisions of the courts below, for different reasons, wrongly departed from the Chapman principles, thereby exposing insurers to unexpected and unforeseeable liability for costs as a non party in excess of their obligations under the relevant policies, where their own conduct did not depart from the acceptable norm in a way that could properly be described as exceptional, and that the supposed asymmetry or lack of reciprocity as to costs risk between them and the uninsured claimants was neither exceptional in the relevant sense, nor a good reason why an order under section 51 was a just solution. More specifically they say that the reliance of the courts below upon the non disclosure of the policy cover was contrary to principle, and that the other respects in which the judge found that Travelers had overstepped the proper boundaries had no causative consequences in either causing or increasing the uninsured claimants expenditure of costs. Travelers also sought to mount a detailed attack on the judges findings of fact, although they were confirmed by the Court of Appeal. This court would not have considered it appropriate to entertain this part of the appeal (although it was not actively pursued in oral submissions) but, for reasons which will appear, it has been unnecessary to do so in any event. For their part the uninsured claimants say that the judge was right to treat the insured and uninsured claims as completely separate, that the judge was therefore correct to regard any significant involvement by Travelers in the conduct of the defence of the uninsured claims as conduct stepping across the boundary into the exceptional, and that the lack of reciprocity was, on its own, sufficient to justify an order under section 51. In my view the courts in the Chapman line of cases were right to seek to identify clear and reasonably detailed principles, by way of guidelines rather than rigid rules, sufficient to enable liability insurers to know in advance what kind of conduct would, and what would not, be likely to attract non party liability for the costs of successful claimants against their insured defendants, in excess of any relevant policy limits. It may be that Thomas J went a little too far towards elevating the Chapman principles into rigid conditions rather than guidelines, turning what was designed to be a good servant into a poor master. But the underlying perception that a loose requirement for exceptionality was an insufficient protection from exposure to a particular judges after the event perception of the just result was correct, essentially for the public policy reasons identified in para 32 above. I also consider that the two bases under which an insurer might become liable to a non party costs order identified in the Chapman case, namely by intermeddling or becoming the real defendant, do represent a principled approach to the engagement of this jurisdiction against liability insurers, which is much preferable to the quest for factors which may satisfy an elusive concept of exceptionality. Where the claim itself falls within the scope of the insurance, whether or not subject to limits of cover, the real defendant test will usually be the appropriate one to apply. Furthermore the underlying purpose of the Chapman principles, namely to identify in a limit of cover situation the cases where an insurer has become the real defendant in all but name is also correct. As Lord Reed demonstrates, this has been the animating principle behind the jurisdiction of the Scottish courts to make costs orders against non parties for far longer than the parallel jurisdiction has been recognised in England and Wales, at least following the Judicature Acts. The Chapman line of cases make it clear that this is what the principles which they enunciate are designed to reveal. But I am not satisfied that the Chapman principles really assist in relation to a case, such as the present, where the costs sought to be recovered against the insurer arise in the successful conduct against the insured defendant of a claim which lies outside the scope of the cover provided by the insurer: ie an uninsured claim. In such a case it is the intermeddling principle which falls to be applied. This is a principle derived from the English law about maintenance and champerty, as Phillips LJ acknowledged in the Chapman case, and which has no equivalent in Scotland, as Lord Reed explains. Its starting assumption is that non parties usually, although not invariably, have no legitimate interest in becoming involved in the litigation of others. It does not render involvement of any kind objectionable, but only involvement which is (in old fashioned language) wanton and officious, for which the non party cannot demonstrate some justification or excuse. This basis for the costs liability of the non party does not necessarily depend upon showing that it has taken control of the litigation, or done anything approaching becoming the real defendant in it. Nor is there any fixed benchmark which will establish whether involvement has become a form of intermeddling. In every case the nature and extent of the non partys involvement will have to be measured against the alleged justification or excuse for it. In sharp contrast with the real defendant test, the question whether the non party has become involved under a framework of contractual obligation is likely to be of primary relevance. It may even be decisive against liability, especially where the relevant contract is of a type which is recognised and supported by public policy, such as liability insurance. If the non party has not gone beyond the confines of those contractual obligations and attendant rights in framing its involvement, as explained in Groom v Crocker, liability as an intermeddler may be very hard to establish. The key feature of the present case is that every one of the successful claims for which the claimants seek a non party costs order is wholly uninsured. The uninsured claimants can have had no real expectation, if successful, of being paid their costs by the insurers, unless those costs were incurred as a result of some unjustified intervention in their claims by the insurers. This is sufficient on its own to take them out of the proper ambit of the Chapman principles, and to make it necessary to ask whether Travelers involvement in the defence of the uninsured claims amounted to intermeddling. The question is not whether Travelers became the real defendant in each of them, but whether its level of involvement in them was justified and, even if not, whether it caused the incurring by the claimants of the relevant costs. The present case is of course further complicated by the facts that the uninsured claims against Transform were brought in a group action alongside a smaller number of insured claims by different claimants against Transform, together with further claims (whether insured or uninsured) by yet further claimants against other defendants, all raising similar issues to be tried by reference to test cases, with the claimants contributing to, and liable for, costs on a several only basis. It is out of these additional facts (coupled with Transforms insolvency) that the asymmetry or lack of reciprocity in costs risk arose. Asymmetry Lack of Reciprocity This factor, which so deeply affected the courts below, may be summarised by saying that it describes a situation where one side faces having to pay the other sides costs if it loses, but the other side faces no such risk if it loses. Put the other way round, one side gets its costs if it wins, but not the other side if it wins. While it may be said that there is usually symmetry or reciprocity as to costs risk in ordinary civil litigation between solvent opponents, there are numerous situations where this is not so. The opponent may be legally aided. The claimant may have the benefit of Qualified One way Costs Shifting (QOCS). Sometimes the court makes special orders limiting the costs exposure of one side only, for example under the Aarhus Convention. As in the present case, one side may be uninsured and be or become insolvent. In the latter situation there is theoretical reciprocal liability between the parties, but asymmetry in practicable recovery, and therefore risk. The risk of asymmetry when claiming against a defendant of unknown means is aggravated by any uncertainty whether the defendant is adequately insured, and the law does not generally, and did not in this case, enable the claimants against Transform to obtain disclosure of the terms of its insurance cover. Whether that should be the law is not the subject of this appeal. In the present case every one of the claimants against Transform began their claims without knowing whether they were covered by insurance, and continued them in face of increasingly depressing evidence about Transforms impending insolvency. They all took the risk of asymmetric costs exposure and, for a majority of them, namely the respondents, that risk came to pass, as was revealed when Transform voluntarily disclosed the limits of its insurance cover in June 2014, followed by Transform going into insolvent administration in 2015. By contrast the lucky minority made a satisfactory costs recovery, funded by Travelers, when their cases were settled after mediation in August 2015. In my view the reliance placed by the courts below on asymmetry or lack of reciprocity as a factor tending to justify a section 51 order against Travelers was misplaced. My reasons follow. First, leaving aside the incurring of costs by the uninsured claimants, the asymmetry in risk was not itself in any sense the result of any aspect of the intervention in, or conduct of, the defence of the uninsured claims by Travelers. It arose from the combination of the facts that Transform was insolvent, had insurance for only some of the claims, excluding those of the respondents, and that the claimants liability for and therefore entitlement to costs was several only, and extended to the prosecution of the common issues in the test cases. They chose, no doubt for good reason, to undertake that several only costs burden regardless whether their claims were insured, taking the risk that they would not recover their outlay if they were not, even if successful. One consequence of the several only costs liability of each of the claimants is that the costs position of each of the claimants needs to be looked at separately. This is so notwithstanding the fact that, behind the scenes, the claimants may have used common solicitors, CFAs and ATE insurance in a way which greatly modified both their personal costs exposure, and the entitlement of the common solicitors to make a satisfactory costs recovery. Looked at separately, each claimant had either an insured or an uninsured claim against a common insolvent defendant, with all the consequences in terms of reciprocity which that entailed. Non disclosure of Cover The only sense in which anything done or not done by Travelers may be said to have contributed to that asymmetric outcome for the uninsured claimants was that the solicitors jointly instructed by Travelers and Transform played an advisory role in Transforms decision not to disclose the limits of its insurance cover earlier, when the uninsured claimants might have abandoned their claims, and successfully to resist an order for disclosure in 2013. That advice was given in good faith without a perception by the solicitors that there might be (as the judge held that there was in fact) a conflict between the interests of Transform and Travelers in whether to make that disclosure. Still less was the advice motivated in fact by a desire to dilute Travelers costs risk in the defence of the common issues. It was not in any recognisable sense an inappropriate intervention by Travelers in the defence of the uninsured claims, as distinct from the insured claims. The advice was given in relation to the claims against Transform as a whole and was plainly part of the conduct of the defence to the insured claims which Travelers was entitled to control (in the Groom v Crocker sense) just as much as it was part of the conduct of the defence of the uninsured claims. Of course Transform, Travelers and their jointly instructed solicitors knew that the Worried Well claimants claims were not insured, nor were claimants claims falling outside the insurance policy periods, but disclosure could not practicably have been made to the uninsured claimants alone, since all the claimants were represented by common solicitors. Both the judge and (but with less assurance) the Court of Appeal regarded it as right for Travelers to have to take responsibility for that advice. Whether or not that is so, it was advice which fairly reflected Travelers rights as insurer, as was in due course confirmed by the judge, and noted as something not properly contributory to the making of a section 51 order in the Cormack case. It was not conduct which amounted to unjustified intermeddling in the uninsured claims for the purposes of section 51. Causation I have noted above how firmly the Court of Appeal in the Cormack case endorsed the requirement for an applicant under section 51 to demonstrate a causative link between the incurring of the costs sought to be recovered from the non party and some part of the conduct of the non party alleged to attract the section 51 jurisdiction. That requirement is in my view rightly imposed. Auld LJ regarded it as part of the exceptionality requirement. It could equally be seen as going to the justice, or otherwise, of making the order. If the costs would still have been incurred if the non party had not conducted itself in the relevant manner, why should it be just to visit the non party with liability for them? The causation requirement was not the subject of challenge on this appeal. It does not appear to have featured in the other Chapman cases, but their facts suggest that the relevant costs ordered to be paid would not have been incurred, but for the exceptional conduct relied upon. In cases such as the present, where it is the intermeddling test rather than the real defendant test which falls to be applied, the formulation of that test by Phillips LJ in the passage in the Chapman case quoted above clearly incorporates a need to demonstrate causation, since it is the costs attributable to the intermeddling that the meddler is ordered to pay. The judge found that there was a causative link between the non disclosure of the limits of the cover and the incurring of costs by the uninsured claimants. But for the reasons already given the non disclosure was not itself conduct by Travelers in relation to the uninsured claims which falls within the necessary requirement for unjustified intermeddling. It remains to consider whether the other aspects of Travelers conduct in relation to the uninsured claims amounted to unjustified intermeddling and, if so, whether it had any causative consequence in relation to the incurring of costs by the uninsured claimants. The relationship between the insured and uninsured claims The starting point is that the Court of Appeal was right to depart from the judges view that the uninsured claims were totally separate from the insured claims, so that they were no business of Travelers at all. On the contrary, all the claims, insured and uninsured, were being pursued together within a single group action, by common solicitors. All the claims raised common issues which were ordered to be tried together by way of sample test claims. Although there were several defendant clinics, all the test cases were against Transform and, as already noted, it was mere happenstance that two of them (A and B) were insured and two (C and D) uninsured. At the time of the selection of the test claims, the limits of Travelers cover had not been disclosed. Transform were contractually entitled as against Travelers to have the defence of the common issues funded, regardless whether they arose in insured or uninsured claims. Thus Travelers participation in the litigation of the common issues in claims C and D was not unjustified intermeddling in litigation in which Travelers had no legitimate business, but the involuntary engagement which arose from their status as insurers under the policies. Mr Hugh Preston QC for the respondents acknowledged this, up to a point, but submitted that this legitimate role of Travelers in the uninsured claims did not extend to funding the whole of their defence (a point not relied on by the judge) still less to decision making about admissions or offers of settlement (two matters upon which she did rely). While those distinctions may be discernable conceptually, I consider that they are likely to break down in the real world of hostile group litigation, all the more so when, as here, the main issues in the litigation are common to the insured and uninsured claims alike. For example the offer of a drop hands settlement to uninsured claimants might well be taken as a sign of weakness in relation to the merits of the common issues, and therefore a sign of weakness in relation also to the insured claims. Settlement and Admissions Leaving aside non disclosure of the limits of cover, the two aspects of participation by Travelers in the uninsured claims which the judge regarded as crossing the line were involvement in decision making about whether Transform should make a drop hands offer to all the uninsured claimants, or make certain admissions in relation to their claims, in a context where Transform believed, rightly or wrongly, that Travelers consent was required for both, pursuant to the terms of the policies. As noted above, Travelers consented to the making of a drop hands offer to the uninsured claimants in July 2014, but the offer was not then made. Travelers withheld consent in early 2015, and its participation in the decision whether an admission of liability should be made to the uninsured claimants appears also to have occurred some time in 2015, but before the final settlement by agreement of the insured claims, ie at a time when the common liability issues were still live. By 2015 the uninsured claimants knew who they were and had resolved to continue with their claims, notwithstanding the impending insolvency of Transform, in part for the specific purpose of recovering costs already incurred by means of a section 51 application against Travelers. Against that background it is striking that there is no analysis by the judge of the question whether Travelers conduct in relation to settlement or admissions in relation to the uninsured claims had any causative consequence in terms of the expenditure of costs sought to be recovered under section 51. This is in sharp contrast with her careful analysis of causation in relation to the non disclosure of the limits of cover. It cannot be said that (as perhaps in some of the Chapman line of cases), causation was too obvious to need to be mentioned. The Court of Appeal did not appear to place reliance upon this aspect of Travelers conduct, and conducted no causation analysis of its own. It therefore falls to this court to do so, if satisfied that the relevant conduct in relation to the uninsured claims amounts to unjustified intermeddling. That question also needs to be addressed afresh, because of the judges erroneous view that the uninsured claims were entirely separate from the insured claims, such that Travelers had no business being involved in them at all. Had it been necessary to do so I would have concluded that the judge was wrong to regard Travelers involvement in settlement and admissions in relation to the uninsured claims (while the closely related insured claims were still live) as a sufficient crossing of the line to attract a section 51 order, either alone or in combination with any other matters. Contrary to the judges view there were no other relevant matters, because she was (for reasons already given) wrong about non disclosure of the limits of cover. The court should be slow to second guess jointly instructed solicitors where they allow the insurer a role in decision making about claims raising common issues, notwithstanding that some of them, even as here a majority, are uninsured. Although the judge was far better placed as the manager of this litigation than this court to identify the relevant boundaries, her analysis was undermined by her over rigid separation of the insured and uninsured claims into separate camps. I am however content to rest my decision on the absence of any relevant causative link. By 2015 the uninsured claimants were pursuing their claims to a judgment with costs, in part so that they could seek to recover substantial expenditure already incurred by mid 2014 (while ignorant that they were uninsured) by means of a costs order against Travelers under section 51, as Mr Preston acknowledged during the hearing of this appeal. I cannot see how the offer of an admission of liability, still less a drop hands offer (ie with each side paying their own costs) would have dissuaded the uninsured claimants from continuing to incur the cost of obtaining (in the event) default judgment, and summary judgment in relation to test claims C and D, once the insured claims had been settled and Travelers had withdrawn further funding. I would add that there is to my mind at least some element of disingenuity in the respondents stoutly maintaining that, at the relevant time, the uninsured claims had nothing to do with Travelers when they were by then being pursued by the uninsured claimants for the purpose of obtaining a costs order against Travelers in due course. But that reflection was not advanced in the submissions of the appellant, and my decision is in no sense based upon it. Conclusions It may be convenient to draw together the threads of this rather long analysis into some concluding propositions. First, the underlying question, whether the non party has either become the real defendant in relation to an insured claim, or intermeddled in an uninsured claim, is fundamental to the exercise of the section 51 jurisdiction, in insurance cases. It is the conduct of the non party which matters, rather than the mere rarity of the case. Secondly, the Chapman principles are useful guidelines for establishing whether the liability insurer has become the real defendant in all but name, in a case where some part of the claim (including the claim for costs) is or may lie outside the limits of cover, so that the insured has at least a prima facie joint interest with the insurer in the outcome of the litigation. Thirdly , the Chapman principles are not likely to be of assistance where the question is (as here) whether the liability insurers crossed the line in becoming involved in the funding and conduct of the defence of wholly uninsured claims, as opposed to claims where there is limited cover. In such cases the insurer may cross the line by conduct falling well short of total control, and without becoming the real defendant, if the insurer intermeddles in the uninsured claim in a manner which it cannot justify. But, fourthly, where there is a connection between uninsured claims and claims for which the insurer has provided cover, it may well be that the legitimate interests of the insurer will justify some involvement by the insurer in decision making and even funding of the defence of the uninsured claims without exposing the insurer to liability to pay the successful claimants costs. This is just such a case because of the very close connection between insured and uninsured claims, raising common issues to be tried together in test cases in group litigation, and the limited nature of Travelers involvement in the uninsured claims. Fifthly, causation remains an important element in what an applicant under section 51 has to prove, namely a causative link between the particular conduct of the non party relied upon and the incurring by the claimant of the costs sought to be recovered under section 51. If all those costs would have been incurred in any event, it is unlikely that a section 51 order ought to be made. Sixthly, the non disclosure of limits of cover by the defendant at the request of the insurer is unlikely to amount to relevant conduct, for as long as the law continues to make that non disclosure legitimate. Seventhly, asymmetry or lack of reciprocity in costs risk, as between the uninsured claimant and the defendants insurer, is unlikely on its own to be a reason for the making of a non party costs order against the insurer where, as here, the asymmetry arises because a claimant sues an uninsured and insolvent defendant and incurs several only costs liability in group litigation. Applied to this case, those conclusions mean that this appeal should be allowed. This is because, of the three elements of the conduct of Travelers which the judge regarded as crossing the line, the first (non disclosure) was not unjustified intermeddling, although it did cause those costs to be incurred, while the second and third (decision making about offers and admissions), even if amounting to unjustified intermeddling, which I doubt, plainly had no relevant causative consequences. The Court of Appeals alternative route to the judges conclusion, based essentially upon the asymmetry point, was in my view wrong for the reasons already given. LORD REED: I am respectfully in general agreement with the judgment of Lord Briggs, and wish only to make some additional observations directed towards three points. The first is that Lord Briggss conclusion that an award of costs against a non party may be justified where that person is a meddler in the proceedings, or is in substance a party to those proceedings, has historical antecedents in the practice of the English courts. The second is that the real party approach has also been adopted in other comparable jurisdictions. The third is that exceptionality is not in my opinion a necessary pre condition of an award of costs against a non party. Historical antecedents It may be worth explaining at the outset the historical background to the decision of the House of Lords in Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965, where the scope of the discretion conferred by section 51 of the Senior Courts Act 1981, as it is now known, was held to be sufficiently wide to allow costs to be awarded against persons who were not party to the proceedings before the court. Traditionally, costs were dealt with differently at common law and in equity, although it was possible in both types of proceedings for an award to be made against a person who was not a party to the proceedings, as I shall explain. With the fusion of the administration of law and equity under the Judicature Acts, section 16 of the Supreme Court of Judicature Act 1875 provided for rules of court, contained in the First Schedule to that Act, to regulate proceedings in the High Court and the Court of Appeal. Those rules of court contained, in Order LV, a single general provision regulating the award of costs. The rules scheduled to the 1875 Act were repealed by the Statute Law Revision Act 1883, and new rules, referred to as the Rules of the Supreme Court 1883, were made pursuant to section 19 of the Supreme Court of Judicature Act 1881. Order 65, rule 1 of those rules provided that, subject to the provisions of, among other things, the Judicature Acts and the rules of court, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, were within the discretion of the court or judge. In In re Mills Estate; Ex p Comrs of Works and Public Buildings (1886) 34 Ch D 24 it was held by the Court of Appeal that the effect of the Judicature Acts and of Order 65 was not such as to confer any new jurisdiction to award costs, but was merely to regulate the mode in which costs were to be dealt with in cases where the court already had such jurisdiction. Parliament sought to overcome this restrictive interpretation by enacting section 5 of the Supreme Court of Judicature Act 1890, which was the statutory predecessor of section 51(1) of the Senior Courts Act 1981. The language of section 5 of the 1890 Act was, however, itself restrictively interpreted by the Court of Appeal, notably in Forbes Smith v Forbes Smith (1901) P 258 and John Fairfax & Sons Pty Ltd v E C de Witt & Co (Australia) Pty Ltd [1958] 1 QB 323, until the ground breaking decision in Aiden Shipping. Prior to the Judicature Acts, as I have mentioned, costs were dealt with differently at common law and in equity. The general position in common law proceedings was summarised by Blackburn J in Mobbs v Vandenbrande (1864) 33 LJ QB 177,180: In ordinary cases, where there has been no abuse of its process, the court has no jurisdiction to order a person not a party on the record to pay costs. (Emphasis added) In this context, it appears that the concept of an abuse of process was not narrowly confined. That can be seen, for example, in the judgment of Lord Abinger CB in Hayward v Giffard (1838) 4 M and W 194. In that case, the Court of Exchequer refused to make an order for costs against a non party to the action although he was interested in the outcome of the suit. His Lordship said at p 196: If we were at liberty to consult equity and justice, we should probably make this rule absolute. But the authority of the courts at Westminster is derived from the Queens writ, directing them to take cognisance of the suits mentioned in the writs respectively, and thus bringing the parties before them. This being so, they have no power to order any particular individual to come before them at their pleasure. In the present case, if it could have been shewn that Spencer had committed any contempt of Court, or been guilty, in respect of this suit, of anything in the nature of barratry or maintenance, it would have been another matter; but we cannot make any order against an individual who is not party to any suit before us, nor has been guilty of any contempt, but merely because he has an interest in the event of the suit. (Emphasis added) It appears from Lord Abingers reference to anything in the nature of barratry and maintenance that the court could have made an award of costs against a non party who instigated the prosecution of groundless litigation or who intermeddled in proceedings contrary to the laws of maintenance and champerty. There are also a number of examples of awards of costs against non parties which were based on the conclusion that the non party was the real plaintiff or defendant. For example, in Doe dem Masters v Gray (1830) 10 B and C 615, an order for costs was made in an action of ejectment against a parish council which had put a pauper into possession of the premises in question. Lord Tenterden CJ said at p 616: In ejectment we can make the real party to the suit pay the costs. Actions of ejectment could be regarded at that time as being in a special position by reason of the fictitious form of the proceedings, as Lord Abinger explained in Hayward v Giffard at p 197. However, the real party approach continued to be adopted in relation to actions of ejectment even after the fictitious form of action had been abolished by the Common Law Procedure Act 1852. For example, in Hutchinson v Greenwood (1854) 4 El and Bl 324 Lord Campbell CJ stated at p 326 that the court had jurisdiction to order the persons, who really conducted the defence in an action of ejectment, to pay the costs, though they were not parties on the record. Lord Campbell explained this on the basis that the real party had engaged in an abuse of process, stating (ibid): The principle is that the individuals who order an appearance to be entered in ejectment, in the names of those not really defending the suit, abuse our process, and that, as they substantially are the suitors, we have jurisdiction to make them pay the costs. The real party approach was not confined to actions of ejectment. For example, in Hearsey v Pechell (1839) 5 Bing (NC) 466, an action of trespass, the question arose whether the action should be stayed until a non party provided security for costs. Tindal CJ said at pp 468 469: The real question is, whether this is the action of the plaintiff, or substantially the action of Mr Wood [the non party]. If it were an action which the plaintiff would not have brought but for the instigation and countenance of Wood, the case would fall within the principle of Tenant v Brown (1826) 5 B and C 208, and another case in the Court of Kings Bench, where a master was compelled to pay costs for his servant, whom he had put forward as a defendant instead of himself. An example of an award of costs against the real party, in a different type of case from ejectment, is In re Jones (1870) LR 6 Ch 497, which decided, in the words of the headnote, that where a solicitor engages to indemnify the plaintiff in a suit against the costs of the suit, and has the control of the suit, he will be ordered to pay to the defendants their costs of the suit when dismissed. Lord Hatherley LC stated at p 499 that the general principles of the court were perfectly well established upon the point: The view of the court is, that when a solicitor takes upon himself the conduct of a suit by saying that he will indemnify his client against all costs where the plaintiff is a mere puppet, and the real party suing is the solicitor the court will hold the solicitor liable for all the expenses to which he has put the other parties by his conduct. It was said by Sir Montague Smith in the Indian case of Coondoo v Mookerjee (1876) App Cas 186, 212 that the award of costs in In re Jones was based on the courts disciplinary jurisdiction over solicitors, but the next case to be cited suggests that that may be too narrow a view. It is in any event noteworthy that the Lord Chancellors dictum expressly mentions the need for a causal connection between the conduct of the non party and the incurring of the costs for which he was held liable. Another illustration is R v Greene (1843) 4 QB 646, which concerned relator proceedings brought by an indigent plaintiff who had been procured to bring them by an attorney. The reasoning does not however appear to turn upon the fact that the case concerned an attorney. Lord Denman CJ stated at pp 649 650: Nothing, however, is more certain than that this court has in several instances granted costs against persons who have made affidavits without being strictly parties, especially against attorneys, who are considered as being before the court, and, as its officers, bring cases to its notice We take the true rule to be that the court may adjudge from all circumstances who is the party, and give costs against any party, or against an attorney, if the affidavit of the person sought to be charged, or any affidavit produced by an attorney, shews good ground for imposing them upon them respectively. A similar approach can also be seen in cases concerning next friends, such as Palmer v Walesby (1868) LR 3 Ch App 732. In proceedings in equity, the award of costs was discretionary, and was said to be based on conscience and arbitrium boni viri: Andrews v Barnes (1888) 39 Ch D 133, 138. There are numerous cases concerned with the enforcement of awards made against non parties, such as Attorney General v Skinners Co, Ex p Watkins (1837) Coop Pr Cas 1 and Sangar v Gardiner (1838) Coop Pr Cas 262. It is unnecessary for present purposes to reach any definite conclusions as to the circumstances in which, prior to the Judicature Acts, the courts might have made an order for costs against a non party. It can however be seen from the examples cited that such awards were by no means unknown, even if the circumstances in which they were made were special in one respect or another. The position was in my respectful opinion aptly summarised by Mason CJ and Deane J, giving the majority judgment of the High Court of Australia in Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 190: Having regard to the variety and the nature of the circumstances in which an order for costs was made against a person who was not a party according to the record, we cannot accept that there was before the Judicature Acts a general rule that there was no jurisdiction to order costs against a non party in the strict sense. It is plain enough that the courts from time to time awarded costs against a person who, not being a party on the record, was considered to be the real party. It may be that these cases are capable of being explained on various grounds, including the ground that the non party ordered to pay costs was guilty of abuse of process, taking a very broad view of what constitutes an abuse of process, but to say that does not deny that there was jurisdiction to make an order for costs against a non party even if the jurisdiction was exercised in limited circumstances only. Other jurisdictions (1) Scotland By 1986, when Aiden Shipping was decided and the earlier decisions of the Court of Appeal were overruled, the general understanding that costs could not be awarded against non parties was long established in England and Wales. In Scotland, on the other hand, where the courts have always possessed an inherent jurisdiction to award expenses (in English terminology, costs), the power to make awards against non parties, without the necessity of establishing conduct which would merit condemnation as an abuse of process, has been recognised and exercised continuously since at least the 18th century (see, for example, Leigh v Rose (1792) Mor 4645), and the principles governing its proper exercise have been considered in a substantial number of cases of different kinds. The power to award expenses can be exercised under Scots law against a person who, although not a party to an action, has the true interest in its subject matter and the control and direction of the case. Such a person is known in civilian terminology as the verus dominus litis (the real master of the litigation), or more briefly as the dominus litis. Put briefly and in broad terms, the court is prepared to look beyond the person who is formally a party to the action, and to exercise its power to award expenses on the basis that another person is the real party in all but form: the person, that is to say, who is in reality conducting the suit and interested in its outcome. by Lord Rutherford in Mathieson v Thomson (1853) 16 D 19, 23: In more precise language, the classic description of a dominus litis was given There may be some difficulty in defining exactly what is a dominus litis; but I confess that I very much agree with what has been laid down by your Lordship [Lord President McNeill, later Lord Colonsay], and with the definition quoted from the civil law by Lord Ivory, that he is a party who has an interest in the subject matter of the suit, and, through that interest, a proper control over the proceedings in the action. Now it will not make a person liable in the expenses of an action that he instigated the suit, or told a man that he had a good cause of action, and that he would be a fool if he did not prosecute it, or though he promoted it by more substantial assistance. It will not make him liable in the expenses of the suit that, while he does both of these things, he shall have some ultimate consequent benefit in the issue of that suit. But when you go a step further, and find a party with a direct interest in the subject matter of the litigation, and, through that interest, master of the litigation itself, having the control and direction of the suit, with power to retard it, or push it on, or put an end to it altogether, then you have a proper character of dominus litis; and, though another name may be substituted, the party behind is answerable for the expenses. As appears from that passage, the alleged dominus litis must, in the first place, have the control and direction of the suit, with power to retard it, or push it on, or put an end to it altogether. Lord President Dunedin observed in McCuaig v McCuaig 1909 SC 355, 357 that The true test of whether a party is or is not dominus litis is probably whether he has or has not the power to compromise the action. Control and direction of the proceedings are not in themselves sufficient. The alleged dominus litis must also have an interest in the subject matter of the action. As Lord Rutherford explained in the passage cited from his opinion in Mathieson, it is not sufficient that the non party have some ultimate consequent benefit; rather, he must have a direct interest in the subject matter of the litigation. The interest must, as Lord President Dunedin stated in McCuaig v McCuaig at p 357, be: the true interest in the cause, and by true interest I mean the entire interest, using that term not in the absolute sense, but as denoting the whole interest for all practical purposes. The alleged dominus litis must also, of course, have caused the expense for which he is sought to be made liable. As Lord President Robertson stated in Kerr v Employers Liability Assurance Co Ltd (1902) 2 F 17, 22: The next point is this, what is the ground upon which a dominus litis is made liable in expenses? As I take it, it is simply the ground upon which everybody is made liable in expenses, and it is stated thus by Lord Jeffrey in Irvine v Kilpatrick (1847) 10 D 367 If any party is put to expense in vindicating his rights he is entitled to recover it from the person by whom it was created, that is to say, by whom the expense was created. To the same effect is the opinion of Lord Hunter in Main v Rankin & Sons 1929 SC 40, 43: The principle upon which liability attaches to a dominus litis is the simple one that he is responsible for the expenses which have been caused to the other party in the litigation. It was established long ago that the requirements of a dominus litis might be satisfied by a liability insurer conducting the defence of proceedings in accordance with a policy of insurance. The leading authority on the point is Kerr v Employers Liability Assurance Co Ltd, in which an injured workman who had obtained an award of damages and expenses against his employer sought, after the employer became insolvent, to obtain an award of expenses against the insurer. It was accepted that, under the policy, the insurers had complete control of the conduct of the defence, that they had exercised such control, and that they also had the entire interest in the subject matter of the action. The court found the insurer liable for the expenses of the action on the basis that it was the dominus litis. Lord President Robertson stated at pp 21 22: Now, if anybody other than the person whose name is printed as party in the record can be the dominus litis, I think this assurance company was. To begin with, to the person whose name was used it was immaterial whether the result of the action was success or failure; he was completely covered by his policy of assurance, and accordingly the assurance company very naturally stipulated in their contract that they, and not he, should have the control of the action, and should, of course, incur all liabilities resulting from that position. There are valuable illustrations, in the cases, of the relations which might constitute a man a dominus litis, but I do not cite any of them, for this reason, that I think that not one of them is clearer than, or, indeed, so clear as, the present case, of an assurance company who begin by stipulating that the insured shall give his name to them in order that they may conduct the action, and where, from that point onwards, he has nothing whatever to do with the conduct of the case. Therefore, that the assurance company was the dominus litis in this matter seems to me to be beyond all doubt. Lord Adam reached the same conclusion at p 22 by reference to the opinion of Lord Rutherfurd in Mathieson v Thomson: That the assurance company had an interest in the subject matter of this suit is beyond doubt. They were ultimately liable to the employers for the damages, and a greater interest in this suit they could not have. And, having that direct interest in the suit, they had entire control of it. It is not disputed that the defenders claimed and obtained, as the insuring company, the absolute conduct and control of the suit. Therefore it appears to me that if ever there was a case where a party fell within the definition of Lord Rutherfurd it is this assurance company. Several other cases of a similar kind can be found in the law reports. Claims of that nature have however seldom, if ever, been necessary since the enactment of the Third Parties (Rights against Insurers) Act 1930, now replaced by the Third Parties (Rights against Insurers) Act 2010. I have not found in the reports any example of a Scottish case where the insurer was sought to be made liable beyond its contractual limit of cover or, as in the present case, was sought to be made liable for the expenses of an uninsured claim. In such a case, it would remain necessary to establish that the insurer had control of the conduct of the defence and had the real interest in its success or failure: requirements which might not readily be satisfied. Finally, in relation to Scotland, it is relevant to note that there is no equivalent of the English law of maintenance and champerty. The discussion of intermeddling in the English cases, as the basis of an award of costs, has no equivalent in the Scottish case law. (2) Other common law jurisdictions It is also relevant to note the approach adopted in some other common law jurisdictions in the aftermath of the decision in Aiden Shipping. The position in Australia, in relation to jurisdictions conferring a discretionary power to award costs, analogous to that existing in England and Wales, was considered by the High Court of Australia in Knight v FP Special Assets Ltd. The court held that costs should be awarded against a non party in a general category of case described by Mason CJ and Deane J at pp 192 193: That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non party has played an active part in the conduct of the litigation and where the non party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non party if the interests of justice require that it be made. Later Australian decisions have identified a number of other situations in which an award of costs against a non party may be appropriate, as for example in Kebaro Pty Ltd v Saunders [2003] FCAFC 5. The position in New Zealand was considered by the Privy Council in Dymocks Franchise Systems (NSW) Pty Ltd v Todd (Associated Industrial Finance Pty Ltd, Third Party) [2004] UKPC 39; [2004] 1 WLR 2807, and was held to be similar to that in England and Australia. Exceptionality In Symphony Group Plc v Hodgson [1994] QB 179, the Court of Appeal sought to respond to Lord Goffs observation in Aiden Shipping, at p 975, that section 51 of the 1981 Act left it to the appellate courts to establish principles upon which the discretionary power conferred by that provision might be exercised. Balcombe LJ, with whom Staughton and Waite LJJ agreed, listed at pp 192 193 a number of considerations to be taken into account. The first, and the only one which need be considered for present purposes, was the following: An order for the payment of costs by a non party will always be exceptional: see per Lord Goff in Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965, 980F. This dictum has been treated in some later cases as imposing a requirement of exceptionality before an award of costs can be made against a non party. Such a requirement or pre condition would not, however, reflect the true import of the dictum on which Balcombe LJs observation was based. What Lord Goff said was this: In the vast majority of cases, it would no doubt be unjust to make an award of costs against a person who is not a party to the relevant proceedings. But, as the facts of the present case show, that is not always so. Lord Goff was not suggesting that exceptionality was a pre condition. He was merely observing that cases in which it is just to make a non party costs order form only a small proportion of the total. It is obvious that, as a general rule, orders for costs are made only against a party to the proceedings. That is because, in general, persons who are not parties do not have a sufficient connection with the proceedings to provide a proper basis for them to be held liable for the costs of the litigation. There are, however, circumstances in which considerations of justice may, in accordance with general principles, justify such an award against a non party. Such cases might be described as exceptional in the sense that their outcome involves a departure from the general rule that orders for costs are made against a party to the proceedings, but not in the sense that their determination depends on the identification of some unique or extraordinary feature. Indeed, exceptionality can scarcely be in itself an intelligible criterion for the making of a non party costs order. A case may be exceptional in respects which have no bearing on the appropriateness of a non party costs order. The case of Donoghue v Stevenson [1932] AC 562, for example, was exceptional in that it concerned a snail. It was also exceptional in that it raised a point of law of the greatest importance. Neither of those factors would have rendered it a suitable case for an award of costs against a non party, if such a question had arisen. In order for such an award to be appropriate, there would have to be some factor present which justified the making of the award. What is necessary, therefore, is to identify the relevant factor or factors. In TGA Chapman Ltd v Christopher [1998] 1 WLR 12, Phillips LJ, in a judgment with which Waller and Mummery LJJ agreed, sought to reformulate the relevant principles, refining his earlier analysis in Murphy v Young & Cos Brewery [1997] 1 WLR 1591. As Lord Briggs has explained, he identified two separate bases on which a non party costs order might be made against a liability insurer: first, that he had intermeddled in the proceedings, or secondly, that he had the control and direction of the proceedings, and the true interest in them, so as to render him the real defendant. He listed at p 20 five factors which were held to make an award of costs against the liability insurer appropriate: (1) the insurers determined that the claim would be fought; (2) the insurers funded the defence of the claim; (3) the insurers had the conduct of the litigation; (4) the insurers fought the claim exclusively to defend their own interests; (5) the defence failed in its entirety. Those factors, which were also present in the Scottish case of Kerr discussed at paras 100 101 above, established control of the proceedings, the real interest in the subject matter of the proceedings, and causation of the plaintiffs costs. Phillips LJs observation at p 21 that in reality, it is the insurers rather than Mr Christopher who are the defendants also expresses in English the idea conveyed in Latin by the expression verus dominus litis. Phillips LJ also clarified the issue of exceptionality. Having listed the features of the case which made it appropriate to make a non party costs order, he added at p 20: In the context of the insurance industry, the features to which I have just referred may not be extraordinary. But that is not the test. The test is whether they are extraordinary in the context of the entire range of litigation that comes to the courts. The later English decisions concerned with liability insurers are mostly consistent with the approach adopted in Chapman, as Lord Briggs has explained. In addition to the cases cited by Lord Briggs, I would mention in addition the case of Globe Equities Ltd v Globe Legal Services Ltd [1999] BLR 232, where Morritt LJ, in a judgment with which Butler Sloss and Sedley LJJ agreed, observed that the supposed requirement of exceptionality was based on what had been said by Lord Goff in Aiden Shipping, and should not be elevated into a precondition to the exercise of the power conferred by section 51. Echoing Phillips LJ in Chapman, he commented, at para 21, that the exceptional case is one to be recognised by comparison with the ordinary run of cases where the party is pursuing or defending the claim for his own benefit through solicitors acting as such. That was also the approach of Lord Brown of Eaton under Heywood, giving the advice of the Judicial Committee of the Privy Council in Dymocks Franchise Systems (NSW) Pty Ltd v Todd (Associated Industrial Finance Pty Ltd, Third Party). In a dictum subsequently repeated by the Court of Appeal in Deutsche Bank AG v Sebastian Holdings Inc [2016] EWCA Civ 23; [2016] 4 WLR 17, para 62, he stated at para 25: Although costs orders against non parties are to be regarded as exceptional, exceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. So understood, exceptionality is in reality of little if any significance, since no judge would contemplate making a non party costs order in the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. LORD SUMPTION: The common law has an instinctive reluctance to make orders in private law litigation which affect non parties, but also a long standing aversion to the unjustified interference by non parties in other peoples litigation. The first of these instincts is founded on elementary principles of justice. Non parties may well have a more or less direct commercial interest in the outcome but do not thereby assume the risks associated with contested litigation. Nor are they bound by rules of practice in the way that parties are. At the same time, there are cases where a person who is not on the record may nevertheless be the real party. He may, for example, be an equitable assignee or, arguably, a subrogated insurer, or have some other interest entitling him to litigate in the name of another. The second instinct depends for its practical application on what constitutes interference and what is unjustified, large questions which vary with changing attitudes to litigation. Historically, it arose from the concern of the law with the implications of contested litigation for public order, but is now founded mainly on a purely procedural concern for the fair and efficient conduct of court proceedings. In the context of costs orders against non parties, the first instinct is reflected in Lords Briggss real defendant test, and the second in what he has called the intermeddling test. I agree with this taxonomy, and more broadly with Lord Briggss analysis of the principles and their application to this case. We are concerned on this appeal with the position of a liability insurer exercising a contractual right to direct the conduct of the defence on behalf of his assured. The relationship between a liability insurer and his assured has a number of specific features which are not necessarily common to other cases in which costs orders are sought against non parties. In the first place, although the insurer is potentially liable to meet a third partys claim against his assured, that liability is owed only to his insured and not directly to the third party, subject to special statutory regimes such as that applicable to insolvent assureds under the Third Parties (Rights against Insurers) Act 2010. In this respect English law differs from many civil law systems which allow direct actions against insurers as a matter of course. Secondly, the insurer is not even liable to his assured during the litigation, since his liability arises only once the assureds liability has been ascertained by judgment, award, admission or agreement. Thirdly, the insurers contractual right to direct the conduct of the litigation, which is an almost invariable incident of liability policies, is a form of compulsory agency. It is a right to direct it in his assureds interest, and not his own, even though their interests will usually coincide. The solicitor whom he appoints is the assureds solicitor, who owes all the usual professional duties to the assured and is entitled to look to the assured for his fees, notwithstanding that his instructions come from the insurer. These features, and particularly the last, mean that the insurer cannot be regarded as the real defendant. He is simply in a position where (i) by virtue of his contractual obligations to the assured, he is liable to suffer a detriment if the assured loses; and (ii) by virtue of his contractual right against his assured, he is entitled to direct the conduct of litigation in his assureds interest. Both are common to other relationships which non parties may have with a defendant without necessarily being at risk in costs, for example his solicitor or other litigation agent in case (i), or a liquidator bringing a claim in the companys name in case (ii). Neither factor is any concern of the claimant, whose concern is only with the defendant. The claimant may hope or even expect the defendant to be insured. But he has no legally recognised right to proceed on that basis and must accept the risk, commonplace in litigation, that he is not. That leaves unjustifiable intermeddling as the only basis on which a liability insurer might be at risk of having a costs order made against him. Cases in which a costs order may be made against a liability insurer on this basis are likely to be rare. What may make a non partys involvement in litigation an unjustified intermeddling is the absence of any interest in the litigation recognised by the law. That need not necessarily be a legal interest. But a liability insurer has an obvious legal interest in the performance of his contractual duties under the policy and the exercise of his contractual rights. Of course, that interest is limited to the defence of insured claims and different considerations may arise if he steps outside that role. But, as the present case illustrates, where insured and uninsured claims are at issue in the same litigation, the proper defence of insured claims may involve steps which directly or indirectly affect uninsured claims. This is an area in which a person conducting or directing the conduct of litigation is entitled to a large margin of judgment and hindsight is not usually an adequate tool for assessing how he exercises it. If he acts in good faith in the interest of the assured qua the defendant to insured claims, he should not incur liability in costs. As at present advised, I would expect this to be equally true of the case where the potential liability of the assured is subject to a limit of cover which is exceeded, but that is not an issue which needs to be examined on this appeal because it does not arise on the facts. I too would allow this appeal.	This appeal is about who should pay the legal costs of 426 claimants who successfully sued a medical group for the supply of defective silicone breast implants. It allows the Supreme Court to review the principles concerning third party costs orders. 623 claims were brought against Transform Medical Group (CS) Ltd (Transform), a medical clinic which had supplied implants manufactured by Poly Implant Prothse (PIP). Transform had insurance cover with Travelers Insurance Co Ltd (Travelers) in relation to claims brought against it. Travelers funded the whole of Transforms defence. It did not disclose until a relatively late stage that a substantial number of claimants were uninsured. The insurance policy only covered the claims of 197 claimants who suffered from a rupture of their implants between 31 March 2007 and 30 March 2011. Transform was uninsured in respect of the claims of the remaining 426 claimants. The uninsured claimants are the Respondents to this appeal. Transform entered insolvent administration half way through the litigation. The insured claims were settled by an agreement made in August 2015 and Travelers paid an agreed proportion of the damages and costs attributable to those insured claims. This left the insured claimants in a much better position than the uninsured claimants who had obtained a judgment but recovered no damages or costs from Transform at all. The 426 uninsured claimants applied to the court for an order that Travelers pay their costs. Lady Justice Thirlwall, sitting in the High Court, held that Travelers should be ordered to pay them. The Court of Appeal (Lord Justice Lewison and Lord Justice Patten) reached the same conclusion for slightly different reasons. Travelers appealed to the Supreme Court. The Supreme Court unanimously allows Travelers appeal. Lord Briggs gives the main judgment, with which Lady Black and Lord Kitchin agree. Lord Reed and Lord Sumption each give a concurring judgment. The court has a general power to order non parties to pay costs under section 51 of the Senior Courts Act 1981 [25] [26]. In the context of liability insurance, it is important for the courts to apply clear and reasonably detailed principles so that liability insurers can understand their position. It is not enough for the courts to ask whether the case is exceptional because this would not provide adequate certainty [33]; [51]. Broadly speaking, the authorities reveal two approaches to deciding whether a third party should pay costs: (1) whether the third party took control of the litigation and became the real defendant; and (2) whether the third party engaged in unjustified intermeddling. The real defendant test, as explained by the Court of Appeal in TGA Chapman Ltd v Christopher [1998] 1 WLR 12, provides useful guidelines for cases where insurance exists but some part of the claim (including the claim for costs) lies outside the limits of cover [48] [53]. However, it is inappropriate in cases like this where the claims are wholly uninsured [54]. In such cases, the appropriate question is whether the insurer engaged in unjustified intermeddling in litigation to which it was not a party. If the insurer has acted within a framework of contractual obligation, it may be very hard to establish that it has intermeddled [55] [56]; [78]. It will usually be necessary to establish a causative link between the insurers involvement and the claimants incurring of costs [65] [67]; [80]. In this case, all the claims were pursued within a single group action by common solicitors. They involved common issues which were being tried together in four test claims (which, as it turned out, comprised two insured and two uninsured claims) [68]; [79]. Travelers had a legitimate interest in Transforms defence of the insured claims and, consequently, in Transforms defence of the test cases and common issues. Travelers involvement was the natural result of its status as an insurer and did not amount to unjustified intermeddling [69]. The courts below relied on a number of specific instances of Travelers conduct. However, none of them crossed the line into unjustified intermeddling: (1) Non disclosure of the limits of cover. Travelers and Transforms solicitors advised Transform not to disclose the limits of its insurance cover. However, as the law stands, parties are not legally obliged to disclose the details of their insurance [59]. The advice about non disclosure fairly reflected Travelers rights relating to the insured claims [63] [64]; [81]. (2) Offers and admissions. Travelers was involved in Transforms decisions not to make offers of settlement or admissions to the uninsured claimants [70] [71]. If necessary, the court would conclude this involvement was justified but in any event, it did not cause the claimants to incur costs. By 2015 the uninsured claimants were determined to pursue their claims to a judgment with costs, and an offer to settle without paying their costs would have made no difference [73] [74]. (3) Asymmetry of risk. The Court of Appeal was concerned by the fact that the uninsured claimants faced failing to recover their costs if they won, whereas Transform could have recovered its costs if they had failed [58]. However, this asymmetry was not the product of Travelers intervention. It resulted from the fact that Transform was insolvent and largely uninsured, and the claimants liability for costs was several only (i.e. each claimant was independently liable for a small proportion of the overall costs) [61] [62]; [82]. Therefore, the courts below were wrong to order Travelers to pay the uninsured claimants costs [83]. Concurring judgments of Lord Reed and Lord Sumption Lord Reed reviews the historical position in England, Australia and New Zealand relating to third party costs orders [85] [93]; [106] [112] and compares this to Scotland, where the courts may order expenses against a third party who has acted as the real master of the litigation, and where there is no equivalent concept to intermeddling [94] [103]. Lord Reed adds that the suggestion that a costs order must be exceptional has little, if any, significance [106] [112]. Lord Sumption discusses the intermeddling and real defendant approaches. He suggests that cases in which an insurer has engaged in intermeddling are likely to be rare, and an insurer who acts in good faith in relation to insured claims should not incur liability in costs [113] [116].
The Proceeds of Crime Act 2002 (POCA), as amended by the Serious Organised Crime and Police Act 2005, is designed to prevent the enjoyment of the fruits of criminal activity. Part 2 focuses on the criminal. To the extent that it is proved, in the manner prescribed, that a criminal has benefitted from criminal conduct, a levy can be made upon his assets, whether or not those assets are themselves the product of his criminal conduct, by a process inaccurately described as confiscation. A conviction of the criminal is a precondition to the power to confiscate. Part 5 concentrates on the fruits of crime themselves. The Serious Organised Crime Agency (SOCA) is given the task of tracking down and recovering the fruits of criminal activity, whether they remain in the hands of the criminal or have been passed on to someone else subject to exceptions for which POCA makes provision. The fruits of criminal activity can be recovered under Part 5 whether or not anyone has been convicted of the crime or crimes that have produced them. This appeal is concerned with Part 5 proceedings. SOCA has obtained an order for the recovery of property to the value of some 2m (the property) held by the appellants, David Gale and his former wife Teresa Gale. SOCA did so by persuading Griffith Williams J, sitting in the High Court, that the property was derived from criminal activity on the part of one or other or both of the appellants, in the form of drug trafficking, money laundering and tax evasion in the United Kingdom, Spain, Portugal and other jurisdictions. The judge so found notwithstanding that David Gale had never been convicted of drug trafficking albeit that in Portugal he was prosecuted and acquitted of drug trafficking and in Spain criminal proceedings against him for drug trafficking were brought but discontinued. In order to recover property under Part 5 SOCA has to prove that it was obtained by unlawful conduct, or that it is property obtained in place of such property. Section 241 defines unlawful conduct as being conduct which is unlawful under the criminal law of the country in which it occurs, whether this is the United Kingdom or elsewhere. The section requires the court to decide on a balance of probabilities whether it is proved that any of the matters alleged to constitute unlawful conduct occurred. Section 242 provides that in deciding whether property was obtained through unlawful conduct it is not necessary to show that the conduct was of a particular kind if it is shown that the property was obtained through conduct of one of a number of kinds, each of which would have been unlawful conduct. Thus it is not necessary to prove that individual items of property were derived from specific offences. Balance of probabilities is the standard of proof applied in civil proceedings under English law (the civil standard of proof). In criminal proceedings guilt has to be proved beyond reasonable doubt (the criminal standard of proof). In concluding that the property recovered was the product of criminal conduct on the part of the appellants, Griffith Williams J applied the civil standard of proof, albeit that he used language that suggested that the criminal standard might well have been satisfied. It is the appellants case, advanced without success in the Court of Appeal, that this was contrary to the Human Rights Act 1998 in that it infringed their right to a fair trial under article 6 of the European Convention on Human Rights (the Convention). They urge that, despite the language of section 241(3), we should read down the subsection so as to accord to it the meaning that the court must decide whether it is proved beyond reasonable doubt that matters alleged to constitute unlawful conduct occurred. Alternatively, they submit that the Court should declare the subsection to be incompatible with the Convention pursuant to section 4 of the Human Rights Act. This is the only issue concerning the recovery order that arises with regard to the recovery order; other issues that were raised below have not been pursued. There is a second issue. On 28 July 2005 Collins J made an Interim Receiving Order pursuant to section 246 of POCA. The findings of the Interim Receivers report formed the basis for commencing the proceedings for civil recovery. At the end of those proceedings the judge made an order for costs against the appellants. He refused, however, to direct that those costs should include the costs of the Interim Receivers investigation and report. SOCA cross appealed successfully against that refusal. The appellants seek to reverse the Court of Appeal on this issue and to restore the order of the judge. Is there scope for reading down? The Secretary of State, represented by Mr Eadie QC, has intervened because of the possibility of a declaration of incompatibility. The Secretary of State has supported the respondent, SOCA, in relation to the first issue. Mr Eadie has submitted, however, that regardless of the merits of the human rights challenge there can be no question of reading down section 241(3). This is because it represents a clear, advised expression of Parliamentary intent lying at the heart of the statutory scheme. This submission runs counter to an obiter view that I expressed at para 24 in R v Briggs Price [2009] UKHL 19; [2009] AC 1026, when dealing with analogous provisions of the Drug Trafficking Act 1994. Lord Rodger of Earlsferry expressed the same view at para 79. I see the force in Mr Eadies argument and, if necessary, it will be necessary to reconsider the views that I and Lord Rodger expressed. The first issue is, however, whether section 241(3), if given its natural and very clear meaning, is compatible with the Convention. Section 241(3) forms part of a statutory code of some complexity. I do not believe that for the purposes of resolving the issue raised on this appeal it is necessary to give a more detailed explanation of the legislation than that which I have given. A summary of the relevant provisions of POCA can, however, be found in paras 5 to 11 of the judgment of Carnwath LJ in the Court of Appeal [2010] EWCA Civ 759, [2010] 1 WLR 2881. The judgment of Griffith Williams J The judgment of Griffith Williams J [2009] EWHC 1015 (QB) runs to nearly 60 closely printed pages. I would endorse the commendation of Carnwath LJ of this meticulous and comprehensive judgment. The judge started by quoting from the Executive Summary of the Report of the Interim Receiver to the effect that there was no documentary evidence that supported the appellants assertion that their assets had been derived from legitimate activities but, on the contrary, evidence of unlawful conduct and complex financial dealings indicative of money laundering and concealment. The judge then addressed the burden and standard of proof. He held: 9. The burden of proof is on the claimant and the standard of proof they must satisfy is the balance of probabilities. While the claimant alleged serious criminal conduct, the criminal standard of proof does not apply, although cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not see Secretary of State for the Home Department v Rehman [2003] 1 AC 153 at para 55, per Lord Hoffmann. The judge went on to quote from Lord Carswells elaboration of this approach, in which the other members of the House concurred, in In re D (Secretary of State for Northern Ireland intervening) [2008] UKHL 33, [2008] 1 WLR 1499. In para 18 of his judgment the judge set out his approach to the evidence, in the context of the question of the attitude that he should take to the acquittal of David Gale by the Portuguese Court: It is not contended that the doctrine of issue estoppel applies and clearly the criminal law principle of autrefois acquit has no application in civil proceedings. On behalf of DG, it was submitted that the Portuguese charges cannot be re litigated without hearing from all the relevant witnesses or considering a full transcript which is not available. However, I do not accept this contention. To consider the evidence adduced in the Portuguese proceedings is not to re litigate because what is in issue in these proceedings is not the commission of the specific offences alleged against DG in Portugal but whether on the evidence before this court of the material considered by the Portuguese Court, together with the evidence available to the Spanish Courts and other material not considered by the courts in either jurisdiction, the claimant has proved on the balance of probabilities that DGs wealth was obtained through unlawful conduct of a particular kind or of one of a number of kinds, each of which would have been unlawful conduct: see section 242(2)(b) of POCA that is to say drug trafficking, money laundering and tax evasion. The judge gave detailed consideration to the acquisition of numerous assets by the appellants and the explanations, or lack of explanations, proffered to explain how these were funded. He examined the evidence that had led to the Portuguese prosecution and the commencement of criminal proceedings in Spain, which were subsequently discontinued on account of prescription. His conclusions were summarised in the following passage from para 140 of his judgment: I am in no doubt that DG and TG engaged in unlawful conduct in DGs case, money laundering and drug trafficking, in TGs case money laundering. There is also evidence of tax evasion in four jurisdictions. They have acquired capital and various assets as a direct consequence of the money laundering and/or drug trafficking, but it is not possible to quantify the extent of the tax evasion or to estimate the extent, if at all, that it contributed to their capital wealth. For reasons given during the course of the judgment and below, I am satisfied the Receiver has correctly identified recoverable property. I found DG a witness whose evidence, on the central issues, was wholly unreliable. He was so often demonstrably lying. I am not prepared to believe the evidence of TG insofar as she purported to confirm his account or to explain her involvement; she too was shown to be a liar about matters of real moment. While I am prepared to accept that DG was the moving force behind all criminal conduct, she was hardly ignorant of what he was doing and played her full part in the money laundering. The judge then summarised the facts that he had found earlier in his judgment, which formed the basis for his conclusions. They ranged more widely than the facts that formed the basis of the criminal proceedings in Portugal and Spain. The appellants case Article 6 of the Convention provides: 1. 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 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Article 6(3) lays down a number of procedural minimum rights to be accorded to a person charged with a criminal offence. Mr Mitchell QCs submissions on behalf of the appellants founded upon the fact that an essential stepping stone toward proving that the property owned by the appellants was the product of crime was proof that the appellants had been guilty of criminal conduct, in the form of drug trafficking and money laundering. He submitted that in these circumstances article 6(2) applied. The appellants were entitled to the presumption of innocence afforded by that article. Rebuttal of the presumption of innocence required proof of guilt to the criminal standard, this being implicit in the words according to law. He added to this the submission that once David Gale had been acquitted of drug trafficking by the Portuguese Court no adverse finding could be made that implicated him in the conduct of which he had been acquitted. As the legal basis for these submissions Mr Mitchell relied first on a considerable body of Strasbourg jurisprudence and secondly on the analysis of this jurisprudence of the House of Lords in R v Briggs Price. In considering the jurisprudence I acknowledge the assistance that I have derived from Mr Eadies printed case. He has there propounded a number of principles to be derived from the Strasbourg cases, which were not challenged by Mr Mitchell and which I have found to be both well founded and helpful. The Strasbourg jurisprudence Charged with a criminal offence has an autonomous meaning see Engel v The Netherlands (No 1) (1976) 1 EHRR 647. Thus the fact that POCA unequivocally designates recovery proceedings as civil recovery does not establish conclusively that they do not involve the charge of a criminal offence. None the less, the classification of proceedings under national law is one of three relevant considerations (the three factors) to which the ECtHR always has regard when deciding whether or not article 6(2) is engaged. The second is the essential nature of the proceedings and the third is the type and severity of the consequence that may flow from the proceedings, usually described by the ECtHR as the penalty that the applicant risked incurring. These three factors, and some of the jurisprudence in which they feature, were identified by Kerr LCJ in Walsh v Director of the Assets Recovery Agency [2005] NICA 6, [2005] NI 383, at para 20, where he observed that they tend to blend into each other. If the proceedings are properly analysed as civil rather than criminal, article 6(1) applies, but not article 6(2) or (3). There is a possibility, however, that the requirements of article 6(2) and (3) may creep in by the back door on the basis that the notion of a fair trial demands that they be applied see Bochan v Ukraine (Application No 7577/02) (unreported) 3 May 2007. I now come to a series of cases dealing with the application of article 6(2) after a person has been acquitted in criminal proceedings. These are of relevance in the present case having regard to Mr Mitchells contention that the Portuguese acquittal posed a bar to reliance in these proceedings on the alleged conduct which formed the basis of the Portuguese proceedings. Some of these decisions are mutually inconsistent and it is not easy to identify the principle underlying others. Before looking at these cases it may be helpful to make some preliminary observations. Many signatories to the Convention require guilt in criminal proceedings to be established according to an enhanced standard of proof in comparison to civil or disciplinary proceedings. In this jurisdiction the standard is proof beyond reasonable doubt. In such circumstances it is perfectly obvious that failure to establish guilt according to the required standard does not demonstrate that the defendant did not commit the criminal act. It demonstrates simply that the evidence adduced against him was insufficient to discharge the enhanced burden of proof. After acquittal, the possibility exists that claims for relief by, or against, the defendant may be brought that are based upon, or involve consideration of, the evidence that was inadequate to establish the defendants criminal guilt. The resolution of those claims may turn on lesser standards of proof, or different criteria, from those which governed the criminal proceedings. Examples are a claim by the defendant in respect of his legal costs, a claim by the defendant for compensation for time spent remanded in custody, disciplinary proceedings brought against the defendant in respect of the alleged conduct that formed the subject of the criminal charge, or a claim for damages by an alleged victim of that conduct. The Strasbourg Court has never suggested that it is unlawful to require a defendant who has been acquitted to satisfy some additional criterion in order to qualify for reimbursement of his costs, or for compensation for time spent on remand: see for instance Leutscher v The Netherlands (1996) 24 EHRR 181. The Strasbourg Court has also recognised that it is legitimate for a victim to bring a civil claim for compensation in proceedings that apply a lesser burden of proof to the issue of whether the defendant committed the acts that had formed the basis of the criminal charge on which he was acquitted see for instance Ringvold v Norway (Application No 34964/97) (unreported) 11 February 2003. And the Strasbourg Court has recognised that, after acquittal, it may still be legitimate to bring disciplinary proceedings or care proceedings under which a lesser standard of proof may be applied to the question of whether the defendant committed the conduct that had formed the basis of the criminal charge of which he was acquitted: see for example Moullet v France (Application No 27521/04) (unreported) 13 September 2007; HK v Finland (Application No 36065/97) (unreported) 27 September 2005. Most of the cases to which I have just referred involved discrete proceedings after the defendants acquittal in the criminal trial. There are a number of cases, however, where the Strasbourg Court has held that the presumption of innocence in article 6(2) was infringed by findings in subsequent proceedings that cast doubt on the validity of a prior acquittal in criminal proceedings. The common factor in these cases has been a procedural connection between the criminal trial and the subsequent proceedings the mantra oft repeated has been that the latter proceedings were a consequence and the concomitant of the criminal proceedings. The Court has also condemned as infringing article 6(2) statements by public authorities suggesting that a person acquitted might none the less have been guilty. This line of authority starts with Sekanina v Austria (1993) 17 EHRR 221. The applicant was tried and acquitted of a charge of murder. The jury gave as their reason that there was no conclusive evidence on which to convict him. He then claimed compensation for a year during which he was remanded in custody. Under the relevant statute a defendant was entitled to compensation if he was acquitted and the suspicion that he committed the offence is dispelled. He was refused compensation by the court which had presided over the trial on the ground that, having regard to the evidence, his acquittal did not dispel suspicion of his guilt. He alleged violation of article 6(2). The Commission in ruling the application admissible adopted the following passage from X v Austria (1982) 30 DR 227: No authority may treat a person as guilty of a criminal offence unless he has been convicted by the competent court and in the case of an acquittal the authorities may not continue to rely on the charges which have been raised before that court but which have been proved to be unfounded. This rule also applies to courts which have to deal with non criminal consequences of behaviour which has been subject to criminal proceedings. They must be bound by the criminal courts finding according to which there is no criminal responsibility for the acts in question although this naturally does not prevent them to establish, eg a civil responsibility arising out of the same facts. The ECtHR agreed that article 6(2) applied. In doing so it relied on a link between the criminal proceedings and the compensation proceedings. It held at para 22: Admittedly, the Linz Regional Court gave its decision rejecting the claim on 10 December 1986, several months after the judgment acquitting the applicant on 30 July 1986. In the Courts opinion, Austrian legislation and practice nevertheless link the two questions the criminal responsibility of the accused and the right to compensation to such a degree that the decision on the latter issue can be regarded as a consequence and, to some extent, the concomitant of the decision on the former. Moreover, as is the case under the legislation of several other European countries in which a right to compensation in respect of detention on remand is recognised in the event of acquittal, the criminal court which tries the case on its merits, in this instance the Linz Landesgericht, albeit composed differently, in principle has jurisdiction in the matter. Finally, the Austrian courts relied heavily on the evidence from the Assize Courts case file in order to justify their decision rejecting the applicants claims, thus demonstrating that, in their opinion, there was indeed a link between the two sets of proceedings. The applicant can therefore invoke article 6(2) in relation to the impugned decision. Subsequently, at para 30, the ECtHR made the following comment on the Austrian courts affirmations that there were still grounds for suspicion of the applicants guilt: Such affirmations not corroborated by the judgment acquitting the applicant or by the record of the jurys deliberations left open a doubt both as to the applicants innocence and as to the correctness of the Assize Courts verdict. Despite the fact that there had been a final decision acquitting Mr Sekanina, the courts which had to rule on the claim for compensation undertook an assessment of the applicants guilt on the basis of the contents of the Assize Court file. The voicing of suspicions regarding an accuseds innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However, it is no longer admissible to rely on such suspicions once an acquittal has become final. Consequently, the reasoning of the Linz Regional Court and the Linz Court of Appeal is incompatible with the presumption of innocence. Sekanina was followed in Rushiti v Austria (2000) 33 EHRR 1331, a case of essentially similar facts. The Court stated at para 31: In any case, the Court is not convinced by the Governments principal argument, namely that a voicing of suspicions is acceptable under article 6(2) if those suspicions have already been expressed in the reasons for the acquittal. The Court finds that this is an artificial interpretation of the Sekanina judgment, which would moreover not be in line with the general aim of the presumption of innocence which is to protect the accused against any judicial decision or other statements by state officials amounting to an assessment of the applicants guilt without him having previously been proved guilty according to law (see Allenet de Ribemont v France (1995) 20 EHRR 557, para 35, with further references). The Court cannot but affirm the general rule stated in the Sekanina judgment that, following a final acquittal, even the voicing of suspicions regarding an accuseds innocence is no longer admissible. The Court, thus, considers that once an acquittal has become final be it an acquittal giving the accused the benefit of the doubt in accordance with article 6(2) the voicing of any suspicions of guilt, including those expressed in the reasons for the acquittal, is incompatible with the presumption of innocence. Taken at face value these decisions seem to convert a presumption of innocence prior to conviction which is rebuttable into an irrebuttable presumption of innocence after acquittal. Two matters demonstrate that this is not the case. The first is the relief granted, or more significantly denied, to the applicants. Each of the applicants sought damages by way of compensation for his detention on remand ie the relief he had sought in the domestic proceedings, to which he was entitled under domestic law if suspicion of his guilt had been dispelled. This was denied on the ground that there was no connection between the violation of article 6(2) and the damage in question. If, however, the acquittals had been conclusive of the applicants innocence his right to compensation would logically have followed. The other matter is the reasoning of the ECtHR in a number of subsequent applications against Norway, which were heard together. Ringvold v Norway (Application No 34964/97) (unreported) 11 February 2003 and Y v Norway (2003) 41 EHRR 87 each concerned a case where the victim of conduct that had been the subject of an unsuccessful criminal prosecution was awarded compensation. Under Norwegian criminal law guilt of an accused must be proved beyond reasonable doubt. Under the Code of Criminal Procedure 1981 the civil claim of a victim may be determined in connection with a criminal case provided that the claim arises from the same act that forms the basis of the prosecution. Under the Damage Compensation Act 1969 a purported victim is entitled to claim damages for personal injury caused with intent or by gross negligence regardless of the outcome of criminal proceedings. The standard of proof in respect of such a claim is balance of probabilities. In Y v Norway the applicant was charged with sexual assault and homicide of his cousin. He was convicted and sentenced to 14 years imprisonment. In linked civil proceedings he was ordered to pay compensation to the victims parents. He appealed to the High Court, where the hearing was before three professional judges and a jury. The jury acquitted the applicant. The next day the three professional judges sat to consider the compensation order on the basis of the evidence that they had heard. They upheld the order for compensation. The applicant claimed violation of article 6(2) but did not claim pecuniary damages. The ECtHR considered the three relevant factors to which I have referred in para 16 above. It held at para 40 that the compensation proceedings were classified as civil under Norwegian domestic law. As to the second factor the Court held at para 41 that, notwithstanding that the compensation claim was based on the same evidence and involved the same constitutive elements as the criminal offence, it could not properly be said to render the defendant charged with a criminal offence. The Court continued: Thus, the Court considers that, while the acquittal from criminal liability ought to be maintained in the compensation proceedings, it should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof (see, mutatis mutandis, X v Austria (1982) 30 DR 227; MC v United Kingdom (1987) 54 DR 162). 42. However, if the national decision on compensation contains a statement imputing the criminal liability of the respondent party, this could raise an issue falling within the ambit of article 6(2) of the Convention. 43. The Court will therefore examine the question whether the domestic courts acted in such a way or used such language in their reasoning as to create a clear link between the criminal case and the ensuing compensation proceedings as to justify extending the scope of the application of article 6(2) to the latter. 44. The Court notes that the High Court opened its judgment with the following finding (para 13 above): Considering the evidence adduced in the case as a whole, the High Court finds it clearly probable that [the applicant] has committed the offences against Ms T with which he was charged and that an award of compensation to her parents should be made under article 3 5 (2) of the Damage Compensation Act. (Emphasis added) 45. This judgment was upheld by the majority of the Supreme Court (para 16 above), albeit using more careful language. However, that judgment, by not quashing the former, did not rectify the issue, which in the Courts opinion, thereby arises. 46. The Court is mindful of the fact that the domestic courts took note that the applicant had been acquitted of the criminal charges. However, in seeking to protect the legitimate interests of the purported victim, the Court considers that the language employed by the High Court, upheld by the Supreme Court, overstepped the bounds of the civil forum, thereby casting doubt on the correctness of that acquittal. Accordingly, there was a sufficient link to the earlier criminal proceedings which was incompatible with the presumption of innocence. 47. In the light of these considerations, the Court concludes that article 6(2) was applicable to the proceedings relating to the compensation claim against the present applicant and that this provision was violated in the instant case. The Court awarded 20,000 Euros by way of non pecuniary damages. In Ringvold v Norway the applicant was charged with sexual abuse of a minor, G, on whose behalf a claim was submitted for civil compensation. He was acquitted and the claim for compensation dismissed. G appealed to the Supreme Court against the failure to award compensation. The Supreme Court heard fresh evidence but also had regard to the evidence given in the criminal proceedings. The ECtHR considered the usual three factors and concluded that the compensation claim did not amount to the bringing of another criminal charge. It observed, however, that had the national decision on compensation contained a statement imputing criminal liability to the applicant this would have raised an issue falling within the ambit of article 6(2). following manner: The Court then went on to distinguish Sekanina and Rushiti in the 41. The question remains whether there were such links between the criminal proceedings and the ensuing compensation proceedings as to justify extending the scope of article 6(2) to cover the latter. The Court reiterates that the outcome of the criminal proceedings was not decisive for the issue of compensation. In this particular case, the situation was reversed: despite the applicants acquittal it was legally feasible to award compensation. Regardless of the conclusion reached in the criminal proceedings against the applicant, the compensation case was thus not a direct sequel to the former. In this respect, the present case is clearly distinguishable from those referred to above, where the Court found that the proceedings concerned were a consequence and the concomitant of the criminal proceedings, and that article 6(2) was applicable to the former. Sekanina and Rushiti were, however applied, and Ringvold distinguished, in Hammern v Norway (Application No 30287/96) (unreported) 11 February 2003. The applicant in that case had been acquitted on charges of sexual abuse of minors. He then sought compensation in respect of time during which he had been remanded in custody. Under article 444 of the Code of Criminal Procedure he was entitled to this if it is shown to be probable that he did not carry out the act that formed the basis for the charge. The ECtHR held at para 42 that the compensation proceedings did not give rise to a criminal charge against the applicant, but went on to hold that the linkage between the compensation proceedings and the criminal proceedings had the consequence of bringing the former within the scope of article 6(2). At para 44 the Court held that it was significant that the proceedings engaged the responsibility of the state, not a private party. It went on to give the following reasons for holding article 6(2) to be applicable: 45. Moreover, unlike in criminal proceedings where it was for the prosecution to prove beyond reasonable doubt that the defendant had committed the incriminated act in a compensation case of the present kind it was for the acquitted person to show that, on the balance of probabilities, it was more than 50% probable that he or she did not carry out the act grounding the charge. Leaving aside this difference in evidentiary standards, the latter issue overlapped to a very large extent with that decided in the applicant's criminal trial. It was determined on the basis of evidence from that trial by the same court, sitting largely in the same formation, in accordance with the requirements of article 447 of the Code. 46. Thus, the compensation claim not only followed the criminal proceedings in time, but was also tied to those proceedings in legislation and practice, with regard to both jurisdiction and subject matter. Its object was, put simply, to establish whether the state should have a financial obligation to compensate the burden it had created for the acquitted person by the prosecution it had engaged against him. Although the applicant was not charged with a criminal offence, the Court considers that, in the circumstances, the conditions for obtaining compensation were linked to the issue of criminal responsibility in such a manner as to bring the proceedings within the scope of article 6(2), which accordingly is applicable. Ringvold and Y were applied by the ECtHR when ruling inadmissible the application in Lundkvist v Sweden (Application No 48518/99) (unreported) 13 November 2003. The applicant was charged with setting his house on fire after a row with his wife. He was acquitted on the grounds that, while there was a strong inferential case against him, it did not establish his guilt beyond reasonable doubt. He then brought a civil claim against his insurers for the loss of his house. Evidence was adduced, which included evidence that had been adduced at the criminal trial. The court dismissed his claim, holding that the insurance company had proved, on balance of probabilities that he was responsible for the fire. Considering the three factors the Court held that the civil proceedings did not involve bringing a criminal charge against the applicant. It went on to hold: As to the further question of whether there were links between the criminal case and the ensuing compensation case such as to justify extending the scope of the application of article 6(2) to the latter, the Court reiterates that the outcome of the criminal proceedings was not decisive for the compensation issue. In this particular case, the situation was reversed: despite the applicants acquittal it was legally feasible to deny him insurance compensation for the destroyed house. Regardless of the conclusion reached in the criminal trial against the applicant, the compensation case was therefore not a direct sequel to the former or a consequence and concomitant of it. Discussion With respect, I find unconvincing the attempts of the Strasbourg Court to distinguish between claims for compensation by an acquitted defendant and claims for compensation by a third party against an acquitted defendant. As the cases to which I have just referred show, the link between the criminal proceedings and the subsequent proceedings can be close in either case. The evidence may be common to both proceedings, as may the judges who have to consider it. In each case the compensation proceedings can put in issue the facts that were alleged as the foundation of the criminal charges. In each case facts were held proved according to the civil standard of proof which had not been established according to the criminal standard in the earlier proceedings. How can it credibly be said that the claim for compensation by the defendant is consequential and concomitant to the criminal proceedings but not the claim by a third party? May it not be that the Strasbourg Court took a wrong turn in Sekanina and Rushiti? It might be thought that the judges who sat on the criminal proceedings will be well placed to determine the outcome of issues that depend upon the application of a lesser standard of proof to the same factual evidence; the Norwegian procedure, illustrated in Y, proceeded on that basis. Yet this is something that the Strasbourg jurisprudence appears to discourage. This confusing area of Strasbourg law would benefit from consideration by the Grand Chamber. What follows from the findings of the Strasbourg Court that claims for compensation by acquitted defendants fall within the scope of article 6(2)? This is a question to which I drew attention in para 25 above. It was considered in a concurring opinion by Judge Greve in Hammern. The judges conclusion was that the test laid down by the Norwegian Code of Criminal Procedure for recovering compensation could the defendant show that on balance of probabilities he did not carry out the act that formed the basis of the charge was simply not viable because it violated article 6(2). The focus had to be on whether the prosecution had been warranted on the facts known at the time. I comment that if this were correct the effect of article 6(2) was to prejudice the rights of the defendant that it was designed to protect. An alternative view is that all that the cases establish is that article 6(2) prohibits a public authority from suggesting that an acquitted defendant should have been convicted on the application of the criminal standard of proof and that to infringe article 6(2) in this way entitles an applicant to compensation for damage to reputation or injury to feelings. I am inclined to this view, albeit that it involves a remarkable extension of a provision that on its face is concerned with the fairness of the criminal trial see my comment on Taliadorou and Stylianou v Cyprus (Application Nos 39627/05 and 39631/05) (unreported) 16 October 2008) in R (Adams) v Secretary of State for Justice [2011] UKSC 18, [2011] 2 WLR 1180. On no view does this jurisprudence support Mr Mitchells submission that the appellants acquittal in Portugal precludes the English court in proceedings under POCA from considering the evidence that formed the basis of the charges in Portugal. The link between the Portuguese criminal proceedings and the English civil proceedings, which Strasbourg would appear to consider so critical, is not there. Nor does this jurisprudence lend any support to the proposition that the criminal standard must be applied to proof of criminal conduct in proceedings under POCA. That proposition requires further consideration of Strasbourg authority. Consideration of Strasbourg jurisprudence resumed Before the decision of the ECtHR in Geerings v The Netherlands (2007) 46 EHRR 1222 and the decision of the House of Lords in R v Briggs Price [2009] AC 1026 the law was not in doubt. Confiscation proceedings that proceed on the basis that property in the hands of a convicted criminal was derived from other criminal activity did not involve the defendant being charged with a criminal offence in relation to the other offending, or engage article 6(2). The cases supporting this proposition, and applying them to the United Kingdom confiscation legislation, are analysed in detail in Briggs Price and I do not propose to repeat that exercise. I should record, however, that Mr Eadie referred the Court to two lines of Strasbourg authority, not considered in Briggs Price, that supported this proposition. The first involved admissibility decisions in relation to proceedings in Italy to seize and confiscate the assets of those associated with Mafia activities: M v Italy (1991) 70 DR 59, Raimondo v Italy (1994) 18 EHRR 237; Arcuri v Italy (Application No 52024/99) (unreported) 5 July 2001. M v Italy was a decision of the Commission. The application related to confiscation of property on the ground that there was circumstantial evidence that the property was derived from unlawful activities. The Commission considered the usual three factors and concluded that the proceedings did not involve a criminal charge so as to engage article 6(2). Rather they were preventative in character. In Raimondo v Italy the ECtHR made a similar finding at para 43, although article 6(2) itself was not invoked. The position was the same in Arcuri v Italy. The other authorities were two admissibility decisions in relation to seizure and confiscation of cash on the ground that it was the proceeds of, or intended to be used for, drug trafficking, pursuant to sections 42 43 of the Drug Trafficking Act 1994: Butler v United Kingdom (Application No 41661/98) (unreported) 27 June 2002 and Webb v United Kingdom (Application No 56054/00) (unreported) 10 February 2004. In each case the ECtHR rejected the contention that the proceedings involved a criminal charge and resulted in the imposition of a penalty or punishment. It held that forfeiture was preventative and not a penal sanction. Accordingly it was permissible that, pursuant to section 43(3), the standard of proof required to justify forfeiture was that applicable to civil proceedings. Geerings and Briggs Price Mr Mitchell did not deal in detail with earlier authority. Rather he founded his argument on the decision of the Strasbourg Court in Geerings, as applied by the House of Lords in Briggs Price. I do not propose to repeat the review of the earlier authorities that is to be found in the speeches in that case. The relevant background to Geerings was the decision of the ECtHR in Phillips v United Kingdom (2001) 11 BHRC 280 and in van Offeren v The Netherlands (Application No 19581/04) (unreported) 5 July 2005. In each case the Court held that confiscation proceedings in relation to the benefits of drug trafficking did not involve charging the defendant with a criminal offence so as to bring them within the scope of article 6(2). In each case the applicant had been convicted of drug offences and the confiscation proceedings related to property held by him. The issue was whether article 6(2) was infringed by a presumption that this property was derived from similar offences. In holding that it was not the Court treated the confiscation procedure as analogous to the sentencing process. It does not seem to me that the analogy is very precise. The important point is, however, that the ECtHR approved of the confiscation of property on the basis that it was derived from drug trafficking without treating the proof that it was so derived as involving criminal charges and thus involving the application of article 6(2). Geerings v The Netherlands The position in Geerings 46 EHRR 1222 was very different. The applicant had been charged with a number of specific offences of theft and handling stolen goods and initially convicted of these. On appeal most, but not all, the convictions were quashed on the ground that the evidence did not satisfy the criminal standard of proof. None the less the Public Prosecutions Department sought a confiscation order for payment by the defendant of a sum equivalent to the benefit that he had derived from not merely the offences of which he had been convicted, but also from the offences of which he had been acquitted. The Supreme Court held that the Department was entitled to this order on the basis that, for the purposes of the confiscation proceedings, the standard of proof that he had benefited from the offences in question was less stringent than the standard of proof that had been required to procure his conviction of them. Thus the fact that he had been acquitted of the offences was no bar to the claims in respect of them in the confiscation proceedings. As a matter of strict logic I am in sympathy with the reasoning of the Supreme Court. None the less there is something unattractive about a prosecuting authority, which has failed to procure a conviction, proceeding to seek a confiscation order on the basis that the defendant committed the specific crimes of which he was acquitted. The ECtHR declined to accept this situation. The following passage from the judgment of the Court sets out the basis upon which it avoided doing so: 44. The Court has in a number of cases been prepared to consider confiscation proceedings following on from a conviction as part of the sentencing process and therefore beyond the scope of article 6(2) (see, in particular, Phillips, cited above, para 34; van Offeren v The Netherlands (Application No 19581/04), 5 July 2005). The features which these cases had in common are that the applicant was convicted of drugs offences; that the applicant continued to be suspected of additional drugs offences; that the applicant demonstrably held assets whose provenance could not be established; that these assets were reasonably presumed to have been obtained through illegal activity; and that the applicant had failed to provide a satisfactory alternative explanation. 45. The present case has additional features which distinguish it from Phillips and van Offeren. 46. First, the Court of Appeal found that the applicant had obtained unlawful benefits from the crimes in question although the applicant in the present case was never shown to hold any assets for whose provenance he could not give an adequate explanation. The Court of Appeal reached this finding by accepting a conjectural extrapolation based on a mixture of fact and estimate contained in a police report. 47. The Court considers that confiscation following on from a conviction or, to use the same expression as the Netherlands Criminal Code, deprivation of illegally obtained advantage is a measure (maatregel) inappropriate to assets which are not known to have been in the possession of the person affected, the more so if the measure concerned relates to a criminal act of which the person affected has not actually been found guilty. If it is not found beyond a reasonable doubt that the person affected has actually committed the crime, and if it cannot be established as fact that any advantage, illegal or otherwise, was actually obtained, such a measure can only be based on a presumption of guilt. This can hardly be considered compatible with article 6(2) (compare, mutatis mutandis, Salabiaku v France (1988) 13 EHRR 379, para 28). 48. Secondly, unlike in the Phillips and van Offeren cases, the impugned order related to the very crimes of which the applicant had in fact been acquitted. 49. In the Rushiti judgment (cited above, para 31), the Court emphasised that article 6(2) embodies a general rule that, following a final acquittal, even the voicing of suspicions regarding an accuseds innocence is no longer admissible. 50. The Court of Appeal's finding, however, goes further than the voicing of mere suspicions. It amounts to a determination of the applicants guilt without the applicant having been found guilty according to law (compare Baars v The Netherlands, (2003) 39 EHRR 538, para 31). 51. There has accordingly been a violation of article 6(2). This passage might be read as supporting one or more of the following propositions in relation to confiscation proceedings, by which I mean proceedings that require payment by a defendant of a sum equivalent to the value of property derived directly or indirectly from crime: i) Where a defendant has been tried and acquitted of an offence no claim can be based upon an assertion that he committed that offence. ii) In no case can confiscation be ordered unless it is proved to the criminal standard that the defendant committed the offences from which the property is alleged to have been derived. iii) Where it is not proved by independent evidence that the defendant possesses or possessed property for which there is no innocent explanation, but asserted that this is to be inferred from the fact that he committed a crime or crimes, the latter fact must be proved according to the criminal standard of proof. The first proposition can readily be deduced from paras 48, 49 and 50. None the less, as I have already indicated, I believe that this proposition is contrary to principle. If confiscation proceedings do not involve a criminal charge, but are subject to the civil standard of proof, I see no reason in principle why confiscation should not be based on evidence that satisfies the civil standard, notwithstanding that it has proved insufficiently compelling to found a conviction on application of the criminal standard. At all events, insofar as other Strasbourg jurisprudence supports the first proposition, it is only in circumstances where there is a procedural link between the criminal prosecution and the subsequent confiscation proceedings. There was no such link in the present case. The acquittal was in Portugal and the recovery proceedings here in England. Furthermore, the evidence in the latter ranged much wider than the evidence that was relied upon in the Portuguese prosecution. The third proposition is also one that can readily be derived from the passages cited in para 44. That proposition would not, however, put the decision of Griffith Williams J in doubt, for that decision was founded on property in the hands of the appellant whose provenance had not been sufficiently explained. The second proposition is the critical one in the present case. If it is sound this appeal must be allowed, for Griffith Williams J applied the civil, not the criminal standard of proof. In Briggs Price I held that the proposition could not properly be derived from Geerings. I remain of that view. The second proposition is inconsistent with the decisions in Phillips and van Offeren. The ECtHR in Geerings did not purport to depart from those decisions. On the contrary, in para 45 it expressly distinguished those cases on the basis that there were additional features in Geerings. Briggs Price The procedural position in Briggs Price was, happily, unusual. It is summarised in paras 8 to 15 of my speech in that case. To summarise that summary, the appellant had been convicted of conspiring to import heroin. The conspiracy was, however, never implemented, so it produced no benefit. Evidence was adduced at the trial, however, that the appellant had carried on substantial dealings in cannabis. After his conviction the trial judge embarked on confiscation proceedings under the Drug Trafficking Act 1994. He held, on the basis of the evidence that he had heard about the appellants cannabis dealing that he was satisfied that the appellant had benefited from such dealing to the extent of at least 2,628,490 and made a confiscation order in that sum. The judge made it clear that he was satisfied that the appellants involvement in dealing in cannabis had been proved to the criminal standard. The House was unanimous in finding that the judge had been satisfied on the evidence to the criminal standard of proof that the appellant had benefited from cannabis dealing to the extent found. Thus, even if article 6(2) applied to the confiscation exercise, its requirement that the appellants criminal behaviour should be established according to the criminal standard of proof had been satisfied. The House gave, however, lengthy obiter consideration to the question of whether, taking due account of the decision in Geerings, the confiscation order could only be made if the judge was satisfied to the criminal standard of proof that the appellant had committed the cannabis offences in respect of which evidence had been led at his trial. At paras 38 to 41 in Briggs Price I gave my reasons for concluding that Geerings did not support the proposition that, in confiscation proceedings, the commission by the defendant of the offences from which benefit had been derived had to be proved to the criminal, rather than the civil, standard of proof. At paras 112 to 132 Lord Mance carried out a detailed analysis of the Strasbourg jurisprudence, culminating in Geerings. He also decided that this did not justify the conclusion that article 6(2) applied to the confiscation order procedure, nor to proving the commission of criminal offences as part of that procedure. Lord Rodger expressed a contrary view at para 79. He concluded that in confiscation proceedings the commission of the criminal offences from which the relevant benefit was derived had to be proved to the criminal standard of proof, although the derivation of the benefit could be proved to the civil standard. In para 77 he summarised his reason for so concluding: Although I do not share his view that article 6(2) applies, I have none the less reached the same conclusion as Lord Brown on the standard of proof. If a presumption of innocence is implied into article 6(1), then it, too, must require that the person be proved guilty according to law. In the context of a criminal trial, the standard of proof, according to our law, is beyond reasonable doubt. Indeed, if that were not the position, the Crown could ask the court to make a confiscation order on the basis of an alleged benefit from a specific offence of which the defendant would have been acquitted if he had been prosecuted for it. Lord Neuberger of Abbotsbury at para 152 agreed with Lord Rodgers conclusions on standard of proof. Lord Brown of Eaton under Heywood concluded that Geerings established the third of the propositions that I have set out at para 45 above. His reasoning is set out in the following passage from his opinion: 94. I understand the Court's reasoning in paras 46 and 47 to amount to this: the prosecution must either demonstrate that the defendant holds or has held assets the provenance of which he cannot satisfactorily explain (as in Phillips and van Offeren: see para 44), or must establish beyond reasonable doubt that the defendant has committed some other offence (or offences) from which it can be presumed that he obtained advantage. In the latter case, of course, article 6(2) applies but is satisfied. Conclusions The views on standard of proof expressed in Briggs Price by members of the House were obiter but the application of the common ground in the views of Lord Phillips, Lord Brown and Lord Mance leads to the following conclusion. The commission by the appellants in the present case of criminal conduct from which the property that they held was derived had to be established according to the civil and not the criminal standard of proof. For the reasons that I have given that remains my conclusion. It is a conclusion which, prior to Geerings, appeared to be firmly founded on the decision of the Privy Council in McIntosh v Lord Advocate [2001] UKPC D1; [2003] 1 AC 1078. In my view that foundation is unshaken. The starting point in this case is the possession of property by the appellants for whose provenance they were unable to provide a legitimate explanation. There was an abundance of evidence, set out at length by the judge with great care, which implicated them in criminal activity that provided the explanation for the property that they owned. The judge rightly applied the civil standard of proof, but on my reading of his judgment he would have been satisfied to the criminal standard of the appellants wrongdoing. For the reasons that I have given I would dismiss the appeal in relation to the first issue. LORD CLARKE (WITH WHOM LORD PHILLIPS, LORD MANCE, LORD JUDGE AND LORD REED AGREE) The first issue Lord Phillips and Lord Dyson and, to a lesser extent, Lord Brown have discussed the Strasbourg jurisprudence at some length. As I read their judgments, however, their view that the appeal should be dismissed on the first issue does not depend upon that analysis. I agree with Lord Phillips opinion expressed at para 35 (and those of Lord Brown at para 111 and Lord Dyson at para 133) that on no view of the Strasbourg jurisprudence does it support the submission that Mr Gales acquittal in Portugal precludes the English court in proceedings under POCA from considering the evidence that formed the basis of the charges in Portugal. There is here no procedural link between the two sets of proceedings. As to the standard of proof, I agree with Lord Phillips that the Strasbourg jurisprudence does not support the proposition (ie the second proposition in para 43 above) that in no case can confiscation be ordered unless it is proved to the criminal standard that the defendant committed the offences from which the property is said to have been derived. I agree with his conclusion and reasons summarised in para 54 to the effect that the commission of criminal conduct from which the property the appellants held was derived had to be established according to the civil and not the criminal standard of proof. I also agree with his conclusion in para 55 that there was ample evidence upon which the judge could find that the civil standard of proof was satisfied. Lord Dyson concludes at paras 141 and 142 that the judge did not impute criminal liability to the appellants and that the judges approach to the evidence was correct. I agree. For these reasons I too would dismiss the appeal on the first issue. This conclusion does not involve a detailed consideration of the issues raised by the Strasbourg jurisprudence or a resolution of the issues or potential issue identified by Lord Phillips and Lord Dyson. I would prefer to defer reaching definitive conclusions on them until they require a decision on specific facts. I would only add two points. First, I agree with Lord Brown that it is highly desirable that these issues should be considered by the Grand Chamber in Strasbourg in order to clarify and rationalise what he aptly calls this whole confusing area. Secondly, I note that in the recent case of R (Adams) v Secretary of State for Justice (JUSTICE intervening) [2011] UKSC 18; [2011] 2 WLR 1180, where some of these issues were touched on, Lord Hope said at para 111 that the principle that is applied in Strasbourg is that it is not open to a state to undermine the effect of an acquittal. It appears to me that that is indeed the underlying principle and that if, as here and indeed in Adams, the effect of the acquittal is not undermined there should be no question of holding that there is any conflict with the presumption of innocence enshrined in article 6(2) of the European Convention on Human Rights. Issue 2 Introduction The second issue in this appeal relates to costs. It raises a single question of principle. That question is whether an order for costs made in favour of SOCA against a person against whom a recovery order has been made under section 266 of the Proceeds of Crime Act 2002 (the 2002 Act) can include the investigation costs incurred by an interim receiver (the receiver) appointed under section 246 of the 2002 Act. Griffith Williams J (the judge) made a recovery order against the appellants on 2 June 2009. By a later order of 6 July 2009, the judge ordered the appellants to pay SOCAs costs but refused an application that those costs should include the remuneration of the interim receiver in respect of his investigation. The application for costs was made pursuant to the jurisdiction conferred on the court by section 51(1) of the Senior Courts Act 1981 (the SCA). In refusing to make the part of the order relating to the costs of the investigation, the judge followed the decision of the Northern Ireland Court of Appeal in SOCA v Wilson [2009] NICA 20; [2009] NI 28. In the instant case the Court of Appeal allowed an appeal against that refusal. In doing so, it declined to follow SOCA v Wilson. On 29 July 2010 it ordered that the appellants pay SOCAs legal costs of and occasioned by the proceedings against them on an indemnity basis and that they pay to SOCA the receivers remuneration for his investigative function on the standard basis. It directed that in each case the costs should be subject to detailed assessment. No such assessment has yet taken place. The question in this part of the appeal is whether the Court of Appeal erred in principle in ordering the appellants to pay to SOCA the costs of the receivers investigation. The appointment of the receiver and his powers and duties On 28 July 2005, on the application of the Director of the Assets Recovery Agency (the functions of which were transferred to SOCA on 1 April 2008), Collins J made an interim receiving order and appointed Mr James Earp as the receiver. The order was made under section 246 of the 2002 Act, which is contained in Part 5. Paras 2 to 4 of the order, which appear under the heading detention, custody, preservation and custody of property, provided inter alia that the appellants must not remove the property identified in a schedule from England and Wales or in any way dispose of or deal with the property and that they must transfer monies to an account specified by the receiver and deliver certain property into his possession. Under the heading of disclosure, paras 5 to 8 made detailed provision for disclosure of the existence and whereabouts of the appellants assets. Para 9 set out the powers of the receiver, which were stated to be in accordance with Schedule 6 to the 2002 Act and to be without prejudice to any existing powers that the receiver might have whether by statute or otherwise. It included powers to seize property, to take possession of property and to manage it, to enter and search premises, to execute all such documents on behalf of the appellants as might be necessary to manage the property, to require the appellants and others to take such steps as may be required to enable the receivership to be conducted and to obtain information from the appellants and others. In addition it included a power to appoint lawyers, accountants and others to advise and/or act on behalf of the receiver and a power to bring proceedings in the name of or on behalf of the appellants against any person having possession of relevant property. In short the powers were very extensive indeed. Paras 11 to 14 of the order set out the duties of the receiver. By para 11 it provided that, pursuant to section 247(2)(a) of the 2002 Act, the receiver must consider such information and documents as were obtained by him in pursuance of the order to establish whether or not the property in the schedule was recoverable property or associated property and, if the latter, to what extent. By para 12, it provided that, pursuant to section 247(2)(b), the receiver must take all reasonable and necessary steps to establish whether or not any other property was recoverable property (in relation to the same unlawful conduct) and, if so, who was holding it. The order also provided by paras 13 and 14 that the receiver must provide certain information to SOCA and to the court and make a report to SOCA under section 255(1) and (2) respectively. It can thus be seen that the receiver had both extensive powers and duties of investigation under the order. He also had powers of management of the relevant property. The order further provided, in para 26, that the receiver could charge for his services and that he must prepare and serve on SOCA accounts in accordance with terms set out in a letter dated 19 July 2005 inviting him to accept nomination as an interim receiver. The letter enclosed a draft Memorandum of Understanding (MOU) and a draft of the proposed order. It also described the property in some detail. It made it clear that the terms of the MOU formed part of the terms upon which the receiver was to proceed. Although the MOU states that it was not (and was not intended to be) a binding contract, it was a detailed document which provided for the assessment that the receiver was to carry out and made provision for the fees to be charged and the accounts to be kept. For example, it provided for bills to be submitted and for them to be paid by SOCA within 28 days. The MOU was signed by the receiver on 25 July 2005. As stated above, the order was made under section 246 of the 2002 Act. By section 246(2), an interim receiving order is an order for (a) the detention, custody or preservation of property, and (b) the appointment of an interim receiver. By section 246(7) SOCA may not nominate an interim receiver who is a member of its staff. Section 247 defines the functions of the interim receiver, so far as relevant, as follows: (1) An interim receiving order may authorise or require the interim receiver (a) to exercise any of the powers mentioned in Schedule 6, (b) to take any other steps the court thinks appropriate, for the purpose of securing the detention, custody or preservation of the property to which the order applies or of taking any steps under subsection (2). (2) An interim receiving order must require the interim receiver to take any steps which the court thinks necessary to establish (a) whether or not the property to which the order applies is recoverable property or associated property, (b) whether or not any other property is recoverable property (in relation to the same unlawful conduct) and, if it is, who holds it. Section 255 provides that an interim receiving order must require the receiver to report his findings to the court. The combined effect of section 246(7) and section 247(2) is that the interim receiving order must provide that the interim receiver will conduct the investigation. Schedule 6 provides for an interim receiver to have powers ancillary to those contained in section 247. They include a power to seize property to which the order applies; a power (subject to certain safeguards) to obtain information or to require a person to answer any question; and powers of entry and search. They also include in paragraph 5(1) a power to manage any property to which the order applies. By sub paragraph (2), managing property includes (a) selling or otherwise disposing of assets comprised in the property which are perishable or which ought to be disposed of before their value diminishes, (b) where the property comprises assets of a trade or business, carrying on, or arranging for another to carry on, the trade or business, and (c) incurring capital expenditure in respect of the property. The provision that there is a power to sell only where assets are perishable or diminishing in value is consistent with the fact that the receiver is only an interim receiver and that the order is intended to hold the ring until the question whether a recovery order should be made is resolved. It may be noted that these powers are different both from the powers of a trustee appointed under a recovery order (see below) and the powers of a receiver appointed under section 48, which is in Part 2 of the 2002 Act and applies where the court makes a restraint order. Those powers are set out in section 49. By section 49(2)(d) the court may confer on such a receiver the power to realise so much of the property as is necessary to meet the receivers remuneration and expenses. Moreover, by contrast with the position of an interim receiver set out in paragraph 5(2), as explained above, where the power to sell property is limited to perishable property or property of diminishing value, section 49(10) provides that the power of managing or otherwise dealing in property referred to in section 49(2)(b) includes selling the property or any part of it. The investigation The receivers investigation took over three years, culminating in a final report of over 400 pages. That was at least in part because of the failure on the part of Mr Gale to co operate with the receiver. Toulson LJ summarised the position at [2010] 1 WLR 2881, paras 90 92 as follows: 90. Obtaining the information ultimately set out in the receiver's report, which led to the judge making the recovery order, proved to be a lengthy, complicated and expensive process, because of the deliberately obscure way in which Mr Gale had conducted his financial affairs and his persistent and deliberate failure to cooperate with the receiver's investigation. 91. 4. It is alleged that the overall evidence establishes that DG has been leading a life of serial drug trafficking, money laundering In his judgment the judge said, at paras 4 and 5: and tax evasion; it is alleged that he went to extreme lengths to avoid detection by using: (i) a web of lies, false names, multiple passports, nominees and offshore corporate fronts; (ii) at least 68 bank accounts both on and off shore and in a number of different jurisdictions which together have received millions of pounds from unidentified sources; (iii) needlessly complicated bank transfers and (iv) fleeing his country of residence (from the United Kingdom to Spain, from Spain to the United States of America and from the United States of America to Portugal via the Bahamas) when he feared the authorities were or may be interested in his criminal activities 5. It is alleged that the absence in large part due to his deliberate failure to co operate with the receiver's investigation of any paper trail of records, financial documents, accounts, invoices, receipts, bank statements and tax returns and any details of business transactions, customers, suppliers and profits establishes that the millions of pounds he acquired could not have been acquired through a legitimate business or businesses. 92. It is clear from the details set out in the judge's comprehensive judgment that he accepted the allegations that Mr Gale had gone to extreme lengths to avoid detection, by the methods identified by the receiver, and had deliberately failed to co operate with the receiver's investigation. The material assembled by the receiver was therefore a painstaking task and one which was necessary in order for the agency to succeed in the civil recovery proceedings brought by it against Mr Gale. SOCA has paid the interim receiver in respect of investigation costs said to have totalled some 1m. It seeks to recover those costs from the appellants. The recovery order As already stated, on 2 June 2009, the judge made a recovery order under section 266 of the 2002 Act against the appellants in respect of assets valued at some 2m. By the same order, Mr James Earp was appointed trustee for civil recovery pursuant to section 267(1) of the 2002 Act and the property was vested in him. The functions of the trustee for civil recovery are set out in section 267. They are of course much greater than the powers of an interim receiver because they extend to realising the value of the assets for the benefit of SOCA. Unlike an interim receiving order, the purpose of a recovery order and the appointment of a trustee for civil recovery is not merely to hold the ring but to sell the assets and pay the proceeds of sale to SOCA. Jurisdiction to award costs The courts jurisdiction to award costs in civil proceedings is governed by section 51 of the SCA, which provides: (1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in the civil division of the Court of Appeal, the High Court and any county court (a) (b) (c) shall be in the discretion of the court. (2) Without prejudice to any general power to make rules of court, such rules may make provisions for regulating matters relating to the costs of those proceedings, including, in particular, prescribing scales of costs to be paid to legal or other representatives or for securing that the amount awarded to a party in respect of the costs to be paid by him to such representatives is not limited to what would have been payable by him to them if he had not been awarded costs. (3) The court shall have full power to determine by whom and to what extent the costs are to be paid. As I read that section, costs are in principle recoverable if they are either costs of or incidental to the relevant proceedings. That is because both the costs of and incidental to the proceedings are in the discretion of the court. As stated by Aikens LJ at para 134 by reference to the judgment of Lord Goff in Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965, section 51 of the SCA 1981 confers a wide jurisdiction on the courts to make orders as to costs. That is so but, as Lord Goff also observed, at p 975, the exercise of this jurisdiction may be limited: It is, I consider, important to remember that section 51(1) of the Act of 1981 is concerned with the jurisdiction of the court to make orders as to costs. Furthermore, it is not to be forgotten that the jurisdiction conferred by the subsection is expressed to be subject to rules of court, as was the power conferred by section 5 of the Act of 1890. It is therefore open to the rule making authority (now the Supreme Court Rule Committee) to make rules which control the exercise of the courts jurisdiction under section 51(1). In these circumstances, it is not surprising to find the jurisdiction conferred under section 51(1), like its predecessors, to be expressed in wide terms. The subsection simply provides that the court shall have full power to determine by whomthe costs are to be paid. Such a provision is consistent with a policy under which jurisdiction to exercise the relevant discretionary power is expressed in wide terms, thus ensuring that the court has, so far as possible, freedom of action, leaving it to the rule making authority to control the exercise of discretion (if it thinks it right to do so) by the making of rules of court, and to the appellate courts to establish principles upon which the discretionary power may, within the framework of the statute and the applicable rules of court, be exercised. It follows that, as Aikens LJ correctly stated at para 133, the legal framework yields two questions: first, are the expenses of the interim receiver costs of and incidental to the civil recovery proceedings so that they can be the subject of a costs order in the proceedings; and, secondly, if they are, is there any statutory rule or provision or authority that prevents the court from having jurisdiction to order that the appellants bear the costs of the receiver? It is in my opinion appropriate to pose these two questions. It is important to note that the question in this appeal is not what powers an interim receiver has to charge for his services or how those powers may be enforced and against what or whom. The receivers right to recover his remuneration is entirely contained in the order of the court and the MOU. He is entitled to recover his reasonable remuneration from SOCA. The question here is whether SOCA is in principle entitled to claim against the appellants by way of costs the reasonable sums it has paid or is liable to pay to the receiver in respect of his investigation carried out pursuant to the interim receiving order. It is therefore appropriate to consider first whether those costs are in principle costs of and incidental to the civil recovery proceedings within the meaning of section 51 of the SCA and, if so, whether there is a statutory rule or provision or authority that prevents the court from having jurisdiction. Are the expenses of the interim receiver costs of and incidental to the civil recovery proceedings? SOCA submits that the investigation costs which it has reasonably paid to the receiver are part of the costs of or incidental to the civil recovery proceedings. The essence of its argument is that the investigatory work carried out by the receiver had to be done in order to bring the civil recovery claim and so the costs of the investigation are properly costs of or incidental to the civil recovery proceedings. The appellants submit, by contrast, that the receivers remuneration is an expense of the receivership and not a cost of or incidental to the proceedings in which he is appointed. In support of this submission they rely on the judgment of the Northern Ireland Court of Appeal in SOCA v Wilson, as well as the decisions in Capewell v Revenue and Customs Comrs [2007] UKHL 2, [2007] 1 WLR 386, Boehm v Goodall [1911] 1 Ch 155, Hughes v Customs and Excise Comrs [2002] EWCA Civ 734, [2003] 1 WLR 177, In re Andrews [1999] 1 WLR 1236 and Evans v Clayhope Properties Ltd [1988] 1 WLR 358. Before discussing the cases, it is convenient to consider the position as a matter of principle without reference to the authorities. The statutory question is clearly identified. It is whether the particular costs claimed are costs of or incidental to the proceedings. In the case of the investigative costs incurred by the receiver and reimbursed by SOCA under the MOU (including the reasonable remuneration of the receiver) the answer to the question is in my opinion plainly in the affirmative. The position was succinctly put by Toulson LJ at para 93, after paras 90 to 92 quoted above. He said this: Unless compelled by authority to hold otherwise, I would regard the costs incurred by the agency in paying the receiver to investigate Mr Gale's finances and assemble that material as costs of the litigation, which Mr Gale ought justly to pay, and I would not see such an order as inconsistent with the statutory scheme. I entirely agree. I also agree with Aikens LJs conclusion to much the same effect at para 134. This can be seen clearly from both the powers and the duties of an interim receiver under the order. In particular, it can be seen from the duties of such a receiver set out above, namely (a) to consider the information and documents obtained by him under the order in order to establish whether or not the property in the schedule was recoverable property or associated property and (b) to take all reasonable and necessary steps to establish whether or not any other property was recoverable property (in relation to the same unlawful conduct) and, if so, who was holding it. His duty was then to report to both SOCA and the court. In order to bring a claim for civil recovery under Part 5 of the 2002 Act, SOCA had to obtain sufficient information to demonstrate that property in the hands of the appellants was recoverable property within the meaning of sections 304 310 of the 2002 Act. This required investigative work to be done. It was entirely reasonable to appoint an interim receiver in order to carry out the investigation and to hold the ring in the meantime. Indeed, it is difficult to see how SOCA could in practice proceed without the appointment of an interim receiver and, as stated above, section 246(7) provides that it could not nominate a member of its staff to be the interim receiver appointed. In these circumstances, it seems to me that the investigation was an essential part of the civil recovery proceedings. I can see no reason in principle why these costs of the receivership cannot at the same time be costs of or incidental to the civil recovery proceedings. Is there any statutory rule or provision or authority that prevents the court from having jurisdiction to order that the appellants bear the investigation costs? This is the second question posed by Aikens LJ. There is to my mind no statutory rule or provision that leads to the conclusion that these costs are not costs of or incidental to the civil recovery proceedings. The powers of the receiver, which are contained in section 247 of and Schedule 6 to the 2002 Act, are described above. They do not include a lien on the property in respect of his fees and do not entitle him to sell the property or part of it in order to meet his fees. Nor does the order appointing the receiver in this case. As between SOCA and the receiver, the latters right to remuneration is contained solely in the interim receiving order and the MOU. Some reference was made to section 280(3) of the 2002 Act, which provides that SOCA may apply moneys received by it under a recovery order in making payment of the remuneration and expenses of (a) the trustee or (b) any interim receiver appointed in, or in anticipation of, the proceedings for the recovery order. That subsection must be set in its context. Section 266(2) provides that any recovery order made by the court must vest the recoverable property in the trustee for civil recovery. There is nothing to prevent the interim receiver being appointed also as trustee, as occurred in this case, but the powers and duties of a trustee are entirely distinct from those of an interim receiver and the fact that they were the same person is irrelevant for the purposes of the issues in this appeal. Section 267 states that in performing his functions the trustee acts on behalf of the enforcement authority and must comply with any direction given by the authority. The sums paid to SOCA by the trustee will be or include the net proceeds of sale of the appellants property after the trustee has first made the payments identified by section 280(2). I agree with the view expressed by Aikens LJ at para 135 that there is nothing in section 280(3), or any other provision of the 2002 Act, to prevent the cost to SOCA of paying an interim receiver from being part of the costs of or incidental to the civil recovery proceedings. As Aikens LJ put it, the subsection simply grants SOCA the power to pay the interim receiver out of sums it receives from the trustee for civil recovery, who is the person identified in the legislation who will give effect to a recovery order made by the court. The fact that SOCA has a discretion to use those sums to pay the interim receiver does not seem to me to be relevant to the question whether the costs were costs of and incidental to the proceedings. As I see it, the liability, if ordered, to pay the costs of the proceedings is distinct from, but ancillary to, the liability in the civil recovery order itself. I also agree with Aikens LJ at para 136 that there is nothing in CPR Pt 44 or Pt 69 which precludes the court from making an order that a party to civil recovery proceedings must pay as costs the remuneration of a court appointed receiver. CPR Pt 44 contains general rules about costs. It is to be noted that by CPR r 44.4(1) costs will not be allowed which have been unreasonably incurred or are unreasonable in amount. CPR Pt 69 contains general rules about the courts power to appoint a receiver. CPR r 69.7 provides: (1) A receiver may only charge for his services if the court (a) so directs; and (b) specifies the basis on which the receiver is to be remunerated. (2) The court may specify (a) who is to be responsible for paying the receiver; and (b) the fund or property from which the receiver is to recover his remuneration. Under CPR r 69.7 the court has a discretion to specify who is to be responsible for paying the receiver appointed by court order. It does not follow from the terms of that provision, or by necessary implication, that the court may not make an order that a party to civil proceedings pay to the other party costs which include the remuneration of the interim receiver. CPR r 69.7 regulates the position as between the receiver and others, whereas section 51 of the SCA 1981 and CPR Pt 44 regulate the position as between the parties to the litigation. What then of the authorities? First, there is no question but that costs incurred prior to proceedings, such as investigation costs, are capable in principle of being recoverable as costs of or incidental to proceedings. This principle was summarised by Lord Hanworth MR in Socit Anonyme Pcheries Ostendaises v Merchants Marine Insurance Co [1928] 1 KB 750 at p 757: There is power in the master to allow costs incurred before action brought, and if the costs are in respect of materials ultimately proving of use and service in the action, the master has a discretion to allow these costs. It is on the basis of this general principle that costs of attending an inquest have been held to be recoverable as costs of related civil proceedings where evidence referable to attendance at the inquest was potentially relevant to those proceedings: see Ross v Bowbelle (Owners) (Note) [1997] 1 WLR 1159 and Roach v Home Office [2009] EWHC 312, [2010] QB 256. It is commonplace for parties to proceedings to instruct experts of all kinds in connection with litigation. They include forensic accountants in a fraud case and consultants of all kinds in the investigation of, say, a maritime casualty or a death in a hospital. The reasonable amounts paid to such experts are treated as the costs of and incidental to the proceedings. In my opinion reasonable sums paid by SOCA to an interim receiver, at least in respect of his investigation should in principle be regarded in the same way. The appellants rely upon the cases referred to in para 78 above as support for the general proposition that remuneration of a receiver is not a cost of or incidental to civil recovery proceedings. It is convenient to begin with the decision of the Northern Ireland Court of Appeal in SOCA v Wilson, which raised the very question arising in this appeal. As in the instant case, SOCA sought to recover expenses and remuneration paid to an interim receiver appointed under Part 5 of the 2002 Act as costs of the civil recovery proceedings. Girvan LJ, giving the judgment of the court, held that such expenses and remuneration were not costs of or relating to the civil recovery proceedings. Girvan LJ began his analysis by observing at para 11, by reference to Hopkins v Worcester and Birmingham Canal Proprietors (1868) LR 6 Eq 437, that the equitable jurisdiction to appoint a receiver is of ancient origin. He stated the principle as being that the receiver, being appointed by the court, is an officer of the court, and his duty is to act impartially in administering the property to which the receivership extends and to do so under the direction and supervision of the court. He referred to the statement by Lord Walker in Capewell v Revenue and Customs Comrs [2007] UKHL 2, [2007] 1 WLR 386, at para 21 that it has always been a basic principle of receivership that the receiver is entitled to be indemnified in respect of his costs and expenses, and his remuneration if he is entitled to be remunerated, out of the assets in his hands as receiver. Lord Walker approved the principle stated by Warrington J in Boehm v Goodall [1911] 1 Ch 155 at 161 as follows: Such a receiver and manager [that is one appointed by the court] is not the agent of the parties, he is not a trustee for them, and they cannot control him. He may as far as they are concerned, incur expenses or liabilities without their having a say in the matter. I think it is of the utmost importance that receivers and managers in this position should know that they must look for their indemnity to the assets which are under the control of the court. The court itself cannot indemnify receivers but it can, and will, do so out of the assets so far as they extend, for expenses properly incurred; but it cannot go further. It would be an extreme hardship in most cases to parties to an action if they were to be held personally liable for expenses incurred by receivers and managers over which they have no control. Lord Walker noted that some doubts had subsequently been expressed as to whether a receivers remuneration could be recovered as litigation costs. Lord Walker further approved the statement by Simon Brown LJ in Hughes v Customs and Excise Comrs [2003] 1 WLR 177 at para 50 that statutory receivers are to be treated precisely as their common law counterparts save to the extent that the legislation otherwise provides. At para 23 Lord Walker set out this passage from para 45 of the judgment of Simon Brown LJ, saying that it sets out the argument accepted by the Court of Appeal: Mr Mitchell's central argument to the contrary focuses, first, on the use of the word 'receiver' to describe the person being appointed under this legislation to conserve, manage and realise assets. A receiver is a recognisable creature of the common law, an officer of the court, someone whose essential rights, powers and duties have been established down the years. It is not apparently disputed that a receiver appointed under the CJA despite the statute's silence on the matter will have the right, for example, to bring an action or to sell property. Why then, unless the statute expressly so provides, should he be denied the other ordinary consequences of his receivership, including not least the right (indeed the requirement) to recover the costs of the receivership from the assets under his control? Girvan LJ regarded those principles as applicable here, that is under Part 5 of the 2002 Act. He noted at para 12 that, under Part 2 of the 2002 Act dealing with confiscation proceedings, management receivers may be appointed in England under section 48 and enforcement receivers under section 50 and that in Northern Ireland the equivalent provisions are sections 196 and 198. Similar provisions apply in Part 3 in relation to confiscation proceedings in Scotland, the equivalent of a receiver there being called an administrator. Under the earlier confiscatory statutory provisions in the Criminal Justice Act 1988 (the CJA 1988) and the Drug Trafficking Act 1994 statutory powers had also been introduced for the appointment of receivers. I return below to the question whether the principles in those cases apply to the investigation costs of an interim receiver. Girvan LJ further referred to the decision in In re Andrews [1999] 1 WLR 1236. In that case the defendant was acquitted of the offence in respect of which a receivership order had been made. He was awarded his costs out of central funds but the taxing master held that these costs did not include the costs of the receivership proceedings. The receiver deducted her expenses out of the property released in consequence of the discharge of the order. The defendant applied for an order that the prosecution pay his costs of the receivership proceedings. The court concluded that the receiver was entitled to recover her remuneration and expenses from the assets under the court's control. A party seeking appointment of a receiver is not thereby liable for his remuneration. A receiver had a lien for his costs and remuneration against the assets which gave him a continuing right to possession of the assets even after discharge of the receivership order. The receiver's remuneration was an expense of the receivership and not a cost of or an incidental to the proceedings and thus not within the courts discretionary jurisdiction to award costs. As Aldous LJ put it succinctly at [1999] 1 WLR 1236, 1248F G: The remuneration of a receiver is an expense of the receivership, not costs incidental to the proceedings in which he is appointed. Girvan LJ also relied upon the principle stated by Longmore LJ in Sinclair v Glatt [2009] EWCA Civ 176, [2009] 1 WLR 1845, at para 1: It is now settled that such a receiver [appointed pursuant to section 77 of the Criminal Justice Act 1988], like a receiver at common law, is entitled to recover his remuneration, costs and expenses from the assets which he has been appointed to receive ('the receivership assets'). That is so whether or not he ought to have been appointed in the first place or the order appointing him has been discharged, see Mellor v Mellor [1992] 1 WLR 517. Even if the defendant, whose assets have been caught by the order appointing the receiver is subsequently acquitted or has his conviction quashed, the receivership assets must bear the costs of the receivership; this is also the position if, as in the present case, confiscation orders are made but subsequently quashed, Hughes v Customs and Excise Comrs . Even if the receiver carries on his receivership unnecessarily and should have agreed that his receivership should have been discharged at a time before a court application is made to terminate his receivership, the receivership assets bear those costs reasonably incurred up to the date he is actually discharged: see Capewell v Revenue and Customs Comrs Girvan LJ noted that in In re Andrews and Sinclair v Glatt the Court of Appeal held that the expense of a receiver appointed under the confiscatory regime in Part 6 of the CJA 1988 was an expense of the receivership which should be met out of the assets in the receivership. He rejected the submission made on behalf of SOCA that the position of interim receivers appointed under Part 5 of the 2002 Act could be distinguished from other statutory receivers on account of the wide ranging investigatory powers given to interim receivers in Part 5 cases. He observed that receivers appointed by way of equitable relief or under confiscatory statutory provisions frequently have to carry out extensive investigations to enable them to get in and protect the assets and that it had never been suggested that such investigation costs fell to be treated differently from other management costs. Girvan LJ further noted that Part 5 of the 2002 Act had been enacted following case law such as In re Andrews. In the light of that case law it was to be inferred that in England and Wales and Northern Ireland express provision for the costs of interim receivers was considered unnecessary because of the standard receivership lien on the assets for the receivers costs. I respectfully disagree. In my opinion the regime set out in Part 5 of the 2002 Act is distinguishable in important respects from that in the other legislation discussed in the cases. As paras 79 to 86 show, Carnwath LJ was initially inclined to follow the decision in SOCA v Wilson. However he was persuaded by the analysis of Toulson and Aikens LJJ that the cases relied upon by the appellants are distinguishable from this on the ground that the scheme under Part 5 is significantly different from those discussed in them. I am also persuaded by the reasoning of Toulson and Aikens LJJ for these short reasons. The critical feature of the other cases is that the receiver was left to look for his indemnity to the assets in his hands which are under the control of the court, as it was put in Boehm v Goodall in the passage quoted in para 89 above. Then in the passage quoted at para 90 Simon Brown LJ described the receiver in Hughes as being the person appointed to conserve, manage and realise assets with the right to sell property. He asked why, unless the statute expressly so provides, the receiver should be denied the other ordinary consequences of his receivership, including the right (and requirement) to recover the costs of the receivership from the assets under his control. Similar principles were stated by Longmore LJ in Sinclair v Glatt. The position of an interim receiver appointed under Part 5 of the 2002 Act is significantly different. He has no power to sell the assets unless they are perishable or diminishing in value and he has no lien on the assets. He is however entitled to recover his costs and remuneration from SOCA. The power to sell is vested in the trustee, not in the interim receiver, and then only once a civil recovery order has been made. Moreover the powers of the interim receiver are not merely to take possession of and to conserve the assets but to carry out an investigation into the question whether or not the assets are the proper subject of a recovery order. More generally, I agree with the analysis of Aikens LJ at paras 137 to 140. It was further said in the passage from Boehm v Goodall that it would be a hardship for parties to be held liable for the remuneration of receivers over whom they have no control. However, that does not apply to these facts. There is a much closer relationship between the parties and an interim receiver appointed under Part 5 of the 2002 Act than there was in the cases referred to. The 2002 Act draws a clear distinction between a receiver appointed under Part 2, as for example under section 49 which, as already noted, by section 49(2)(d) expressly provides for payment of the costs of receivers appointed under Part 2 of the 2002 Act out of receivership assets and an interim receiver appointed under Part 5. I would infer that the draftsman made an express decision not so to provide in the case of interim receivers appointed under Part 5. I agree with Toulson LJ that, as he put it at para 104, there will be no extreme hardship if Mr Gale is ordered to pay the costs of investigating facts which he tried so hard to conceal and the costs of assembling the evidence which proved the case against him. Although In re Andrews did involve a consideration of section 51 of the SCA, it was a very different case from this under a very different statute: see per Toulson LJ at paras 106 to 113. In particular, he quoted a passage from the judgment of Ward LJ in which he said that it appeared to him that the true position was that the investigation of whether or not the defendant has suffered loss by reason of the receivership is an investigation which should be and ordinarily would be conducted in deciding whether or not damages should be awarded against the claimant for breach of the usual undertaking as to damages he would normally be required to give. Under the Criminal Justice Act 1988 (the CJA 1988), compensation for loss resulting from a receivership was not to be ordered unless the court was satisfied that there had been some serious default on the part of a person concerned in the investigation or prosecution of the offence concerned. As Toulson LJ said at para 111, in those circumstances Ward LJ concluded, with reluctance, that the expenses of the receivership were not to be regarded as costs of and incidental to the proceedings within the meaning of section 51 of the SCA. I should however refer to the statement of Aldous LJ in In re Andrews quoted in para 92 above that the remuneration of a receiver is an expense of the receivership, not costs incidental to the proceedings in which he is appointed. Taken at face value, that might suggest that the remuneration of a receiver can never be recoverable as costs of or incidental to litigation under section 51 of the SCA. If Aldous LJ intended to state such a broad proposition, I respectfully differ from him. I do not however think that he did. As Toulson LJ observed at para 112, he was concerned with the problem which would result if the receiver's remuneration for running the company were to be treated as a cost of the proceedings recoverable by the successful appellant in circumstances where the company would not have traded as profitably as it did without the accountancy advice of the receiver. He considered (like Ward LJ) that the application was really a claim for compensation dressed up as an application for an award of costs, and it was therefore very significant that by section 89 of the CJA 1988 Parliament had laid down a carefully regulated code for such a claim. He concluded that section 89 was the proper avenue for a compensation claim of the kind being made by the appellant. That is not to say that a claim by a party to proceedings who has obtained an order for the appointment of a receiver in respect of costs or remuneration which he has paid to a receiver can never be recovered from the other party to the proceedings under section 51 of the SCA. All will depend upon the circumstances. As Toulson LJ observed at para 113, this is a very different case from In re Andrews under a very different statutory scheme. By contrast with the position in In re Andrews, SOCAs claim is not a concealed claim for a form of compensation for which the statute provides a regulated code. It is a genuine claim for litigation costs and not a dressed up claim for something else. Moreover, SOCA is not seeking to recover that part of the receivers costs or remuneration which relates to the costs of managing Mr Gale's assets. It only seeks the costs of the investigation. I agree with Toulson LJ that those costs would undoubtedly have been recoverable in principle as costs of the proceedings if the work had been done by anyone other than the receiver. I also agree with him that the costs in their essential nature were not merely incidental but integral to the prosecution of the claim made by the agency against the appellants. Finally, I agree with Aikens LJs approach to In re Andrews at paras 141 to 144. The decisions in Hughes and in Capewell are also distinguishable on much the same basis. Again I agree with the approach of Toulson LJ to both cases at paras 114 to 116 and 117 to 120 respectively and with the approach of Aikens LJ at para 146. I note in passing that section 283 of the 2002 Act contains detailed provisions for compensation but there is, as I see it, no conflict between those provisions and the conclusion that the costs claimed here are within section 51 of the SCA. Finally, I should refer to three further points made by Girvan LJ in SOCA v Wilson. First, he noted that section 284(1) of the 2002 Act provides that Scottish Ministers are to reimburse an interim administrator or trustee for civil recovery appointed under Part 5 of the 2002 Act. He expressed the view at para 17 that it is inherently unlikely that Parliament intended to confer protections on defendants in relation to administrators fees and costs in Scotland and not in England and Wales and Northern Ireland in relation to receivers fees and costs. The problem with this reasoning is that it ignores the clear differences between section 284(1), which makes special provision for Scotland in order to meet the requirements of the Scotland Act 1998, and section 280(3), which (as stated above) gives the enforcement authority in England and Wales the power to apply any sum received by it from the trustee for civil recovery to make payments of the remuneration and expenses of a interim receiver appointed in the proceedings for the recovery order. As Aikens LJ points out at para 147, neither provision prevents the enforcement authority from seeking to recover those sums as costs of and incidental to the recovery proceedings. Secondly, Girvan LJ states, at para 18, that the policy behind civil recovery proceedings is to strip the defendant of criminal assets. He points out that this objective is achieved by the recovery order even if part of the defendants assets go to the receiver. Requiring them to meet the costs of the interim receivers investigation work would strip them of further assets and clear statutory wording would be needed to establish the states right to do so. It is correct that clear statutory language is needed in order to require a party to meet such costs, but, in my opinion, for the reasons given above, such language is found in section 51 of the SCA 1981. Thirdly, Girvan LJ makes the point that the costs and fees of the interim receiver cannot sensibly be considered as costs of SOCA since the interim receiver is independent and separate from SOCA so that his costs cannot be considered as costs incurred by SOCA as part of its costs of and incidental to the proceedings. I respectfully disagree. On the facts here SOCA had to bear the costs of the interim receiver in order to pursue the civil recovery proceedings and in order to obtain a recovery order. In these circumstances, as I said earlier, they seem to me to be costs borne by SOCA in much the same way as other costs of instructing an expert would be. Finally, it is important to note that this appeal is only concerned with the recovery by way of costs of investigation costs incurred by SOCA as a result of liability to the interim receiver. It is not concerned with management costs. I would leave open the question whether management costs could be treated as costs of or incidental to civil recovery proceedings until it arises for decision in a particular case. CONCLUSION For these reasons, which are largely the reasons they gave, I agree with Toulson and Aikens LJJ that the Court of Appeal in Northern Ireland reached the wrong conclusion in SOCA v Wilson. The costs which SOCA was or is liable to pay to the receiver in respect of his investigation were costs of or incidental to the civil recovery proceedings and are in principle recoverable from the appellants. I would therefore dismiss the appeal on this issue. I would only add that by CPR r 44.4(1) costs will not be allowed which have been unreasonably incurred or are unreasonable in amount. It follows that whether a particular item of costs claimed is recoverable in whole or in part will of course be a matter for the costs judge. LORD BROWN I too would dismiss both limbs of this appeal for the reasons given respectively by Lord Phillips and Lord Clarke with whose judgments I agree. As will readily be appreciated, the conclusion arrived at by Lord Phillips on the standard of proof issue is in no way dependent on the view one takes with regard to the Sekanina v Austria (1993) 17 EHRR 221/ Ringvold v Norway (Application No 34964/97) (unreported) 11 February 2003) line of Strasbourg authority. As Lord Phillips observes (para 35): On no view does this jurisprudence support Mr Mitchells submission that the appellants acquittal in Portugal precludes the English court in proceedings under POCA from considering the evidence that formed the basis of the charges in Portugal. None the less however, it has been necessary to consider this jurisprudence in some detail and there appears to be some difference of opinion between us as to how logical and satisfactory it is. Lord Phillips in the Discussion section of his judgment (para 32) find[s] unconvincing the attempts of the Strasbourg Court to distinguish between claims for compensation by an acquitted defendant and claims for compensation by a third party against an acquitted defendant and concludes that: this confusing area of Strasbourg law would benefit from consideration by the Grand Chamber. Lord Dyson by contrast (para 131) would be less critical of the Strasbourg jurisprudence although he does not indicate whether he would exempt it from all criticism and, if not, what concerns he has about it. I have to say that for my part I share Lord Phillips views on this matter. Of course, as Lord Dyson more than once points out, judgments which determine an acquitted defendants entitlement to costs and/or compensation for detention on remand are in one sense closely linked to the criminal trial itself: but for the defendants acquittal these issues as to costs and compensation would simply not arise. But it by no means follows from this that the criminal standard of proof (presumably with the burden still on the state) should apply equally to these linked claims, consequential and concomitant though clearly they can be characterised. Lord Dyson suggests (para 132): If the outcome of the criminal proceedings is decisive for the civil proceedings, then there is a sufficiently close connection for article 6(2) to apply. That assertion, however, to my mind begs the very question it purports to answer. As already explained, the outcome of the criminal proceedings is only decisive for the civil proceedings in the sense that, but for the acquittal, these civil proceedings would not arise. Unless, however, Strasbourg is really saying that a state has no option but to compensate an acquitted defendant for his costs incurred in securing his acquittal and his detention in custody meantime for which article 6 appears to me to provide no warrant whatsoever I cannot for the life of me see why the state should not decline to reimburse legal costs and withhold compensation for detention on remand unless the defendant can show on the balance of probabilities that he was in fact innocent. Take a case where, following a defendants acquittal for rape, at one and the same time he is seeking compensation for his detention on remand and his victim is seeking compensation for his violation of her. Is it really to be said that his claim falls to be determined on the criminal standard of proof (and must, therefore, be met); hers on the civil standard (and so may also be found established)? That seems to me nonsensical. Obviously, in all proceedings following an acquittal the court should be astute to ensure that nothing that it says or decides is calculated to cast the least doubt upon the correctness of the acquittal. But the point to be emphasised is that the acquittal is correct because, and only because, the prosecution failed in the criminal proceedings to establish beyond reasonable doubt that the defendant was guilty. Not having been proved guilty to the criminal standard, the defendant is not thereafter to be branded a criminal and no criminal penalty can properly be exacted from him. But, contrary to widespread popular misconception, acquittal does not prove the defendant innocent. In the result, I too incline to the view expressed by Lord Phillips (para 34) that perhaps the only logical explanation of the Strasbourg case law is that applicants are being compensated for reputational damage when by a courts judgments or statements subsequent to an acquittal it appears nevertheless to be suggesting that the defendant should after all have been found guilty to the criminal standard. I repeat, however, that what surely is now required is an authoritative Grand Chamber decision clarifying and rationalising this whole confusing area of the Courts jurisprudence. LORD DYSON The Proceeds of Crime Act 2002 (POCA) provides for two distinct mechanisms for the recovery of proceeds of crime: (i) confiscation by the Crown Court following conviction (Part 2); and (ii) civil recovery proceedings in the High Court, which may be instituted by the enforcement authority (The Serious Organised Crime Agency) to recover property which is, or represents, property obtained through unlawful conduct (recoverable property) (Part 5). Section 241(1) provides that conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part. Section 241(3)(a) provides that the court must decide on a balance of probabilities whether it is proved that any matters alleged to constitute unlawful conduct have occurred. I substantially agree with the reasons given by Lord Phillips (as well as those given by the Court of Appeal) for deciding the first issue in favour of SOCA and concluding that article 6(2) of the European Convention on Human Rights (the Convention) does not apply to civil recovery proceedings under Part 5 of POCA. Because of the general importance of the issue, I wish to say in my own words why I have reached this conclusion. Article 6(2) provides: Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The question raised by the first issue is whether proving unlawful conduct in civil recovery proceedings amounts to the bringing of a criminal charge so as to engage article 6(2). The criminal procedural guarantees in article 6 apply to proceedings in which a person is, within the autonomous ECHR meaning, charged with a criminal offence. Three criteria are taken into account when deciding whether a person is charged with a criminal offence, namely (i) the classification of the proceedings under national law, (ii) their essential nature and (iii) the type and severity of penalty to which the person is potentially exposed (see Engel v The Netherlands (No 1) (1976) 1 EHRR 647 at para 82) as applied in many decisions of the ECtHR such as, for example, Ringvold v Norway (Application No 34964/97) (unreported) 11 February 2003, at para 36. These criteria are not hermetically sealed from each other. As is made clear at para 82 of Engel, the classification under national law is only a starting point and the essential nature of the proceedings is of greater importance. Application of the Engel criteria There can be no doubt that, on the basis of an application of these three criteria, recovery proceedings under Part 5 of POCA are properly to be characterised as civil for article 6 purposes. They are classified as civil under our domestic law: section 240(1)(a) of POCA provides that Part 5 has effect for the purposes of enabling the enforcement authority to recover, in civil proceedings property which is, or represents, property obtained through unlawful conduct (emphasis added). The essential nature of the proceedings is civil. The respondent to the proceedings is not charged with any offence. He does not acquire a criminal conviction if he is required to deliver up property at the conclusion of the Part 5 proceedings. None of the domestic criminal processes are in play. On the contrary, as Kerr LCJ put it in Walsh v Director of the Assets Recovery Agency [2005] NICA 6, [2005] NI 383, at para 23: all the trappings of the proceedings are those normally associated with a civil claim. These include the express provision that the standard of proof is on the balance of probabilities. The nature of the proceedings is essentially different from that of criminal proceedings. The claim can be brought whether a respondent has been convicted or acquitted, and irrespective of whether any criminal proceedings have been brought at all. This was a factor which weighed with the ECtHR in Ringvold v Norway at para 38 when the court was considering whether article 6(2) applied to a claim for compensation by the alleged victim of a sexual offence against the alleged perpetrator. The purpose of Part 5 proceedings is not to determine or punish for any particular offence. Rather it is to ensure that property derived from criminal conduct is taken out of circulation. It is also of importance that Part 5 proceedings operate in rem. The governing concept is that of recoverable property which represents both property obtained directly by unlawful conduct and also property which represents the original property. But the fact that, on an application of the Engel criteria, it is plain beyond argument that Part 5 proceedings are properly to be characterised as civil proceedings for the purposes of article 6 is not determinative of the question whether article 6(2) applies. There is a line of Strasbourg decisions which show that, even if proceedings are properly characterised as civil on the basis of the Engel criteria, article 6(2) may nevertheless apply if the links between the proceedings and criminal proceedings are sufficiently close. Sufficiently close link between criminal proceedings and civil proceedings to engage article 6(2). It is explained in Ringvold at para 36 and the cases cited there that, in certain circumstances article 6(2) may apply to proceedings instituted after the discontinuation of criminal proceedings or following an acquittal, even if on an application of the Engel criteria those proceedings would be characterised as civil. As the court said: Those judgments concerned proceedings relating to such matters as an accuseds obligation to bear court costs and prosecution expenses, a claim for reimbursement of his (or his heirs) necessary costs, or compensation for detention on remand, matters which were found to constitute a consequence and the concomitant of the criminal proceedings. The focus of the inquiry is on whether the proceedings were the direct sequel or a consequence and the concomitant of the criminal proceedings (ibid at para 41). Claims by an accused person following a discontinuation or acquittal for costs incurred as a result of the criminal proceedings and claims for compensation for detention are paradigm examples of such proceedings. The link between such claims and the criminal proceedings is so close that article 6(2) applies to both of them. The claims for compensation flow from the criminal proceedings. But for these proceedings, there would be no claims. As will become clear, the link was absent in Ringvold because, despite the applicants acquittal, the victims claim for compensation could succeed. The compensation case was, therefore, not a direct sequel of the criminal proceedings. Put another way, the outcome of the criminal proceedings was not decisive for the compensation case (Ringvold para 38). There are several reported decisions of the ECtHR where an applicant, acquitted of a criminal charge offence, complained that his claim for compensation for detention and reimbursement of costs had been rejected in violation of article 6(2). In Sekanina v Austria (1993) 17 EHRR 221, the relevant legislation gave a right to compensation to a person who (i) had been remanded in custody or placed in detention on suspicion of having committed a criminal offence and (ii) was subsequently acquitted or otherwise freed from prosecution, where (iii) the suspicion that he had committed the offence was dispelled or prosecution was excluded on other grounds. It was held by the ECtHR that the relevant Austrian legislation and practice linked the question of the accuseds criminal responsibility and the right to compensation to such a degree that the decision on the latter issue can be regarded as a consequence and, to some extent, the concomitant of the decision on the former (para 22). Accordingly, article 6(2) applied to the compensation proceedings. As regards the question whether there had been a breach of article 6(2), the Austrian court rejected the applicants claim for compensation saying that, in acquitting him, the jury took the view that the suspicion was not sufficient to reach a guilty verdict, but there was, however, no question of that suspicions being dispelled (para 29). The ECtHR said at para 30 that this left open a doubt as to the correctness of the acquittal and: The voicing of suspicions regarding an accuseds innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However, it is no longer admissible to rely on such suspicions once an acquittal has become final. Consequently, the reasoning of the Linz Regional Court and the Linz Court of Appeal is incompatible with the presumption of innocence. Accordingly, there had been a violation of article 6(2). The same approach to the application and violation of article 6(2) was taken in the similar case of Rushiti v Austria (2000) 33 EHRR 1331. The rationale for these decisions appears to be that voicing any suspicions of guilt in proceedings following an acquittal is incompatible with the presumption of innocence. The general aim of the presumption of innocence is to protect the accused against any judicial decision or other statements by state officials amounting to an assessment of the applicants guilt without him having previously been proved guilty according to law (para 31). The same reasoning was adopted, with the same result, in Hammern v Norway (Application No 30287/96) (unreported) 11 February 2003, paras 47 to 49. In Hammern, an acquitted person brought proceedings for compensation for damage suffered as a result of the prosecution. The relevant legislation provided for compensation where a person had been acquitted if it was shown to be probable that he did not carry out the act that formed the basis for the charge. The link between the compensation proceedings and the prosecution was sufficiently strong for article 6(2) to apply. The ECtHR emphasised the following points: (a) the decisions on compensation were taken under domestic criminal law provisions pursuant to which a person who had been charged could seek compensation with respect to matters directly linked to the criminal proceedings against him; (b) time limits for bringing the claim were directly linked to the conclusion of the criminal proceedings; (c) if possible the composition of the court had to be the same; (d) the damage engaged the responsibility of the state, not of a private party; (e) the outcome of the criminal proceedings was a decisive factor, it being a prerequisite that the person charged had been acquitted. ; and (f) there was a very large extent of overlap between the issues in the criminal trial and those in the compensation proceedings, the latter being determined on the basis of the evidence from the [criminal] trial. On the other hand, in Ringvold the applicant faced a criminal charge of a sexual offence against a young person (G) and a claim for compensation by G. Both proceedings were heard before the same jury at the same time. The jury acquitted the applicant of the offence and rejected Gs claim for compensation. The Supreme Court allowed Gs appeal and awarded her compensation. The ECtHR decided that article 6(2) did not apply to the compensation proceedings. The court held (para 38) that the second and third of the Engel criteria did not point to the compensation proceedings being a criminal charge. In particular, the civil claim was to be determined on the basis of principles that were proper to the civil law of tort. The outcome of the criminal proceedings was not decisive for the compensation case. The victim had a right to claim compensation regardless of whether the defendant was convicted or acquitted and the compensation issue was to be the subject of a separate legal assessment based on criteria and evidentiary standards which in several important respects differed from those that applied to criminal liability. At para 41, the court dealt explicitly with the question whether the links between the criminal proceedings and the compensation proceedings were sufficient to justify extending article 6(2) to apply to the latter. It concluded that the compensation case was not a direct sequel to the criminal proceedings because it was legally feasible to award G compensation despite the applicants acquittal. Lord Phillips says at para 32 that the distinction between claims for compensation by an acquitted defendant and claims for compensation by an alleged victim of an acquitted defendant is unconvincing and that it is not credible to say that the claim for compensation by the acquitted defendant is consequential and concomitant to the criminal proceedings but the claim by the victim is not. I would be less critical of the Strasbourg jurisprudence. In the view of the ECtHR, the crucial question is whether the subject matter of the civil proceedings is so closely connected with some criminal proceedings that the Convention protections available in the criminal proceedings should also be available in the civil proceedings. If the outcome of the criminal proceedings is decisive for the civil proceedings, then there is a sufficiently close connection for article 6(2) to apply. This will occur, for example, where an acquitted defendant claims compensation for his detention on remand and the costs he incurred in the criminal proceedings. The defendant would not have been detained or incurred the costs which he claims in the civil proceedings but for the criminal proceedings. The position of the person who claims damages as the victim of the defendant is different. As was said in Ringvold, the victim of the alleged crime has a right to claim damages regardless of whether the defendant has been convicted or acquitted. The victims claim is not even dependent on the defendant being prosecuted at all. There is, therefore, no link between the civil proceedings and any criminal proceedings that may have been instituted. The court held that the fact that an act may give rise to a civil claim in damages and also constitute a crime is not sufficient. There is also the point that, as was pointed out by the court in Ringvold, if the position were otherwise, article 6(2) would have the undesirable effect of pre empting the victims possibilities of claiming compensation under the civil law of tort, entailing an arbitrary and disproportionate limitation on his or her right of access to a court under article 6(1) of the Convention. This is a further indication that there is a real distinction between claims for compensation by an acquitted defendant and claims by an alleged victim of an acquitted defendant. To return to the present case and applying the Strasbourg jurisprudence, I would hold that there is no sufficient link between civil recovery proceedings under Part 5 of SOCA and any criminal proceedings to justify the application of article 6(2) to the Part 5 proceedings. Indeed, there is no link at all. The Part 5 proceedings are not a direct sequel or a consequence and the concomitant of any criminal proceedings. They are free standing proceedings instituted whether or not there have been criminal proceedings against the respondent or indeed anyone at all. The link with criminal proceedings is created by language used by the court in the civil proceedings But the Strasbourg jurisprudence shows that there may be a yet further route by which article 6(2) may apply to proceedings which (i) are not civil on an application of the Engel criteria and (ii) do not objectively have the necessary close link with criminal proceedings. There is a principle that, if in the civil proceedings, the courts decision contains a statement imputing the criminal liability of the [applicant], that of itself will be sufficient to create the necessary link for article 6(2) to apply in those proceedings. The clearest statement of this principle is to be found in Y v Norway (2005) 41 EHRR 87. The applicant was convicted of sexual assault and homicide. In linked civil proceedings he was ordered to pay compensation to the victims parents. On appeal, he was acquitted of the criminal charges, but the lower courts compensation order was upheld. His appeal against the compensation order was dismissed by the Supreme Court. Before the ECtHR, he complained that the award of compensation, despite the acquittal, violated article 6(2). Applying the approach to which I have referred at para 132 above, the court held that the acquittal did not in principle preclude the establishment of civil liability to pay compensation arising out of the same set of facts on the basis of a less strict standard of proof. If, however the national decision on compensation contains a statement imputing the criminal liability of the respondent party, this could raise an issue falling within the ambit of article 6(2) of the Convention (para 42). The court continued: 43. The Court will therefore examine the question whether the domestic courts acted in such a way or used such language in their reasoning as to create a clear link between the criminal case and the ensuing compensation proceedings as to justify extending the scope of the application of article 6(2) to the latter (emphasis added). 44. The Court notes that the High Court opened its judgment with the following finding: Considering the evidence adduced in the case as a whole, the High Court finds it clearly probable that [the applicant] has committed the offences against Ms T with which he was charged and that an award of compensation to her parents should be made under article 3 5 (2) of the Damage Compensation Act.(emphasis added) 45. This judgment was upheld by the majority of the Supreme Court, albeit using more careful language. However, that judgment, by not quashing the former, did not rectify the issue which in the Courts opinion thereby arises. 46. The Court is mindful of the fact that the domestic courts took note that the applicant had been acquitted of the criminal charges. However, in seeking to protect the legitimate interests of the purported victim, the Court considers that the language employed by the High Court, upheld by the Supreme Court, overstepped the bounds of the civil forum, thereby casting doubt on the correctness of that acquittal. Accordingly, there was a sufficient link to the earlier criminal proceedings which was incompatible with the presumption of innocence. 47. In the light of these considerations, the Court concludes that article 6(2) was applicable to the proceedings relating to the compensation claim against the present applicant and that this provision was violated in the instant case. Thus, the court has held that the necessary link between the criminal case and the civil proceedings can be created by the language in which the decision in the civil proceedings is expressed. In Y v Norway, the ECtHR held that the court had overstepped the bounds of the civil forum by deciding that the applicant had committed the criminal offences. It is worth considering two cases where this principle was applied to reach the opposite conclusion. The first is Moullet v France (Application No 27521/04) (unreported) 13 September 2007. The applicant was a former manager of the transport, workshop and warehouse department of Marseilles. He was charged with accepting bribes and aiding and abetting fraud. He was discharged by the criminal court and the proceedings terminated on the grounds that they were time barred. The Mayor of Marseilles then ordered the applicants compulsory retirement on the grounds that the evidence showed that the applicant had received bribes and that, although the criminal court had found the proceedings to be time barred, disciplinary action by the local authority was not subject to any time limitation. The Mayors decision was the subject of challenge in administrative court proceedings. The Conseil dEtat upheld the Mayors decision on the grounds that the disciplinary board and the disciplinary appeals board had based their findings on accurate facts and the reasoning behind the impugned sanction was not faulty and the reasons on which the decision was based were not materially or factually incorrect. The applicant complained to the ECtHR that there had been a violation of the presumption of innocence in breach of article 6(2). He contended that the Conseil dEtat should not have relied on the facts which formed the basis of the criminal charges. The court considered whether the Conseil dEtat used such language in its reasoning as to create a clear link between the criminal case and the ensuing administrative proceedings and thus to justify extending the scope of article 6(2) to cover the latter. The court noted that the applicant was not formally declared guilty of the criminal offence of accepting bribes by the Conseil dEtat. The Conseil dEtat had confined itself to determining the facts without suggesting any criminal characterisation whatsoever. It had confined itself to assessing the impact of the alleged facts on the duties and obligations of probity incumbent on all local and regional government staff. In other words, the domestic authorities managed in the instant case to keep their decision within a purely administrative sphere, where the presumption of innocence the applicant relied on did not obtain. The second example is Ringvold where the ECtHR said at para 38 that the impugned national ruling awarding compensation to the alleged victim of sexual abuse following the defendants acquittal did not state, either expressly or in substance, that all the conditions were fulfilled for holding the applicant criminally liable with respect to the charges of which he had been acquitted. The Supreme Court acknowledged that the standard of proof was stricter than the balance of probabilities, but less strict than that applied to establish criminal liability. It emphasised that its decision was taken independently of the decision in the criminal case and did not undermine the acquittal. It seems, therefore, that the necessary link can be created by this route only if the court in the civil proceedings bases its decision adverse to the defendant using language which casts doubt on the correctness of an acquittal. The rationale must be that in such a case the court has chosen to reach its decision by explicitly finding that a criminal charge has been committed. If it chooses to reach its decision in that way, then the protections afforded by article 6(2) should be available as if the civil proceedings were criminal proceedings. But if the decision in the civil proceedings is based on reasoning and language which goes no further than is necessary for the purpose of determining the issue before that court and without making imputations of criminal liability, then the necessary link will not have been created. The distinction can be illustrated by reference to the common example of the case where A is acquitted of assaulting B, but B brings a claim for damages in tort. The ECtHR recognises in principle that article 6(2) does not apply to the claim for damages: see, for example, Ringvold para 38. Thus the acquittal ought to stand in the compensation proceedings, but it does not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof. The fact that the findings of fact in the compensation proceedings may implicitly cast doubt on the acquittal is not enough to import article 6(2). What is required is that the decision in the compensation proceedings contains a statement imputing criminal liability (emphasis added) (Y v Norway para 42) for article 6(2) to be imported. The idea seems to be that article 6(2) applies if the court treats the compensation proceedings as if they are proceedings in which the issue of criminal liability falls to be determined. The most obvious way of doing this is to state expressly or, perhaps by necessary implication, that the defendant was wrongly acquitted. There is, of course, no need for the court to create the link with the criminal proceedings in this way because, as the ECtHR explains in Ringvold, the compensation proceedings are not directly concerned with the outcome of the criminal proceedings. It will be seen that the circumstances in which the necessary link can be created when otherwise it would not exist echo the circumstances in which article 6(2) may be violated where the link is otherwise sufficiently close. In practice, therefore, if the court imputes criminal liability to an individual, article 6(2) will apply whether or not the link between the two proceedings is otherwise sufficiently close. But the analysis adopted by the ECtHR suggests that the issue should be addressed sequentially in the way that I have described. I can now turn to consider whether Griffith Williams J did impute criminal liability to the appellants or cast doubt on their acquittal. SOCAs case is that the wealth of Mr and Mrs Gale has been acquired through money laundering and tax evasion in the United Kingdom, Spain, Portugal and elsewhere. Criminal proceedings for drug trafficking offences were started against Mr Gale in Spain, but these were discontinued because the relevant time limits had been exceeded. He was acquitted of drug trafficking offences in Portugal after a trial. At para 18 of his judgment, Griffith Willams J said that what was in issue before him was not the commission of the specific offences alleged against DG in Portugal but whether on all the evidence (including but not limited to the evidence considered by the Portuguese Court and that which was available to the Spanish Courts) SOCA had proved that the wealth of Mr and Mrs Gale had been obtained through unlawful conduct. Nowhere in his judgment does the judge depart from this view of the case. I accept the submission of Mr Peto QC that none of the judges findings specifically calls into question the correctness of Mr Gales acquittal in Portugal. As for the drug trafficking proceedings in Spain, these were discontinued. Even if (contrary to my view) the judge had made specific findings that Mr Gale was guilty of the Spanish offences, these findings could not be relied on by Mr Mitchell QC. That is because article 6(2) would only apply if there had been an acquittal on the merits and not one solely based on a time bar (as the discontinuance in the Spanish proceedings was): see Leutscher v The Netherlands (1996) 24 EHRR 181 and R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1 para 10. For these reasons, I would dismiss the appeal on the first issue. I should add that I do not find it necessary to express any view on the application of Geerings v The Netherlands (2007) 46 EHRR 1222 or R v Briggs Price [2009] AC 1026 to the present case. On the second issue, I agree with the judgment of Lord Clarke.	The Serious Organised Crime Agency (SOCA) obtained an order under Part 5 of the Proceeds of Crime Act 2002 (POCA) for the recovery of property to the value of 2m from the appellants. The order was made on the basis that the court was satisfied pursuant to section 241(3) of POCA on the balance of probabilities (the civil standard of proof) that the property was derived from criminal activity in the form of drug trafficking, money laundering and tax evasion, offences for which the appellants had not been convicted. Mr Gale had been acquitted of drug trafficking in Portugal and criminal proceedings in Spain against him were discontinued. The appellants argued that the application of the civil standard of proof, rather than the criminal standard of beyond reasonable doubt, breached their right to a fair trial under article 6 of the European Convention on Human Rights. They asked the court either to interpret s 241 to require the application of the criminal standard of proof, or to make a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998. The judge, Griffith Williams J, refused to do so and the appellants appeal to the Court of Appeal on this issue was dismissed. The appellants also objected to the making of an order under section 246 of POCA that they should bear the costs of the report made by the Interim Receiver appointed by the court in connection with the recovery proceedings against them. The High Court had refused to make such an order, but this decision was reversed by the Court of Appeal. The Supreme Court unanimously dismisses the appeal on the article 6 and the costs issues. Lord Phillips gives the main judgment on the first issue and Lord Clarke on the second. Lord Brown and Lord Dyson add concurring judgments on the first issue. The article 6 issue The appellants case was that an essential stepping stone towards proving that the relevant property was the product of crime was proof that the appellants were guilty of criminal conduct. In these circumstances it was argued that they were entitled to the presumption of innocence afforded by article 6(2), and that rebutting this required proof of guilt to the criminal standard. Further, it was said that no adverse finding could be made which implicated the first appellant in the conduct of which he had been acquitted in the Portuguese criminal proceedings [14]. Having reviewed the case law of the European Court of Human Rights at Strasbourg on the application of article 6(2) after a person has been acquitted in criminal proceedings, Lord Phillips observed that some of the decisions were mutually inconsistent. However, a common factor in cases involving subsequent proceedings was that the court required a procedural connection between the two sets of proceedings before article 6(2) applied to civil claims [21]. In this case, the link between the Portuguese proceedings and the English civil proceedings was not there. The English court was not precluded from considering the evidence which formed the basis of the charges in Portugal [35]. In the absence of such a link, there was no reason in principle why confiscation should not be based on evidence which satisfied the civil standard of proof, notwithstanding that such evidence had proved insufficiently compelling to found a conviction on the application of the criminal standard [44]. The starting point was possession of property by the appellants for whose provenance they were unable to provide a legitimate explanation. There was an abundance of evidence which implicated them in criminal activity that provided the explanation for the property that they owned [55]. Lord Brown remarked that an authoritative Grand Chamber decision from Strasbourg clarifying and rationalising this whole confusing area of the courts case law was required [117]. Lord Clarke agreed [60]. Lord Dyson was less critical of the Strasbourg case law than Lord Phillips [131] but agreed that in this case there was no sufficient link between the two sets of proceedings. The English civil proceedings were not a direct sequel or consequence of any criminal proceedings and none of the judges findings specifically called into question the correctness of the first appellants acquittal in Portugal [142]. The costs order Lord Clarke stated that the costs issue raised a single question of principle: whether an order for costs in favour of SOCA made against a person for whom a recovery order has been made can include the investigation costs incurred by the interim receiver appointed under POCA. In this case, the receivers investigation took over three years and culminated in a final report of over 400 pages, in part because of a failure of the first appellant to cooperate with the receiver. The costs paid by SOCA totalled some 1m [72]. The jurisdiction to award costs was governed by section 51 of the Senior Courts Act 1981 which makes the costs of or incidental to proceedings recoverable at the discretion of the court, subject to any express rules [76]. The investigative costs in this case were plainly costs of or incidental to the proceedings. Investigative work was an essential part of civil recovery proceedings [79]. Nothing in POCA or in the Civil Procedural Rules precluded the court from making the order [81]. The position of a receiver appointed under Part 5 of POCA was significantly different from an ordinary receiver. As well as the duty to investigate, he had no power to sell the assets nor did he have a lien over them for his costs. There was a much closer relationship between the parties and an interim receiver. The Supreme Court agreed with the Court of Appeal that it would decline to follow the decision of the Court of Appeal in Northern Ireland in SOCA v Wilson [2009] NI 28, and dismissed the appeal [109].
These appeals are concerned with a little used provision in article 1F(c) of the Geneva Convention on the Status of Refugees (the Refugee Convention). This excludes from refugee status and protection any person with respect to whom there are serious reasons for considering that . he has been guilty of acts contrary to the purposes and principles of the United Nations. For the time being at least, however, the Home Secretary accepts that these appellants cannot be returned to their home countries because they face a real risk of torture or inhuman or degrading treatment or punishment there. It is the grant of refugee status, rather than the right to stay in this country, which is in issue in these proceedings. The issues in the two cases are different. In Al Sirri, the question is whether all activities defined as terrorism by our domestic law are for that reason alone acts contrary to the purposes and principles of the United Nations, or whether such activities must constitute a threat to international peace and security or to the peaceful relations between nations. In DD, the question is whether armed insurrection is contrary to the purposes and principles of the United Nations if directed, not only against the incumbent government, but also against a United Nations mandated force supporting that government, specifically the International Security Assistance Force (ISAF) in Afghanistan. Although the issues are different, many of the relevant materials are the same, as must be the general approach to article 1F(c), and so we deal with them in one judgment to avoid unnecessary repetition. In all article 1F cases, there is also the issue of the standard of proof: what is meant by serious reasons for considering a person to be guilty of the acts in question? (1) The general approach Relevant treaty and legislative provisions Article 1F of the Refugee Convention excludes three types of person from the definition of refugee: The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. It will be apparent that a particular act may fall within more than one of these categories. In particular, terrorism may be both a serious non political crime and an act contrary to the purposes and principles of the United Nations. Member States of the European Union are, moreover, bound to observe the standards laid down in Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (the Qualification Directive). Its main objective is to ensure common standards in the identification of people genuinely in need of international protection and a minimum level of benefits for them in all Member States (recital 6). Recital 22 deals with article 1F(c): Acts contrary to the purposes and principles of the United Nations are set out in the preamble and articles 1 and 2 of the Charter of the United Nations and are, amongst others, embodied in the United Nations Resolutions relating to measures combating terrorism, which declare that acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations. Article 12 of the Qualification Directive both reflects and expands slightly upon article 1F of the Refugee Convention (the changes and additions are italicised): 2. A third country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that: (a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he or she has committed a serious non political crime outside the country of refuge prior to his or her admission [to that country] as a refugee; which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non political crimes; (c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and articles 1 and 2 of the Charter of the United Nations. 3. Paragraph 2 applies to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein. The Qualification Directive is transposed into United Kingdom law by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525). Regulation 2 provides that refugee means a person who falls within article 1(A) of the Geneva Convention and to whom regulation 7 does not apply. Regulation 7(1) states that A person is not a refugee, if he falls within the scope of article 1D, 1E or 1F of the Geneva Convention. The Immigration Rules provide, in paragraph 334, that a person will be granted asylum, inter alia, if (ii) he is a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006. However, section 54 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act), provides: (1) In the construction and application of article 1F(c) of the Refugee Convention the reference to acts contrary to the purposes and principles of the United Nations shall be taken as including, in particular (a) acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate offence), and (b) acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence). (2) In this section the Refugee Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and terrorism has the meaning given by section 1 of the Terrorism Act 2000. There is no need to set out the definition of terrorism contained in section 1 of the 2000 Act. The essence is the use or threat of certain dangerous actions designed to influence this or any other government or intimidate the public for the purpose of advancing a political, religious, racial or philosophical cause. But if firearms or explosives are involved, the act or threat need not be designed to influence the government or intimidate the public. Terrorism designed solely to achieve political change within the United Kingdom, with no international repercussions, is clearly covered, as is terrorism committed here with a view to achieving internal political change in another country. The Preamble to the Charter of the United Nations recites the determination of the peoples of the United Nations to save succeeding generations from the scourge of war; to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small; to maintain justice and respect for international law; and to promote social progress and better standards of life in larger freedom; and for these ends to live together in peace, unite to maintain international peace and security, ensure that armed force is used only in the common good, and employ international machinery for the economic and social advancement of all peoples. The purposes of the United Nations are set out in article 1 of the Charter. The first purpose is 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace. The second is to develop friendly relations among nations based on respect for the principle of equal rights and self determination of peoples, and to take other appropriate measures to strengthen universal peace; the third is to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian nature, and in promoting and encouraging respect for human rights and for fundamental freedoms for all; and the fourth is to be a centre for harmonising the actions of nations in the attainment of these common ends. Article 2 of the Charter requires the United Nations and its Member States to act in accordance with the seven Principles set out therein. These are: the sovereign equality of all Members; the duties of all Members to fulfil their obligations under the Charter in good faith; to settle their disputes by peaceful means; to refrain from the threat or use of force against the territorial integrity or political independence of any state; to give the United Nations every assistance in taking action in accordance with the Charter and to refrain from assisting any state against which it is taking action; the duty of the United Nations to ensure that non member states act in accordance with these principles so far as may be necessary to maintain international peace and security; and, finally, that Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state . The general approach to article 1F(c) The appellants, with the support of the UNHCR, argue that article 1F must be interpreted narrowly and applied restrictively because of the serious consequences of excluding a person who has a well founded fear of persecution from the protection of the Refugee Convention. This was common ground in R (JS (Sri Lanka)) v Secretary of State for the Home Department [2010] UKSC 15, [2011] 1 AC 184, in the context of article 1F(a), and must apply a fortiori in the context of article 1F(c). Concern was expressed during the drafting of the Convention that the wording was so vague as to be open to misconstruction or abuse. Professor Grahl Madsen comments that It seems that agreement was reached on the understanding that the phrase should be interpreted very restrictively: The Status of Refugees in International Law, 1966, p 283. Secondly, article 1F(c) is applicable to acts which, even if they are not covered by the definitions of crimes against peace, war crimes or crimes against humanity as defined in international instruments within the meaning of article 1F(a), are nevertheless of a comparable egregiousness and character, such as sustained human rights violations and acts which have been clearly identified and accepted by the international community as being contrary to the purposes and principles of the United Nations. The appellants rely on Pushpanathan v Canada, Minister of Citizenship and Immigration (Canadian Council for Refugees intervening) [1998] 1 SCR 982 (Pushpanathan) per Bastarache J at para 65: .In my view, attempting to enumerate a precise or exhaustive list [of acts contrary to the purposes and principles of the United Nations] stands in opposition to the purpose of the section and the intentions of the parties to the Convention. There are, however, several types of acts which clearly fall within the section. The guiding principle is that where there is consensus in international law that particular acts constitute sufficiently serious and sustained violations of fundamental human rights as to amount to persecution, or are explicitly recognised as contrary to the purposes and principles of the United Nations, then article 1F(c) will be applicable. On the other hand, not every act which is condemned by the United Nations is for that reason alone to be deemed contrary to its purposes and principles. In Pushpanathan itself, the majority held that international drug trafficking did not fall within article 1F(c), despite the co ordinated efforts of the international community to suppress it, through United Nations treaties, declarations and institutions. As the UNHCR explains, in its Background Note on the Application of the Exclusion Clauses: Article 1F (September 2003), at para 47: The principles and purposes of the United Nations are reflected in myriad ways, for example by multilateral conventions adopted under the aegis of the UN General Assembly and in Security Council resolutions. Equating any action contrary to such instruments as falling within article 1F(c) would, however, be inconsistent with the object and purpose of this provision. Rather, it appears that article 1F(c) only applies to acts that offend the principles and purposes of the United Nations in a fundamental manner. Article 1F(c) is thus triggered only in extreme circumstances by activity which attacks the very basis of the international communitys co existence under the auspices of the United Nations. The key words in article 1F(c) acts contrary to the purposes and principles of the United Nations should therefore be construed restrictively and its application reserved for situations where an act and the consequences thereof meet a high threshold. This threshold should be defined in terms of the gravity of the act in question, the manner in which the act is organised, its international impact and long term objectives, and the implications for international peace and security. Thus, crimes capable of affecting international peace, security and peaceful relations between states would fall within this clause, as would serious and sustained violations of human rights. Thirdly, for exclusion from international refugee protection to be justified, it must be established that there are serious reasons for considering that the person concerned had individual responsibility for acts within the scope of article 1F(c): see the detailed discussion at paras 50 to 75 of the UNHCR Background Note. This requires an individualised consideration of the facts of the case, which will include an assessment of the persons involvement in the act concerned, his mental state and possible grounds for rejecting individual responsibility. As a general proposition, individual responsibility arises where the individual committed an act within the scope of article 1F(c), or participated in its commission in a manner that gives rise to individual responsibility, for example through planning, instigating or ordering the act in question, or by making a significant contribution to the commission of the relevant act, in the knowledge that his act or omission would facilitate the act. In Bundesrepublik Deutschland v B and D (Joined Cases C 57/09 and C 101/09) [2011] Imm AR 190 (B and D) the Grand Chamber of the Court of Justice of the European Union confirmed the requirement of an individualised assessment and held that it was not justifiable to base a decision to exclude solely on a persons membership of a group included in a list of terrorist organisations. This too is consistent with the approach adopted by this Court in R (JS (Sri Lanka)) v Secretary of State for the Home Department [2011] 1 AC 184. In our view, this is the correct approach. The article should be interpreted restrictively and applied with caution. There should be a high threshold defined in terms of the gravity of the act in question, the manner in which the act is organised, its international impact and long term objectives, and the implications for international peace and security. And there should be serious reasons for considering that the person concerned bore individual responsibility for acts of that character. However, those general observations are not enough in themselves to resolve the questions raised by the two cases before us, to which we now turn. (2) The case of Al Sirri The facts The appellant is a citizen of Egypt. He arrived in the United Kingdom in April 1994 and claimed asylum then. His claim was eventually turned down on 11 October 2000, on the ground that article 1F(c) of the Refugee Convention applied to him, but he was told that he would be granted exceptional leave to enter the United Kingdom. That never happened, but on 1 April 2004 he was granted discretionary leave to enter which has been extended for periods of six months at a time ever since. Under section 83 of the Nationality, Immigration and Asylum Act 2002, the grant of discretionary leave for an aggregate of more than a year also gave him the right to appeal against the refusal of asylum. This he did in September 2006. On 2 August 2007, the Asylum and Immigration Tribunal (the AIT) (Hodge J, President, Senior Immigration Judge Lane and Immigration Judge Woodhouse) dismissed his appeal. On 18 March 2009, the Court of Appeal (Sedley, Arden and Longmore LJJ) set aside the Tribunals determination and remitted the case to be determined afresh by a differently constituted tribunal: [2009] EWCA Civ 222, [2009] INLR 586. Nevertheless, the appellant has appealed to this Court because he takes issue with some aspects of the leading judgment given by Sedley LJ. The Home Secretary relied upon seven matters to show that there are serious reasons for considering that the appellant has been guilty of acts contrary to the purposes and principles of the United Nations. Four of these are accepted facts: (i) that the appellant had published and written the Foreword to an Arabic language book, Bringing to light some of the most important judgments in Islam; the author, Rifai Ahmed Musa, has been credibly named as having been a member of the Egyptian organisation, al Gamma al Islamiyya; the AIT pointed out that that organisation is proscribed under the Terrorism Act 2000, and also in Canada and the United States and within the European Union by Council Common Position 2005/936/CFSP; (ii) that the appellant was in possession of an unpublished Arabic manuscript, Expectations of the Jihad Movement in Egypt; the author, Ayman Al Zawahiri, is a former leader of the organisation, Egyptian Islamic Jihad; (iii) that the appellant possesses books and videos relating to Osama bin Laden and Al Qaeda; (iv) that the appellant had transferred money to and from foreign countries, allegedly in sums greater than his known income could explain. The AIT relied upon a long and detailed statement from Acting Detective Inspector Dingemans of the Counter Terrorism Command at Scotland Yard, containing what Sedley LJ described as a damaging account and analysis of the material found at Mr Al Sirris premises (para 67). Sedley LJ commented that the preferable course would have been for the AIT to be shown the documentary material supporting the allegations, to hear what both sides had to say about it, to consider any explanations given by the appellant, and to make up their own mind about it. The Court of Appeal was not satisfied that this material, together with the more serious allegation referred to in para 22 below, would inevitably have led the AIT to conclude that the appellant fell within article 1F(c); it follows that they would not have been so satisfied on the basis of the above material alone. Two of the matters relied upon were more serious, but the Court of Appeal ruled that the AIT was required by law to give them no weight, and the Home Secretary has not appealed against that ruling: (i) that the appellant has twice been convicted in his absence by the Supreme Military Court of Egypt: in March 1994, when he was sentenced to death for conspiracy to kill Dr Atef Sidqi, Prime Minister of Egypt; and in January 1999, when he was sentenced to 15 years imprisonment for membership of a terrorist organisation. These convictions cannot be relied upon because they were probably secured by the use of torture. Although the AIT placed little weight upon them, the Court of Appeal correctly ruled that this was a serious error of law, and the only principled way of dealing with them was to afford them no weight at all (para 44); (ii) that a grand jury in the United States District Court for the Southern District of New York had indicted him for allegedly providing material support to a terrorist organisation, al Gamma al Islamiyya, and soliciting the commission of a crime of violence. The AIT had accorded this substantial weight, although none of the evidence on which the indictment was based had been disclosed, and as a result (under extradition law as it then stood) the Home Secretary had declined to authorise an extradition request based upon the indictment to proceed. The Court of Appeal ruled that it should be accorded no evidential weight whatsoever. This leaves the most important matter relied upon: that the appellant had conspired in the murder of General Ahmad Shah Masoud in Afghanistan on 9 September 2001, just two days before the atrocities of 11 September 2001. The background to this is common knowledge, some of which is confirmed by the witness statement of General Masouds brother, Charg dAffaires in London for the Islamic State of Afghanistan. This was then the recognised government of Afghanistan and General Masoud was its Vice President and Defence Minister. But at the time the Taliban were in control of most of the country, apart from the territory in the north east of the country which was under the control of the Northern Alliance. General Masoud was leader of the Northern Alliance. Earlier that year he had travelled to Europe to address the European Parliament on the situation in Afghanistan and it is said that he had warned of an impending Al Qaeda attack upon the United States on a larger scale than the bombing of the US embassies in Kenya and Tanzania in 1998. It is also believed that his assassination may have been ordered by Osama bin Laden to cut off the most obvious source of support for US retaliation against such an attack. Be that as it may, the appellant was indicted at the Old Bailey for conspiracy to murder General Masoud. The case against him was described by the Common Serjeant as follows. The General had been murdered by two Arab suicide bombers posing as a journalist and photographer who had been granted an interview with him. A letter of introduction, purportedly signed by the appellant, from the Islamic Observation Centre (IOC) which was run by the appellant in London, and informing the reader that the two were journalists of Arab News International, a TV subsidiary of the IOC, had played a part in securing this interview. However, the letters actually carried by the assassins at the time of the murder were in fact, as the Common Serjeant put it, careful and elaborate forgeries of the letters that the appellant had created. So did the appellant know that the letters which he created were to be used to secure an interview with the General at which he would be killed? Or were they used by the assassins as a template for the letters which they would forge, the appellant being an innocent fall guy who knew nothing of their intended use? The Common Serjeant concluded that the evidence was as consistent with the innocence of the accused (who had made no secret of his authorship of the templates which could easily be traced to him and had not destroyed any of the relevant documentation in his possession) as it was with his guilt. Accordingly, on 16 May 2002, he dismissed the charge on the ground that the evidence would not be sufficient for a jury properly to convict. The AIT reminded themselves that the standard of proof in criminal proceedings is not the same as that under article 1F(c). They concluded that the evidence seriously points to some knowing involvement of the appellant in the events which led to the death of General Masoud (para 46). Sedley LJ considered whether this conclusion, together with the Dingemans evidence referred to in para 19 above, would have been bound to lead to a finding adverse to the appellant (para 62). He concluded that there was a realistic possibility that a tribunal of fact, confining itself to the admissible evidence and excluding the two items ruled inadmissible by the Court of Appeal, might have rejected the submission that the appellant fell within article 1F(c) (para 64). Hence the case was remitted to be determined afresh on the basis of the admissible evidence. Why then this appeal? The appellant originally took issue with the Court of Appeal on three matters: (1) The Court of Appeal rejected his argument that article 1F was aimed only at state actors people who had in some way abused the powers of a sovereign state. Although this had the support both of academic commentators on the Refugee Convention and of the UNHCR, it had been rejected as an absolute rule by the Supreme Court of Canada in Pushpanathan. The appellant was originally given permission to argue the point in this Court, but has now abandoned it in the light of the later decision of the Court of Justice of the European Union in B and D. In these proceedings, Mr Fordham QC, who appears for the UNHCR, has accepted that it is possible for non state actors to be guilty of acts contrary to the purposes and principles of the United Nations. (2) Sedley LJ saw the force of the appellants submission that terrorism must have an international character or aspect in order to come within article 1F(c) (paras 29 and 32). However, he did not think that this helped the appellant. On the face of it, the assassination was in support of a domestic Afghan quarrel. The international repercussions were referred to but not described by the AIT. But what in his view gave it a dimension which brought it within the purposes and principles of the United Nations was that, if true, it involved the use of a safe haven in one state to destabilise the government of another by the use of violence (para 51). The appellant wishes, therefore: (i) clearly to establish that the act in question must have an international character, because the relevant purposes and principles of the United Nations are limited to matters which significantly affect international peace and security; and (ii) clearly to establish that it is not enough to supply that international character that actions are taken in one state to destabilise the government of another. (3) Sedley LJ rejected the submission that serious reasons for considering the appellant to be guilty of acts falling within article 1F(c) imported the criminal standard of proof (paras 33 to 35). The appellant was originally refused permission to appeal on this ground. But he now wishes to appeal on the different ground that, for there to be such serious reasons, it must be found more likely than not that the appellant is guilty of the relevant acts. This is of particular importance in his case, because of the Common Serjeants finding that the evidence was as consistent with his innocence as with his guilt. An international dimension? The question is whether labelling an act as terrorism or a person as a terrorist is sufficient to bring the act or the person within the scope of article 1F(c). Before the Court of Appeal, Mr Eicke QC, on behalf of the Home Secretary, did not dispute that article 1F(c) was not as wide as the definition of terrorism in section 1 of the Terrorism Act 2000 (see para 29). Further, by common consent the Qualification Directive conditions and qualifies the application of section 1 of the Terrorism Act to article 1F proceedings (see para 28). Before this Court, Mr Eicke has withdrawn any such concession and argues that, because the United Nations has condemned terrorism but not defined it, Member States are free to adopt their own definitions and that, therefore, acts falling within the domestic definition of terrorism will also be acts contrary to the purposes and principles of the United Nations, whether or not they have any international dimension or repercussions for international peace and security. In support of his argument, he cites the numerous General Assembly and Security Council resolutions on the subject of terrorism, sometimes with and sometimes without the adjective international. In 1994, the General Assembly of the United Nations adopted, by resolution 49/60, the annexed Declaration on Measures to Eliminate International Terrorism. By article 1: The States Members of the United Nations solemnly reaffirm their unequivocal condemnation of all acts, methods and practices of terrorism, wherever and by whomever committed, including those which jeopardise the friendly relations among states and peoples and threaten the territorial integrity and security of states. By article 2: Acts, methods and practices of terrorism constitute a grave violation of the purposes and principles of the United Nations, which may pose a threat to international peace and security, jeopardise friendly relations among states, hinder international cooperation and aim at the destruction of human rights, fundamental freedoms and democratic bases of society. And by article 3: Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them. By article 5(f), states were required to take effective measures before, among other things, granting asylum to ensure that the asylum seeker has not engaged in terrorist activities. In 1996, the General Assembly adopted, by resolution 51/210, the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism. By article 3: The States Members of the United Nations reaffirm that States should take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum seeker has not participated in terrorist acts, . and, after granting refugee status, for the purpose of ensuring that that status is not used for the purpose of preparing or organising terrorist acts intended to be committed against other states or their citizens. Declarations are not, of course, binding in international law. Resolution 51/210 referred to the possibility of considering in the future the elaboration of a comprehensive convention on international terrorism and established an ad hoc committee to that end; a draft text has been prepared for discussion but as yet no such Convention has been agreed. In the meantime, a number of specific Conventions requiring states to criminalise certain particular acts of terrorism have been agreed. The Security Council has passed numerous resolutions concerning threats to international peace and security caused by acts of terrorism, including Resolution 1624 of 2005. Paragraph 8 of the Preamble to this reaffirms that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations, as is knowingly financing, planning and inciting terrorist acts. But paragraph 2 also stresses that States must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights law, refugee law, and humanitarian law. Mr Fitzgerald QC, on behalf of the appellant, argues that an act of terrorism can only be contrary to the purposes and principles of the United Nations if it impacts in some significant way upon international peace and security. In the Guidelines on International Protection: Application of Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 2003, para 17, the UNHCR takes a view of terrorism which is consistent with the general principles quoted above at para 14: In cases involving a terrorist act, a correct application of article 1F(c) involves an assessment as to the extent to which the act impinges on the international plane in terms of its gravity, international impact, and implications for international peace and security. This position is maintained in the UNHCRs Note on the Impact of Security Council Resolution 1624 (2005) on the Application of Exclusion under Article 1F of the 1951 Convention relating to the Status of Refugees: The focus should . continue to be on the nature and impact of the acts themselves. In many cases, the acts in question will meet the criteria for exclusion as serious non political crimes within the meaning of article 1F(b). In others, such acts may come within the scope of article 1F(a), for example as crimes against humanity, while those crimes whose gravity and international impact is such that they are capable of affecting international peace, security and peaceful relations between states would be covered by article 1F(c) of the 1951 Convention. Thus, the kinds of conduct listed in [preambular paragraph] 8 of Resolution 1624 ie acts, methods and practices of terrorism and knowingly financing, planning and inciting terrorist acts qualify for exclusion under article 1F(c), if distinguished by these larger characteristics. (Emphasis supplied) B and D was decided by the Grand Chamber of the CJEU after the decision of the Court of Appeal in Al Sirri. The principal question referred by the Bundesverwaltungsgericht was whether mere membership of or support for an organisation listed in the Annex to the Council Common Position of 17 June 2002 on the application of specific measures to combat terrorism constituted a serious non political crime within article 12(2)(b) or an act contrary to the purposes and principles of the United Nations within article 12(2)(c) of the Qualification Directive. The Advocate General drew a distinction between terrorist acts in general, which depending upon the circumstances were likely to be categorised as serious non political crimes, and terrorist acts which were contrary to the purposes and principles of the United Nations. As to the latter, in his view, the UNHCR Guidelines and Background Note suggested that it is nevertheless necessary to verify whether they have an international dimension, especially in terms of their seriousness and their impact and implications for international peace and security. Within those limits, it therefore seems permissible to make a distinction between international terrorism and domestic terrorism (para 70, Adv Gen). The Grand Chamber confirmed that terrorist acts, even if committed with a purportedly political objective, fall to be regarded as serious non political crimes (para 81). Coming on to acts contrary to the principles and purposes of the United Nations, the Grand Chamber thought it clear from the Security Council Resolutions that the Security Council takes as its starting point the principle that international terrorist acts are generally speaking, and irrespective of any state participation, contrary to the purposes and principles of the United Nations (para 83). It is for that reason that the appellant has conceded that non state actors can be guilty of such acts. The Grand Chamber continued (para 84): It follows that as is argued in their written observations by all the governments which submitted such observations to the court, and by the European Commission the competent authorities of the Member States can also apply article 12(2)(c) of Directive 2004/83 to a person who, in the course of his membership of an organisation which is on the list forming the Annex to Common Position 2001/931, has been involved in terrorist acts with an international dimension. The B and D case is prayed in aid on each side of the argument. Mr Eicke, for the Secretary of State, correctly points out that the international dimension was not what the case was all about. The principal issue was whether mere membership of and support for a listed organisation was sufficient for either article 12(2)(b) or (c) to apply. The answer to this question was clearly no. The national authorities had first to consider whether the acts committed by the organisation fell within those provisions and secondly whether individual responsibility for carrying out those acts could be attributed to the persons concerned. In that context, little weight could be attached to the references to international terrorism and terrorist acts with an international dimension. Against that, argues Mr Fitzgerald, it is clear that both the Advocate General and the Grand Chamber were drawing a distinction between paragraphs (b) and (c) of article 12(2). There is no mention of an international element in the terrorist acts which could fall within paragraph (b), whereas the international element is referred to whenever reference is made to paragraph (c). Discussion and conclusions Approaching the matter in the light of the general principles discussed earlier, it is clear that the phrase acts contrary to the purposes and principles of the United Nations must have an autonomous meaning. It cannot be the case that individual Member States are free to adopt their own definitions. As Lord Steyn said in R v Secretary of State for the Home Department, Ex p Adan [2000] UKHL 67, [2001] 2 AC 477, In principle, there can be only one true interpretation of a treaty. There is, at least as yet, no specialist international court or other body to adjudicate upon Member States compliance with the Refugee Convention. The guidance given by the UNHCR is not binding, but should be accorded considerable weight, in the light of the obligation of Member States under article 35 of the Convention to facilitate its duty of supervising the application of the provisions of the Convention (see R v Asfaw [2008] AC 1061, per Lord Bingham at para 13, and R v Uxbridge Magistrates Court, Ex p Adimi [2001] QB 667, 678). Within the European Union the Qualification Directive is designed to lay down minimum standards with which Member States must comply. Sedley LJ correctly concluded that the adoption by section 54(2) of the 2006 Act of the meaning of terrorism contained in the 2000 Act has where necessary to be read down in an article 1F[(c)] case so as to keep its meaning within the scope of article 12(2)(c) of the Directive. The United Nations Security Council has declared that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and this is repeated in recital 22 to the Qualification Directive. But it has done so in a context where there is as yet no internationally agreed definition of terrorism, no comprehensive international Convention binding Member States to take action against it, and where the international declarations adopted by the General Assembly are headed Measures to eliminate international terrorism. Above all, however, the principal purposes of the United Nations are to maintain international peace and security, to remove threats to that peace, and to develop In those circumstances, it is our view that the appropriately cautious and friendly relations among nations. It is also noteworthy that the CJEU, despite recital 22 to the Directive, consistently referred to international terrorism, when discussing article 12(2)(c) in B and D. restrictive approach would be to adopt para 17 of the UNHCR Guidelines: Article 1F(c) is only triggered in extreme circumstances by activity which attacks the very basis of the international communitys coexistence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights would fall under this category. The essence of terrorism is the commission, organisation, incitement or threat of serious acts of violence against persons or property for the purpose of intimidating a population or compelling a government or international organisation to act or not to act in a particular way (see, for example, the definition in article 2 of the draft comprehensive Convention), as Sedley LJ put it in the Court of Appeal, the use for political ends of fear induced by violence (para 31). It is, it seems to us, very likely that inducing terror in the civilian population or putting such extreme pressures upon a government will also have the international repercussions referred to by the UNHCR. In this particular case, the AIT did not consider that any such repercussions were required, but commented that if we are wrong about that we consider the killing itself to be an act of terrorism likely to have significant international repercussions, as indeed it appears to have done (para 47). When the case returns to the Tribunal, the Tribunal will have to consider the totality of the evidence and apply the test set out above. Finally, is it enough to meet that test that a person plots in one country to destabilise conditions in another? This must depend upon the circumstances of the particular case. It clearly would be enough if the government (or those in control) of one state offered a safe haven to terrorists to plot and carry out their terrorist operations against another state. That is what the Taliban were doing by offering Osama bin Laden and Al Qaeda a safe haven in Afghanistan at the time. As the UNHCR says, this would have clear implications for inter state relations. The same may not be true of simply being in one place and doing things which have a result in another. The test is whether the resulting acts have the requisite serious effect upon international peace, security and peaceful relations between states. (3) The case of DD The facts The appellant is a citizen of Afghanistan. He arrived in the United Kingdom on 18 January 2007 and applied for asylum on the same day. The basis of his claim was that he feared persecution because of his association with his brother AD, who was a well known Jamiat e Islami commander in Afghanistan. Following the fall of the Najibullah government in 1992, the appellants brother became responsible for other commanders in the north of Afghanistan and formed a number of strategic alliances, ultimately allying himself with the Taliban. The appellant acted as his deputy and commanded between 50 and 300 men. He was later demoted and reduced to the command of no more than 20 men. Following US military intervention in Afghanistan, the appellant and his brother fled to Pakistan. In 2004, the appellants brother was assassinated in Pakistan by his enemies who held positions in the Karzai government of Afghanistan. The appellant was also a target of the assassination attempt and sustained gunshot injuries. After about a month, he returned to Afghanistan and sought protection from his enemies by joining a military grouping, Hizb e Islami. He commanded 10 15 people and engaged in both offensive and defensive military operations against both the Afghan government and the forces of ISAF. The appellants nephew (the son of his deceased brother) was killed in Peshawar in about September 2006. The appellant was ordered to fight in his home area. He decided that it would be too dangerous for him to do so as he had enemies there who were high ranking members of the Karzai government. He fled once again to Pakistan and arrangements were made through an agent for him to travel from there to the United Kingdom. He claimed asylum saying that he feared that, if he were returned to Afghanistan, he would be killed by his deceased brothers enemies or by Hizb e Islami as a traitor. By letter dated 27 April 2007, the Secretary of State refused the claim on the grounds that the appellants account was not credible. In particular, he did not accept the account that he gave of his role in Hizb e Islami. By letter dated 6 August 2007, the Secretary of State gave supplementary reasons for the refusal. These were that, even if the appellants claimed activities in Afghanistan were substantiated, he was not entitled to asylum in any event. This was because his claim that he had fought against ISAF, if accepted, meant that he had been guilty of acts contrary to the purposes and principles of the United Nations and was therefore excluded from the definition of refugee by reason of article 1F(c) of the Refugee Convention. The appellant appealed to the Asylum and Immigration Tribunal (AIT). IJ Morgan found the appellant to be credible and allowed his appeal under the Refugee Convention and under article 3 of the European Convention on Human Rights (ECHR). He had a well founded fear of persecution by his brothers enemies some of whom were members of the Karzai government. The judge was not persuaded that the appellant had been guilty of acts contrary to the purposes and principles of the United Nations. For reasons that are immaterial to the present appeal, a second stage reconsideration was ordered by SIJ Moulden. The second stage reconsideration was conducted by IJ Simpson who, by a determination promulgated on 28 August 2008, allowed the appellants appeal on both asylum and article 3 of the ECHR grounds. The judge found the appellant to be credible, except that she rejected his assertion that his actions with Hizb e Islami in Afghanistan were defensive. He had a longstanding history of military involvement in Afghanistan, including at a high level, deputy to his Commander brother, and independently a Commander in Hizb e Islami Hekmatayar in Kunar. There were prima facie grounds for considering his actions were both offensive and defensive. As regards article 1F(c), the judge concluded that section 54 of the 2006 Act (see para 7 above), which came into effect on 31 August 2006, appeared to have effected a substantive change in the law and that, as a matter of natural justice, it applied only to acts after it came into force, that is from September 2006. She concluded at para 151: Having regard to the combined lack of specificity of evidence of the appellants conduct with Hizb e Islami and the highly reasonable likelihood, given the chronology, that his involvement with Hizb e Islami was at its end stage after September 2006 and the coming into effect of section 54, I find in sum there are not serious grounds for considering he committed a barred act(s). I find article 1F(c) does not apply. The Court of Appeal The issues before the Court of Appeal concerned (i) the interpretation and applicability of the 2006 Act and (ii) whether and, if so, to what extent on the AITs findings the appellant had been guilty of acts contrary to the purposes and principles of the United Nations within the meaning of article 1F(c) of the Refugee Convention. Pill LJ (with whom Rimer and Black LJJ agreed) allowed the Secretary of States appeal. He held that, on the findings of the AIT, the appellant had not committed any acts of terrorism within the meaning of section 54 of the 2006 Act. The nub of the courts reasoning on the article 1F(c) point is contained in para 64 of Pill LJs judgment: The UN Security Council has mandated forces to conduct operations in Afghanistan. The force is mandated to assist in maintaining security and to protect and support the UNs work in Afghanistan so that its personnel engaged in reconstruction and humanitarian efforts can operate in a secure environment. Direct military action against forces carrying out that mandate is in my opinion action contrary to the purposes and principles of the United Nations and attracts the exemption provided by article 1F(c) of the Convention. As we explain below, we substantially agree with this conclusion. The Court of Appeal nevertheless remitted the case for reconsideration by the Upper Tribunal because the AIT had failed to consider the appellants individual responsibility as required by this Court in JS (Sri Lanka) (and by the CJEU in B and D) and whether he had been guilty of acts contrary to the purposes and principles of the United Nations. The United Nations and Afghanistan Ever since the Soviet withdrawal from Afghanistan in 1989, the United Nations has been trying to bring an end to the fighting that has been taking place in that country. As long ago as 28 August 1998, Security Council Resolution 1193 called for a ceasefire and expressed grave concern about the continuing Afghan conflict and the Taliban forces offensive which was causing a serious and growing threat to regional and international peace and security, as well as extensive human suffering. Similar resolutions followed. For security reasons, all international United Nations personnel were withdrawn from Afghanistan in September 2001. On 5 December 2001, the participants in the United Nations Talks on Afghanistan entered into the Bonn Agreement on Provisional Arrangements in Afghanistan Pending the Re establishment of Permanent Government Institutions. The participants pledged their commitment to do all within their means and influence to ensure that security was provided in Afghanistan. They agreed that an Interim Authority should be established (to be the repository of Afghan sovereignty) and that, pending the establishment and training of new Afghan security and armed forces, they would request the United Nations Security Council to consider authorising the early deployment in Afghanistan of a United Nations mandated force to assist in the maintenance of security in Kabul and its surrounding areas. By Resolution 1383 (6 December 2001), the Security Council endorsed the Bonn Agreement. By Resolution 1386 (20 December 2001), acting under Chapter VII of the United Nations Charter, the Security Council authorised the establishment for 6 months of ISAF to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas, so that the Afghan Interim Authority as well as the personnel of the United Nations can operate in a secure environment. The resolution (i) authorised the Member States participating in ISAF to take all necessary measures to fulfil its mandate; called upon ISAF to work in close consultation with the Afghan Interim Authority in the implementation of the force mandate; (ii) called upon all Afghans to cooperate with ISAF; and (iii) called upon the Member States participating in ISAF to provide assistance to help the Afghan Interim Authority in the establishment and training of new Afghan security and armed forces. On 18 March 2002, the Secretary General submitted a long report entitled The situation in Afghanistan and its implications for international peace and security. The report contained a good deal of detail about the situation and expressed the hope that the Security Council would support the wish of the Afghan people for the expansion of the operation of ISAF. At para 95, it said: the next step, to ensure that all United Nations efforts are harnessed to fully support the implementation of the Bonn Agreement, would be to integrate all the existing United Nations elements in Afghanistan into a single mission, the United Nations Assistance Mission in Afghanistan (UNAMA). The missions mandate would be (i) to fulfil the tasks and responsibilities, including those related to human rights, the rule of law and gender issues, entrusted to the United Nations in the Bonn Agreement, which were endorsed by the Security Council in its resolution 1383 (2001); (ii) to promote national reconciliation and rapprochement throughout the country; and (iii) to manage all United Nations humanitarian relief, recovery and reconstruction activities in Afghanistan under the overall authority of the United Nations Special Representative and in coordination with the Interim Authority and successor administrations of Afghanistan. By Resolution 1401 (28 March 2002), the Security Council endorsed the establishment of UNAMA for an initial period of 12 months with the mandate and structure set out in the Secretary Generals report of 18 March 2002. By Resolution 1413 (23 May 2002), the Security Council extended the mandate of ISAF for a further 6 months from 20 June 2002, authorising the Member States participating in ISAF to take all necessary steps to fulfil its mandate. By one of its recitals, the Security Council determined that the situation in Afghanistan still constituted a threat to international peace and security. The mandate was extended for a further year beyond 20 December 2002 by Resolution 1444 (27 November 2002). Once again, the threat to international peace and security posed by the situation in Afghanistan was recorded. The mandate of UNAMA was extended for a further period of 12 months by Resolution 1471 (28 March 2003). On 23 July 2003, the Secretary General reported on the situation in Afghanistan and its implications for international peace and security. At para 67 of his report, he said that the consequences of failing to provide for sufficient security for the Bonn process to succeed may have implications far beyond Afghanistan. On 11 August 2003, NATO assumed command of ISAF. By Resolution 1510 (13 October 2003), the Security Council extended ISAFs mandate for a further 12 months to allow it, as resources permit, to support the Afghan Transitional Authority and its successors in the maintenance of security in areas of Afghanistan outside Kabul and its environs, so that the Afghan Authorities as well as the personnel of the United Nations and other international civilian personnel engaged, in particular in reconstruction and humanitarian efforts, can operate in a secure environment, and to provide security assistance for the performance of other tasks in support of the Bonn Agreement. It called upon ISAF to continue to work in close consultation with the Afghan Transitional Authority and its successors as well as the Special Representative of the Secretary General. By its recitals, the Security Council recognised that the responsibility for providing security and law and order throughout the country resided with the Afghans themselves and welcomed the continuing cooperation of the Afghan Transitional Authority with ISAF. Yet again, the resolution recorded that the situation still constituted a threat to international peace and security. By Resolution 1536 (26 March 2004), the Security Council extended the mandate of UNAMA for a further 12 months. By Resolution 1563 (17 September 2004), the mandate of ISAF was extended for a further 12 months beyond 13 October 2004. In subsequent years, the mandates of UNAMA and ISAF were again extended for periods of 12 months at a time. As will become apparent, the differences between ISAF and UNAMA have assumed some importance in this case. ISAF is an armed force, but it is not a United Nations force. It has never been under direct United Nations command. It was initially under the lead command of single nations (starting with the United Kingdom). Since August 2003 it has been under the command of NATO. On the other hand, UNAMA is an assistance mission under United Nations control. It is not an armed force. But the objectives of ISAF and UNAMA are essentially the same, although the means by which they seek to achieve them differ. In particular, they both aim to promote the Bonn Agreement and to maintain peace and security in Afghanistan, thereby reducing the threat to international peace and security posed by the situation in Afghanistan. Some of the more recent Security Council resolutions explicitly make the link between the two organisations. Thus, recital 7 to Resolution 1776 (19 September 2007) is in these terms: Stressing the central role that the United Nations continues to play in promoting peace and stability in Afghanistan, noting, in the context of a comprehensive approach, the synergies in the objectives of the United Nations Assistance Mission in Afghanistan (UNAMA) and of ISAF, and stressing the need for further sustained cooperation, coordination and mutual support, taking due account of their respective designated responsibilities (underlining added). Similar language appears in the recitals to Resolution 1806 (20 March 2008), Resolution 1833 (22 September 2008), Resolution 1868 (23 March 2009) and subsequent resolutions. The appellants case on article 1F(c) Mr Drabble QC, on behalf of DD, relies upon the general approach to article 1F(c) discussed earlier. In particular, he argues that participation in an armed attack against forces operating under and carrying out a United Nations mandate does not without more engage article 1F(c). Armed insurrection is not, in itself, contrary to the purposes and principles of the United Nations. Internal armed conflict is now covered by international humanitarian law, in the shape of the 1949 Geneva Conventions. United Nations mandated forces are often deployed during or after an armed conflict, where international humanitarian law provides the appropriate legal framework for determining the lawfulness of armed attacks against them. The distinction between ISAF and UNAMA is crucial to the argument. Armed attacks on UNAMA could be characterised as contrary to the purposes and principles of the United Nations. UNAMA is a non combatant peacekeeping force which is protected under the 1994 Convention and the 2005 Protocol on the Safety of United Nations and Associated Personnel, whereas ISAF is not. Article 1(a)(i) of the 1994 Convention defines United Nations Personnel as persons engaged or deployed by the Secretary General of the United Nations as members of the military, police or civilian components of a United Nations operation. Article 1(c) defines a United Nations operation as an operation established by the component organ of the United Nationsand conducted under United Nations authority and control. Article 9 provides that various specified acts against any United Nations or associated personnel (including murder or other attacks) shall be made by each State Party a crime under its national law. But article 2(2) provides that the Convention is not to apply to a United Nations operation authorised by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organised armed forces and to which the law of international armed conflict applies. Article 2(2) is consistent with the broad principle that the laws of war apply to UN forces engaged in hostilities, and therefore such forces do not have immunity from attack: p 624 of Documents on the Laws of War, ed Roberts and Guelff, 3rd ed (2000). The distinction between combatants and peacekeeping personnel was considered by the Special Court for Sierra Leone in Prosecutor v Issa Hassan Sesay, Morris Kallon & Augustine Gbao (Case No SCSL 04 15T, 2 March 2009). In that case, the Special Court handed down the first convictions for the war crime of attacking personnel involved in a peacekeeping operation, namely members of the United Nations Assistance Mission in Sierra Leone, who were entitled to the protection given to civilians under the international law of armed conflict. Therefore, it is argued, military activities against United Nations mandated forces should only provide a basis for exclusion under article 1F(c) where (i) the act or acts in question constitute a crime in international law; or (ii) the act or acts, which must be of sufficient gravity to have a negative impact on international peace and security, have been specifically identified as contrary to the purposes and principles of the United Nations, either by clear decision of the Security Council acting within its competence, or by way of agreement or consensus among states at large; and (iii) there are serious reasons for considering that the individual concerned was personally responsible for the act or acts in question. Discussion and conclusions The acts relied on by the Secretary of State are acts of violence by the appellant against ISAF, the international force that was mandated by the United Nations for the express purpose of maintaining peace and security in Afghanistan, thereby assisting in the maintaining of international peace and security. Time and again, the resolutions of the Security Council recorded that the role and responsibility of ISAF was to assist in the maintaining of international peace and security. This is one of the most important purposes set out in article 1 of the United Nations Charter (see para 10 above). In these circumstances, it might be thought to be obvious at first sight that such acts are contrary to the purposes and principles of the United Nations. It is noteworthy that Mr Drabble (rightly) accepts that, if the appellant had been guilty of fighting UNAMA, he would in principle have been guilty of acts contrary to the purposes and practices of the United Nations. We say in principle, because it would still be necessary to examine all the facts (as per B and D). So why does it make any difference that the appellant was fighting ISAF rather than attacking UNAMA? That the aims and objectives of ISAF and UNAMA are congruent is amply borne out by the Security Council Resolutions: see para 58 above. The answer given by Mr Drabble and Mr Fordham is that the 1994 Convention and 2005 Protocol would apply to attacks on UNAMA, but not to attacks on ISAF. Peacekeeping forces, unlike combat forces, are entitled to the same protection against attack as that accorded to civilians under international humanitarian law, as long as they are not taking a direct part in hostilities. Under the Statute of the International Criminal Court (articles 8(2)(b)(iii) and 9(e)(iii)), intentionally directed attacks against personnel involved in a peacekeeping mission in accordance with the Charter of the United Nations constitute a war crime: see rule 33 in Customary International Humanitarian Law vol 1:Rules (2005, International Committee of the Red Cross). We accept the points made by Mr Drabble and Mr Fordham about the differences between ISAF and UNAMA which are summarised at paras 60 and 61 above. These differences are not in doubt. But they are not material to the issue of whether the appellant is excluded from the refugee status by article 1F(c). The question which rules of law apply to attacks on ISAF and UNAMA is categorically different from (and irrelevant to) the question whether an attack against either body is contrary to the purposes and principles of the United Nations. This latter question must be determined on an examination of all the relevant facts. These include the terms of the Security Council Resolutions by which ISAF was mandated in the first place, and by which its mandate was renewed from time to time. Mr Drabble submits that it is relevant to the issue in this case that, although the Security Council has mandated many military enforcement operations, it has never sought to characterise opposition, even armed opposition, as contrary to the purposes and principles of the United Nations. In some cases, a United Nations resolution explicitly states that a particular activity is contrary to the purposes and principles of the United Nations. (One example is the condemnation of international terrorism in General Assembly resolution 49/60, referred to in para 27 above.) However, it is not suggested, either by the UNHCR or by the Supreme Court of Canada in Pushpanathan, that this is the only criterion. In our view, the principled test is that put forward by the UNHCR in para 17 of its Guidelines and quoted at para 38 above. In Pushpanathan, the court did not have to consider whether an attack on a United Nations body or a United Nations mandated body constitutes acts contrary to the purposes and principles of the United Nations. We conclude that there is no basis for the view that such an attack can only be regarded as an act contrary to the purposes and principles of the United Nations in circumstances where (i) it is by consensus in international law explicitly recognised as being contrary to these purposes and principles, or (ii) it amounts to a serious and sustained violation of fundamental human rights. This conclusion is consistent with Mr Drabbles acceptance that an attack on UNAMA is in principle capable of satisfying article 1F(c), despite the fact that there appears to be no United Nations resolution (or other formal international decision) which explicitly recognises that an attack against UNAMA would be contrary to the purposes and principles of the United Nations. In short, an attack on ISAF is in principle capable of being an act contrary to the purposes and principles of the United Nations. The fundamental aims and objectives of ISAF accord with the first purpose stated in article 1 of the United Nations Charter. By attacking ISAF, the appellant was seeking to frustrate that purpose. To hold that his acts are in principle capable of being acts contrary to the purposes and principles of the United Nations accords with common sense and is correct in law. This conclusion accords with that of Hogan J in the High Court of Ireland in B v Refugee Appeals Tribunal and others [2011] IEHC 198 at para 56. For these reasons, we agree with the conclusion of the Court of Appeal, quoted in para 47 above. (4) Standard of proof This issue arises in an acute form in Al Sirri but could arise in any proposed exclusion under article 1F. The article requires that there be serious reasons for considering that the individual asylum seeker has committed the crimes referred to in article 1F(a) or (b) or been guilty of the acts referred to in article 1F(c). In Al Sirri, it was argued in the Court of Appeal that this imported the criminal standard of proof beyond reasonable doubt. In rejecting that submission, Sedley LJ said this, at para 33: . it clearly sets a standard above mere suspicion. Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says. In JS (Sri Lanka), at para 39, Lord Brown was inclined to agree with this passage, having also pointed out that . serious reasons for considering obviously imports a higher test for exclusion than would, say, an expression like reasonable grounds for suspecting. Considering approximates rather to believing than to suspecting. In Al Sirri, the Common Serjeant had considered that the evidence admissible in a criminal trial for conspiracy to murder General Masoud was as consistent with innocence as with guilt. Thus he, at least, was not satisfied of Al Sirris guilt even on the balance of probabilities. Mr Fitzgerald QC argues that it is not possible to have serious reasons for considering a person to have committed a crime or be guilty of a particular act unless you can be satisfied that it is more likely than not that he did it. In this he is less ambitious than the UNHCR. Its 2003 Guidelines, at para 35, state that clear and credible evidence is required. It is not necessary for an applicant to have been convicted of a criminal offence, nor does the criminal standard of proof need to be met. However, the 2003 Background Note, at para 107, also states that: . in order to ensure that article 1F is applied in a manner consistent with the overall humanitarian objective of the 1951 Convention, the standard of proof should be high enough to ensure that bona fide refugees are not excluded erroneously. Hence, the balance of probabilities is too low a threshold. He also relies upon the Australian case of W97/164 v Minister for Immigration and Multicultural Affairs [1998] AATA 618, in which Mathews J said this at para 42: The article provides a direction to decision makers in words that are clear of meaning and relatively easy of application. To re state this test in terms of a standard of proof is unnecessary and may in some cases lead to confusion and error. But she went on in para 43 to say this: I find it difficult to accept that the requirement that there be serious reasons for considering that a crime against humanity has been committed should be pitched so low as to fall, in all cases, below the civil standard of proof. The seriousness of the allegation itself and the extreme consequences which can flow from an alternative finding upon it would, in my view, require a decision maker to give substantial content to the requirement that there be serious reasons for considering (emphasis added) that such a crime has been committed. On the other hand, in Arquita v Minister for Immigration and Multi cultural Affairs [2000] FCA 1889, 106 FCR 465, at para 54, Weinberg J disagreed. There must be evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement, the evidence must be capable of being regarded as strong. But evidence could properly be characterised as strong without meeting either the criminal or the civil standard of proof. He did, however, say at para 58 that it would have to go beyond establishing merely that there was a prima facie case. The New Zealand courts have followed the Court of Appeal in Al Sirri in taking the view that the Refugee Convention simply means what it says and that adding glosses by analogy with civil litigation or criminal prosecution simply confuses matters: see Hammond J in Tamil X v Refugee Status Appeals Authority; Attorney General (Minister of Immigration) v Y [2009] NZCA 488, [2009] 2 NZLR 73, paras 77, 79; upheld by the Supreme Court in Attorney General (Minister of Immigration) v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721, para 39. In Canada, the courts have adopted a lower standard of proof than the balance of probabilities: see Ramirez v Minister of Employment and Immigration (1992) 89 DLR (4th) 173, para 5. But in Cardenas v Canada (Minister of Employment and Immigration) [1994] FCJ No 139, it was said that the Board must base its decision to exclude only on clear and convincing evidence, not simply on suspicion and speculation. And the German Bundesverwaltungsgericht has said that as a rule, reasons are good when there is clear, credible evidence that such crimes have been committed (BVerwG 10 C 2.10). We are, it is clear, attempting to discern the autonomous meaning of the words serious reasons for considering. We do so in the light of the UNHCR view, with which we agree, that the exclusion clauses in the Refugee Convention must be restrictively interpreted and cautiously applied. This leads us to draw the following conclusions: (1) Serious reasons is stronger than reasonable grounds. (2) The evidence from which those reasons are derived must be clear and credible or strong. (3) Considering is stronger than suspecting. In our view it is also stronger than believing. It requires the considered judgment of the decision maker. (4) The decision maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law. (5) It is unnecessary to import our domestic standards of proof into the question. The circumstances of refugee claims, and the nature of the evidence available, are so variable. However, if the decision maker is satisfied that it is more likely than not that the applicant has not committed the crimes in question or has not been guilty of acts contrary to the purposes and principles of the United Nations, it is difficult to see how there could be serious reasons for considering that he had done so. The reality is that there are unlikely to be sufficiently serious reasons for considering the applicant to be guilty unless the decision maker can be satisfied on the balance of probabilities that he is. But the task of the decision maker is to apply the words of the Convention (and the Directive) in the particular case. (5) Disposal We would dismiss the appeal in DD. The object of his argument was to establish that his activities could not be contrary to the principles and purposes of the United Nations. In this he has failed. However, the Court of Appeal were correct to hold that there were material errors of law in the AITs findings in that they failed to examine the appellants conduct in the manner prescribed by this court in JS and to consider whether he had been guilty of acts contrary to the purposes and principles of the United Nations. The order remitting the case to the Upper Tribunal for reconsideration should stand. The appeal in Al Sirri is rather different. Technically, the appellant has challenged the decision of the Court of Appeal to remit his case to the tribunal, rather than to find that he was not excluded from the status of refugee. We would dismiss that appeal. But the reality is that he was challenging certain aspects of the guidance given to the tribunal which would hear the remitted case. In that he has succeeded to some extent. Consideration will also have to be given to whether it is more appropriate for the case to be remitted to the First tier or to the Upper Tribunal, given that the evidence will have to be examined afresh. The parties therefore have 14 days from the date of judgment to file their submissions as to the precise form of the order and as to costs.	These appeals concern a little used provision in article 1F(c) of the Geneva Convention on the Status of Refugees. This excludes from protection any person with respect to whom there are serious reasons for considering thathe has been guilty of acts contrary to the purposes and principles of the United Nations. Both appellants have been refused the grant of refugee status by the respondent on this ground. Al Sirri is a citizen of Egypt who arrived in the UK in 1994. The facts relied on for the refusal of his asylum claim included his possession of and contribution to books connected with Al Qaeda and other proscribed organisations and his alleged involvement in the murder of General Masoud in Afghanistan in 2001. The issue raised by his case is whether all activities defined as terrorism by United Kingdom domestic law are for that reason acts falling within article 1F(c), or whether such activities must constitute a threat to international peace and security. DD is a citizen of Afghanistan who came to the UK in 2007. His claim for asylum was based on his fear of persecution as the brother of the leader of forces allied with the Taliban, who had fought against both the Afghan government and the UN mandated International Security Assistance Force (ISAF). In his case the question is whether armed insurrection against not only the incumbent government but also a UN mandated force supporting that government falls within article 1F(c). In both appeals the issue also arises as to what is meant by serious reasons for considering a person to be guilty of the act in question. The appellants appealed against the respondents refusal to grant asylum. On 18 March 2009 the Court of Appeal set aside the determination of the Asylum and Immigration Tribunal (AIT) in Al Sirris case and remitted it to be determined afresh omitting certain matters on which the respondent had sought to rely. DD was initially successful in his appeals but the Court of Appeal remitted his case for reconsideration by the Upper Tribunal because the AIT had failed to consider DDs individual responsibility and whether he fell within article 1F(c). Both appellants have nonetheless pursued an appeal to the Supreme Court in order to challenge the approach of the Court of Appeal to the interpretation of article 1F(c) in a number of respects. The Supreme Court unanimously dismisses both appeals. Both cases will now be remitted to the relevant tribunal for reconsideration in accordance with the orders of the Court of Appeal. In the case of Al Sirri the guidance given to that tribunal should be in line with the judgment of the Supreme Court. The judgment is given by Lady Hale and Lord Dyson, with whom the other justices agree. The general approach to article 1F(c) Article 1F(c) should be interpreted restrictively and applied with caution. There should be a high threshold defined by the gravity of the act in question, the manner in which the act is organised, its international objectives and its implications for international peace and security. There should be serious reasons for considering that the person concerned bore individual responsibility for acts of that character [16]. International dimension It is clear that the phrase acts contrary to the purposes and principles of the United Nations must have an autonomous meaning and member states are not free to adopt their own definitions. There is as yet no internationally agreed definition of terrorism. It was appropriately cautious therefore to adopt paragraph 17 of the United Nations High Commissioner for Refugees (UNHCR) Guidelines which provided that article 1F(c) was only triggered in extreme circumstances by activity which attacks the very basis of the international communitys co existence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between States, as well as serious and sustained violations of human rights would fall under this category [36 38]. It could be enough if one person plotted in one country to destabilise another. The test was whether the resulting acts had the requisite serious effect upon international peace [40]. Armed insurrection against UN mandated forces DD had been engaged in fighting against ISAF in Afghanistan. ISAF was an armed force under the lead command of individual nations authorised by the UN from 2001, and was distinct from the United Nations Assistance Mission in Afghanistan (UNAMA), which was established in 2002 as a peacekeeping force. Both ISAF and UNAMA had the same objective to maintain peace and security in Afghanistan. DD argued that simple participation in an attack against UN mandated forces did not engage article 1F(c). The Supreme Court agreed that the protection for ISAF against attack was not the same as for peacekeeping forces. This was not however material to the issue under article 1F(c) which was to be judged under the same principle in paragraph 17 of the UNHCR Guidelines quoted above [66]. The fundamental aims and objectives of ISAF accorded with the purposes stated in the UN Charter and DD was seeking to frustrate that purpose [68]. Standard of proof This issue arose in acute form in Al Sirri. Al Sirri had been indicted at the Old Bailey in relation to the murder of General Masoud but the charge was dismissed on the ground that the evidence was as consistent with his innocence as it was with his guilt. Article 1F(c) required that there be serious reasons for considering that the asylum seeker had been guilty of the acts. This had an autonomous meaning, and was not the same as the criminal standard of proof beyond reasonable doubt, or any domestic standard. Serious reasons was stronger than reasonable grounds, strong or clear and credible evidence had to be present and the considered judgment of the decision maker was required. The reality was that there were unlikely to be sufficiently serious reasons for considering an applicant to be guilty unless the decision maker could be satisfied that it was more likely than not that he was. But the task of the decision maker was to apply the words of article 1F(c) in the particular case [75].
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.	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].
This appeal concerns the liability of employers in the knitting industry of Derbyshire and Nottingham for hearing loss shown by employees to have been suffered during the years prior to 1 January 1990, the date when the Noise at Work Regulations 1989 (SI 1989/1790) came into force. The central issue is whether liability exists at common law and/or under section 29(1) of the Factories Act 1961, towards an employee who can establish noise induced hearing loss resulting from exposure to noise levels between 85 and 90dB(A)lepd. Noise is generated by pressure levels in the air. The loudness of a noise depends on the sound pressure level of the energy producing it, measured in decibels (dB). The decibel scale is logarithmic, so that each 3dB increase involves a doubling of the sound energy, even though a hearer will not actually perceive a doubled sound pressure as involving much, if any, increase in sound. Noise is rarely pure, it usually consists of a broadband combination of sounds at different frequencies, and the human ear is more sensitive to noise at some (particularly middle) frequencies than at others. The sound pressure level across a range of frequencies is in a general industrial context commonly expressed by a weighted measurement described as dB(A). Apart from very loud, immediately damaging noise, with which this case is not concerned, damage to the human ear by noise exposure depends upon both the sound pressure level from time to time and the length of exposure, as well the individual susceptibility of the particular individual. Sound pressure level averaged over a period is described as dB(A)leq. Exposure at a given dB(A)leq for 8 hours is described as dB(A)lepd. Exposure at a given dB(A)lepd for a year gives a Noise Immission Level (NIL), which will build up slowly with further years exposure. Sound is perceived by the hearer as a result of the conversion by the ear drum of the sound pressure variations in the air into mechanical vibrations. These are conveyed by the middle ear to the cochlea, which, by a process of analysis and amplification, translates these vibrations into nerve impulses which are then transmitted to the brains auditory nerve. Hair cells in the cochlea play a vital part in the process, and noise induced hearing loss (described as sensorineural) is the result of damage to such hair cells resulting from exposure to noise over time. Other causes of hearing loss include decline in the conductive function of the outer and/or inner ear, due for example to disease, infection, excess wax or very loud traumatic noise, as well as loss due to simple ageing (presbyacusis). Hearing loss is commonly measured by ascertaining the average threshold below which hearing is affected and comparing it with a normal threshold. Both the rate at which any individual will suffer ageing loss and the susceptibility of any individual to damage as a result of noise exposure are, as between different individuals, very variable as well as unpredictable. Statistics, produced as will appear in the 1970s, do no more than attempt to indicate what percentage of a particular population may be predicted to suffer a particular level of hearing loss by a particular time in their lives by these different causes depending upon their circumstances. In 1971 a Code of Practice was prepared by the Industrial Health Advisory Committees Sub Committee on Noise, and in 1972 it was published by the Department of Employment as a blueprint for action. This Code remained in issue at the material times thereafter, and it said that a level of 90dB(A) should not be exceeded [i]f exposure is continued for eight hours in any one day, and is to a reasonably steady sound (para 4.3.1). On 14 February 2007, His Honour Judge Inglis decided test cases, involving seven claims against four different companies: Taymil Ltd (successors to the liabilities of several employing companies and now known as Quantum Clothing Group Ltd), Meridian Ltd, Pretty Polly Ltd and Guy Warwick Ltd. The cases were all brought on the basis that there had been exposure to noise levels between 80 and 90dB(A)lepd. Mrs Bakers claim was against Taymil. She had worked in Simpson Wright & Lowes factory in Huthwaite Road, Sutton in Ashfield from 1971 (when she was 15) to 2001. The judge found that for 18 years, from 1971 to 1989, she is likely to have been exposed to a noise level that attained 85dB(A)lepd, but did not at any time substantially exceed that level by more than 1db (para 182). He also found that some other condition was affecting her left ear, but that her years of exposure at or slightly above 85dB(A)lepd had led to her sustaining a degree of noise induced hearing loss and had played a small part in her suffering tinnitus. But Mrs Bakers claim failed on the ground that her employers had not committed any breach of common law or statutory duty. Had liability been established, the judge would have awarded her 5,000 for this slight hearing loss and slight contribution to the tinnitus (paras 192 193). All the other employees claims failed. In none of their cases was any noise induced hearing loss shown to have occurred due to the relevant employment. Only for a few months in the 1960s in the case of Mrs Moss claiming against Taymil and for about two years (1985 1986) in the case of Mrs Grabowski claiming against Pretty Polly was there shown to have been any exposure to noise levels of or over 85dB(A)lepd in the relevant defendants employment. However, in the case of Meridian (employers of Mr Parkes and Mrs Baxter and a subsidiary of Courtaulds plc) and Pretty Polly (employers of Mrs Grabowski and a subsidiary of Thomas Tilling Ltd until 1982 and of BTR plc until 1994) the judge would have held liability to exist from the beginning of 1985, had noise induced hearing loss been shown to have been incurred due to exposure to noise exceeding 85dB(A) in such defendants employment. Mrs Baker appealed to the Court of Appeal as against Quantum, and Meridian and Pretty Polly were joined to enable issue to be taken with certain of the judges conclusions potentially affecting other claims. Guy Warwick was a respondent to an appeal brought only on costs. The Court of Appeal (Sedley, Smith and Jacob LJJ) allowed Mrs Bakers appeal on 22 May 2009, and reached conclusions less favourable to all four employers than those arrived at by the judge. The present appeal is brought by Quantum, Meridian and Pretty Polly, with Guy Warwick intervening by permission of the Supreme Court given on 30 June 2010. The test of an employers liability for common law negligence is common ground. In Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783, Swanwick J described the position as follows: From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent. Mustill J adopted and developed this statement in another well known judgment in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405, when he said (at pp 415F 416C): I shall direct myself in accordance with this succinct and helpful statement of the law, and will make only one additional comment. In the passage just cited, Swanwick J drew a distinction between a recognised practice followed without mishap, and one which in the light of common sense or increased knowledge is clearly bad. The distinction is indeed valid and sufficient for many cases. The two categories are not, however, exhaustive: as the present actions demonstrate. The practice of leaving employees unprotected against excessive noise had never been followed without mishap. Yet even the plaintiffs have not suggested that it was clearly bad, in the sense of creating a potential liability in negligence, at any time before the mid 1930s. Between the two extremes is a type of risk which is regarded at any given time (although not necessarily later) as an inescapable feature of the industry. The employer is not liable for the consequences of such risks, although subsequent changes in social awareness, or improvements in knowledge and technology, may transfer the risk into the category of those against which the employer can and should take care. It is unnecessary, and perhaps impossible, to give a comprehensive formula for identifying the line between the acceptable and the unacceptable. Nevertheless, the line does exist, and was clearly recognised in Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552. The speeches in that case show, not that one employer is exonerated simply by proving that other employers are just as negligent, but that the standard of what is negligent is influenced, although not decisively, by the practice in the industry as a whole. In my judgment, this principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious. The employer must keep up to date, but the court must be slow to blame him for not ploughing a lone furrow. An employer following generally accepted practice will not therefore necessarily be liable for common law negligence, even if the practice involves an identifiable risk of leading to noise induced hearing loss. There is, as Hale LJ also said succinctly in Doherty v Rugby Joinery (UK) Ltd [2004] EWCA Civ 147; [2004] ICR 1272, para 44, a distinction between holding that a reasonable employer should have been aware of the risks and holding that certain steps should have been taken to meet that risk. Section 29 of the Factories Act 1961 provides: (1) There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there. (2) Where any person has to work at a place from which he will be liable to fall a distance more than six feet six inches, then, unless the place is one which affords secure foothold and, where necessary, secure hand hold, means shall be provided, so far as is reasonably practicable, by fencing or otherwise, for ensuring his safety. The judgments below In his clear and comprehensive judgment, His Honour Judge Inglis followed the authority of Taylor v Fazakerley Engineering Co (Rose J, 26 May 1989) in concluding that the standard of safety required under section 29(1) is governed by the general standard which ought reasonably to have been adopted by employers at the relevant time, and therefore that the section did not add materially to the common law duty in that respect (para 99). He held (para 87), in the light of the Code of Practice 1972 and extensive oral evidence called before him, that neither Taymil nor Guy Warwick as reasonable and prudent employers could be said to have been in breach of duty at common law or under section 29(1) during the 1970s and 1980s, certainly until the time when the terms of [European Economic Community Directive 86/188/EEC of 12 May 1986] became generally known in the consultative document. The consultative document in question was Prevention of damage to hearing from noise at work, Draft proposals for Regulations and Guidance, issued by the Health and Safety Commission in 1987. The document invited comments by 30 June 1988 and led to the Noise at Work Regulations 1989 (SI 1989/1790) which took effect from 1 January 1990. In the case of Meridian and Pretty Polly, the judge held that they had a greater understanding of the risks of noise by the beginning of 1983, that this required them to put in place a conservation programme accompanied by information and instruction, and that they were potentially liable from the beginning of 1985. The judge thus allowed a two year period for action from the date when there was or should have been appreciation that action was necessary. However, it is in issue whether, in the case of Taymil and Guy Warwick, he was treating the two year period as expiring at some undefined time during 1989 or as expiring on 1 January 1990, the same date as the 1989 Regulations came into force. In the Court of Appeal, the main judgment was given by Smith LJ, with whom the two other members of the court agreed. Sedley LJ gave some short additional concurring reasons. The court differed from the judge. It held section 29 of the Factories Act 1961 to involve a more stringent liability than liability for negligence at common law, and it held further that, were it material, it would have concluded that liability for negligence at common law arose at earlier dates than the judge had adopted. With regard to section 29, Smith LJ concluded that the court was bound by the previous authority of Larner v British Steel [1993] ICR 551, with which she anyway agreed, to hold that whether a place was safe involved applying [an] objective test without reference to reasonable foresight and that what is objectively safe cannot change with time (paras 77 and 78). In the alternative, if foresight was relevant, she would have held that by the early 1970s, any employer who kept abreast of developing knowledge would have known that prolonged exposure to 85dB(A)lepd was harmful to some people, making the workplace unsafe for an undefined section of his workforce, and, so, that he must do what was reasonably practicable to make and keep it safe. She concluded that having regard to a method available in a British Standard BS 5330 published in July 1976 which could be used by anyone with a modest degree of mathematical skill the position was that by late 1976 or early 1977, the average sized employer in the knitting industry could and should have been able to make an informed assessment of the quantum of risk arising from the below 90dB(A)lepd noise in his workshops. She then allowed, instead of the judges two year period, about six to nine months for the provision of ear protectors once the decision had been taken that they should be provided and, for the sake of simplicity fixed the date, by which action should have been taken and as from which liability arose under section 29(1), as January 1978 (paras 101 102). On this basis, Mrs Baker was awarded, for breach of statutory duty, 66.67% of 5,000 in respect of the 12 years of noise exposure which she suffered from January 1978. With regard to the common law claim, Smith LJ concluded that HHJ Ingliss holding in para 87 of his judgment (para 16 below) cannot be faulted, and upheld his view that there was no breach of the duty at common law during the period for which a responsible body of opinion regarded it as acceptable to expose employees to noise in the 85 89dB(A)lepd range (para 105). While indicating her personal inclination towards an earlier date (based on the publication in 1982 by the European Commission of a first draft directive, later withdrawn), she also agreed with the judges conclusion that for the employer with the ordinary, or average degree of knowledge, that period came to an end in 1987, following publication of the second draft Directive (para 105). In this connection, she again held that to allow longer than six to nine months was over generous, and so fixed the date of any breach of common law duty by the average employer at January 1988 (para 106). She agreed that Meridian and Pretty Polly should have known by early 1983 which of their workers required protection and should within six to nine months thereafter have provided such protection (paras 107 108); and she regarded it as irrational to treat Quantum any differently, merely because it was part of a smaller group and operated as an individual company without the benefit of the central advice on health and safety issues enjoyed by the Courtaulds group and Pretty Polly. So Quantum would, in the Court of Appeals view, have been liable at common law, like Meridian and Pretty Polly, from late 1983 (para 109). The history The judge set out in paras 29 to 45 the history of investigation and awareness regarding the risks of occupational exposure to noise from the early 1960s to date. The Court of Appeal helpfully summarised the historical background in terms which I quote, interposing a number of observations of my own. Historical Background 2. For well over a hundred years, it has been known that prolonged exposure to loud noise causes deafness. Such deafness was long regarded as an unavoidable occupational hazard. In the early 20th century, ear protectors were developed and were supplied to some members of the armed forces during both world wars. But it was not until the second half of the century that any real interest was taken in preventing noise induced deafness in industrial workers. 3. In April 1960, the government of the day instructed Sir Richard Wilson to chair a committee to report on the problems of noise. The committee's first report was published in 1963. In the same year, in reliance on that report, a Ministry of Labour publication entitled 'Noise and the Worker' drew the attention of employers to the need to protect their workers from excessive noise. At that time, scientific knowledge was not such that it could be said with confidence at what noise level harm was likely to occur. A rough guide was given that workers who were regularly exposed to noise of 85 decibels (dB) at any frequency for eight hours a day should be protected. I interpose that the author of the report was in fact Sir Alan Wilson FRS. An interim report was published in March and the final report in July. Noise and the Worker was published in the light of the interim report. 4. Further research was carried out during the 1960s, in particular by a team led by Professor W Burns, Professor of Physiology at the University of London and Dr D W Robinson, then head of the acoustics section of the National Physical Laboratory. In 1970, the result of their work was published as 'Hearing and Noise in Industry'. By that time, a method had been developed of measuring noise levels by reference to the weighted average for all frequencies (expressed as dB(A)) and for assessing the equivalent noise exposure over an eight hour working day (expressed as dB(A)leq or more recently dB(A)lepd). Burns and Robinson explained that they were now in a position to predict the degree of risk of hearing loss to groups of an exposed population of varying susceptibility from various levels of noise exposure. Their work would make it possible to prepare a code of practice for employers. They discussed the possibility of establishing a limit of maximum exposure as follows: The limit can be set at a variety of levels according to the ultimate risk judged to be acceptable and we suggest that it should not be set higher than 90dB(A) for normal continuous daily exposure which is likely to persist for many years. 5. In 1968 and 1971 two further editions of 'Noise and the Worker' were published. The gist of the advice given in the third edition was that, if employees were exposed to noise in excess of 90dB(A), there should be a programme of noise reduction or hearing conservation. That level of noise exposure corresponded approximately to the 85dB which had been the level at which action was recommended in the first edition of 'Noise and the Worker'. The third edition encouraged employers to reduce noise exposure below the maximum permitted level in order to avoid risk to the hearing of 'the minority of people who are exceptionally susceptible to hearing damage. The guidance given in the third edition to help to protect most people against serious hearing loss was that they should not be exposed to levels of noise exceeding maximum sound levels specified in table 1 by reference to duration of exposure. In the case of an exposure duration of eight hours a day (the longest covered), the maximum sound level specified was 90dB(A). The encouragement given to reduce noise exposure below the maximum was to reduce noise exposure if possible and was expressed to be in order to avoid risk to the hearing of the minority of people who are exceptionally susceptible to hearing damage, and for reasons of general welfare. In the foreword to impressions published after April 1972, two of them by 1976, the third edition also said: This booklet has been overtaken by the publication in April 1972 of the Code of Practice . However it is a useful introduction to the subject and should be read as a supplement to the Code. The third edition referred under the head Monitoring Audiometry to the possibility of monitoring checks, but did not repeat the suggestion in the second edition that monitoring should take place in respect of noise levels approaching those set out in table 1. 6. A Code of Practice, based on the work of Burns and Robinson was published by the Department of Employment in 1972. Its main messages were that employers must measure the noise in their premises and, if the noise level was 90dB(A)leq or above, must take steps to reduce the noise at source and, if that was not practicable, to provide ear protectors. The Code of Practice also explained that protection from noise of 90dB(A)leq would not protect all workers from hearing damage; some harm was likely to be caused to some susceptible workers by noise below that level. The Court of Appeal was not justified in using the word likely. What the relevant paragraph (1.1.2) in fact said was: The Code sets out recommended limits to noise exposure. It should be noted that, on account of the large inherent variations of susceptibility between individuals, these limitations are not in themselves guaranteed to remove all risk of noise induced hearing loss. 7. A set of tables first published in 1973 by the National Physical Laboratory (the NPL tables) showed the relationship between noise dose and the expected extent of hearing loss of persons with different degrees of susceptibility. Noise dose was based upon the daily exposure adjusted for the number of days' exposure in the year and the number of years' exposure. These tables were based on the work of Burns and Robinson. They were republished in 1977 in a more user friendly form but the underlying science was the same as before and indeed it remains valid today. The tables demonstrated the harmful effect of prolonged exposure to noise below 90dB(A)leq but, because they were based on empirical data and because the data available for these lower noise levels was limited, there was some dependence on extrapolation. The degree of predicted risk arising from exposure to these lower levels of noise is therefore less certain than that caused by noise over 90dB(A)leq. That is of significance in the context of this appeal which raises the issue of when employers ought to have taken steps to protect their employees from exposure to such lower levels of noise. These tables consisted of some 15 pages of introductory material and 149 pages of tables. The latter would require expert advice to interpret, but, even with such advice, they did no more than indicate in detailed statistical terms the risk to susceptible employees identified by the Code of Practice. The judge recorded (para 23) the expert evidence that the NPL tables were (as distinct from the ISO1999 tables mentioned in point 10 below) less accurate below 90dB(A), though reasonably accurate above that level. They tend at lower levels to exaggerate the effect of noise. Some of the NPL tables were used in BS 5330: 1976 mentioned in point 11, below. 8. Until 1989, the Government of the United Kingdom made no attempt of general application to regulate noise exposure in industry. In 1974, regulations were made to control noise in the woodworking industry and in tractor cabs. The regulations required employers to reduce noise to the greatest extent practicable and to provide ear protectors where persons were likely to be exposed to noise at or above 90dB(A)leq, 9. In 1975, a sub committee of the Industrial Health Advisory Committee, set up after publication of the Code of Practice in 1972, reported on the problems of framing protective legislation. The gist of this report was that the noise limit recommended by the 1972 Code had widespread acceptance although it did not eliminate all risk of harm. 90dB(A)leq was the most practicable standard although a lower limit should be considered at regular intervals. More particularly, para 19 of the report, Framing Noise Legislation, read: The Codes noise limit of 90dB(A)leq has widespread international acceptance, and although it does not eliminate all risk of hearing damage, we feel it continues to be the most practicable standard, in recognition of the necessity of concentrating limited resources on workers subject to the most significant risks and of eliminating these risks as a first priority. Prediction of risks of hearing damage at these levels, based on a lifetimes exposure of 30 or 40 years, indicates that the proportion of an exposed population likely to suffer unacceptable degrees of impairment falls off rapidly below 90dB(A). The specification of a daily dose introduces a further margin of safety since it is unlikely that a large number of workers would receive the full daily limit throughout their entire working lifetimes. Similar conclusions have been reached in other major industrial countries, and none of those examined in our survey has introduced a generally applicable environmental limit lower than 90dB(A). Nevertheless, the question of a lower limit should be reconsidered at regular intervals. A level of 90dB(A) is by no means ideal, and the aim should be to ensure a progressive reduction. 10. In 1975 an international standard was published (ISO1999). This proposed a formula by which hearing loss could be predicted from various levels of noise exposure. It was not easy for a lay person to use. IS01999 did not suggest limits of tolerable exposure. It said that that was the province of 'competent authorities' who would demand the institution of hearing conservation programmes if limits were exceeded. It mentioned that 'in many cases', 85 to 90dB(A) equivalent continuous sound level had been chosen. 11. In 1976, a British Standard was published (BS 5330: 1976). This was based on the work of Burns and Robinson and explained the relationship between noise exposure and the expected incidence of hearing disability. The foreword stated that determination of a maximum tolerable noise exposure was outside the scope of the standard and referred the reader to the 1972 Code of Practice. More particularly, BS 5330 said: Determination of a maximum tolerable noise exposure is outside the scope of this standard; it involves consideration of risk in relation to other factors. For occupational noise exposure such a limit is specified in the Department of Employment (HMSO, 1972) Code of Practice for Reducing Exposure of Employed Persons to Noise. 12. In 1981, the Health and Safety Executive (HSE) issued a consultative document 'Protection of Hearing at Work' which included draft regulations and a draft approved code of practice. The proposed level of protection was at or above 90dB(A)lepd. These draft regulations were not promulgated. 13. In 1982, a draft directive was published by the European Commission, proposing a general limit of 85dB(A)lepd with ear protection to be provided at or above that level with medical surveillance and routine audiometry for all employees exposed at or above that level. This was greeted with some dismay by industry and was withdrawn in 1984. A further draft directive was published and was promulgated in 1986. This required member states to enact legislation which would, inter alia, require employers to provide ear protectors and information as to risks where employees were exposed to noise likely to exceed 85dB(A)lepd. Medical surveillance was to be made available to all exposed employees by means of access to a doctor. Thus, the only change of significance between the 1982 draft and the 1986 directive was that responsibility for medical surveillance would not fall on the employer but (at any rate in this country) would be satisfied through the provisions of the National Health Service. The Noise at Work Regulations 1989 (SI 1989/1790) implementing the directive came into effect on 1 January 1990. The directive promulgated in (May) 1986 was Council Directive 86/188/EEC. It required member states to enact and to bring into force the relevant legislation by 1 January 1990. The Court of Appeal was not accurate in stating that the only difference between the 1982 draft and the actual directive in 1986 related to responsibility for medical surveillance. As the judge noted (para 39), the directive replaced the earlier withdrawn draft with less stringent proposals: in short, where daily personal noise exposure of a worker exceeded 90dB(A), the directive required the use by the worker of personal ear protectors (article 6(1)), but where such exposure was likely to exceed 85dB(A), it only required such protectors to be made available to workers (article 6(2)). 14. For the sake of completeness, although not relevant to this appeal, I mention that, in 2003, the European Commission issued a further directive imposing more stringent requirements. The Control of Noise at Work Regulations 2005 (SI 2005/1643) gave effect to that directive. Inter alia, they introduced a maximum permitted noise level of 87dB(A) and required employers to provide ear protectors to workers exposed to 85dB(A) and to make them available on request to workers exposed to 80dB(A). The judge in paras 46 to 48 also set out the general approach to noise in industry until the end of the 1980s, based on the oral evidence called before him. Paras 46 to 48 of HHJ Ingliss judgment led him to reach the following conclusions on liability in para 87: 87. There is no doubt that research into the question of what risks to the hearing of employees exposure below 90dB(A)leq posed would have yielded the answer that 90dB(A) was not a natural cut off point, and that there were risks to susceptible individuals below that level. Indeed, the 1972 Guidelines themselves made that clear. From the early 1970s, certainly by 1976 with the publication of BS 5330 and of IS0 1999 in the previous year, the information was available if researched to give an indication of the level of the risk. It was a level of risk that came by the end of the 1980s to be seen as unacceptable if not accompanied by at least voluntary protection, though the 90dB(A) limit had remained, both in 1975 and in 1981, the proposed regulatory standard in England. In the end though I am not persuaded that employers in industry who conformed to the maximum acceptable level of exposure in the 1972 Guidelines were in breach of their duty of care to their employees who were exposed over 80dB(A)lepd. In rejecting the primary case for the claimants I acknowledge that I do not see the issue as only one of foreseeability. It would in my judgment be futile to hide behind the 1972 Guidelines for that purpose, or behind the third edition of Noise and the Worker, when the documents themselves proclaim that the level proposed will not be safe for all workers. But good practice as informed by official guidance has in my view to be taken into account as well. The guidance as to the maximum acceptable level was official and clear. It would in my view be setting too high a standard to say that it was incumbent on employers to ignore it, and to reach and act, even as early as the 1960s, on a view that the standard set was inadequate to discharge their duty to their employees. To put it in the context of Swanwick J's judgment, complying with 90dB(A)lepd as the highest acceptable level was, I think, meeting the standards of the reasonable and prudent employer during the 1970s and 1980s, certainly until the time when the terms of the 1986 directive became generally known in the consultative document of 1987. I accept that this means that employers were not bound in the discharge of their duty to ask the question Who are those at risk in my factory, and how big is the risk. It is a question that none of them in this case asked. But the effect of the maximum acceptable level in the Guidelines means in my judgment, that they were not in breach of their duty for not asking it. The judge then distinguished the position of Meridian (Courtaulds) and Pretty Polly: 88. There is room, however, for greater than average knowledge as Swanwick J put it, to inform the steps that individual employers should have taken at an earlier time than the late 1980s. At first sight it is not attractive that those who have a safety department and medical officers and take the matter of noise seriously should be worse off than those who wallow in relative ignorance, but it is an inevitable consequence of a test that depends on what an individual employer understood. On that basis, I have found that by the beginning of 1983 management both at Courtaulds and at Pretty Polly had sufficient understanding of the risks to hearing below 90dB(A)lepd to require them to take action. Both in fact say that they did so. Plainly putting a conservation programme into action, accompanied by information and instruction is not to be done in an instant, as Mustill J recognised in the passage in Thompson that I have set out above. In the case of those two employers, because of the particular state of their knowledge, I would say that they were in breach of their duty to employees who suffered damage through exposure at 85dB(A)lepd and over, without having the opportunity of using hearing protection, from the beginning of 1985. Earlier in his judgment, HHJ Inglis had made detailed factual findings about the conduct and understanding of each of the relevant employers with regard to the risks of noise induced hearing loss. I summarise these in the appendix to this judgment. Smith LJ addressed the judges conclusions on liability at common law as follows: 105. I consider that the opinion, implied by the Code of Practice, that exposure to noise below 90dB(A)lepd was 'acceptable' was a factor which could properly be taken into account when an employer considered what it was reasonable for him to do in respect of the health and safety of his employees. In short, I take the view that Judge Inglis's holding which I quoted at paragraph 46 cannot be faulted. I would uphold his view that there was no breach of the duty at common law during the period for which a responsible body of opinion regarded it as 'acceptable' to expose employees to noise in the 85 89dB(A)lepd range. I consider that, for the employer with the ordinary or average degree of knowledge, the judge's conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion, although, left to myself, I would have said that the publication of the first draft directive in 1982 would have put all employers on notice that it could no longer be regarded as acceptable or reasonable to leave this group of employees exposed. 107. The judge imposed different dates of common law liability on Courtaulds and Pretty Polly from that of Quantum and Guy Warwick which he regarded as having only an average degree of knowledge. It is clear that from 1972 all employers should have been aware of the risk to some of their employees from exposure to 85 89dB(A)lepd. The question at common law was when they should have realised that it was no longer to be regarded as acceptable to disregard that risk. The judge's conclusion in respect of Courtaulds was plainly justified. They actively opposed the proposal in the first draft directive, not on the ground that the risk was minimal but on the ground that the cost to them would be too great. By early 1983, they could no longer have thought that a responsible body of opinion took the view that it was acceptable to ignore the risks of harm below 90dB(A)lepd. They should by that time have known which of their workers required protection and only a further six to nine months should be allowed for provision. 108. Pretty Polly was in a different position in that there was no direct evidence that it knew of the first draft directive. However, in my view the judge was entitled to hold that it must have done. In any event, there was other evidence that it had been advised of the need to take action in respect of the lower levels of noise. In my view, the judge's holding was justified, subject to the reduction in the period allowed for provision. 109. As a fall back submission, Mr Hendy argued that the judge had been wrong to reach a different conclusion in respect of Quantum. There was evidence that it was aware of the first draft directive and Mr Hendy submitted that, given that knowledge, it was irrational to say that, because the group was smaller than Pretty Polly or Courtaulds and operated as individual companies without the benefit of central advice on health and safety issues, they should be treated differently from the other two employers. I would accept that submission and would hold that, if it were to become material, Quantum would have been in breach of its common law duty at the same date as Courtaulds. The judge and the Court of Appeal therefore accepted the Code of Practice as the generally appropriate standard for employers with average knowledge during the 1970s and early 1980s, differing only as to the date in the 1980s when it ceased to be so. The judge and, ostensibly at least, the Court of Appeal also distinguished between average employers and other employers, described by the judge as having greater than average knowledge, differing however as to which employers fell into the latter category. The parties respective cases on common law liability The respondent challenges the conclusion reached by both courts below that the Code of Practice represented a generally appropriate standard; she submits that it ceased to be such from at least 1976, though she does not in this case ask for that date to be substituted for the dates found by the Court of Appeal. For opposite reasons, the distinction drawn by the judge between employers with average and greater than average knowledge finds little support in any sides submissions. Mr Hendy positively asserts that all three appellant employers and the interveners were in the same position; that they should all be treated as having the same constructive knowledge (based on the generally available published provisions and materials); and that neither court below based its decision upon specific evidence of knowledge of incidence of hearing problems in particular workforces, or technical or operational knowledge specific to the particular defendants (respondents case, para 202). So, on his submission, it was not appropriate to regard Quantum and Guy Warwick, or any employer, as any less liable than the judge held Meridian and Pretty Polly to be. The Court of Appeal, by putting Quantum into the same category as Meridian and Pretty Polly, went some, though not the whole, way towards accepting this submission. The appellants, on the other hand, support the concurrent conclusion below that the Code of Practice constituted an appropriate standard for employers with average knowledge, submit that it continued to be so, as the judge held, until the late 1980s, but also submit that the judge failed to provide any satisfactory analysis of what he meant by greater than average knowledge in para 88, and that he had no basis for treating Meridian and Pretty Polly as liable by reference to any date other than that which he held applicable to the reasonable and prudent employer during the 1970s and 1980s of whom he spoke in para 87. Analysis of common law position: (a) Greater than average knowledge? At the level of principle, the parties submissions take one back to Swanwick and Mustill JJs classic statements regarding the test of negligence at common law (paras 9 and 10 above). These statements identify two qualifications on the extent to which an employer can rely upon a recognised and established practice to exonerate itself from liability in negligence for failing to take further steps: one where the practice is clearly bad, the other where, in the light of developing knowledge about the risks involved in some location or operation, a particular employer has acquired greater than average knowledge of the risks. The question is not whether the employer owes any duty of care; that he (or it) certainly does. It is what performance discharges that duty of care. For that reason, I find difficult to accept as appropriate in principle some of the reasoning in another, more recent Court of Appeal authority, Harris v BRB (Residuary) Ltd [2005] EWCA Civ 900; [2005] ICR 1680 (Neuberger and Rix LJJ). In Harris, the issue was whether regular exposure of train locomotive drivers between 1974 and 2000 to noise levels between 85dB(A) and 90dB(A) gave rise to liability for any noise induced hearing loss shown to have resulted. Neuberger LJ gave the sole reasoned judgment. He accepted on the evidence before the court that, at least until the 1989 Regulations came into force, an employer would not normally be expected to be liable to an employee who was exposed to a level of sound lower than 90dB(A)leq, but said that this evidence cannot go so far as to negative in all circumstances liability to employees whose health is impaired as a result of exposure to sound below that level (para 39). After quoting Swanwick J, Neuberger LJ suggested that a good working approach might be to treat 90dB(A) as giving rise to a presumption, with the effect that, below 90dB(A), it was for the employee to show why a duty should be imposed at all (paras 40 41). The reference to a duty being imposed derives from the way in which the defendants case was presented: the submission was that the mere fact that a particular level of sound is potentially injurious does not of itself give rise to a duty of care. the existence of a duty of care depends not merely on foreseeability of injury but whether it is just and equitable to impose the duty (para 36). On this basis, Neuberger LJ said that, while not intending to call into question the applicability in the general run of cases of the 90dB(A)leq threshold each case must turn very much on its facts, not least because of the just and equitable test accepted, indeed advanced on behalf of the defendant (para 38). In my opinion, however, the adoption of such a test would import an extraneous concept. The primary inquiry, when considering whether an employer has acted with due care to avoid injury from noise induced hearing loss, is whether there is a recognised and established practice to that end; if there is, the next question is whether the employer knows or ought to know that the practice is clearly bad, or, alternatively, if the area is one where there is developing knowledge about the risks involved in some location or operation, whether the employer has acquired greater than average knowledge of the risks. Considerations of justice and equity no doubt underlie both Swanwick and Mustill JJs statements of principle. But to ignore the statements and to restate the inquiry in simple terms of justice and equity opens a wide and uncertain prospect, despite the courts attempts in Harris to emphasise that it was not departing from a position whereby an employer would not normally be expected to be liable for a level of sound lower than 90dB(A). That prospect has a present resonance, although HHJ Inglis did not base himself on the reasoning in Harris, but used language picking up the more conventional statements of principle. Nonetheless, I consider that he did not apply those statements in the sense in which they were meant. He did not consider the practice represented in the Code to be clearly bad during the 1970s or until the end of the 1980s; and it is common ground that the general state of knowledge about the risks involved in the knitting industry remained essentially static throughout this period (see also the first seven sentences of para 87 of the judges judgment). As Mr Hendy made clear in the Court of Appeal (Core II, pp.749 750), no question of special resources arises, since no amount of research would have led to further knowledge, or indeed to different conclusions about the level of risk than those indicated in the Code of Practice. Mr Hendy is in my opinion also correct in saying that the judge based his conclusions, including those relating to Courtaulds and Pretty Polly, on generally available published provisions and materials, rather than on any specific knowledge. That is particularly apparent from the final sentences of paras 56 and 66 of his judgment (cited in the appendix) as well as in paras 87 and 88. It might perhaps have been suggested, in relation to Courtaulds, that the rising incidence of claims which they experienced in the early 1980s gave rise to some degree of special knowledge, but that is not how the matter has been put. It follows that, on the judges approach, the only real difference between employers lay in the degree of their consideration of and reaction to such risks. In these circumstances, the judges conclusions in relation to Meridian (Courtaulds) and Pretty Polly amount in substance to saying that, because these companies focused more closely on the potential risk below 90dB(A) and displayed greater than average social awareness (to use Mustill Js words in Thompson at p 415H) by resolving that some action should probably be taken at times before ordinary, reasonable employers arrived at any such conclusion, they incurred greater liability than such employers. The judge himself recognised here a paradox (para 88). Those who have a safety department and medical officers and take noise more seriously than the ordinary reasonable employer are liable, while others are not. That is appropriate if extra resources or diligence lead to relevant fresh knowledge. But here they have led simply to the formation or inception of a different view to that generally accepted about what precautions to take. In such a case, the effect of the judges approach is not to blame employers for not ploughing a lone furrow; rather, it positively blames them for ploughing a lone furrow but not doing so deeply enough. When Mustill J spoke of changes in social awareness (p 415H), he was referring to changes leading to a general raising of the standard which average employers were expected to observe, not of individual employers spear heading such changes by forming the view that the standard should be raised. In my view, therefore, no real basis was shown for treating Courtaulds and Pretty Polly differently. On this aspect of the appeal, I would only add two points: first, had I considered there to be a sound basis for treating Courtaulds and Pretty Polly as having relevantly different and greater knowledge than average employers, I would see no basis for the Court of Appeals addition of Quantum into the same special category; Lord Dyson and Lord Saville agree, I understand, that there was no such basis; secondly, since Lord Dyson does not share the view that the judge should not have treated even Courtaulds and Pretty Polly as falling into a special category (see para 104 below), it follows that there is no majority in favour of this view and that (in reflection of the common ground between Lord Dyson, Lord Saville and myself), the appeal should be allowed only to the extent of restoring the judges decision in this regard. (b) Was the Code of Conduct an acceptable standard for average employers? In my opinion, the respondent is correct in submitting that the real question is the sustainability of the judges conclusion that the Code of Practice constituted an acceptable standard for average employers to adhere to during the 1970s and 1980s. The Court of Appeal expressed agreement with the judges conclusion that the Code of Practice remained a generally acceptable standard. Smith LJ stated that this conclusion cannot be faulted and that I would uphold his view that there was no breach of the duty at common law during the period for which a responsible body of opinion regarded it as acceptable to expose employees to noise in the 85 89dB(A)lepd range (para 105). Endorsing, in effect, the judges approach of distinguishing between employers with average and greater than average knowledge, she concluded para 105 by saying: I consider that, for the employer with the ordinary or average degree of knowledge, the judge's conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion, although, left to myself, I would have said that the publication of the first draft directive in 1982 would have put all employers on notice that it could no longer be regarded as acceptable or reasonable to leave this group of employees exposed. Turning to examine the different dates of common law liability which the judge had imposed, Smith LJ identified the issue as being when employers should have realised that it was no longer to be regarded as acceptable to disregard the risk to some of their employees from exposure to 85 89dB(A)lepd, of which they should, because of the Code of Practice, have been aware from 1972 (para 107). As regards Courtaulds, she regarded the judges conclusion as plainly justified, saying that By 1983, they could no longer have thought that a responsible body of opinion took the view that it was acceptable to ignore the risks of harm below 90dB(A)lepd (para 107). However, that appears to say that from 1983 there was no responsible body of opinion in favour of relying on the Code of Practice, and, if so, it should on its face have led automatically to a conclusion that no reasonable employer could do so. Nonetheless, Smith LJ went on to consider the state of Pretty Pollys awareness about the need to take action and the 1982 draft directive and of Quantums awareness of the draft directive. After noting Quantums awareness of the draft directive, she accepted Mr Hendys submission that it was irrational to say that, because the group was smaller than Pretty Polly or Courtaulds and operated as individual companies without the benefit of central advice on health and safety issues, they should be treated differently from the other two employers (para 109). While Smith LJ ostensibly viewed the issue (as the judge did) as depending upon analysis of each individual employers position, in reality her approach seems to suggest a conclusion that the Code of Practice ceased to be an acceptable standard for any responsible employer in 1982. In effect, the Court of Appeal appears to have disagreed with HHJ Ingliss conclusion that the period during which a reasonable employer could rely upon the Code of Practice continued until 1987. The basis for this, despite the passage concluding para 105 of Smith LJs judgment, quoted above, appears to have been the publication in 1982 of the first draft directive. The judges conclusion in para 87 was the product of a lengthy trial, and was based on extensive expert evidence. The Code of Practice itself repeatedly refers to a limit defined in section 4.3.1 in relation to continuous noise exposure as 90dB(A)lepd: see e.g. sections 2.2.1, 3.1.2, 4.1.1, 4.2.1, 5.1.1, 6.1.3, 6.7.1 and 7.1.1. It also says that Where it is reasonably practicable to do so it is desirable for the sound to be reduced to lower levels (section 4.1.1), but this has to be read with section 6.1.3, which states: Reduction of noise is always desirable, whether or not it is practicable to reduce the sound level to the limit set out in section 4, and whether or not it is also necessary for people to use ear protectors. Reduction below the limit in section 4 is desirable in order to reduce noise nuisance. When addressing section 29(1) of the Factories Act 1961, the Court of Appeal said (para 101) that, although the Code of Practice was not irrelevant, it was, in itself, plainly inadequate as an assessment tool, in that it advised only that there was some risk to susceptible individuals from exposure below 90dB(A)lepd; and it went on to conclude that the publication of BS 5330 in July 1976 could and should have enabled any average sized employer in the knitting industry, with the assistance of anyone with a modest degree of mathematical skill or any consultant acoustic engineer, to make an informed assessment of the quantum of risk arising from noise below 90dB(A)lepd. These statements are not on their face easy to reconcile with the judges findings (in particular in paras 46 48 and 87). However, they were made in the course of considering the issue of reasonable practicability under section 29, and on the basis that it was irrelevant in that context whether a reasonable employer could reasonably rely upon the Code of Practice as setting an acceptable standard of conduct in relation to exposure of employees to noise: see paras 89 and 100 (quoted in para 75 below). Even if regarded as consistent with the judges findings, they do not therefore bear on the question whether the Code of Practice provided such a standard. In any event, however, I do not consider that examination of the underlying statistical material undermines either the appropriateness or relevance of the Code of Practice as a guide to acceptable practice. Both the Code of Practice and BS 5330 were based on the research and statistics developed through the work of Burns and Robinson. BS 5330 itself stated that determination of a maximum tolerable noise exposure was outside its scope, that it involved consideration of risk in relation to other factors, and that for occupational exposure a limit was specified by the Code of Practice (para 15, above). The respondent in fact accepted in the Court of Appeal that there was no basis in this case for going behind the Code of Practice, while submitting that the Code was enough for her purposes (Core II, pp 749 750). If general standards of, or attitudes to, acceptable risk are left out of account, the statistical tables contained in the NPL tables, BS 5330 and ISO1999 could be used to suggest that no reasonable employer could from the early or mid 1970s expose his employees to noise exceeding 80dB(A)lepd. This would not be consistent with the contemporary recognition of the Code of Practice as setting a generally appropriate standard in BS 5330 itself as well as in other documents such as Noise and the Worker and the Industrial Health Advisory Committee report of 1975 (see para 15 above). The statistically identified risks at levels between 80dB(A)lepd (currently, at least, identified with no risk) and 90dB(A)lepd do not enable any easy distinction to be drawn within that bracket, if the elimination of all statistical risk is taken as a criterion. This is highlighted by consideration of the tables in BS 5330: 1976 upon which the respondent and the Court of Appeal (para 101) have relied to show the risk attaching at levels of exposure between 85 and 90dB(A) lepd. The same tables can be used to demonstrate the existence of risks (in terms of the percentage of persons exposed attaining or exceeding a mean hearing level of 30dB) arising below noise levels of 85dB(A)lepd. Caution is necessary because of the inherent inaccuracy, and tendency to exaggerate, of the NPL tables, and to the extent that they were based on them, the BS 5330: 1976 tables at all levels below 90dB(A) (para 15 above). But another, separate problem, which also applies to the ISO1999 tables, is that reliance on such tables as demonstrating the existence of a risk which needed counter acting makes it necessary to confront the question on what basis any distinction exists between say an increase by an additional 6% in the level of risk for 60 year old persons who have been exposed for 40 years at 86dB(A)lepd and by 5% for such a person so exposed at 85dB(A)lepd or by 4% for such a person so exposed at 84dB(A)lepd. The equivalent increases for 60 year olds so exposed for 30 years would be 52, 42, and 32%, and for 60 year olds exposed for 20 years, 4, 3 and 2%. Consistently with this, the respondent did argue before the judge that 80dB(A)lepd was the only acceptable limit. But, despite this, the judge concluded that any risk below 85dB(A)lepd was minimal (para 26), and that the risk between 85dB(A)lepd and 90dB(A)lepd was at the relevant times an acceptable risk for reasonable employers without greater than average knowledge to take. The judge, correctly, did not resolve the issues before him by considering statistical extrapolations at low levels of exposure, but by forming a judgment on the whole of the expert, documentary and factual evidence adduced before him. On the issue whether there was an acceptable contemporary standard to which reasonable employers could adhere, in the light of the terms of the Code of Practice and on the basis of the expert evidence, HHJ Inglis held (para 48) that the 90dB(A)lepd level was regarded . as the touchstone of reasonable standards that should be attained. Confirmation existed in notes published by the Wolfson Unit for Noise and Vibration Control in the University of Southampton. These were intended to supplement a series of seminars held round the country in the autumn of 1976 on the theme "Industrial Noise The Conduct of the Reasonable and Prudent Employer". The seminars were intended "primarily for company lawyers, solicitors, insurance claims and risk assessors, safety officers, medical officers and others with interests in occupational hearing loss". The notes were, the judge said, strong evidence of the prevailing advice being given to people in industry concerned with noise at that time. They described the 1972 Guidelines as establishing a comprehensive "damage risk criterion" based on 90dB(A)lepd, and said that they had been actively promulgated by the Factory Inspectorate. In discussing the emerging principles of legal liability for noise induced hearing loss, the authors said: Over the last 15 years knowledge as to the relationship between noise and deafness has grown and become more precise . Today a reasonable employer ought to know that to expose an employee to noise in excess of 90dB(A) for eight hours or its equivalent is potentially hazardous. It also seems a fair assumption that the reasonable employer should have known of the criteria set out in "Noise in Factories" and "Noise and the Worker" by the mid 1960s." The introduction in 1974 and continuance in force at all times thereafter of woodworking and tractor regulations based on maximum exposures of 90dB(A) reinforce this comment (para 15, above, and para 56, below). At least until the mid 1980s, there were still many people employed in industry exposed to over 90dB(A)lepd, and the approach of enforcement agencies and others was to concentrate on them (HHJ Inglis, para 48). The expert evidence before the judge also included the following, summarised by him in paras 46 48: 46. There was evidence given by the expert witness engineers for Courtaulds (Mr Bramer and Mr Currie) about the approach to control of noise in the period from the 1970s in industry. The report of Mr Worthington for Pretty Polly and Guy Warwick is also in evidence. To Mr Bramer, the guidance in Noise and the Worker and the 1972 Guidelines provided a clear and consistent recommendation to employers as to how they ought to deal with noise in the workplace. The result was that in his practice, his invariable advice until the late 1980s, was that the relevant level was a daily personal noise exposure of 90dB(A). This approach, he said, was standard during the period up to 1989 among noise professionals, and taught at training courses. In the mid 1980s, when it appeared that EEC regulation would involve a first action level of 85dB(A) his advice changed to reflect that. He was not aware of the NPL tables before the 1980s when he found that they were being used by medical experts writing reports for the purpose of deafness claims. He has never come across them being used in any part of industry. In evidence Mr Bramer said that he gave advice to employers in terms of complying with the 1972 Code. He was speaking to the 90dB(A) level, as were all his colleagues. He agreed that the advice would be to answer the question Tell us how to comply with legislation and the Code of Practice, rather than Tell me how to avoid reasonably foreseeable risk to my workforce. He would have recommended 90dB(A) as the cut off point, but would also have said that does not actually stop some more susceptible people from having some small noise induced hearing loss. If asked about risk, he would have had some difficulty, and regarded the question as more one for medical people. 47. Mr Currie said that the Health and Safety Executive and factory inspectors after the Health and Safety at Work etc Act 1974 concentrated their advice and enforcement on the 90dB(A) level. He was not aware of any instance in which the NPL tables had been used by employers to predict the level of risk for their workforce. In evidence Mr Currie said that good practice won't necessarily remove all risk. He agreed that there has been no very different understanding about noise induced hearing loss since the 1970s. The first thing to look at when deciding on practices, which is what employers have to do, is to look at the guidance available. Mr Worthington's report is to the effect that employers looked to the 90dB(A) limit in the Code of Practice as the maximum acceptable limit, and that the Factory Inspectorate and HSE did not refer employers to the risks below that limit as risks about which they should take action. That was the practice of the day, and employers taking advice, if they did, would be referred to the standard in the Code as being what had to be observed. 48. It is clear from some of the documents referred to above that by the beginning of the 1980s there were still many people employed in industry exposed over 90dB(A)lepd, and that the approach of enforcement agencies was to concentrate on those people. The evidence of the engineers referred to above suggests that that was a common approach until at least into the mid 1980s. That the 90dB(A)lepd level was regarded, as is the effect of the evidence of the engineers referred to above, in industry as the touchstone of reasonable standards that should be attained is evidenced by notes published by the Wolfson Unit for Noise and Vibration Control in the University of Southampton in 1976. Mr Bramer and Mr Currie were independent engineers called as witnesses at trial. There is no suggestion that they were employed by or advisers to Courtaulds or any of the other employers involved in this case at any date relevant to liability in this litigation. The judge was clearly impressed by their evidence. Whatever critique might, with hindsight, be directed at the advice or approach they said was being given or taken in respect of employers does not alter the fact that this was the contemporaneous advice and approach, upon which the judge found that reasonable employers could generally rely, unless they fell into his category of employers with greater than average knowledge. The Court of Appeal attached considerable relevance to employers awareness of the first draft directive prepared by the Commission in October 1982. As I have observed, the court did not accurately place the position of this directive in the development of legislation at the European level (para 15 above). More importantly, a Commission draft is only a proposal for legislation by the Council of Ministers, and no reliance was or is placed on any underlying material which may, or may not, have been produced in its preparation or support. The first draft directive was proposed by the Commission as a basis for legislation in 1982, proved controversial, and was withdrawn in 1984. It was superseded by a differently framed legislative proposal, agreed by the Council of Ministers in May 1986, which gave member states until 1 January 1990 to bring into force provisions complying with the directive. In the light of the above, there is, in my opinion, no basis for the court to disturb the judges conclusion in para 87 that the Code of Practice was an official and clear guidance which set an appropriate standard upon which a reasonable and prudent employer could legitimately rely in conducting his business until the late 1980s. Before leaving this aspect, it is also worth noting one further small indication of the consistency of the judges conclusion with informed contemporary attitudes. The relevant level of noise exposure above which a reasonable employer should take protective steps was of direct relevance in the early case of noise induced hearing loss, Kellett v British Rail Engineering Ltd (Popplewell J, 3 May 1984). The strength of the representation attests to the importance attached to the issues. On the facts and in the light of agreed expert evidence, Popplewell J recorded that there had been exposure for long periods initially in the period 1946 to 1955 below 90dB(A) and then in the period 1955 to 1979 above 90dB(A), and proceeded on the basis that The level of 90 is generally recognised as being a figure above which it is necessary for precautions to be taken. That was the basis on which it was accepted that the defendants, who had taken no precautions until 1979, were negligent. (c) What period should be allowed for implementation of any different standard? It follows, in relation to all the employers before the court, that the date when they should have been aware that it was no longer acceptable simply to comply with the Code of Practice was the date identified by the judge as applicable to Quantum and Guy Warwick, that is the time when the terms of the 1986 directive became generally known in the consultative document of 1987 (para 87). Dealing with this point, Smith LJ said (para 105): I consider that, for the employer with the ordinary or average degree of knowledge, the judge's conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion Adding a further six to nine months for implementing protective measures (instead of the judges period of two years), she went on to conclude (para 106) that: In case it should ever become material, I would fix the date for breach of common law duty for the average employer at January 1988. Leaving aside for the moment the difference in the period allowed for protective measures, that approach does not reflect the nuances of the judges finding. The consultative document was issued in 1987, but seeking responses no later than 30 June 1988. Its terms would have become generally known during the period of consultation, which was to last to 30 June 1988. The judge was prepared to add a period of two years for putting a conservation programme into action, accompanied by information and instruction (para 88). This would bring the period before ear protection would have to be made available to those exposed to noise levels over 85dB(A)lepd to 1 January 1990, the date when the Directive and Regulations under it anyway required such protection to be made available to them. I therefore understand the judge as having held that Quantum and Guy Warwick had no potential common law liability in negligence before 1 January 1990. The judge, in taking two years as the appropriate period for putting a conservation programme into action, accompanied by information and instruction, referred to a further passage in Thompson. Mustill J there said (pp 423 424): From what date would a reasonable employer, with proper but not extraordinary solicitude for the welfare of his workers, have identified the problem of excessive noise in his yard, recognised that it was capable of solution, found a possible solution, weighed up the potential advantages and disadvantages of that solution, decided to adopt it, acquired a supply of the protectors, set in train the programme of education necessary to persuade the men and their representatives that the system was useful and not potentially deleterious, experimented with the system, and finally put it into full effect? This question is not capable of an accurate answer: and indeed none is needed, as will appear when the scientific aspects of the case are considered. Various years were selected as rough markers, for the purpose of argument. I reject without hesitation the notion that the date lay somewhere in the years immediately preceding and following the Second World War. It was not until 1951, with the inconspicuous entry of the V 51R into the United Kingdom market that even a really enlightened employer would have started to ask himself whether something could be done. Even then, I consider that it pitches the standard of care too high to say that an employer would have been negligent, from that date, in failing to find, decide upon, and put into effect a system of using the protectors then available. At the other extreme, I consider that the choice of a date as late as 1973 cannot be sustained. The problem, and the existence of different ways in which it might have been combated, had been well known for years; there had been devices which were both reasonably effective, and reasonably easy to wear; and if the employers did not know precisely what they were they would have had no difficulty in finding out. All this being so, I conclude that the year 1963 marked the dividing line between a reasonable (if not consciously adopted) policy of following the same line of inaction as other employers in the trade, and a failure to be sufficiently alert and active to measure up to the standards laid down in the reported cases. After the publication of Noise and the Worker there was no excuse for ignorance. Given the availability of Billesholm wool and reasonably effective ear muffs, there was no lack of a remedy. From that point, the defendants, by offering their employees nothing, were in breach of duty at common law. The Court of Appeal disagreed with HHJ Ingliss period of two years on the basis that he was allowing time not merely for the provision of ear protectors but also for the noise measurement and policy decisions which preceded the actual provision of protection and that, by the time when employers should have appreciated the need for noise protection below 90dB(A), they must be taken to have known already to which workshops that applied (para 106). In paras 32 and 48 of her judgment, Smith LJ also noted that Courtaulds noise committee had over a period of a year (between March 1983 and March 1984: see para 52 of HHJ Ingliss judgment) identified areas of over 90dB(A)lepd and areas of 85 to 90dB(A)lepd. There is a paucity of evidence in this area of the case. It is common ground that some period should be allowed, and the period chosen by the judge fits with periods chosen by courts in other contexts see e.g. Armstrong v British Coal Corporation [1998] CLY 975, para 2842, Smith v Wright & Beyer Ltd [2001] EWCA Civ 1069, para 6, and Brookes v South Yorkshire Passenger Transport Executive [2005] EWCA Civ 452, paras 22 23 (and, less clearly on this point, Doherty v Rugby Joinery (UK) Ltd [2004] EWCA Civ 147; [2004] ICR 1272, paras 21 and 33 35) as well as with periods commonly allowed for the implementation of new health or safety measures, e.g. under Directive 86/188/EEC and the Noise at Work Regulations 1989 which gave effect to it domestically. I do not see how it can be said that all employers who exposed their employees to noise levels between 85 and 90dB(A)lepd up to the end of 1987 must, Smith LJs words (para 106) by that time be taken to have known already to which workshops the provisions of the Directive and Regulations would apply. An employers duty towards a particular employee depends upon the circumstances of that particular employees employment. Smith LJ appears to have derived the duty to have measured noise levels from the fact or likelihood that there were other employees exposed elsewhere by the relevant employers to noise levels exceeding 90dB(A)lepd (paras 92 93). But the relevant circumstance is that none of the employees to whom this case relates were employed in circumstances where they were exposed to noise levels exceeding 90dB(A)lepd. Accordingly, the relevant employers were not, on the judges findings, under any duty to take further steps. The Code of Practice only stipulated that All places where it is considered the limit in section 4 may be exceeded should be surveyed (section 5.1.1). The limit referred to in section 4 for continuous exposure was that If exposure is continued for eight hours in any one day, and is to a reasonably steady sound, the sound level should not exceed 90dB(A) (section 4.3.1). I do not therefore consider that the basis on which the Court of Appeal interfered with the judges conclusion on this point was justified. Had my view prevailed that Courtaulds were in no significantly different position from Quantum and Guy Warwick as regards the date when they should have taken further steps to protect employees against the risk of hearing loss, I would still have held Courtaulds position to differ in one material respect. At this point it would have been relevant that they were to some extent already ploughing a lone furrow. By mid 1984 they had in fact undertaken the relevant noise surveys and they already knew to which workshops the issue of exposure between 85 and 90dB(A)lepd applied. Accordingly, in relation to Courtaulds alone, I would have seen force in the view that a period of no more than nine months was long enough to perfect such steps as they were already contemplating. Bearing in mind that the consultation paper, on which the judge based the date by reference to which employers generally should have begun to take action, was open for responses until mid 1988, I would have taken the end of 1988 as the latest date by when Courtaulds should have had full and effective protective measures in place for employees exposed to noise between 85 and 90dB(A)lepd. But since (as stated in paragraph 25 above) the judges view will prevail that Courtaulds were (along with Pretty Polly) in a special position, and should have acted to take further steps from the start of 1983, they too must in my view be entitled to the two years allowed by the judge for the actual implementation of such steps, making them liable as the judge held from the start of 1985. The Factories Act 1961 In relation to the scope and application of section 29(1) (set out in para 11 above), the Court of Appeal disagreed substantially from the judge, holding that the section involves a significantly more stringent standard of liability than any arising at common law. Several important issues arise on which there is no prior authority at the highest level: whether section 29(1) applies at all, where the claim relates not simply to the workplace, but to activities carried on at it; whether it applies to risks of noise induced hearing loss arising from such activities in relation to long term employees working in the place; whether the safety of a place is an absolute and unchanging concept or a relative concept, the practical implications of which may change with time; and what is meant by so far as is reasonably practicable and how it relates to the concept of safety. (i) Lack of safety arising from activities The first issue concerns the extent to which a place can be rendered unsafe by activities carried on at it. The appellants rely on the background to section 29(1) to argue that it cannot. Section 29 re enacts section 26 of the Factories Act 1937, as amended by section 5 of the Factories Act 1959. Section 26, as originally enacted, did not have wording corresponding with the second part of section 29(1). The words and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there were added by section 5 of the 1959 Act. The amendment adding them was proposed late in the passage of the bill. It was felt to be a real fault and a gap in the existing legislation that it covered only the means of access to, and not the safety of, the place of work. The Minister, Mr Macleod, accepted the idea, and, ultimately accepted in substance the whole amendment (House of Commons Standing Committee B, 12 March 1959, 17th Sitting, cols 747 752). There had been a series of prior cases in which courts had had to distinguish, less than happily, between the place of work and means of access to it, and to reject claims on, for example, the ground that the employee was injured at his workplace on his way to the lavatory, rather than on his way to his workplace: see Davies v de Havilland Aircraft Co Ltd [1951] 1 KB 50; Rose v Colvilles Ltd 1950 SLT (Notes) 72; Dorman Long & Co Ltd v Hillier [1951] 1All ER 357 and Prince v Carrier Engineering Co Ltd [1955] 1 Lloyds Rep 401. Looking at the matter today, one might perhaps have expected responsibility for the safety of the workplace to be a subject for legislative attention even before responsibility for the means of access to it. But, for whatever reason, that was not the original statutory scheme. The gap was filled by the 1959 amendment. In considering the scope of the words added, Mr Beloff QC, on behalf of the first appellant, submits that the means of access looks to physical dangers or obstructions, that section 29(2) is likewise clearly focused on the physical risks inherent in working at height, and that the whole section is part of a scheme of criminal liability, from which any civil liability only follows by judicial interpretation (Taylor v Coalite Oils & Chemicals Ltd (1967) 3 KIR 315, 318, per Diplock LJ). This last point has some, though only limited, force, for two reasons. First, the criminal liability is under the Act imposed on the occupier or, in certain cases not presently relevant, on the owner of the factory. That to my mind suggests that responsibility under section 29 is likely to attach to matters over which an occupier (typically of course the employer him or itself) would be expected to have control. But such matters would include not merely the physical state of the premises, but also, at least, the carrying on there of regular activities. Secondly, a person is not to be put in peril upon an ambiguity, however much the purpose of the Act appeals to the predilection of the court (London and North Eastern Railway Co v Berriman [1946] AC 278, 313 314, per Lord Simonds). However, it is only if the section is ambiguous, unclear or open to two reasonable interpretations that its penal effect may indicate the narrower construction (Franklin v Gramophone Co Ltd [1948] 1 KB 542, 557, per Somervell LJ), and courts should remember that the Factories Act is a remedial measure passed for the protection of the workmen [which] must, therefore, be read so as to effect its object so far as the wording fairly and reasonably permits (Harrison v National Coal Board [1951] AC 639, 650, per Lord Porter; McCarthy v Coldair Ltd [1951] 2 TLR 1226, per Denning LJ). Mr Beloff is however also right to remind the Court that it is always necessary to consider in what respects and to what extent the Act involves remedial measures. Mr Beloff QC submits that there are three possible interpretations of section 29(1): a minimalist, a maximalist and a middle way. The minimalist would involve treating the section as confined to intrinsic aspects of the physical place, ignoring any activities carried on there. With the possible exception of the Delphic rejection of the claim under section 29 by Mustill J in Thompson at p 449C D, there appears to be no reported case rejecting a claim under that section on this basis. Reference was made to the interpretation given to section 25(1) and by extension section 26(1) of the 1937 Act: in Latimer v AEC Ltd [1953] AC 643, the House held that section 25(1), which in its then form provided: All floors, steps, stairs, passages and gangways shall be of sound construction and properly maintained, was not breached when a structurally sound factory floor became wet and oily after a flood due to an unusually heavy rainstorm; and that approach was then applied under section 26(1) in Levesley v Thomas Firth & John Brown Ltd [1953] 1 WLR 1206 (CA), where in the course of some loading operations a block of iron was left temporarily protruding three inches out into a gangway, used as a means of access. This restriction of the word maintained in relation to the means of access has been strongly criticised in successive editions of Munkmans Employers Liability at Common Law, and there is no reason to extend it to the words be made and kept safe which govern the duty, first introduced in 1959, in relation to the safety of the workplace. Indeed, it is clear from the Parliamentary materials that the words and kept were introduced specifically with the Latimer case in mind, and to make clear that employers should so conduct their business as to see that a workplace did not become unsafe. The examples were given of overstocking or slippery substances left on the floor (Factories Bill, Standing Committee B, 12 March 1959, cols 749 750). A workplace may therefore be unsafe because of some feature which is neither structural nor permanent. But this does not determine whether a workplace may be unsafe by reason of operations carried on in or at it. Mr Beloff submits that the law took a wrong turn in Evans v Sant [1975] QB 626, when the Divisional Court initiated what he described as a middle approach which was later followed by the Court of Appeal in Wilson v Wallpaper Manufacturers [1982] CLY para 1364 and Homer v Sandwell Castings Ltd [1995] PIQR P318. In Evans v Sant, the Divisional Court (Lord Widgery CJ, Bridge and Shaw JJ), on a case stated by magistrates after conviction, said that the guiding light in their approach was that in deciding whether the place of work was made safe, it is the place qua place that we look at, and not the place qua operation carried on upon the place (p 635G H). But Lord Widgery CJ then went on (pp 635H 636B) That does not mean of course that in deciding whether the place is made safe one has total disregard for the activities which go on in the place itself. The safety of the place depends not simply on the construction of the floor or the solidity of the walls, but it also depends in some degree upon the nature of the operations carried on therein. In so far as there is permanent equipment in the place, then its safety can in my judgment reflect on the safety of the place. In so far as there are activities carried on in the place which are constant, regular and recurring, I can well see that they may have their impact on the question of whether the place has been made safe. In Evans v Sant, even this relaxed or middle approach did not enable the prosecution to succeed. The facts were that, in the course of laying a water main, a test head was attached between the pipe and a pump to test the water pressure, but it was insecurely fitted and, as pressure built up, it blew off, causing the death of a workman who ran into the path of a passing car. In allowing the defendants appeal against conviction, Widgery CJ said, at p 636, that: where, as in the present case, you start with a place safe in every degree, and the only thing which renders it unsafe is the fact that equipment brought upon it for a particular operation, and being used for a particular operation on a particular day, produces an element of danger, it seems to me that that is not enough to justify the allegation, certainly in criminal proceedings, that the place itself has not been made safe. In Homer v Sandwell Castings Ltd, a civil claim failed because the danger did not arise from any static condition of the place of work, but arose from the operation upon which the plaintiff was engaged (p 320, per Russell LJ). The employee had noticed a slight leak through sand paste, which he had himself introduced to seal a gap, but had carried on working, with the result that an eruption of molten metal through the seal fell onto his foot. The appellants support their case on section 29(1) by reference to the layout as well as other specific sections of the 1961 Act. These, they submit, are only consistent with a limited interpretation, confining it to physical dangers inherent in the structure. They point out that section 55 addresses any process or work carried on or to be carried on in any premises used or intended to be used as a factory; it gives a magistrates court power, if satisfied that such process or work cannot be so carried on with due regard to the safety, health and welfare of the persons employed, to prohibit the use of the premises for that process or work. They also point to various other sections designed to address problems arising from operations carried on in premises. For example section 4 requires suitable and effective provision for circulation of fresh air, and for rendering harmless, so far as practicable, all such fumes, dust and other impurities generated in the course of any process or work carried on in the factory as may be injurious to health; section 14 requires (with immaterial exceptions) Every dangerous part of any machinery [to] be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced; and section 27 requires all parts and working gear to be of good construction, sound material, adequate strength and free from patent defect, and properly maintained. However, the sections of the Act are not exclusive codes in relation to their particular subject matters (see e.g. Liptrot v British Railways Board [1969] 1 AC 136), and it is not axiomatic that there cannot be overlap between the application of two different sections. It seems to me good sense to describe a workplace as unsafe, if operations constantly and regularly carried on in it make it so. It is unnecessary to comment on the decisions on particular facts, but section 29(1) cannot in my opinion have a narrower meaning than that given it in Evans v Sant and the later cases following Evans v Sant. To take another example, a place may well, as it seems to me, be unsafe by reason of activities carried on in it, e.g. if a shop floor were to be constantly crossed by fork lift trucks passing from a store on one side to somewhere else on the other side of it. In the present case, the noise generated by knitting and other machines was a permanent feature of the operations which were intrinsic to the workplace. If the section is directed to noise at all, then such noise must, on the approach taken in Evans v Sant, make the place unsafe. It is unnecessary to say more on the facts of this case. (ii) Lack of safety arising from noise The second issue is whether section 29 is directed to noise. This is more open to question. There is much to suggest that noise was not in the legislatures mind at all, when section 26(1) of the 1937 Act was expanded to cover the safety of the workplace in 1959 and later re enacted as section 29(1) of the 1961 Act. Further, the relevant noise is not noise of a literally deafening nature, causing immediate injury. It is noise which would only injure some people and then only if they were exposed to it for continuous periods lasting many years. The appellants submit that a requirement that the workplace be made and kept safe for any person working there is inapt to cover a situation where many or all of the persons working there may never be at any risk, because they have not been there long enough and may never be, or because they may not be susceptible to suffering such noise induced hearing loss. The appellants further submit that the fact that the principal protective measure suggested consists in the provision of ear protectors, rather than any corrective measures affecting the workplace itself or any regular feature of it, indicates or suggests that section 29(1) is inapplicable. I am not impressed by this point. If a workplace can be unsafe for employees by reason of constant and regular activities carried on at it, I do not see why it should not be rendered safe by counter acting measures of an equally constant and regular nature relating to the clothes or equipment worn by employees. On the other hand, the scheme of the 1961 Act does indicate that, even though section 29(1) is to be read as indicated in Evans v Sant, it is essentially dealing with safety, rather than health. Safety typically covers accidents. Health covers longer term and more insidious disease, infirmity or injury to well being suffered by an employee. Hearing loss, at least of the nature presently in issue, falls most naturally into this latter category. The 1961 Act is divided into Parts, the first four being headed (I) Health (General Provisions), (II) Safety (General Provisions), (III) Welfare (General Provisions) and (IV) Health, Safety and Welfare (Special Provisions and Regulations). Part I comprising sections 1 to 11 deals with cleanliness, overcrowding, temperature, ventilation, lighting, drainage of floors, sanitary conveniences, and enforcement powers; while Part II contains, in addition to section 29, a wide variety of sections covering inter alia machinery, dangerous substances, hoists, lifts, openings and doorways, chains, ropes, lifting apparatus, floors, passages and stairs, fumes and lack of oxygen in confined spaces, explosive or inflammable dust, vapour or substance, boilers, means of escape and fire. The general distinction between health and safety provisions was also present in the 1937 Act, and significance was attached to it in Clifford v Charles H Challen & Son Ltd [1951] 1 KB 495, 498, per Denning LJ and Ebbs v James Whitson & Co Ltd [1952] 2 QB 877, 886, per Hodson LJ. As to the legislative mind set in 1959 and 1961, the government promoting the 1959 Act made no mention of noise. The only relevant reference to noise by any MP in debate concerned the possibility that the minister might take advice on and look more closely at noise, with a view to making regulations under section 60 of the 1937 Act as amended (later section 76 of the 1961 Act), enabling the minister to make regulations where satisfied that, inter alia, any process was of such a nature as to cause risk of bodily injury. Likewise, when the Offices, Shops and Railways Premises Bill came before Parliament in November 1962 and March 1963, comments were made on the absence of any provision dealing with noise. Initially, the minister directed attention to the general power to make regulations for securing health and safety, but ultimately section 21 was included, specifically permitting regulations to protect from risks of bodily injury or injury to health arising from noise or vibrations. The minister in the House of Lords commented on section 21: This is a new subject, on which we still have much to learn (House of Commons, 2nd reading, 15 November 1962, Hansard cols 615, 618 619 and House of Lords 2nd reading, 18 March 1963, Hansard, col 948). It was not until April 1960 that Sir Alan Wilsons committee was set up to report on noise, and only in March and July 1963 that it issued interim and final reports. The main focus was on ambient noise and, in discussing the general effects of noise in chapter II, the report said, in relation to noise in a working environment, merely that it may disturb concentration, and perhaps affect the efficiency of someone working at a difficult or skilful task; it may affect personal safety. In outlining the law relating to noise in chapter III, the report identified the common law of nuisance and the Noise Abatement Act 1960. However, chapter XIII addressed occupational exposure to high levels of noise. It noted that it had been established that a permanent reduction of hearing sensitivity can occur in people who are exposed for long periods to noisy environments, such as are found in some industries (para 513). But it made clear the understanding that there was no existing legislation applicable to such noise and no sufficient basis for introducing any without further research. It said (para 534): Although voluntary action is now possible and, indeed, essential, we do not consider that the present knowledge of this complex problem provides a sufficient basis for legislation. Although the levels of continuous, broadband noise which represent a hazard to the hearing of people who are exposed to them for long, unbroken periods have been established within certain margins of error, many uncertainties remain. There is no satisfactory means of predicting the susceptibility of individuals to hearing loss, nor is the distribution of susceptibility known; the comparative danger of noises in which energy is concentrated in narrow frequency bands is not determined; nor is the influence on hearing loss of impulsive noises, which are common in industry. Neither is there much information on the physical properties of industrial noise, the distribution of noise of any given type in industry and the practicability of minimising those properties which are found to be dangerous to hearing. If early legislation were introduced it could do no more than lay down general standards, the effect and cost of which cannot at present be estimated. If the standards adopted proved to be too severe in some respects the industries affected might be exposed to heavy unnecessary expenditure; on the other hand if minimum standards were adopted, these would tend to suggest that compliance with these standards was all that was needed even in parts of industry where there were important hazards at lower sound pressure levels or with shorter exposure. Legislative insistence on the wearing of ear protectors would be particularly difficult to introduce until there is a wider recognition of the need for them in noisy industries. Early legislation would, therefore, have to be very general in its terms and it would be impossible to enforce effectively. We think that, at present, it would not achieve as much as vigorous voluntary action. In our view, before practical legislation could be considered, it would be necessary to establish the extent of the risk to average people of exposure to industrial noise, and the cost and possibility of measures which would effectively reduce this risk to the point which, on balance, was regarded as acceptable. In paras 535 536, the report suggested a further research programme, to be followed by more detailed surveys of individual industries and processes, and then, when the results of such surveys were available, consideration by government whether the time has not then come to lay down by legislation minimum standards to protect workers against damaging noise exposure in industry. The Annual Report of HM Chief Inspector of Factories on Industrial Health for 1965 (Cmnd. 3081) also stated at p 79 that At present there is no legislation requiring the control of noise in factories, nor is occupational deafness prescribed under the National Insurance (Industrial Injuries) Act 1965. The problem was examined in detail by the Wilson Committee, whose report was published in 1963. They concluded that the knowledge then existing was insufficient to enable legislation to be made. They advocated research and indicated some of the lines this should take. At present a very great deal of research is being conducted by various bodies. The Report of a Committee chaired by Lord Robens in 1970 72 (Cmnd 5034) referred to the Wilson Committees words (para 341), but went on to record the research recorded in Prof Burnss and Dr Robinsons 1970 report, Hearing and Noise in Industry. The research had established a system of predicting on a statistical basis the hearing deterioration to be expected for specified exposures within a wide range of industrial noise and the report had amongst other things suggested that workers should not be consistently exposed over long periods to a noise emission level higher than 90dB(A) (para 342). Robens then mentioned that industrial noise had now become a live issue in the field of compensation claims, referring to a case where a court awarded damages for the first time (para 344). This must have been Berry v Stone Manganese and Marine Ltd [1972] 1 Lloyds Rep 182, where a claim for common law negligence succeeded in respect of noise which amounted to about 115 to 120 decibels, whereas the tolerable noise is about 90 and no ear muffs had been provided (p 184). A claim under section 29(1) was in fact also introduced by amendment at trial. It was not argued on the basis of failure to provide ear muffs, but of alleged failure to reduce the actual noise level as far as reasonably practicable, and it failed on the facts. Robens continued that, since the relationship between exposure to certain levels of noise and hearing loss [was] now recognised the time was ripe to include basic requirements on noise control in occupational safety and health legislation (para 345). Lord Robenss recommendation stimulated the inclusion of regulation 44 in the Woodworking Machines Regulations 1974 (SI 1974/903) made under section 76 of the 1961 Act. In relation to factories using woodworking machines, regulation 44 requires that, where on any day any person employed is likely to be exposed continuously for eight hours to a sound level of 90dB(A) or equivalent or greater, then (i) such measures as are reasonably practicable shall be taken to reduce noise to the greatest extent which is reasonably practicable; and (ii) suitable ear protectors shall be provided and made readily available for the use of every such person. Later in 1974, there were also made, under agricultural health and safety legislation, the Agriculture (Tractor Cabs) Regulations 1974 (SI 1974/2034), regulation 3(3) of which provided that ministerial approval of safety cabs required ministers to be satisfied that the noise levels inside would not be more than 90dB(A). The existence of specific regulations under section 76 is not necessarily inconsistent with a more general duty of safety existing in respect of noise under section 29(1), though the inter relationship could give rise to problems and one might have expected or at least hoped that it would be clarified. HM Chief Inspector of Factories report for 1974 (Cmnd 6322) referred to the Woodworking Machines Regulations 1974 as the first British regulations to contain a legal requirement specifically intended to protect factory workers against the effects of noise (p 73). Under the heading of Noise and Vibration, it also noted (p 71) that The Inspectorate has been mainly concerned with protection of workers against levels of noise exposure likely to cause permanent hearing damage. To this end continuing efforts have been made to encourage voluntary compliance with the Code of Practice , which recommends that where people are likely to be exposed to sound levels over 90dB(A) for eight hours per day (or to suffer an equivalent exposure) action should be taken to reduce the noise exposure, and ensure that ear protection is provided and used. The position is therefore that section 29(1) is part of the statutory provisions dealing with safety, and it was enacted without any appreciation that it could cover noise or noise induced hearing loss. Noise induced hearing loss was not a newly discovered phenomenon, at least in heavy industry, where it was evidently regarded as an inescapable fact of life (see e.g. Thompson, p 409A, per Mustill J). An immediately injuring noise (like that which punctured the Duke of Wellingtons ear drum when he stood too close to the firing of a battery in his honour) could probably only occur as a result of some one off error or break down in the workplace, which would not reflect on its safety, although it could give rise to common law liability in negligence. None of the contemporary reports or documents suggests that the possibility of noise was in anyones mind or would have been conceived of as an element of safety of the workplace in 1959 or 1961. It follows that there is considerable force in the appellants submission that section 29(1) does not refer to safety in a sense depending not upon the current condition of the workplace with its noisy machinery, but upon the periods for which employees have worked, or are likely to continue to work in that, or another, workplace with equivalent or greater noise levels and upon their particular susceptibility to noise. Ultimately, however, I have come to the conclusion that it is not possible to be so categorical, and that the answer to the present issue links up with the next issue, that is how far responsibility under section 29(1) is absolute or relative. If section 29(1) imposes absolute liability, irrespective in particular of current attitudes or standards from time to time, then noise induced loss appears so far outside the thinking behind and aim of section 29(1) that I doubt whether it would be right to construe the section as covering it. But if liability under section 29(1) is relative, depending in particular on knowledge about and attitudes to safety from time to time, then, as thinking develops, the safety of a workplace may embrace matters which were previously disregarded, but have now become central or relevant to reasonable employers and employees view of safety. (iii) The absolute or relative nature of safety The third issue is whether the requirements regarding safety in section 29(1) are absolute or relative. In the respondents submission, they are absolute: what is safe is objective, unchanging and independent of any foresight of injury; the only qualification on an employers liability, where a workplace is unsafe because of employees exposure to noise, is if the employer can show that it was not reasonably practicable to reduce or avoid the exposure, e.g. by providing ear protectors. The House of Lords, by a majority, held in Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 that the onus lies on the employer to plead and prove under section 29(1) that it was not reasonably practicable to make and keep a place safe. Smith LJ accepted the submission that safety is an absolute. She said that what is objectively unsafe cannot change with time (para 78). She also associated lack of safety with the occurrence of injury to a single person, for she continued: If 85dB(A)lepd causes deafness to a particular claimant, that claimants place of work was not safe for him or her. It might have been safe for another person working alongside. But for the susceptible worker who has in fact been damaged, it can be demonstrated, without more, that his or her place of work was not safe. Looking at matters from the point of view of the work force generally, it is known that a minority of people will suffer appreciable harm as the result of prolonged exposure to 85dB(A)lepd. Therefore, it can be said that the place of work is not safe for the workforce because there is a risk of injury to all of them. I do not accept this approach. Whether a place is safe involves a judgment, one which is objectively assessed of course, but by reference to the knowledge and standards of the time. There is no such thing as an unchanging concept of safety. The Court of Appeals approach means in reality that any court determining an issue of safety would be applying (retrospectively) whatever happened to be the view of safety current at the time the matter came before it. Further, the fact that a single person has suffered injury due to some feature of the workplace is not, without more, proof that the workplace was unsafe. As Lord Upjohn (one of the majority) said in Nimmo (p 126C D), the section requires the occupier to make it [the workplace] 100 per cent safe (judged of course by a reasonable standard of care) if that is reasonably practicable and, if it is not, to make it as safe so far as is reasonably practicable to a lower percentage. Prior to the 1959 and 1961 Acts, the requirement, under regulation 5 of the Building (Safety, Health and Welfare) Regulations 1948 (SI 1948/1145), that sufficient safe means of access shall so far as is reasonably practicable be provided, had been considered in Sheppey v Matthew T Shaw & Co Ltd [1952] 1 TLR 1272 and Trott v WE Smith (Erectors) Ltd [1957] 1 WLR 1154 (CA). There it was said, by respectively Parker J at p 1274 and Jenkins LJ at p 1159, that safe cannot mean absolutely safe, although it must take account of circumstances likely to occur, including the fact that employees do not always behave with reasonable care for their own safety. I also note that in Trott, Jenkins LJ after suggesting that the statutory obligation was stricter than the general duty of reasonable care at common law and anticipating Nimmo by identifying the qualification so far as is reasonably practicable as involving a shift of the burden of proof (pp 1158 59), ended his judgment by saying that to regard the standard of care prescribed by regulation 5 and at common law as approximating to each other was if not absolutely right . at all events not very far wrong (p 1162). Likewise, in relation to a similar requirement under the Shipbuilding and Ship repairing Regulations 1960 (SI 1960/1932), it was argued in Paramor v Dover Harbour Board [1967] 2 Lloyds Rep 107 that if the bare possibility of injury and accident could reasonably be foreseen, then the means of access is not safe. In response, Salmon LJ said (p 109) that there is, of course, a risk of injury and accident inherent in every human operation but that whether a means of access was safe involved assessing the risk in all the circumstances of the case and must be a question of fact and degree in each case. The successor legislation to the 1961 Act, the Health and Safety at Work Act etc 1974 was differently, and on its face more broadly, formulated. It required every employer by section 2(1) to ensure, so far as is reasonably practicable, the health, safety and welfare of all his employees, and by section 3(1) to conduct his undertaking in such a way that other persons were not thereby exposed to risks to their health or safety. The concept of safety was considered in this context in R v Chargot Ltd (trading as Contract Services) [2008] UKHL 73 [2009] 1 WLR 1. Lord Hope, with whose speech all other members of the House agreed, said that the legislation was not contemplating risks that are trivial or fanciful, that the statutory framework was intended to be a constructive one, not excessively burdensome, that the law does not aim to create an environment that is entirely risk free and that the word risk which the statute uses is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against (para 27). It would be strange if the earlier, narrower formulation in section 29(1) had a more stringent effect. Similar comments to Lord Hopes had also been made in the earlier case of R (Junttan Oy) v Bristol Magistrates Court [2003] UKHL 55; [2003] ICR 1475, in relation to regulations requiring machinery to be in fact safe, safe being defined to mean giving rise to no risk (apart from one reduced to a minimum) of its endangering the health of or of its being the cause or occasion of death or injury to persons. Lords Nicholls and Hobhouse (both dissenting on presently immaterial points) made clear in that context that safe is not an absolute standard. Lord Nicholls said (para 22): There may be differences of view on whether the degree of safety of a particular piece of machinery is acceptable. Lord Hobhouse said (para 103) that: to describe questions of safety as simple questions of fact, just as if one was asking whether a given bird is a sparrow or a sparrowhawk, is to make a fundamental and elementary mistake. Safety is a question of opinion. There is no such thing as absolute safety. All safety is relative. Two men can legitimately hold different opinions [as to] whether a machine is safe or unsafe. Different assessments can be and are made of the safety of a particular machine by the authorities in different countries. If safety is a relative concept, then foreseeability must play a part in determining whether a place is or was safe. Mr Hendy submits that foresight has no such role; it can come in, if at all, only at the second stage, when considering whether it was reasonably practicable to make and keep the place safe. He also notes that there was in any event, on the judges findings, foresight in the present case of some statistical risk of injury. On the role of foresight, there are differing strands of authority. Not long before the 1959 Act, the House had in John Summers & Sons Ltd v Frost [1955] AC 740 considered the requirement under section 14(1) of the 1937 Act that Every dangerous part of any machinery shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced, and had applied to the concept of dangerousness an approach dating back to Hindle v Birtwhistle [1897] 1 QB 192, namely that a machine or part is dangerous if in the ordinary course of human affairs danger may reasonably be anticipated from the use of them without protection, and that it was impossible to say that because an accident had happened once therefore the machine was dangerous. Lords Reid and Keith at pp 765 766 and 774 expressly endorsed the relevance of determining whether the degree of danger was such that there was a reasonably foreseeable cause of injury. The same approach, again based on Hindle v Birtwhistle, was followed under section 14 in Close v Steel Co of Wales Ltd [1962] AC 367. The claim there failed because in the ordinary course of human affairs danger could not reasonably be anticipated from the use of the drill unfenced (p 382, per Lord Denning, with whom Lord Morton agreed on this point at p 398); the risk of injury, serious and regrettable as it proved to be, was not reasonably foreseeable (p 389, per Lord Goddard); and No reasonable employer could have been expected to anticipate any risk of significant injury (p 412, per Lord Guest). Close proved controversial on another, presently irrelevant, aspect (whether the duty to fence extended to preventing fragments flying out of a machine) on which it was criticised in paragraph 7 of Appendix 7 to the Robens Report. But the endorsement in Close of the concept of foreseeability taken from Hindle v Birtwhistle was noted without criticism in paragraph 5 of Appendix 7 to the Robens Report and was regarded as correct by contemporaneous commentators in The Solicitors Journal (The Duty to fence dangerous machinery: (1961) 105 Sol J 997) and The Modern Law Review (New Wave of Interpretation of the Factories Acts: (1962) 25 MLR 98, commending the broad common sense view of danger taken in Hindle v Birtwhistle), though it was regretted by John Munkman, writing in The Law Journal (The Fencing of Machinery: (1962) LJ 761). The concept of foreseeability continued to be adopted by courts, most notably, in Taylor v Coalite Oils & Chemicals Ltd (1967) 3 KIR 315. In Allen v Avon Rubber Co Ltd [1986] ICR 695, the Court of Appeal also endorsed it under section 29(1) of the 1961 Act. In Taylor, Diplock LJ said, obiter (pp 319 320): Safe is the converse of dangerous. A working place is safe if there is nothing there which might be a reasonably foreseeable cause of injury to anyone working there, acting in a way in which a human being may reasonably be expected to act, in circumstances which may reasonably be expected to occur: see John Summers & Sons Ltd v Frost [1955] AC 740, per Lord Reid at p 766. In determining, therefore, whether the occupier was under a duty to take any measures to prevent an accident which was caused by the presence at a working place of a particular object, it is necessary to ask, first, whether the possibility of an object of that kind being at that particular place was reasonably foreseeable, and, if so, secondly, whether it was reasonably foreseeable that it would be a cause of injury to a person working there. It is only if both those questions are answered affirmatively that it becomes necessary to consider whether it was reasonably practicable to avert the danger. More recently, in Robb v Salamis (M & I) Ltd [2006] UKHL 56; [2007] ICR 175, Lord Hope confirmed the relevance of reasonable foreseeability to article 5(1) of the Framework Directive 89/391/EEC (imposing on employers the duty to ensure the safety and health of workers in every aspect related to the work) and article 3(1) of the Work Equipment Directive 89/655/EEC (requiring employers to take the measures necessary to ensure that the work equipment made available to workers is suitable for the work to be carried out), stating that The obligation is to anticipate situations which may give rise to accidents (para 24). The respondent relies on a different stream of authority, consisting of Robertson v RB Cowe & Co 1970 SLT 122, Larner v British Steel plc [1993] ICR 551, Neill v Greater Glasgow Health Board [1994] SLR 673, [1996] SC 185 and Mains v Uniroyal Englebert Tyres Ltd [1995] SC 518. The Court of Appeal in the present case held that it was bound by Larner, as well as expressing agreement with it. Robertson concerned a trestle erected on a marine slipway which moved causing a workman to fall. Lord Guthrie concluded from the whole circumstances elicited as to the position of the staging, the way in which the pursuer worked, the outward movement of the trestle, and where the pursuer fell that on a balance of probabilities the erection was insecure and unsafe (p 129). Lord Migdale treated the fact that the trestle fell over as proof that it was not safe, and both he and, with hesitation, Lord President Clyde concluded that the decision in Nimmo meant that breach of section 29(1) was established once it was proved that the trestle was not sufficiently stable to support a workman doing his job there normally. There was no plea that it was not reasonably practicable to make or keep the trestle safe, and Lord Guthrie noted the obvious difficulty that such a plea would have faced. Lords Guthrie and Migdale rejected a submission based on the line of authority including John Summers and Close, that the employee had to prove that the accident was reasonably foreseeable. The basic issue was whether the trestle was insecure as erected, or whether it fell because the pursuer over reached (pp 128 129). Larner concerned an undetected crack which caused a structure to fall on the plaintiff. The Court of Appeal preferred the reasoning in Robertson to Diplock LJs dicta in Taylor and rejected foreseeability as a test of safety. In Mains the injury arose when a piece of machinery made an involuntary and unexpected movement, the cause of which was never ascertained, and so trapped the workmans hand; and it was common ground that the circumstances of the accident and its cause were not reasonably foreseeable. The Inner House took the same view as in, and followed, Larner. In so far as Robertson, Larner and Mains stand for a proposition accepted by the Court of Appeal in the present case, that safety is an eternal absolute independent of any judgment based on current standards and attitudes, then I do not accept their correctness. One factor in the decisions in both Larner and Robertson was that the introduction of foreseeability would reduce the utility of the section, by frequently limiting success under it to circumstances in which a common law claim for negligence would succeed (Larner, p 560A, per Hirst LJ, and p 562C D, per Peter Gibson J; Mains, p 531D E, per Lord Sutherland and p 535G H and 536H 537B, per Lord Johnston). This begs the question as to the intended scope and effect of the section. Not only does the section introduce criminal sanctions, but, as established in Nimmo, if the workplace is unsafe, then the burden shifts to the employer to show that it was not reasonably practicable to make and keep it safe. It was in this connection that in Nimmo Lord Guest said that he could not think that the section was intended to place such a limited obligation on employers as they would have at common law (where it would be for an injured employee to plead and prove failure to take reasonably practicable steps) (p 122F G), and that Lord Upjohn (whose view that safety is judged of course by a reasonable standard I have already quoted in paragraph 64 above) added that it is not in doubt that the whole object of the Factories Act is to reinforce the common law obligation of the employer to take care for the safety of his workmen (p 125B). Further, section 29(1) imposes a non delegable duty, so that an employer is responsible for achieving or for the taking all reasonably practicable measures to achieve the requisite safety irrespective of whether he chooses to set about doing this through himself, his servants or independent contractors. There is nothing to show that section 29(1) was intended to go further, and there is no assumption (or, in my opinion, likelihood) that it was intended to. The standard of reasonableness expressed in the qualification so far as is reasonably practicable (in respect of which the onus of proof is on the employer) makes it more, rather than less, likely in my view that the concept of safety is itself to be judged, as Lord Upjohn thought obvious in Nimmo, by reference to what would, according to the knowledge and standards of the relevant time, have been regarded as safe (see further paragraph 79 et seq. below). Peter Gibson J (at p 562G H) regarded it as surprising that the approach in John Summers, based on section 14(1) of the 1937 Act containing no qualification of reasonable practicability, should have been regarded as relevant under section 29(1) of the 1961 Act which does contain such a qualification. The same point was made in Mains (pp 527A D and 531D F, per Lord Sutherland and p 536A, per Lord Johnston). But there was authority pre dating 1959 which took the same approach to safety where there was such a qualification: see Sheppey v Matthew T Shaw & Co Ltd and Trott v W E Smith (Erectors) Ltd (para 65 above). The force of the point depends in any event upon the effect of the qualification. In Mains it was contemplated that the qualification might enable a defender to say it was not reasonably practicable to make this place safe, because this particular mishap was not reasonably foreseeable (p 527C D, per Lord Sutherland) and that The unforeseeable accident occurring in an unforeseeable way may well give the defenders a defence under the qualification (p 637E, per Lord Johnston). Likewise, in the present case the Court of Appeal considered as a matter of common sense that if, the employer does not know of the risk and cannot reasonably have been expected to know of it, it cannot be reasonably practicable for him to take any steps at all (paras 83 and 91). On that basis, foresight can be very relevant under section 29(1). But, if this is so, then section 29(1) is to that extent merely shifting the onus of proof, which weakens the argument that it must be seen as departing substantially from conceptions of common law negligence. In summary, safety must, in my view, be judged according to the general knowledge and standards of the times. The onus is on the employee to show that the workplace was unsafe in this basic sense. (iv) Reasonably practicable Since it took the view that safety is absolute and unchanging, the Court of Appeal had to consider whether the qualification so far as is reasonably practicable enabled the employers to exonerate themselves by showing that reasonable employers would not have considered that there was cause to reduce noise exposure in the workplace below 90dB(A). The Court of Appeal held that the qualification gave no scope for such a defence. It said (para 89): Under the statute, the employer must first consider whether the employee's place of work is safe. If the place of work is not safe (even though the danger is not of grave injury or the risk very likely to occur) the employer's duty is to do what is reasonably practicable to eliminate it. Thus, once any risk has been identified, the approach must be to ask whether it is practicable to eliminate it and then, if it is, to consider whether, in the light of the quantum of the risk and the cost and difficulty of the steps to be taken to eliminate it, the employer can show that the cost and difficulty of the steps substantially outweigh the quantum of risk involved. I cannot see how or where the concept of an acceptable risk comes into the equation or balancing exercise. I cannot see why the fact that a responsible or official body has suggested that a particular level of risk is 'acceptable' should be relevant to what is reasonably practicable. In that respect, it appears to me that there is a significant difference between common law liability where a risk might reasonably be regarded as acceptable and statutory liability where the duty is to avoid any risk within the limits of reasonable practicability. Smith LJ reiterated the point at the end of para 100, when rejecting the relevance of the Code of Practice to the question whether it was reasonably practicable to provide protection. In the light of my conclusion that safety is a relative concept, the correctness of these passages does not strictly arise for consideration in this case. Had it arisen, I would have regarded the qualification as wide enough to allow current general knowledge and standards to be taken into account. Even the Court of Appeal in its formulation acknowledged the quantum of risk involved as material in the balancing exercise. But this can only mean that some degree of risk may be acceptable, and what degree can only depend on current standards. The criteria relevant to reasonable practicability must on any view very largely reflect the criteria relevant to satisfaction of the common law duty to take care. Both require consideration of the nature, gravity and imminence of the risk and its consequences, as well as of the nature and proportionality of the steps by which it might be addressed, and a balancing of the one against the other. Respectable general practice is no more than a factor, having more or less weight according to the circumstances, which may, on any view at common law, guide the court when performing this balancing exercise: see Swanwick and Mustill JJs statements of principle, set out earlier in this judgment, and also Charlesworth on Negligence (12th ed) (2010), chapter 7, The Standard of Care, both generally and especially at para 7.38. It would be strange if the Court of Appeal was right in suggesting that, under the statutory formulation, this one factor is irrelevant, when the whole aim of the balancing exercise must, in reality, be to identify what is or is not acceptable at a particular time. That the qualification so far as may be reasonably practicable may, if necessary, receive a broad interpretation is also indicated by the reasoning of the House in Marshall v Gotham Co Ltd [1954] AC 360. Under the Metalliferous Mines General Regulations 1938 (SR & O No 630) the roof and sides of every travelling road in a mine were required to be made secure. An employee was killed by a fall of roof, due to the presence of an unusual geological condition known as slickenside, which there was no known means of detecting prior to a fall. It was argued that the mine owner could have propped all roofs, and that reasonably practicable meant no more than practicable (p 364). The argument was rejected. Lord Oaksey at p 370 agreed with Jenkins LJs statement, [1953] 1 WB 167, 179, that what is reasonably practicable in this context is no more nor less than what is capable of being done to make roofs and sides secure within the limits of what it is reasonable to do; and it cannot be reasonable to do for this purpose anything more than that which it appears necessary and sufficient to do according to the best assessment of what is necessary and sufficient that can be made at the relevant time, that is, in the present instance a point of time immediately prior to the accident. Lord Reid at p 373 said that if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable and took into account that the danger was a very rare one, that the trouble and expense involved in the use of the precautions, while not prohibitive, would have been considerable, that the precautions would not have afforded anything like complete protection against the danger, and that their adoption would have had the disadvantage of giving a false sense of security. Lord Keith considered at p 378 that there was no general rule or test that can safely be relied on for measuring the discharge of such a duty, but that he could not, as at present advised, accept that the measure of an employers liability can satisfactorily be determined by having regard solely to the proportion which the risk to be apprehended bears to the sacrifice in money, time or trouble involved in meeting the risk. Lord Tucker (with whom Lord Cohen agreed at p 377) said at pp 374 375 that the word secure does not involve security from the effects of earthquake or an atom bomb, but added that it must include security from all the known geological hazards inherent in mining operations. At p 376 he echoed the list of factors which Lord Reid had identified in support of his conclusion that the precautions were not reasonably practicable. A further aspect of para 84 in Smith LJs judgment is the suggestion that there must be at least a substantial disproportion before the desirability of taking precautions can be outweighed by other considerations. This theme was developed in paras 82 to 84 of her judgment, on the basis of dicta in two cases prior to Marshall v Gotham. But it represents, in my view, an unjustified gloss on statutory wording which requires the employer simply to show that he did all that was reasonably practicable. In deciding the appeal in favour of the respondent, the Court of Appeal relied upon HHJ Ingliss estimation of the quantum of risk below 90dB(A). HHJ Inglis said that the description given to the risk to hearing of exposure below 85dB(A) as minimal is one that I accept and adopt. Above 85dB(A) the risk accelerates up to 90dB(A). In the high 80s, given long enough exposure, significant hearing loss may be expected in at least a substantial minority of individuals. On that basis, Smith LJ said that, assuming (as she did) that the employers well knew that some of their workforce stayed in their employment over many years, they would, if they had asked a suitably qualified expert, have received advice conveying to them that a substantial minority of their workforce in the relevant departments were likely to suffer significant hearing loss, and could not then have hoped to establish that the burden of providing ear protectors was substantially disproportionate to the quantum of risk to their employees (para 98). Advice of this nature as to the quantum of the risk should have been received by late 1976 or early 1977 (para 101). To this, Smith LJ added six to nine months, for reasons already discussed, putting Quantum in breach of its statutory duty under section 29(1) from 1 January 1978. Neither Quantum nor any other of the employers before the court exposed their workforce to noise levels in the high 80s. The exposure found was in the case of Mrs Baker to levels of 86dB(A). As I have already stated, every 3dB(A) represents a doubling of the sound pressure level of the energy involved in the noise, even though it will not be appreciated as such by the hearer. More importantly, the approach taken by the Court of Appeal requires employers to take expert advice and to identify the quantum of risk in circumstances in which current standards and thinking did not expect any such steps. And if risks which are not currently regarded by responsible employers as calling for any action are required to be addressed, then, despite Smith LJs references to the balancing of the quantum of risk against other factors, any employer who was or should have been aware of any risk at all greater than de minimis would be obliged to address it unless the trouble and cost involved were prohibitive. This is highlighted by consideration of the arguments which can be made if one has regard simply to the statistical tables in BS 5330: 1976 upon which the respondent and the Court of Appeal have relied to show the risk attaching at levels of exposure between 85 and 90dB(A) lepd: see para 31 above. The respondent, as I understand, accepts that the logic of her case is that the risks below 85dB(A) cannot and should not have been regarded as immaterial. But this highlights how independent her case on section 29(1) is of contemporary standards of behaviour or thought. Only since 2005 have employers been obliged to require ear protectors to be worn by workers exposed to 85dB(A) and obliged to make them available on request to workers exposed to 80dB(A) (see para 14 of the Court of Appeals judgment, quoted in para 15, above). There is nothing in the history of section 29(1) or the mischief to which it was addressed to suggest that the legislature in 1959 or 1961 intended in this way to detach the penal liability which it then introduced in respect of the workplace from the ordinary understanding of reasonable employers. Contrary to the Court of Appeals view, I consider that HHJ Inglis was correct in the approach he took to section 29(1), which followed that taken by Rose J in Fazakerley. Conclusion I would allow the appellants appeals both at common law and under section 29(1). At common law, Quantum, and other employers in a similar position such as Guy Warwick, were not in breach of their duty of care or of their duty under section 29(1) in not implementing measures to protect their employees in respect of noise exposure at levels below 90dB(A) prior to 1 January 1990. As regards Meridian and Pretty Polly, in reflection of the common ground between Lord Dyson, Lord Saville and myself (paragraphs 25 and 43 above), the appeal will be allowed by restoring the judges decision that they were in breach of duty in not having implemented such measures as from 1 January 1985. APPENDIX (para 18) This Appendix indicates the factual position as found by the judge in relation to each employer. Meridian (Courtaulds) 1. Taking the Courtaulds group of which Meridian was part, the judge found that the group had spinning and weaving divisions with high noise levels, that in the early 1980s the issue of noise began to be widely discussed, that claims for industrial deafness were emerging by 1983 and at the end of 1982 a Dr Cooper was asked to form and chair a noise committee. This committee met on 17 March 1983, and considered a paper indicating that a number of other countries had set a maximum exposure level of 85dB(A)lepd. It set companies in the division the task of surveying noise levels in all the factories. Also in the first half of 1983, Courtaulds legal department and medical officer circulated a memorandum, containing this passage: It has been suggested that some impairment may be caused by noise levels in the range of 85 90dB(A) . We strongly recommend that hearing protectors be provided for all those who may be exposed to noise within the range 85 90dB(A)leq. 2. Factory surveys were completed by the committee meeting in March 1984. They identified areas above 90dB(A), as well as between 85dB(A) and 90dB(A), and in relation to the latter a 75% aim of acceptance of hearing protection by mid 1985 was suggested. At a further meeting in October 1984 the difficulties of obtaining compliance without Code of Practice backing were discussed, but the target was increased to 80% by the end of 1985, and the need for information, instruction and encouragement was recognised. By the meeting of 12 March 1986, Directive 86/188/EEC was imminent, and the committee noted that their policies already complied with the directive. The evidence showed that the drivers for the activity from the early 1980s were proposed legislation, and the rising incidence of claims. Courtaulds were active in the debate stimulated by the consultation in 1981 and in opposing on economic and competition grounds the European proposal for legislation from 1982 (judgment, para 53). The judge also said that Courtaulds had the resources to look beyond the 1972 Guidelines and reach their own conclusion about the nature and extent of the risks posed to the hearing of their employees exposed below 90dB(A), but 56 nobody actually considered or sought to answer the question What are the actual risks to members of the workforce exposed to different levels of noise? The 90dB(A) standard from 1972 was considered to be the standard that the law and good practice required. There was a clear awareness by the early 1980s that exposure to levels of noise between 85 and 90dB(A) could be expected to damage the hearing of some workers to the extent that action was desirable at those levels. No large company who responded to the consultation document or read the background document and was aware of the EEC proposals in 1982, and one that then took part in the debates trying to fend off compulsory protection at 85dB(A) on economic grounds, but not on grounds that such levels of exposure were not harmful, could be said to be ignorant of the facts by the beginning of 1983 at the latest. Pretty Polly 3. This company disclosed a substantial quantity of material consisting of or based on documents in the public domain. In 1975 a Factory Inspector found noise levels of 89dB(A) and did not recommend any steps. Further, as the judge found (para 63): The internal documents include a Guide to Preparing a Noise Control Policy from Midland Insurance, undated but probably from the late 1970s or early 1980s, in which it is said that [on] exposure to 90dB(A)lepd over a long period there is a possibility of damage to hearing, so that adequate steps should be taken to prevent this; also that a noise reduction programme should aim at reducing noise to 84dB(A) or less if practicable; a Commercial Union Risk Management Ltd paper from 1977 saying that research has shown that few industrial workers will suffer serious hearing loss if the intensity and duration of exposure is controlled to allow a maximum of 90db(A) and, later, that the exposure standard of [90dB(A) lepd] is based on the prediction that not more than 1 % of those exposed to this level over a 30 year working lifetime will suffer social handicap as a result. Levels should thus be reduced whenever possible and 90dB(A) regarded as a ceiling rather than a safe level. 4. In December 1982 Pretty Pollys work studies department produced a memorandum, probably written by a Mr John Butler, later manager of the department, stating that 90dB(A) was the maximum level, that noise at that level involved accepting a certain risk of hearing damage and that: if we as a company feel that we require a zero risk of hearing damage for our employees, then no person should be exposed to a noise level of more than 80dB(A) for an eight hour day. There followed a table of percentage risk of hearing damage (such damage not being defined) showing 0% at 80dB(A), and at 85dB(A) 1, 3, 5, 6, 7, 8, 9 and 10% for 5, 10, 15, 20, 25, 30, 35 and 40 years of exposure respectively. The percentages for the same periods at 90dB(A) were said to be 4, 10, 14, 16, 16, 18, 20 and 21 %. These figures came in fact from ISO: 1999 of 1975, and some, but not all of this information about low level exposure, was in the 1981 consultative document. 5. In 1985 Mr Butler distributed an assessment with essentially the same table, noting that with one exception all machinery areas in the company were in excess of 85dB(A) and that: Even at this level we are accepting a certain risk of damage for our employees. If a zero risk of hearing damage is required, then no employee should be exposed to a noise level of more than 80dB(A) for more than eight hours a day. The judge found (para 66) that: There is no evidence that anyone at Pretty Polly turned their mind towards any evaluation of the risks below 90dB(A) before 1982. It is not really likely that they did so. It is plain from Mr Butler's documents that by that year he had done so. Indeed, it is unlikely that a company of that size where there had been some collection of materials, and where they cannot have been unaware of the EEC proposals and the very public debate that followed, could not have known that there was a real case to be made that exposure below 90dB(A) could cause levels of hearing damage that should be guarded against. I would put actual awareness of the nature of the real risk below 90dB(A), as with Courtaulds, as having arisen by the beginning of 1983. Taymil (now Quantum) and its subsidiaries 6. employers, the judge found: In relation to the subsidiaries of Taymil, which included Mrs Bakers 60. The factories in the group seem to have run largely independently, with factory management being responsible for health and safety, reflecting the origins of each factory in a separate business. There was no central health and safety function. Mr Jones said that he thought that in 1977 or thereabouts a Health and Safety policy document had been produced. He said it would probably have been destroyed when the company folded. There is no reason to think that such a policy, if it did in fact exist, would on noise have done anything but refer to the limit of 90dB(A). The knitting shops were recognised as being the areas with possibly dangerous levels of noise, not making up areas. Of the documents referred to the first is a noise survey and accompanying documents done for Huthwaite Avenue by Midland Insurance in June 1983. Mr Watson had discussed the conclusions of it with Midland Insurance, as appears on the face of the document, though he said in evidence that he could not remember it. The survey refers to the 90dB(A) limit and suggests that all areas in the survey above 87dB(A) should be areas where ear protection is worn until the noise is reduced by engineering methods. A number of areas were identified as having noise over that level. Proper training and instruction of staff is advised; and appended is a guide to preparing a noise control policy, in which it is suggested that any noise reduction programme should aim at reducing noise to 84dB(A) or less if practicable. There is a noise survey of Botany Avenue by Mr Graham Allin, an engineer working to Mr Gage in August 1984 in which Mr Allin refers to company policy taking 85dB(A) as the exposure threshold level. I am satisfied that there was no such policy. Mr Gage, who was a good witness was quite clear about that, and explained how Mr Allin may have got that idea from Mr Gage's view about a margin of safety below 90dB(A) so as to ensure the 90dB(A) level was achieved. Moreover, in a draft survey of the Ollerton factory written after June 1984 when the EEC proposals were changed there is no mention of such a policy. The quality of their evidence was not as good as that of Mr Gage, but both Mr Watson and Mr Ivan Jones said that the limit to be worked to was 90dB(A). There is no evidence of any steps towards protection being taken in the Nottingham Manufacturing years aimed at conservation over 85dB(A). Mr Watson said in evidence that he was aware of the EEC proposal in 1982 to reduce the exposure level to 85dB(A). He was aware of the existence of the debate about that proposal, from discussions with insurers: It was viewed with some scepticism, I think. Coats was a large organisation. By the time they came on the scene attention, if any, must have been focused on the EEC proposals that led to the 1989 regulations. 61. There is therefore no evidence that anyone in Nottingham Manufacturing or its subsidiaries with which this case is concerned turned their mind towards the level of risk about possible harm below 90dB(A)leq, except that Mr Watson was aware after 1982 of a debate going on about what levels would ultimately be imposed, and by the summer of 1984 it was known that though the compulsory level would remain at 90, some measures, possibly audiometry, would be imposed at 85dB(A). The 1983 Midland Insurance document is an important document, with its plain implication that the 90dB(A) Code of Practice level did not provide protection to everyone, and that a noise conservation policy should do better, but it does not provide the information that means that management at Nottingham Manufacturing were in a position of knowledge and understanding that set them apart from what I take to be the understanding of the great majority of employers, that 90dB(A)lepd was the official limit that had to be worked to. I do not think it is shown that Nottingham Manufacturing had a greater than average degree of knowledge. Guy Warwick 7. The judge said that, by comparison with other defendants, they were a very small company, engaged in making up operations, with at their height four factories and under 400 employees, and (para 68) that There is no evidence that anyone at Guy Warwick knew about the 1972 Code of Practice, or even about the Noise at Work Regulations 1989, which were in force for the last two years of the company's life. Mr Kettle was involved in health and safety and set up the health and safety committee. There were committee meetings at which he said in his statement the question of noise was never raised. The factory inspectors who came round periodically and the insurance representatives never raised it. No surveys were ever done. In my opinion said Mr Kettle, the industry was not renowned for excessive noise. Whether, on the facts of actual noise to which Mrs Hooley was exposed, Guy Warwick were in breach of any duty to her, has to be judged on the basis that they had no actual knowledge of the relevance of noise to their operation. LORD DYSON Common law negligence The decisions below The history of investigation and awareness of the risks of occupational exposure to noise is fully set out by Lord Mance at para 15 of his judgment. On the basis of this material, the judge applied the well known test enunciated by Swanwick J in Stokes v Guest, Keen and Nettleford (Bolts and Nuts) Ltd [1968] 1 WLR 1776, and held at para 87 that complying with 90dB(A) lepd as the highest acceptable limit met the standards of the reasonable and prudent employer during the 1970s and 1980s certainly until the time when the terms of the 1986 directive became generally known in the consultative document of 1987. He concluded, therefore, that the average employer was not in breach of its common law duty of care to its employees in failing to provide ear protectors before about the beginning of 1990. At para 88, however, he held that by the beginning of 1983 Courtaulds and Pretty Polly had sufficient understanding of the risks to hearing below 90dB(A) lepd to require them to take action. He then considered what was a reasonable period to allow for these two companies to take action and held that they should have done so by the beginning of 1985. Accordingly, from that date they were in breach of duty to employees who suffered damage through exposure at 85dB(A) lepd and above without having the opportunity of using hearing protection. He must also have held that the other (average) employer defendants were entitled to a period of about two years to take action. Although the judge gave no precise dates, it is for this reason that he dismissed the claim by Mrs Baker. Smith LJ (with whom Sedley and Jacob LJJ agreed) said at para 105 that the judges conclusion at para 87 of his judgment cannot be faulted. She said that she would uphold his view that there was no breach of duty at common law during the period for which a responsible body of opinion regarded it as acceptable to expose employees to noise in the 85 89dB(A) lepd range. For the employer with the ordinary or average degree of knowledge, the judges conclusion that this period came to an end in 1987 following the publication of the consultation paper on the 1986 draft directive was a reasonable conclusion. She differed from the judge only in that she considered that the average employer should have needed no more than six to nine months from the date of the publication of the consultation paper. For that reason, in respect of the average employer she fixed the date for breach of the common law duty of care at January 1988. As for Courtaulds and Pretty Polly, she upheld the judges conclusion that these companies had the requisite knowledge in early 1983. But, differing from the judge, she allowed them only six to nine months to provide ear protection. Finally, at para 109 she explained why Quantum should not be treated as an average employer and why its position should be assimilated to that of Courtaulds and Pretty Polly. The judge had found that the group insurance and risk manager of Quantum admitted that he was aware of the first draft EEC directive in 1982. Having reviewed the evidence, the judge said at para 61 that the company management were not in a position of knowledge and understanding that set them apart from what I take to be the understanding of the great majority of employers that 90dB(A) lepd was the official limit that had to be worked to. Smith LJ accepted the submission of Mr Hendy QC that, since there was evidence that Quantum was aware of the first draft directive, it was irrational to treat Quantum differently from Courtaulds and Pretty Polly, who also had such knowledge. Is compliance with the 1972 Code of Practice a defence for the average employer? On this appeal, Mr Hendy challenges the decision of the judge (upheld by the Court of Appeal) that the 1972 Code of Practice constituted an acceptable standard for average employers to adhere to until the late 1980s. I shall deal first with this challenge before coming to the question whether there was any basis for the judge to treat Courtaulds and Pretty Polly (and the Court of Appeal additionally to treat Quantum) differently. I agree for the reasons given by Lord Mance at paras 28 to 37 of his judgment that there is no basis for interfering with the judges finding at para 87 that until the late 1980s the Code of Practice set the standard for the reasonable and prudent employer without specialist knowledge. The avowed purpose of the Code was to set standards to protect loss of hearing due to noise at work. The Foreword by the Rt Hon Robert Carr MP, Secretary of State for Employment, states that until the pioneering work of Professor Burns and Dr Robinson (both members of the committee that prepared the Code of Practice) we lacked the necessary scientific knowledge of the precise levels of noise, and the duration of exposure to them, which can cause damage. Mr Carr wrote that he regarded the publication of the Code as the first important step in the prevention of loss of hearing due to noise at work. It should be considered as a blueprint for action. Section 1.1.2 stated: The Code sets out recommended limits to noise exposure. It went on to say: It should be noted that, on account of the large inherent variations of susceptibility between individuals, these limitations are not in themselves guaranteed to remove all risk of noise induced hearing loss. At section 4.3.1, the Code defines the limit in these terms: If exposure is continued for eight hours in any one day, and is to a reasonably steady sound, the sound level should not exceed 90dB(A). It is this limit which the Code specifies [as] a limit for exposure to noise (section 2.1.1); which if not achieved triggered the obligation to provide ear protectors and ensure their use (sections 3.1.2 and 7.1.1); which should be regarded as maximum acceptable levels and not as desirable levels (section 4.1.1); and which if it was considered that it may be exceeded dictated the obligation to carry out a survey (section 5.1.1). On a fair reading of the Code, this blueprint for action provided that, although it was desirable to reduce levels where reasonably practicable to below the 90dB(A) level, continuous exposure for eight hours in any one day to a reasonably steady sound below 90dB(A) was acceptable and did not require the provision of ear protectors. It was made clear that, having regard to the large inherent variations of susceptibility between individuals, exposure below 90dB(A) could not guarantee to remove all risk of noise induced hearing loss. But the clear message of the document, based on the latest scientific knowledge, was that ear protectors were not required if the noise levels were below 90dB(A) and that at levels below 90dB(A) the risk to particularly susceptible people was sufficiently small, both in terms of the numbers who might be affected and the seriousness of any damage that might result, to be acceptable. That is how I would interpret the document. That is also how the document was interpreted by those in the industry. Lord Mance has referred at paras 32 and 34 of his judgment to the evidence on this point summarised by the judge at paras 46 to 48 of his judgment and his findings at para 48. In summary, the judge found that the 90dB(A) limit was regarded by everyone in the industry, the Health and Safety Executive and factory inspectors as the touchstone of reasonable standards that should be attained. This finding was supported by the notes published by the Wolfson Unit for Noise and Vibration Control in the University of Southampton in 1976. As the judge said, with the publication of BS 5330 in 1976, there was information available which, if researched, would give an indication of the level of risk below 90dB(A). But in the light of the terms of the Code itself and all the evidence summarised at paras 46 to 48, I agree with the Court of Appeal that the judge was entitled to hold that an average reasonable and prudent employer was not in breach of its duty of care to its employees in simply relying on the 90dB(A) limit as an acceptable limit. There is no rule of law that a relevant code of practice or other official or regulatory instrument necessarily sets the standard of care for the purpose of the tort of negligence. The classic statements by Swanwick J in Stokes and Mustill J in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405 which have been quoted by Lord Mance at paras 9 and 10 of his judgment remain good law. What they say about the relevance of the reasonable and prudent employer following a recognised and general practice applies equally to following a code of practice which sets out practice that is officially required or recommended. Thus to follow a relevant code of practice or regulatory instrument will often afford a defence to a claim in negligence. But there are circumstances where it does not do so. For example, it may be shown that the code of practice or regulatory instrument is compromised because the standards that it requires have been lowered as a result of heavy lobbying by interested parties; or because it covers a field in which apathy and fatalism has prevailed amongst workers, trade unions, employers and legislators (see per Mustill J in Thompson at pp 419 420); or because the instrument has failed to keep abreast of the latest technology and scientific understanding. But no such circumstances exist here. The Code was the result of careful work by an expert committee. As the judge said, at para 87, the guidance as to the maximum acceptable level was official and clear. He was entitled to accept the evidence which led him to conclude that it remained the touchstone of reasonable standards for the average reasonable and prudent employer at least until the publication of the consultation paper on the 1986 draft Directive (para 48). Remaining questions There remain three questions in relation to the issue of common law negligence. First, was the judge right to treat Courtaulds and Pretty Polly as different from the average employer? Secondly, was the Court of Appeal right to hold that employers should have provided ear protectors within six to nine months of the publication in 1987 of the consultation paper on the draft second EEC Directive (and not two years as held by the judge)? Thirdly, was the Court of Appeal right to hold that Quantum was not an average employer, but had particular knowledge, which assimilated its position to that of Courtaulds and Pretty Polly as it was found by the judge to be? As regards the first question, the judge held that by the beginning of 1983 Courtaulds and Pretty Polly had an understanding of the risk that some workers would suffer damage at exposure between 85 and 90dB(A)lepd which led him to distinguish their position from that of the average prudent employer. Lord Mance (paras 21 to 25) says that neither Courtaulds nor Pretty Polly had acquired any new knowledge by this time. All that had happened was that they had formed a different view from that generally accepted about what precautions to take. He says that the failure to give effect to that different view does not amount to a breach of the duty of care. I would not interfere with the judges assessment on this point. The position of the average employer was that, until about 1987, it knew or should have known that there was a risk at below 90dB(A), but that it was officially regarded as so small as to be acceptable. But as the judge said at para 56 in relation to Courtaulds, that company had the resources to look beyond the 1972 Guidelines and reach their own conclusion about the nature and extent of the risks posed to the hearing of their employees exposed below 90dB(A). It is true that they did not seek to assess the actual risks to members of the workforce exposed to different levels of noise. But the judge found that the company had a clear awareness by the early 1980s that exposure to noise between 85 and 90dB(A) could be expected to damage the hearing of some workers to the extent that action was desirable at those levels. So too as regards Pretty Polly. Thus, on the basis of their own research into the problem and the discussion generated in the industry by the EEC proposals, by early 1983 large employers such as Courtaulds and Pretty Polly had come to the conclusion that the 90 limit was no longer acceptable. Unlike Lord Mance, I would not characterise the decision of the two companies that some action should probably be taken as a display of greater than average social awareness. As responsible employers, they understood that they owed a duty of care to their employees and were keeping the content of that duty under review. But even if the decision that action was desirable was a display of social awareness, I do not see how that would necessarily afford a defence. On the finding by the judge, their appreciation that the Code limit was no longer acceptable was sufficient to found liability. I note, in any event, that Mustill J in Thompson said that changes in social awareness may transfer the risk into the category against which the employer can and should take care (pp 415 416). As regards the second question, in my view the Court of Appeal was not entitled to interfere with the judges assessment of what was a reasonable lead in time for the average employer. A period of two years from the publication of the consultation paper takes one to the end of 1989, which was effectively the date when the 1989 Regulations came into force. The judge was entitled to hold that it was reasonable not to require the average employer to implement protective measures before the impending regulations came into force. As regards the third question, the judge carefully considered all the evidence about the knowledge and understanding of Quantum at paras 57 to 61 of his judgment. He concluded that it did not show that the management were in a position of knowledge and understanding that set them apart from what I take to be the understanding of the great majority of employers, that 90dB(A) lepd was the official limit that had to be worked to. In my view, this assessment of the facts was reasonably open to the judge. The Court of Appeal should not have interfered with it. Section 29(1) of the Factories Act 1961 I agree with and do not wish to add anything to what Lord Mance has said on the issue of whether section 29 applies to operations carried out within the place of work. I also agree that the section applies to noise. Like Lord Mance, I recognise the force of the arguments to the contrary. Noise was clearly not in the contemplation of Parliament when section 29 or its predecessors were enacted. But the language of section 29(1) (every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there) is general and always speaking. Thus it can accommodate working methods and technological developments that were not foreseeable (and attitudes to safety that were not held) at the time when the statute was enacted. I would hold that section 29 applies to noise for the simple reason that excessive noise can cause injury by damaging a persons hearing thereby rendering a place of work unsafe for those who are working there. For my part, I would reach this conclusion regardless of whether section 29(1) imposes absolute liability in the sense to which Lord Mance refers at para 61. Meaning of safe The judge held that what was safe within the meaning of section 29(1) was not to be judged objectively, but was really a jury question, to be answered in the light of all the circumstances prevailing at the time, including what might reasonably have been foreseen by an employer (para 97). And again at para 99: as contemplated by Rose J in Taylor v Fazakerley, the standard of safety in the section is governed by the general standard which ought reasonably to have been adopted by employers at the relevant time. Having reviewed the facts in detail, he concluded that the standard of safety was determined by the 1972 Code until the coming into force of the Noise at Work Regulations 1989 and that, judged by the standard of the 1972 Code, Mrs Bakers place of work was safe. Having reached this conclusion, he did not go on to consider whether her employers had discharged the burden of proving that they had done all that was reasonably practicable to make and keep the place safe for any person working there. Smith LJ agreed with and applied the Court of Appeal decision in Larner v British Steel plc [1993] ICR 551 (which was followed by the Inner House of the Court of Session in Scotland in Mains v Uniroyal Englebert Tyres Ltd [1995] IRLR 544) and held (para 76) that the safety of a place of work within the meaning of section 29 was to be judged objectively without reference to reasonable foresight of injury. She said that what is objectively safe cannot change with time. On the evidence before the judge, she held that the places of work where the ambient noise levels were 85dB(A) lepd or above were not safe (para 78). In the alternative, if reasonable foresight was relevant, she said that by the early 1970s any employer who kept abreast of developing knowledge would have known that prolonged exposure to 85dB(A) lepd was harmful to some people (para 79). On that basis, by the early 1970s there would have been liability for breach of section 29, subject to the reasonable practicability defence. Like Lord Mance, I prefer the approach of the judge, with the qualification that what is safe is an objective question in the sense that safety must be judged by reference to what might reasonably be foreseen by a reasonable and prudent employer. The concept of what is safe is not, however, absolute. As Lord Nicholls and Lord Hobhouse said in R (Junttan Oy) v Bristol Magistrates Court [2003] UKHL 55, [2003] ICR 1475, safety is a relative concept. People can legitimately hold different opinions as to what is safe. Opinions as to what is safe may vary over time as, with developing knowledge, changes occur to the standards that are reasonably expected to be followed. I do not, therefore, agree with Smith LJ (para 78) that what is objectively safe cannot change with time. Standards of safety are influenced by the opinion of the reasonable person and foreseeability of risk plays a part in the forming of that opinion. If reasonable foreseeability is not imported into the concept of safety, then unless the Court of Appeal are right in holding that it is relevant to reasonable practicability, section 29(1) imposes an obligation on employers to guard against dangers of which they cannot reasonably be aware (in so far as it is reasonably practicable to do so). Breach of that obligation exposes the employer to potential criminal liability: see section 155 of the 1961 Act. That is an unreasonable interpretation to place on the statute, which I would not adopt unless compelled to do so by clear words, whether express or necessarily to be implied. In my view, there are no such words. As Lord Mance points out, there are two strands of authority on the meaning of safe in section 29(1). Before I come to these, I should refer to section 14(1) of the 1961 Act which provides: (1) Every dangerous part of any machinery.shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced. It will be seen that section 14(1) does not include a reasonable practicability qualification. There is a line of authority to the effect that reasonable foreseeability is a component of the meaning of dangerous in section 14(1) and its predecessors: see, for example, cases such as Hindle v Birtwhistle [1897] 1 QB 192, John Summers & Sons Ltd v Frost [1955] AC 740 and Close v Steel Company of Wales Ltd [1962] AC 367. In Close, Lord Denning referred with approval to Hindle, a case involving a shuttle which flew out and injured a weaver. He said at pp 380 381: The Divisional Court held that it was capable of being a dangerous part of the machinery. It depended on the frequency with which shuttles were likely to fly out. If it was so frequent as to be a reasonably foreseeable cause of injury, it was dangerous. But if it was so rare as to be a minimal risk, it was not dangerous. Wills J gave a definition which has been repeatedly approved: It seems to me that machinery or parts of machinery is and are dangerous if in the ordinary course of human affairs danger may be reasonably anticipated from the use of them without protection . Lord Denning added: My Lords, anyone who has practised in the Queens Bench Division knows that the case of Hindle v Birtwhistle has been cited very, very many times. Du Parcq LJ vouched for it up to 1940 in Stimpson v Standard Telephones and Cables Ltd [1940] 1 KB 342 and I can vouch for it since. The first strand of authority on section 29(1) imports the concept of reasonable foreseeability into the meaning of safe. Lord Mance has mentioned two of the cases at para 71 above. There are others including a number of Scottish cases and the unreported decision of Rose J in Taylor v Fazakerley Engineering Co (26 May 1989), which I mention only because he was a judge who had great experience of personal injury litigation. The second strand includes the cases mentioned by Lord Mance at para 73. In Larner v British Steel plc [1993] ICR 551, Hirst LJ approved a passage in Munkman, Employers Liability, 11th ed (1990) p 292, where the author expressed the view that safe was a simple English word and there was no reason why the safety of a place of work should not be decided as a pure question of fact. Hirst LJ regretted the introduction of the vague and uncertain notion of foreseeability. Peter Gibson J said that it was not unfair on employers to impose a strict duty, because the duty was qualified by the defence of reasonable practicability. To introduce the concept of reasonable foreseeability into the question of safety was effectively to equate the duty under the section with the duty at common law. Mr Hendy QC seeks to uphold this reasoning. He submits that the word safe is a plain English word. It is not qualified. In this respect, it may be contrasted with, for example, reg 4 of the Provision and Use of Work Equipment Regulations 1998 by which the duty to ensure that work equipment is suitable for its purpose is conditioned by reg 4(4), which provides that the word suitable means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person. Mr Hendy has referred to a number of decisions on other health and safety provisions in which the court held that the duty on the employer was absolute and did not import any element of reasonable foreseeability. In my view, the meaning of section 14(1) is highly relevant. As a matter of ordinary English, the word dangerous is an antonym of safe. The text of section 14(1) suggests that it is being so used in the subsection. The subsection provides that every dangerous part of any machinery shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced (emphasis added). The contrast between dangerous and safe is striking. As I have said, the meaning of section 14(1) is long established: there can be no liability for dangerous parts of machinery unless the danger is reasonably foreseeable. In these circumstances, it would be surprising if Parliament had intended to impose liability under section 29(1) for a danger (or lack of safety) which is not reasonably foreseeable. The only justification for interpreting safe in section 29(1) as not importing the concept of reasonable foreseeability is that it is unnecessary to do so because reasonable foreseeability is imported into the reasonable practicability qualification. I accept that, if it is imported into the reasonable practicability qualification, there is no need to interpret safe as importing reasonable foreseeability in order to avoid an inexplicable mismatch between sections 14(1) and 29(1). Smith LJ accepted (and Mr Hendy QC accepts) that reasonable foreseeability is relevant to reasonable practicability: As a matter of common sense, if the employer does not know of the risk and cannot reasonably have been expected to know of it, it cannot be reasonably practicable for him to take any steps at all (para 83). That was also the view of the courts in Larner and Mains. But in my view, the foreseeability of a risk is distinct from the question whether it was reasonably practicable to avoid it. Diplock LJ explained the point in Taylor v Coalite at pp 319 320 in the passage quoted by Lord Mance at para 71 above. It is only if a risk is reasonably foreseeable and it was reasonably foreseeable that an injury would be caused that it becomes necessary to consider whether it was reasonably practicable to avert the risk. Thus, for the purpose of deciding the issue of reasonable practicability, it is assumed that the risk was reasonably foreseeable. The importance of the section 14(1) line of cases is that they recognise that the mere fact that a risk of injury is foreseeable as a possibility is not necessarily sufficient to make the machinery dangerous. It is dangerous only if the risk of injury is sufficiently likely to make it more than a minimal risk: see, for example, the passage in Lord Dennings judgment in Close which I have quoted at para 113 above. I would apply that approach in the present case. The 1972 Code specified a limit of 90dB(A)lepd. As the HSE report Framing Noise Legislation published in 1975 made clear, this noise limit has widespread international acceptance, and although it does not eliminate all risk of hearing damage, we feel it continues to be the most practicable standard (para 19). The Code itself stated that exposure below 90dB(A) lepd could not guarantee to remove all risk of noise induced hearing loss. But the implication was that the risk was very small and acceptable in the view of the Government Department responsible for issues of health and safety and the experts who were advising them. I would agree, however, that if the concept of reasonable foreseeability is not imported into safe in section 29(1), then it is imported into reasonable practicability for the reasons given by Smith LJ. This is the position for which Mr Hendy contends. In agreement with the Court of Appeal in Larner, there is more than a hint in the reasoning of Smith LJ as to the meaning of safe in section 29(1) that it is influenced by the idea that it is necessary to interpret the subsection as imposing a greater obligation than would be imposed at common law. In this respect, at paras 59 and 60, she criticises Rose J in Taylor v Fazakerley for doing no more than formulating the common law test. At para 67, she refers with approval to Peter Gibson Js statement in Larner that to introduce the concept of reasonable foreseeability into the question of safety was effectively to equate the duty under the section with the duty at common law. At para 70, she refers to a similar observation by Lord Sutherland in Mains. Finally, when discussing the issue of reasonable practicability at paras 87 to 89, she draws a distinction between section 29(1) and the common law. The critical passage is quoted by Lord Mance at para 81. She says that at common law a risk might be regarded as acceptable, whereas under the statute the duty is to avoid any risk within the limits of reasonable practicability. There is a similar passage at para 100 of her judgment. I assume that the justification for saying that the statutory duty must differ from the common law duty is that the statutory provisions would otherwise be otiose. But there is no principle of law that a statutory obligation cannot be interpreted as being co terminous with a common law duty. As Stephenson LJ said in Bux v Slough Metals Ltd [1973] 1 WLR 1358, 1369 1370: The statutory obligation may exceed the duty at common law or it may fall short of it or it may equal it. Sometimes Parliament may decide that, in the interests of clarity and certainty, there is advantage in providing a detailed all embracing set of rules. The merit in setting these out in a single authoritative document, such as a statute, is not undermined even if they do no more than reflect what the courts would be likely to decide when applying the common law. There are, in any event, two important respects in which section 29(1) clearly does not reflect the common law. First, if a defendant wishes to say that it was not reasonably practicable to make or keep a place of work safe, the burden is on him to do so; it is not on the claimant to prove that it was reasonably practicable. I accept that few cases of this kind are likely to be decided on an application of the burden of proof. Nevertheless, in this respect there is a legal difference between the statutory and common law positions. Secondly, the fact that breaches are offences is a very significant difference. The fact that, as we were told, there have been few (if any) prosecutions is immaterial. Parliament considered that a breach of section 29(1) was sufficiently serious to attract potential liability to criminal sanctions. Were the places of work safe? Safety must be judged by the understanding and standards of the times. Where these are set out in a clear and official publication such as a Code of Practice issued by a relevant government department based on the most up to date expert advice, they are likely to set the bounds of what risks are reasonably foreseeable and acceptable and what is reasonably to be expected of an employer. If the guidance given in such a publication becomes out of date and a reasonable and prudent employer becomes aware of this (or ought reasonably to do so), then it can no longer rely on the publication to meet an allegation that its place of work is no longer safe. And employers with special expertise fall into a special category, as the positions of Courtaulds and Pretty Polly demonstrate. I see no reason to disturb the judges conclusion on the issue of safety. He was entitled to conclude that the standard of safety was determined by the 1972 Code until the coming into force of the 1989 Regulations and that, judged by the standard of the 1972 Code, Mrs Bakers place of work was safe. Reasonably practicable In view of the conclusion I have reached on the meaning of safe the question of reasonable practicability does not arise. But as I have said, if reasonable foreseeability is not imported into the meaning of safe, I would agree with the Court of Appeal that it is imported into reasonable practicability. On this hypothesis, however, I do not agree with the Court of Appeal that the acceptability of risk is irrelevant to reasonable practicability. I would adopt what Lord Mance says at paras 82 and 83. Smith LJ refers to the quantum of the risk as being relevant to whether it is reasonably practicable to eliminate it. I agree. But if the quantum of the risk is relevant to that question, how can the fact that a Code of Practice says that a risk is acceptable not be relevant? As Smith LJ said, the classic exposition of reasonable practicability is to be found in Edwards v National Coal Board [1949] 1 KB 704. Tucker LJ said at p 710: in every case it is the risk that has to be weighed against the measures necessary to eliminate the risk. The greater the risk, no doubt, the less will be the weight to be given to the factor of cost. If, to use the words of Smith LJ, a responsible or official body has suggested that a particular level of risk is acceptable, that is likely to be cogent evidence that this level of risk is minimal and one that can reasonably be disregarded. Smith LJ acknowledged that an official view as to the acceptability of a risk might well have a role to play in the determination of common law liability. Having said at paras 89 and 100 that it had no part to play in the determination of whether it was reasonably practicable to make a place of work safe, she acknowledged at para 101 (rightly in my view) that the 1972 Code was relevant to the employers assessment of the quantum of the risk, although it was inadequate as an assessment tool. In my view, the 1972 Code was plainly relevant to an employers assessment of the risk. The central question is whether, and during what period, it was reasonable for an employer to rely on the 1972 Code for the assessment of the risk and whether in all the circumstances it was reasonable for an employer not to provide ear protectors. At para 101, Smith LJ gave her reasons for holding that by late 1976 or early 1977 the average sized employer in the knitting industry could and should have been able to make an informed assessment of the quantum of risk arising from noise in the range of 85 to 90dB(A) lepd and that this assessment would have led the employer to the conclusion that ear protectors should be provided. It is true that the judge did not deal with the issue of reasonable practicability since, on his view as to the meaning of safe, it did not arise. But he did deal with the issue of the appreciation of risk by a reasonable employer when he addressed the issue of common law negligence: see paras 69 to 89. This section of his judgment must be considered against the background of his earlier findings of fact at paras 46 48 to which I have earlier made reference. The critical paragraph in the judgment of the judge is para 87 which Lord Mance has set out at para 16. It can be seen that para 101 of the judgment of Smith LJ is at variance with para 87 of the judges judgment. The judge said that the guidance given as to the maximum acceptable level by the 1972 Code was official and clear. His assessment was that complying with the 90dB(A) lepd as the highest acceptable level was meeting the standards of the reasonable and prudent employer during the 1970s and 1980s, certainly until the time when the terms of the 1986 Directive became generally known in the consultative document of 1987. They were not in breach of duty for not asking the question who is at risk in my factory and how big is the risk? In my judgment, the Court of Appeal should not have interfered with this assessment of the standards of the reasonable and prudent employer during the 1970s and 1980s. For the purpose of the reasonable practicability issue, Smith LJ accepted that an employer was entitled to rely on the 1972 Code until the publication of BS 5330 in July 1976. She said that the significance of that document was that it now became possible for anyone with a modest degree of mathematical skill to assess the quantum of risk from noise in the range 85 to 90dB(A) lepd. But in expressing this view, Smith LJ must have overlooked paras 46 to 48 of the judges judgment. In the light of that evidence (which was accepted by the judge), he was entitled to hold that a reasonable and prudent employer would not have sought advice from an acoustic engineer on the basis of BS 5330. All the evidence was that nobody used the tables to do the kind of calculation that Smith LJ said should have been carried out. The evidence was that the 90dB(A) lepd limit stated in the 1972 Code was regarded as the touchstone of reasonable standards at least until the mid 1980s. In my judgment, there was no basis for the Court of Appeal to interfere with that assessment either in relation to the issue of reasonable practicability or the standard to be expected of the reasonable prudent employer. Conclusion It follows that I would allow the appeals both at common law and on the section 29(1) issue. For the reasons that I have given, I agree with the conclusions reached by Judge Inglis (to whose judgment I would pay tribute). LORD SAVILLE For the reasons given by Lord Mance and Lord Dyson, I would allow this appeal to the extent proposed by those Justices. To my mind the contrary views depend to a significant degree on hindsight and consequently place an undue burden on employers. LORD KERR Liability at common law The report of the Committee under the chairmanship of Sir Alan Wilson on the Problem of Noise (the Wilson Committee) of March 1963 was presented to Parliament in July 1963. It contained the following observations: 508 Permanent reductions in sensitivity of hearing can be caused by damage to the inner ear, resulting from exposure over a considerable period to certain types of noise. The existence of this damage, which is irreversible, has been demonstrated in people who work in noisy industrial environments. 509. Though the existence of these temporary and permanent reductions is well established, as this chapter shows, our knowledge is very inadequate. 518. Different individuals vary considerably in the amount of hearing loss produced in them by a given noise exposure. 521. (b) the British Medical Association stated in their evidence that they believed that there is general acceptance of the view that working conditions involving continuous exposure throughout working hours for a prolonged period to noise whose intensity exceeds 85 dB [approx 90dB(A)] in any octave band in the speech frequency range (250 4,000 cycles per second) may cause permanent damage to hearing; 533. Much could be done voluntarily within industry, and, indeed, we know that some firms already have well established hearing conservation programmes. There is, however, a need for a wider and more urgent interest in the problem. We recommend, as immediate steps, that the Ministry of Labour should: (a) disseminate as widely as possible existing knowledge of the hazard of noise to hearing; (b) impress on industry the need to take action to reduce the hazard as it is at present recognised; and (c) advise industry on practical measures to this end. 534. Although voluntary action is now possible and, indeed, essential, we do not consider that the present knowledge of this complex problem provides a sufficient basis for legislation. Acting on the advice contained in para 533 of the Wilson Report, in June 1963 the first edition of a Ministry of Labour publication entitled Noise and the Worker made the following recommendations: The first steps in the programme [i.e. a Noise Reduction and Hearing Conservation Programme] are to carry out a noise survey and to obtain specialist advice. (page 5) Our knowledge of the relation of noise to hearing loss is as yet too limited for it to be possible to say with certainty what amount of exposure is safe partly because people vary greatly in their susceptibility to noise. It is generally agreed, however, that if workers are exposed for eight hours a day, five days a week, to a continuous steady noise of 85 dB or more in any octave band, in the speech range of frequency (500 to 4,000 cycles per second), it is desirable to introduce a programme of noise reduction or hearing conservation. (page 7) Where it is not possible, by environmental control, to reduce noise to sufficiently safe levels, workers should be protected by ear defenders. (page 14) The second edition of Noise and the Worker was published in June 1968. In a section entitled Monitoring Workers Hearing it stated that workers exposed to levels of noise at or approaching those set out in a table should have their hearing tested periodically. The table contained a range of decibel levels from 80 to 100 with corresponding frequency bands of 1200 4800 (in relation to 80 decibels) up to 37.5 150 (in the case of 100 decibels). The third edition of Noise and the Worker was prepared by the Health and Safety Executive in 1971. It gave the following warning: Because some people are more liable to hearing loss than others and because our knowledge of the effects of noise exposure, especially exposure to intensive noise of short duration, is still incomplete it is not possible to set out a simple table of permissible limits for all types of noise. The publication nevertheless contained a table which set out levels of noise which indicated a serious hazard to hearing. Eight hours exposure to noise levels of 90 dBA was stated to constitute such a serious hazard. This can only be taken to mean that there was a distinct, albeit less serious, hazard to hearing at lower levels. That conclusion is confirmed by the injunction that appears later in the text (page 9) to the effect that damage risk criteria should be regarded as maximum permissible levels and not as desirable levels. If possible the noise should be reduced to levels lower than the danger levels set out in the table. This was particularly required in order to avoid risk to the minority of people who are exceptionally susceptible to hearing damage, and for reasons of general welfare. Two salient conclusions can be drawn from these statements. Employers should have been aware that damage to hearing could occur at levels less than 90 dBA. They ought also to have realised that there may well be vulnerable individuals within the workforce whose hearing was particularly at risk at those lower levels. Other material was available about the risk of noise induced damage to hearing, most notably Hearing and Noise in Industry detailing the research carried out by Burns and Robinson in 1970. Together with the publications that I have so far reviewed, this provided the essential setting in which the seminal Code of Practice for reducing the exposure of employed persons to noise was published in 1972. The gradually evolving state of knowledge that emerges from the earlier documents is manifest from the Code of Practice itself. In a foreword, the Secretary of State for Employment, Rt Hon Robert Carr MP, said: It has been common knowledge for many years that high levels of noise at work can cause impairment of hearing. In a few firms where there is this danger, good work has been done in suppressing noise, but in many others the problem has not been recognised, or has been under estimated. In those firms, the tragedy is that all too often the workers are accustomed to the noise and do not notice the gradual deterioration of their hearing until it is too late. For hearing lost in this way cannot be recovered. The general solution to this problem, which is a complex one, has been hampered more by ignorance than by neglect. Until the pioneer work of Professor Burns and Dr. Robinson was published in March 1970, we lacked the necessary scientific knowledge of the precise levels of noise, and the duration of exposure to them, which can cause damage. It is largely due to their work that this Code of Practice has been made possible. The provisions in the code, and its publication, have been recommended by my Industrial Health Advisory Committee on which both sides of industry are represented. It is the outcome of 12 months' work by a sub committee. I regard the publication of the Code as the first important step in the prevention of loss of hearing due to noise at work. It should be considered as a blueprint for action. The Code was at pains to reinforce the message that had been conveyed by earlier publications to the effect that recommended limits on noise exposure could not be taken as eliminating all risk of noise induced hearing loss. Prominently, at para 1.1.2, it stated: The Code sets out recommended limits to noise exposure. It should be noted that, on account of the large inherent variations of susceptibility between individuals, these limitations are not in themselves guaranteed to remove all risk of noise induced hearing loss. Section 4 of the Code, dealing with limits on sound levels, reiterated the need to regard these as maximum levels which ought not to be exceeded. It was desirable that levels of noise be reduced below those specified. Para 4.3.1 provided that if exposure was continued for eight hours in any single day, and was to a reasonably steady sound, the sound level should not exceed 90 dB(A). In her judgment in the Court of Appeal Smith LJ had said at para 6 that the Code of Practice, having explained that protection from noise of 90dB(A)leq would not protect all workers from hearing damage, had indicated that some harm was likely to be caused to some susceptible workers by noise below that level. Lord Mance has observed that the use of the word likely in this context was not justified because the Code had in fact stated that the limitations which it specified were not in themselves guaranteed to remove all risk of noise induced hearing loss. It may well be that the particular formulation chosen by Smith LJ was not strictly justified but by 1972 it was recognised that a minority of workers would suffer hearing loss if exposed to noise levels of less than 90 dB(A) see the third edition of Noise and the Worker (referred to in para 5 above). Lord Mance and Lord Dyson have concluded that the Code of Practice set an appropriate standard on which a reasonable and prudent employer could legitimately rely. In Lord Mances view, it was acceptable for such an employer to continue to rely on the Code for this purpose until the late 1980s. Lord Dyson agreed with the trial judge, His Honour Judge Inglis, that the Code remained the touchstone of reasonable standards for the average reasonable and prudent employer at least until the publication in 1986 of the draft proposal for a Council directive on the protection of workers from the risks related to exposure to noise. The Court of Appeal, although expressing a preference for an earlier date, felt that the trial judge was entitled to reach the conclusion on this issue that he expressed in para 87 of his judgment. I shall consider this paragraph in a little detail presently. Before examining the question of how long an employer might reasonably rely on the Code, it is, I believe, necessary to look at what a reasonable employer would have taken from the information contained not only in the Code but also in the earlier publications that I have discussed. True it is that 90 dBA was the stipulated danger level. But employers were not told that lower levels were safe. On the contrary, they were told that certain employees could well suffer a hearing loss if exposed to noise at lower levels. That risk had been clearly signalled. Employers had also been told that too little was known about the relationship of noise to hearing loss to say with certainty what amount of exposure was safe. What ought to have been the reaction of a prudent and reasonable employer to that information? It seems to me that adopting a passive, sanguine attitude to the risk of hearing loss in workers exposed to noise of less than 90 dBA was not an available option. The Code was described as a blueprint for action. It was certainly not a blueprint for inaction. In Doherty v Rugby Joinery (UK) Ltd [2004] ICR 1272 Hale LJ stressed that the duty on the employer was to consider those within the workforce who (although not identifiable in advance) would be particularly susceptible to vibration injury. This seems to me to be an important argument against passivity on the part of employers following the publication of the 1972 Code. A prudent employer should have concluded that the health of a minority was at risk when exposed to noise levels below 90dB(A). The law should not, and in other areas does not, deny protection to a minority simply because they are a minority. An employers duty extends to the protection of those of his employees who are, by dint of their susceptibility to injury, more likely to sustain it. Whatever may have been the position immediately after the Code was published, treating it as an enduring touchstone was no longer possible after 1976, in my opinion. The effect of ISO 1999, published in 1975 and BS 5330 in 1976 was described by Judge Inglis in para 87 of his judgment in the following passage: There is no doubt that research into the question of what risks to the hearing of employees exposure below 90dB(A)leq posed would have yielded the answer that 90dB(A) was not a natural cut off point, and that there were risks to susceptible individuals below that level. Indeed, the 1972 Guidelines themselves made that clear. From the early 1970s, certainly by 1976 with the publication of BS5330 and of lS0 1999 in the previous year, the information was available if researched to give an indication of the level of the risk. Judge Inglis considered that research was required to unearth the information that there was a risk to the hearing loss of some employees who were exposed to noise at a lesser level than 90 dB(A). There appears to me to be an inherent contradiction in play here. The Code has been hailed as the basis on which a reasonable and prudent employer might determine that protection was required. This obviously presupposes that the reasonable and prudent employer was aware of the contents of the Code. But within the very Code that provided the basis for the defence that an employer might deploy was the cautionary admonition that some workers would suffer some damage if exposed to noise levels of less than 90 dB(A). In this connection, Lord Dyson has said that the clear message of the Code was that the risk to particularly susceptible people was sufficiently small, both in terms of the numbers who might be affected and the seriousness of any damage that might result, to be acceptable. With respect, I cannot agree. Nowhere in the Code is any estimate made of the numbers who might constitute this exceptional category. Nor is there any assessment offered of the degree of disability that might accrue to those who were affected. What the 1972 Code should have conveyed to employers (especially those who sought subsequently to rely on it for the defence of noise induced hearing loss claims) was that an unquantified minority of their workforce would suffer hearing loss if exposed to noise levels at less than 90 dB(A). As a minimum, this should have made them alert to further information from public authority sources that might emerge in coming years. By contrast with the Code, ISO 1999 and BS 5330 did permit an estimate to be made of the number of workers who would be affected by exposure to various levels of noise below 90 dB(A). Thus, in para 13 of his judgment the judge, by reference to a table produced by Professor Lutman, was able to calculate that noise exposure of 85 dB(A)lepd over 40 years would cause 8.5dB hearing loss at 4khz. At para 14 the judge reproduced a table from a paper by Professor Robinson which showed that 10% of a typical population exposed for 30 years to 85dB(A)lepd will have a hearing loss of 35dB. This can be compared to a non noise exposed population, 10% of whom at age 48 would have a hearing loss of 31.5. It was thus possible to show that noise exposure added a further 3.5dBs of hearing loss in this percentile. And at para 21 the judge reproduced a further table from Professor Lutman which showed a 9dB threshold loss at 4 kHz in 5% of men exposed to 85 dB(A)lepd for 45 years. Now it is true, as Lord Mance has pointed out, that neither ISO 1999 nor BS 5330 purported to identify a maximum tolerable noise exposure. Indeed, both documents disavowed any attempt to do so. But that, as it seems to me, is neither here nor there. What is important in this context is that employers who exposed their employees to noise had been alerted in 1972 to the fact that some employees who were exposed to noise levels of less than 90 dB(A) would suffer hearing loss and in 1976 a means of calculating what percentage of their workforce would be affected was available to them. From 1976 onwards, therefore, employers, who should since 1972 have been alive to the dangers of noise induced hearing loss in a percentage of their employees exposed to levels of noise in excess of 85 dB(A), could estimate what the percentage was likely to be. All that was unknown was which particular workers would fall into that category. What was certain was that, if they were exposed over a sufficiently long period, some at least of their workforce would suffer permanent, irremediable damage to their hearing. Although that hearing loss would not be substantial, its impact on those who were affected by it is not to be underestimated. As the respondent submitted, it diminishes the lives of those who suffer from it in a real and significant way. The appellants have argued that a reasonable employer could not have been expected to read, absorb and apply ISO 1999 and BS 5330. I do not accept that argument. The cornerstone of the appellants defence is the Code of Practice of 1972. If this is proffered as the reason that it was acceptable for employers not to supply ear defenders to employees unless they were exposed to noise levels of 90 dB(A) and greater, it must also be acknowledged as the source of warning that noise levels less than that would damage some workers hearing. Thus alerted, it seems to me that an employers obligation to remain abreast of information that would allow him to know what percentage of his workforce was likely to be affected was plain. This conclusion does not conflict with the classic statement of principle by Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783: the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent. While, for reasons that I shall discuss below, it could be concluded that a practice of recommending protection for those exposed to 90 dB(A) and above had grown up, so far from there being a recognised and general practice which had been followed for a substantial period in similar circumstances without mishap, as I have sought to demonstrate in the review of the various government publications on this subject, thinking on the problems of noise at work was characterised by uncertainty and qualification until 1972 and beyond. In the 1970s knowledge was developing and conclusions, albeit qualified conclusions, were emerging. There was a clear duty on the part of employers to keep abreast of these, a duty made all the more acute by the uncertainty of the past. The information that became available in 1975 and 1976 would have led to the conclusion that a sufficiently significant percentage of a workforce exposed to noise at levels greater than 85dB(A) would suffer a hearing loss. I therefore agree with Smith LJs analysis on this issue, although not with her conclusion on liability at common law. At para 101 of her judgment, Smith LJ said this: from July 1976, there was a method available which could be used by anyone with a modest degree of mathematical skill. Certainly any consultant acoustic engineer could have used the British Standard method. Accordingly, I conclude that by late 1976 or early 1977, the average sized employer in the knitting industry could and should have been able to make an informed assessment of the quantum of risk arising from the below 90dB(A)lepd noise in his workshops. As I have said above, this assessment would have led the employer to broadly the same conclusion as was reached by Judge Inglis. Once that assessment had been made, it could not in my judgment be said that it was not reasonably practicable to provide ear protectors. The conclusion reached by Judge Inglis referred to in this passage was that when exposed to noise above the level of 85dB(A) the risk of suffering hearing loss accelerates up to 90dB(A) and in the high 80s, given long enough exposure, significant hearing loss may be expected in at least a substantial minority of individuals. That important finding was not challenged either in the Court of Appeal or in this court. It appears to me to lie at the heart of the issue of the liability of the appellants at common law. The finding was complemented by another important conclusion reached by the judge, a conclusion which again no one has sought to challenge. At para 73 of his judgment he said: The evidence does not show that at any time the cost of implementing a policy of voluntary hearing protection at levels below 90dB(A) was such that a reasonable employer could use cost or difficulty as a valid reason for not having such a policy. Shortly put, therefore, from 1977 onwards an employer in the knitting industry should have known that a percentage of his workforce would suffer hearing loss if they were exposed to and remained unprotected from noise levels of more than 85dB(A). Such an employer should also have known that he could provide ear protection that would have reduced the risk of that hearing loss occurring at not inordinate cost. Both Judge Inglis and Smith LJ appear to have absolved employers of liability at common law because, until the late 1980s, advice was not given to them that ear protection was required for noise levels below 90 dB(A). The failure to give this advice seems to have been due to the manner in which the experts addressed the question. Thus in paras 46 and 47 of Judge Ingliss judgment the following appears: There was evidence given by the expert witness engineers for Courtaulds (Mr Bramer and Mr Currie) about the approach to control of noise in the period from the 1970s in industry. The report of Mr Worthington for Pretty Polly and Guy Warwick is also in evidence. To Mr Bramer, the guidance in Noise and the Worker and the 1972 Guidelines provided a "clear and consistent recommendation to employers as to how they ought to deal with noise in the workplace". The result was that in his practice, his invariable advice until the late 1980s, was that "the relevant level was a daily personal noise exposure of 90dB(A)". This approach, he said, was standard during the period up to 1989 among noise professionals, and taught at training courses. In the mid 1980s, when it appeared that EEC regulation would involve a first action level of 85dB(A) his advice changed to reflect that. He was not aware of the NPL tables before the 1980s when he found that they were being used by medical experts writing reports for the purpose of deafness claims. He has never come across them being used in any part of industry. In evidence Mr Bramer said that he gave advice to employers in terms of complying with the 1972 Code. He was speaking to the 90dB(A) level, as were all his colleagues. He agreed that the advice would be to answer the question "Tell us how to comply with legislation and the Code of Practice", rather than "Tell me how to avoid reasonably foreseeable risk to my workforce". He would have recommended 90dB(A) as the cut off point, but would also have said "that does not actually stop some more susceptible people from having some small noise induced hearing loss". If asked about risk, he would have had some difficulty, and regarded the question as more one for medical people. 47. Mr Currie said that the Health and Safety Executive and factory inspectors after the 1974 Act concentrated their advice and enforcement on the 90dB(A) level. He was not aware of any instance in which the NPL tables had been used by employers to predict the level of risk for their workforce. In evidence Mr Currie said that good practice won't necessarily remove all risk. He agreed that there has been no very different understanding about noise induced hearing loss since the 1970s. The first thing to look at when deciding on practices, which is what employers have to do, is to look at the guidance available. Mr Worthington's report is to the effect that employers looked to the 90dB(A) limit in the Code of Practice as the maximum acceptable limit, and that the Factory Inspectorate and HSE did not refer employers to the risks below that limit as risks about which they should take action. That was the practice of the day, and employers taking advice, if they did, would be referred to the standard in the Code as being what had to be observed. Mr Bramers evidence, recorded uncritically by Judge Inglis, so far from bolstering the case for the appellants, seems to me to have exposed critical weaknesses in it. To deliver invariable advice that the relevant level was a daily personal noise exposure of 90dB(A) (by which, one presumes, he means that it was acceptable to ignore dangers arising from noise exposure below that level) crucially fails to take account of the unambiguous evidence that risks to a percentage of employees from exposure to noise of over 85 dB(A) had been recognised. What was to become of this group in Mr Bramers equation? Were they to be discounted as an insignificant minority? If so, on what basis did he assess their significance? And on what basis did he conclude (if indeed he did conclude) that the hearing loss that they would sustain could be overlooked? Of course, Mr Bramer sidestepped most of these difficult issues by saying that he tailored his advice to address the question how would the legislation and the Code of Practice be complied with, rather than how could the employer comply with his elementary duty of avoiding foreseeable risk to his employees. Judge Inglis appears again not to have cast a critical eye on this aspect of Mr Bramers testimony and the Court of Appeal was likewise silent as to its reaction to it. But the fundamental duty of an employer is that he should ascertain by whatever reasonable means are at his disposal, what are the likely dangers to his employees from the work that he asks them to do and that he should then do what he reasonably can to avoid those dangers. Mr Bramer gave evidence that if he had been asked what appears to me to be not only the right, but also the obvious, question of how to avoid reasonably foreseeable risk to employees, he would have adverted to the fact that some risk to susceptible employees of small noise induced hearing loss would arise. But he would not have been able to assess what that risk was, how many employees would be affected nor the level of disability that it would give rise to, these matters lying more in the province of medical people. Of course he was not asked the right and obvious question. He ought to have been. But if he had been asked that question, he could not have given any meaningful reply. It seems to me remarkable that an employer who should have asked, in light of what the Code of Practice had said, what were the dangers to the minority of his workforce who would suffer damage to their hearing by exposure to levels of noise that were current in his factory and what he could do about those dangers, can be relieved of liability because he did not ask the right question and because his expert did not direct him to the right issue. The evidence of Mr Currie and Mr Worthington is open to the same criticisms which attach to that of Mr Bramer. The fact that after the 1974 Act the Health and Safety Executive and factory inspectors concentrated their advice and enforcement on the 90dB(A) level does not relieve employers of the duty to inform themselves of the true purport of the available evidence. After all, Judge Inglis was able to calculate without difficulty what percentage of workers would be likely to suffer hearing loss on the basis of data that were available to any employer from 1977 onwards. He may have been directed to those data by reports of the experts produced at trial but the data existed in the 1970s. Employers and those who advised them ought to have considered those data shortly after they became available in 1976; they should have made the calculation that Judge Inglis was able to make many years later; they ought to have concluded, as he did, that a significant minority would suffer hearing loss if exposed to noise levels exceeding 85 dB(A) over a prolonged period; they should have discovered that this could be avoided by the provision of ear defenders at not unreasonable cost; and they should have provided their workers with those ear defenders. Because of their failure to do so, they were, in my opinion, guilty of negligence. In reaching this conclusion I have kept in mind the salutary warning of Mustill J in Thompson v Smith Shiprepairers [1984] QB 405, 422 where he said: One must be careful, when considering documents culled for the purpose of a trial, and studied by reference to a single isolated issue, not to forget that they once formed part of a flood of print on numerous aspects of industrial life, in which many items were bound to be overlooked. However conscientious the employer, he cannot read every textbook and periodical, attend every exhibition and conference, on every technical issue which might arise in the course of his business; nor can he necessarily be expected to grasp the importance of every single item which he comes across. The employers in this appeal and their advisers were not required to immerse themselves in esoterica in order to understand what I believe to be the clear and simple import of the material that confronted them. The evidence that some of their employees were at risk was unmistakable. Hindsight is not required in order to see that clearly. The means of mitigating that risk were also clear. The need to take the necessary steps cannot plausibly be challenged. It is not only unnecessary, in light of my view about the common law liability of the appellants from the late 1970s onwards, for me to embark on any exegesis about how soon employers should have been alerted by the imminence of European legislation to the need to protect workers from noise levels of 85dB(A), it would be inappropriate for me to do so on what would be an academic basis. In my view, their liability arose much earlier. The employers liability under statute As Lord Mance has said, several issues arise in addressing the questions whether section 29 of the Factories Act 1961 covers exposure to noise in the workplace, and, if so, what standards it sets. It seems to me that these can be grouped in four categories. First whether the section is designed to cover only the physical fabric and structure of the workplace. Second, are the duties imposed applicable only to occupiers as opposed to employers? (This issue was raised for the first time on the hearing of the appeal to this court). Thirdly, even if activity within the workplace is covered, does it apply to environmental conditions which may only have a deleterious effect over a long period of time? Finally, what does safe mean? Does it mean what can be reasonably foreseen or does it set an absolute standard? On the first of these issues, for the reasons given by Lord Mance, with which I agree, the answer must surely be that activities carried on in the workplace which render it unsafe, come clearly within the embrace of the section. The context of the provision is the protection of workers in factories. The nature of factories is that employees will carry on working activities, some at least of which will carry potential, inherent dangers. When an employer is enjoined to provide a safe place of work, it can only be for the purpose of ensuring that the work that is carried on in the place where it occurs does not jeopardise the employees safety. The work activity cannot be divorced from the physical location where it takes place. On the second question, it is, I think, significant that neither employer nor occupier is defined in the legislation and the terms, I am satisfied, are used interchangeably throughout the Act. Employers duties are imposed and require to be discharged in the factory setting. It would thwart the entire purpose of the legislation to confine the discharge of those duties artificially to occupiers and to exempt employers from their reach. I have concluded that the duties arising under the Factories legislation were intended to be imposed on employers, whether they be occupiers or not. The third question does not admit of quite such an easy answer as the first two. It is, I believe, helpful to have regard to the general character or nature of the provision and the timing of its enactment. It is a provision which imposes a general requirement and it can be assumed, I think, that Parliament realised that it would be impossible, at the moment of its enactment, to prescribe comprehensively all the ways in which a place of work might become dangerous. This was therefore a catch all provision designed to ensure that workplaces be kept safe in any and all of the myriad ways that danger might arise in the future. One rather prosaic way of considering the question might be to imagine what the response of the enactors of the legislation might be if they had been asked in 1961, whether, if in 20 years time it proved that a workroom where women were required to operate knitting machines at a level of noise that would irreversibly damage their hearing, they intended that the requirement that employers maintain a safe place of work should apply to that situation. I believe that their answer would unquestionably be yes. A rather more principled way of addressing the question can be found in Bennions treatment of the subject of the presumption that an updating construction is to be given to an enactment. At section 288 of the fifth edition (2008) of his work on Statutory Interpretation, he says this: Section 288. Presumption that updating construction to be given (1) With regard to the question of an updating construction, Acts can be divided into two categories, namely the usual case of the Act that is intended to develop in meaning with developing circumstances (in this Code called an ongoing Act) and the comparatively rare case of the Act that is intended to be of unchanging effect (a fixed time Act). (2) It is presumed that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law. (3) A fixed time Act is intended to be applied in the same way whatever changes might occur after its passing. Updating construction is not therefore applied to it. (4) Where, owing to developments occurring since the original passing of an enactment, a counter mischief comes into existence or increases, it is presumed that Parliament intends the court so to construe the enactment as to minimise the adverse effects of the counter mischief. This appears to me to be a classic case of the mischief of noise induced hearing loss from exposure to 85 dB(A) becoming recognised during the lifetime of the relevant legislation. An updating construction is clearly called for and should be applied to the updated mischief. The always speaking principle is well established. Its clearest exposition remains that of Lord Wilberforce in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800, 822: In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The discernible policy of section 29 was to ensure that the place at which employees had to work was safe and since, for the reasons given, this aspiration was directed not only at the fabric and structure of the place but also at the working activities within it, the fresh set of facts represented by the risks of hearing loss from exposure to noise must be taken to fall within the parliamentary intention. Indeed, to exclude noise as a possible means by which a place of work might be rendered unsafe would run directly counter to the parliamentary intention that places of work were generally rendered into a safe condition. Now that it is well known that exposure to loud noise in a working environment without protection will bring about irreversible hearing loss, it is inconceivable that noise should not be accommodated within the reach of the section. The final question is perhaps the most difficult. Must safety be seen as an objective standard or is it a relative concept? The straightforward answer is that a place is safe or it is not. A place which is not safe cannot be said to be safe merely because it is believed to be, however justified the belief. Lord Mance has said that there is no such thing as an unchanging concept of safety. I agree, but as he has also observed, safety must be assessed objectively. It appears to me that the truly critical question is to which point in time should the assessment relate. Lord Mances view is that what he describes as a retrospective assessment based on knowledge current at the time that the court is considering the matter is impermissible. I am afraid that I cannot agree with that view. I do agree, however, that safety, in the context of section 29, does not connote absolute safety in the sense of the elimination of every conceivable risk. As was said in Sheppey v Matthew T Shaw & Co Ltd [1952] 1 TLR 1272 and Trott v WE Smith (Erectors) Ltd [1957] 1 WLR 1154 (CA) (to which Lord Mance has referred) a safe means of access does not mean absolutely safe so that no accident could possibly occur. But as Parker J in Sheppey pointed out, simply because safe does not mean absolutely safe, it does not follow that it means reasonably safe. A means of access is unsafe if it is a possible cause of injury to anybody acting in a way a human being may be reasonably be expected to act. There is nothing in Sheppey or Trott which suggests that the court in either case considered that safety had to be judged solely according to the state of knowledge at the time that the injury was sustained. Of course, neither case involved a re evaluation of what constituted safe in the light of evolving knowledge. As I have said, both cases are authority for the proposition that safe does not mean absolutely safe but I do not consider that this provides the answer to the question whether safety is to be judged by reference to what was believed to be safe at the time that the damage occurred. Therefore, when Lord Hope in R v Chargot Ltd (trading as Contract Services) [2008] UKHL 73; [2009] 1 WLR 1, 12 13 said that the Health and Safety at Work etc Act 1974 was not contemplating risks which are trivial or fanciful, and that the statutory framework was intended to be a constructive one, not excessively burdensome, and that the law does not aim to create an environment that is entirely risk free, he should not, in my opinion, be taken as suggesting that a state of affairs which is undoubtedly unsafe should be held not to have been unsafe for the purposes of the legislation simply because, at the time that injury was suffered, it was believed to be safe. Since safety is not an absolute, immutable concept, forseeability may play a part in the assessment whether a place was safe but I do not believe that this must necessarily be rooted in perceptions of what was historically considered to be safe. There is nothing wrong in principle in recognising that a place of work was unsafe based on contemporary knowledge. Forseeability of risk based on current information is relevant to the judgment whether a place of work was in fact safe. Thus, since it is now indisputable that a substantial minority of employees will develop hearing loss if exposed to noise levels of more than 85 dB(A) over a prolonged period, it is possible to recognise that the place at which the respondent was required to work was unsafe within the meaning of section 29. The role played by forseeability in this context is necessarily limited. It is confined to the judgment as to what is necessary, in light of all currently available information, to render a workplace free from such risks as might befall anybody acting in a way a human being may be reasonably be expected to act. By contrast, however, reasonable practicability does import consideration of what was known at the time that the injury was sustained. By definition it cannot be reasonable to put in place measures that are not known to be necessary. It may be practicable to do so but it cannot be said to be reasonably practicable. As the Court of Appeal in the present case said at para 83 of Smith LJs judgment, it is a matter of common sense [that], if the employer does not know of the risk and cannot reasonably have been expected to know of it, it cannot be reasonably practicable for him to take any steps at all. Once it is clear that the employer knew or should have known that there was a risk, an evaluation of the chances of the risk materialising is relevant to an examination of what it is reasonably practicable for an employer to do as Lord Goff put it in Austin Rover Group Ltd v HM Inspector of Factories [1990] 1 AC 619, 626 627: for the purpose of considering whether the defendant has discharged the onus which rests upon him to establish that it was not reasonably practicable for him, in the circumstances, to eliminate the relevant risk, there has to be taken into account (inter alia) the likelihood of that risk eventuating. The degree of likelihood is an important element in the equation. It follows that the effect is to bring into play forseeability in the sense of likelihood of the incidence of the relevant risk, and that the likelihood of such risk eventuating has to be weighed against the means, including cost, necessary to eliminate it. I agree with Smith LJ in her conclusion (at para 84 of her judgment) that for the defence to succeed, the employer must establish a gross disproportion between the risk and the measures necessary to eliminate it. In the words of Asquith LJ in Edwards v National Coal Board [1949] 1 KB 704, 712, the risk [must be] insignificant in relation to the sacrifice. In the present case, the provision of ear defenders at relatively modest cost was entirely practicable. For that reason, and since I have concluded that the employers ought to have been aware of the risk of noise induced hearing loss to the respondent, I do not consider that the defence of reasonable practicability was available to them. Conclusions Although the respondent has chosen, for what her counsel described as pragmatic reasons, not to challenge the findings of the Court of Appeal as to the date on which the appellants could have been said to be negligent for failing to recognise the risk of noise induced hearing loss, I have concluded that this was much earlier than was found by Smith LJ. Since the Court of Appeals findings on this issue were not challenged by the respondent, however, and since I have found that the statutory defence was not available to the appellants, I must content myself with saying that I would dismiss the appeal. LORD CLARKE Introduction As Lord Dyson observes, the history and awareness of the risks of occupational exposure to noise have been fully set out by Lord Mance. In addition, the issues have been discussed in considerable detail by Lord Mance, Lord Kerr and Lord Dyson. I shall therefore try not to repeat what they say, save in so far as it is necessary to explain the conclusions which I have reached. One of the striking features of the issues in this case, at any rate as it seems to me, is that the science upon which decisions as to what precautions employers should take to protect their employees from hearing loss caused by noise in the workplace had scarcely changed since the research carried out by Burns and Robinson in 1970, which led to the Code of Practice in 1972. All that has changed is the formation of a different view on the part of industry and the regulators as to the level of risk that it is acceptable to disregard. In these cases the claimants allege breaches by the employers of their duty under section 29(1) of the Factories Act 1961 (the 1961 Act), so far as reasonably practicable, to make and keep their place of work safe for them. If there is a breach of this duty, the question whether they were also in breach of their duty of care at common law becomes irrelevant because, so far as I am aware, nobody suggests that the claimants could recover more or different damages at common law from those recoverable for breach of statutory duty. I shall therefore consider first the issues under section 29. It is important to keep the questions relevant to the two bases of claim separate because the issues are different. If section 29 applies, the approach to the question whether there was a breach of duty under that section is materially different from the approach to the question whether there was a breach of duty at common law. Lord Wright made this clear in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, 178 and London Passenger Transport Board v Upson [1949] AC 155, 168. Section 29 the principles Section 29(1) of the 1961 Act provided: There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there. The first question that arises is whether section 29(1) applies in this class of case. Lord Mance discusses this question in detail. He asks three questions. They are whether section 29(1) applies to activities carried on in the workplace, whether it applies to risks of noise induced hearing loss arising from such activities in relation to long term employees working in the workplace and what is the meaning of safe. He answers the first two questions in the affirmative. Both Lord Kerr and Lord Dyson agree with him, essentially for the reasons he gives. So do I. In particular, I agree with Lord Kerr and Lord Dyson that, for the reasons they give, the language of the section is always speaking. I agree with Lord Kerr that in this context safety cannot connote absolute safety: Sheppey v Matthew T Shaw & Co Ltd [1952] 1 TLR 1272 and Trott v WE Smith (Erectors) Ltd [1957] 1 WLR 1154. In Sheppey Parker J said that it cannot mean absolutely safe in the sense that no accident could possibly occur. Trott was concerned with regulation 5 of the Building (Safety, Health and Welfare) Regulations 1948 (SI 1948/1145), which included a provision that: . sufficient safe means of access shall so far as is reasonably practicable be provided to every place at which any person has at any time to work. The Court of Appeal accepted that the regulation did not require absolute safety. Parker J was by now Parker LJ. He said at p 1162 that a means of access was not safe within regulation 5 if it was a possible means of injury to someone acting in a way that a human being might reasonably be expected to act in circumstances that might reasonably be expected to occur. I would accept that approach. The section does not say reasonably safe. Nor does it say that the workplace is safe if it is believed to be safe. The question remains simply whether the workplace was, at the relevant time, safe. I note in passing that Jenkins LJ said at p 1158 that the obligation to provide a safe means of access so far as reasonably practicable placed a stricter obligation on the employer than is placed upon him in the discharge of the general duty of reasonable care at common law. I agree. The word safe in section 29(1) is not limited by the concept of reasonable foreseeability. However, as Lord Mance and Lord Dyson have explained, there is a line of authority that it should be construed as if it were, by reference to the meaning of dangerous in section 14(1) of the 1961 Act and its predecessors. See eg Hindle v Birtwhistle [1897] 1 QB 192, John Summers & Sons Ltd v Frost [1955] AC 740, Close v Steel Co of Wales Ltd [1962] AC 367 and, to similar effect, the unreported decision of Rose J in Taylor v Fazakerley Engineering Co, 26 May 1989. This line of authority imports the concept of reasonable foreseeability into the meaning of safe on the basis that safe is the converse of dangerous: see to this effect the judgment of Diplock LJ in Taylor v Coalite Oils & Chemicals Ltd [1967] 3 KIR 315 and Allen v Avon Rubber Co Ltd [1986] ICR 695. There is, however, a second line of authority in which the Court of Appeal and the Extra Division of the Inner House of the Court of Session concluded that it is inappropriate to equiparate section 14 with section 29 of the 1961 Act: see Larner v British Steel plc [1993] ICR 551, Neil v Greater Glasgow Health Board [1994] SLR 673, Mains v Uniroyal Engelbert Tyres Ltd [1995] SC 518 and Robertson v RB Cowe & Co [1970] SLT 122. I do not think there is any basis on which it is possible to distinguish this second line of authority. The question then arises which line of authority to follow. I see the force of the approach of Lord Mance and Lord Dyson, which is to prefer the first strand of authority: see Lord Mance at para 71 and Lord Dyson at para 118. For my part I prefer the second. I do so for these reasons. The reasoning in the second line of cases is to my mind compelling. In particular, it is supported by the language of section 29(1), which is not reflected in section 14(1). This is emphasised by the reasoning of both Hirst LJ and Peter Gibson J in the Court of Appeal in Larner. At p 559 Hirst LJ quoted from the 11th edition of Munkmans Employers Liability (1990), pp 292 293: (v) When is access or place unsafe? Safe is, however, a simple English word and there is no reason why it should not be decided as a pure question of fact whether a place is safe or not. Unfortunately, the vague and uncertain notion of foreseeability has been introduced as a test. Hirst LJ added at pp 559 560 This view seems to me to have considerable force in the light of the very clear wording of section 29(1), which contains no reference to foreseeability, and seeing that, if [counsels] argument is correct, the distinction between the common law duty of care and the statutory duty will be virtually obliterated. Peter Gibson J said at pp 560 561 that the way in which the duty in section 29(1) was framed made it clear that to make good a claim for breach of statutory duty under section 29(1) the plaintiff had to allege and prove injury while and in consequence of working at a place at which he had to work and that such place was not made or kept safe for him. It was then for the employer to establish that it was not reasonably practicable to make and keep such place safe. It was common ground in the present appeal that in this last respect the burden was on the employer: Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107, Gibson v British Insulated Callenders Construction Co Ltd 1973 SLT 2 and Bowes v Sedgefield District Council [1981] ICR 234. In Larner the employer had not sought to discharge that burden; so the critical issue was whether the workplace was safe. This raised two questions. The first was whether the word safe meant safe from a reasonably foreseeable danger, so that a workman injured at his place of work by an accident which the employer could not reasonably foresee was unable to succeed in a claim for breach of statutory duty. The second question was whether, if so, the danger was reasonably foreseeable on the facts. Peter Gibson J answered the first question no. He did so convincingly and with clarity, by reference both to the language of section 29 and to the authorities. He said this at p 562: I start by considering the words of section 29(1) apart from authority. They contain no express reference to foreseeability, reasonable or otherwise. Safe is an ordinary English word and I cannot see any reason why the question whether a place of work is safe should not be decided purely as a question of fact, without putting any gloss on the word: see Munkman, Employer's Liability, p 292. Further, to imply words in the section so as to introduce a test of reasonable foreseeability is to reduce the protection afforded by the Act of 1961 for the workman, the plain object of the section being to provide for a safe working place: see Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107, 122, per Lord Guest. On principle and on authority that is impermissible: see John Summers & Sons Ltd v Frost [1955] AC 740, 751, per Viscount Simonds. This is not unfair on the employer whose duty to make and keep the working place safe is qualified by so far as is reasonably practicable, and I see no necessity to imply any other qualification. It would also seem wrong to me to imply a requirement of foreseeability, as the result will frequently be to limit success in a claim for breach of statutory duty to circumstances where the workman will also succeed in a parallel claim for negligence; thus it reduces the utility of the section. [Counsel] accepted that there was no authority that compels us to conclude that section 29 requires such a test and in Robertson v RB Cowe & Co, 1970 SLT 122 an argument that the test of reasonable foreseeability applied to section 29(1) was specifically rejected by the First Division of the Inner House of the Court of Session. However, [counsel] referred us to a number of other authorities in which the reference to safety in section 29 and other similar statutory provisions has been construed as importing the test of reasonable foreseeability. These authorities are based on certain comments by Lord Reid in the John Summers case [1955] AC 740 on the meaning of dangerous in section 14(1) of the Factories Act 1937. That subsection imposed the duty that Every dangerous part of any machinery shall be fenced. Lord Reid referred, at pp 765766, to what du Parcq J said in Walker v Bletchley Flettons Ltd [1937] 1 All ER 170, 175: a part of machinery is dangerous if it is a possible cause of injury to anybody acting in a way in which a human being may be reasonably expected to act in circumstances which may be reasonably expected to occur and queried the word possible, adding If the question of degree of danger has to be considered it might perhaps be better to say a reasonably foreseeable cause of injury. These comments on the meaning of dangerous in that provision which contains no qualification of reasonable practicability have, surprisingly, been relied on in obiter comments on the meaning of its antonym safe in section 29 of the Act of 1961 and other similar provisions notwithstanding that they do contain such a qualification. Peter Gibson J then noted that the views to the contrary by Diplock LJ in Taylor v Coalite were obiter and expressed before the decision in Nimmo, where Lord Guest said this at p 122: To treat the onus as being on the pursuer seems to equiparate the duty under the statute to the duty under common law, namely, to take such steps as are reasonably practicable to keep the working place safe. I cannot think that the section was intended to place such a limited obligation on employers. Peter Gibson J referred to three conflicting Scottish cases, namely Keenan v Rolls Royce Ltd 1970 SLT 90, Robertson v RB Crowe & Co 1970 SLT 122 and Morrow v Enterprise Sheet Metal Works (Aberdeen) Ltd 1986 SLT 697. He concluded that on the then state of the authorities the court was free to choose whether to apply the test of reasonable foreseeability. In agreement with Hirst LJ he said that he preferred to read the section without implying any such test. I entirely agree with both the approach of Peter Gibson J and with his reasons, which he put very clearly. Section 14 was in significantly different terms from section 29(1). It provided, so far as relevant: (1) Every dangerous part of any machinery shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced. It is noteworthy that there was no reference in section 14 either to reasonable foreseeability or to reasonable practicability. In Mains v Englebert Tyres, which was a decision of the Inner House, both Lord Sutherland and Lord Johnston convincingly rejected the suggestion that section 29 should be construed by reference to the construction of section 14. The Lord Ordinary had rejected the pursuers case on the basis that the accident had not been reasonably foreseeable. The Inner House, comprising Lord Sutherland, Lord Johnston and Lord Wylie allowed the pursuers appeal. They rejected the argument that reasonable foreseeability was a necessary prerequisite in the determination of whether or not a place of work was made and kept safe within the meaning of section 29(1). Lord Sutherland, with whom Lord Wylie agreed, analysed the authorities in some detail at pp 521 to 530. He agreed with the decision in Larner. At pp 530 to 531 he expressed his reasons, both as to the meaning of safe and as to the scope of the defence of reasonable practicability. In short, he concluded that reasonable foreseeability was not relevant to the question whether the workplace was safe but was relevant to the question whether it was reasonably practicable for them to prevent the breach. He said this: In my opinion, the construction of section 29(1) must depend upon the wording of that section itself. Since Nimmo the obligation under the section must be read as being that every working place shall be made and kept safe. If that obligation has not been met then it may be open to the employers to invoke the qualification that it was not reasonably practicable for them to prevent the breach and it may well be that reasonable foreseeability has a part to play in that. As considerations of reasonable practicability involve weighing the degree and extent of risk on the one hand against the time, trouble and expense of preventing it on the other, quite clearly foreseeability comes into the matter as it is impossible to assess the degree of risk in any other way. To that extent I agree that reasonable foreseeability can play its part in a consideration of section 29(1) but only at the later stage of considering whether the employers have discharged the onus upon them of showing that there were no reasonably practicable precautions which could have been taken. The initial part of the section is, in my view, clear. The duty is to make the working place safe. That means that there is a duty to prevent any risk of injury arising from the state or condition of the working place. There is nothing whatever in the section to suggest that the obligation is only to prevent any risk arising if that risk is of a reasonably foreseeable nature. Had that been the intention of Parliament it would have been perfectly simple for Parliament to have said so. If the duty had only been to take reasonably practicable precautions against reasonably foreseeable risks it is difficult to see how this section would have added anything of substance to the common law. Where the statute is designed to protect the safety of workmen it is, in my view, not appropriate to read into the statute qualifications which derogate from that purpose. It cannot be said that this reading of section 29 imposes an intolerable or impossible burden upon employers. They have the opportunity of establishing that there were no practicable precautions which could have been taken to prevent their breach of obligation. If they can do so they have a complete answer both to civil and criminal liability even though they are prima facie in breach of their obligation. This puts section 29 into an entirely different category from section 14 and I see no legitimate reason for forcing a construction upon section 29 which its plain words will not bear just because in the different context of section 14 the word dangerous has been construed in a particular way. Lord Johnston said this at pp 535 to 536, with particular reference to the relationship between sections 14 and 29: I do not consider that it is appropriate to equiparate section 14 with section 29, with particular reference to the line of authority construing the word dangerous in section 14. In my opinion that issue arises under that section in order to determine the scope of the section in the particular instance and indeed whether it applies at all. Whether rightly or wrongly, accordingly, the fact that the courts have interpreted dangerous under reference to reasonable foreseeability does not mean that necessarily the same criteria should apply when considering a different provision raising the questions of safety, particularly where that latter provision is qualified by a so called escape clause, viz reasonable practicability, and section 14, when it comes to breach, is absolute. I do not consider that it is appropriate to apply the law which limits or determines the scope of section 14 before considering a breach of it, to what constitutes a breach of section 29(1) under reference to safety or lack of it. I therefore consider that section 29(1) stands on its own and authorities relating to section 14 fall to be ignored. While, as a matter of English language, safe may be the converse of dangerous, in my opinion section 29 has to stand on its own and be construed as such. I entirely agree with the reasoning of Lord Sutherland and Lord Johnston in those passages. In doing so, I do not conclude that safe is not the antonym of dangerous in the two sections, only that there is nothing in section 29 to introduce the principle of reasonable foreseeability into the meaning of safe. I note in passing that, as Lord Mance says at para 67, the Close line of case law has received mixed academic commentary. It was criticised by Munkman in his article The Fencing of Machinery 1962 LJ 761, where he said at p 761 that foreseeability is not to be found in the Factories Act, that it is an alien importation from the law of negligence and that, since negligence is a lower standard of liability, to import its concepts would necessarily reduce liability under the statute. Close was also criticised by the authors of the 1970 72 Safety and Health at Work Report of the Committee chaired by Lord Robens. Appendix 7 reviewed the case law on statutory safety provisions. At para 7 on p 186, the authors criticised the Close line of case law as contrary to the interests of accident prevention. In my opinion, given that the section 14(1) cases are susceptible to criticism, even on their own terms, we should be cautious about transferring the rationale to other provisions, particularly when so many cases have decided that it is inappropriate to do so. The language of section 29(1) to my mind shows that it is a results provision. That it provides that, subject to the defence of reasonable practicability, it requires that the workplace be and remain safe. Lord Johnston put it thus in Mains at p 536: The obvious starting point in my opinion is that the wording of the section, putting aside the qualification, does not admit immediately any reference to reasonable foreseeability. The verb shall is relentless and the phrase made and kept safe, if looked at on the basis of made and kept accident free, would immediately admit a construction so far as these words go that if an accident occurs within the workplace and related to it the pursuer need prove no more. The defender then can raise the issue of reasonable practicability on any basis that he thinks fit. Some reference has been made to sections 2 and 3 of the Health and Safety at Work etc Act 1974. Section 2(1) provides that it is the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees and section 3(1) provides that it is the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety. In para 63 Lord Mance has made some reference to the decision of the House of Lords and to the speech of Lord Hope, with whom the other members of the House agreed, in R v Chargot Ltd (trading as Contract Services) [2008] UKHL 73, [2009] 1 WLR 1. As I read Lord Hopes judgment in that case, the central issue was whether in prosecutions for breaches of those duties it was for the prosecution to prove the acts and omissions by which it was alleged there had been a breach of duty and, in particular, whether it was enough for it simply to assert that a state of affairs existed which gave rise to risk to health or safety: see the statement of the issues at para 15. This involved a consideration of the scope of the duties in paras 17 to 21. In para 17 Lord Hope noted that both sections provided for a duty to ensure certain things. He then asked what the employer must ensure and concluded: The answer is that he is to ensure the health and safety at work of all his employees, and that persons not in his employment are not exposed to risks to their health and safety. These duties are expressed in general terms, as the heading to this group of sections indicates. They are designed to achieve the purposes described in section 1(1)(a) and (b). The description in section 2(2) of the matters to which the duty in section 2(1) extends does not detract from the generality of that duty. They describe a result which the employer must achieve or prevent. These duties are not, of course, absolute. They are qualified by the words so far as is reasonably practicable. If that result is not achieved the employer will be in breach of his statutory duty, unless he can show that it was not reasonably practicable for him to do more than was done to satisfy it. The same is true of section 29(1), as Lord Hope explained in para 18, by reference to Nimmo, to which I have already referred. He said that this method of prescribing a statutory duty was not new. As Lord Reid explained in the opening paragraphs of his speech in Nimmo, the steps which an employer must take to promote the safety of persons working in factories, mines and other premises are prescribed by a considerable number of statutes and regulations. Sometimes the duty imposed is absolute. In such a case the step that the statutory provision prescribes must be taken, and it is no defence to say that it was impossible to achieve it because there was a latent defect or that its achievement was not reasonably practicable. In others it is qualified so that no offence is committed if it was not reasonably practicable to comply with the duty. Sometimes the form that this qualified duty takes is that the employer shall do certain things, of which Lord Hope gave a number of examples. He added that sometimes the statute provides that the employer must achieve or prevent a certain result. He concluded thus: Section 29(1) of the Factories Act 1961, which was considered in Nimmo, took that form. So too do sections 2(1) and 3(1) of the 1974 Act. It is the result that these duties prescribe, not any particular means of achieving it. So the House of Lords recognised in Chargot that section 29(1) prescribed a certain result, namely that the workplace must be kept safe, subject of course to the employer showing that it was not reasonably practicable to do so. Lord Mance, however, relies upon para 27 of Lord Hopes speech, where he said this: The framework which the statute creates is intended to be a constructive one, not excessively burdensome. The law does not aim to create an environment that is entirely risk free. It concerns itself with risks that are material. That, in effect, is what the word risk which the statute uses means. It is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against. It is important to note that there is a distinction between the language of sections 2 and 3 of the 1974 Act on the one hand and section 29 of the 1961 Act on the other. As I read it, para 27 does not detract from Lord Hopes previous statement at para 17 that the obligation to achieve the statutorily prescribed result is absolute. Rather, it is by analysing the result prescribed by sections 2 and 3 of the 1974 Act by reference to the use of the word risk that he imports the notion of relativity, namely that the result is to protect against material risks. Given the difference between the wording of the sections, I am not persuaded that the reasoning in para 27 is applicable to section 29(1) of the 1961 Act. Both Lord Mance and Lord Dyson (at paras 64 and 111 respectively) refer to passages from the speeches of Lord Nicholls and Lord Hobhouse in R (Junttan Oy) v Bristol Magistrates Court [2003] UKHL 55, [2003] ICR 1475, again to the effect that safety is a relative concept. The issue was whether there was any difference between the standards set by the Machinery Directive 98/37/EC and those set by the 1974 Act. Both require machinery to be safe. It was in the context of the discussion of that issue that Lord Nicholls said at para 22: Section 6(1)(a) of the 1974 Act imposes a duty to ensure, so far as is reasonably practicable, that machinery is so designed and constructed that it will be safe. The effect of regulations 11 and 12(1)(e) of the 1992 Regulations is to prohibit the supply of machinery which is not in fact safe. So far there is no difficulty. But safe is not an absolute standard. There may be differences of view on whether the degree of safety of a particular piece of machinery is acceptable. Unlike the 1974 Act, the 1992 Regulations define what is meant by safe. At once there may be room for argument that the standards set by the Act and the Regulations are not necessarily the same. This in itself is not satisfactory. As already noted, the inhibiting effect of differently worded provisions having much the same result was one of the matters the Machinery Directive was specifically intended to eradicate: see recital 6 in the preamble. To my mind, that statement reads as an acknowledgment that the use of the word safe in different statutory contexts can mean different things, not, as Lord Mance suggests at para 64, that safety is always a relative concept, at any rate if so to construe it is to import the notion of reasonable foreseeability. Finally, Lord Mance refers at para 68 to Robb v Salamis (M&I) Ltd [2006] UKHL 56, [2007] ICR 175 in support of the proposition that reasonable foreseeability is generally accepted to be relevant to determining the standard of safety required across the health and safety legislation. In that case, Lord Hope confirmed the relevance of reasonable foreseeability to regulations 4 and 20 of the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306). However, as Lord Hope makes clear at para 3 of his judgment, the starting point for his analysis is the words of the regulations. Regulation 4(1) requires the work equipment to be suitable and regulation 4(4) provides that suitable in that regulation means suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person. It thus contains an express reference to reasonable foreseeability. So it must be queried how far, if at all, this case supports the general argument that reasonable foreseeability is relevant in health and safety legislation in the absence of express words used in the statute. I agree with Lord Mance and Lord Dyson (at paras 60 61 and 111 respectively) that, given the divergent strands of authority and the differences of opinion identified in the cases, it is relevant to have regard to considerations of policy in construing section 29(1). Such considerations seem to me to point away from importing the concept of reasonable foreseeability into the meaning of safe. The critical first question in every case under section 29(1) is whether the workplace was in fact safe for the employee. The purpose of the section is to protect the employee not the employer. This is plain from the unqualified use of the word safe. Moreover it makes sense. First, the employer is in a much better position to obtain insurance against unforeseeable risks than the employee. Secondly, the employer, and industry more broadly, are better placed to investigate and identify risks to health and safety. As I see it, one of the purposes of such legislation is to provide every incentive for employers to do precisely that. Thirdly, in section 29, the balance between the employer and the employee is struck by the reasonable practicability defence, which itself imports considerations of reasonable foreseeability. Fourthly, it is no doubt for these reasons that, when commenting on the distinction between breach of statutory duty and negligence, the editors of the 14th edition of Munkman say at para 33 that it is not generally necessary to establish foresight of harm or fault on the employers part to establish breach of statutory duty. These are essentially the considerations that Peter Gibson J had in mind in the passage from his judgment in Larner at p 562 quoted above. Finally, I note that at para 61 Lord Mance expresses doubt as to whether section 29 can apply to a case of this kind if it imposes absolute liability. For my part I do not agree. Once it is accepted, as it is by Lord Mance at para 48, that a workplace can be rendered unsafe by operations constantly and regularly carried on in it, it would seem to me to follow that section 29(1) will cover any hazards created by such operations. The requirement is to achieve the result of safety, as opposed to safety from a particular hazard. It seems contrary to the clear wording of the statute to exclude from the scope of section 29 a category of hazard on the basis that the particular hazard was not in the mind of the draftsman. If noise can cause injury by damaging a persons hearing, then that workplace is unsafe for those who are working there. It does not matter that the hazard that renders a working environment unsafe was not contemplated at the time of the Act. In any event, as explained above, section 29 does not impose absolute liability because the employer has a defence if he can establish that he took all reasonably practical precautions, which involves a consideration of what risks are reasonably foreseeable. As stated above, the first question in each case is whether the workplace was safe. If the claimant proves that it was not, the second question arises, namely whether the employer has shown that, so far as reasonably practicable, it was safe for those working there. I agree with the reasoning in Larner and Mains that, in considering whether the employer has shown that, so far as reasonably practicable, it was safe it is relevant to consider whether it was reasonably foreseeable that it was unsafe. While (as demonstrated by Lord Dyson at para 125) the language could be construed more narrowly, I agree with Lord Sutherlands opinion expressed in the passage quoted above that, as considerations of reasonable practicability involve weighing the degree and extent of risk on the one hand against the time, trouble and expense of preventing it on the other, quite clearly foreseeability comes into the matter because it is impossible to assess the degree of risk in any other way. I also agree with Peter Gibson J to the same effect in the passage from Larner quoted above. Those conclusions are consistent with the view expressed in the 14th edition of Munkman at para 5.89: In considering what is practicable, account must be taken of the state of knowledge at the time. A defendant cannot be held liable for failing to use a method which, at the material time, had not been invented: Adsett v K and L Steelfounders and Engineers Ltd [1953] 2 All ER 320; nor for failing to take measures against a danger which was not known to exist: Richards v Highway Ironfounders (West Bromwich) Ltd [1955] 3 All ER 205. That view is consistent with the view expressed by Smith LJ in the Court of Appeal at para 83 (and quoted by Lord Kerr at para 182 above) that it is a matter of common sense [that], if the employer does not know of the risk and cannot reasonably have been expected to know of it, it cannot be reasonably practicable for him to take any steps at all. Section 29 the facts I turn to the facts. Although I have discussed the meaning of safe in some detail because I regard it as a point of some general importance, I have reached the conclusion that the employers were liable on the facts, whatever the true meaning of safe. I agree with Lord Kerrs analysis of the facts. I agree with him (at para 155) that the Code of Practice of 1972 was the source of warning that noise levels of less than 90 dB(A) would damage some workers hearing and that, thus alerted, an employers obligation to remain abreast of information that would allow him to know what percentage of his workforce was likely to be affected was plain. In these circumstances there was a clear duty to keep abreast of developments, which included giving consideration to the information that became available in 1975 and 1976. That information would have led to the conclusion that a significant percentage of a workforce exposed to noise at levels greater than 85dB(A) would suffer a hearing loss. The judge made two unchallenged findings of fact of some importance: (1) that the information would have revealed that, when exposed to noise above the level of 85dB(A), the risk of suffering hearing loss accelerates up to 90dB(A) and in the high 80s, given long enough exposure, significant hearing loss may be expected in at least a substantial minority of individuals; and (2) that the evidence did not show that the cost of implementing a policy of voluntary hearing protection at levels below 90dB(A) was such that a reasonable employer could use cost or difficulty as a valid reason for not having such a policy. See Lord Kerr above at paras 157 to 159. At paras 161 to 168 Lord Kerr considers in some detail the practice of employers of taking no steps in respect of levels below 90dB(A) in the light of the Code of Practice of 1972. I agree with his critique of the evidence of Mr Bramer, Mr Currie and Mr Worthington. I agree with his conclusion at para 165 that employers should have considered the data shortly after it became available in 1976 and, if they had, that they would have concluded that a significant minority would suffer hearing loss if exposed to noise levels exceeding 85dB(A) over a prolonged period. They would have discovered that this could be avoided by the provision of ear defenders at not unreasonable cost and that they would or should have provided their employees with ear defenders. On the construction of section 29 preferred by Lord Mance and Lord Dyson, the correct conclusion on those facts is that it was reasonably foreseeable that if nothing was done a substantial minority of employees would suffer from significant hearing loss and that the workplace was therefore unsafe, from which it follows that the employers had not procured that it was safe. That conclusion is inconsistent with the conclusion both that the risk of sustaining damage was minimal and that the number of those affected was minimal. This is not a case of de minimis non curat lex. Nor is it a case in which the employers can rely upon the practice in industry, for the reasons given by Lord Kerr. It is clear that in these circumstances the employers could not successfully rely upon the defence that they had done what was reasonably practicable: see per Lord Kerr at paras 182 to 184 above. On my construction of the meaning of safe, on the judges findings of fact there can be no doubt that the workplace was unsafe and the employers cannot rely upon the defence. They cannot show that it was not reasonably foreseeable that the workplace was unsafe and, for the reasons already given, they cannot show that they took all reasonably practicable steps to make it safe. For these reasons, like Lord Kerr, I would dismiss the appeal on the basis that the employers were liable for breach of the duty contained in section 29 of the 1961 Act. Liability at common law The above conclusion makes it unnecessary to express a concluded view under this head. I was initially attracted by the employers case that they were not in breach of duty having regard to the fact that they complied with the practice in the industry as set out in the 1972 Code. However, on reflection I am persuaded by the reasons in Lord Kerrs judgment. In doing so, I do not intend to depart from the principles stated by Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783 and by Mustill J in Thompson v Smith Shiprepairers (North Shields) Ltd [1984] QB 405, 422, quoted by Lord Kerr at paras 156 and 166 respectively. It is appropriate for an employer to have regard to any relevant industry code, but, as Swanwick J put it, employers must give positive thought to the safety of their workers in the light of what they know or ought to know. I agree with Lord Kerr that an application of that approach would have led employers to take action long before they did. In this regard (as stated earlier) I agree in particular with Lord Kerrs critique of the expert evidence at paras 162 to 166 and with his conclusions at paras 166 to 168. In short, the employers should have given consideration to the risks posed to those exposed to levels of noise between 85 and 90dB(A). If they had they would have appreciated that a significant number of their employees would be exposed to significant hearing loss, which should (and perhaps would) have led to their making ear protectors available to their workforce. Conclusion For the reasons I have given I would dismiss the appeal.	This appeal concerns the liability of employers in the knitting industry of Derbyshire and Nottinghamshire for hearing loss suffered by employees prior to 1 January 1990. The central issue is whether liability existed at common law in negligence and/or under s.29(1) of the Factories Act 1961 towards an employee who suffered noise induced hearing loss due to exposure to noise levels between 85 and 90dB(A)lepd. Mrs Baker, the Respondent, worked in a factory in Sutton in Ashfield, Nottinghamshire, from 1971 until 2001. From 1971 to 1989 she was exposed to noise which was found at trial to have been between 85 and 90dB(A)lepd and which had led to her sustaining a degree of noise induced hearing loss. The measure db(A)lepd indicates exposure at a given sound level over a period of eight hours. Mrs Baker brought a claim against her employers, for whom liability now rests with Quantum Clothing Group Ltd, one of the Appellants. A number of other individuals brought similar claims against Meridian Ltd, Pretty Polly Ltd and Guy Warwick Ltd, and all the claims were decided together as test cases. Only Mrs Baker was found to have suffered hearing loss due to noise exposure in her employment and the other claims were therefore dismissed. Mrs Bakers claim was dismissed on the different basis that her employers had not committed any breach of common law or statutory duty. The Court of Appeal allowed an appeal by Mrs Baker and reached conclusions less favourable to all four employers than those arrived at by the judge at first instance. The Court held that liability at common law arose in January 1988 for employers with an average degree of knowledge, which included Guy Warwick. Quantum, Meridian and Pretty Polly were found to have had greater than average knowledge and were liable at common law from late 1983. S.29(1) of the Factories Act 1961 provides that, every place at which any person has at any time to work shall, so far as is reasonably practicable, be made and kept safe for any person working there. The Court held that the section imposes a more stringent liability than at common law and in particular that what was safe was to be judged irrespective of whatever was regarded as an acceptable risk at the time. On this basis the Court held that the date from which liability arose under the section was January 1978. The present appeal has been brought by Quantum, Meridian and Pretty Polly, with Guy Warwick intervening. The Supreme Court allows the appeal by a majority of 3:2 and restores the judges decision at first instance. Lord Mance gives the lead judgment. Lord Dyson gives an additional concurring judgment, and Lord Saville agrees with both. Lord Kerr and Lord Clarke give dissenting judgments. The Supreme Court first dealt with common law liability in negligence. The central question was whether a 1972 Code of Practice published by the Department of Employment, which recommended a noise exposure limit of 90dB(A)lepd, constituted an acceptable standard for average employers to adhere to during the 1970s and 1980s. The judge at first instance had found that it did until the terms of a draft European Directive of 1986, which proposed a lower limit, came to be generally known in 1988 via a consultative document. The Court upheld that conclusion of the judge. Examination of the underlying statistical material did not undermine the relevance of the Code as a guide to acceptable practice. It was official and clear guidance which set an appropriate standard upon which a reasonable and prudent employer could legitimately rely in conducting his business until the late 1980s. The Court also endorsed a further two year period beyond 1988 allowed by the judge for implementing protective measures, thus meaning that the average employer had no common law liability before 1 January 1990. The Court of Appeal had been incorrect to replace that period with a period of six to nine months. On the facts, Quantum and Guy Warwick were in the position of average employers to whom the 1 January 1990 date applied. Courtaulds and Pretty Polly, however, were in a special position. By the beginning of 1983 they had an understanding of the risk that some workers would suffer damage from exposure to between 85 and 90dB(A)lepd, which distinguished their position from that of the average employer. Allowing a further two years to implement protective measures, they were potentially liable at common law from the beginning of 1985. The Court then dealt with liability under s.29(1) of the 1961 Act. In construing the section, the Court first held that a workplace may be unsafe within the meaning of the section not only due to its physical fabric, but also due to activities carried on in it. The next question was whether the section applies to risks created by noise. The Court held that it did, on the basis that the section could accommodate attitudes to safety that were not held at the time when it was enacted. Thirdly, the Court held that what is safe is a relative concept that must be judged having regard to general knowledge and standards at the time of the alleged breach of duty. Finally, the Court held that the qualification, so far as is reasonably practicable, also allows such general knowledge and standards to be taken into account. Applying that construction, the section did not impose in this respect a more stringent liability than at common law. The employers by complying with the Code of Practice were not in breach of the statutory duty before like dates as those from which they were potentially liable at common law. Lord Kerr and Lord Clarke dissented. They held that the terms of the Code of Practice and other material available by 1976 were such that employers should have been aware that damage to hearing could occur at levels below 90dB(A)lepd and that certain individuals in the workforce would be particularly vulnerable at those levels. Further, the employers should have been aware that they could have reduced that risk at not inordinate cost by the provision of ear protection. Liability therefore arose at common law from the late 1970s onwards. As to liability under s.29(1), the concept of safety, unlike the qualification of reasonable practicability, does not include an assessment of what was foreseeable at the time. On the facts, the workplaces were not safe and it was reasonably practicable to provide ear protection. The dissenting Justices therefore held that employers were liable under the section from 1978 as held by the Court of Appeal.

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